U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Suite 700-1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 81-ERA-6
In the Matter of
MICHAEL COTTER
v.
CONSOLIDATED EDISON COMPANY
OF NEW YORK
RECOMMENDED DECISION
This is a proceeding brought under the provisions of the Energy
Reorganization Act of 1974, 42 U.S.C. 5851, hereinafter called
the Act, and its implementing regulations, 29 CFR Part 24. In
this proceeding, the Complainant, Michael Cotter, seeks job
reinstatement, back pay, and attorney fees from the Respondent,
the Consolidated Edison Company of New York. The complaint is
that the Respondent-Employer discharged him because he was
vigorous in pursuing elimination of safety violations, rather
than the alleged offense of threatening to kill his supervisor.
The Complainant initially attempted to file his complaint
with the Occupational Safety and Health Administration, but
was subsequently referred to the Wage and Hour Division, U.S.
[Page 2]
Department of Labor, whereupon an investigation was conducted
which found that discrimination was at least one of the motives
which led to his dismissal, and recommended reinstatement with
back pay. The Respondent appealed this decision to the Office
of Administrative Law Judges for a formal hearing.
Pursuant to a notice issued on April 8, 1981, the hearing
was commenced in New York, New York, on May 12, 1981, and
continued on May 19th, 20th and 21st. This recommended decision
is based upon the entire record of the proceedings.
Statement of the Case
The Complainant testified that he had been employed by the
Respondent since July 1, 1959, and from 1965 up until the time
he was discharged he was a Boiler Overhaul and Turbine Overhaul
Mechanic in the Field Operations Group, assigned as needed
to various stations in the Edison System. He worked at the
Indian Point nuclear power plant on several occasions including
during the recent outage. The Complainant was active in union
affairs, holding various elected positions, and since May 1978,
was a member of the union's Nuclear Safety Committee.
He stated that in the 19 years in which he worked for
Con Edison prior to 1978 he had received only two disciplinary
actions by his supervisors. In 1968 he was written up for
being insubordinate because he refused to leave his supervisor's
office until he received an answer concerning a safety complaint
(Tr. 572). In 1972, he was involved in an incident in which he
was allegedly assaulted by another employee while on the job.
Shortly after Mr. Ferdinand Dorrer became the General
Foreman of the Field Operation Group, Cotter became involved
in a dispute with him concerning procedures involved in
removing the wheels of a spindle in which the procedure was
alleged to be unsafe. Mr. Dorrer insisted that the procedure
being used was safe although as a result of the complaint
relayed by Cotter, the procedure was modified (Tr. 581). He
recounted another incident in the Ravenswood Station concerning
insulation and other hazards, in which he alleged that Dorrer
was slow to make corrections, because of concern for time
schedules (Tr. 583). He also recounted an incident in 1978
during an outage at Indian Point in which a complaint was
brought to Mr. Dorrer concerning use by one of his foremen
[Page 3]
of a vaccum cleaner with an inappropriate filter in which he
was told by Dorrer that the appropriate filters were not
available, although they were subsequently found in the back
of the store room (Tr. 591). It should be noted that although
some of these complaints were non-nuclear in character, the
complaint with respect to the vaccum filter in 1978 was
between Dorrer and Cotter, and the final exchanges which
preceded the incident which culminated in Mr. Cotter's dismissal
occurred at the Indian Point nuclear facility. Furthermore,
according to Cotter, the frequency of incidents in which he
was adversely involved with Dorrer increased after he became
a member of the Nuclear Safety Committee. He testified that
Dorrer ordered him to duties which would isolate him and
make him less accessible to receive complaints from his
coworkers. (Tr. 602) He also related an incident which
occurred on December 22, 1978, at Ravenswood Station, a
non-nuclear facility, where he was found to be missing from
the job for approximately fifteen or twenty minutes by Dorrer.
According to Cotter, Mr. Dorrer was unreceptive to any explanation,
and he was given a seven hour suspension. A grievance was filed
and an Arbitrator ruled in the company's favor (Tr. 608).
In February of 1979, there was another incident in which Mr.
Cotter failed to work a twelve hour shift as previously agreed
because of a snow storm, for which he received a warning. In
addition, there was another incident in the same month in which
similar action was taken because he left the facility because
of illness. (Tr. 613) According to the Complainant's counsel
this evidences a pattern of harassment which coincidentally
followed the appointment of Mr. Cotter to the Nuclear Safety
Committee. Another incident occurred in June 1980 in which
Mr. Cotter was docked time for not having returned from a medical
appointment in a compensation case. At that time, he was assigned
to Ravenswood, and was working from 7 to 3 (Tr. 620). Dorrer
checked with the physician and found that he had left before
11:00 a.m. Initially he was docked 8 hours, but after seeing Mr.
Kinkel, who was over Dorrer, he was paid for 3 1/2 and lost 4 1/2
hours wages for being off the job. Cotter contended that had he
reported for work, it would have been almost time to return.
