U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 80-ERA-2
In the Matter of
ROCCO P. COLONELLO
Complainant
v.
DICK CORPORATION
Respondent
Rocco P. Colonello
R.D. #3
Valencia, Pennsylvania 16059
Pro Se
Roger J. Peters, Esq.
P. O. Box 10896
Pittsburgh, Pennsylvania 15236
For the Respondent
Before: ROBERT S. AMERY
Administrative Law Judge
RECOMMENDED DECISION
This is a proceeding brought under provisions of the
Energy Reorganization Act of 1974, 42 USC 5851, hereinafter
called the Act, and its implementing regulations, 29 CFR
Part 24. In this proceeding the Complainant, Rocco P. Colonello,
is seeking job reinstatement and back pay or other compensation
[Page 2]
from the Respondent, Dick Corporation, his former employer.
The gist of his complaint is that the Respondent employer
discharged him because he asked for proper safety precautions on
the job. He also felt he was discriminated against by being
so discharged.
The Complainant initially attempted to file his complaint
on March 26, 1980 with the Occupational Safety and Health
Administration (OSHA), ALJ Exhibit 1, but he was subsequently
advised to file the complaint with the Wage and Hour Division,
U.S. Department of Labor, under the Act's provisions, and he did
so on April 18, 1980. ALJ Exhibit 2. An investigation was
conducted by the Wage and Hour Division which concluded that
the Complainant had not been discriminated against and that
his discharge was the result of his absenteeism. That
decision was then appealed to the office of Administrative
Law Judges for a formal hearing.
Pursuant to a notice issued May 30, 1980 a hearing was
held on June 16, 1980 at Pittsburgh, Pennsylvania. The
Complainant elected to represent himself at the hearing
after being advised of his right to counsel. Both parties
were afforded full opportunity to be heard and to present
evidence and oral arguments on the issues. This recommended
decision is based upon the entire record of the proceedings.
Statement of the Case
The Complainant testified that he was a carpenter and he
had been employed by the Respondent off and on during the past
9 years. His last period of employment with the Respondent
was from December 7, 1979 to March 17, 1980 at the Beaver
Valley (Pa.) power station unit. The Respondent was a
subcontractor of the Snyder Co., a general contractor performing
maintenance and repair work for Duquesne Light, a Pittsburgh
utility company at Duquesne Light's plant. Duquesne Light is
a Nuclear Regulatory Commission (NRC) licensee. The Complainant
had been a member of the Carpenters Local 500 for about 20
years. He performed carpentry work for the Respondent, such
as constructing scaffolding inside a reactor at the Beaver
Valley power station unit one. Working in a reactor can be
very dangerous unless all required safety precautions are
taken. The employees were informed they were not to enter the
[Page 3]
reactor until they had proper training and safety equipment.
They were required to attend and pass a training session about
radiation hazards instructed by RADCON1
technicians for the
NRC.
The Complainant readily admitted that at the time he
was discharged by the Respondent he had not commenced,
caused to be commenced or was about to commence or cause
to be commenced a proceeding under the Act. Also, at the
time he was discharged he had no idea he would be testifying
in a such a proceeding or filing a complaint under the Act.
In fact the first time he even heard of the Act was several
weeks after he was discharged when the Wage and Hour personnel
of the Department of Labor informed him of its existence.
Thus, as far as the strict wording of the Act and regulations
is concerned, obviously the Complainant's discharge had
nothing to do with any connections he had with proceedings
under provisions of the Act at that time.
Assuming, however, that his complaint also covers
discrimination against him by being discharged because of his
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complaints about the Respondent's lack of certain safety
precautions, I find the evidence insufficient to prove such
an allegation. The burden of proof is on the Complainant
to establish the facts alleged and his entitlement to the
relief requested. In my opinion the Complainant's case
established no more than a mere possibility that he might
have been discharged for the reason he claimed and it appears
that he reached the conclusions he did by making assumptions
without any real proof. On the other hand, I find that the
evidence of Superintendent Caldwell presented by the Respondent
was more than enough to rebut any adverse inferences that
could be drawn from the Complainant's evidence. Mr. Caldwell,
who was in a position to know, stated unequivocally that
the Complainant was not discharged because of any complaints
he had made about safety; he was discharged due to a layoff
for lack of work and he was chosen to be one who was laid
off because of his record of absenteeism. I find this to be
a fact supported by the evidence of record and I conclude that
no improper discrimination was involved in this case.
RECOMMENDATION
It is therefore recommended that the complaint filed by
Rocco R. Colonello against the Dick Corporation be dismissed.
ROBERT S. AMERY
Administrative Law
Judge
Dated: August 1, 1980
Washington, D.C.
RSA:mc
[ENDNOTES]
1 Probably an abbreviation for
Radiation Control and Testing.
The RADCON or RAD technicians also acted as policemen on the job.
2 A unit of measurement of
radiation. 1,000 milliroentgens
equals one rem or one roentgen.
3 [EDITOR'S NOTE: This footnote
was misnumbered as "2" in the original slip op.] Probably meaning the contract the
Respondent had was
a cost plus a fixed fee contract in which all reasonable costs
are paid plus an extra fee or commission, as distinguished from
a fixed price contract in which the contractor has an incentive
to cut costs as much as possible in order to make a larger profit.
4
[EDITOR'S NOTE: This footnote was misnumbered as "3" in the original slip op.]
A similar provision in the regulations provides at 29 CFR 24.2:
(a) The several statutory employee protection
provisions listed in #24.1, above, provide that no
employer subject to the provisions of the Federal
statute of which these protective provisions are
a part may discharge any employee or otherwise
discriminate against any employee with respect
to the employee's compensation, terms, conditions,
or privileges of employment because the employee...
engaged in any of the activities specified in
subsection (b) below.
(b) Any person is deemed to have violated the
particular federal law and these regulations if such
person intimidates, threatens, restrains, coerces,
blacklists, discharges, or in any other manner
discriminates against any employee who has
(1) commenced, or caused to be commenced,
or is about to commence or cause to be commenced
a proceeding under one of the Federal statutes
listed in #24.1 or a proceeding for the administration
or enforcement of any requirement under
such Federal statute;
(2) testified or is about to testify in
any such proceeding; or
(3) 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 such Federal statute."