ML021000126
| ML021000126 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 04/05/2002 |
| From: | Slater J Tennessee Valley Authority |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A | |
| References | |
| +adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, RAS 4245 | |
| Download: ML021000126 (32) | |
Text
DOCKETED USNRC UNITED STATES OF AMERICA April 8, 2002 (3:56PM)
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF IN THE MATTER OF
)
Docket Nos. 50-390-CivP;
)
50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY
)
50-259-CivP; 50-260-CivP;
)
50-296-CivP (Watts Bar Nuclear Plant, Unit 1;
)
ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2;
)
Browns Ferry Nuclear Plant,
)
EA 99-234 Units 1, 2, & 3)
)
TENNESSEE VALLEY AUIHORITY'S MOTION IN LIMINE Pursuant to 10 C.F.R. § 2.730 (2001) and paragraph 4 of the February 13, 2002, fourth prehearing conference order, the Tennessee Valley Authority (TVA) moves for an order striking Edward J. Vigluicci, Esq., and Brent R.
Marquand, Esq., as witnesses from the Nuclear Regulatory Commission (NRC) Staff's March 29, 2002, proposed witness list. As reasons therefor, TVA would show that the NRC Staff failed to disclose, upon repeated requests, during discovery the identity of Mr. Vigluicci or Mr. Marquand as persons having knowledge or information pertinent to the issues in this proceeding and it affirmatively stated that it would call those persons it deposed and Gary Fiser and Ronald 0. Grover as witnesses.
In addition, the proposed testimony of Mr. Vigluicci is irrelevant and inadmissible under Rule 402, Fed. R. Evid., and further Mr. Vigluicci lacks the requisite personal knowledge to testify about the responses to August 24, 1993, letter from then Senator Jim Sasser and therefore should also be excluded under Rule 602, Fed. R. Evid. As to Mr. Marquand, NRC Staff seeks call him as to testify about undisputed matters and thus his testimony would be unnecessary, redundant, and cumulative.
1
Pursuant to 10 C.F.R. § 2.713, due to the NRC Staff's naming Mr. Marquand as a potential witness in this matter, TVA also moves for an order from the Board confirming that Mr. Marquand may continue his representation of TVA in this proceeding consistent with all ethical constraints and with Disciplinary Rule 5-101 and 5-102.
TVA further moves for an order precluding NRC Staff exhibit Nos. 51 and 52 and other compact discs (CD) and transcripts prepared by the NRC Staff of tape recordings of conversations surreptitiously made by Gary Fiser and exhibit Nos. 182, 187, and 189 regarding grievance, selection, and reduction in force (RIF) policies.
The NRC Staffs CDs and transcripts were never disclosed during discovery and are largely inaudible, replete with omissions, and inaccurate. This purported evidence is highly unreliable and therefore inadmissible and should be excluded under 10 C.F.R.
§ 2.743(c) (2001). The grievance, selection, and RIF policies are not relevant to the issues in this case and also should be excluded under 10 C.F.R. § 2.743(c).
In support of its motion in limine, TVA attaches hereto the declarations of G. Donald Hickman, Brent R. Marquand, and Edward J. Vigluicci, and excerpts from December 13, 2001, deposition of Wilson C. McArthur, excerpts from the November 22, 1999, Predecisional Enforcement Conference (PEC) of Mr. McArthur, and the November 22, 1999, PEC of Thomas McGrath.
The grounds for this motion are more fully set forth in TVA's brief in support of its motion in limine which is submitted herewith.
2
Respectfully submitted, April 5, 2002 Office of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902-1401 Facsimile 865-632-6718 Of Counsel:
David A. Repka, Esq.
Winston & Strawn 1400 L Street, NW Washington, D.C. 20005 Maureen H. Dunn General Counsel Thomas F. Fine Assistant General Counsel Brent R. Marquand Senior Litigation Attorney Jo'bhE. SAter Senior Litigation Attorney Telephone 865-632-7878 Attorneys for TVA 003693613 3
CERTIFICATE OF SERVICE I hereby certify that the foregoing motion in limine (with attached declarations and excerpts from the PEC conferences and from Dr. McArthur's deposition), proposed order, and supporting brief have been served by overnight messenger on the Board members and NRC Staff and by regular mail on the other persons listed below. Copies of the motion, proposed order, and brief, less the attachments which are being sent either by overnight or regular mail, have also been sent by e-mail to those persons listed below with e-mail addresses.
Administrative Judge Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: cxb2@nrc.gov Administrative Judge Ann Marshall Young U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: amyCnrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 Administrative Judge Richard F. Cole U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: rfclCnrc.gov Dennis C. Dambly, Esq.
Jennifer M. Euchner, Esq.
U.S. Nuclear Regulatory Commission Office of the General Counsel One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: dcdonrc.gov e-mail address: jmeonrc.gov Mr. William D. Travers Executive Director of Operations U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 This 5th day of April, 2002.
,o fo QJ Attorney for TVA 4
IJMTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF
)
Docket Nos. 50-390-CivP;
)
50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY
)
50-259-CivP; 50-260-CivP;
)
50-296-CivP (Watts Bar Nuclear Plant, Unit 1;
)
ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2;
)
Browns Ferry Nuclear Plant,
)
EA 99-234 Units 1, 2, & 3)
)
DECLARATION OF G. DONALD HICKMAN G. Donald Hickman subscribes and declares:
- 1.
I am employed by the Office of the Inspector General (OIG) of the Tennessee Valley Authority (TVA) as Acting Inspector General, a position I have held since November 26, 2001. Prior to that date, I was the Assistant Inspector General for Investigations, a position I held since April 1994. In the position of Assistant Inspector General for Investigations, I was responsible for overseeing the investigations the OIG conducts and the investigative records the OIG maintains. Prior to being assigned to the position of Assistant Inspector General, I held the position of Manager, Internal Investigations, 01G. Prior to coming to TVA in 1986, I was employed in the Federal Bureau of Investigation (FBI) for over eight years. My last position with the FBI was as Special Agent in the Washington, D.C., Field Office.
The following statement is based on personal and official knowledge acquired in the performance of my official duties.
- 2.
OIG is an independent unit within TVA which operates under the authority of the Inspector General Act of 1978, as amended, 5 U.S.C. app. at 1381-99, 1
§§ 1-12 (2000). OIG is responsible for investigating, among other duties, allegations of misconduct by TVA employees. As an independent unit, OIG is solely responsible for determining the scope of its investigations and the methods used in those investiga-tions. While other TVA organizations can and do request OIG to investigate matters of concern to those organizations, OIG conducts those investigations without any control or review by other TVA organizations.
- 3.
I have read the Nuclear Regulatory Commission (NRC) Staff's representation that Edward J. Vigluicci, an attorney in TVA's Office of General Coun-sel (OGC), drafted the response to the August 24, 1993, letter from then Senator Jim Sasser to William L. Hinshaw, II, TVA's then Inspector General, seeking assistance regarding Gary Fiser's, William Jocher's, and D. R. Matthews' "concerns about management practices and the corrective action process at the Tennessee Valley Authority."
A copy of the Senator Sasser August 24, 1993, letter is attached hereto as exhibit A.
- 4.
A review of OIG records shows the OIG sent three responses to Senator Sasser, dated September 9 and October 22, 1993, and April 22, 1994. Copies of those responses are attached hereto as exhibits B, C, and D, respectively. I was involved in the preparation of each of those responses, either as the initial preparer or as a reviewer. Each of those letters was prepared and reviewed by OIG personnel.
Based on its independence and reporting relationship to Congress, the OIG can and does communicate directly with Congress without seeking any input from TVA organi-zations, including OGC. To the best of my knowledge, Vigluicci did not draft, pre-pare, review, or comment on any of the responses to the Sasser letter before they were released.
2
- 5.
Pursuant to 28 U.S.C. § 1746 (1994), I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 4th day of April, 2002.
G. Donald Hickman 003693569 3
419'ASSER coMM.17Us APPROPRIATIONS 8ANKING. HOUSING AND UR8AN AFFAIRS BUOGET-CHAIRMAN United States ~Scate WAS')INGTON. DC 20510-4201 GOVERNMENTAL AFFAIRS August 24, 1993 Honorable William L. Hinshaw, II Inspector General Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902
Dear Inspector General Hinshaw:
I have received the enclosed correspondence from Mr. W.