A major incident was described by Mr. Cotter which occurred
in the fall of 1980 when he was assigned to the Indian Point
Nuclear Power Plant. After some publicity was given to the
Plant concerning the outage, it was noted that while visits
were being made by the press and representatives of the Nuclear
Regulatory Commission, considerable attention was given to
[Page 4]
safety standards. After they left the site, and productivity
picked up, safety standards seems to decline (Tr. 645). Mr.
Cotter recalled making complaints about open holes and urged
the construction of barricades of some permanent nature. He
charged that the supervisors resisted the making of improvements,
or suggested alternate measures which he regarded to be
unsatisfactory. He also made complaints concerning proper housekeeping
under the reactor, contaminated tools lying about, drop lights
being on the floor instead of overhead, and although complaints
were made to Mr. Ruez, the area was not sanitized or placed
in proper order because staff was "very busy and didn't get
a chance to clean." (Tr. 652) He relayed these complaints
to John Odendahl, another union representative involved with
safety, who set up a meeting with Mr. Monti, Plant Manager
concerning safety complaints on November 20th. Another major
incident was one in which he complained to Fred Dorrer on
November 19th, concerning dust around a big spindle which was
being sandblasted. According to Cotter there was disagreement
with respect to the appropriate remedy to protect nearby workers
from inhalation of noxious elements, including aluminum oxide.
According to Cotter, Dorrer resisted a procedure which ultimately
turned out to be the successful solution to the problem and
instituted procedures which were unsatisfactory. Cotter described
in detail his efforts to prevent Dorrer from continuing with the
sandblasting until appropriate action was taken. Eventually the
complaint reached upper management and the job was ordered to be
stopped until Dorrer corrected the situation. (Tr. 664) Cotter
also told of an incident concerning inappropriate assignment of
duties according to work permit numbers (which prescribed among
other things the appropriate clothing to wear on a particular
assignment). After explaining to Mr. Kinkel (Dorrer's supervisor)
that certain employees were inappropriate assigned, Kinkle indicated
that all were under the same work permit number and he gave a number,
which Cotter checked out and was revealed to be a supervisors
inspection number (Tr. 671). He brought this to Kinkel's attention,
but he insisted that the job be completed over the objection of
Mr. Cotter. Kinkle's response was that he was going to obtain a
general work permit to permit employees of various classifications
to work on the same job.
Allegedly this was impossible. As a result of all these safety
complaints a general meeting with management was held on
November 20th at which all employees, including Cotter, were able
to express their concerns to Mr. Monti. (Tr. 679) Monti responded
[Page 5]
by indicating that he would send John Daly, the supervisor of
safety in for an inspection. Mr. Cotter testified specifically
that he had complained about Dorrer's attitude at the meeting
in that he was stubborn with respect to yielding to the Safety
Committee (Tr. 681), and also the attitude of Mr. Kinkel
concerning the work permit situation, and accordingly Monti said
that he would talk to Kinkel about it. It was thought that
Monti would give more power to Mr. Daly so as to improve his
ability to get supervisors to cooperate in improving safety
standards.
The Complainant testified that he had attended approximately
18 safety meetings since 1978, but remembers in particular the
meeting of November 20, 1980, because he was particularly vocal
and because it was a full committee meeting which lasted a few
hours (Tr. 686), Shortly thereafter he was transferred from the
area of containment to the turbine floor on the ground that his
exposure to radiation was excessive, although he had established
that there were other employees with higher radiation levels
in containment (Tr. 693).
It may be significant that shortly thereafter while talking
to Dorrer about a problem concerning Ed Daly in which Daly
complained that Dorrer had spoken to him in a disparaging way
Dorrer indicated that he did not know what was in the minds
and hearts of people said that Mike Cotter at that time might
have been entertaining the idea of killing him. (Tr. 697)
Cotter responded that it would be a sin and it seemed that
the entire remark was improper.
The final incident occurred on November 29th which was near
the week in which Cotter returned to the Turbine Floor. On that
day he had been engaged in removing "baskets" from the moisture
separator, which required the mechanic to enter a contaminated
compartment wearing protective gear, and although the separator
had not been in use since approximately October 15th, Cotter
described the temperature therein as being approximately 80
to 90 degrees. Describing his attire in detail, including a
full respirator over his face, I conclude that there was
very little ventilation and that upon the conclusion of his
work, Cotter was sweating. He testified that at first he went
with a coworker to look for Mickley, who was his immediate
supervisor, to report that the job was finished. (Tr. 730)
Not being able to find him he went to the locker room, borrowed
[Page 6]
a hairdryer, and while at the sink, blow-drying his hair, Dorrer
appeared. Approximately 15 or 20 other mechanics were passed
by Dorrer on his way to the bathroom. Dorrer charged that
Cotter was off the job and taking advantage of the fact that
Mickley had left the plant because of a personal emergency.
