ML021370548
| ML021370548 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 05/08/2002 |
| From: | Johns E Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A | |
| References | |
| +adjud/ruledam200506, 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, NRC-338, RAS 4435 | |
| Download: ML021370548 (211) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION Ii
Title:
Tennesse Valley Authority Watts Bar Nuclear Plant, Unit I Sequoyah Nuclear Plant, Units I and 2 Browns Ferry Nuclear Plant, Units 1,2,3 Docket Number: 50-390-CivP; ASLBP No.: 01-791-01-CivP Location: Chattanooga, Tennessee r-.3 C=
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Work Order No.: NRC-338 Pages 2268-2476 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
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2268 UNITED STATES OF AMERICA
+ . . . .
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD HEARING iII In the Matter of: ll Docket Nos:
TENNESSEE VALLEY AUTHORITY 11 50-390-CivP; If50-327-CivP; Watts Bar Nuclear Plant, Unit 1;ff 50-328-CivP; Sequoyah Nuclear Plant, Units 1 ll 50-259-CivP;
& 2; Browns Ferry Nuclear Plantjl 50-296-CivP; Units 1, 2 and 3. 11 ASLBP No.:
1101-791-01-CivP 11 EA 99-234 Wednesday, May 8, 2002 Courtroom B U.S. Bankruptcy Court 31 E. 11th St.
Chattanooga, TN The above-entitled matter came on for Hearing, pursuant to notice, at 9:00 a.m.
BEFORE:
CHARLES BECHHOEFER, Chairman ANN MARSHALL YOUNG, Administrative Judge RICHARD F. COLE, Administrative Judge PAGES: 2268-2476 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2269 APPEARANCES:
On behalf of the Nuclear Regulatory Commission:
DENNIS C. DAMBLY, Attorney JENNIFER M. EUCHNER, Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
-and-NICHOLAS HILTON, Enforcement Specialist Office of Enforcement U.S. Nuclear Regulatory Commission Washington, D.C. 20555 On Behalf of Tennessee Valley Authority:
BRENT R. MARQUAND, Attorney JOHN E. SLATER, Attorney Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, TN, 37902-1499
-and-DAVID A REPKA, Attorney Winston & Strawn 1400 L Street, N.W.
Washington, D.C. 20005-3502 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 27 0 I -N-D-E-X WITNESS DIRECT CROSS REDIRECT VOIR DIRE GARY FISER 2272 2408 2337 Exhibit No. Mark Recd Staff 173 Premarked 2288 Staff 108 Premarked 2 297 TVA 117 Premarked 2 30 1 Staff 46 Premarked 2 3 08 Staff 47 Premarked 23 10 TVA 119 Premarked 2 324 TVA 116 Premarked 2 33 1 TVA 120 Premarked 233 8 Joint 28 Premarked 2369 Joint 29 Premarked 2 38 1 Staff 47 Premarked Excluded TVA 122 2417 2424 1
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2271 1 P-R-O-C-E-E-D-I-N-G-S 2 9:15 a.m.
3 CHAIRMAN BECHHOEFER: Good morning, ladies 4 and gentlemen. Before we -- we are sorry we are a 5 little bit late this morning, we did some packing of 6 boxes, of documents, to be sent back to Rockville.
7 Are there any preliminary matters that any 8 party wishes to raise?
9 MS. EUCHNER: None for the Staff, Your 10 Honor.
11 MR. MARQUAND: No, Your Honor.
12 ADMINISTRATIVE JUDGE YOUNG: Just for the 13 record, we did locate the stipulation, and it was 14 entered as Joint Exhibit 66.
15 MR. MARQUAND: There should be two 16 stipulations?
17 ADMINISTRATIVE JUDGE YOUNG: Another 18 stipulation relating to Carolyn Evans was Joint 19 Exhibit 66.
20 MR. MARQUAND: Thank you, Your Honor.
21 CHAIRMAN BECHHOEFER: Does staff wish to 22 resume with Mr. Fiser's testimony?
23 MS. EUCHNER: Yes, Your Honor.
24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2272 1 Whereupon, 2 GARY L. FISER 3 was recalled as a witness by Counsel for the Staff 4 and, having been previously duly sworn, assumed the 5 witness stand, was examined and testified as follows:
6 DIRECT EXAMINATION 7 BY MS. EUCHNER:
8 Q I'd like to go back to the 1991 through 9 1993 time frame. In early 1991 were you still at 10 Sequoyah?
11 A Yes, that is correct.
12 Q And what was your position at Sequoyah, 13 then?
14 A I was the chemistry and environmental 15 superintendent.
16 Q At some point during 1991 did you rotate 17 to a different position?
18 A That is correct.
19 Q What position?
20 A I rotated into the outage management 21 position.
22 Q And approximately how long did you stay 23 there?
24 A The better part of a year. It seems like 25 it was approximately nine months, something like that.
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2273 1 ADMINISTRATIVE JUDGE YOUNG: So from, say 2 again the first month, if you can recall?
3 THE WITNESS: The first month that I was 4 transferred to outage management?
5 ADMINISTRATIVE JUDGE YOUNG: Right.
6 THE WITNESS: I'm going to guess that was 7 in approximately April.
8 ADMINISTRATIVE JUDGE YOUNG: So spring of 9 '91 through about the end of '91?
10 THE WITNESS: That is correct.
11 ADMINISTRATIVE JUDGE YOUNG: Okay.
12 BY MS. EUCHNER:
13 Q At the end of 1991 did you return to your 14 position as Sequoyah chemistry and environmental 15 superintendent?
16 A That is correct. Is this on, can you 17 hear?
18 Q Yes.
19 A Okay.
20 Q How long did you spend at Sequoyah before 21 you rotated to corporate chemistry manager position?
22 A A few weeks. It seems like it was, it was 23 six or eight weeks, January and February. And then in 24 March the swap was arranged. I think that is correct.
25 Q From March of 1992 to November of 1992 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2274 1 what was your position?
2 A I was the acting corporate chemistry 3 manager.
4 Q In November 1992 what happened?
5 A I was demoted to a program manager.
6 Q Okay. So from November 1992 to April 1993 7 what was your position?
8 A I don't remember the exact title, but it 9 was a program manager in the corporate chemistry 10 organization.
11 Q After you received your surplus notice in 12 April of 1993, did you ever return to your position as 13 Sequoyah chemistry and environmental superintendent?
14 A No, I did not.
15 Q Now, based on the time line that we just 16 went through, from the beginning of 1991 through 1993, 17 how long were you actually in your position of 18 Sequoyah chemistry and environmental superintendent?
19 A Like I said, it was a few weeks, January 20 and February. I can't remember, it may have been a 21 couple of weeks in December, I don't remember exactly 22 when I came out of outage management.
23 Q That was after you returned from outage 24 management?
25 A Yes.
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2275 1 Q And were there a few months earlier, in 2 1991, that you were in that position?
3 A I'm sorry, yes. That would be January 4 through March.
5 Q During your rotations as outage manager, 6 and then in corporate chemistry, did you retain 7 responsibility for managing the Sequoyah chemistry and 8 environmental program?
9 A No, I did not.
10 Q In your testimony last Tuesday you stated 11 that there was a problem with the emergency diesel 12 generator seven day storage.
13 A Right.
14 Q First of us, just to refresh us, what was 15 that problem?
16 A It was a problem with the design of the 17 tanks, and a problem with the design of the pump that 18 recirculated those tanks. Basically what was 19 underground, beneath the diesel generators for a seven 20 day storage tank, was actually four tanks laying side 21 by side, joined by a pipe, essentially, at the lower 22 end of those.
23 If you can imagine four cigars laying 24 together, tilted on one end, and then connected across 25 the bottom by a large piece of pipe. That is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2276 1 basically the layout of those tanks.
2 Heretofore I think that everybody thought 3 it was just a big tank. Indeed it was four tanks, and 4 a recirculation pump only recirculated a portion of 5 two of those four tanks. So it had never been 6 properly recirculated, and therefore a proper sample 7 had never been obtained of those tanks, as I recall, 8 from day one of plant operation.
9 Q Who initially identified that as a 10 problem?
11 A I did. Well, me working with members of 12 my staff.
13 Q Did you and members of your staff develop 14 or initiate any corrective action to solve this 15 problem?
16 A Yes, we did.
17 Q What did you do?
18 A I brought it, of course, to my 19 management's attention. We filled out a -- what do 20 you call it, a SCAR, I think it was at that time, 21 significant corrective action report.
22 And submitted that to the PORC committee 23 for review.
24 Q Now when you say we, are you referring to 25 yourself and your staff?
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2277 1 A That is correct.
2 ADMINISTRATIVE JUDGE YOUNG: And you 3 submitted it to whom, or to what?
4 THE WITNESS: We submitted that to, I 5 think it was PORC, or there was a --
6 ADMINISTRATIVE JUDGE YOUNG: I'm missing 7 the word.
8 THE WITNESS: PORC, P-O-R-C, which is an 9 acronym for plant operations review committee.
10 ADMINISTRATIVE JUDGE YOUNG: Okay.
11 BY MS. EUCHNER:
12 Q During the time that you were Sequoyah 13 chemistry and environmental superintendent, did you 14 have any trouble getting funding for the chemistry 15 program?
16 A Yes, I did.
17 Q Did you seek funding for the chemistry 18 program?
19 A Yes, we did, continually.
20 Q With whom, who did you request funding 21 from?
22 A Directly through my plant management. I 23 implored the site VP on some occasions. I also worked 24 through the corporate organization's steam generator 25 group, corporate chemistry.
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2278 1 I tried to build a, essentially a little 2 coalition to help support the process for getting the 3 money approved to repair some long standing problems 4 in the Sequoyah chemistry department.
5 Q Were you able to get the funding that you 6 needed?
7 A No, we never did.
8 Q Do you know why not?
9 A Yes, I do.
10 Q Why not?
11 A Basically it was never authorized by 12 essentially Mr. Kingsley.
13 CHAIRMAN BECHHOEFER: By who?
14 THE WITNESS: Mr. Kingsley who was the 15 chief nuclear officer. And I was always told you only 16 have so much money, and the projects far outnumber the 17 amount of money you have, and so things are always 18 going to fall out.
19 And it seems like the chemistry upgrade 20 project was the one that always didn't quite make it 21 to get the funding.
22 BY MS. EUCHNER:
23 Q All right. Now we are going to pick up 24 where we left off last Tuesday, which was, just to 25 refresh everyone's memory, we left off right after you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2279 1 had filed your DOL complaint in 1993.
2 A Okay.
3 Q I believe last week you stated that you 4 received a termination letter in August of 1993, which 5 terminated your TVA employment. Do you recall that?
6 A Yes, I do.
7 Q After you received this termination letter 8 did you remain in the ETP, or were you terminated from 9 TVA employment?
10 A I remained in the ETP organization. The 11 date was extended, as I recall, from the time we were 12 actually scheduled to be out of ETP.
13 MS. EUCHNER: Apparently somebody removed 14 a document from the book and didn't put it back. We 15 are going to Joint Exhibit 34, which is in the Staff's 16 set of Joint Exhibits.
17 And I believe Joint Exhibit 34 has already 18 been entered into evidence.
19 BY MS. EUCHNER:
20 Q Do you recognize this document, Mr. Fiser?
21 A Yes, I do.
22 Q What is it?
23 A It is, as I recall, the memorandum of 24 understanding and agreement between TVA and me, 25 delineating the agreements in settling, I think, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2280 1 '93 case.
2 Q Under this agreement what position were 3 you given in settlement of your DOL complaint?
4 A Program manager technically support PG8 in 5 Chattanooga.
6 Q That was the corporate office?
7 A Yes.
8 Q Is that similar to the position that you 9 were working in when you had been surplused in April 10 of 1993?
11 A Yes, it would be similar.
12 Q Okay. Were you given this position to 13 start on the date of the settlement agreement, or was 14 it retroactive?
15 A Well, I see here, in item 1, the salary 16 was retroactive to October 4th of '93.
17 Q What else did you receive in settlement of 18 your complaint?
19 A A lump sum payment in the gross amount of 20 8,000 in reimbursement for expenses incurred in 21 pursuing employment at other places. Also TVA would 22 restore 148 hours0.00171 days <br />0.0411 hours <br />2.44709e-4 weeks <br />5.6314e-5 months <br /> of annual leave to my account, and 23 would pay 3,600 dollars in full and final settlement 24 of all claims for attorneys fees, and costs incurred 25 in connection with the complaints and claims.
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2281 1 And as I recall, I think that is it.
2 Q Do you know whether the TVA Office of 3 Inspector General ever investigaTed your 1993 4 complaint?
5 A Yes, they did.
6 Q During that investigation did you provide 7 copies of the tape recordings that you had made, to 8 anyone, at TVA OIG?
9 A Yes, I did.
10 Q Who did you provide those tapes to?
11 A As I recall it was a Ms. Thomas.
12 Q For what purpose did you give her copies 13 of your tapes?
14 A Well, at her insistence, she wanted for 15 her investigation she wanted copies of everything that 16 I had with regard to the '93 case. And I was very 17 reluctant. And finally we reached an agreement 18 whereby I would take the tapes to an independent 19 party, they would then copy the tapes, and then I 20 would go there pick up my tapes, and forward the 21 copies on to -- somehow we got them to TVA's IG, Ms.
22 Thomas.
23 Q You stated that you were reluctant to turn 24 them over. Why?
25 A Well, as far as I was concerned they were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2282 1 pretty sensitive, as far as my future. I did not 2 really want word to get out that I had them. And I 3 felt like if it did, that that would certainly be a 4 detriment to my continued employment, to my future, to 5 my possibilities of advancement with TVA.
6 Q Did you put any conditions on the receipt 7 of those tapes by TVA OIG?
8 A That they not be disclosed to anyone else.
9 Q Did you give anyone from the IG's office 10 permission to share either your tapes, or the 11 transcripts of the tapes that you made, with anyone?
12 A I explicitly did not.
13 Q To your knowledge did the IG provide 14 either the tapes, or the transcripts, to anyone else 15 at TVA?
16 A Yes, they did.
17 Q Who did they provide them to?
18 A I have no idea who all they provided them 19 to. I know that at one time I was in a room where 20 Wilson McArthur was flipping through the transcript of 21 those tapes.
22 I also know on one occasion that Ben 23 Easley made mention of the fact that he had listened 24 to a portion of them.
25 ADMINISTRATIVE JUDGE YOUNG: Mr. Fiser, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2283 1 just to clarify something. You said that you put 2 these conditions on providing the tapes to OIG?
3 THE WITNESS: That is correct.
4 ADMINISTRATIVE JUDGE YOUNG: What is not 5 clear to me is what their response was to you, or Ms.
6 Thomas, I guess is the person you said you were 7 talking with?
8 THE WITNESS: That is correct. As I said 9 earlier, I was not willing to turn the tapes over to 10 her until I got a verbal agreement from her that, you 11 know, they were just to support her investigation, and 12 would be kept confidential.
13 And that was, as I recall, completely a 14 verbal agreement.
15 ADMINISTRATIVE JUDGE YOUNG: Between you 16 and her?
17 THE WITNESS: Yes, ma'am, that is correct, 18 Your Honor.
19 ADMINISTRATIVE JUDGE YOUNG: Thank you.
20 BY MS. EUCHNER:
21 Q I'm showing you what has been marked staff 22 exhibit 173 Do you recognize this document?
23 A Yes, I do.
24 Q What is it?
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2284 1 out.
2 MS. EUCHNER: I'm sorry, Your Honors.
3 (Pause.)
4 MS. EUCHNER: Does everyone have it now?
5 ADMINISTRATIVE JUDGE YOUNG: Yes.
6 BY MS. EUCHNER:
7 Q What is this document?
8 A This is a memorandum, or a letter, I guess 9 it is, that I received from Mr. Donald Hickman, 10 assistant Inspector General at TVA.
11 Q And what does this letter say about your 12 tapes?
13 A That he acknowledged, essentially in the 14 first paragraph, that I provided them. And he makes 15 this statement, we are aware that you reached a 16 conciliatory agreement with TVA in your case, and we 17 had not intended to use those tapes further.
18 Then in the next paragraph is, however, we 19 have determined the tapes contain information relevant 20 to litigation which is currently pending in a case 21 before an Administrative Law Judge at the Department 22 of Labor.
23 While we recognize the potential 24 sensitivity to you, of those tapes, we believe you 25 have an obligation to provide the tapes to the general NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2285 1 counsel's office, so that the general counsel can 2 determine their relevance to the DOL litigation.
3 And the next sentence is, as litigation 4 develops the GC may have to reveal the tapes through 5 the discovery process, or it may have to use them to 6 ensure the factual accuracy of statements made by 7 witnesses.
8 Consequently we are writing to inform you 9 that we are going to allow the GC, general counsel, to 10 make transcripts of the tape recordings you provided 11 to us during our investigation of your Section 211 12 complaint against TVA.
13 So basically what they did was, they said, 14 they knew it was a sensitive matter, they knew we had 15 this agreement, but they were letting me know, 16 essentially they had already released them, I think, 17 at that time.
18 Q Prior to sending you this letter, did 19 anyone from the IG's office either call you, or send 20 you a letter asking your permission to share the 21 tapes?
22 A No.
23 MR. MARQUAND: Objection, Your Honor, I 24 think that is a misleading question. The letter 25 indicates that this was a potential discovery matter.
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2286 1 His permission would not be required. TVA had a 2 discovery obligation that it was required to meet, and 3 was required to disclose those tapes in discovery.
4 And, in fact, the particular litigation 5 was with Bill Jocher, who was represented by Mr.
6 Fiser's attorney, who I presume also knew the tapes.
7 And for Mr. Fiser to somehow fault the IG for a 8 discovery request that came from Mr. Fiser's attorney, 9 certainly it seems to me is to mislead the Court.
10 CHAIRMAN BECHHOEFER: It is my impression 11 that even if the IG had to turn over tapes of this 12 sort, confidentiality could still be maintained.
13 And if they did not do so, that might be 14 a problem. I know in NRC discovery matters can be 15 made confidential.
16 MR. MARQUAND: That could be true.
17 CHAIRMAN BECHHOEFER: Or kept 18 confidential.
19 MR. MARQUAND: In that case Mr. Fiser's 20 attorney, as I -- I mean, he wasn't requesting that 21 these be made confidentially. Nor, and I think the IG 22 will be here, I don't believe there was, in fact, a 23 confidentiality provision, pursuant to the IG Act, 24 with respect to these tapes.
25 ADMINISTRATIVE JUDGE YOUNG: Aren't you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2287 1 making argument, more or less? What is the basis of 2 your objections to the question?
3 MR. MARQUAND: I'm saying that I think 4 this whole line of questioning is misleading, when Mr.
5 Fiser's attorney is the one who sent the discovery 6 requests in that required a consideration of whether 7 or not to release these tapes.
8 ADMINISTRATIVE JUDGE YOUNG: My question 9 is, what is the basis of your objection to the last 10 question, rather than just that the whole line of 11 questioning is misleading.
12 Because you can clarify anything that you 13 find to be misleading on cross examination.
14 MR. MARQUAND: I think it is misleading, 15 that is my objection.
16 MS. EUCHNER: I don't believe it is 17 misleading, being that Mr. Fiser testified that Ms.
18 Thomas and he had a verbal agreement that she would 19 not share the tapes with anyone.
20 And certainly I don't think it is 21 misleading to suggest that anyone from the IG should 22 have contacted Mr. Fiser and at least warned him that 23 his colleagues were going to be reading these tapes 24 and transcripts.
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2288 1 are getting into argument here.
2 CHAIRMAN BECHHOEFER: I think we will 3 overrule the objection.
4 BY MS. EUCHNER:
5 Q Now, you stated earlier that you were 6 reluctant to provide those tapes. I'm sorry, before 7 we go there --
8 MS. EUCHNER: Your Honors, I would like to 9 move Staff Exhibit 173 into evidence.
10 ADMINISTRATIVE JUDGE YOUNG: Any 11 objection?
12 MR. MARQUAND: No, I don't object.
13 CHAIRMAN BECHHOEFER: Absent objection 14 Staff 173 will be admitted.
15 (The document referred to, 16 having been previously marked 17 for identification as Staff 18 Exhibit No. 173 was received in 19 evidence.)
20 MS. EUCHNER: Thank you.
21 BY MS. EUCHNER:
22 Q Now, you stated earlier that you were 23 reluctant to provide them because you were concerned 24 that if they got out it might cause you a problem for 25 future TVA employment.
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2289 1 And I believe you mentioned two people who 2 you knew had either heard the tapes or seen the 3 transcripts. Who were those two people?
4 A Well, I know that Dr. McArthur, Wilson 5 McArthur, was reviewing the transcripts in my 6 presence. And Ben Easley, also, made mention of the 7 fact that he had heard portions of the tapes.
8 I think that is correct, or he might have 9 heard feedback from portions of the tape, one of the 10 two.
11 Q What is the date on the letter that the IG 12 sent to you?
13 A August the 10th, 1994.
14 Q During that time frame was the corporate 15 chemistry program undergoing a reorganization?
16 A I'm trying to remember. There was a time, 17 soon after I got into the group, that we did go 18 through a reorganization. And it was approximately 19 this time.
20 MS. EUCHNER: We are going to TVA exhibit 21 24, and page 4 of that document, HHOO004. And for the 22 record this is the memo with the interview schedule 23 for the 1994 chemistry and environmental 24 reorganization.
25 (Pause.)
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2290 1 BY MS. EUCHNER:
2 Q According to this document on what date 3 did you interview for the chemistry and environmental 4 program manager position?
5 A On page H00004 I think it states that that 6 was September the 22nd of 1994.
7 Q So it was approximately a month and a half 8 after you received the letter from the IG's office 9 stating that they were going to reveal your tapes?
10 A That is correct.
11 Q I believe you stated that the position you 12 got in the 1994 settlement agreement was a corporate 13 chemistry program manager position, is that correct?
14 A That is correct.
15 Q Upon your return to the corporate offices 16 who was your supervisor?
17 A Mr. Ron Grover.
18 Q Had you worked for Mr. Grover before?
19 A Never.
20 Q In the 1994 reorganization were you 21 required to compete for a new position?
22 A Yes, I was.
23 Q What position did you have to compete for?
24 A It was another program manager PG8 job.
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2291 1 functions in environmental.
2 Essentially it was the same job plus some 3 environmental functions.
4 MS. EUCHNER: Is there a copy of this for 5 the witness, do you have extra copies of it?
6 MR. MARQUAND: They were there yesterday.
7 MS. EUCHNER: We are going to TVA 117.
8 And, just for the record, these are dated 6-16-94.
9 (Pause.)
10 BY MS. EUCHNER:
11 Q Mr. Fiser, do you recognize this document?
12 A Yes, I do.
13 Q What is it?
14 A It would be a page out of my Franklin 15 planner.
16 Q And the notes on the right side of this 17 page, those are your notes?
18 A Yes, they are.
19 Q I would like you to look at note number 2.
20 A Okay.
21 Q I believe it starts with Ron Grover?
22 A Correct.
23 Q And I have a couple of questions about 24 that. First, it states that Ron expressed concerns 25 that if I participate in the interviews, that someone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2292 1 may tell him not to keep me in the reorg.
2 Do you recall having that discussion with 3 Mr. Grover?
4 A Let me take a look at this. Just a 5 moment.
6 (Witness reviews document.)
7 THE WITNESS: Okay.
8 BY MS. EUCHNER:
9 Q Well, first let's start with the article 10 that these notes mentioned.
11 Do you recall what article you and Mr.
12 Grover were discussing?
13 A Yes, I do. There was an investigative 14 reporter that worked for the newspaper in Dayton, 15 Tennessee, that was doing a story on, essentially, the 16 main thrust of it was the demise of Mr. Bill Jocher, 17 and of some things dealing with my demotion, as well, 18 that occurred in 1992 and 3.
19 And he had contacted me, said he was 20 writing the article, and this was all by phone, as I 21 recall. And just had some questions about what had 22 taken place.