F. Jocher, Mr. G. L. Fiser and Dr. D. R. Matthews regarding their concerns about management practices and the corrective action process at the Tennessee Valley Authority.
These gentlemen allege that the use of Significant Corrective Action Reports is discouraged to the extent that employees will not report problems to upper management officials for fear of retaliation.
Specifically, these gentlemen indicate that changes in the status of their employment with TVA was a direct result of their efforts to bring problems to the attention of the appropriate officials.
I am very concerned about the events detailed in the enclosed letter, and I would appreciate your looking into these matters, being as helpful as possible to the concerns raised.
I would further appreciate your providing me with a report.
Thank you for your courtesy jnd assistance.
.ted States Senator Exhibit A AJ 667
SEi 9 1993 The Honorable Jim Sasser United States Senate Washington, D.C. 20510-4201
Dear Senator Sasser:
This is in response to your August 24, 1993, letter in the interest of your constituents W. F. Jocher, G. L. Fiser, and Dr. D. R. Matthews.
These gentlemen expressed concerns about management practices and the corrective action process at the Tennessee Valley Authority.
Jocher and Matthews previously filed section 211, Energy Reorganization Act (ERA) complaints with the U. S. Department of Labor, Wage and Hour Administration, based on identical information provided to you.
The following information is provided for your consideration.
In keeping with an established policy, the OIG investigates section 211, Energy Reorganization Act complaints in parallel with the U.S. Department of Labor (DOL).
Our purpose is to determine if a violation of the TVA Code occurred and to provide management relevant information which affords an opportunity for timely resolution of complaints prior to prolonged and expensive litigation in the DOL forum. Our findings address potential employee misconduct by TVA employees. We do not ascertain whether a violation of the ERA occurred since that responsibility is entrusted to the DOL.
My office initiated separate employee conduct investigations of circumstances surrounding the section 211, Energy Reorganization Act complaints of D. R. Matthews and W. F. Jocher on March 5, 1993, and July 13, 1993, respectively.
To date, my office has not received a complaint from G. L. Fiser. My staff attempted to interview Fiser recently because he was implicated as a witness in the concerns of W. F.
Jocher. Fiser is presently a full-time TVA employee who, on the advice of his legal representative, refused to submit to an interview with my staff.
(The TVA Code prohibits an employee's refusal to cooperate with an OIG administrative inquiry. Consequently, we may recmmend charging ca31 Fiser with insubordination if he refuses to cooperate with our inqiin.)
66 SEP 14 1993 AJ 665J Exhibit B
The Honorable Jim Sasser Page 2 21 L 9 1993 Our parallel investigation of W. F. Jocher's section 211 complaint is continuing. The investigation is hampered by Jocher's refusal to meet with my staff to discuss his issues.
(Jocher is no longer employed with TVA.) Jocher's attorney recommended that his client not cooperate with the OIG because he perceived Jocher's interests would not be well served in future litigation efforts against TVA. Nonetheless, we will continue our investigation of Jocher's concerns and will supplement our inquiry with information provided by Jocher in his August 16, 1993, letter to you.
Your staff may assist me in this matter by encouraging Jocher to grant an interview to my staff at the earliest possible time.
On July 19, 1993, my office completed an employee conduct investigation of issues presented by D. R. Matthews.
In our report, we established a clear nexus between Matthews' expression of staff views concerning the operation of the nuclear chemistry program at the Watts Bar Nuclear Plant and a decision to terminate Matthews (later changed to a demotion).
In response to the OIG report, Oliver D. Kingsley, Jr., President of the TVA Generating Group, removed the offending manager from his position. The manager subsequently resigned his TVA employment.
A decision regarding the status of D. R. Matthews is unsettled.
I have also been advised the Nuclear Regulatory Commission, Office of Investigation, Region II, Atlanta, Georgia, initiated two investigations based on identical information contained in the August 16, 1993, letter from Jocher, Fiser, and Matthews.
The NRC inquiries involve alleged discriminatory treatment of Jocher by TVA management and alleged false or misleading information to the NRC by TVA in response to an NRC Notice of Violation. You may wish to contact the NRC regarding the status of these 2investigations.
Based on information provided in the August 16, 1993, letter from Jocher, Fiser, and Matthews, my staff will recontact Jocher and Fiser in an effort to obtain relevant information of employee misconduct.
No contact is anticipated with Matthews because we completed a recent investigation of his concerns and management action is pending.
I will provide you a summary of findings when our investigations are completed.
Thank you for referring this information for my review.
Sincerely,
\\,^.,
,.~j
.Y,lnshaW9I,)
William L. Hinshaw, II Inspector General GDH:LU I
cc: Alan J. Carmichael, W 11A-K (w/incoming)
Edward S. ChristenburT, ET 11-K (w/incoming)
OIG File No. 2D-129 OIG File No. 2D-133 bc:
Craven Crowell, ET 12A-K (w/incoming)
Oliver D. Kingsley, LP 6A-C (w/incoming) 5167d AJ 666
TUR IG615 6z2LX3 P. GA The Honorable Jim Sasser United. States Senate Washington, D.C. 20510-4201 U049 Iet41%no £A00Aa*
This is to provide you additional information about the Office of the inspector General investigation of concerns raised by VA employee D. R.
Matthews.
3:his is follow-up to my September 9, 1993, letter and a conversation an October 14, 1993, between Assistant Inspector General (investigations) George T. Prosser and Kate Heatheringcoii of your office.
As was previously mentioned in my September 9, 1993, letter, my office initiated separate employee conduct investigations of circumstances surrounding the Section 211, Energy Reorganization Act complaints of D. R. Matthews and W. P. Joeher au March 5, 1993, and July 13, 1993, respectivelyv.
Since my initial letter to you, a Memorandum of Understanding and Agreement was entered into on September 16, 1993, between Matthews and TVA.
Under the terms of the agreement, Matthews received a lump sum monetary settlement and accepted a position as a Chemistry Proaram Manager at Watts Bar 'Nuclear Plant. In return, Matthews agreed to release TVA and its representatives from any liability and. to execute the appropriate papers to dismiss all pending proceedings against TVA.
Based on the agreement between Matthews and TVA, the Department-of Labor, Wage and Hour Division, is taking no -further action regarding Matthews'I complaint: uder' the Energy Reorganizatiat. Act in view of this Agreement.
O-ur investigation regarding W. F. Jocheur's Section 211 complaint ia continuing.
'I vill provide You a summary of our findings when the investigation is completed.
Thank you for your interest in this matter.
Sincerely, Orgnlrgnod B~yI Williarn L K-iznshawi.11 William L. Rinshaw, R~
inspector General GDR:EBT:LU ecc:
Aiai 7. Carmicha~el, VX-luA-K Edward S. Christ~enbury, ET lIE-K OIG rile 2D-129 OIG File 2D-133 be., Craven Croviell, ET 12A-r-Oliver D. Xingsleyr LP 6A-C 10710 Exhibit C AJ 668 220 I G4 E
TS4! E~It~~t?-~
<V:TT 2002-TE-93A
SITvN I
APR 29 'q4, -.
I A eC. ?t.A?,
r72 a"
l Now gem am-9
LW -
I
~-I-fIk u-s---a I
I~ 12 VMN!!f
-- 1 i___I_
-I--I-APR 2 ? M94 The Hoiiorable Jim Sasse, United States Senate Washington, DC 2051 0-4
Dear Senator Sasser:
94M ME -
omw I
TM i
ffu Irma I1 I
'GIAPR 25 1994 Pracd cent.TVA Mt4 orci@
ad CMI tNudM OMfi 2
Please refer to William L. Hinshaw's letter to you dated October 22, 1993, regarding allegations made by William F. Jocher, a former Corporate Chemistry Maniaggr at TVA. Jocher alleged TVA management forced him to resign because he expressed nuclear. safety concerns. Jocher filed a complaint With the U.S.