(Tr. 733) Cotter attempted to explain to Dorrer that he did
not believe Mickley had gone home because earlier in the day
he had indicated that he had transportation problems, and that
he never insisted that permission be obtained to go to the locker
room (Tr. 741,742). He attempted to explain all of this to
Dorrer who was evidently under the impression that Cotter had
taken a shower, but all Dorrer would say was "go on, keep talking
Mike, keep talking." It was apparent to Cotter that Dorrer was not
accepting his explanation. Later, while Cotter was talking with
Gene Duffy, Dorrer emerged from his office and stated "I'm going
to write a letter on you Mike. There may be further disciplinary
action to follow." Cotter requested an opportunity to talk with
Dorrer who left the area and then returned. When he returned
Cotter explained his side of the story and asked why Dorrer had
such animosity against him. Cotter found Dorrer unreceptive
to explanations and concluded that it was hopeless to persist.
Cotter states that he then returned home, and denies that he
ever made any threat to Dorrer or that he ever telephoned
Dorrer's home.
The following day at work, Mickley appeared, and stated to
Cotter that Dorrer had told him that Cotter had threatened him on
Saturday, but said that if he apologized he would forget everything
(Tr. 745). Cotter refused to apologize because he denied having
threatened Dorrer. (Tr. 745). Later he was told to report to
Mr. Long, who was the Project Manager and who had two people there
from Personnel and was asked about the allegations concerning
threats. Cotter refused to say anything without union representation.
Unable to obtain a union representative, he also refused to make a
statement and was allowed to remain at the Station only for such
time as he could complete his shift if he promised that he would not
see Dorrer. The next day he was referred to a psychiatrist for
evaluation. He was ordered to leave Indian Point on December 3rd,
which is about 3 days after the incident and from December 4th until
January 29th he worked in the East River Station (Tr. 753). In
Cotter's view, these charges were all "trumped up" in order to get
him out of the Indian Point Station. (Tr. 755) Although
interviewed by Personnel on January 9th he denied that he had made such
threats and on January 29, 1981, he was told at work by Mr. Satira
[Page 7]
that he was being terminated. According to Cotter he was in state
of "total shock", and he was escorted off the property.
On cross-examination, Mr. Cotter conceded that in connection
with the warning given to him in 1972 when he was assaulted, he
had misrepresented that the assailant was unknown to him, and that
he did not reveal his identity because he felt an obligation to
protect another union member (Tr. 779). He also agreed that most
union members seek to protect themselves against action to be
taken against them by the company, and that the complaints made
at Ravenswood concerned a conventional or nonnuclear facility
(Tr. 783). It as brought out that Dorrer had testified against
him once before at an arbitration hearing at which Cotter lost
pay (Tr. 803) and although Cotter maintained an attitude of
equanamity during the course of the entire hearing, and indicated
that he was calm during the exchange with Dorrer at the incident
which resulted in his discharge, he did admit that on December 21,
1978, he had a heated or emotional exchange with Dorrer (Tr. 810)
indicating that he is capable of losing his temper. He denied
that he had asked to talk to Fred Dorrer privately on December 29th
(as Dorrer asserts) although he had insisted on the presence of a
union representative or an attorney on other occasions (Tr. 813).
In talking to Dorrer on November 29th there was a dispute as to
exactly how far Duffy was standing from them, and whether he was
actually looking at them. He also denied, as Dorrer subsequently
asserted, that when Dorrer appeared in the locker room, he lost
his temper and told Dorrer he had no business there (Tr. 840).
With respect to the medical appointment incident it was brought
out that the doctor's office was only twenty miles away from
work, and although it was suggested to him that he might have made
it to work by train in time to complete a portion of the day,
Cotter indicated that he was entitled to lunch, had the problem
of finding a restaurant and could not have gotten to work earlier
enough to make it worthwhile (Tr. 851). He denied making threats
to Dorrer or making a statement about "taking money out of his
family's mouths or pockets" (Tr. 865) and insisted that the reason
he did not tell his full story to security when given the opportunity
to do so was because he was instructed by his attorney only to
answer questions, to cooperate, but not to volunteer information
particularly in view of the fact that the attorney could not be
there (Tr. 866, 867). Accordingly, on those occasions he did not
connect up any relationship between his troubles with the fact that
he was involved in making safety complaints (Tr. 867). He indicated
that Dorrer had been particularly punitive in calling the physician
[Page 8]
in February 1978, to see if he had finished his medical appointment,
and in leveling a 7 hours suspension after he was absent for 15
minutes from the job in another incident (Tr. 890).
Mr. Dorrer's testimony of course followed in broad outline
the testimony given by Mr. Cotter except for certain major
differences. He recalled the incident with respect to the dust
which resulted from sandblasting the spindle in November 1980
indicating that not only Cotter, but his boss John Daly, and
Bob Long, and "everybody" complained about the dust. He could
recall none of the conversation which he had with Cotter during
the eleven hours period concerning the problems of the dust,
except that he complained. None of his supervisors discussed
the matter of safety complaints with him (Tr. 43), except for
trying to stop the dust. He recalled the discussion with Ed
Daly concerning whether he should be allowed to work after a
medical appointment, in which Cotter participated, but could
not recall indicating anything about "possible threats" being
made on his life at that time (Tr. 48).