23 Q Did Mr. Grover indicate that he had read 24 the article?
25 A I don't recall him saying he had read it.
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2 293 1 But he had certainly heard about it through somebody, 2 if he had not read it.
3 It is entirely possible he had read it, 4 because in those days --
5 MR. MARQUAND: Objection, I think the 6 witness is testifying to speculation. I think the 7 question was, had he read it? And he says, I don't 8 know. It is possible he had.
9 THE WITNESS: It is entirely possible that 10 he had read it, because in that day --
11 MR. MARQUAND: That doesn't answer the 12 question.
13 ADMINISTRATIVE JUDGE YOUNG: If you want 14 to rephrase, in terms of establishing a foundation for 15 whether he knows anything, and then if so what the 16 basis for it is.
17 BY MS. EUCHNER:
18 Q Did Mr. Grover state that he had read the 19 article?
20 A Let me read this note again and see if I 21 can pick that out.
22 (Witness reviews document.)
23 THE WITNESS: I cannot categorically state 24 that he had read it. He may have just heard about it.
25 I don't think I can factually answer that question.
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2294 1 He was certainly aware of it.
2 BY MS. EUCHNER:
3 Q He was aware of it. I put in front of you 4 Staff Exhibit 108. Do you recognize that document?
5 A Not off the bat, let me take a look at it.
6 (Witness reviews document.)
7 THE WITNESS: Yes, I do recognize it. I 8 think this is probably the article that we are talking 9 about. Now, as I recall, I think there was more than 10 one, but I'm not absolutely sure of that.
11 BY MS. EUCHNER:
12 Q But this article discusses your 1993 DOL 13 complaint?
14 A Yes, it does.
15 Q And what is the date on that article?
16 A The date, well at the top of the page it 17 says 6-12-94. Now, let me see if --
18 CHAIRMAN BECHHOEFER: Is that the right 19 number?
20 MS. EUCHNER: 108, yes.
21 CHAIRMAN BECHHOEFER: Sorry.
22 THE WITNESS: I guess we will have to go 23 by the date at the top of the page, because I do not 24 see a date line on the article, stating when it was 25 written. But certainly that is in agreement with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2295 1 dates, in good agreement with the dates in my day 2 planner, yes.
3 MS. EUCHNER: Your Honors, I would move 4 Staff Exhibit 108 into evidence.
5 MR. MARQUAND: Your Honors, I object to 6 its relevance. Mr. Grover testified yesterday that he 7 did not discuss an article with Mr. Fiser. Mr.
8 Fiser's testimony this morning was, this is probably 9 the article that Mr. Fiser is referring to in these 10 notes.
11 But I still don't see the relevance. It 12 certainly wasn't disclosed to us by the Staff in 13 discovery as the basis for any discrimination, or the 14 basis for anybody's knowledge of any protected 15 activity.
16 So I fail to see its relevance.
17 MS. EUCHNER: Your Honors, this is not 18 news to TVA. We questioned both Mr. McGrath and Mr.
19 McArthur in their depositions about it, and we cited 20 it as an exhibit to our response to their Summary 21 Judgement brief. So this is not news to them that we 22 are using it.
23 MR. MARQUAND: No, it is not news to us, 24 we've seen this before, and Counsel says it was 25 disclosed to Mr. McGrath. If she is going to assert NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2296 1 that on the record, testify, I would like to see that.
2 But, as I said, I don't see that this 3 discloses or proves their case. It is not relevant to 4 anything, it doesn't disclose protected activity, it 5 doesn't show knowledge by anyone.
6 ADMINISTRATIVE JUDGE YOUNG: Well, let me 7 stop you there. Haven't you been raising the issue of 8 who knew what when, and how much weight it should be 9 given on the issue of who knew what about this 1993 10 situation may be open for argument.
11 But it, an article in a newspaper would 12 seem to be relevant to whether someone might know, or 13 not know, the facts addressed in the article, whether 14 or not they were characterized correctly.
15 MR. MARQUAND: I agree, bargaining unit 16 this witness couldn't testify whether somebody picked 17 up that newspaper, or even looked at the Dayton Herald 18 News. That is not Dayton, Ohio, that is Dayton, 19 Tennessee.
20 ADMINISTRATIVE JUDGE YOUNG: I understand, 21 I grew up near Dayton.
22 MR. MARQUAND: And, I mean, the person to 23 ask would be Mr. McGrath who said I never read the 24 Dayton Herald. And he said that on the stand. It is 25 not relevant to anything.
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2297 1 CHAIRMAN BECHHOEFER: The Board will admit 2 Staff 108, but we will take into account the objection 3 in terms of the weight we give it.
4 (The document referred to, 5 having been previously marked 6 for identification as Staff 7 Exhibit No. 108 was received in 8 evidence.)
9 MS. EUCHNER: Thank you, Your Honor.
10 BY MS. EUCHNER:
11 Q Now, to go back to TVA exhibit 117, the 12 day planner notes. Under note number 2, I believe it 13 is the third line down, it says: Ron expressed 14 concerns that if I participate in the interviews, that 15 someone may tell him not to keep me in the reorg. He 16 said nothing had come down like that, yet, but it 17 could happen.
18 Do you recall that portion of the 19 conversation?
20 A Yes, I do.
21 Q And what was he referring to, when he told 22 you that?
23 A Well, he was referring to participating in 24 the interviews with the writer of this article. And 25 I have, to my knowledge, at that time I had never read NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2298 1 the Dayton Herald News, either. But I had seen 2 numerous clippings passed around TVA management for 3 review and signature of innumerable articles like 4 this, and similar.
5 So you don't have to take the Dayton 6 Herald News to read this article. All you have to do 7 is look in your inbox at TVA.
8 Q So TVA had some sort of standard 9 procedure, where they would clip relevant articles, 10 and --
11 MR. MARQUAND: Objection, leading.
12 THE WITNESS: That is correct.
13 MR. MARQUAND: Move to strike.
14 ADMINISTRATIVE JUDGE YOUNG: Rephrase.
15 CHAIRMAN BECHHOEFER: Could you rephrase 16 that?
17 MR. MARQUAND: Now that the witness knows 18 the answEer to the question.
19 MS. EUCHNER: I believe he had already 20 stated it before I asked the question, Counsel.
21 BY MS. EUCHNER:
22 Q When you were at TVA did you ever see 23 anything that was a compilation of newspaper articles?
24 A Yes.
25 Q What kind of document was that?
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2299 1 A It was a reproduction of the various 2 articles dealing with issues important to TVA, 3 important to nuclear power, that were in various 4 newspapers around the country, nationally, or locally.
5 ADMINISTRATIVE JUDGE YOUNG: Or what?
6 THE WITNESS: Nationally or locally.
7 ADMINISTRATIVE JUDGE COLE: So this was 8 the news clipping service?
9 THE WITNESS: I assume that it was. But 10 I remember I would have to sign, or initial by my name 11 and pass it on to the next guy. It received wide 12 distribution in TVA management.
13 ADMINISTRATIVE JUDGE YOUNG: So that, I'm 14 not clear, each individual article was circulated 15 separately, or there was a notebook of them?
16 THE WITNESS: There would be like a paper 17 clip with maybe 5 to 30 articles, you know, they would 18 just clip them out every week or so.
19 ADMINISTRATIVE JUDGE YOUNG: And you were 20 on the routing list as the chemistry manager?
21 THE WITNESS: Yes, Your Honor.
22 ADMINISTRATIVE JUDGE YOUNG: So the 23 notebook that you were referring to, I'm not clear 24 what you meant.
25 THE WITNESS: The note --
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2300 1 ADMINISTRATIVE JUDGE YOUNG: I thought you 2 said something about a notebook containing these.
3 THE WITNESS: It would probably just be a 4 memorandum, a routing slip, with one of those monster 5 paper clip things clipped to the articles, and they 6 would just send them around to --
7 ADMINISTRATIVE JUDGE YOUNG: Did I 8 misunderstand, did you not say notebook?
9 THE WITNESS: I did. I don't recall 10 notebook being mentioned, no. Just one of those huge 11 paper clips would be attached to it, as I recall.
12 BY MS. EUCHNER:
13 Q Now, the note says that Ron's concerns 14 were that someone may tell him not to keep me in the 15 reorganization. Did he identify any particular 16 individuals about whom he had that concern?
17 A He did not elaborate, as I recall, no.
18 And it might have been just a concern that he had, 19 just advising me to really think about this, and 20 whether I want to participate, because of the adverse 21 publicity within TVA.
22 Again, my reason, and I think I stated 23 that to him, my reason for wanting to talk to the 24 fellow, the newspaper reporter, in the first place, 25 was to make sure that whatever they were going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2301 1 write was factual, because there were times when it 2 might not be.
3 And at least if they were going to write 4 something I wanted it to be factual.
5 ADMINISTRATIVE JUDGE YOUNG: So the 6 reference there, participate in the interviews, you 7 are saying you were referring to the newspaper 8 interviews, not the interviews for the job?
9 THE WITNESS: That is correct, Your Honor.
10 ADMINISTRATIVE JUDGE YOUNG: Okay, I 11 misunderstood that.
12 MS. EUCHNER: Your Honors, I would like to 13 move TVA exhibit 117 into evidence.
14 MR. MARQUAND: No objection.
15 CHAIRMAN BECHHOEFER: Without objection it 16 will either be entered the first time, or the second 17 time, whatever, it is admitted.
18 (The document referred to, 19 having been previously marked 20 for identification as TVA 21 Exhibit No. 117 was received in 22 evidence.)
23 BY MS. EUCHNER:
24 Q Did you interview for a position in the 25 1994 reorganization?
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2302 1 A That is correct.
2 Q Who did you interview with?
3 A As I recall, at that time, the members of 4 the selection board, it was comprised of the three 5 chemistry managers at Watts Bar, Sequoyah, Browns 6 Ferry, and also we had a personnel rep that was, I 7 think it was Ben Easley.
8 And also, as I recall, I think it was also 9 Ron Grover.
10 Q Do you recall who the chemistry managers 11 at Watts Bar, Sequoyah, and Browns Ferry were at that 12 time?
13 A Yes, I do.
14 Q Who were they?
15 A That would be John Sabados, at Browns 16 Ferry; Gordon Rich, at Sequoyah; and Dave Voeller at 17 Watts Bar.
18 Q Do you recall whether or not Dr. McArthur 19 was on that selection review board?
20 A I do not think he was, no.
21 Q Who was the selecting official for those 22 chemistry and environmental positions?
23 A I think that would be Ron Grover.
24 Q Were you selected for a position?
25 A Yes, I was.
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2303 1 Q What position were you selected for?
2 A That would be program manager, PG8, 3 Sequoyah chemistry and environmental.
4 Q Sequoyah chemistry or --
5 A I'm sorry, chemistry and environmental, I 6 should say.
7 CHAIRMAN BECHHOEFER: At Sequoyah?
8 THE WITNESS: No, sir. I misstated that, 9 it was at corporate. It was a corporate program 10 manager, PG8 chemistry and environmental. These 11 titles change so often it is hard to keep them 12 straight.
13 MS. EUCHNER: We are now going to go to 14 Staff Exhibit 43, which is in volume 3.
15 (Pause.)
16 BY MS. EUCHNER:
17 Q This is Staff Exhibit 43, which I believe 18 has already been entered into evidence.
19 Do you recognize this document?
20 A Yes, I do.
21 0 What is it?
22 A According to the title is the position 23 description for the chemistry and environmental 24 protection senior program manager.
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2304 1 issued after you were selected for that position in 2 1994?
3 A I think that is correct, yes.
4 Q For the 1994 reorganization did you file 5 a DOL complaint because you were required to compete 6 for a position?
7 A No, I did not.
8 Q Why not?
9 A It appeared to me that the position was in 10 fact changing. We were adding functions to that 11 position that we were not doing in the past. The 12 environmental function, specifically.
13 So, again, it appeared that they were 14 adding responsibility to the position, and therefore 15 you would need to post and interview to fill the 16 position with the new requirements.
17 It appeared to be completely legitimate, 18 as far as I could tell.
19 Q Was anyone who was involved with your 1993 20 complaint involved in the selection process in 1994?
21 A As I recall, no, they were not.
22 Q After the 1994 reorganization did Mr.
23 Grover remain your supervisor?
24 A Yes, he did.
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2305 1 43 is not already in, I would like to enter it into 2 evidence.
3 ADMINISTRATIVE JUDGE COLE: I think NRC 43 4 was admitted.
5 MS. EUCHNER: We are now going to Joint 6 42.
7 (Pause.)
8 BY MS. EUCHNER:
9 Q I believe Joint 42 is also already 10 admitted into evidence.
11 Mr. Fiser, do you recognize this document?
12 A Yes, I do.
13 Q What is it?
14 A It is a position description for the 15 chemistry and environmental protection program 16 manager.
17 Q What is the date on this document?
18 A The effective date is July 24th, 1994.
19 Q Do you recall whether you had to compete 20 to get this position?
21 A Hold on a second and let me take a look at 22 this. I don't even remember this one.
23 (Witness reviews document.)
24 THE WITNESS: I don't remember competing 25 to get this position, no.
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2306 1 MR. MARQUAND: If counsel would like we 2 could stipulate that this was not advertised, or 3 competed.
4 THE WITNESS: I can't even remember it, to 5 tell you the truth.
6 MS. EUCHNER: Counsel will stipulate that 7 this position was not competed.
8 I would now like to show you Staff Exhibit 9 46.
10 (Pause.)
11 BY MS. EUCHNER:
12 Q You stated, a few moments ago, that after 13 the 1994 reorganization, that Mr. Grover remained your 14 supervisor. Is that correct?
15 A That is correct.
16 Q As your supervisor did he ever do any 17 performance appraisals for you?
18 A Yes, he did.
19 Q You have in front of you Staff Exhibit 46.
20 Can you please identify what that document is?
21 A That would be a performance review and 22 development plan.
23 Q What is the date on it?
24 A It was signed, date discussed, down there, 25 would be October 24th, 1994.
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2307 1 Q And do you recognize whose initials those 2 are above the date?
3 A Yes.
4 Q Whose initials are they?
5 A It appears to be Ron Grover.
6 Q I would like you to turn to the last page 7 of that document.
8 A Okay.
9 Q What does the summary evaluation say?
10 A It says: Gary's overall performance has 11 been very good during the reporting period, has high 12 level of involvement with the Watts, WBN, that is 13 Watts Bar chemistry program, and has been a key factor 14 in its recent improving trend.
15 He has made significant contribution 16 during the critical phase of operational readiness, 17 has been very involved in working with technicians and 18 chemistry staff personnel on a professional, sorry, on 19 a personal basis to improve performance.
20 Q Now, if you could go back two pages to 21 page that I believe at the bottom is going to read 22 page 5.
23 What overall performance rating did Mr.
24 Grover give you during this appraisal period?
25 A I guess that would be the box marked X, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2308 1 where it says meets.
2 Q Is there a numerical value that he also 3 assigned?
4 A Yes, a 3.4.
5 MS. EUCHNER: Your Honors, I would move to 6 have Staff 46 entered into evidence.
7 ADMINISTRATIVE JUDGE YOUNG: Any 8 objection?
9 MR. MARQUAND: No objection.
10 CHAIRMAN BECHHOEFER: Without objection 11 Staff Exhibit 46 will be admitted.
12 (The document referred to, 13 having been previously marked 14 for identification as Staff 15 Exhibit No. 46 was received in 16 evidence.)
17 MS. EUCHNER: I would like you now to turn 18 to Staff Exhibit 47.
19 (Pause.)
20 BY MS. EUCHNER:
21 Q Do you recognize this document?
22 A Yes, it is another performance review and 23 development plan.
24 Q What is the date on this plan?
25 A The date discussed was October 30th, 1995.
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2309 1 Q And do you recognize the initials above 2 that date?
3 A Yes, I do.
4 Q Whose initials are they?
5 A Ron 0. Grover.
6 Q And, again, I would like you to turn to 7 the last page.
8 A Okay.
9 Q What does the overall summary evaluation 10 state?
11 A I think the first word has a hole punched 12 through it. I think that was my name. So it would 13 probably start out and read: Gary's overall 14 performance continues to be very good. His, another 15 hole, ICAGGR, I'm sure his progressive, I'm guessing, 16 approach towards his job has been evident in the 17 chemistry program turnaround, at both WBN, Watts Bar, 18 and SQN, Sequoyah.
19 He has worked very well with all the 20 staffs, and is very dependable in the follow-up of 21 items they request of him, his in-depth knowledge and 22 understanding of site operational chemistry has proven 23 to be a key attribute for our staff in assisting the 24 sites.
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2310 1 two pages. What was the overall rating that Mr.
2 Grover gave you in this appraisal?
3 A The rating was meets.
4 Q And was there a numerical value assigned 5 to that?
6 A Yes.
7 Q What was it?
8 A It was 3.35.
9 MS. EUCHNER: Your Honors, I move to have 10 Staff Exhibit 47 entered into evidence.
11 MR. MARQUAND: No objection.
12 CHAIRMAN BECHHOEFER: Without objection 13 Staff Exhibit 47 will be admitted.
14 (The document referred to, 15 having been previously marked 16 for identification as Staff 17 Exhibit No. 47 was received in 18 evidence.)
19 CHAIRMAN BECHHOEFER: Mr. Fiser, does the 20 3.4 on the 10-24 appraisal, 10-24-94 appraisal, and 21 the 3.35 on the October 30th, '95 appraisal, is that 22 a significant difference, or something else?
23 THE WITNESS: I would have to answer, Your 24 Honor, that it was not a significant difference. The 25 reason I would say that is because of, in my comments, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2311 1 in discussing the review, in both reviews, there was 2 nothing but praise and thanks for the job that I was 3 doing.
4 So there was nothing communicated to me 5 that would indicate that there was any problem 6 whatsoever.
7 CHAIRMAN BECHHOEFER: Thank you.
8 BY MS. EUCHNER:
9 Q During the time period covered by these 10 two performance appraisals, was either Dr. McArthur or 11 Mr. McGrath in your supervisory chain of command?
12 A No, they were not.
13 Q Now, the two position descriptions that we 14 looked at were for chemistry and environmental 15 protection program managers. During that time did you 16 perform environmental duties?
17 A That I recall, never, at one time did we 18 perform environmental duties. We still, at that time, 19 had personnel on staff, Deidra Nida, who was 20 performing those functions.
21 Q When Mr. Grover was out of the office did 22 he ever ask you to sit in on meetings on his behalf?
23 A Yes, he did.
24 Q What kind of meetings would he ask you to 25 sit in on?
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23 12 1 A Well, they would be varied meetings. I 2 remember one in particular, that was a meeting of the 3 RADCHEM managers at the various sites.
4 Q Who were the three RADCHEM managers at the 5 sites, at that time?
6 A At Sequoyah it would have been Mr. Charles 7 Kent, at Browns Ferry it would have been Mr. John 8 Corey, and at Watts Bar it would have been Mr. Jack 9 Cox.
10 Q Now, you mentioned there was one 11 particular meeting that you recalled. Why do you 12 recall that meeting?
13 A It was a meeting that took place at 14 Sequoyah, and by virtue of that fact, mister --
15 ADMINISTRATIVE JUDGE YOUNG: Excuse me, 16 did you say a date?
17 MS. EUCHNER: Not yet.
18 ADMINISTRATIVE JUDGE YOUNG: Okay. Go 19 ahead.
20 BY MS. EUCHNER:
21 Q Go ahead.
22 A By virtue of the fact that it was at 23 Sequoyah, as I recall, Mr. Charles Kent was in charge 24 of, or taking the lead in that meeting. And basically 25 what I was there to represent Ron, and to take notes, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2313 1 and report back to him any assignments or communicate 2 any issues to him that these guys wanted him to be 3 aware of.
4 Q Do you recall when this meeting was?
5 A No, I'm sorry, I do not.
6 ADMINISTRATIVE JUDGE YOUNG: Do you 7 remember the year, or the general, what position you 8 were in, or --
9 THE WITNESS: I think that it was -- I'm 10 going to guess it was in 1995, could have been 1996, 11 I can't really state that unequivocally.
12 ADMINISTRATIVE JUDGE YOUNG: That is okay.
13 BY MS. EUCHNER:
14 Q Did you attend the entire meeting?
15 A No.
16 Q Why not?
17 A I was asked to leave.
18 Q Who asked you to leave?
19 A As I recall it was Mr. Kent. At one point 20 in the meeting, very late in the meeting, it was about 21 over, there was a private conversation between, as I 22 recall, between Mr. Kent and Mr. Corey.
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2314 1 point.
2 Q After the meeting did you discuss this 3 with Mr. Grover?
4 A Oh, yes, as soon as he got back I recall 5 sitting down with him and just debriefing him on the 6 various things discussed during the meeting, since 7 that was what he wanted me to do, was represent him 8 and report back. I did that.
9 Q Did you tell him that Mr. Kent had asked 10 you to leave?
11 A Yes, and I told him, you know, obviously 12 something went on, I had no idea what it was about.
13 But I said, you know, after I finished debriefing him 14 on the meeting I said, you will need to contact these 15 guys to find out if there is anything else you need to 16 know about what was discussed in my absence, because 17 I could not, of course, report anything to him about 18 the portion of the meeting where I was not in 19 attendance.
20 Q Now, to go back to the meeting, you said 21 the three site RADCHEM managers were there, Mr. Kent, 22 Mr. Corey, and Mr. Cox. Do you recall whether Dr.
23 McArthur was there as well?
24 A No, I do not.
25 Q You don't recall?
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2315 1 A I do not recall. I don't think he was 2 there, no. As a matter of fact I'm not sure even if 3 Mr. Cox was there. He may have been there, but if he 4 was, he was awfully quiet.
5 Q After you told Mr. Grover what had gone on 6 at the meeting, including the fact that he would have 7 to ask the other RADCHEM managers what happened after 8 you left, do you know whether he talked to any of the 9 RADCHEM managers?
10 A I do. Some time later, I don't know if it 11 was a few days or what, I just made mention of the 12 fact, to remind him, basically. I was afraid he had 13 forgotten to call. I just said, were you able to get 14 in contact with them, Kent, Corey, whoever, to find 15 out the information? And he said, yes he was, and 16 that that was taken care of, and that that was okay.
17 Q Do you know whether he asked anybody why 18 you were excluded from the meeting at a certain point?
19 A I recall that --
20 MR. MARQUAND: Objection, the question 21 calls for a yes or no answer.
22 THE WITNESS: Yes.
23 BY MS. EUCHNER:
24 Q What did Mr. Grover tell you?
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2316 1 not mention what the areas were they discussed, but he 2 just said that they made reference to the fact that, 3 due to the fact that they were discussing sensitive 4 matters, they did not want me in there, since they 5 were aware that I had tape recorded some conversations 6 in the past.
7 Q Did he tell you who specifically stated 8 that that was the reason you were asked to leave?
9 A As I recall he called Charles Kent, as I 10 recall. You know, it is possible he called John 11 Corey. Certainly one of those two. But since I had 12 told him that Charles chaired the meeting, and Charles 13 was the one who asked me to leave, I'm fairly certain 14 that he called Charles.
15 MR. MARQUAND: Objection, lack of 16 foundation. It sounds like he is speculating, as 17 opposed to saying what Grover told him.
18 MS. EUCHNER: I believe he is stating what 19 he recalls that Mr. Grover told him.
20 MR. MARQUAND: Well, the question wasn't 21 framed in terms, did he say who he called, or who he 22 said he called. It was do you recall. And he is only 23 speculating, at least that is the way the answer 24 appears. And I object and move to strike.
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2317 1 asked what was said, and what he heard.
2 BY MS. EUCHNER:
3 Q Do you recall what Mr. Grover told you, 4 specifically?
5 A Yes, I do.
6 Q What did Mr. Grover tell you?
7 A He told me that the reason I was asked to 8 leave was because of the fact that they were aware 9 that I had tape recorded conversations in the past.
10 Q Now, did he state, to your memory, who it 11 was that told him that?
12 A I cannot state that unequivocally. It was 13 my understanding that he had called --
14 MR. MARQUAND: Objection.
15 THE WITNESS: Charles Kent.
16 ADMINISTRATIVE JUDGE YOUNG: Before you 17 give that kind of information, Counsel, you need to 18 establish a foundation.