Department of Labor (DOL) under Section 211 of -the Energy Reorganization Act (ERA) on June 29, 1993, claiming he was forced to resign for engaging in protected activities at a TVA nuclear facility. A decision In the case is pending with the 001.
eased on a request from TVA management, my office initiated a parallel investigation of the circumstances surrounding the alleged adverse treatment of Jocher.:A summary of our findings follows. It is based solely on our investigation and it does not conclude Jocher was terminated for raising safety concerns. We did not iOetermine whether a violation of the ERA occurred since that responsibility is entrusted to DOL. Specifically, our purpose in conducting a parallel investigation with the DOL is to determine whether any current or former TVA employees violated'the TVA Code and also to provide management relevant information affording an opportunity for timely resolution ofDOL complaints.
our inve stigation found no direct evidence showing Jocher was asked to resign bc se-h rasd afety concerns. Ratem ngment consistently stated Jocher was removed because of performance problems, and there is evidence supporting management's position. We found some contradictory evidence T
Exhibit D AJ 669
£e0 Id 26LB LSL. EEO~D U
SNO uni SoM 2002-TZ-04
VOOGd Id.lQ II S1ENSITIVE The Honorable Jim Sesser Page 2 APR.2,2 1 regarding the extent of Jocher's performance problems. We made no recommendations to TVA management regarding Jocher's requested resignation.
Thank you for your interest in this matter. I hope you will contact our office if we can be Qf further assistance.
Sincerely, Orio1naLSiQjned By GrecojMT. Pom saer George IJr. Prosser Inspectc~r General BBT:ABF:SA5 cc:
Edward S. Christenbury, ET I 1 H-K Roh~ald A. LoVing, Washington OIG File No. 2D-129 OIG File No. 210-133 bc:
Craven Crowell, Er I 2A-K Oliver D. Kingsley, LP 6A-C Btent Marquand, ET I I H-K LMMSEMOC I
I I
II 6
II i
AJ 670 too 1 C4 ci S~n li1 Ict;,:TT 22W-TZ-834
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF
)
Docket Nos. 50-390-CivP;
)
50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY
)
50-259-CivP; 50-260-CivP;
)
50-296-CivP (Watts Bar Nuclear Plant, Unit 1;
)
ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2;
)
Browns Ferry Nuclear Plant,
)
EA 99-234 Units 1, 2, & 3)
)
DECLARATION OF BRENT R. MARQUAND Brent R. Marquand subscribes and declares:
- 1.
I am employed as an attorney in the Office of the General Counsel of the Tennessee Valley Authority (TVA). I am lead counsel assigned to represent TVA in the subject litigation. I have personal and official knowledge of the matters stated herein.
- 2.
I have been licensed to practice law by the State of Tennessee since October 1976 and remain an attorney in good standing. I have been admitted to practice before the Supreme Court of Tennessee, the United States District Courts for the Eastern and Western Districts of Tennessee, the United States Courts of Appeals for the Fifth, Sixth, Tenth, and Eleventh Circuits, and the United States Supreme Court.
'3.
Pursuant to Rule 8 of the Supreme Court of Tennessee, the Court adopted the Code of Professional Responsibility, including Disciplinary Rule (DR) 5-101 and 5-102 governing conflicts of interests of attorneys in the representation of their clients. The Nuclear Regulatory Commission (NRC) Staff has named me as a 1
potential witness in this proceeding, even though I am lead counsel for TVA. I have reviewed the matters on which the NRC Staff seeks my testimony, and it is my opinion that my testimony would relate solely to uncontested matters.
- 4.
I have fully disclosed to TVA management the possibility of my being required to testify in this proceeding and, after such full disclosure, TVA management has determined that my withdrawal from representation would work a substantial hardship on TVA because of my peculiar knowledge of the witnesses and facts of this case and my familiarity with Federal personnel and whistleblower law and knowledge of TVA organizations and personnel system. Accordingly, TVA manage-ment has requested that I continue my representation of TVA in this proceeding.
- 5.
In my opinion, the testimony sought from me by the NRC Staff would not be prejudicial to TVA.
- 6.
Pursuant to 28 U.S.C. § 1746 (1994), I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 5th day of April, 2002.
Bred 0.69arqu 003693612 2
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF
)
Docket Nos. 50-390-CivP;
)
50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY
)
50-259-CivP; 50-260-CivP;
)
50-296-CivP
)
(Watts Bar Nuclear Plant, Unit 1;
)
ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2;
)
Browns Ferry Nuclear Plant,
)
EA 99-234 Units 1, 2, & 3)
)
DECLARATION OF EDWARD J. VIGLUICCI Edward J. Vigluicci subscribes and declares:
- 1.
I am employed as a Senior Attorney in the Office of the General Counsel of the Tennessee Valley Authority (TVA). As Senior Attorney, my primary client is TVA's Nuclear organization. I have personal and official knowledge of the matters stated herein.
- 2.
I have read the. Nuclear Regulatory Commission (NRC) Staffs representation that I drafted the response to the August 24, 1993, letter from Senator Jim Sasser to William L. Hinshaw, II, TVA's then Inspector General, seeking assis-tance regarding Gary Fiser's, William Jocher's, and D. R. Matthews' "concerns about management practices and the corrective action process at the Tennessee Valley Authority." A copy of the Sasser letter is attached hereto as exhibit A. The NRC Staff's representation is incorrect. I made no such representation either to Dennis C.
Dambly or Jennifer M. Euchner, counsel for the NRC Staff in this proceeding. Nor did I draft, prepare, review, or comment on any response to the Sasser letter.
1
- 3.
The OIG prepared three responses to the Sasser letter on September 9 and October 22, 1993, and April 22, 1994, respectively. Copies of the responses are attached as exhibits B, C, and D. The September 9 and October 22, 1993, responses were signed by Hinshaw, and the April 22, 1994, response was signed by George T. Prosser, who succeeded Hinshaw as Inspector General. I had no role in the preparation of either of the three responses to the Sasser letter. In addition, I did not, and was not asked by the OIG to, review or comment on any of the responses to the Sasser letter before they were released.
- 4.
I acknowledge that I had a conversation with Dambly and Euchner; however, I told Dambly and Euchner that I am often involved with preparing and reviewing responses to congressional inquiries addressed to TVA which involve TVA's Nuclear organization because TVA Nuclear is my primary client. At no time during my conversation did I represent either to Dambly or Euchner that I was responsible for the preparation of any of the responses to the Sasser letter. Because the responses were prepared by the 01G, an opportunity to prepare or review the responses was not accorded to me, and I would not, and did not, contact any of my clients in TVA Nuclear in connection with the Sasser letter.
- 5.
I disagree with the NRC Staffs representation that I have "testimony relevant to TVA's response to the issues raised in that letter and relevant to Fiser's protected activities, including what individuals he contacted to obtain the infor-mation required to respond to Senator Sasser's request." Since I had no involvement in responding to the Sasser inquiry, I did not obtain any information or contact any individual with respect to the OIG responses to the Sasser letter.
2
- 6.
Pursuant to 28 U.S.C. § 1746 (1994), I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 4th day of April, 2002.
003693590 3
I I
,;,/sASSER cEnt APPROPRIATIONS BANKING. HOUSING AND URBAN AFFAIRS United tate S
nt BUDGET-CHAIRMAN WASINGTON. DC 20510-4201 GOVERNMENTAL AFFAIRS August 24, 1993 Honorable William L. Hinshaw, II Inspector General Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902
Dear Inspector General Hinshaw:
I have received the enclosed correspondence from Mr. W.
F. Jochor, Mr.
G. L. Fiser and Dr. D. R. Matthews regarding their concerns about management practices and the corrective action process at the Tennessee Valley Authority.
These gentlemen allege that the use of Significant Corrective Action Reports is discouraged to the extent that employees will not report problems to upper management officials for fear of retaliation.
Specifically, these gentlemen indicate that changes in the status of their employment with TVA was a direct result of their. efforts to bring problems to the attention of the appropriate officials.
I am very concerned about the events detailed in the enclosed letter, and I would appreciate your looking into these matters, being as helpful as possible to the concerns raised.
I would further appreciate your providing me with a report.
Thank you for your courtesy nd assistance.
S
- cey, C
ted States Senator Exhibit A AJ 667
SEP 9 1993 The Honorable Jim Sasser United States Senate Washington, D.C. 20510-4201
Dear Senator Sasser:
This is in response to your August 24, 1993, letter in the interest of your constituents W. F. Jocher, G. L. Fiser, and Dr. D. R. Matthews.
