Consolidated Edison Co. of New York, Inc. v. Donovan

• Decision Date: 08 March 1982
• Docket Number: No. 669,D,669
• Citation: 673 F.2d 61
• Parties: CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Respondent, and Michael Cotter, Intervenor. ocket 81-4215.
• Court: U.S. Court of Appeals — Second Circuit

Page 61

673 F.2d 61

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Respondent and Michael Cotter, Intervenor.

No. 669, Docket 81-4215.

United States Court of Appeals Second Circuit.

Argued Dec. 16, 1981.

Decided March 8, 1982.

Francis B. Conrad, New York City (David J. Reilly and Kenneth R. Shaw, New York City, of counsel), for petitioner.

Nancy E. Friedman, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., Michael H. Dolinger, Asst. U. S. Atty., New York City, of counsel), for respondent.

Arthur Z. Schwartz, Hall, Clifton & Schwartz, New York City, for intervenor.

Before TIMBERS and KEARSE, Circuit Judges, and METZNER, District Judge. ^*

METZNER, District Judge:

Consolidated Edison Company of New York, Inc. (Con Edison) petitions this court to set aside an order by the Secretary of Labor directing the reinstatement of employee Michael Cotter. The Secretary, adopting the recommended decision and order of the Administrative Law Judge (ALJ), determined that Con Edison violated the employee protection provision of the Energy Reorganization Act, 42 U.S.C. § 5851, ¹ by discharging Cotter for complaining about nuclear safety hazards in the workplace.

The evidence before the ALJ makes clear that we are dealing with a "dual motive" discharge. Con Edison claims that the discharge was justified because Cotter threatened to kill his supervisor, Ferdinand Dorrer.

In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), aff'd, sub nom. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), the NLRB adopted a new test in dual motive discharge cases for determining whether Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) (1973), has been violated. Under this test,

"(T)he General Counsel (must) make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." (251 NLRB at 1089)

This rule was adopted from Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), where the Court said that the burden was properly placed upon the employee to show that his conduct was constitutionally protected, and that such conduct was a motivating factor in the Board's decision not to rehire him. Thereafter, the district court "should have gone on to determine whether the Board (of Education) had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's (employee's) reemployment even in the absence of the protected conduct." This is known as the "but for" test. In other words, the employee would not have been dismissed but for his engaging in protected activity.

There is no precedent as to how cases under Section 5851 should be treated, but the legislative history of the section makes clear that recourse may be had to precedent under analogous situations. S.Rep.No.95-848, 95th Cong., 2d Sess. at 29, 1978 U.S.Code Congressional and Administrative News at 7303. The test adopted by the NLRB appropriately should be applied in Section 5851 proceedings.

The "but for" test appears to be the rule in this circuit. NLRB v. Charles Batchelder Co., Inc., 646 F.2d 33 (2d Cir. 1981). The court was not concerned with a "dual motive" case, and Wright was referred to only in a passing way. However, Judge Newman, in his concurrence in Batchelder, at page 42, stated that:

"When we say an employer has not sustained his burden under the 'but for' test, we mean that he has not proven that he would have acted the same way if only the valid ground had existed."

Other circuits have been more definite in adopting the Wright rule. NLRB v. Lloyd A. Fry Roofing Co., Inc. of Del., 651 F.2d 442 (6th Cir. 1981); Peavey Company v. NLRB, 648 F.2d 460 (7th Cir. 1981); NLRB v. Nevis Industries, Inc., 647 F.2d 905 (9th Cir. 1981).

On the other hand, the First Circuit, in reviewing the action of the NLRB in the Wright case, held that after the General Counsel had made out a prima facie case, only the burden of going forward was shifted to the employer, with the burden of ultimate persuasion remaining always with the General Counsel. Wright, supra at 904. Seemingly in accord with this view is the Fourth Circuit (NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485 (1981)), and the Fifth Circuit (TRW, Inc. v. NLRB, 654 F.2d 307 (1981)).

Our view is that we should adopt the rule enunciated in the Mt. Healthy case which places the burden on the employer to show by a preponderance of the evidence that it would have reached the same decision as to the employee's dismissal even in the absence of the protected conduct.

At the time of his discharge in January 1981, Cotter had been employed by Con Edison for over twenty years, most recently with the title "Mechanic A" in the Field Operations Group of the Power Generation Maintenance Department. He was also active in the Utility Workers Union, Local 1-2, being a shop steward, co-chairman of shop stewards in his group, and, since May 1978, a member of the Union's Nuclear Safety Committee.

In reviewing the evidence, we find that the complainant (the intervenor in this proceeding) has produced a prima facie case for improper discharge for the following reasons:

1. In November 1980, Cotter complained to General Foreman Ralph Ruez about dangerous conditions in the vicinity of the reactor vessel which was in the process of being repaired. Specifically, Cotter complained to Kinkel (Dorrer's supervisor) that the men were working on the job which was not covered by an appropriate radiation work permit. Kinkel insisted that there was such a permit, but upon investigation it was discovered that the permit only covered supervisors. Kinkel admitted that Cotter was correct, but refused to stop the work. Instead, Kinkel said he would obtain a general work permit.

2. On November 19, 1980, Cotter complained to General Foreman Dorrer about possible radioactive dust caused by the sandblasting of the turbine spindle. Dorrer responded by installing a tarpaulin which was not effective in containing the dust. Cotter complained and ultimately higher officials ordered that the job be stopped until the dust could be vented properly.

3. On November 20, 1980, the Union's Nuclear Safety Committee met with ...