19 CHAIRMAN BECHHOEFER: Yes, that is what I 20 was about to say.
21 BY MS. EUCHNER:
22 Q What was your understanding based on, that 23 he had spoken to Charles Kent?
24 A Well, I had suggested that he call 25 Charles, since Charles was the one in charge of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2318 1 meeting.
2 Q Do you know for a certainty that that is 3 who he spoke to?
4 A Like I said, it has been too many years, 5 I cannot state that unequivocally.
6 Q Now, you testified earlier that during the 7 time period of the two performance appraisals that Mr.
8 Grover wrote for you, that Mr. McGrath was not in your 9 supervisory chain of command.
10 When did he become in your supervisory 11 chain of command?
12 A Let's see, our manager, Mr. Don Moody, 13 came down with cancer and was receiving cancer 14 treatments. And at that time they placed Mr. McGrath 15 in his position, temporarily, until he could get his 16 treatments. And I can't remember the exact date that 17 that happened.
18 Q Do you know an approximate time?
19 A It seems like it was 1996.
20 Q Could it have been late 1995?
21 A It could have been. I just can't remember 22 exactly the time that Mr. Moody was diagnosed with 23 cancer.
24 Q At some point did you learn that the 25 corporate organization was going to reorganize?
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2319 1 A Yes, I did.
2 Q Who, initially told you that?
3 A As I recall I was in a staff meeting 4 conducted by Ron Grover.
5 Q Do you know approximately when the staff 6 meeting waLs?
7 A Approximately spring of '96.
8 Q In that first staff meeting, what did Mr.
9 Grover -- do you need a break?
10 A Yes, I think that I need to get something 11 to drink.
12 Q Okay.
13 A I'm getting a little dry.
14 ADMINISTRATIVE JUDGE YOUNG: That is fine.
15 (Whereupon, the above-entitled matter 16 went off the record at 10:30 a.m. and 17 went back on the record at 10:50 a.m.)
18 CHAIRMAN BECHHOEFER: Back on the record.
19 BY MS. EUCHNER:
20 Q As I recall you stated, just before we 21 took a break, that you learned of the 1996 22 reorganization some time during the spring of 1996, is 23 that correct?
24 A As I recall, that is correct.
25 Q Do you recall what month?
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2320 1 A I have a note of it in my day planner, for 2 sure. I could only guess in the April time frame.
3 But that is, like I say, a guess.
4 MS. EUCHNER: We are going to go to TVA 5 exhibit 119.
6 CHAIRMAN BECHHOEFER: TVA 119?
7 MS. EUCHNER: Yes. I believe that is one 8 of the single sheets from Mr. Fiser's day planner.
9 (Pause.)
10 BY MS. EUCHNER:
11 Q Do you recognize this document, Mr. Fiser?
12 A Yes, I do.
13 Q What is it?
14 A This is a note I was referring to, I had 15 mentioned that it was approximately in April, and this 16 is dated March the 25th of 1996.
17 Q Does one of those notes relate to your 18 staff meeting with Mr. Grover about the 19 reorganization?
20 A Yes, it does, the second note makes 21 mention of the staff meeting I was referring to.
22 Q Can you please read what that note says?
23 A Yes, I can. It says: Shimberger, I don't 24 recall who that is, Shimberger is checking out this 25 week a list of required courses TVAU --
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1 ADMINISTRATIVE JUDGE YOUNG: What is the 2 U?
3 THE WITNESS: TVA University. I can't 4 remember what it is now. It is a way to --
5 ADMINISTRATIVE JUDGE YOUNG: That is okay, 6 I just wanted to know what U stood for.
7 THE WITNESS: Okay. We have to complete 8 the budget for fiscal year '97, and Ron stated that 9 there was going to be a 15 percent reduction, to a 17 10 percent reduction. And, of course, that would be the 11 budget for fiscal year '97, 2001.
12 And a 40 percent reduction by 2001, that 13 is what that note says. So 15 percent fiscal year 14 '97, or 15 to 17 in fiscal year '97, but by 2001 they 15 wanted us at a 40 percent reduction in our budget.
16 CHAIRMAN BECHHOEFER: Is that 17 percent?
17 THE WITNESS: Yes, Your Honor, that is.
18 Okay, let me restate this.
19 It says we have to complete the budget.
20 Fiscal year '97 15 percent reduction to 17 percent 21 reduction. I understand that that is all that is 22 being required. 2001 40 percent reduction.
23 I have to take a look at some of my 24 symbols. I use shorthand, and it has been so long now 25 I have to remember what I wrote. Let me take a look NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2322 1 at this, just a second.
2 (Witness reviews document.)
3 THE WITNESS: Okay, let me read on. He 4 wants to summarize plans for 17 percent reduction in 5 1997, and 40 percent reduction for 2001. Summarize 6 first cut by Monday, identify our mission, primary 7 functions, what we must do, as a minimum.
8 A number of people, and hang on one 9 second, let me take a look at this.
10 (Witness reviews document.)
11 THE WITNESS: Let me start reading again, 12 on the third line there.
13 He wants to summarize plans for 17 percent 14 reduction in '97, and 40 percent reduction in 2001.
15 Summarize first cut by Monday, identify our mission, 16 primary functions, what we must do as a minimum, 17 number of people, and the level that they should be 18 at, all in bullets; address safety, reliability, 19 regulatory, maintain proper technical expertise, 20 establish developmental positions within the 21 organization.
22 We are not -- we are not policemen, don't 23 do their, obviously I left something out there; 24 combine Wilson and Ron, combine RADCON and chemistry, 25 separate steam generator organization.
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2323 1 As I recall that is some of the direction 2 Ron was receiving from Mr. McGrath. And he was 3 relating to us what he was being asked to do, as I 4 recall.
5 BY MS. EUCHNER:
6 Q Now, these notes indicate that he wanted 7 you to address certain issues, safety, reliability.
8 Was he asking his staff to start up with what kind of 9 plans that they would need, what the chemistry and 10 environmental organization was going to need?
11 A At one point he did. I can't remember, 12 specifically, if it was at this time or if he was just 13 relating to us the direction he was receiving, so that 14 we would be aware of it.
15 But at one point we were asked to get 16 pretty deeply involved in coming up with the plans for 17 how we would meet the objective of the 15 to 17 18 percent reduction in our budget for '97, as well as 19 eventually leading into the 40 percent reduction for 20 2001.
21 I can't remember if it was specifically 22 here, or if he just said, just wanted you guys to know 23 where we are headed, what we are being asked to do, 24 had a staff meeting to inform us of that.
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2324 1 to at this time develop that plan. But he was under 2 a pretty short clock, because he had to summarize his 3 first cut, I'm taking that to be the 15 to 17 percent 4 reduction for fiscal year '97, by Monday, which was, 5 I take it, one week from this day.
6 Q Now the last line of this note says 7 combine Wilson and Ron, combine RADCON and chemistry.
8 Do you recall whether he stated in any greater detail 9 than what you have in this note?
10 A Not that I recall, no.
11 MS. EUCHNER: Your Honors, I would move 12 TVA exhibit 119 into evidence.
13 MR. MARQUAND: No objection.
14 CHAIRMAN BECHHOEFER: TVA 119 will be 15 admitted.
16 (The document referred to, 17 having been previously marked 18 for identification as TVA 19 Exhibit No. 119 was received in 20 evidence.)
21 ADMINISTRATIVE JUDGE YOUNG: One thing, 22 before we move on from that, that I would like to 23 clarify, separate steam generator organization. Do 24 you recall what you meant by that, in the context of 25 the reorganization?
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2325 1 THE WITNESS: It was a mention of the fact 2 that evidently the steam generator organization was 3 combined at that time with some other organization.
4 I don't even recall what it was.
5 But they were going to have a separate 6 organization for the steam generator group. That is 7 as I recall it.
8 MR. MARQUAND: Your Honor, I was going to 9 state that when he read the note to us he pronounced 10 the word as a noun, and when you pronounced the word, 11 when you asked him the question, you pronounced it as 12 a verb.
13 I heard him say separate as a noun, as 14 opposed to separate as a verb.
15 THE WITNESS: Well, I think that is 16 correct.
17 ADMINISTRATIVE JUDGE YOUNG: Whichever it 18 is, I just wasn't clear on what was meant by that.
19 But if you don't remember it, don't --
20 THE WITNESS: Yes, as I recall, it is just 21 as Counsel has stated, the statement was that there 22 was going to be a separate steam generator group. I 23 don't recall separate from what.
24 MS. EUCHNER: We are now going to go to 25 TVA exhibit 116.
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2326 1 (Pause.)
2 BY MS. EUCHNER:
3 Q Mr. Fiser, do you recognize this document?
4 A Yes, I do.
5 Q What is it?
6 A It would be another page out of my 7 Franklin planner for March the 29th.
8 Q Of 1996?
9 A Of '96, correct.
10 Q Do any of the notes on this page reflect 11 discussions with anyone about the 1996 reorganization?
12 A Yes, they do.
13 Q Which ones?
14 A The third one, the fourth one, and it 15 looks like possibly the fifth one.
16 Q Let's start with the third one. Could you 17 read that, please?
18 A Yes. It says: Ron Grover met with 19 Chandra, Sam, Deidra, Tresh, and me. He said that 20 everything budget-wise was up in the air. He advised 21 Chandra, Sam and me, to get involved with RADCHEM 22 managers, and have them talk with the VPs (Ike) and 23 have the VPs call McGrath, and help us keep McGrath 24 from slashing our group.
25 Q Okay. Well, first, just for the record, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2327 1 who is Chandra?
2 A That is Dr. ES Chandrasekaran, and he was 3 one of the chemistry and environmental specialists.
4 Q Sam?
5 A One of the PG8 chemistry and environmental 6 specialists.
7 Q And that is Sam Harvey?
8 A That is correct.
9 Q Deidra?
10 A Deidra was, as I had said earlier, she was 11 the lady that was performing the environmental 12 functions.
13 Q And her last name is Nida?
14 A Nida.
15 Q Tresh?
16 A Tresh Landers was, I think at this time 17 she was still in the co-op program, doing various and 18 sundry jobs, a lot of which had to do with the, as I 19 recall, the environmental side of the house.
20 Q And then you mentioned that in parens 21 there was Ike. Who is Ike?
22 A That must be the VP Ike. I can't remember 23 why I put his name in parentheses. I don't remember 24 if at that time he was still at Browns Ferry, or if he 25 was here in the corporate organization. I think he NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2328 1 was here in the corporate organization.
2 Q And what was his last name?
3 A Zeringue. Don't ask me to spell it.
4 Q In this meeting what did you understand 5 Mr. Grover to be asking you and the other managers to 6 do?
7 A He was very concerned, as I recall, that 8 the time table for the reductions, which I had 9 mentioned in the earlier day planner, on the Monday 10 day planner entry, had been pulled forward, and he was 11 concerned that McGrath was going to just slash the 12 group down to a couple of people.
13 And he wanted to get involvement from the 14 plants, up to the VP level to call and express their 15 support of the program, if they liked the way that we 16 were supporting them at the present they needed to 17 call and let him know.
18 Because if he carried out the plan I think 19 that he had communicated to Ron that caused him to 20 call us together, it was going to be a pretty drastic 21 cut in the chemistry budget, and personnel.
22 Q I believe you stated that something had 23 happened where Ron felt that the cuts were being 24 pushed up?
25 A Right.
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2329 1 Q What did you mean by that?
2 A Well, if you will remember originally we 3 were asked to cut fiscal year '97 budget by 15 to 17 4 percent. I think basically what Mr. McGrath told Ron 5 was that he wanted him to go ahead and do the entire 6 thing right now, and just cut the 40 percent, or even 7 more. I don't recall the exact percentage.
8 Q Now, you said that note number 4 also 9 related to the reorganization?
10 A I think that it does. Let's see. This is 11 a conversation that I had with Mr. Jack Cox, who was 12 the RADCHEM manager at Watts Bar Nuclear Plant.
13 Q Can you read that note, please?
14 A I told Jack that if he liked the way we 15 had been supporting them, that he contact his VP, and 16 have the VP call Mr. McGrath. Jack said he knew what 17 to do, and said he was very happy with us, chemistry, 18 that would be corporate chemistry.
19 He was not so pleased with RADCON. Let me 20 take a look at this.
21 (Witness reviews document.)
22 THE WITNESS: He was not so pleased with 23 RADCON, just as he had discussed with me last week.
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2330 1 many times, just to get his perspective on how things 2 were going, and how he liked the support, or if there 3 was any other way we needed to direct our resources to 4 help him out.
5 BY MS. EUCHNER:
6 Q Did you have this conversation with Mr.
7 Cox as a result of your meeting with Mr. Grover?
8 A Directly, yes.
9 Q And I believe you also indicated that note 10 number 5 might relate to the reorganization?
11 A Yes, let me read it, just a second.
12 (Witness reviews document.)
13 THE WITNESS: As I recall Ron met with me 14 privately and Chandra joined us some time during that 15 meeting, just came in and joined the meeting.
16 Ron said that it was planned now that they 17 would keep two in our group, and it would be him and 18 Chandra. I think he was under the impression that 19 McGrath was just going to go ahead and cut it to two 20 now, and it would probably be Ron Grover and Chandra.
21 I don't know how he arrived at that, but 22 that is what he seemed to be indicating to me. And, 23 understand, we were all trying to figure out how this 24 was going to sort out, and I don't know if this was 25 speculation, or based on a conversation that he had.
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2331 1 I cannot answer that, he did not, as I 2 recall, he did not offer that much detail.
3 MS. EUCHNER: Your Honors, I would move 4 TVA 116 into evidence.
5 MR. MARQUAND: No objection.
6 CHAIRMAN BECHHOEFER: TVA 116 will be 7 admitted.
8 (The document referred to, 9 having been previously marked 10 for identification as TVA 11 Exhibit No. 116 was received in 12 evidence.)
13 BY MS. EUCHNER:
14 Q At some point did you find out for sure 15 how many chemistry positions there were going to be in 16 the reorganization?
17 A Yes.
18 Q How many were there going to be?
19 A Two.
20 Q Do you know who made the decision that 21 there would only be two chemistry positions?
22 A I was told it was McGrath.
23 Q Who told you that?
24 A As I recall it was Ron.
25 Q Ron Grover?
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2332 1 A Yes.
2 Q Do you know what the two remaining 3 chemistry positions were going to be?
4 A Yes. That would be a program manager for 5 chemistry over PWRs, and a program manager chemistry 6 over BWRs.
7 Q Did you and the other chemistry and 8 environmental program managers have any input into the 9 position descriptions for those positions?
10 A Yes, we did.
11 Q What sort of input did you get to give?
12 A As I recall we were given the old program 13 manager position to mark it up and turn it back in, so 14 that it would properly reflect a program manager for 15 BWR and for PWR.
16 Q And by the old one do you mean the 17 chemistry and environmental protection program 18 manager?
19 A That is correct.
20 Q At some point during the spring of 1996 21 did you become aware that someone at Sequoyah was 22 seeking to have Mr. Harvey transferred there 23 permanently?
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2333 1 transferred?
2 A Yes, it was --
3 MR. MARQUAND: Objection, where there is 4 the foundation, how he knows, when he learned, 5 etcetera.
6 BY MS. EUCHNER:
7 Q How did you find out that someone was 8 seeking to have Mr. Harvey transferred?
9 A I found out through both Mr. Harvey, as 10 well as through Ron Grover.
11 Q Do you recall approximately when this was?
12 A I would say the middle of the year, around 13 the June, July. I think I have notes on it.
14 Q Did either Mr. Harvey or Mr. Grover tell 15 you who was seeking to have Mr. Harvey transferred to 16 Sequoyah?
17 A Yes, they were working through Mr. Charles 18 Kent at that time.
19 Q And Mr. Kent was the RADCHEM manager, is 20 that correct?
21 A That is correct, at Sequoyah.
22 Q Do you know whether the transfer ever 23 happened?
24 A It did not.
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2334 1 happen?
2 A Well, Sam Harvey told me it was not going 3 to happen, and Ron Grover, and I do not know which 4 person told me first.
5 Q Did either Mr. Grover or Mr. Harvey tell 6 you why Mr. Harvey wasn't going to be transferred to 7 Sequoyah?
8 A Yes.
9 Q What did they tell you?
10 A They told me that it was blocked by Mr.
11 McGrath.
12 MS. EUCHNER: Now I am going to show you 13 TVA exhibit 120. Again this is one of the single 14 sheets of paper that Mr. Marquand used yesterday.
15 (Pause.)
16 BY MS. EUCHNER:
17 Q Do you recognize this document?
18 A Yes, I do.
19 Q What is it?
20 A It is another page out of my day planner 21 dated May 7th, 1996.
22 Q Is there a note on this page that relates 23 to Mr. Harvey's potential transfer to Sequoyah?
24 A Yes, there is, number 2.
25 Q Could you please read that note?
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2335 1 A Okay. Information came from Mr. Grover, 2 told me that he had visited with Sam out at Sequoyah 3 yesterday, said Sam's job was up in the air. They 4 were probably trying to do something illegal.
5 He said Sam may not have a job, and that 6 they would have to post, hang on a second, let me read 7 this, and see if I can make sense out of it.
8 (Witness reviews document.)
9 THE WITNESS: They would have to post the 10 one he is interested in. So, evidently, at Sequoyah 11 they are going to have to post the job Sam was 12 interested in being transferred into.
13 He also said that McGrath was going to use 14 this opportunity to rewrite the PDs, such that he can 15 keep Sam and get rid of me. He wants to do this 16 because of the NRC concerns I raised in the past.
17 He said McGrath had a very low opinion of 18 me. I told him that the feeling was mutual.
19 Q Okay. First, the statement they were 20 probably trying to do something illegal. Did he state 21 why it may be illegal?
22 A Yes, it had to do with the fact that 23 apparently there was a vacancy, but it had to be 24 posted, and people then had to apply on it, and 25 interview. That is what he meant by that.
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2336 1 CHAIRMAN BECHHOEFER: Say that again?
2 THE WITNESS: Yes, evidently the job at 3 Sequoyah that Sam Harvey and others were working to 4 get him transferred into, personnel probably made the 5 decision you can't just do that. There is an opening, 6 therefore we need to post the job, allow people to bid 7 on the job, go through the interview process, and that 8 would do it legally.
9 So when I say illegal I think what they 10 were referring to was in reference to the policies for 11 posting on a vacant position.
12 ADMINISTRATIVE JUDGE YOUNG: I understand.
13 THE WITNESS: I don't mean something that 14 broke the law.
15 BY MS. EUCHNER:
16 Q And your note also notes that Mr. Grover 17 said McGrath was probably going to use this 18 opportunity to rewrite the Pds such that he can keep 19 Sam and get rid of me?
20 A That is correct.
21 Q And did Mr. Grover state, in any detail, 22 or anything more specific than what you have in this 23 note, why he thought that?
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2337 1 I would have written it.
2 Q So he didn't write any further information 3 about why Mr. McGrath had a low opinion of you?
4 A Other than what he said right here, I did 5 not.
6 MS. EUCHNER: Your Honors, I would move 7 TVA exhibit 120 into evidence.
8 MR. MARQUAND: May I voir dire, please?
9 CHAIRMAN BECHHOEFER: Yes, you may.
10 VOIR DIRE 11 BY MR. MARQUAND:
12 Q Mr. Fiser, are you saying, telling us that 13 this note you wrote down is what Mr. Grover told you?
14 A Yes, sir, as I recall that is correct.
15 Q And Mr. Grover offered to you that 16 McGrath, quote, was probably going to use this 17 opportunity to rewrite the positions to get rid of you 18 and keep Sam?
19 A That is as I recall, yes.
20 Q And your recollection, that is what he 21 told you, that is not your speculation?
22 A That is correct, yes, sir.
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2338 1 is what Grover told you?
2 A As I recall that is correct, yes, sir.
3 Q And did he also tell you --
4 MR. MARQUAND: Well, if that is what the 5 witness says, Your Honor, that is fine, no objection.
6 CHAIRMAN BECHHOEFER: Without objection 7 TVA exhibit 120 will be admitted.
8 (The document referred to, 9 having been previously marked 10 for identification as TVA 11 Exhibit No. 120 was received in 12 evidence.)
13 BY MS. EUCHNER:
14 Q At some point did you find out that the 15 PWR and BWR chemistry positions were going to be 16 posted for competition?
17 A Yes, I did.
18 Q Approximately when did you find that out?
19 A Well, approximately mid year.
20 Q Would June sound about right?
21 A Yes.
22 Q Who announced that the positions would be 23 posted?
24 A I think I was told that directly by Mr. Ed 25 Boyles in personnel department.
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2339 1 Q On June 17th, 1996, do you recall 2 attending sort of an all-hands meeting called by Mr.
3 McGrath to discuss the reorganization?
4 A Yes, I do.
5 Q Do you know whether Mr. McGrath said 6 anything about the PWR and BWR chemistry positions at 7 that meeting?
8 A As I recall he said that there would be 9 one PWR and one BWR. Now, he handed out, as I recall, 10 a copy of his slide presentation, so that would be 11 documented in there.
12 Q Did McGrath announce any other positions 13 that were relevant to the RADCON and chemistry 14 organization at that meeting?
15 A Yes, he did.
16 Q What did he announce?
17 A He announced that the corporate RADCON and 18 chemistry positions had been combined into a RADCHEM 19 manager, and that the person that would fill that 20 position was Wilson McArthur.
21 Q Who would be the --
22 ADMINISTRATIVE JUDGE YOUNG: When you say 23 that they would be combined, did you mean to say that 24 the positions below Mr. McArthur would be combined as 25 well, or just the manager?
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2340 1 THE WITNESS: I'm just speaking of the 2 fact that Ron's job as a chemistry manager, and Dr.
3 McArthur's job as the radiation protection manager 4 were combined, those functions were combined into one 5 job.
6 ADMINISTRATIVE JUDGE YOUNG: Right, I 7 understood that. Something you said led me to believe 8 that you were speaking more broadly. But I 9 understand, from what you are saying now, that your 10 statement was limited to the job combination of Mr.
11 McArthur and Mr. Grover's job, and not anything below 12 that level?
13 THE WITNESS: That is correct, Your Honor.
14 ADMINISTRATIVE JUDGE YOUNG: Okay, thank 15 you.
16 BY MS. EUCHNER:
17 Q Who was the selecting manager going to be 18 for the PWR and BWR chemistry positions?
19 A At this point, now that that change had 20 been announced, it would be Wilson McArthur.
21 Q Did you have any reaction to finding that 22 out?
23 A I had a reaction of profound concern, yes.
24 Q Why did you have concern?
25 A Well, based on past history of -- from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2341 1 both Dr. McArthur and Mr. McGrath's perspective, these 2 two guys were now in the position of making the 3 decision for who was going to be filling those 4 positions of BWR and PWR program managers, under 5 Wilson.
6 Q And during your testimony last Tuesday, 7 when we were talking about the 1991 to 1993 time 8 frame, you testified that at that time you thought 9 that Dr. McArthur was a friend, or an ally?
10 A Correct.
11 Q Did something happen to make you change 12 your mind?
13 A Yes.
14 Q What happened?
15 A Well, he had reported to me that he was my 16 friend, that he was going to help me find a position 17 within TVA, outside of TVA, whatever, it didn't 18 matter, because he led me to believe he was not in 19 agreement with the way I had been treated.
20 Q Now, this is back in 1993, you are talking 21 about?
22 A Yes, that is correct. And of course at 23 one time, when I had rotated into TVA's employee 24 transition program, it was purportedly because my 25 position at Sequoyah, chemistry superintendent, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2342 1 chemistry manager, whatever they call it, had been 2 determined to be surplus.
3 Which as it turns out was not only not the 4 case, the position had been upgraded from a PG9 to a 5 PG10. And in about July of 1993 I still had my TVA 6 issued pager, and it went off. And I returned the 7 phone call, and it was Charles Kent, who had invited 8 me out to Sequoyah for an interview.