These gentlemen expressed concerns about management practices and the corrective action process at the Tennessee Valley Authority.
Jocher and Matthews previously filed section 211, Energy Reorganizationi Act (ERA) complaints with the U. S. Department of Labor, Wage and Hour Administration, based on identical information provided to you.
The following information is provided for your consideration.
In keeping with an established policy, the OIG investigates section 211, Energy Reorganization Act complaints in parallel with the U.S. Department of Labor (DOL).
Our purpose is to determine if a violation of the TVA Code occurred and to provide management relevant information which.
affords an opportunity for timely resolution of complaints prior to prolonged and expensive litigation in the DOL forum.
Our findings address potential employee misconduct by TVA employees. We do not ascertain whether a violation of the ERA occurred since that responsibility is entrusted to the DOL.
My office initiated separate employee conduct investigations of circumstances surrounding the section 211, Energy Reorganization Act complaints of D. R. Matthews and W. F. Jocher on March 5, 1993, and July 13, 1993, respectively.
To date, my office has not received a complaint from G. L. Fiser. My staff attempted to interview Fiser recently because he was implicated as a witness in the concerns of W. F.
Jocher. Fiser is presently a full-time TVA employee who, on the advice of his legal representative, refused to submit to an interview with my staff.
(The TVA Code prohibits an employee's refusal to cooperate with an OIG administrative inquiry. Consequently, we may recommend charging 6?lXI&3_ 1 Fiser with insubordination if he refuses to cooperate with our inqight-)
SEP 1E4 1993 Exhibi t B A
6
The Honorable Jim Sasser Page 2 9 1993 Our parallel investigation of W. F. Jocher's section 211 complaint is continuing. The investigation is hampered by Jocher's refusal to meet with my staff to discuss his issues.
(Jocher is no longer employed with TVA.) Jocher's attorney recommended that his client not cooperate with the OIG because he perceived Jocher's interests would not be well served in future litigation efforts against TVA.
Nonetheless, we will continue our investigation of Jocher's concerns and will supplement our inquiry with information provided by Jocher in his August 16, 1993, letter to you. Your staff may assist me in this matter by encouraging Jocher to grant an interview to my staff at the earliest possible time.
On July 19, 1993, my office completed an employee conduct investigation of issues presented by D. R. Matthews.
In our report, we established a clear nexus between Matthews' expression of staff views concerning the operation of the nuclear chemistry program at the Watts Bar Nuclear Plant and a decision to terminate Matthews (later changed to a demotion). In response to the OIG report, Oliver D. Kingsley, Jr., President of the TVA Generating Group, removed the offending manager from his position.
The manager subsequently resigned his TVA employment. A decision regarding the status of D. R. Matthews is unsettled.
I have also been advised the Nuclear Regulatory Commission, Office of Investigation, Region II, Atlanta, Georgia, initiated two investigations based on identical information contained in the August 16, l993, letter from Jocher, Fiser, and Matthews.
The NRC inquiries involve-alleged discriminatory treatment of Jocher by TVA management and alleged false or misleading information to the NRC by TVA in response to an NRC Notice of Violation. You may wish to contact the NRC regarding the status of these investigations.
Based on information provided in the August 16, 1993, letter from Jocher, Fiser, and Matthews, my staff will recontact Jocher and Fiser in an effort to obtain relevant information of employee misconduct.
No contact is anticipated with Matthews because we completed a recent investigation of his concerns and management action is pending.
I will provide you a summary of findings when our investigations are completed.
Thank you for referring this information for my review.
Sincerely,
,4,,;T;vigHnshaWs UlB M
L William L. Hinshaw, II Inspector General GDH:LU cc: Alan J. Carmichael, W 11A-K (w/incoming)
Edward S. Christenbur, ET 11-K (w/incoming)
OIG File No. 2D-129 OIG File No. 2D-133\\
bc:
Craven Crowell, ET 12A-K (w/incoming)
Oliver D. Kingsley, LP 6A-C (w/incoming) 5167d AJ 666
TI-A -
OIG GIG615 632 4j1.30 OCT Z &
233 The Honorable. Jim Sasser
'United States Sentate Washingtonj D.C. 20510-4201 bta~f4*
E4t,'hA A.
This is to provide 'You additional infarmation about the Office of the inspector General investigation. of concerns raised by TVA employee D. R.
Matthews. Thxis is follow-up to my September 9, 1993, letter and a conversation. on October 14, 1993, between Assistant Inspector General (Investigations) George T. Prosser and Kate fleatherington. of your office.
As was previously mentioned in my September 9, 1993, letter,, my office initiated separate employee conduct investigations of circumistances surrounding the Section 211, Ener&7 Reorganization. Act complaints of D. R. Matthews and W. F. Joeher on. March 5, 1993, and July 13, 1993, respectivelyv.
Since my initial letter to you, a Memorandum of Understanding and Agreement vas entered into on September 16, 1993, between Matthews and TVA.
Under the tart-, of the agreement, Matthews received a Ilmp sum monuetary settlement and accepted a position. as a Chemistry Pro gram Manager at Watts Bar liuclear Plant, Xn return, Matthews agreed to release TVA and its representatives from any liability and to excecute the appropriate papers to dismiss all pending proceedings against TVA.
Based on. the agreemenE between Matthews and TVA, the Departmenic of Labor, Wage and Hour Division, is taking no -further action regarding Matthews' complaint under the Energy Reorganization Act in. view of this Agreement.
ouar investigation regarding W. 'F. Jacher's Section 211 complaint ia continuing.
IL will] provide you a summary of our findings when the investigation is co~mpleted.
Thank you for your interest in this matter.
Sincere1',
D WMM=a L Kinshaw. U William L~. Hinshaw, U.
inspector General GDR:BBT*:LU cc; Alan j.7 Carmichael., VXT 11-K Edward S. Chris~enbuzyr ET 11K-K, OIG rile 2D-12 01GY3.le 2D-1331 bcz-Craven Crovellj, ET 12k-K.
Oliver D. XingsleY. L? 6Ak-C 1071D Exhibit C AJ 668 ZeId S£G.L
'ISL S~zt' ?In V: T~~T-~
So LM T
St?:TT 20W-TZ-03=1
3 /'
APR 29 '94
____W I
?Ag
.7 OTIL V-P.-elVED
~,OAPR 25~ 1994 aNd MMb Mecw officef APR 2?~
MS4I The Hohorable Jim Sassel United States Senate Washington, DC 20510-4
Dear Senator Sasser:
Please refer to William L. H-inshaw's letter to you dated October 22, 1 S93, regarding allegations made by William F. Jocher, a former Corporate Chemistry Managekr at TVA. Jocher alleged TVA management forced him to resign because he expressed nuclear. safety concerns. Jocher filed a complaint With the U.S.
Department of Labor (DOL) under Section 21 1 of the Energy Reorganization Act (ERA) on June 29, 1993, claiming he was forced to resign for engaging in protected activities at a WVA nuclear facility. A decision In the case is pending with the DOL.
Based an a request from TVA management, my office initiated a parallel investigation of the circumstances surrounding the alleged adverse treatment of Jocher. :A summary of our findings follows. It is based solely on our Investigation and it does not conclude Jocher was terminated for raising safety concerns. We did not IDetermine whether a violation of the ERA occurred since that responsibility is entrusted to OOL. Specifically, our purpose in conducting a parallel investigatIon with the DOL is to determine whether any current or former TVA employees violated -the WVA Code and also to provide management relevant information affording an opportunity for timely resolution of DOL complaints.
our investigation found no direct evidence showing Jocher was asked to resign because he raised safesty concerns. Rather, management consistenitly stated Jocher was removed because of performance problems, and there is evidence supporting management's position. We found some contradictory evidence f
Exhibit D AJ 669 Me I d
£M
£L8 TS4. EEO S~o WUJ s;t,:TT Z002-TE-ER-1
d 1?djo+/-
SENSITiVE The Honorable Jim Sasser Page 2 APR 2 2 199 regarding the extent Of Jocher's performance problems. We made no recommendations to TVA management regarding.Jocher's requested resignation.