Discussion turned to the working conditions inside a moisture
separator in which Dorrer expressed the opinion that in November
it was unlikely that a person would be sweating inside the separator
because all the heaters were broken in the building (Tr. 56). He
described how on November 29th he entered the locker room, going
past the showers, past the men toilet, to the lockers. He indicated
that it was not normally his responsibility to conduct an inspection
of the locker room, as this was ordinarily the duty of the first
line supervisor (in this case, Mickley) and he was the second line
supervisor. Nevertheless, this was occasionally done by the second
line supervisor and if a man is found in the locker room, without
good reason, it could be the subject of disciplinary action.
Retracing his steps according to a diagram used by counsel, he
indicated that as he walked down the corridor past the toilet and
to the location of the lockers, there were plenty of men sitting
there but recalls none who were under his supervision on that
particular day (Tr. 71). Among those he noticed were Cawley and
Cotter. Cotter was at the sink blow-drying his hair. He
remarked that this was "a fine thing", Mickley being home on an
emergency, and Cotter blow-drying his hair (Tr. 73). He was under
the impression that Cotter had just emerged from a shower because
his, hair was "fluffed", although he never asked him whether he had
showered and Cotter was fully dressed (Tr. 74). He indicated that
Cotter had used words to the effect that Dorrer had no business in
[Page 9]
the locker room. A short time later when he emerged from his office
he noted that Cotter and Gene Duffy were standing nearby. He told
Cotter that he was subject to disciplinary action when he wrote the
letter (Tr. 80). Cotter asked to talk to him and he indicated he
would do so when he came back after checking out the gang. When
he returned, he continued the conversation with Cotter, indicating
that Duffy was anywhere from 10 to 20 feet away (Duffy indicated
that he was no more than 10 feet away). In his written statement
(Ex. C-23) he indicated Duffy was 20 feet away, Cotter having
requested to talk to Dorrer privately. He indicated that Cotter
went into a rage threatening to gouge out his eyes and to
kill him and urging him to come outside and "punching his
hands and working himself into a rage." (Tr. 83) He indicated
that he was screaming and put his hands up to Dorrer eyes
when he threatened to gouge out his eyes. Later in his
testimony he indicated that Cotter was speaking "not calmly,
but was enraged and just slightly above the normal tone of
voice" (Tr. 86) Duffy, to the contrary testified that Cotter
at all times behaved in a calm manner, that he heard no
screaming, and that his hand motions were not of a violent
nature as described by Dorrer. Duffy of course did not hear
the entire conversation and acknowledged that he would not
testify against a fellow union man. Later Dorrer went into
his office and related his experience with Cotter to Felix
Foderingham and Mike Cillo who were in the office. He testified
also that upon his return home he received two phone calls
from Cotter, the phone being picked up by his wife and turned
over to him, in which Cotter indicated that he was coming to
get him and was otherwise ranting and raving. Although he
said that he took these threats seriously (Tr. 92), he did
not call Security at Edison or the police department. On
the following Monday he submitted a letter reporting the
incident to his manager, Mr. Kinkel.
Dorrer testified that before he turned the letter in, he
sent Mickley to Cotter to determine whether or not he would
apologize, in which case he would have reported the incident
in the locker room but not the threat (Tr. 100). Mickley reported
that Cotter refused to apologize and that he told Mickley that
he was going all the way and getting a lawyer. Under cross-examination
Dorrer conceded that as the letter had not yet been submitted and
even if one were submitted the usual procedure would be arbitration.
Dorrer also indicated that in the conversation preceding the threats
on November 29, Cotter had asked to speak to him "alone." This
[Page 10]
was subsequently denied by Cotter.
Gene Duffy's testimony essentially corroborated Cotter's
version of the incident. He also indicated by his description
of Dorrer's action when spoken to by Cotter, that he was
contemptuous and said "I don't care what you say, I'm still writing
a letter on you" (Tr. 135). Thereafter, they started to drift
away from him and he could hear no more of the conversation,
although he was watching them the entire time and saw no action
which would indicate that Cotter had flown into a rage or moved
his hands in anyway which would have threatened Dorrer. Duffy
was subsequently interviewed by Con Ed officials (security) and
a transcript of the interview was sent to him. He indicated
that there was some minor variations and that about a week
prior to the hearing he was reinterviewed by Security, warned
about the penalties of perjury, because he had a "family,
wife and children" (Tr. 145) and he refused to change his
story. Under cross-examination, he conceded that he never
testified against another union member and would not do so.
(Tr. 160)
Paul H. Kinkel testified that during the pertinent period
he was Manager of the Field Operations Bureau of the Power
Generation Maintenance Department. In that position he was
over Niederberger who was over Dorrer. He indicated that he
participated in the decision to discharge Cotter by discussing
the incident with Dorrer and with Central Personnel and reviewing
the reports of security interviews with Cotter. Based on these
he finalized a recommendation that Cotter be terminated from the
Company (Tr. 165). The recommendation was finalized on
January 28, 1981 (the same day that Duffy was interviewed by
security) although he was made aware of the contents of Duffy's
interview. He was unable to recall whether around November 20th,
Cotter was involved in making safety complaints (Tr. 170),
indicating that at that time many employees were making such
complaints. As concerned the dust incident around the spindle,
he could not recall Mr. Cotter's involvement specifically (Tr. 173).