9 And that was in early July, first week of 10 July some time.
11 ADMINISTRATIVE JUDGE YOUNG: Which year, 12 again?
13 THE WITNESS: 1993.
14 ADMINISTRATIVE JUDGE YOUNG: '93.
15 THE WITNESS: And he was interviewing me 16 for the PG10 chemistry manager job at Sequoyah. And 17 he just let me know that he felt like I had not been 18 treated fairly, and he was not in agreement --
19 ADMINISTRATIVE JUDGE YOUNG: You are 20 talking about Kent now?
21 THE WITNESS: Yes, Your Honor, I am. Mr.
22 Charles Kent. At that time I guess he would have been 23 the RADCHEM manager.
24 And so the interview went very well.
25 Charles and I had always gotten along, as I recall.
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2343 1 And at one point he just said, well, I'm going to go 2 get the plant manager and bring him in, which he did.
3 The plant manager was a Mr. Ken Powers, at 4 that time. Mr. Powers came in to the office where we 5 were meeting, and he just wanted to meet me, go over 6 a little bit about his philosophy of management, and 7 he had several questions for me to ascertain whether 8 or not I was -- I would fit in with his management 9 style.
10 And he determined, very shortly, within, 11 I doubt that lasted more than about ten minutes, and 12 he was just in complete agreement with the move. And 13 he looked at Charles Kent and he says, I'm happy, I 14 want you to go ahead and make this thing happen.
15 And then he shook my hand and excused 16 himself from the room. And Charles then looked at me 17 and said, well, he made a verbal offer, quoted me a 18 salary of, I can't remember exactly what, 81,000, 19 81,500, or something, and alluded to the fact that it 20 is the same salary they had offered, or were going to 21 offer Gordon Rich.
22 I don't think I completely understand what 23 he had offered Mr. Rich. But regardless of that he 24 gave me a salary. As I recall this was on a Monday or 25 a Tuesday. And he looked at me and he says, I want NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2344 1 you to just show up out here Thursday morning, with 2 your tie on, ready to go to work.
3 And he says, I'm going to make this thing 4 happen so quickly that if there were any opposition 5 downtown, that it would be done before they would 6 have, essentially, a chance to make an offensive.
7 Now, that is paraphrased, that is 8 paraphrased, because I can't remember exactly what he 9 said. But that is the gist of it. He did mention the 10 fact that he was going to contact the "right people" 11 to make sure that everything was okay, and that this 12 was going to work out.
13 I did not know who the right people were.
14 CHAIRMAN BECHHOEFER: Who would he 15 contact?
16 THE WITNESS: Charles Kent said that he 17 would contact the right people.
18 CHAIRMAN BECHHOEFER: The right people, 19 I'm sorry.
20 THE WITNESS: He did not tell me, at that 21 time, who the right people were, I did not know, to 22 make sure everything was okay in the transition.
23 And so that is how it came about.
24 BY MS. EUCHNER:
25 Q And did you later find out who the right NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2345 1 people were?
2 A Yes, I did.
3 Q Who was that?
4 A Well, later on, after everything fell 5 through, I made it a mission of mine to find out what 6 was going on behind my back, and I went to see Dr.
7 McArthur in his office. And I did record this 8 conversation.
9 ADMINISTRATIVE JUDGE YOUNG: You did or 10 did not?
11 THE WITNESS: I did, yes, ma'am. I did, 12 Your Honor, record this conversation.
13 And I just made mention of the fact that 14 I wanted, and I'm paraphrasing here, I wanted to find 15 out who had torpedoed me, or whatever. And --
16 ADMINISTRATIVE JUDGE YOUNG: You say you 17 wanted to find out, say again?
18 THE WITNESS: I wanted to find out, I was 19 trying to find out who had torpedoed me in this move 20 out to Sequoyah. I think that is my exact words, 21 pretty close.
22 And Dr. McArthur said that Charles Kent 23 had called him, and that he in turn had called, as I 24 recall, Mr. Joe Bynum, and I think he said Dan Keuter, 25 those two people.
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2346 1 ADMINISTRATIVE JUDGE YOUNG: Say the names 2 over again?
3 THE WITNESS: Yes. He said, after he --
4 ADMINISTRATIVE JUDGE YOUNG: And this is 5 Dr. McArthur?
6 THE WITNESS: This is Dr. McArthur, yes, 7 Your Honor. And he said that he had, after Charles 8 had called him and told him what he was about to do, 9 Dr. McArthur then called Mr. Joe Bynum, B-Y-N-U-M.
10 CHAIRMAN BECHHOEFER: And the other one 11 was?
12 THE WITNESS: Was Mr. Dan Keuter, K-E-U-T-13 E-R. I think that is correct. And I was shocked that 14 he would do that. And I looked at him with a stunned 15 look on my face, and his response was, in essence, 16 that he had to do that, because they were involved in 17 -- well, you will have to listen to the tape.
18 They were involved in my previous case, my 19 previous removal from Sequoyah chemistry.
20 So here, your question was, when did I 21 realize that he was not my friend? And I would have 22 to say that this was, needless to say, an epiphany for 23 me, because I realized that this man was not my 24 friend.
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1 my move to Sequoyah by calling these guys and getting 2 them involved in the process. And that is when I 3 found out that this man can look you right in the face 4 and tell you one thing, and do another.
5 BY MS. EUCHNER:
6 Q After the meeting that we discussed, where 7 Mr. McGrath announced the reorganization in June of 8 1996, did you have a conversation with Mr. Harvey?
9 A Yes, I think that is the time, yes.
10 Q Do you recall what you and Mr. Harvey 11 discussed?
12 A Well, I did make notes of it in a day 13 planner. But as I recall it centered around the fact 14 that -- I may be getting two separate conversations 15 mixed up here. But it centered around the fact that 16 of course he was not going to be placed in the 17 position at Sequoyah, that he was hopeful of getting, 18 and that -- I'm getting two different conversations 19 mixed up, I think.
20 Let's see. It seems like this is possibly 21 the one where he just looked at me and said that he 22 felt like things were going to work out, and that he 23 was going to get a job, and I quizzed him about it, 24 and he said that he got -- that he had more 25 information than I did.
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2348 1 I think that is the one. But, of course, 2 there were a couple of conversations that I might be 3 putting together there.
4 Q Did you ever have a discussion with Mr.
5 Harvey in which he told you that he thought the PWR 6 chemistry position description was written to favor 7 your qualifications?
8 A Yes, I do.
9 Q What did the two of you discuss about 10 that?
11 A He felt like there was a requirement that 12 the person that filled that position had to have 13 certain specific training in the emergency 14 organization, training that I had completed, and that 15 he had not completed.
16 And therefore he felt like it was written 17 to favor me instead of him.
18 Q Okay. What was your response to that?
19 A My response was that I was of the 20 impression that we had all had an opportunity to 21 review, mark-up, make changes to it, and that he had 22 raised these concerns to Ron, and to Chandra, and that 23 they had been ironed out and resolved.
24 Q Now, you mentioned the conversation where 25 Mr. Harvey told you things would work out for him, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2349 1 that he had more information?
2 A Yes.
3 Q Did he state what more information he had 4 that you didn't?
5 A He did not offer any more information.
6 ADMINISTRATIVE JUDGE YOUNG: I thought, 7 when you said that before, I thought you said things 8 would work out. And I maybe drew the wrong inference.
9 I thought you were saying that Sam Harvey had said 10 that things would work out for both of you?
11 Maybe I assumed too much. But now are you 12 saying that he was limiting that to himself, or which?
13 THE WITNESS: That is where I think I'm 14 getting these two conversations that we had mixed 15 together, it just has been too many years.
16 At one time he did look at me, and he said 17 that he felt like things would work out. And I think 18 at that time he thought he was going to be placed in 19 a position at Sequoyah, which would then leave a 20 position for me downtown. I do believe that is the 21 case, at one time.
22 And all he would say is he had more 23 information about it than I did. And, of course, he 24 was not willing to share what information he had. So 25 I think, Your Honor, you are correct.
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2350 1 At one point I do feel like Sam felt that 2 things were going to work out for both of us. But, 3 again, that is when he felt like he was going to get 4 this position at Sequoyah, and therefore there would 5 be a position left downtown for Chandra, in BWR, and 6 for me in the PWR position. I do think that is the 7 case.
8 ADMINISTRATIVE JUDGE YOUNG: So just now 9 were you referring to another conversation where he 10 used the words things would work out, but referring 11 only to himself, or --
12 THE WITNESS: Okay. Just now I think I 13 was referring to that earlier conversation with Sam, 14 between Sam and I.
15 ADMINISTRATIVE JUDGE YOUNG: Where he said 16 things would work out for both of you?
17 THE WITNESS: That is correct, Your Honor.
18 ADMINISTRATIVE JUDGE YOUNG: Okay.
19 THE WITNESS: At this present 20 conversation, now, as we are discussing it, it is 21 becoming a little clearer. That is where he 22 confronted me because his position had fell through at 23 Sequoyah, therefore the two of us would, essentially, 24 be contending for the job as the PWR chemistry PG8 25 position.
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2351 1 And he was raising the concern, that is 2 where he stated that this position description had 3 been written to favor me over him.
4 ADMINISTRATIVE JUDGE YOUNG: Because of 5 the emergency training?
6 THE WITNESS: Precisely. And I was kind 7 of dumbfounded by that because I knew he had raised as 8 a concern, and I was under the impression that it had 9 been completely ironed out to his satisfaction.
10 So I couldn't understand why he was now, 11 at this late hour, raising it as a concern again, when 12 it was a resolved issue, as far as I knew.
13 ADMINISTRATIVE JUDGE YOUNG: In other 14 words, you thought that the position description had 15 been changed to take out that background training 16 requirement?
17 THE WITNESS: Precisely. Or it was either 18 that, or it was written where it could be either or.
19 ADMINISTRATIVE JUDGE YOUNG: Okay.
20 BY MS. EUCHNER:
21 Q Did you ever have a conversation with Mr.
22 Harvey in which you stated that you believed that he 23 may have been preselected for the PWR position?
24 A Yes, I do.
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2352 1 with him?
2 A Not specifically.
3 Q Why did you believe that he may have been 4 preselected?
5 A Because of the communication I had with 6 the Watts Bar chemistry superintendent, Mr. Dave 7 Voeller.
8 Q And what was that conversation?
9 A Dave related to me that Sam had called him 10 and had made the statement that they were going to be 11 working a lot closer in the future, and Dave was kind 12 of puzzled by that.
13 And he said, do you mean that they are not 14 going to interview for the job? And Sam had 15 essentially said, well, they may interview, but he was 16 going to be the one selected. And Dave was really 17 concerned about that conversation.
18 Q At the time that Mr. Voeller related that 19 conversation to you, did you have any information that 20 Mr. Harvey would be selected for the PWR position?
21 A No, just through Mr. Voeller.
22 Q Okay. After you had this conversation 23 with Mr. Voeller, did you discuss this issue with 24 anyone else?
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2353 1 with Ron Grover, I discussed it with TVA's IG, I 2 discussed it -- I may have even discussed it with 3 personnel, I'm not sure of that.
4 Q Now, you said that you talked to Ron.
5 What did Mr. Grover tell you when you discussed this 6 with him?
7 A As I recall he was going to contact Dave 8 Voeller directly and see what he could find out about 9 the statement. And verify, I think it is 10 authenticity. And I think that is what he did.
11 Q Did he tell you that he did contact Mr.
12 Voeller?
13 A Yes.
14 Q Did he say what Mr. Voeller told him when 15 he called?
16 A Yes, as a matter of fact Mr. Voeller had 17 documented this conversation in his day planner, and 18 I'm sure he read, I would speculate that he read from 19 his day planner to Mr. Voeller, just as he had done, 20 when he spoke with me about it.
21 Q After Mr. Grover spoke with Mr. Voeller, 22 do you know whether he talked to anyone else about 23 this issue?
24 A I would have to refer to my notes. It 25 seems to me that he spoke with Mr. Easley about it.
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2354 1 Q Do you know whether he ever talked to Mr.
2 Harvey about it?
3 A I do believe he talked with Sam about it 4 as well, because shortly thereafter I got the 5 information that Sam had made a return phone call to 6 Mr. Voeller, and then tried to put a spin on what he 7 had said earlier, whereby he stated, what I meant to 8 say we will either be working closely together, or not 9 at all.
10 Q Who told you about that second 11 conversation?
12 A As I recall it was Mr. Voeller.
13 Q Mr. Voeller. And you mentioned day 14 planner notes?
15 A Yes.
16 Q Whose day planner notes were those?
17 A That would be Mr. Voeller's.
18 Q I believe a little bit earlier we 19 discussed an employee named Tresha Landers.
20 A That is correct.
21 Q What was her position in the organization 22 in 1996?
23 A At that time she was still, I think, in 24 the chemistry co-op position, as I recall, where she 25 could attend school and also work, and earn money at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2355 1 the same time.
2 Q Did you ever become aware of problems that 3 Ms. Landers had with Sam Harvey?
4 A Yes, I did.
5 Q How did you learn this?
6 A As I recall she shared some concerns that 7 she had with Sam's behavior.
8 Q What concerns did she have?
9 A She felt like she was suffering from 10 harassment and intimidation from him.
11 Q From Mr. Harvey?
12 A That is correct.
13 Q What was your response to Ms. Landers when 14 she shared her concerns with you?
15 A After listening to her, I think I advised 16 her, I can't remember specifically, but either she 17 needed to pursue this with, you know, her direct 18 supervisor who was Mr. Grover, or with personnel.
19 And I can't remember which, but I would 20 have advised her to speak to them about it.
21 Q Do you know whether she ever did speak to 22 them?
23 A I do know that she did.
24 Q Did she speak to Mr. Grover?
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2356 1 personnel. I assume it was Mr. Ben Easley.
2 Q Now, when Ms. Landers talked to you about 3 harassment and intimidation, did she specify any 4 particular behavior of Mr. Harvey that was of concern 5 to her?
6 A Yes.
7 Q What was that behavior?
8 A As I recall he, I don't know how to say 9 this. He had a habit of, it seemed like he was 10 scratching his testicles, or groping himself in her 11 presence. And he had a problem expelling gas in her 12 presence. And it seemed like there was some language 13 that she felt like was not appropriate.
14 Q Okay.
15 A It has been so long ago I really am having 16 trouble remembering explicit details. But that is 17 what I recall.
18 Q Do you recall ever seeing Mr. Harvey 19 behave in those manners?
20 A Yes.
21 Q Would he direct that behavior towards Ms.
22 Landers specifically, or was it to the other employees 23 in general?
24 A Well, I noticed him in her cubicle doing 25 these things, yes.
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2357 1 Q Do you know whether --
2 MR. MARQUAND: Objection. Can we get a 3 complete answer to that question? The question was, 4 was it in front of other employees, or general.
5 BY MS. EUCHNER:
6 Q Do you know whether he engaged in these 7 behaviors in front of other employees as well?
8 ADMINISTRATIVE JUDGE YOUNG: Do you know?
9 THE WITNESS: Well, I know that he would, 10 in my presence, but you know, it is like water off a 11 duck's back. I mean --
12 ADMINISTRATIVE JUDGE YOUNG: I'm sorry, 13 what?
14 THE WITNESS: It was like water off a 15 duck's back, it didn't bother me what he did. But so 16 I would have to say the answer to that question would 17 be yes, because I did notice that he was fairly free 18 at either relieving himself, or scratching, groping, 19 in the presence of others, yes.
20 BY MS. EUCHNER:
21 Q Do you know whether Ms. Landers ultimately 22 decided to file a complaint against Mr. Harvey?
23 A Yes, she did.
24 Q Do you know with whom she complained?
25 A I think it was Mr. Ben Easley.
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2358 MS. EUCHNER: Your Honors, I'm at the end 2 of a subject, and am about to get into a fairly large 3 subject. Would now be a good time to break?
4 ADMINISTRATIVE JUDGE COLE: Do you need 5 some extra time to transport anything over the noon 10 6 hour? How much time do you need?
7 MS. EUCHNER: Well, I'm not going with 8 them, so --
9 ADMINISTRATIVE JUDGE COLE: They need to 10 be here when we start, though.
11 MS. EUCHNER: I don't need them. They 12 don't even hand me the documents that I need.
13 (Laughter.)
14 CHAIRMAN BECHHOEFER: Is one o'clock a 15 good time to return?
16 MR. MARQUAND: That is fine with us.
17 Whatever the staff needs.
18 ADMINISTRATIVE JUDGE YOUNG: We can go off 19 the record.
20 (Whereupon, at 11:53 a.m., the above-21 entitled matter was recessed for lunch.)
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2359 1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N 2 1:38 p.m.
3 CHAIRMAN BECHHOEFER: Back on the record.
4 BY MS. EUCHNER:
5 Q You testified earlier that at a meeting in 6 June Mr. McGrath announced that the PWR and BWR 7 chemistry positions would be posted for competition?
8 A That is correct.
9 Q Did you discuss this with anyone after 10 that meeting?
11 A Yes, I'm certain I did, I'm certain I 12 discussed it with Ron Grover. I'm certain, also, it 13 was at about that same time that I discussed it with 14 Mr. Ed Boyles in personnel as well.
15 Q Mr. Boyles was in human resources?
16 A Yes.
17 Q What did you discuss with Mr. Boyles?
18 A I discussed with him the fact that I felt 19 like the job that they were posting was in all 20 practicality the exact same job that I had been 21 offered in settlement of my 1993 case.
22 And I felt like if they posted that job 23 that TVA had, in fact, breached or violated their 24 settlement agreement, that they had offered me to 25 resolve the 1993 case.
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2360 1 Q What was Mr. Boyles' response?
2 A Well, we discussed it for a while. I also 3 had discussed it with Ben Easley, too. And shortly 4 after I discussed it with Ben he took me to Mr.
5 Boyles' office, as I recall, to continue the 6 discussions.
7 I explained the fact that in 1994 we had 8 added some environmental functions to the job, but we 9 never performed those functions. So as far as I was 10 concerned the fact that they were then doing away with 11 functions we had never performed, as chemistry program 12 managers, that I did not feel like the fact that they 13 were going to revise, take out functions that we never 14 performed, and then post the jobs, was a valid reason 15 to post those jobs.
16 And I said, in fact, if you do post them, 17 then I'm going to file a Department of Labor complaint 18 against TVA.
19 Q And at that meeting did Mr. Boyles give 20 you any response as to what HR would do?
21 A He took down the information and said he 22 was going to go talk to Mr. Phil Reynolds about this.
23 And would get back to me, as soon as he had an answer 24 to my concern.
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2361 1 fact that if, or when I should say, the jobs were 2 posted, he wanted to make sure that I did, in fact, 3 apply on the jobs.
4 Q Who is Mr. Reynolds?
5 A He was the head of personnel, or human 6 resources. Mr. Boyles, as I recall, reported directly 7 to Mr. Reynolds.
8 Q When did Mr. Boyles get back to you?
9 A It was not but a short period of time, 10 meaning a day or so.
11 Q And what did he tell you when he got back 12 to you?
13 A He said he had discussed it with Mr.
14 Reynolds, and that they had decided that they would go 15 ahead and post the jobs, citing that they wanted to be 16 uniform in the way they did this, and treat all groups 17 the same.
18 Q Did he state whether he talked to anyone 19 other than Mr. Reynolds in reaching this conclusion?
20 A As I recall I think he also mentioned that 21 he talked to Mr. McGrath, I think. Now, we would have 22 to -- it has been years, but I think that is what he 23 said. And I think he also talked to people, or 24 somebody from the general counsel to review the 25 settlement offer that I had back in '93. I guess that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2362 1 was '94, whenever it was.
2 Q What rationale did Mr. Boyles give you for 3 their decision that the chemistry position had to be 4 posted?
5 A Well, he said that the position had 6 changed, and I said in name only. Because, indeed, 7 the functions that they were removing had never been 8 performed. So as far as I was concerned, in all 9 practicality the position had not changed.
10 Q Did he state anything specifically about 11 your settlement agreement in 1994?
12 A As I recall he just felt like that was a 13 different job, so therefore it no longer applied.
14 Q Now, you stated that Mr. Boyles wanted to 15 make sure that you were going to apply for the 16 position. Did you apply for the position?
17 A Yes, I did.
18 Q When did you file your DOL complaint?
19 A I don't recall the date, but it was, I 20 would certainly say within a week of that 21 conversation. I'm guessing, but it was shortly 22 thereafter.
23 MS. EUCHNER: We are going to go to Staff 24 Exhibit 37. Your Honors, I believe Staff Exhibit 37 25 is already entered into evidence.
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2363 1 (Pause.)
2 BY MS. EUCHNER:
3 Q Do you recognize this document?
4 A Yes, I do.
5 Q What is it?
6 A This is the complaint that I filed, 7 apparently on June the 25th, 1996 with Ms. Carole 8 Merchant of the Department of Labor.
9 Q Did you file this complaint before the 10 selection process had been completed for the PWR 11 chemistry position?
12 A I think that is correct, yes.
13 Q Why did you file the complaint before the 14 selection process had taken course?
15 A Well, as I had stated earlier, I felt like 16 by virtue of the fact that they were posting 17 essentially the exact same job that they had offered 18 me in settlement of the '93 case, that they were in 19 breach of their settlement offer.
20 Q During the time frame after you filed this 21 complaint, did you tell anyone at TVA that you had 22 filed it?
23 A I'm certain that I told my supervisor, Mr.
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2364 1 of secrecy. So I very well could have told others, I 2 don't recall.
3 MR. MARQUAND: I'm sorry, I didn't hear 4 the last part.
5 THE WITNESS: I know that I had discussed 6 it and told my manager, Mr. Ron Grover. I do not 7 recall if I told others, though. But it was not a 8 matter that I felt like was a matter of secrecy.
9 I mean, I could have had other 10 discussions, I don't recall.
11 MR. MARQUAND: Thank you.
12 BY MS. EUCHNER:
13 Q Did you interview for the PWR chemistry 14 program manager position?
15 A Yes, I did.
16 Q Who interviewed you?
17 A Basically it was the RADCHEM managers at 18 the various sites. And a lady from personnel, I think 19 a Ms. Westbrook. And Dr. McArthur was in the room.
20 He did not participate in the questioning and the 21 interviews, at all. He was just listening with one 22 noteworthy exception. And that was that the RADCHEM 23 manager for Watts Bar, Mr. Jack Cox, was on vacation 24 that day, and could not be on the board.
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2365 1 Mr. Rick Rogers to sit in on Jack's place.
2 Q Now, you stated that this was a noteworthy 3 exception. Why was it noteworthy?
4 A Well, it was noteworthy in that Mr. Jack 5 Cox and I had worked very closely together at Watts 6 Bar. And he was pretty intimately familiar with the 7 work that I had done there to help get that plant 8 started up.
9 And I felt like his absence was a real 10 detriment to me, because I did not feel like Rick 11 Rogers had the knowledge of the RADCHEM organization, 12 nor did he have the intimate knowledge of my work 13 history at Watts Bar, such that he could adequately 14 represent me, as did the other RADCHEM managers for 15 the other sites.
16 In other words, Mr. Charles Kent was 17 there, and knew intimately what Mr. Sam Harvey had 18 done at Sequoyah. And Mr. Jack Corey was there, and 19 had intimate first-hand knowledge of the work that Dr.
20 Chandrasekaran had done at Browns Ferry.
21 So I felt like that was certainly a 22 detriment.
23 Q Do you know what job Mr. Rogers had at the 24 time of the selection review board?
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2366 1 temporary assignments in the corporate organization.
2 I don't recall, explicitly, what it was.
3 Q After the interviews did you have any 4 conversations with Mr. Cox about why he wasn't on the 5 selection review board?
6 A Yes. I'm not sure that was after the 7 interview, or before.
8 Q Okay.
9 A But I had talked to him, and he just said 10 that, you know, he had this day planned to be off, and 11 there was no way that he could get out of -- I don't 12 know what he was doing, but he said there was no way 13 that he could get out of it.