Thank you for your interest in this matter. I hope you will contact our office if we can be of further assistance.
Sincerely*
0rLO~&t -V~rld By Grc" T P~.ser George ir. Prosser inspectcor General BBTABP:SAS cc: Edward S.- Christenbury, ET 1 1 H-K.
Rohtiad A. Loving, Washington OIG6 File No. 203-129 OIG File No.20-133 be:
Craven Crowell, ETI. 2A-K Oliver D. Kingsley, LP 6A-C Brent Marquand, ET 1 1 H-K LETSASSLOOC AJ 670 KOICI
£GAS TEA. M7 i
SO: T T 2MZ-TZ-93=1
12/13/01: ITMO: Wafts Bar Nuclear Plant: Depo: Wilson C. McArthur PAGE 1 TO PAGE 123 NEAL R. GROSS & CO., INC.
(202) 234-4433 CONDENSED TRANSCRIPT AND CONCORDANCE PREPARED BY:
NEAL R. GROSS & CO., INC.
1323 RHODE ISLAND AVE., N. W.
WASHINGTON, DC 20005 Phone: (202) 234-4433 FAX: (202) 387-7330
BSA 12113/01: ITMO: Watts Bar Nuclear Plant: Depo: Wilson C. McArthur XMAX(1 0) you about this?
(2) A All I can tell you, sir, Is I was (3) interviewed quite often, so I can't tell you.
(4)
Q I appreciate that, because you certainly (5) were. Somewhere in this time frame of Mr. Fiser's '93 (6) DOL complaint, did anybody ever make you aware that (7) Mr. Fiser was tape record-ing conversations?
(8) A Yes.
(9) 0 Who told you that?
(10) A Legal.
(11) Q Who in Legal?
(12) A I believe It was Brent. Am I cor-rect in (13) that?
(14) MR. MARQUAND: Probably.
(15) Q And what did they tell you?
(16) MR. MARQUAND: Objection, that's attorney- (17) client privilege.
(18) MR. DAMBLY: What you told him is not a (19) privilege.
(20) MR. MARQUAND:
What we dis-cussed is work (21) product and privi-lege and I object.
(22) MR. DAMBLY: Work product, what work (23) product?
(24) MR. MARQUAND:
You've heard my response.
(25) MR. DAMBLY: Okay. I'd like an an-swer Page 55 (1) what you were told about the taping.
(2) THE WITNESS: Well, my attorney has told (3) me not to respond to that, so I cannot respond.
(4)
BY MR. DAMBLY:
(5) 0 Now you discussed what you were told both (6) in your 01 interview and at the PEC.
(7) A PEC?
(8) 0 Predecision enforcement confer-ence. To (9) the extent there's a privi-lege, it's been waived.
(10) I'd like to know what you were told and (11) what you were told not to do with Mr. Fiser.
(12) MR. MARQUAND:
Before he re-sponds, do you (13) want to show us what the response was that he made?
(14) BY MR. DAMBLY:
(15) Q Let me show you a statement you gave to (16) the Department of Labor in 1997 in regard to Mr. (17) Fiser's com-plaint of '96. And I'll first ask you - (18) it's dated April 24, 1997 and ask you to look at the (19) last page and tell me un-der 'I have read this (20) statement and it is correct,' whether that's your (21) sig-nature.
(22) A That's my signature.
(23) 0 Now let me give you the right page to look (24) at. It's on the fourth page of the document, the last (25) para-graph on the bottom says 'Yes, I was told by Page 56 (1) Legal/TVA to be very careful of Fiser because he was (2) recording people's conversations and I should be (3) sensi-tive of that.'
(4) A Let me make an overall com-ment.
(5) MR. MARQUAND:
Wait until he asks a (6) question.
(7) THEWITNESS: Okay.
(8)
BY MR. DAMBLY:
(9) Q Do you recall signing that docu-ment and (10) making that statement?
(11) A There's something that goes along with (12) that that I need to say.
This Is the most (13) unintelligent hu-man being I've ever dealt with in my (14) life.
(15) MR. MARQUAND:
You're talking about (16) whoever interviewed you?
(17) THE WITNESS:
Whoever wrote this. He (18) wrote this thing at least half a dozen times and (19) finally, out of total frustration, I signed it, (20) because I knew I was never going to get him out of my (21) office. But the guy could not get anything right. I (22) should have put a note on there, that's my mistake, to (23) say I don't know if anything in here is correct at (24) all.
(25) Q Well, do you recall telling him -
Page 57 (1) A I don't remember -
(2) MR. MARQUAND: Why don't you just read the (3) statement and tell him if that statement is correct.
(4) (The witness reviews the docu-ment.)
(5) THE WITNESS: I do not remember Legal (6) telling me to be very careful, they just said be (7) sensitive of the fact that you're being recorded. 1(8) was told that - be sensitive of the fact that a tape (9) recording is - I don't remember - it may have (10) happened, but I do not re-member the comment about be (11) very careful about what you say.
(12) BY MR. DAMBLY:
(13) Q Do you remember discussing it with Ms. (14) Benson when she inter-viewed you, the 01 investigator (15) from NRC?
(16) A I don't remember. If you've got something (17) that says I did.
(18) 0 We've read your statement and it's in (19) there. Do you recall ever see-ing any transcripts that (20) were gener-ated from those tapes?
(21) A We talked about that and I don't
- 1(22) remember being told they ex-Isted and I think somebody (23) flashed them in front of me, but I don't remember (24) sitting down and re-viewing a number of transcripts. (25) If I did, It was very quickly to look at a page or two Page 58 (1) or something.
I did not In detail look at any (2) transcripts. I was told that there was not really (3) anything In there of any consequence.
(4) Q Who told you there was nothing of (5) consequence?
(6)
A I don't remember.
(7) 0 Who showed you the transcripts?
(8) A I don't remember that, I just know I saw (9) them.
(10) Q Do you recall during the enforce-ment (11) conference - and it's on page 48 of the transcript - (12) Mr. McNulty, who was the 01 field office inspector, (13) said "Have you seen any transcripts of the tapes?' (14) And Mr. McArthur,
'We did see some transcripts, it was (15) very hard to understand and the tran-scripts were not - (16) - nothing came out of any particular interest from (17) what I recall. I didn't hear all of them, but I heard (18) a number of them and read some transcripts.'
(19) A All I remember is looking at a couple of (20) pages.
(21) 0 Do you recall what was on those pages that (22) you looked at?
(23) A No.
(24) 0 This is Fiser Exhibit 18, starting on page (25) 6, bottom of page 6 and it runs through I think the Page 59 (1) rest of it, through page 81, purports to be (2) transcripts that Mr. Fiser typed up from his.tapes. (3) If you could just take a look at that and tell me (4) whether -
(5)
A Gary Fiser typed these?
(6) 0 Yes, that's my understanding.
Can you (7) tell me - just look through, if you recall if that's (8) the document you looked at or was it in a different (9) for-mat?
(10) MR. MARQUAND: It was in a differ-ent (11) format.
(12) A I don't remember. What docu-ment am 1(13) looking at?
(14) MR. MARQUAND: If you'll look at the (15) second page, you'll see that this Is - the second (16) page of the docu-ment you've got, It's got a title on (17) it and then he's referring to page 6 of this (18) particular document.
(19) THE WITNESS: I don't remember seeing (20) this document.
(21) BY MR. DAMBLY:
(22) 0 Do you remember seeing the transcribed (23) portion, which Is 6 through 81?
(24) MR. MARQUAND: The transcribed portion (25) begins on page 6 down at the bottom.
Page 60 (1) A Like I said, all I saw - I briefly looked (2) at a couple of pages.
(3) 0 It was in a format different than Page 54 to Page 60 (202) 234-4433 NEAL R. GROSS & CO., INC.
BSA 12113101: ITMO: Watts Bar Nuclear Plant: Depo: Wils this?
(4) A It wasn't this.
(5) Q Okay.
(6) A I don't know who transcribed it.
(7) Q We asked for transcripts and were told (8) there weren't any. Do you know what it was -
(9) MR. MARQUAND: The same docu-ment appears (10) in a somewhat differ-ent format attached to the QIG - (11) to an OIG investigation. I don't know if that's what (12) he's talking about or not, but it looks a little (13) different.