He recalled various complaints being submitted to him by members
of the committee, such as Mr. DiNardo, and indicated that these
people were still working with the company (Tr. 177). Mr. Kinkel
did recall the incident concerning a complaint of people using
different radiation work permits for clean-up of an area and that
his complaint was brought by Cotter, that he agreed with him,
much to his embarrassment (Tr. 179).
[Page 11]
John Cawley testified that he was in the bathroom when Dorrer
entered, heard his remarks to the effect that Cotter was taking
advantage, and Cotter's attempt to explain that he had just
emerged from the moisture separator. Although he was not certain
whether he heard the entire conversation (Tr. 197) no part of his
testimony confirms Dorrer's allegation that Cotter in obscene
language told him that he had no business in the locker room.
He also indicated that he would not lie under oath in order to
help a union member. William Dodd testified that he heard the
entire converstation which took place in the bathroom between
Dorrer and Cotter because he was sitting in a stall at the time.
His account corroborates Cotter's version essentially in that
it omits any report of Cotter criticizing Dorrer for being in
the locker room.
Edmond Daly recounted a conversation with Dorrer concerning
permission sought to keep a medical appointment in a compensation
case where Dorrer made belittling remarks to him. (Tr. 219).
Cotter who was present indicated that sometimes people say things
which are misunderstood because one does not always know what is
in the other fellow's mind. Dorrer thereupon turned to Cotter and
said "for instance, right now you could be planning to kill me."
Both Daly and Cotter were astonished as the comment appeared to
be inappropriate and nothing was gained from the conversation
(Tr. 220, 221). He also was quoted as stating that he had no
concern for him being more concerned with the utilization of the
company's time (Tr. 223).
Two other employees, Diedrick and Dunn testified that they
overheard a conversation between Dorrer and Mickley in November
in which Dorrer instructed Mickley to dock Cotter if he was found
to be off the job or late.
Steven DiNardo, a shop steward and a member of the union's
Nuclear Safety Committee during the pertinent period, also
appeared and testified on behalf of Cotter. He indicated that
he was present during parts of the spindle episode around
November 19, 1980, and described the efforts to contain the
just which was causing a problem on the turbine floor. He
indicated that Mike Cotter and others were involved in suggesting
solutions and that they were dealing directly with Dorrer who was
resistant to the suggestions which were being made. (Tr. 258)
Only after considerable resistance were the suggestions adopted.
[Page 12]
On November 20, the day following the incident, a meeting
had been scheduled for the purpose of discussing a variety of
topics with Bill Monti, who was the plant manager. It may be
noteworthy that Kinkel inquired why Cotter and DiNardo were
present at the meeting because they were considered to be
missing for approximately 2 hours. In addition, the following
day Kinkel wanted to know why DiNardo had not gone to the
general foreman with certain safety complaints, as opposed
to raising the complaints at a meeting before management had
an opportunity to rectify the situation. (Tr. 262). DiNardo
also testified that he discussed with Kinkel, Ruez's plan
for pulling Cotter out of containment and putting him on the
turbine floor and Kinkel agreed to keep Cotter at his present
assignment (Tr. 266). Eventually he was transferred by Ruez
anyway.
DiNardo also testified as to his participation in the
discussion with Daly, Cotter and Dorrer concerning the manner
in which Dorrer had spoken in a deprecating way to Daly concerning
his desire to return to work after a medical appointment. His
story corroborates that given by both Cotter and Daly concerning
Dorrer's suggestion that Cotter might have been harboring a
thought about killing him (Tr. 271).
On cross-examination, Respondent's counsel went through
a long list of employees who had served on the Nuclear Safety
Committee of which Mr. DiNardo had been co-chairman. Many
had expressed concerns concerning safety at committee meetings
and all continued to be employed by the company or had retired
bit had not been terminated in a way as was Cotter. (Tr. 304)
In going down the list of those people who had been active on
the Safety Committee and who were not terminated, it was also
brought out by complainant's counsel that none were supervised
by Dorrer or Kinkel (Tr. 316).
Mr. John Odendahl, also a shop steward, and chairman of
the Utility Workers Union Nuclear Safety Committee also testified.
He testified that Cotter had taken an active part in most of
the meetings and while he was working in containment relayed various
safety complaints to him because he was chairman of the Safety
Committee for Indian Point. At the meeting of November 20, 1980,
he indicated that Cotter had been outspoken particularly on
the issue that Con Edison had been slow in cleaning up safety
hazards for weeks, but made the place shipshape as soon as visitors
[Page 13]
or V.I.P.'s appeared (Tr. 340). He itemized a long list of
complaints such as tripping conditions, the barricades, pits,
etc. (Tr. 341). He indicated that the official minutes of the
meeting were deliberately made to be concise and he recalled that
Cotter or someone had mentioned Kinkel's name, and Ruez's name
many times during the meeting and the sandblasting incidents
on the turbine room floor were brought up as representative
of how things were being controlled at Indian Point (Tr. 342).