14 MS. EUCHNER: We are going to Joint 15 Exhibit 22 at page 422 of that document.
16 (Pause.)
17 BY MS. EUCHNER:
18 Q Mr. Fiser, would you please read to 19 yourself these circled questions?
20 A Okay.
21 (Witness reviews document.)
22 BY MS. EUCHNER:
23 Q Do you recognize these questions as the 24 questions that you were asked during the interview for 25 the PWR chemistry manager position?
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2367 1 A Well, it has been a long time but, yes, I 2 do think that I do.
3 Q Do any of the circled questions relate to 4 primary chemistry?
5 A No, they do not.
6 Q Do any of them relate to secondary 7 chemistry?
8 A Yes, they do.
9 Q Which ones?
10 A Number 12, define the term denting and 11 where and how does it occur; number 15, discuss INPO 12 chemistry index, what is its significance; number 17 13 define molar ratio concentration.
14 Q Now, with regards to denting and molar 15 ratio, do those relate to the same area within 16 secondary chemistry?
17 A Well, it is specifically addressing 18 problems in the steam generators, yes.
19 Q After the interviews who was offered the 20 position of PWR chemistry program manager?
21 A That would be Sam Harvey.
22 Q After you were not selected for this 23 position what happened in terms of your employment 24 with TVA?
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2368 1 letter where you are offered various options, where 2 you could enter the services organization, which is a 3 revamped employee transition program, as I understood 4 it.
5 Or you could, employees that were not 6 selected could take an early out for the company, a 7 year's salary, or something like that.
8 CHAIRMAN BECHHOEFER: A year's salary was 9 what?
10 THE WITNESS: A year's salary, and just --
11 CHAIRMAN BECHHOEFER: I just didn't hear 12 you.
13 THE WITNESS: Okay, I'm sorry, I will try 14 to get a little closer to the mike. And there were 15 some other options. I would have to read them now, it 16 has been too long.
17 MS. EUCHNER: We are going to Joint 18 Exhibit 28.
19 (Pause.)
20 BY MS. EUCHNER:
21 Q Do you recognize this document?
22 A Yes, I do.
23 A What is it?
24 A This is the letter I was referring to 25 earlier of notifying me of assignment to TVA services, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2369 1 which delineates the options I was mentioning earlier.
2 Q And those options where you could either 3 go to TVA services, or you could accept a severance 4 package, is that correct?
5 A That is correct.
6 Q What option did you select?
7 A I elected to resign my TVA employment.
8 MS. EUCHNER: Your Honors, I would like to 9 move Joint Exhibit 28 into evidence.
10 MR. MARQUAND: No objection.
11 CHAIRMAN BECHHOEFER: Without objection 12 Joint Exhibit 28 will be admitted.
13 (The document referred to, 14 having been previously marked 15 for identification as Joint 16 Exhibit No. 28 was received in 17 evidence.)
18 MS. EUCHNER: I would like you now to turn 19 to Joint Exhibit 29.
20 BY MS. EUCHNER:
21 Q Do you recognize this document?
22 A Yes, I do.
23 Q What is it?
24 A This is a document that I signed, 25 basically, stating that I resigned my position at TVA.
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2370 1 Q What is the effective date of that 2 resignation?
3 A The effective date of the resignation is 4 September the 5th, 1996.
5 Q Why did you elect to resign your 6 employment rather than go to TVA services?
7 A Well, there were several reasons why I 8 elected to do that. First of all, some of the things 9 that we had heard were that if you went to the 10 services organization, and if -- and supposedly you 11 were going to stay in there for, I don't recall how 12 long, you could stay in there and look for a job, or 13 something.
14 But we had heard that --
15 MR. MARQUAND: Objection, lack of 16 foundation.
17 BY MS. EUCHNER:
18 Q When you say we had heard, what are you 19 referring to?
20 A The information coming out -- I'm trying 21 to remember who told us. It seemed like there was 22 somebody in personnel, presumably, it was Ben Easley, 23 but I'm not certain of that.
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2371 1 organization, even though it was substantially below 2 the pay rate that we were currently in, and if we 3 refused it, that they could terminate us that day.
4 So, you know, I could be looking at a few 5 weeks of salary, and then nothing. Or I could be 6 looking at an entire year's severance package. And 7 that was one of the factors that was certainly 8 concerning me about entering the services 9 organization.
10 And so I was very concerned about missing 11 an opportunity to at least get a decent severance 12 package.
13 CHAIRMAN BECHHOEFER: Could you perhaps 14 explain something? If you are in the services 15 organization, first is there any time limit under 16 which you would have to make changes?
17 I'm sorry, I said if a person were 18 assigned to the services organization, is there a time 19 limit that one could remain in that organization, six 20 months, a year, 20 years?
21 MR. MARQUAND: Judge, there is a minimum 22 time set out in the form he was given, which was JX28.
23 It says you will be sent there, you will be guaranteed 24 at least a minimum amount, not a maximum. It is under 25 option 2.
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2372 1 CHAIRMAN BECHHOEFER: I see. But my other 2 question is, would you be forced to accept another 3 position with TVA at any level, or were there certain 4 bounds? Did they have to be at least comparable 5 technical assignments?
6 Or, I mean, could they tell you to be a 7 secretary, or --
8 THE WITNESS: Before I answer that let me 9 take a look at option 2, here, and read it, to refresh 10 my memory.
11 ADMINISTRATIVE JUDGE COLE: This is from 12 exhibit 28?
13 THE WITNESS: Yes, sir.
14 ADMINISTRATIVE JUDGE COLE: Joint Exhibit 15 28.
16 THE WITNESS: Yes, Your Honor. We are on 17 29, but I'm referring to 28, option 2, to answer that.
18 (Witness reviews document.)
19 CHAIRMAN BECHHOEFER: What I'm driving at 20 is what would a reasonable offer be in the terms of 21 option 2?
22 THE WITNESS: Let's take a look. I think 23 that your question, Your Honor, is answered in option 24 2. And it is not very long, so let's take a look at 25 it.
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2373 1 Should you choose not to elect option 1 2 you will be assigned to TVA services and to report to 3 TVA services on October the 1st, '96. You will be 4 informed of the specific services location to which 5 you are to report prior to that date. This assignment 6 will end no later than the end of fiscal year '97.
7 Now, it could end earlier, as I read it.
8 But no later than fiscal year '97, because the next 9 statement after the comma is: Barring an emergency in 10 the power system.
11 However, should you refuse a reasonable 12 offer during this time you will be issued a reduction 13 in force notice as soon as you can be reached, on the 14 retention register, and your employment will be 15 terminated on the RIF effective date.
16 Now, let's go down -- my salary was 17 greater than 30,500, so let's read this section. If 18 your salary is more than 30,500, a reasonable offer is 19 generally defined as one that will pay 80 percent of 20 your current salary, and will pay relocation costs as 21 outlined in TVA guidelines if you are offered a job 22 more than a 60 mile radius from your current official 23 station.
24 So the way I understand it is if I get an 25 offer as much as a 20 percent pay cut from where I am, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2374 1 when I enter the services, and I refuse it, they can 2 terminate me, essentially by issuing a letter that day 3 or soon as they can reach me.
4 So does that answer your question, Your 5 Honor?
6 CHAIRMAN BECHHOEFER: Well, does the 20 7 percent apply to the actual dollars, or the general 8 grade level that you are serving at? It is my 9 understanding --
10 THE WITNESS: I would say actual dollars.
11 CHAIRMAN BECHHOEFER: Actual dollars, 12 okay.
13 THE WITNESS: That is the way I would read 14 it. Yes, Your Honor.
15 CHAIRMAN BECHHOEFER: Thank you.
16 THE WITNESS: So again you see the basis 17 for my concern about accepting this. I could be 18 looking at another pay cut, possibly in an undesirable 19 location. And if I refuse it I could be literally out 20 of the services organization within days or weeks, as 21 opposed to getting a year's severance.
22 And I did not feel like I could risk 23 losing the year's salary.
24 MS. EUCHNER: Your Honors, I would move 25 Joint Exhibit 29 into evidence.
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2375 1 MR. MARQUAND: Frankly I don't understand 2 the relevance of this, the alleged violation is his 3 non-selection in July of '96, it is not whether that 4 he chose to resign in September of '96, or whether he 5 felt that it was in his interest to take a year's 6 salary severance, or whether it was in his interest to 7 stay at TVA and take potluck to see if he could find 8 another job.
9 This is a form letter issued to hundreds 10 of people, it is not relevant to any issues that are 11 before this tribunal.
12 ADMINISTRATIVE JUDGE YOUNG: What is it 13 relevant to?
14 MS. EUCHNER: Well, Your Honors, I believe 15 both Mr. McGrath and Mr. McArthur were allowed to stay 16 the effect that they felt that the NOVs that the staff 17 issued to them had on their careers, and their lives, 18 I think it is -- it would be not only relevant, but 19 fair, to allow Mr. Fiser the same opportunity to state 20 what the discriminatory action that TVA took against 21 him, what effect it had on his life.
22 MR. MARQUAND: We are not here dealing 23 with victim impact, we are talking about, in the case 24 of Dr. McArthur, and Mr. McGrath, it was their 25 knowledge ahead of time about the consequences of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2376 1 receiving that kind of action, and the fact that they 2 could be charged with those sorts of things, and why 3 they would not have been motivated to discriminate, 4 because they knew that they were susceptible to those 5 types of actions.
6 This victim impact is really not an issue 7 in this kind of case, we are not talking about a tort, 8 we are not talking about crime. This is not the same 9 kind of comparison, it is irrelevant.
10 MS. EUCHNER: It also goes, Your Honors, 11 to corrective action which is relevant. And I have 12 further questions on that. But whether or not TVA 13 took appropriate corrective action after the 14 discriminatory act is certainly relevant to the 15 enforcement process, as Mr. Luehman testified to the 16 first day.
17 ADMINISTRATIVE JUDGE YOUNG: He did, I 18 believe.
19 MR. MARQUAND: We concede that we did not 20 take any specific corrective action with respect to 21 any alleged violation in this case. It is not 22 relevant, because we did not commit a violation, and 23 there was no corrective action directed at fixing any 24 situation with respect to Mr. Fiser.
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2377 1 no violation.
2 ADMINISTRATIVE JUDGE YOUNG: Well, 3 assuming there were --
4 MR. MARQUAND: And assuming that there 5 were, we didn't assume that there was, and we didn't 6 assume to take corrective action to deal with that 7 situation.
8 MS. EUCHNER: And that is relevant to not 9 only the violation, but the civil penalty that was 10 imposed. And Your Honors are going to have to rule on 11 that. So I think that this is relevant.
12 MR. MARQUAND: Your Honors, I recognize 13 that corrective action to deal with the specific 14 violation would be relevant. But we are not 15 contesting that we didn't, did or didn't take specific 16 corrective action. We didn't commit a violation, and 17 we didn't attempt to take corrective action to deal 18 with anything that we supposed that we might have 19 done.
20 ADMINISTRATIVE JUDGE YOUNG: But didn't 21 that play into the calculation of the civil penalty?
22 I believe that that was --
23 MR. MARQUAND: But we are saying that we 24 didn't take a corrective action, and therefore it 25 can't be relevant. So we are not contesting -- they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2378 1 say that we didn't take a corrective action, I say 2 fine, we didn't take a corrective action directed 3 towards this specific violation.
4 CHAIRMAN BECHHOEFER: Well, let me 5 approach it, I see it a little bit differently, and 6 maybe Ms. Euchner can substantiate my feeling. I have 7 viewed the RIF as a necessary result coming from the 8 decision to place Dr. McArthur in one of the open jobs 9 at the time, and to put the other job up for 10 interview, and placement.
11 And, to me, that is a necessary result, or 12 a possible, certainly a potential result of that 13 activity. And that activity I view as involved in the 14 entire allegations that the staff wishes to prove.
15 MS. EUCHNER: I agree with that 16 assessment.
17 CHAIRMAN BECHHOEFER: So I view it as 18 relevant in that context.
19 MR. MARQUAND: Your Honor, I can 20 appreciate your framing that issue. But to this point 21 in time the Staff has never offered that as a 22 contention, they have never said that anybody set him 23 up for a RIF. That wasn't their contention in the 24 violation, that is not their contention in their 25 responses to discovery.
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2379 1 And I appreciate that Your Honor was able 2 to discern that, but that has not been the Staff's 3 contention.
4 ADMINISTRATIVE JUDGE YOUNG: I would let 5 it in on the issue of the calculation of the civil 6 penalty, even if you would concede that assuming that 7 we found a violation. I think probably we have a 8 responsibility to rule on that.
9 So obviously we will take your objection 10 under advisement as to the weight we would give it.
11 My reason for allowing it in would be, though, on the 12 calculation of the civil penalty, assuming we were to 13 find a violation.
14 MR. MARQUAND: I understand.
15 MS. EUCHNER: And, just for the record, 16 Your Honor --
17 CHAIRMAN BECHHOEFER: And I -- go ahead.
18 MS. EUCHNER: The NOV states that it was 19 both the elimination of that position, and the 20 subsequent actions which resulted in his non-21 selection, which were cited in the Notice of 22 Violation.
23 Well, the non-selection r esulted in his 24 being giverI this termination notice.
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2380 1 minute. The language, and I don't want to argue this 2 point, but it doesn't say the action subsequent to the 3 non-selection. It says subsequent actions which 4 resulted in the non-selection, and that is their 5 contention, not anything that happened afterwards.
6 ADMINISTRATIVE JUDGE YOUNG: I understand 7 what you are saying. I think we've made a ruling, 8 we've given two different reasons, but the result is 9 that we are going to let it in.
10 CHAIRMAN BECHHOEFER: I concur in Judge 11 Young's reason as well.
12 MR. MARQUAND: I just want to make it 13 clear that they have never raised that as a 14 contention.
15 ADMINISTRATIVE JUDGE YOUNG: I understand.
16 And the victim impact issue that you raise is well 17 taken, as well, because that is not something that we 18 have to rule on.
19 MR. MARQUAND: But that might be 20 appropriate to DOL.
21 CHAIRMAN BECHHOEFER: Well, be that as it 22 may, we will admit it, at least for both of the 23 reasons. And I think Dr. Cole joins both of them as 24 well.
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2381 1 (The document referred to, 2 having been previously marked 3 for identification as Joint 4 Exhibit 29 was received in 5 evidence.)
6 BY MS. EUCHNER:
7 Q After you resigned from TVA were you 8 offered any positions?
9 A I guess I was.
10 Q By whom?
11 A By Mr. Phil Reynolds.
12 Q And what position did he offer you?
13 A He, as I recall, that document I'm sure is 14 here somewhere, he basically offered me the job that 15 I was not selected for, as I recall.
16 Q And that was the PWR chemistry program 17 manager?
18 A That was a, not the, but a PWR chemistry 19 program manager position, that is correct.
20 ADMINISTRATIVE JUDGE YOUNG: Mr. Reynolds 21 later offered you that position?
22 THE WITNESS: Yes, Your Honor.
23 ADMINISTRATIVE JUDGE YOUNG: Did you say 24 when?
25 MS. EUCHNER: I said after he resigned.
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2382 1 BY MS. EUCHNER:
2 Q Do you recall approximately when Mr.
3 Reynolds offered you that position?
4 A As I recall, and that letter is in here, 5 I'm certain, it was in September.
6 ADMINISTRATIVE JUDGE YOUNG: Of '96?
7 THE WITNESS: Yes, Your Honor.
8 CHAIRMAN BECHHOEFER: Did you say that he 9 offered you the PWR program manager position, or a 10 position that paid the same? I didn't get that.
11 THE WITNESS: Well, the distinction I 12 guess that I'm trying to make is the job that we, the 13 job that we were interviewing for was filled by Mr.
14 Sam Harvey.
15 But he came back and essentially offered 16 me another job that was equivalent to that one.
17 CHAIRMAN BECHHOEFER: So an equivalent 18 job.
19 ADMINISTRATIVE JUDGE YOUNG: Working in 20 your previous office, same office?
21 THE WITNESS: Yes, for the same office, 22 reporting to the same people, which would be Dr.
23 McArthur and Mr. McGrath.
24 BY MS. EUCHNER:
25 Q Did you accept that offer?
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2383 1 A No, I did not.
2 Q Why not?
3 A Well, the reasons are varied. I did not 4 trust Dr. McArthur, I did not trust Mr. McGrath. I 5 had had a piece of paper signed by a TVA vice 6 president at one time that guaranteed that I would go 7 back to my position at Sequoyah, which was a lie, they 8 did not do that.
9 I had a piece of paper signed by a TVA 10 vice president that said my job at Sequoyah had been 11 surplused, that was a lie, it had been upgraded. I 12 have now, before me, another piece of paper stating 13 that mysteriously I have a job again. How long is 14 this piece of paper going to be good, how long is that 15 signature going to be good?
16 Am I going to, here again, accept these 17 people at face value, thinking their signature means 18 something? I dare not, because I could accept that, 19 and be on the street again, because they come in and 20 they add some functions that we never do, and take 21 them away, and then what happens?
22 You cannot trust what these people say, 23 you cannot trust what these people do, you cannot 24 trust what these people write and sign. These people 25 are untrustworthy and will lie for a fact.
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2384 1 So I felt like to accept that worthless 2 piece of paper, as I had accepted others in the past, 3 would be setting me up for getting the, or for losing 4 the severance package. And these people are not 5 beyond doing that, as they have already demonstrated 6 time and time again.
7 ADMINISTRATIVE JUDGE YOUNG: Were you 8 going to have to give up the severance package to take 9 the job, is that --
10 THE WITNESS: That is correct. So I have 11 enough history, I may be a slow learner, but I have 12 for sure learned that you cannot trust what these 13 people do, or say, or write.
14 BY MS. EUCHNER:
15 Q Was your 1996 DOL complaint litigated 16 before the Department of Labor?
17 A Yes, it was.
18 MS. EUCHNER: We are going to Staff 19 Exhibit 147, which is in volume 8 of the Staff's 20 exhibits.
21 (Pause.)
22 MR. MARQUAND: Your Honor, I'm going to 23 object to any sort of documents that come in from the 24 Department of Labor case, the Pleadings, what have 25 you.
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2385 1 That case was not litigated to conclusion, 2 it was in front of an ALJ, it did not go to a hearing.
3 And whatever the Department of Labor brief was in that 4 case is irrelevant to this case.
5 That was supposed to be a de novo 6 proceeding, it wasn't decided. This is a brief filed 7 by the Department of Labor. I don't see any 8 relevance, I don't see that it has any appropriateness 9 in this kind of case. It is a departmental brief.
10 MS. EUCHNER: This is a brief filed by TVA 11 to the Department of Labor.
12 MR. MARQUAND: Anybody's brief wouldn't be 13 relevant. An NRC brief in this case is not evidence.
14 A brief filed by TVA and the Department of Labor is 15 not evidence.
16 ADMINISTRATIVE JUDGE YOUNG: For what 17 purpose are you offering it?
18 MS. EUCHNER: Well, initially I was going 19 to get through the settlement of Mr. Fiser's 20 complaint. But the reason why this particular 21 document is relevant is that it is one of the pieces 22 of paper that the Staff read when considering this 23 Notice of Violation, based on what TVA's contentions 24 were, as they stated there, and then what their later 25 contentions were when they came in for the pre-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2386 1 decisional enforcement conferences.
2 MR. MARQUAND: Then that is something for 3 the Staff to deal with, not with a witness on the 4 stand.
5 MS. EUCHNER: I'm merely having him 6 identify the document.
7 MR. MARQUAND: If the document is 8 relevant, we will stipulate to what it is, but it is 9 not appropriate for this witness to testify about 10 anything in that proceeding, about the legal 11 proceedings that happened in that case.
12 As counsel said, the case was settled, 13 there was no decision.
14 MS. EUCHNER: Well, there was a decision 15 on this brief.
16 MR. MARQUAND: And that decision wouldn't 17 be relevant, either. A decision on Summary Judgement 18 is only that there may be some disputed issues of 19 fact. That is not a decision on the merits of the 20 case either, and it is not relevant.
21 MS. EUCHNER: Well, the decision also 22 notes some areas of undisputed fact.
23 ADMINISTRATIVE JUDGE YOUNG: Well, without 24 the --
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2387 1 have this witness testify about it, in any event.
2 MS. EUCHNER: The only thing I'm going to 3 have this witness testify to is what this brief is, 4 that he saw it at the time. I'm not going to have him 5 testify to the contents of it right now. I'm merely 6 having him identify it because he is familiar with the 7 document, and he is the appropriate person to enter 8 this through, because we are not going to call either 9 his lawyer, or if Mr. Marquand would like to identify 10 it, we will call him to identify it.
11 MR. MARQUAND: Counsel said considered it 12 appropriate to have Mr. Luehman testify about it, 13 since he is the one who spoke for the Staff about what 14 was considered in issuing the violation, not this 15 witness.
16 And if it is necessary for this document 17 to come into the record, we can stipulate between the 18 parties as to the document. But it is still 19 inappropriate to have this witness testify about legal 20 proceedings which resulted in a settlement, which were 21 another forum, which were supposedly a de novo 22 proceeding, which would have only resulted in a 23 recommended decision, at best.
24 ADMINISTRATIVE JUDGE YOUNG: Let me just 25 say something. There are two theories under which I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2388 1 can imagine something like this coming in. One is 2 reas judicata, and the law on applying that, from one 3 administrative forum to another is somewhat complex.
4 I don't know it at the federal level. That is one 5 theory. If there were, in fact, some findings about 6 undisputed facts.
7 Secondly, I think I understood Ms. Euchner 8 to say something to the effect of it being a statement 9 against interest of TVA. Apart from that I agree with 10 you that it would not be relevant.
11 If the parties want to argue the other 12 theory, you are welcome to. I'm not understanding 13 from you, Ms. Euchner what purpose for which you are 14 offering this, and for him to just identify it, I 15 guess I don't see the relevance, speaking for myself.
16 MR. MARQUAND: I think the first issue is 17 readily disposed, and that is reas judicata. Reas 18 judicata requires a final decision. Even a decision 19 on summary judgement is an interlocutory decision.
20 There was no decision by the ALJ on the 21 merits of the case, because it never went to trial.
22 ADMINISTRATIVE JUDGE YOUNG: Well, I 23 haven't read it. If there were any findings that were 24 final, I don't know. But you are right --
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2389 1 period, because there was never a final decision.
2 Reas judicata is, by definition, inappropriate here.
3 I don't know what alleged statement against interests 4 are made, but this witness isn't appropriate to 5 testify to it.
6 Again, if it is appropriate for this 7 particular document to come in, we can stipulate to 8 it.
9 MS. EUCHNER: Well, I wasn't offering it 10 for reas judicata, or collateral estoppel effect, 11 because it is not a final decision. I was offering it 12 in the nature of a statement against interests, 13 because everything that they stated in here is not 14 necessarily consistent with what witnesses have stated 15 in their prior statements, and what TVA's 16 representatives, including some of these witnesses, 17 represented to the NRC at the pre-decisional 18 enforcement conferences.
19 That is the sole purpose for which we are 20 introducing this.
21 CHAIRMAN BECHHOEFER: I think it would be 22 a good idea if you all could stipulate what the 23 document is, and to what purpose the Staff wishes to 24 use it for, and not the merits of the positions stated 25 therein, it is my understanding.
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2390 1 MS. EUCHNER: That would be fine with the 2 Staff, Your Honor, to stipulate to that effect.
3 ADMINISTRATIVE JUDGE YOUNG: Mr. Marquand 4 offered to try to enter into a stipulation with you, 5 you try to do that. If you can't, bring it back to us 6 later, and we will consider whatever your arguments 7 are.
8 At this point I think we are agreeing to 9 exclude it.
10 (The document referred to, 11 having been previously marked 12 for identification as Staff 13 Exhibit No. 147 was excluded.)
14 CHAIRMAN BECHHOEFER: You may proceed.
15 BY MS. EUCHNER:
16 Q I have one final question for you, Mr.
17 Fiser.
18 What was the final result of your 1996 DOL 19 complaint?
20 A The final result was, it was -- there was 21 a settlement between TVA and myself to settle the 22 issue.
23 Q And when was that settlement?
24 A The exact date I cannot remember it. I 25 think it was in 1997.
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2391 1 Q In 1997, or 1998?