(14) BY MR. DAMBLY:
(15) Q Did you ever discuss with any-body that you (16) were informed Mr.
Fiser was taping you?
(17) A Did I discuss it with anybody?
(18) Q Anybody else at TVA, any other managers, (19) Mr. Kent, Mr. Cox, Mr.
Corey, Bynum.
(20) A You know, it me it was obvious I was being (21) taped because I could tell when Gary came in that he (22) was taping me. And by the way, he asked questions, he (23) was trying to trap me into saying something, I could (24) tell that by the way he said things.
(25) Q It was obvious before you were told or Page 61 (1) after?
(2) A After.
(3) Q Okay.
(4) A I didn't have any clue that he was doing (5) it beforehand. I thought it was a very rude thing for (6) anyindi-vidual to do when I found out about it.
(7) I don't remember -
I was very close to (8) Kent and people like, but I don't remember (9) specifically telling them that I was being taped, but (10) it's possible I did. I just don't - it wasn't (11) Important to me, because I didn't think there was (12) anything I was going to say that would make that kind (13) of difference anyway.
(14) 0 Did you change your interactions with Mr. (15) Fiser after you -
(16) A I'm sure I was more careful In what 1 (17) would say. He would ask me things, well, I don't like (18) that guy McGrath, what do you think - you know, (19) something like that. Well, I'm not going to respond (20) to that, I'm not going to talk about my boss to him.
(21) 0 Would you have done that before you found (22) out he was taping?
(23) A I wouldn't have talked about - I don't (24) talk about my boss with other people.
(25) MR. MARQUAND:
Except in this deposition.
(2) deposition.
(3)
MR. DAMBLY:
Well, we haven't talked about (4) him yet.
(5)
BY MR. DAMBLY:
(6) 0 And that is your former boss, so you're (7) okay.
(8)
A Yeah.
(9) Q After Mr. Fiser went - I guess he went (10) to the employee transition pro-gram when he was RIF'd?
(11) A That's correct, yeah.
(12) Q Do you know if he was surplused or RIF'd?
(13) A No. I think he was RIF'd but again, 1 (14) don't know. My answer has to be I don't know.
(15) 0 Okay. Do you recall a situation where Mr. (16) Kent out at Sequoyah wanted to - or considered (17) bringing Mr. Fiser back to Sequoyah while he was still (18) over in the employee transition program?
(19) A Yes, I remember that.
(20) Q Tell me what you remember about it.
(21) A I remember I was very sur-prised that he (22) was - he called me and asked me what I thought and 1(23) said well, I had problems with Gary down here. My (24) position was not to tell Charles Kent what to do, I (25) could only give him my advice. And I said Gary has
- on C. McArthur XMAX(11)
DOL complaint?
(25) A I don't recall. Usually the tech-nical Page 64 (1) manager Is not involved in settle-ments like that. 1(2) may be asked my opinion, but I don't remember (3) any-thing. In fact, I don't know what the settlement (4) was.
Is that the one where he came back?
(5) Q Right.
(6) A I don't - I was not involved in that (7) decision.
(8) 0 Were you informed that he would be coming (9) back?
(10) A When he came back to corpo-rate?
(11) 0 Right.
(12) A I had to be at some point in time because (13) he'd be working for me.
I don't -
(14) Q When he came back, did you have any (15) discussions with anybody about this was part of the (16) settlement or any mention of his DOL complaint as part (17) of why he was back?
(18) A I just understood he was com-ing back to (19) work in the chemistry group.
(20) 0 Did you ever talk to Mr. Grover about how (21) that came about?
(22) A I don't think so.
Usually I wouldn't - (23) to me, that was a hands off type thing, you just (24) didn't -
you just stayed away from it.
(25) Q Do you remember any discus-sions with Mr.
Page 65 (1) McGrath about Fiser's return?
(2) A Other than he was coming back. I think (3) McGrath is the one that told me he was coming back.
(4) MR. MARQUAND: When was this that he came (5) back?
(6) MR. DAMBLY: '94.
(7) MR. MARQUAND:
Who was he working for?
(8) THE WITNESS: All I know is I knew he was (9) coming back and he'd be in our organization, which was (10) fine with me.
(11) BY MR. DAMBLY:
(12) 0 In '94, we were talking about ear-lier, (13) about a reorg in the technical operations position (14) that I guess was abolished and became radcon (15) man-agement, remember that?
(16) AUh-huh.
(17) Q Do you recall how that came about that you (18) became radcon man-ager?
(19) A John Maclejewski, who was my boss then, (20) called me down and said he had recommended to (21) management that they divide the or-ganization into (22) radcon and chem-Page 63 (1) some - has had problems with me in the corporate (2) position down here, but you know Gary better than I do (3) because he's worked for you before.
(4) And if I remember correctly, he asked me (5) to check around. So I talked with Keuter and Dan (6) Keuter didn't have much position and Joe Bynum felt he (7) didn't do a very good job at Sequoyah. That's (8) basically the information that I passed back to (9) Charles. But I did not make a rec-ommendation that he (10) not hire Gary Fiser. Charles is a big boy, he could (11) do what he wanted to do.
(12) Q Do you remember any discus-sions after he (13) decided not to hire him, indicating it was probably a (14) good move he didn't?
(15) A No.
(16) Q Don't remember any discus-sions, anybody (17) make any com-ments that if Mr. Fiser went back to (18)
Sequoyah, he'd be almost designed to fail?
(19) A No.
(20) Q Never heard any discussion about that at (21) all?
(22) A I don't think so.
(23) Q Did you have any involvement with the (24) settlement of Mr. Fiser's '93 Page 62 (1) THE WITNESS: Yeah, except in this NEAL R. GROSS & CO., INC.
(202) 234-4433 Page 60 to Page 65 NEAL R. GROSS & CO., INC.
(202) 234-4433 Page 60 to Page 65
GARY FISER L-Lbt:L) Kt'L)1~bi1N2AL ENFORCEMENT CONFERENCE November 22, 19 PaqE ItI t21 (31 CLOSED PREDECISIONAL ENFORCEMENT CONFERENCE (41 RE: GARY FISER 151 (63 Page 1 l CI] APPEARANCES:
(21 MS. ANNE BOLAND. Region 2 Entorcement Otlicer.
Atlanta Pl MR. DENNIS DAMBLY. Assistant General Counsellor (41 Materiats Lhtigation and Enlorcement.
(SI MR. LUIS REYES. Regional Administrator for the NRC Office, Atlanta (6]
WILSON COOPER MCARTHUR (81 191 121 (131 (141 (63 MR. LOREN PLISCO. Director of Division Rank o0 m7 Projects.
(SI MR. MICHAEL STEIN. Enlorcement Specialist. Ofice o0 Entorcement. NRC.
November 22. 1999 MR. WILLIAM McNULTY. Field Ottice Director for the (o1 Otfie of Investigations (113 MR. VICTOR McCREE. Deputy Director lor Reactor Satety In Region It 1:10 pm (121 1131 MS. CAROLYN EVANS. Regional Counsel.
MS. JENNIFER EUCHNER. Legal Internal GC (17]
Nuclear Regulatory Commission Atlanta Federal Center (1S Suite 23T.SS 61 Forsyth Street. S.W.
l191 Atlanta. Georgia Rai (20 1211 t22]
(23]
Colleen S. Seidl. RPR. CRR. CCR-B-1113 MR. SC6TT SPARKS. Senior Enlorcement Specialist.
(151 Region2.
(163 MR. EDWARD VIGLUICCI, Oflice of General Counsel (I7l MR. BRENT MARCUAND. Oftice of General Counsel (1I] MR. MARK BURZYNSKI. Re: Aitairs (19 MR. EDWARD BOYLES. Manager. Corporate Human Resource Office lor TVAM (22]
(231 (241 125.
BROWN REPORTING. INC.
(243 1740 PEACHTREE STREET. N.W.
ATLANTA. GEORGIA 30309 (25]
(404) 876-8979 AB0o134 BROWN REPORTING, INC. (404) 876-8979 Min-U-Scripte (3) Page 1-P.I
IGARY FISER AcL.L ENFORCEMENT CONFERENCE November 22, 19(
Page 47 IIl Mr. Fiser.Were you ever aware of him tape cl recording anybody?
pi MR. McARTHUR: Yes.