There was also the matter of the work permits and allowing
almost anybody to participate in the sandblasting with the
possibility of fixed contamination, which was also discussed by
both DiNardo and Cotter. (Tr. 343) He also recalled an incident
in which Monti criticized Dorrer regarding his failure to put a
safety chain on the ground floor of the turbine building to
preclude people from walking into a dangerous area (Tr. 346,
347). He also testified that prior to Cotter's discharge
employees had less reluctance to give their names when making
safety complaints, which he transmitted to the appropriate
authorities for attention. The general word had been that if
you made safety complaints you would be transferred out. He
indicated that prior to Cotter's discharge approximately 50%
would refuse to use their names, although subsequent to Cotter's
discharge almost everybody would not permit use of their name.
He alleged that complaints had been markedly reduced since the
last meeting with Monti on November 20, 1980 (Tr. 355). However,
he refused to provide the names of any of the men who had submitted
complaints (Tr. 353).
Mr. Joseph Satira, Personnel Administrator for Power Generation
testified that he interviewed the complainant concerning the
incident of November 29, 1980, on December 3, 1980, and again
on January 29, 1981. He testified that at the first interview
he advised the complainant that the Department was not waiving
further disciplinary action and that an investigation was going
to be conducted to establish a job fitness examination. At that
time the complainant declined to state his version of the events
as he did not have union representation. The medical evaluation
for which he was going to be referred was one to determine whether
he had an emotional problem that would in fact have caused
whatever incidents he was involved in (Tr. 902) or determine whether
he was accountable for his actions. At the interview on January 29,
1981, he was informed that a decision had been made based upon the
fact that Gene Duffy had been interviewed (on January 28, 1981)
that Dorrer had submitted to a polygraph test (which Mr. Cotter
[Page 14]
at that time had refused to do) and that a decision had been made
to terminate his services because of his threats to Dorrer. At
no time did Cotter claim that termination was based upon the safety
complaints which he had made at Indian Point (Tr. 905). It also
developed that the final decision to terminate Mr. Cotter was made
on January 28th and involved telephone conversations between Satira
Mr. Kinkel (who made the initial recommendation), the Department
Head and Industrial Relations. There is no indication that any of
the people who made the final decision saw the written report of
Duffy's interview but based upon Satira's relation to them as to what
it contained, was apparently discounted because he was just another
union employee. (Tr. 927) In this connection he conceded that all
non-management employees were union members (Tr. 928). Although
the concurrence of major elements was obtained on January 28th,
to terminate Cotter, this decision was considered to be tentative
and subject to reversal if Cotter gave any material information of
importance on January 29th. In fairness to management, it must be
noted that an interview was conducted by Security on January 15,
1981, at which time Cotter gave his version of what occurred on
November 29, 1980. (Tr. 952-954) Mr. Satira conceded that the
initial recommendation came from Kinkel and it was finalized
on January 28, 1981, after the Duffy interview (Tr. 956).
In reviewing Cotter's record, Satira conceded that from
July 1, 1959 through December 1, 1978, he had never received
a warning for being off the job (Tr. 964). Nevertheless, it
was emphasized that the reason for his termination was not the
fact that he was in the locker room but because of the threats
to Mr. Dorrer. Succinctly put, the reason for the discharge
was the fact that management's representatives believed Dorrer
and did not believe Cotter or Duffy. It was also noted that
in the discussions held between November 29, 1980 and January 29,
1981, concerning Cotter, his complaints concerning safety were
never mentioned. (Tr. 971).
Stanley Wisla, who during the pertinent period was a Chemistry
and Radiation Safety Director at the Indian Point Station testified
that when complaints came through him they were primarily from
John Odendahl, but generally did not identify the employee who
would have initiated the safety complaint, as this information
was unnecessary. In this connection he never heard the name
of Michael Cotter.
Felix Foderingham testified that as of November 29, he shared
[Page 15]
an office with Dorrer and corroborated Dorrer's statement that
upon returning to the office he had stated that Cotter had threatened
to kill him and that he subsequently had told him about the alleged
calls that Cotter had made to his home. (Tr. 996) He did not
recall Mr. Cillo being present during the discussion on November 29,
1980, even though Dorrer had testified that both were present.
Under cross-examination he stated that in all of 19 years in Power
Generation Maintenance he never heard anything said that Dorrer
played favorites with employees or was unfair. He attested to
some difficulty with Kinkel in that he was transferred shortly
after he had refused to work in containment because he was unable
to wear a respirator. (Tr. 1007) After he refused, Kinkel "thought
it was not necessary to have a general foreman on the night shift,
because they didn't need them on the turbine anymore he shifted
me out of town." (Tr. 1007) Although he regarded this as a threat,
he conceded that he never had been replaced on that job and denied
that he really lost benefits by being transferred to Ravenswood,
even though he lost approximately two hours pay each day which he
earned for travel expense to Indian Point. Although he indicated
that men generally perspired when working in the moisture separator,
he said that he would not have allowed them to go to showers and
have their work station after emerging from the separator. Mike
Cillo, also a shop steward, and a tool keeper, testified that he
was in the office when Dorrer and Foderingham came in and Dorrer
reported that Cotter threatened to kill him. He could not believe
that Dorrer took Cotter seriously because of the fact that Dorrer
was so much larger than Cotter. Although Dorrer appeared to be
disturbed, they went home.