2 A It could have been 1998. We were working 3 on it in 1997, probably finished it in 1998.
4 MS. EUCHNER: I have no further questions 5 of this witness, barring any questions related to 6 staff exhibit 147, if we are unable to reach a 7 stipulation.
8 ADMINISTRATIVE JUDGE YOUNG: Before we go 9 to cross, I had a few questions that I wanted to 10 clarify, that I didn't interrupt on.
11 And I'm not sure that it is relevant at 12 this point. One of the things I had written was the 13 relationship of your resignation to the DOL complaint, 14 but I think at this point that is not relevant.
15 There was a question you were asked, why 16 did you decide to file your complaint before the 17 interview. And I didn't understand your answer, to 18 respond to that question. You gave your reasons for 19 filing your complaint, and I understood the question 20 to be, why did you file your complaint before the 21 interview that you had for the PWR job.
22 THE WITNESS: The reason I did that was 23 the -- essentially the job that was posted was for, in 24 all practical essence, the exact job that I had been 25 offered to settle --
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2392 1 ADMINISTRATIVE JUDGE YOUNG: Hold on, I'm 2 not asking you for your reason for filing the 3 complaint. I'm asking, what I understood counsel's 4 questions to be, the reason for the timing of filing 5 the complaint.
6 In other words, what I understood her to 7 be asking you was, why didn't you wait and see if you 8 got the job before you filed the complaint.
9 THE WITNESS: Because I felt that when 10 they posted my job they were in violation of their 11 settlement offer to me.
12 ADMINISTRATIVE JUDGE YOUNG: But was there 13 some time limit on when you could file it?
14 THE WITNESS: Well, there is a time limit, 15 but --
16 ADMINISTRATIVE JUDGE YOUNG: So if it is 17 six months you would have had time if you waited to 18 see whether you got the job through the interview 19 process?
20 THE WITNESS: That is correct.
21 ADMINISTRATIVE JUDGE YOUNG: So what I 22 understood counsel to ask you was why did you file 23 before the interview, if your theory, if your views on 24 the retaliation are correct, it would seem that that 25 would create a more unfavorable atmosphere.
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2393 1 THE WITNESS: The reason I filed at that 2 time was because when they posted that job, in my 3 mind, they violated their settlement agreement with 4 me.
5 ADMINISTRATIVE JUDGE YOUNG: What I'm 6 trying to get at is, if you could file for six months, 7 and it was suggested to you, try for the job, do the 8 interview, and you decided to do the interview, the 9 question that counsel's question raised in my mind 10 was, well yes, why didn't you see what happened with 11 the interview, and then if you didn't get the job, 12 then file the complaint.
13 THE WITNESS: Because, in my mind, when 14 the violation occurred I filed the Department of Labor 15 complaint.
16 ADMINISTRATIVE JUDGE YOUNG: Would you 17 have given up any right to do that by waiting to see 18 whether you got the job?
19 THE WITNESS: No, but in my mind the 20 violation had already occurred, so go ahead and file.
21 ADMINISTRATIVE JUDGE YOUNG: Okay. With 22 regard to the questions in the interview, and primary 23 and secondary chemistry, my understanding is that the 24 person in the PWR job would have to know both primary 25 and secondary chemistry?
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2394 1 THE WITNESS: That is correct.
2 ADMINISTRATIVE JUDGE YOUNG: Did you feel 3 that you were unable to answer the two questions that 4 you mentioned, well you mentioned three, but the two 5 in particular -- well, you can mention all three if 6 you want.
7 But did you feel -- I got the impression 8 that you felt that asking the questions about denting, 9 molar ratio concentration, and the INPO index were 10 unfair to you because you knew more about primary 11 chemistry, and these were secondary chemistry 12 questions.
13 Did I understand that right?
14 THE WITNESS: That is partially correct, 15 yes, Your Honor.
16 ADMINISTRATIVE JUDGE YOUNG: Did you feel 17 handicapped in your ability to answer these questions 18 about secondary chemistry?
19 THE WITNESS: Only in light of the fact 20 that I was working at Watts Bar nuclear station, that 21 had never gone critical, or had recently started up.
22 And there was one question, in particular, the 23 chemistry INPO index, which we used to address that 24 daily at Sequoyah, when I was the chemistry 25 superintendence there.
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2395 1 In between the time I was at Sequoyah and 2 we started up Watts Bar, that INPO changed the 3 calculation for how you would meet the chemistry 4 index.
5 Since we had never operated, we had never 6 calculated the new number, therefore I was unaware of 7 it, just by virtue of the fact that I was in a plant 8 that was not operating.
9 So certainly somebody who addressed that 10 in a monthly report, Sam at Sequoyah, would be in a 11 position to answer that since he dealt with it all the 12 time.
13 I was not, we didn't even know the new 14 numbers until I called INPO to get the new 15 calculation.
16 ADMINISTRATIVE JUDGE YOUNG: And when you 17 say the numbers, are you referring to certain required 18 numbers that you, that INPO --
19 THE WITNESS: Uses to compare us.
20 ADMINISTRATIVE JUDGE YOUNG: And they had 21 changed since you had worked at Sequoyah?
22 THE WITNESS: That is correct. And 23 therefore I was not up on the new calculation.
24 ADMINISTRATIVE JUDGE YOUNG: But you knew 25 their purpose, and what it was for?
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2396 1 THE WITNESS: Yes, I just did not know the 2 specific calculation.
3 ADMINISTRATIVE JUDGE YOUNG: And on 4 denting and molar ratio concentration, did you feel 5 handicapped for some reason in being able to answer 6 those questions?
7 THE WITNESS: No, those questions are long 8 standing issues that would really not have impacted.
9 The thing I was most concerned about was the fact that 10 there was not a question on the -- in the 11 interviewing process that basically dealt with why a 12 nuclear power plant is a nuclear power plant.
13 There was nothing in there that said what 14 happens if argon 41 stays constant, and xenon 133 15 doubles, what happens on the radioactive side of the 16 house, how do you handle it, and how do you interpret 17 primary chemistry data, which you have to know, to 18 enter this job, there was nothing there.
19 ADMINISTRATIVE JUDGE YOUNG: Let me see if 20 I can understand something right here.
21 THE WITNESS: Okay.
22 ADMINISTRATIVE JUDGE YOUNG: Were you more 23 concerned with the presence of the secondary chemistry 24 questions, or the absence of the primary chemistry 25 questions?
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2397 1 THE WITNESS: The absence of the primary 2 questions. There was nothing on there that dealt with 3 why a nuclear plant is a nuclear plant.
4 ADMINISTRATIVE JUDGE YOUNG: The last 5 thing that I wanted some clarification on was Mr. Kent 6 was one of the people who interviewed you. And from 7 what we heard earlier, he had been very favorable 8 towards you in the past.
9 And yet I got the impression that you were 10 concerned that Mr. Cox would have been the one who 11 would have been more favorable to you?
12 THE WITNESS: That is correct.
13 ADMINISTRATIVE JUDGE YOUNG: Was there 14 something about Mr. Kent that I don't understand?
15 THE WITNESS: Just in the previous two or 16 three year period he had not had an opportunity to 17 work with me. He had worked very closely with Sam, 18 and developed a good rapport with Sam.
19 And the fellow who I had worked very 20 closely with, which was Mr. Jack Cox, and who had 21 developed a good relationship with me, was not going 22 to be there to represent me, in essence, to hold his 23 own against the other RADCHEM managers, who would be 24 making the selection between essentially Sam and 25 myself.
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2398 1 Because Mr. Reynolds just did not have 2 that information available to him, since I had not 3 worked with him, and I did not feel like he could hold 4 his own in a three way debate, or discussion about who 5 would be best suited for this position.
6 ADMINISTRATIVE JUDGE YOUNG: Did you --
7 what made you feel that -- I get the impression from 8 what you are saying that you thought the decision 9 would be made based on who the interviewers were sort 10 of rooting for, voting for, not on the sort of neutral 11 judgement on the answering of the questions.
12 What made you feel that way?
13 THE WITNESS: Just based on the numerous 14 favorable comments that Mr. Cox had offered on my 15 behalf in the past, and I felt like he would be a good 16 representative for the work and the job that I had 17 performed at Watts Bar over the preceding two years.
18 And with Mr. Reynolds there, although he 19 is a fine man, he did not have that knowledge, he 20 could not stand up and say, vouch for my job 21 performance adequately over the past two years, 22 whereas Mr. Cox could have.
23 ADMINISTRATIVE JUDGE YOUNG: So you 24 understood the interview process to be looking at your 25 past, rather than concentrating on your current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2399 1 answers to the questions that you were asked?
2 THE WITNESS: I would look at it as both.
3 ADMINISTRATIVE JUDGE YOUNG: Thank you.
4 CHAIRMAN BECHHOEFER: I have one follow-5 up.
6 THE WITNESS: Yes, Your Honor?
7 CHAIRMAN BECHHOEFER: Of all those 8 questions, some of them were circled here on Joint 9 Exhibit 22, I think it is. These are at Joint Exhibit 10 22 pages 422 and 3.
11 Some are circled, and some are not.
12 THE WITNESS: That is correct.
13 CHAIRMAN BECHHOEFER: Would some of the 14 non-circled questions would you have performed better 15 with respect to some of the non-circled, or circled 16 plus cross out, there was one that was circled and 17 crossed out.
18 If those had been substituted, in part for 19 those, the ones -- do you think that would have been 20 preferable?
21 THE WITNESS: As I recall no matter which 22 ones they selected, there was nothing to do with the 23 radioactive side of the nuclear plant, the reactor 24 core, the interpretation of reactor coolant data, 25 radioactive effluents, gaseous or liquid, meeting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2400 1 10CFR20 requirements.
2 There was nothing to do with the primary 3 side of the plant, which is really odd to me that you 4 can have somebody interviewing for a position like 5 this, and you don't ask one question about the primary 6 side of the plant, which is what makes it a nuclear 7 plant.
8 And, I might add, that is where a 9 significant portion of my background and knowledge 10 base resided, was on the primary side of the plant.
11 Those were excluded.
12 ADMINISTRATIVE JUDGE COLE: Do you have 13 any theories as to why they did that, sir?
14 THE WITNESS: I know that this list of 15 questions was devised by Dr. McArthur.
16 ADMINISTRATIVE JUDGE COLE: With respect 17 to the different types of chemistry problems at 18 nuclear power plants, which type of chemistry, primary 19 or secondary chemistry, were they having the most 20 problems with at that time?
21 THE WITNESS: At that particular time it 22 would be secondary. When I first went to work at 23 Sequoyah we were having significant problems on the 24 primary side, with gross failed fuel.
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2401 1 be the reason why they put in more secondary chemistry 2 questions, figuring that they might already have a 3 hold on the primary chemistry situation?
4 THE WITNESS: That I cannot answer except 5 to say that I feel like Dr. McArthur knew that my 6 strong point was primary chemistry. Sam's strong 7 point was secondary chemistry.
8 So I would have, I guess I would have a 9 problem giving intellectual assent to that notion. I 10 think that it was probably a little more premeditated 11 than that.
12 CHAIRMAN BECHHOEFER: Well, I was looking, 13 mostly, of these questions you weren't asked. I was 14 looking at number 14. Do you have that in front of 15 you?
16 THE WITNESS: Which tab are you on, Your 17 Honor?
18 CHAIRMAN BECHHOEFER: Joint 22, 422.
19 ADMINISTRATIVE JUDGE YOUNG: Do you want 20 me to read you the question?
21 CHAIRMAN BECHHOEFER: I'm just wondering 22 whether this would have been a question you think you 23 might have handled well.
24 THE WITNESS: Which one are you looking 25 at?
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2402 1 CHAIRMAN BECHHOEFER: I'm talking about 2 number 14 which says, if an INPO evaluation determined 3 that a concern should be a finding, and you disagreed, 4 how would you attempt to resolve the issue?
5 My understanding is that you had been 6 involved in a number of INPO issues at Sequoyah. And 7 would that have been sort of tailored to your past 8 experience a bit more than those of the others? I 9 don't know what the others' backgrounds are.
10 THE WITNESS: No, sir that would pretty 11 equal for everybody.
12 CHAIRMAN BECHHOEFER: I see.
13 ADMINISTRATIVE JUDGE YOUNG: A couple more 14 questions occurred to me. I want to ask you, for a 15 moment, to imagine, assuming that at that point there 16 was no discrimination going on. If called upon to 17 reduce the number of chemistry program managers from 18 three to two, and all other considerations aside, was 19 dividing it, in your opinion, dividing it up into the 20 PWR and BWR categories a reasonable way to assure full 21 coverage?
22 For example, if you had -- if you ended up 23 going, say for example, by seniority, and you ended up 24 with two BWR people, would TVA be able to adequately 25 address Sequoyah and Watts Bar problems with people NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2403 1 who were more BWR experts?
2 Or is there another way to assure full 3 coverage, just from the point of view of trying to 4 figure out how you get the most expertise to address 5 all of TVA's chemistry problems in two individuals?
6 THE WITNESS: I think that in the scenario 7 you just outlined that it would be better to have a 8 BWR person with background of BWR, and a PWR person 9 with background in PWR.
10 Now, it is my understanding, from talking 11 to people who routinely work at both BWR and PWRs, the 12 feedback I get is if they had their pick of one of 13 those, they would choose the PWR person, because BWR 14 plants are, well, virtually simple by design, compared 15 to a PWR.
16 So I guess that certainly a BWR and a PWR 17 person would be more preferable. The second thing 18 would be two PWR people. The last desirable would be 19 two BWR people. Does that help?
20 ADMINISTRATIVE JUDGE YOUNG: I just wanted 21 to get your view on that.
22 And then finally when you went into the 23 interviews, were you able to go into your interview 24 and put aside all of your other concerns and say, 25 well, this is the hand I've been dealt, I'm going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2404 1 do my very best in this interview.
2 Were you able to do that, or was your 3 having filed the complaint prior to that time, could 4 that have affected your performance in the interview?
5 THE WITNESS: I understand the question, 6 and I absolutely went into it with the mindset of 7 doing the very best I could at answering all of their 8 questions so I would look as good as I possibly could 9 in answering those questions.
10 ADMINISTRATIVE JUDGE YOUNG: Thank you.
11 THE WITNESS: You are welcome.
12 ADMINISTRATIVE JUDGE COLE: How do you 13 think you did in the exam?
14 THE WITNESS: I think I did fine in the 15 exam, I really do. I think I came across well, you 16 know? I -- the last thing they asked of me, as I was 17 walking out the room was, do you have any questions of 18 us?
19 And essentially as I was almost ready to 20 leave, my only question was, you know, I just said 21 where is Jack Cox, I wish Jack Cox had been here. I 22 feel like it would have -- basically that is the only 23 thing I said, is I felt like he should have been 24 present.
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2405 1 have probably rescheduled the interview for a day or 2 so later, whenever he got back.
3 ADMINISTRATIVE JUDGE YOUNG: You said 4 that?
5 THE WITNESS: I did not say that last 6 part. That is the reason I said, you know, where is 7 Jack Cox? And I got no response to that answer.
8 MR. MARQUAND: I'm not sure I heard you.
9 Did you say where is Jack Cox, I wish he had been 10 here, it would -- I don't understand what was in his 11 mind versus what he asked.
12 THE WITNESS: The only thing that I asked 13 of them was where is Jack Cox.
14 ADMINISTRATIVE JUDGE YOUNG: Did that 15 answer your question?
16 MR. MARQUAND: Yes, thank you.
17 ADMINISTRATIVE JUDGE YOUNG: When you 18 asked them that question what did you think -- what 19 impression do you think that would create in the 20 interviewers?
21 THE WITNESS: The only impression that I 22 think it would have left is, guys I don't think this 23 is entirely fair, to be conducting the interviews with 24 the RADCHEM manager of Sequoyah present, the RADCHEM 25 manager of Browns Ferry present, and the RADCHEM NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2406 1 manager of Watts Bar not present.
2 I think it would have been better if they 3 had just backed it off a couple of days, it would have 4 been easy.
5 ADMINISTRATIVE JUDGE YOUNG: Do you think 6 that saying that would be likely to make them view you 7 more favorably, or less favorably?
8 THE WITNESS: I could not answer that 9 question, I don't know. My reason for it was to 10 challenge them to be fair in their deliberations, 11 knowing that Jack Cox is not there to represent the 12 work I had done, over the past two years.
13 CHAIRMAN BECHHOEFER: One further follow-14 on.
15 Do you believe that all of the candidates 16 for the chemistry program manager, both of them, could 17 adequately service the Browns Ferry plant, which is a 18 BWR? I sort of understood, from your previous 19 answers, that you thought that if the two involved 20 were PWR specialists, they could still service Browns 21 Ferry.
22 Or would that have caused other problems?
23 THE WITNESS: I'm not sure I understand 24 your question.
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2407 1 the BWR.
2 THE WITNESS: Yes, sir.
3 CHAIRMAN BECHHOEFER: To my understanding.
4 THE WITNESS: So what is the specific 5 question?
6 CHAIRMAN BECHHOEFER: Do you believe that 7 any of the candidates could properly, up for both 8 positions, could properly have serviced Browns Ferry, 9 for instance?
10 THE WITNESS: Well, I believe that all 11 three of us could have.
12 CHAIRMAN BECHHOEFER: Do you believe you 13 could have?
14 THE WITNESS: Oh, I certainly do. There 15 are a few things that you have to learn about a BWR.
16 Now, coming the other direction from a purely BWR 17 perspective, to a BWR is far more difficult than going 18 from a PWR to a BWR, that is a lot easier to do.
19 And I feel like that Dr. Chandrasekaran, 20 based on his experience, knowledge, and education, 21 would have in my opinion, and in his recent work 22 history, been far more appropriate for the BWR 23 position than either Sam or myself.
24 ADMINISTRATIVE JUDGE YOUNG: Did you apply 25 for both, or just PWR?
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2408 1 THE WITNESS: Just the P.
2 CHAIRMAN BECHHOEFER: Mr. Marquand, you 3 are up next, I take it?
4 MR. MARQUAND: Yes, Your Honor, I'm ready 5 and I'm on deck.
6 CHAIRMAN BECHHOEFER: Should we take a 7 brief afternoon break, ten minutes, maybe?
8 MR. MARQUAND: Sure.
9 CHAIRMAN BECHHOEFER: Or do you need more 10 preparation time?
11 MR. MARQUAND: I think I'm ready.
12 (Whereupon, the above-entitled matter 13 went off the record at 2:58 p.m. and 14 went back on the record at 3:16 p.m.)
15 CHAIRMAN BECHHOEFER: Back on the record.
16 CROSS EXAMINATION 17 BY MR. MARQUAND:
18 Q Mr. Fiser, I'm going to begin with 19 directing your attention to the fall of 1992, when you 20 were given a performance appraisal by Dr. McArthur.
21 Do you remember that performance 22 appraisal?
23 A Yes, I do.
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2409 1 you got that performance appraisal it was the first 2 time that you got any idea that management was 3 dissatisfied with your performance while you were 4 Sequoyah chemistry manager, is that correct?
5 A That is correct.
6 Q And that performance appraisal, I believe, 7 was around November of '92?
8 A That is approximately correct.
9 Q I'm sorry, September of '92.
10 A I think that is more correct.
11 Q In fact I will show you, so we make sure 12 we are not guessing, Joint Exhibit 33, that is your 13 signature, and that is dated 9-8-92, right?
14 A That is correct.
15 Q All right. And so your testimony is, 16 until you saw that review, you had no idea that 17 Sequoyah management had been dissatisfied with your 18 performance at Sequoyah?
19 A As I recall that is correct.
20 Q Now, as I also recall your testimony you 21 said you went on this rotation beginning in March of 22 '92, and it was supposed to last until March of '93, 23 from Sequoyah chemistry to downtown corporate 24 chemistry?
25 A That is correct.
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2410 1 Q So from March of '92 until September of 2 '92 you were gone six months. But you said prior to 3 leaving, and you said you initiated a conversation 4 with Jack Wilson and Rob Beecken in the stairwell of 5 the plant?
6 A That is correct.
7 Q Did you normally conduct and make 8 appointments with people, conduct business and make 9 appointments to conduct business with people in 10 stairwells at the plant?
11 A Wherever I could find them, yes.
12 Q So this was just a conversation that 13 occurred when you happened to run into them?
14 A That is correct.
15 Q It wasn't that they called you into their 16 office and said, Gary, here is why we are sending you 17 downtown, it was more along the lines, the decision 18 had already been made, you were going to go downtown, 19 and you ran into them, and you initiated the 20 conversation with them?
21 A That is correct.
22 Q And in this -- were you already packed up 23 by this point in time?
24 A No.
25 Q But you knew you were leaving?
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2411 1 A I can't remember if it was formalized, or 2 if we were still thinking about it, or if I was -- you 3 know, I just can't remember exactly when that 4 conversation took place, relative to the swap, I'm not 5 sure.
6 Q Now, when you testified about it, I jotted 7 down, I tried to jot down your testimony. And what I 8 think I wrote down was that you wanted to make sure 9 that they weren't upset with you?
10 A That is correct.
11 Q Why would you think that they might be 12 upset with you, why would you be asking them that if 13 you were going on this rotational?
14 A I'm not sure that I was. I know they were 15 upset with Mr. Bill Jocher. That is the feedback I 16 was getting.
17 ADMINISTRATIVE JUDGE YOUNG: They were 18 upset --
19 THE WITNESS: With Mr. Bill Jocher. At 20 least that is what Mr. Beecken had indicated, and 21 later on --
22 BY MR. MARQUAND:
23 Q Later on he told you that, didn't he, but 24 he didn't tell you that then, did he?
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2412 1 incorrect.
2 Q Pardon me?
3 A I think at that point he made some 4 statement like let's get, we want to get Jocher out 5 here and see if he can --
6 ADMINISTRATIVE JUDGE YOUNG: We want to 7 get Jocher out of here and what --
8 THE WITNESS: We want to get Mr. Jocher 9 out here at Sequoyah and see if he can do something, 10 rather than just complain about things that other 11 people are doing, or something like that.
12 So I think you are incorrect, as I recall.
13 BY MR. MARQUAND:
14 Q In fact, what they said was, actually up 15 to that point in time, Bill Jocher, who had been the 16 corporate chemistry manager, had been a very vocal 17 critic of you and the Sequoyah chemistry program, 18 hadn't he?
19 A At times I think that is correct.
20 Q And he had brought up a litany of things 21 that he was critical of about Sequoyah chemistry?
22 A I don't know about a litany, but he did 23 bring up things that he was unhappy about. That is 24 correct.
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2413 1 your language. Are you disagreeing with that now?
2 A I don't recall if it would be a litany of 3 things. If that was my language, or something I was 4 repeating I had heard from, perhaps, Wilson or 5 somebody else.
6 Q Do you remember when I took your 7 deposition on December 11, 2001?
8 A Yes, I do.
9 Q And referring to page 67, the beginning of 10 line 13, up until that time had you had any very vocal 11 critics? Answer: Oh, yes. Question: Who? Answer:
12 Bill Jocher. Question: And he was serving as a 13 corporate chemistry? Answer: Yes, he was.
14 Question: And what was he critical of?
15 Answer: There was a litany of things that he was 16 critical of. Question: With respect to Sequoyah 17 chemistry? Answer: Sequoyah, Browns Ferry, Watts 18 Bar, you name it.
19 A So it could have been all of them, I mean, 20 I don't know.
21 Q You agree that there was a litany of 22 things that he was critical with, and the way you 23 answered that question it sounded like you thought he 24 was critical of everything?
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2414 1 question is he was critical of everything at every 2 plant.
3 ADMINISTRATIVE JUDGE YOUNG: I'm sorry, I 4 missed that --
5 THE WITNESS: I believe the way that I 6 answered that question is not the way counsel is 7 representing it. The way I answered that question is 8 Mr. Jocher was a very vocal critic of things that were 9 going on at all three plants.