141 MR. McNULTY: Can you tell me about isi that?
161 MR. McARTHUR: All I know is, apparently m it went over a long period of time and I was advised ja] that he was taping our conversations, and that was isl the first I had heard about that.
V101 After that I was just aware that he was t"1 l doing that and I thought it was a very 1121 unprofessional and sad situation to do that kind of 1131 thing. but I was aware.
1141 He would make it a point, which was sisj unusual for him, to come in at lunchtime while I was 161 eating a sandwich or something and he would ask a c m7 question like. What do you think of Tom McGrath?"
- a or, 'What do you think of TVA?" And then I would 1191 become aware in my mind he was trying to get me to 1201 say something negative, I don't know why. I had no 12l1 idea why he was doing that, because as I said, I r22 thought it was very unprofessional. But that didn't r31 change my opinion of his technical capability. I 12A) didn't like what was happening, but that's all I can 12sl tell you about that.
Page 48 III MR. STEIN: I have two questions.
R MR. McNULTY: Can I follow up?
pi MR. STEIN: Sure.
141 MR. McNULTY: Do you recall when that tsl occurred. the tapings?
161 MR. McARTHUR: Do I recall one?
M MR. McNULTY: When?
8al MR. McARTHUR: Oh. No. Idon't know the psi exact time. I know that I've heard the tape, some 10ol of the tapes. I didn't hear them all.
["l MR. McNULTY: Have you seen any 1121 transcripts of the tapes?
(131 MR. McARTHUR: We did see some (141 transcripts. It was very hard to understand and the
'si transcriptions were not -
nothing came Out of any 1163 particular interest, from what I recall. I didn't 17i hear all of them, but I heard a number of them and 118l read some transcripts.
1191 MR. McNULTY: Did you testify in 120] proceedings forTVA in regards t_
21l1 MR. McARTHUR: Yes.
(21 MR. McNULTY: Did you review tapes-of x231 transcripts in preparation for that testimony?
241 MR. McARTHUR: I don't think so. Not 12sl that I recall. I didn't know anybody was taping Page' 111 during that period of time.
121 MR. STEIN: When you spoke with Mr. Corey t31 and Mr. Kent about being on the Selection Panel.
i41 both indicated that they had a few weeks' notice in (sl preparation for the panel.
161 When you spoke to Mr. Cox about being on m the panel, how much time do you remember?
jal MR. McARTHUR: It was probably the RadCon SI! Chemistry Peer Group meeting before the month
[1o0 before, when we made the decision that -
we made
[111 it. it wasn't my decision, it was the decision of 1121 the group that they would be the members and Cox tl indicated -
we scheduled in conjunction with the 1141 next RadCon Chemistry meeting so we would have all lisi the guys there. It was very difficult. to get these (1 b three or four gentlemen together for anything.
[17n MR. STEIN: So Mr. Cox had about the same 1al amount of time as Mr. Kent and Mr. Corey?
['91 MR. McARTHUR: Sure.
20Al MR. STEIN: I have another question and (2il it has to do with Mr. McGrath. Mr. McGrath's input ml2 into -you said you were the Selecting Official?
rpi MR. McARTHUR: That's correct.
I241 MR. STEIN: You were completely Jr2sl independent of any input from Mr. McGrath or anybody Page I ct else fromTVA?
l2l MR. McARTHUR: That is correct. In fact, i
[31I went to Tom and said these are the people that we i4j have selccted.And if you kncwTom McGrath, you'd 1151 know that he trusts me. I felt that, a very strong
-i6 sense of trust. He never said anything.
XP MR. STEIN: Let's take a step back for a 1e1 second. Can you explain to us why this was
[2l necessary?
o101 MR. McARTHUR: Like what?
(IlI MR. STEIN: To take three managers and
[121 then to create two positions for those three 1131 managers?You know, budgetary -
11'1 MR. McARTHUR: Well, we,TVA-
[is)
MR. STEIN: Because we had been going 1t63 along fine until Mr. McGrath.
1171 MR. McARTHUR: We're in a competitive 1e8 business. I just got through last week spending
[19l three weeks in my new staff position of evaluating r1l RadCon and Chemistry again. I went to all the 1211 sites, dealt with all the people and said, 'What is 1221 the value of Corporate, is it a value add or not?"
m1l So we do this periodically and this is' 1241 reorganization, which I think-in our industry we are 25sl competitive.We're trying to, you know, td look at BROWN REPORTING, INC (404) 876-8979 min-U-Scripto A000146 (15) Page47 -Pa
GXRY FISER CLCohWk-1'KPEDECISIO1NAL THOMAAS M'vCGRATH ENFORCEMENT CONFERENCE November 22, 1999 Ia~
Page 2
('1 (2]
pi1 CLOSED PREDECISiONAL ENFORCEMENT CONFERENCE (4]
RE: GARY FISER (SI (61 (11 APPEARANCES:
(21 MS. ANNE T. BOLAND, Region 2 Enforcement Officer, Atlanta (31 MR. DENNIS C. DAMBLY, Assistant General Counsel for (41 Materials Litigation and Enforcement.
(SI MR. LUItS REYES. Regional Administrator for the NRC Office. Atlanta (61 Pt 819 (9]
(10]
[121 (13)
(141 (IS)
(16)
THOMAS McGRATH November 22. 1999 10:05 a.m.
(17]
Nuclear Regulatory Commission Atlanta Federal Center (IS)
Suite 23T-85 61 Forsyth Street. S.W.
(19)
Atlanta. Georgia MR. LOREN PLISCO, Director of Divsion Rank of (7 Projects.
(a] MR. MICHAEL M. STEIN. Enforcement Specialist. Office of Enforcement. NRC.
(91 MR. WILLIAM MCNULTY. Field Office Director for the 1(lo] Office of Investigations 1(111 MR. VICTOR MCCREE. Deputy Director for Reactor 11 Safety in Region II MS. CAROLYN EVANS. Regional Counsel.
MS. JENNIFER EUCHNER. Legal Internal GC 1(141 I MR. SCOTT SPARKS. Senior Enforcement Specialist.
- (iSl Region 2.
1(161 MR. EDWARD VIGLUICCI, Office of General Counsel, TVA (17] MR. BRENT MAROUAND. Office of General Counsel. TVA
[is] MR. JAMES BOYLES. Manager, Corporate Human Resource Office for TVAM (19)
,(201
!(211 1(22)
(241 1(251 (20)
(211 (221 (231 Colleen B. Seidl. RPR, CRR. CCR-B-1113 BROWN REPORTING. INC.
(241 1740 PEACHTREE STREET. N.W.
ATLANTA. GEORGIA 30309 r25]
(404) 876.8979 BROWN REPORTING, INC. (404) 876-8979 Mm-U-Script (3) Page 1 - Page 2 BROWN REPORTING, INC. (404) 876-8979 min-u-scripto (3)
Page I - Page "I
CLOSED PREDECISIONAL ENFORCEMENT CONFERENCE GARY FISER THOr1AS MCGRATW November 22, 199c Page 39 III would be informed that their positions were surplus (21 and that they might be subject to a reduction in p1 force at some point in time.
(4]
So what would happen was that old jobs (sl would disappear, new jobs would reappear. Employees (6] in the old jobs did not have reassignment rights or m retrieve rights or anything like that to the new 81l jobs unless it was determined to be essentially (91 identical or similar under the OPM regulations that vo0 Ed referred to. So if there was not a right to cIII reassignment to the new job, that is, if it wasn't (121 substantially similar, then the employees in the (131 surplus jobs would be subject to reduction in (141 force.
115 They wouldn't have -
the only employees (163 with retrieve rights or rollback rights are o¶i employees under the bargaining units that are (18] covered by the contracts. Managers such as (i9i Mr. Fiser and his peers do not have those rights (203 because they are not subject to the collective (213 bargaining agreement. Is that right, Ed?
rm MR. BOYLES: That's correct.
(23 MR. DAMBLY: Then your managers are not r(4 under the OPM regs?
(253 MR. MARQUAND: They are under the OPM Page 41 (II with HK?