Mrs. Dorrer testified that she had received the two phone
calls on the night of November 29, 1980, had turned the phone
over to Mr. Dorrer and that Dorrer had mentioned to her that
it was Michael Cotter. He did not inform her at the time as
to what the telephone conversation was about except that there
was some trouble on the job. Subsequently, her memory was
reinforced by Mr. Dorrer, who reported to her that Cotter had
been fired because he was caught in the showers before quitting
time (Tr. 1044) and because he was written up, he had threatened
him.
Counsel for both sides were given the opportunity for
sumnation at which time respondent's counsel moved for dismissal
of the complaint on the ground that Cotter has made no complaint
to an agency having jurisdiction as provided in the Atomic
[Page 16]
Energy Act of 1954 as amended and the Energy Reorganization
Act of 1974. An additional ground for dismissal is that the
complainant has failed to prove his case.
Findings and Conclusions
1. Jurisdiction. The respondent contests jurisdiction by
the United States Department of Labor on the ground that the
Act and the Regulations refer to complaints made to an agency
having jurisdiction, such as those charged with administering
the provisions of the Atomic Energy Act of 1954 or the Energy
Reorganization Act of 1974. In the instant case, as the
complaints were made within the company to representatives
of the company the statute cannot be invoked to protect him
(Tr. 1052)
As herein applicable, 42 USCA § 5851(a)(3) protects those who
have "assisted or participated, or is about to assist or participate
in any manner in such a proceeding or in any other action to carry
out the purposes of the Act or the Atomic Energy Act of 1974, as
Amended." (Emphasis added). I believe that the statute is
sufficiently broad to protect those employees who are engaged
in those preliminary steps which would be necessary before a
complaint is made to a governmental agency or any other outside
source. If this were not so employees would have only the choice
of not reporting violations or carrying them outside in order to
obtain the protection of the Act and the Regulations. Thus
in interpretation of the Section which protects an employee
who complains within the organization is to the advantage of the
employer as it provides him with the first opportunity either
to deal with the complaint or to eliminate the violation. An
interpretation to the contrary would result in either a "chilling
effect" or a multiplicity of complaints to government agencies.
2. The Respondent contends that Cotter was not terminated
because he was involved in reporting safety violations or
because he was caught in the locker room when he should have
been at a work station. It is alleged that he was discharged
for gross insubordination, having threatened to kill Fred Dorrer,
and having called his home twice in connection with the threat.
On the one hand, it strains credulity to believe that Dorrer
conceived a plot on November 29, to tell Foderingham, and Cillo
shortly after he terminated his conversation with Cotter, that
Cotter had threatened to kill him. I would also have to believe
[Page 17]
that Dorrer persuaded his wife to perjure herself concerning phone
calls allegedly received on November 29, from Cotter. To involve
middle and upper management in this plot Kinkel, Monti, Security,
and Personnel would have to be involved in the conspiracy.
Furthermore, so far as complainers go, the evidence clearly
establishes that Cotter was only one of many employees who
were vocal in expressing safety concerns and that he was the
only one who became involved in an episode where he was terminated.
It was pointed out that the Minutes of the Nuclear Safety Committee
do not mention Cotter's name to a frequency which support the
assertion of his witnesses that he was so vocal. Respondent's
counsel also drew from several of Cotter's witnesses admissions
that they would not testify against a union member.
On the other hand there was testimony that the Minutes were
intentionally kept concise. Furthermore, the admissions of witnesses
that they would not testify against union members is not tantamount
to a concession that they would perjure themselves to protect
follow union members.
Allowing due regard for bias, I am nevertheless persuaded to
give great weight to the testimony of Cotter, DiNardo, Odendahl,
and Duffy concerning activities in which Cotter was involved
concerning safety and particularly Duffy's observation of Dorrer
and Cotter at the time when the alleged threat was said to have
been made. As I view the evidence, I conclude that Dorrer and
Kinkel were willing at times to cut corners or delay removal of
safety hazards in their concern to return this facility to an
operational state.
I am also unable to divorce the alleged threat from the
peculiar remark made by Dorrer, and related by Daly, DiNardo
and Cotter concerning the feelings which may lurk in other
people's minds, suggesting that Cotter might have been entertaining
an idea of killing him. One can speculate as to whether Dorrer had
an ideation or an obsession which may have lead him to misconstrue
or imagine one of Cotter's statement's of November 29, to contain
a threat. Apparently he never regarded such a threat to be of a
of a serious nature because he did not seek police protection
and would not have reported it if he had received an apology.
Dorrer, who alleges that the threat was made, and heard it
within the context of other remarks, was the best judge as
to the weight to be given such threats. For an apology he
would have waived report of the threat, but not the offense
[Page 18]
of being in the locker room. Management thought the threat
was sufficiently grave to order Cotter's termination.