10 BY MR. MARQUAND:
11 Q And --
12 A So that would lead to a litany of things, 13 yes.
14 Q As it was explained to you, management's 15 feeling was he is raising all these issues, and saying 16 that there are all these problems out there, they 17 wanted to bring him out to the plant to see if he 18 could fix those problems, didn't they?
19 A They wanted to bring him out to the plant 20 to see if he could perform, that is correct.
21 Q Okay.
22 A And that is what I recall Mr. Beecken 23 saying, he wanted to see if he could perform as 24 opposed to just be critical of things.
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2415 1 to him, but to see if they could fix the problems that 2 he had identified at the plant, right?
3 A Would you repeat that question?
4 Q It wasn't intended as a punishment for 5 Jocher, but it was intended to see if he could fix the 6 problems he was identifying? He appeared to be a go-7 getter.
8 A Yes, I would say that that is correct, he 9 did appear to be a go-getter.
10 Q And so you had this meeting with Wilson, 11 and Beecken in the stairwell. And it wasn't something 12 that they had scheduled, it wasn't something they 13 called in to tell you that they were dissatisfied with 14 you, you just confronted them in the stairwell to ask 15 what was going on, correct?
16 ADMINISTRATIVE JUDGE YOUNG: Mr. Marquand, 17 when you say Wilson, are you referring to --
18 MR. MARQUAND: Jack Wilson, the former 19 site vice president.
20 THE WITNESS: Yes. Although, you know, 21 I'm not so sure that perhaps in that exchange they may 22 have initiated the conversation instead of me. I 23 cannot recall for sure. But I do remember having the 24 exchange.
25 BY MR. MARQUAND:
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2416 1 Q It was a fairly jocular discussion, 2 weren't they just kidding you about taking an easy job 3 downtown?
4 A As I recall there was some kidding going 5 on, yes.
6 Q And, in fact, in this discussion Rob 7 Beecken said this would be a chance for you to broaden 8 your horizons?
9 A That is correct. He viewed it as an 10 opportunity for me to expand myself, yes.
11 Q Now that you look back on it, and you 12 think about it, and you think about his use of the 13 words broaden your horizons, do you think maybe he was 14 suggesting to you that that was an opportunity for you 15 to find something else to do?
16 A Absolutely not.
17 Q Your supervisor at the time this rotation 18 was worked out was Pat Lydon, right?
19 A That is correct.
20 Q He was the operations manager?
21 A That is correct.
22 Q I'm going to hand you what I'm marking as 23 TVA exhibit 122.
24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2417 1 (Whereupon, the above-2 referenced to document was 3 marked as TVA Exhibit No. 122 4 for identification.)
5 BY MR. MARQUAND:
6 Q Was Mr. Lydon in favor of your rotation 7 downtown?
8 A As I recall that is correct, he was.
9 Q Was he dissatisfied with your performance?
10 11 A He did not appear to be.
12 Q He was only your supervisor for a very 13 short period of time before you went downtown, right?
14 A That is correct.
15 Q Now, after you filed your 1993 Department 16 of Labor complaint, you were also aware that the 17 Nuclear Regulatory Commission's office of 18 investigation was also investigating your allegations, 19 correct?
20 A I know they met with me. Mr. Vorse, with 21 the office of investigations, met with me one time.
22 I don't know that he was actively investigating the 23 case, though, after that meeting.
24 Q He interviewed you, right?
25 A That is correct.
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2418 1 Q And in that interview you provided him 2 what has been entered into the record as Joint Exhibit 3 27, your sequence of events, and told him that 4 documented what had happened to you?
5 A As I recall that is correct.
6 Q As I said, I'm going to hand you TVA 7 exhibit 122. For the record, this is a -- the first 8 page is a fax cover sheet, and there is an exhibit 9 label sticker in the top right-hand corner, which we 10 could ignore, but that sticker refers to the fact that 11 it was deposition exhibit 5 of Mr. Fiser's December 12 11th deposition.
13 Let's walk through this, Mr. Fiser. The 14 first page is a fax cover sheet from you to Jim Vorse 15 with the OI, right?
16 A That is correct.
17 Q And the second page is a description of 18 the document, and your conclusions that you wanted to 19 draw from the document, right?
20 A Let me take a look at it just a second.
21 (Witness reviews document.)
22 THE WITNESS: Now, what was your last 23 question?
24 BY MR. MARQUAND:
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2419 1 of the following pages, and the conclusions you wanted 2 Mr. Vorse to draw from --
3 A I don't necessarily agree with that 4 statement, clearly.
5 Q But that is your language on the second 6 page?
7 A That is my language on the second page.
8 Q Now, the third and fourth pages, and fifth 9 pages, are what you were also faxing to Mr. Vorse, is 10 a record of interview by TVA's Inspector General of 11 Pat Lydon, correct?
12 A That is correct.
13 Q And Pat Lydon had been your manager at 14 Sequoyah before you were rotated downtown?
15 A For a few weeks, that is correct.
16 Q So this was information that you had that 17 you were providing to Mr. Vorse in the context of 18 investigating your allegation of discrimination?
19 A This is part of it, that is correct.
20 Q All right. Now I had asked you whether or 21 not Mr. Beecken was satisfied with your performance at 22 the plant, and whether he wanted -- whether you 23 thought the term broaden your horizon might be a 24 euphemism to you to find another job.
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2420 1 page 3 of this record of interview of Mr. Lydon, do 2 you see the paragraph that begins, Bynum and Beecken, 3 wanted Lydon to fire Fiser, because he was not 4 competent.
5 A Yes, I do see that.
6 Q Now, and if you will look at the third 7 paragraph, the paragraph that begins, Lydon was 8 responsible for the following Sequoyah departments.
9 Do you see that paragraph?
10 A Yes, I do.
11 Q And it goes on to say that he was 12 responsible for operations, fire protection, work 13 control, chemistry and environmental. Now, look at 14 the second and third sentence. Do you see the 15 sentence that says: Lydon described Sequoyah's 16 chemistry program as quote, unbelievably bad. Lydon 17 advised that there are all kinds of longstanding 18 problems with Sequoyah's chemistry program.
19 A That is correct.
20 Q Did Lydon ever -- you never learned from 21 Mr. Lydon that he considered the program to be 22 "unbelievably bad, with all kinds of longstanding 23 problems"?
24 A The long standing problems, as I recall, 25 he was referring to would be the long standing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2421 1 equipment problems, and the problems in getting the 2 equipment fixed, as I recall. That is what he was 3 referring to.
4 Q Well, he --
5 A And yes, it was not only him, but a number 6 of people who were concerned about the long standing 7 equipment problems at Sequoyah.
8 Q It doesn't say equipment problems, it just 9 says with the program itself. I mean, it is not 10 limited here, is it?
11 A Well, right, but it depends on what 12 somebody means by program.
13 Q Well, I think in your testimony last week 14 you drew a distinction between problems with the 15 program, and problems with the maintenance of the 16 equipment, didn't you?
17 A In my testimony last week?
18 Q Yes.
19 A I would draw that distinction. And, 20 again, I do not know for sure what he is referring to 21 here.
22 Q And if you draw the --
23 A -- but the long standing problems that 24 were listed by INPO, and listed by others, had to do 25 with the outdated equipment that we had. And the fact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2422 1 that the chemistry upgrade project was an initiative 2 to get those long standing issues fixed.
3 Q Let me ask you to look at the fourth 4 paragraph, the next paragraph. That is the paragraph 5 that begins, Jocher initially was hired as a corporate 6 chemistry manager. Do you see that?
7 A Right.
8 Q And it goes on to say, due to the problems 9 at Sequoyah, Joseph R. Bynum, vice president of 10 nuclear operations, and Robert J. Beecken, plant 11 manager of Sequoyah, directed Jocher to replace Gary 12 L. Fiser, former manager chemistry Sequoyah in 13 February of 1992. Do you see that?
14 A Yes, I do.
15 Q Did you never have an inkling, at all, 16 that the reason behind this rotation was to bring 17 Jocher in to fix the problems, apparently these long 18 standing chemistry problems?
19 A Not at the time, no. I sure did not.
20 Q Now, in the two sentences below that it 21 says, you see the sentence that says: Fiser assumed 22 Jocher's position at corporate. Do you see that?
23 A Yes.
24 Q All right. And this rotation, Jocher came 25 from downtown to Sequoyah, and you went downtown, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2423 1 you were going to sit in Jocher's place, correct?
2 A That is correct.
3 Q Now, look at the next sentence. Do you 4 see the sentence that says, Lydon opined Fiser was not 5 competent to hold this position, because he did not 6 have any boiling water reactor experience. Do you see 7 that?
8 A That is correct.
9 Q And when he says this position, he is 10 referring to Jocher's position in corporate, correct?
11 A That is correct.
12 Q That is the corporate chemistry manager?
13 A That is correct.
14 Q The corporate chemistry manager who has to 15 be able to deal with both boiling water reactors, and 16 pressurized water reactors?
17 A That is correct.
18 Q And was Mr. Lydon correct that you did not 19 have any boiling water reactor experience?
20 A That is correct.
21 MR. MARQUAND: Your Honors, I tender TVA 22 exhibit 122.
23 MS. EUCHNER: Staff has no objection.
24 CHAIRMAN BECHHOEFER: TVA 122 will be 25 admitted.
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2424 1 (The document referred to, 2 having been previously marked 3 for identification as TVA 4 exhibit No. 122 was received in 5 evidence.)
6 BY MR. MARQUAND:
7 Q Now, Mr. Fiser, since you faxed this 8 record of interview of Pat Lydon to the office of 9 investigations in November of '95, and I presume you 10 read this before you sent it to them, right?
11 A That is correct.
12 Q So by November of '95 there was no doubt 13 in your mind that other people felt that you had been 14 removed as the corporate chemistry manager -- I'm 15 sorry, you had been removed as the Sequoyah chemistry 16 manager, because of longstanding problems?
17 A That --
18 Q And at least because Bynum and Beecken 19 thought you were not competent?
20 A That is incorrect.
21 Q Pardon me?
22 A That is incorrect.
23 Q You didn't have any knowledge of that, at 24 all?
25 A I had some information from Mr. Pat Lydon, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2425 1 who had been my supervisor for a few weeks. I don't 2 know now much insight he had into all of this. It is 3 just, you know, he was there for such a short period 4 of time, I just don't have a clue how much insight he 5 had into my job performance at Sequoyah.
6 Q I will grant you that he may not have 7 been there long enough to have personally observed it, 8 but his statement in his record of interview is that 9 Bynum and Beecken wanted him to fire you because you 10 were not competent.
11 And so it was apparently reported to him 12 that people in the management chain, the plant 13 manager, and the vice president of operations felt you 14 weren't competent. Isn't that right?
15 A I don't know where he got the information.
16 He might have gotten it through a clairvoyant, I 17 don't have a clue.
18 Q Well, when you read this, you at least had 19 some inkling that upper management felt that you 20 weren't competent to hold that position?
21 A No, I got an inkling that Mr. Pat Lydon 22 was of that impression. I don't know where he got the 23 information, because the information I was getting 24 from my management, the same guys you have already 25 mentioned, was exactly the opposite.
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2426 1 So I disagree with your premise 2 altogether.
3 Q By November of '95 we know you had tape 4 recorded a conversation with Rob Beecken, in which he 5 told you he didn't want you to come back to Sequoyah 6 because of --
7 A That is incorrect.
8 Q -- longstanding chemistry problems?
9 A That is incorrect, that was in December.
10 Q That was in December of '92?
11 A That was in December, and that was after 12 my meeting with Dr. McArthur.
13 Q But my point is, didn't Mr. Beecken, in 14 December of '92, tell you he didn't want you to come 15 back because he didn't feel you had been effective in 16 addressing the long standing chemistry problems?
17 A No, there were three reasons, as I recall.
18 He did not want me back, one was --
19 Q I think he cited those two as examples, 20 didn't he?
21 A -- a training issue, one was a monitor set 22 point issue in response to an I82 bulletin from NRC, 23 five years before I ever took the job. And the third 24 one was the fact that, as I recall, I would have to 25 get the document and look at it, that we had a poor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2427 1 INPO showing in my absence.
2 Those are the three reasons, as I recall.
3 If you will look at the document.
4 Q I've looked at it, we will look at it 5 again.
6 A Okay, we need to.
7 Q But at least when you saw this in November 8 of '95 it didn't raise any doubts in your mind as to 9 whether Bynum and Beecken thought you were competent 10 to hold that position?
11 A It caused me to wonder about Pat Lydon and 12 where he was getting this input. I just don't know. I 13 can only speak for what the guys tell me, personally.
14 Q So if somebody doesn't tell you personally 15 you are not going to accept the input of --
16 A If somebody tells me personally that they 17 are proud of the job I have done, and they are 18 encouraging me to go downtown, and to take on new 19 challenges, and that it is something that I deserve, 20 to get the opportunity to do, I believe that, that is 21 first-hand information, this is second-hand.
22 Q So you are telling me you wouldn't accept 23 any second-hand information to make any kind of 24 judgement on?
25 A Yes, I would make judgement on it.
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2428 1 Q Pardon me?
2 A I would make judgement on it.
3 Q This is second-hand information, why would 4 you not even consider it, to raise a doubt in your 5 mind as to whether or not they considered you to be 6 competent?
7 A Because it was in direct conflict with 8 first-hand information. You know it is something that 9 you have to factor away, and wonder what the heck is 10 going on, where he got the information. Did he get it 11 from Bill Jocher, did -- where did he get it, did he 12 get it from Tom McGrath? I don't know where the guy 13 got the information.
14 But it was from a different source than 15 what I had received mine.
16 Q Now, we --
17 A And I had received mine first-hand from 18 both Jack Wilson, and also --
19 Q -- talked briefly --
20 A -- from Mr. Rob Beecken, first-hand.
21 Q -- Joint Exhibit 33, which was your 22 September '92 service review. And when you got that 23 service review, first-hand, from Dr. McArthur, where 24 it said that Sequoyah needed a different approach to 25 solving problems in chemistry, and the rotation was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2429 1 initiated to face that issue, did that raise some 2 doubts in your mind as to what management thought 3 about you out at Sequoyah?
4 A As a matter of fact I was dumbfounded by 5 that statement.
6 Q Mr. Fiser, my question was, where it said, 7 Sequoyah needs a different approach, and this is in 8 the first page, under summary statement of employee's 9 performance and potential, second sentence: Sequoyah 10 needs a different approach to solving problems in 11 chemistry, and the rotation was initiated to face that 12 issue.
13 When you saw that, when Dr. McArthur gave 14 that to you, as you say first-hand, you certainly 15 realized that Sequoyah thought they needed something 16 besides you to address the longstanding problems in 17 chemistry, correct?
18 A May I have a copy of that?
19 Q Can you answer that yes or no?
20 A I cannot without looking at it, no.
21 (Witness reviews document.)
22 BY MR. MARQUAND:
23 Q Mr. Fiser, let's back up and take this one 24 step at a time. Do you see Joint Exhibit 33?
25 A Yes, I do.
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2430 1 Q Is Joint Exhibit 33 the employee appraisal 2 for fiscal year -- your employee appraisal for fiscal 3 year ending September 30th, 1992?
4 A That is correct.
5 Q Was it given to you first-hand by Dr.
6 McArthur?
7 A That is correct.
8 Q Do you see the heading, summary statement 9 of employee's performance and potential?
10 A Yes, I do.
11 Q Do you see the second sentence that says:
12 Sequoyah needs a different approach to solving 13 problems in chemistry, and the rotation was initiated 14 to face that issue?
15 A That is correct.
16 Q When you saw that, did that not raise an 17 inkling, in your mind, that Sequoyah thought they 18 needed somebody else to resolve problems at Sequoyah 19 company?
20 A I see Dr. Wilson McArthur's signature on 21 here as the one who typed, or who prepared this. And 22 I would see that as his assessment, not as Sequoyah's.
23 Q So you still, at that point in time, you 24 didn't understand that Sequoyah thought they had 25 problems that they needed to have somebody else to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 43 1 1 f ix?
2 A I understood this to be Dr. McArthur's 3 appraisal of me. My appraisals at Sequoyah are 4 already a documented issue that we have already gone 5 over. This is Dr. McArthur, this is not Sequoyah. Do 6 you see that?
7 Q Mr. Fiser, do you deny that when you read 8 this, that it raised a question in your mind as to 9 Sequoyah's view of your abilities to address the 10 chemistry problems at Sequoyah?
11 A I see this as Dr. McArthur's assessment.
12 Q Can you answer the question?
13 A The answer to the question is no, I see 14 this as Dr. McArthur's assessment.
15 Q My question was, do you deny, you are 16 saying you do not deny it?
17 A Repeat the question.
18 Q My question was, do you deny that this 19 raised a question in your mind as to whether Sequoyah 20 management felt that they needed somebody else to 21 solve the Sequoyah chemistry program?
22 A I deny that, I say it is Dr. McArthur's.
23 Q Do you deny that he had, or do you claim, 24 assert that he had no basis for making that statement?
25 A By his own words that is in fact the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2432 1 truth. Where he, himself said, if you ask me to prove 2 this, I can't. I have no basis for it. But that is 3 why I led to believe, that chemistry problems at 4 Sequoyah are being blamed on Gary Fiser. And boy, if 5 you ask me to prove that I would have no basis on 6 which to do it.
7 Q Let's look at Staff exhibit 30. No, it 8 should be Joint Exhibit 30.
9 (Pause.)
10 BY MR. MARQUAND:
11 Q Do you have Joint Exhibit 30?
12 A Yes, I do.
13 Q Is that your performance planning and 14 evaluation, essentially your performance review, it is 15 dated January 6th, 1989?
16 A That is correct.
17 Q It is signed by you?
18 A That is correct.
19 Q If you would turn to the next to the last 20 page, and I think the heading on that page is overall 21 evaluation. Do you see it?
22 A That is correct, right.
23 Q And your overall evaluation was adequate, 24 is that correct?
25 A That is correct.
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2433 1 Q Out of five possible ratings, you were 2 next to the bottom in your rating. Do you see that?
3 A That is correct.
4 Q Under supervisor's summary statement and 5 comments, do you see the sentence that says: The 6 overall performance of the chemistry group is not 7 acceptable?
8 A That is correct.
9 Q And this performance evaluation was given 10 to you by Steven Smith, is that right?
11 A And that is correct.
12 Q He was the plant manager at the time, is 13 that correct?
14 A That is correct. I was a direct report to 15 him at that time.
16 Q Let me ask you to look at the last page.
17 It is headed performance development, isn't it?
18 A That is correct.
19 Q Look at the very bottom paragraph. Do you 20 see where it says: Mr. Fiser must become more 21 aggressive in the performance of his duties?
22 A That is correct.
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2434 1 in a more timely manner?
2 A That is correct.
3 Q And do you see the last sentence that 4 says, Mr. Fiser has a tendency to wait for corporate 5 assistance in many areas where assistance is either 6 not required, or forthcoming?
7 A That is correct.
8 Q Do you disagree with his ratings of you?
9 A Yes, I did.
10 Q Let me ask you to turn to Joint Exhibit 11 31.
12 (Pause.)
13 BY MR. MARQUAND:
14 Q Is Joint Exhibit 31 your employee 15 appraisal for the fiscal year ending September 30, 16 1989?
17 A That is correct.
18 Q Is that your signature?
19 A Yes.
20 Q On the bottom, dated 9-26-89?
21 A That is correct.
22 Q Do you see the heading on the first page 23 that says: Summary statement of employee's 24 performance potential?
25 A That is correct.
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2435 1 Q The second sentence, do you see where it 2 says: Through this period he demonstrated continued 3 weaknesses and aggressiveness, and communication 4 skills.
5 A That is correct.
6 Q Do you see the next sentence that says:
7 Following specific discussions and coaching in these 8 areas, I have noted improvements, although not to the 9 degree I would have expected.
10 A That is correct.
11 Q Do you see the last sentence that says:
12 While actual -- the next to the last sentence: While 13 actual chemistry results are good, the weaknesses 14 noted last year persist.
15 A That is correct.
16 Q And the last sentence, do you see it, that 17 says: Material condition improvements of chemistry 18 equipment is not being pushed adequately.
19 A That is correct.
20 Q And this was given to you by Bill 21 Lagergren on 9-18-1989, is that right?
22 A That is correct.
23 Q And the next higher manager is signed by 24 whom?
25 A Calvin Vandra.
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2436 1 Q And Bill Lagergren was the operations --
2 A Operations, he was new in the position.
3 He was the operations manager.
4 A And Calculation Vandra was the plant 5 manager?
6 A The new plant manager, that is correct.
7 Q Did you agree or disagree with these 8 assessments of your performance?
9 A I would have agreed, I think.
10 Q Now, after having received the --
11 ADMINISTRATIVE JUDGE COLE: You would have 12 agreed?
13 THE WITNESS: Yes, I think that I would 14 have agreed. You know, I can't say about every point, 15 but in general I would say so. Bill was new in the 16 position, he did not know me. Typically, and the same 17 was true of Mr. Steve Smith, before I think that is 18 the first evaluation I had under him.
19 Normally you start out low with these guys 20 until you can demonstrate yourself, your abilities.
21 And they are not going to start you out high, and work 22 down, they are going to start you out low and work up.
23 And that is what I have experienced, I feel like, from 24 both Steve Smith, who was a new manager for me, and 25 also Mr. Lagergren, because they did not know me, they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2437 1 did not know my capabilities, they did not know my 2 performance.
3 And until they found out for sure, they 4 were certainly not going to rate me high.
5 BY MR. MARQUAND:
6 Q Well, now, with respect to Mr. Smith's 7 ratings of you, in January of 1989, when he said the 8 chemistry program, the overall performance of the 9 chemistry group is not acceptable, and you said you 10 didn't agree with that?
11 A That is correct.
12 Q And when Mr. Lagergren and Carl Vandra 13 rated you and said that you had continued weaknesses 14 in the same areas from last year, did that not give 15 you some inkling that plant management felt that you 16 might not be everything that they needed to address 17 problems in the chemistry organization at Sequoyah?
18 A Well, I would refer to the no, the answer 19 is no to your question. I would refer you to the 20 comment following specific discussions and coachings.
21 I have noticed improvements, although not to the level 22 or degree that I would have expected.
23 The thing that you do not realize is why 24 Steve Smith was upset. That is what you don't 25 realize, and what he communicated to me.
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2438 1 ADMINISTRATIVE JUDGE YOUNG: Say that 2 again? We are missing --
3 CHAIRMAN BECHHOEFER: Some words get lost.
4 THE WITNESS: Okay, I'm sorry. Steve 5 Smith was --
6 ADMINISTRATIVE JUDGE YOUNG: Just repeat 7 what you said, we missed what you said.
8 MR. MARQUAND: The Court Reporter needs to 9 get it down on paper.
10 ADMINISTRATIVE JUDGE YOUNG: You started 11 out saying the thing you don't understand --
12 THE WITNESS: Yes, the thing you don't 13 understand about the evaluation I received from Mr.
14 Steve Smith, is the fact that when I took over the job 15 as Sequoyah chemistry manager, or superintendent, the 16 information for the upcoming INPO evaluation had 17 already been accumulated, stacked in boxes, and sent 18 to INPO.
19 And then I came in and took over the job.
20 They had a very poor showing. The data had not bee 21 reviewed properly, there were numerous errors 22 throughout all of the trends, all of the reports, all 23 the data, transposition errors, missing data, no 24 explanations anywhere as to why data was missing.
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2439 1 six findings, quite frankly I think they were 2 merciful, because they could have found 16 had they 3 continued on. But they had made their point.
4 I was held responsible for those by Steve 5 Smith, even though I looked him in the eye and said, 6 Steve, this data had already been sent before I ever 7 took the job. And there is nothing I could do about 8 it, because essentially once the data was sent it 9 could not be recalled.
10 And he held me personally responsible for 11 the findings that existed before I ever took the job.
12 And he was very upset about that.
13 BY MR. MARQUAND:
14 Q So you are saying Mr. Smith unfairly held 15 you responsible for some problem he perceived in the 16 chemistry organization?