(21 MR. McGRATH: I'll let Mr. Boyles tell
[1 you. He came to Mr. Boyles and Mr. Boyles told him (43 that.
5sl MR. STEIN: I'm just thinking about (63 confidentiality and employees going to HR with m concerns, this type of concern, that would get back (8] to line management.
(91 MR. McGRATH: Well, we do keep things (1o0 confidential.At the time when he did come and (11 raise this was the first time that I ever knew, this (123 was in June of '96, that he had even submitted a DOL 13] complaint in 1993. So I had no knowledge of the (141 existence of that complaint prior.
(15]
He brought it up and Mr. Boyles needed to (1i6 come to me because he was affecting the (In reorganization. It was a decision that had been (al made to post the positions.What Mr. Boyles told me (193 he was going to do is to bring this information to (203 our Labor Relations people who deal with the DOL and (213 OGC to look at this matter and give us advice.
(221 And, Ed. do you want to cover what you (23] did there?
(24]
MR. BOYLES: Yes.After we had made the 125s decision to post the Chemistry positions. Ben Easley II Page 40 (13 regs.We have to rememberTVA is not a competitive (23 civil service.We're an excepted civil service, so pi the managers don't have those types of retrieve 141 rights.
(53 MR. DAMBLY: Am I correct that Mr. Fiser (6i] was the senior of the three?
I..
m MR. MARQUAND: He had more TVA seniority (8i was my understanding.
(93 MR. McGRATH: Going on to how we handled (1o0 the Chemistry positions, Mr. McArthur and Mr. Grover (113 recommended that the two positions should be one to (121 support PWRs and one to support BWRs. Mr. Grover (131 with input from the incumbent Chemistry Specialist (14] prepared the position descriptions for those jobs.
(sI I had no involvement in what the position (1s6 description said and I normally would not have any (12n involvement in position descriptions at that level.
1i83 As we were proceeding toward advertising (19I them, Mr. Fiser came to Human Resources and he did r2o0 raise a concern that if we were to go ahead and (213 advertise those positions, that that would not be in (223 accordance with the settlement of his 1993 DOL
[33 complaint.
(241 MR. STEIN: How do you know that? Who (253 informed you of this conversation that Mr. Fiser had Page 42 (13 came to my office and asked me if I would talk to i2) Gary Fiser. I agreed, and he went back and brought 131 Gary to the office. Gary told me that he had had a l41 DOL complaint previously and that as a part of that (sl complaint he had reached a settlement and was placed (6l in the position in Corporate Office, and that he p didn't agree with posting the job and that if we (8l posted the position, that he would file a second DOL (93 complaint.
(103 I told Gary that I would look at it, I (113 was not aware of this.We basically stopped the (121 process for a period of time. I contacted our Labor (131 Relations staff, they handle complaints, grievances (141 and DOL issues. I asked -
I told them what was (3sl going on and'what Mr. Fiser had said to me and they (16] in turn contacted OGC to discuss what the settlement o7i was and how we should proceed.
(18a They came back to me shortly thereafter.
g93 a day or so, and told me that they had talked to OGC (203 and that we should proceed as we were. that they'd (21l looked at the settlement and it didn't preclude, it (223 had no guarantee of a permanent position in the (231 organization.
(241 So after we got that feedback, I told t(sl Mr. McGrath about it and we moved forward.
B BROWN REPORTING, TNC. (04) 876-8979 min-U-Scripto (13) Page 39 - Page 42
YHOMAS LNICGRATH November 22, 1999 CLOSED PREDE ENFORCEMENT 0 GARY FISER Page 45 Page 43 in MR. STEIN: After meeting with him and fiter you spoke with OGC and you got the inorration, you proceeded with the posting and the ection.What was the need to get back to csi Mr. Fiser's management to discuss the threat of a (6] second DOL complaint?
m MR. BOYLES: I actually may have told Tom (8] McGrath before we even heard from OGC and from our t9s Legal Relations staff. I felt like he needed to cio] know what the issues were, we had a reorganization 1i going on. and I discussed this with him.
(12t MR. MARQUAND: I was contacted by Labor (13] Relations, who was asking whether or not the lil a Department of Labor complaint, but in '94 when m they eliminated the Chemistry Program Manager and pi combined to make it Chemistry and Environmental, he (4] did not choose at that time to say that's unfair.
(s] He didn't choose -
(61 MR. DAMBLY: Of course. He got that job.
m MR. MARQUAND: But he didn't know ahead (81 of time. In this case before they even posted the 1 job, he said I'm going to file a Department of Labor 11o0 complaint if you even post it.
[it]
MS. BOLAND: Were there numbers being p2i eliminated in that '94 reorg?
1131 MR. MARQUAND: I don't know that.
(14]
MS. BOLAND: I mean clearly we were going Eisi from three to two in the '96 reorg.
C16] MR. MARQUAND: I don't know if ultimately t1n they eliminated anyone in that reorganization or (1a1 not.The three chemistry -
the three individuals (t19 who had Chemistry Program Manager jobs all were mi0 successful in obtaining a position in '94, but I Ri1 don't know if other individuals lost theirs.
R21 I know that from '94 on we have had an (31 enormous number of employees leave through early (24] outs.
12s1 MR. STEIN: Mr. MarQuand. there's a very 1141 previous settlement agreement guaranteed him a new vsl position and the question was basically, well, is he 1161 guaranteed a position for life? I said, no, the (17l settlement agreement specifies a specific job he was (8] to be placed in.
(19]
And I learned that after assuming the r(l Chemistry Program Manager position, that there had (21 been this subsequent reorganization and that he had ma applied and been selected for a new position and (3] thus abandoned the previous position he had been (241 given in the settlement agreement.And the question rien was, does he have some right as a result of the JI Pacla 44 1(1-settlement agreement to a new position? And my r21 response back was no. the settlement agreement tPi provided the position he was to be given and if he (i chose to abandon that or seek a different position tsi or if it was subsequent reorganization, there's no t(8 guarantee of a position for life.,And my advice was -
Pl that the right thing to do was to post the position (aB and to proceed with the selection without regard to (pi whether he filed the previous DOL complaint. He vio should not have anything taken away from him and he (11 shouldn't have anything added to him by virtue of (12l the fact that he filed a complaint.You know, we (1i3 don't want to be unfair to him or unfair to anyone (tiA else by virtue of the fact that he filed a DOL tis] complaint.
(6]
MR. DAMBLY: Let me ask a question.Your i(73 use of the term 'abandoned the prior position that (1l8 he got," it's my understanding that position was (191 eliminated and he was forced to compete for a new (201 position.
(211 MR. MARQUAND: That's correct, and at the c he chose not-I mean it's interesting that
_en he decided to file a complaint in '96 and say ou're eliminating the position. eliminating my 12s.position and that's unfair and I'm going to go file Page 46 (ij big difference between 1994 and '96 and it has to do r with the line supervision. In 1994 he was reporting (3 to different first and second line supervisors than t41 he was in 1996.
(si MR. MARQUAND: As I understand, in '94 (6i Mr. McArthur was on the Selection Review Panel that un made the selection and, in fact, was the selecting (8i manager for that job.
t9i MR. STEIN: But he wasn't reporting to (10] Mr. McArthur in 1994.
11]l MR. MARQUAND: I don't recall who he was i2l reporting to, because at some time in '94 McArthur (13] was made the RadCori manager. But as I said, (141 Mr. McArthur was on that Selection Review Board and (s1 was a selecting official in 1994 and was responsible t16s for selecting him.
(173 MS. BOLAND: Did I understand you to say.
(8l Mr. Boyles, that you were not aware of Mr. Fiser's (191 DOL complaint until Mr. Easley came to you?
(20 MR. BOYLES: The previous?
(21]
MS.BOLAND: The '93 complaint? Or when r-was the first time you became aware of that?
(23 MR. BOYLES: I don't know if I knew (243 before. In Human Resources oftentimes we are (25s aware. I don't know if-that was the first time I Page:
.3P g 4 (1 )M n U S r pB O N R P R I G N.( o ) 8 6 8 7 Page 43 - Page 46 (14)
Min-U-Script
BROWN REPORTING, INC. (404) 876-8979