Assuming, that the threat was actually made, Dorrer regarded
it, at worst, as gross insubordination and if it was true that
Cotter was grossly insubordinate, I would have expected all
circumstances to be considered in the case of an employee with
over 20 years of service and that conclusions would have been
based upon an adequate investigation.
Respondent's counsel has reiterated the point that the union
employees stick together. Nothing speaks more loudly of management
cohesion than the fact that the concurrence of all top people with
respect to the decision to terminate Cotter was made on January 28,
1981, the same day that Duffy was interviewed and with knowledge
that Cotter was to be seen again on January 29. Mr. Satira conceded
that Duffy's interview was discounted because he was a union
employee. Furthermore, Satira in effect admitted that Cotter was
sent to the psychiatrist as much as to corroborate the incident
as to determine his fitness for the job or accountability for the
offense. Not until January 29, 1981, was Cotter informed that
termination was under consideration. Although it was charged that
Cotter never raised the issue of safety complaints as being the basis
for the disciplinary action, he explained at the hearing that he
was told by his attorney not to volunteer information in view of
the fact that he was not represented.
I do not rule out the possibility that Cotter made a threat,
or made the phone calls to Dorrer's home on November 29th
Although Duffy testified that he had observed the two men
during the conversation he admitted that he was out of earshot
for a short part of the time. I credit Duffy's testimony as
indicating that the parties spoke in a calm way and that
gestures made by Cotter in the course of his conversation
did not indicate that he was in a type of rage as described
by Dorrer. Furthermore, Dorrer himself referred to the
conversation at one point as being calm, in the sense of not
being very loud, although he first described Cotter as "screaming."
What has emerged from this record is that there was an
adversarial relationship between Dorrer and Cotter. Dorrer
was under the impression that Cotter had taken a shower, which
to him, may have been a greater abuse of time than merely drying
his hair. Cotter at no time was afforded an opportunity, under
[Page 19]
conditions where he would be legally represented, to explain
his side of the story. If there were a threat or an altercation
or verbal argument between the two men, it was inextricably bound
up with the other events of the day and with the irritations
which no doubt arose in part because of Cotter's disputes
concerning safety hazards with Dorrer.
Key witnesses were not interviewed to determine the truth
of Cotter's story. The person who loaned Dorrer the hairdryer,
the fifteen or twenty mechanics who were in the locker room at
the time Dorrer had the confrontation with Cotter, and Mickle
were not interviewed. Except for Mickle these witnesses might
have given testimony concerning whether or not Cotter actually
showered. Mickle might have given information as to his practice
of requiring permission to go the locker room, and as to his
conversation with Dorrer and Cotter regarding the threat.
Complainant's counsel indicated that he had tried to subpoena
Mickle but he was away on vacation on the date of the hearing.
The person who went with Cotter to search for Mickle after
completing their work at the moisture separator was not
interviewed. Satira admitted that nobody else was interviewed but
Duffy until January 28th (Tr. 940).
Because of inadequate investigation, along with Cotter's
history with respect to expressing safety concerns, I conclude
that he was discharged for reasons violative of the Act and the
Regulations. There is evidence in the record of discriminatory
treatment, such as removing him from the containment area,
Dorrer's remarks about putting him in a "rocket suit", and
Dorrer's instructions to Mickle to dock Cotter for losing
time (as opposed to ordering that any employee be docked for
losing time). While I find no evidence to indicate that Top
management of Consolidated Edison participated in a conspiracy
to discriminate against or to silence Cotter, any error or abuse
of discretion in those who recommended termination must be
imputed to them.
Clearly membership or activity in a Nuclear Safety Committee
should not immunize an employee from the imposition of sanctions
for insubordination. It is therefore incumbent on managers to
conduct prompt and complete investigations to absolve themselves
of the charge that their decision with respect to the employee
was based on such activity.
[Page 20]
In determining Management's motive for terminating an
employee, the information it had at the time it took its action
is more pertinent than the enlarged record compiled as a result
of the formal hearing. The decision here was obviously based
on a polygraph test given to Dorrer and the conflicting
statements of the protagonists. Duffy's interview was accorded no
weight even though he was the only witness to the conversation.
The Respondent's strongest witnesses, Foderingham, Cillo and
Mrs. Dorrer were not interviewed until after the decision was
made. Considering the evidence adduced by Cotter at this
hearing, I conclude that the recommendation to terminate Cotter
was based on an antagonism which in some degree was engendered
by his activity on the Safety Committee. Furthermore, the
evidence accumulated at the time the decision was made did
not warrant the finding of misconduct or the extreme sanction
of termination, thereby supporting the inference that the
termination was based on reasons which were violative of the
Act.
3. I have not dealt with Complainant's arguments that I
an bound to accept certain findings of the New York Unemployment
Insurance Administrative Law Judge under the doctrine of
collateral estoppel. I regard that argument to be of no merit,
but unnecessary to address, in view of similar conclusions
independently arrived at.
RECOMMENDED ORDER
It is ordered that the Respondent, Consolidated Edison
Company of New York, reinstate the complainant Michael Cotter,
to his former or a substantially equivalent position, if desired,
together with the compensation (including back pay less any
earnings received from other employment), terms, conditions,
and privileges of that employment.