17 A That is correct. Also he had a 18 pathological hatred for corporate chemistry, and 19 corporate oversight in general. And he hated 20 personally the corporate chemistry manager at the 21 time.
22 And, in fact, at one point had invited him 23 into the parking lot for a fist fight, and this guy, 24 Jim Bates and I, worked closely together. And that is 25 why, in part, he made the statement, you know, divorce NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2440 1 yourself from corporate.
2 BY MR. MARQUAND:
3 Q I don't think that we need to go further 4 with that, Mr. Fiser. My question, 5 CHAIRMAN BECHHOEFER: I didn't get the 6 person that he said --
7 MR. MARQUAND: He said also Nick Kazanis 8 watched it. I think he said Nick Kazanis --
9 THE WITNESS: Yes, he had invited, Mr.
10 Smith invited the corporate chemistry manager out into 11 the parking lot for a fist fight. This --
12 CHAIRMAN BECHHOEFER: Was this Mr. Bates?
13 THE WITNESS: Yes, between Mr. Smith and 14 Mr. Bates. And --
15 BY MR. MARQUAND:
16 Q We don't need to talk about --
17 A -- that was in Mr. Nick Kazanis' presence.
18 So there was some real, there is a lot of dimensions 19 going on here that you are unaware of.
20 But regardless of that fact, I was 21 personally held responsible for problems by Mr. Smith.
22 Q And so what you are telling us today is 23 that it was unfair for Mr. Smith to hold you 24 responsible for the problems in chemistry back in 25 1989?
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2441 1 A I looked at him and I told him --
2 Q Can you answer the question yes or no?
3 A Yes.
4 Q Yes, it was unfair?
5 A Yes, it was unfair.
6 Q Thank you.
7 A And I looked at him --
8 Q If I need an explanation, or if one is 9 necessary, we will ask for one.
10 CHAIRMAN BECHHOEFER: I think he should be 11 able to finish his thoughts.
12 THE WITNESS: Yes, Your Honor. Let me 13 think now, I was interrupted.
14 MR. MARQUAND: I don't think that is 15 responsive to my question. My question was, was it 16 unfair. And he said --
17 ADMINISTRATIVE JUDGE YOUNG: And if he 18 wants to explain --
19 MR. MARQUAND: Well, I don't see how some 20 fistfight, purportedly --
21 CHAIRMAN BECHHOEFER: Well, I think his 22 explanation of why he thought it was unfair. I mean 23 unfair is a pretty conclusory statement without any, 24 without elaboration, at least. Some of which we got.
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2442 1 on a little too long, and I thought the explanation 2 was, his explanation was he -- he claimed not to be 3 there when the problem arose.
4 And I think that is an adequate 5 explanation. I think we are getting into a lot of 6 long winded lectures.
7 THE WITNESS: And I further went on to 8 explain --
9 ADMINISTRATIVE JUDGE YOUNG: Mr. Fiser, 10 hold on.
11 THE WITNESS: Okay.
12 ADMINISTRATIVE JUDGE YOUNG: When there is 13 an objection just stop and wait.
14 THE WITNESS: I'm sorry.
15 ADMINISTRATIVE JUDGE YOUNG: Can you give 16 us a brief explanation of your last answer, and then 17 we will move on.
18 THE WITNESS: Yes, Your Honor. I had 19 explained to Mr. Smith that when I took the job as 20 Sequoyah chemistry superintendent, I went into it with 21 eyes wide open, knowing full well that there were 22 numerous problems that I was going to have to identify 23 and to resolve.
24 BY MR. MARQUAND:
25 Q You prefaced all this answer, when I was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2443 1 asking you about a statement in Joint Exhibit 31. And 2 Joint Exhibit 31, do you see the statement: following 3 specific discussions, and coachings in these areas, I 4 have noted improvements, although not to the degree I 5 would have expected.
6 Do you see that statement?
7 A Yes, I do.
8 Q And that statement was made by, 9 apparently, Bill Lagergren, and the next higher 10 manager, Carl Vandra, right?
11 A And that statement was made by Mr.
12 Lagergren.
13 Q Not Steve Smith?
14 A That is correct.
15 Q And then you proceeded to tell me, and 16 explain that I didn't understand the situation with 17 Steve Smith, which was the prior service review?
18 A That is correct.
19 Q Now, what this sentence tells me is that 20 Mr. Lagergren told you, he had specific discussions 21 and coaching with you about continued weaknesses, and 22 communication skills, told you what he expected. And 23 he says: I have noted improvements, but apparently 24 not what he wanted from you, not what he expected. Is 25 that correct?
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2444 1 A That is correct.
2 Q And my question, earlier question to you 3 was, when you got these two service reviews, the first 4 one from Steve Smith, and then one from Bill 5 Lagergren, the first one who said chemistry program 6 performance is not acceptable, and then the next one 7 from Lagergren, where he says: The weaknesses noted 8 last year persist and despite having given you 9 coaching you didn't improve to the degree he expected.
10 Did that not raise in your mind an inkling 11 that they didn't think that you were addressing the 12 long standing Sequoyah chemistry problems?
13 A That is not what it says. It says that I 14 have noticed improvements, though not to the degree 15 that he would have expected. That is what it says.
16 Q Right, not to the degree he expected or 17 wanted. Is that right?
18 A But he had noticed improvement. Though he 19 wanted more, and that is fine, that is what these are 20 for.
21 Q Then in, I guess it was April of '91, you 22 were sent to outage management?
23 A That is correct.
24 Q And you were not the manager of the whole 25 outage program, is that right?
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2445 1 A That is correct.
2 Q Where were you in the pecking order with 3 respect tc the outage management schedule? Was there 4 a manager over the outage? You were sent there?
5 A Yes, I was.
6 ADMINISTRATIVE JUDGE YOUNG: Mr. McGrath, 7 I want to ask a clarifying question of whoever can 8 answer it.
9 I'm seeing a gap between '89 and '91. Was 10 there something in '90 that --
11 MR. MARQUAND: Well, I think they are all 12 in the record, already. I was pointing these specific 13 ones out to him.
14 ADMINISTRATIVE JUDGE YOUNG: That is fine.
15 I mean, I just wondered, since there was a jump there.
16 But if you were not intending to raise that one, that 17 is fine.
18 MR. MARQUAND: The question I had was, to 19 him --
20 ADMINISTRATIVE JUDGE YOUNG: That is fine.
21 MR. MARQUAND: -- did he never have any 22 inkling that people didn't consider him to be 23 adequately addressing Sequoyah chemistry, and I raised 24 these to him, asked him if they did not raise some 25 doubt in his mind, and apparently it didn't.
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2446 1 ADMINISTRATIVE JUDGE YOUNG: You don't 2 have to argue to me, it was just a simple question.
3 BY MR. MARQUAND:
4 Q In April of '91 Mr. Lagergren arranged for 5 you to rotate temporarily to outage management, right?
6 A That is correct.
7 Q And that was for a particular outage of 8 the plant, is that right?
9 A That is correct.
10 Q Were you the outage manager for that 11 particular outage?
12 A I was one of them.
13 Q Did you report to somebody for that 14 temporary position?
15 A For a while I reported to a Mr. Doug 16 Jones, and for a while I reported directly to Mr. Bill 17 Lagergren.
18 Q And what did Doug Jones do?
19 A He was in a permanent position in outage 20 management.
21 Q And outage management is a specific 22 organization at the site?
23 A That is correct.
24 Q So was he the manager of the outage 25 management organization?
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2447 1 A I think that Mr. Larry Bryant was the 2 manager, as I recall.
3 Q Over Doug Jones?
4 A Yes.
5 Q And Doug Jones was over you?
6 A For a portion of the time, that is 7 correct.
8 Q Now, if you would turn to Joint Exhibit 9 32, that is your performance appraisal for the fiscal 10 year ending September 30, 1991, correct?
11 A That is correct.
12 Q And your signature is at the bottom of the 13 page, and dated October 3, '91?
14 A That is correct.
15 Q Now, in -- when you were in outage 16 management, did you have a staff that worked for you?
17 A No.
18 Q You worked independently?
19 A That is correct.
20 Q What did you do?
21 A I would attend meetings where various 22 outage plans were performed to make sure they were 23 complete, that they were ready for the upcoming 24 outage. That they had developed various and sundry 25 contingency plans in case there were problems, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2448 1 their plan was basically, their outage plan was 2 complete.
3 And there were various specific tasks that 4 were assigned, depending on where we were in the 5 outage. For example, one of them was to help resolve 6 problems in the actual off-loading of the spent 7 nuclear fuel, in the reactor to the spent fuel pool.
8 We had a bunch of problems with that, and 9 I was assigned to help resolve those issues, and other 10 things as well. It depended on where you were in the 11 outage, as far as what assignments I was given.
12 Q All right. So you were basically expected 13 to operate independently, and to resolve problems, and 14 to help with the scheduling of the outage?
15 A That is correct.
16 Q Now, if you will look at Joint Exhibit 32, 17 on the first page. In the second paragraph -- well, 18 first of all, do you see the caption for the section 19 that begins summary statement of employee's 20 performance potential?
21 A Yes, I do.
22 Q Do you see the second paragraph that 23 states: Is having difficulty operating independently 24 outside the chemistry area, is not using the authority 25 of his position as an outage manager, effectively.
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2449 1 Do you see that?
2 A Yes, I do.
3 Q Did you agree with that assessment of your 4 performance?
5 A Yes, knowing the specifics of this I did, 6 yes.
7 Q Now, one of the problems that Sequoyah 8 chemistry had, one of the long standing problems that 9 Sequoyah chemistry had was out of service 10 instrumentation, right?
11 A That is correct.
12 Q The stuff just wasn't getting, having the 13 maintenance done on it, if it was broken it wasn't 14 fixed, it wasn't -- it just wasn't being moved along?
15 A That is correct.
16 Q Now, if you will turn to page -- first of 17 all, were you responsible for fixing the equipment at 18 Sequoyah's chemistry program?
19 A No, I was not.
20 Q Were you responsible for seeing to it that 21 it was prioritized, and let the maintenance department 22 know that it needed to be addressed?
23 A I was not in charge of the prioritization, 24 no.
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2450 1 in charge of --
2 THE WITNESS: I was not, that was a fixed 3 program within the work planning group.
4 BY MR. MARQUAND:
5 Q Was it your --
6 ADMINISTRATIVE JUDGE YOUNG: If you had a 7 -- if you knew of a problem in the chemistry area, 8 when you were the chemistry manager, were you not 9 responsible for telling someone about it?
10 THE WITNESS: Yes. We would fill out what 11 we called a trouble ticket, identifying the piece of 12 equipment, identifying the unit by name, and 13 describing what the problem was, and then submitting 14 that. I think they call it, at Sequoyah I think they 15 call it a work request.
16 And then I would submit that to the work 17 planning organization where they would then take and 18 look at that, and then they would prioritize, based on 19 their own procedures, where that fit into the plan to 20 get it fixed.
21 ADMINISTRATIVE JUDGE YOUNG: Did you not 22 have the authority to argue that this was important, 23 or that was important, so you would really appreciate 24 it if they would get it done as quickly as possible?
25 THE WITNESS: I did that daily.
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2451 1 ADMINISTRATIVE JUDGE YOUNG: Daily.
2 CHAIRMAN BECHHOEFER: Not as a part of the 3 specific work request?
4 THE WITNESS: That is correct, that was 5 independent. Because, fortunately at that time the 6 work planning manager and me, as the chemistry 7 manager, we reported to the same supervisor, who was 8 Bill Lagergren.
9 And so we would have, essentially, daily 10 meetings where I would bring this up before the work 11 planning manager, who at that time was Larry Bryant.
12 And we would try to come up with a way to get the 13 equipment fixed, in spite of the fact that it might 14 come out as a lot lower priority in the work planning 15 process.
16 We tried to come up with a work-around 17 where we could get at least some of the equipment 18 fixed in a more timely basis. And those discussions 19 took place almost daily.
20 ADMINISTRATIVE JUDGE YOUNG: And what was 21 the problem that was holding it up?
22 THE WITNESS: The problem was a huge 23 backlog of work that had -- and instruments and 24 equipment, that had to be fixed at Sequoyah. And the 25 problem was if the piece of equipment did not directly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2452 1 impact the technical specification, or threaten the 2 unit with shutdown, or a reduction in power, it fell 3 to a very low priority.
4 And it was very difficult to work around 5 that, because in my department if a piece of equipment 6 does not work, we can set up a compensatory measure, 7 where we might be having to send a person out to take 8 a grab sample, and analyze it on a bench top once 9 every four hours, as opposed to having a continuous 10 monitor set up, which is what you really want.
11 So the way the process was implemented in 12 the work planning procedures, it just came out a low 13 priority, virtually every single time.
14 CHAIRMAN BECHHOEFER: And the same issues 15 would just stay on the list?
16 THE WITNESS: That is correct.
17 BY MR. MARQUAND:
18 Q Let me make sure I understand. You 19 thought it was your responsibility to fill out a piece 20 of paper, a work ticket, to give to work planning to 21 put your instruments in line, to prioritize, to 22 determine when they would get fixed?
23 A I did not think that was a fact. That is 24 my responsibility.
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2453 1 enough couldn't you take it upon yourself to go to 2 upper management and say, look I need this stuff 3 fixed, we need to move it up, couldn't you be more 4 aggressive in presenting the issue to upper 5 management, to get it fixed?
6 A I did that almost daily.
7 CHAIRMAN BECHHOEFER: One further 8 elaboration.
9 THE WITNESS: Yes, sir.
10 CHAIRMAN BECHHOEFER: If failure to fix 11 would result not in a plant shutdown, but perhaps a 12 lower efficiency, or capacity of the plant, would that 13 be a reason for raising the priority?
14 THE WITNESS: Absolutely. If it would 15 result in a reduction in power, then that would 16 automatically escalate it to a level where it would be 17 fixed almost immediately.
18 CHAIRMAN BECHHOEFER: So it didn't have to 19 be pure shutdown?
20 THE WITNESS: Absolutely.
21 CHAIRMAN BECHHOEFER: Okay, thank you.
22 BY MR. MARQUAND:
23 Q Well, priority would be determined by loss 24 of power, loss of safety, loss of reliability, all 25 those would affect its priority, wouldn't it?
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2454 1 A No, that is incorrect.
2 Q Loss of safety level, or the fact that 3 something might not make something as safe wouldn't 4 affect the priority of fixing the equipment?
5 A It depends on what you mean by safe. What 6 do you mean?
7 Q The safety of the plant. What do you 8 mean?
9 A What do you mean?
10 Q that is my question to you. What do you 11 understand by ensuring the safety of the plant?
12 A If it was a personnel safety, certainly 13 that would result in a higher priority.
14 Q Let me direct your attention to, as we 15 started to a few minutes ago, page 6 of Joint Exhibit 16 32. Joint Exhibit 32, again, is the performance 17 appraisal for fiscal year ending September 30, 1991.
18 A I think I'm there.
19 Q That is the page labeled employee 20 appraisal, page 3, and there is a heading, part two, 21 behavioral standards. Do you see that?
22 A I have a page 5A, I don't see a -- and 23 this is in exhibit 32?
24 ADMINISTRATIVE JUDGE YOUNG: It is the 25 sixth actual page. At the top it says, employee NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2455 1 appraisal page 3.
2 BY MR. MARQUAND:
3 Q That is it.
4 A Okay.
5 Q Behavioral standards on that page, and one 6 particular behavioral standard has a typewritten 7 comment beside it. Paragraph 5, influencing others.
8 Do you see the comment that says: Is having great 9 difficultly influencing various plant support 10 personnel to get pre-outage work done. Do you see 11 that?
12 A That is correct.
13 Q Now, this is during the time that you were 14 working in outage management, right?
15 A That is correct.
16 Q And your manager was concerned that you 17 weren't, oi i the first page, it says: Using your 18 influence, using the authority of your position 19 effectively And here he says you are having great 20 difficultly
- influencing various plant support 21 personnel t o get pre-outage work done.
22 Do you see that?
23 A Yes, I do.
24 Q Do you disagree with that evaluation?
25 A No, I would not.
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2456 1 ADMINISTRATIVE JUDGE YOUNG: Just to 2 clarify, there do appear to be, in some of these 3 evaluations, comments about your using the authority 4 of your position to influence others to get things 5 done.
6 How did you view that type of comment, 7 which does appear to recur, to some extent?
8 THE WITNESS: Yes, it does. What is 9 happening here, we were, as I recall, and it has been 10 years, we were in the process of switching over some 11 of --
12 ADMINISTRATIVE JUDGE YOUNG: Well, first, 13 let me ask you, how did you view that, did you view 14 that as a legitimate criticism, as unfair?
15 THE WITNESS: I viewed that as a 16 legitimate criticism, yes. I was -- I found myself, 17 when I was out in outage management, at the bottom end 18 of a very steep learning curve. I learned that there 19 was a lot to this plant that I did not know, and a lot 20 about how other people got things done that I had to 21 learn.
22 So I was at the bottom of a very steep 23 learning curve.
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2457 1 the -- it seems like there was something said when you 2 were chemistry manager.
3 THE WITNESS: At Sequoyah?
4 ADMINISTRATIVE JUDGE YOUNG: I'm just 5 interested in a little bit further clarification on 6 how you viewed that type of criticism of your 7 performance in these evaluations, and how you looked 8 at your own performance in that regard.
9 THE WITNESS: Just let me make an opening 10 statement, and then I think we can get directly to 11 your point.
12 Mr. Lagergren was one of the fairest and 13 most objective managers that I ever worked for. And he 14 was very direct, as I mentioned last week. And he 15 would use these evaluations to really spur you to 16 higher performance.
17 And whereas he would come in and he would 18 say, you know, I've noticed some improvement, and that 19 is good, but I want you here, when you are here, and 20 buddy he meant it, and you better take note, and you 21 better make improvement, or the next time you had a 22 performance review it was not going to be a pleasant 23 experience.
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2458 1 want a lot more improvement, and you do whatever it 2 takes to get there. And that is the way I viewed it.
3 Now, if you would remember from last week, 4 you notice it is a steady improvement in every 5 performance review we went through. Now I'm in a new 6 area, I'm in the outage management area, and he was 7 going through the same process.
8 I have noticed certain things that I want 9 to see improvement in, and --
10 ADMINISTRATIVE JUDGE YOUNG: Let me 11 interrupt you. What I'm trying to get you to clarify 12 for me is what did you do to try to be more aggressive 13 about getting whoever needed to do, whatever needed to 14 be done, in order to address problems, what did you 15 do?
16 You say you saw those criticisms as being 17 legitimate criticisms.
18 THE WITNESS: Right.
19 ADMINISTRATIVE JUDGE YOUNG: What did you 20 do to improve your performance in that area?
21 THE WITNESS: As has already been 22 mentioned, I did not have a staff that worked for me.
23 Certain of these outage plans were to be --
24 ADMINISTRATIVE JUDGE YOUNG: I'm not just 25 talking about outage, I'm talking in general. Was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2459 1 there any way that you tried to improve your own 2 performance in terms of being aggressive, going to 3 talk to whoever needed to be talked to, to get things 4 done?
5 THE WITNESS: Precisely. And that is what 6 I had to do, I had to go talk to the people that had 7 the resources and convince them of the need to place 8 personnel, their personnel, not my personnel, their 9 personnel on these various projects, whether it be 10 writing a new outage plan, or whatever.
11 I had to form coalitions with other people 12 and use my authority to say, by gosh, we are here, and 13 we needed to be here by this date, and I want a plan 14 to get there.
15 I was not effective in doing that, in the 16 beginning, I was in the end. Because I learned how to 17 get the job done when I was using people that were 18 technically not in my direct line of control. And that 19 is --
20 ADMINISTRATIVE JUDGE YOUNG: Not in your 21 direct --
22 THE WITNESS: That did not directly work 23 for me. It was a matrix situation, where I then had 24 to be more effective in my communication to other 25 managements to get their people to resolve problems.
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2460 1 And it did take me a little while to make 2 that transition.
3 BY MR. MARQUAND:
4 Q Mr. Fiser, we talked about '89 through 5 '91. Now I would like -- and you said that you -- are 6 you telling us that you became aggressive, and started 7 talking to people you needed to ta.lk to, to turn 8 around these problems?
9 A I got very aggressive, yes.
10 Q Then why is it that when we looked at TVA 11 exhibit 122, Mr. Lydon's statement, Mr. Lydon said the 12 Sequoyah chemistry program was unbelievably bad, and 13 there were still long standing problems with 14 Sequoyah's chemistry program.
15 Why did he say that, if you became so 16 aggressive that you started dealing with these 17 problems?
18 A The fact that I became aggressive does not 19 mean I had the authority to release the money to 20 upgrade the program.
21 Q Even to get the -- not necessarily to get 22 it 20 million dollars to upgrade it, but just to get 23 out and get the broken equipment fixed, or to bring 24 the RAD monitors in line, or to make sure that the 25 people had adequate training.
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2461 1 Why did he make the statement that it was 2 unbelievably bad, and that there were still long 3 standing problems?
4 A You know, you would have to ask him 5 specifically what he meant. As I recall, what he was 6 referring to was the fact that the chemistry upgrade 7 project had been deferred from year to year, and this 8 equipment, this deplorable old equipment was still out 9 there, in some semblance of use.
10 Now, that as I recall it, and that is what 11 I think he was referring to, and if you would like to 12 call him in and question him, that is what we are 13 going to have to do. I can't, specifically, answer 14 for him.
15 He never communicated that to me directly.
16 Q Now, if you will go back, if you want to 17 talk about the chemistry upgrade program we can. Look 18 at TVA exhibit 122, the very last page. He talks on 19 and on --
20 A Wait a minute.
21 Q The very last paragraph of the last page, 22 he talks about the chemistry, it is a misstatement, 23 the chemistry use program, I believe it is chemistry 24 upgrade program, CUP, isn't it? You should have that 25 document there with you.
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2462 1 A What is the number?
2 Q TVA exhibit 122, it is the document you 3 faxed to Jim Vorse.
4 A I don't have it. TVA exhibit 5 I have.
5 Oh, okay.
6 Q If you look at the very last page, in the 7 last paragraph, it refers to chemistry use program, 8 (CUP).
9 A That is correct.
10 Q Is that a typographical error, it should 11 be chemistry upgrade program?
12 A I think that is correct, yes.
13 Q And so he has talked for three pages about 14 the problems at Sequoyah, and then he talks about the 15 chemistry upgrade program, where he says, it is to 16 identify, label, and control chemicals coming into the 17 plant, to ensure clear use of chemicals in the plant.
18 And at the bottom he says: Although Lydon 19 was responsible for the CUP budget, he and his 20 managers completed a detail budget which Bynum, quote, 21 slashed to hell. Bynum and Beeckem were always asking 22 to do more with less.
23 Do you see that?
24 A Yes, but there are two issues here.
25 Q One is chemical traffic control?
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2463 1 A I think that is correct, and I think he is 2 getting those confused, and chemical traffic control 3 was not under my control.
4 Q All right. But whatever discussion there 5 is about the chemical upgrade program is relegated to 6 the last paragraph of the last page of this statement, 7 isn't that right?
8 A Well, it looks like he ran those two 9 things together, because he was definitely talking 10 about the chemical traffic control program was set up 11 to identify, label, and control chemicals, and that 12 was not under my control, that was under, at that 13 time, another group.
14 Q When you look at the first page of this --
15 A So the answer to your question is no, I 16 disagree with you, I don't -- I'm not sure what he was 17 referring to here, I think he is confused.
18 Q In the first page of his statement, of the 19 first page of his record of interview, the part that 20 mentions you and labels the Sequoyah chemistry program 21 as unbelievably bad, do you see any discussion there 22 of the chemistry upgrade program?
23 A Yes, I do. And that is in the long 24 standing problems with Sequoyah's chemistry program, 25 the long standing problems in chemistry's program had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2464 1 to do with the online monitoring portion of that 2 program, which was unbelievably bad, because we could 3 not get the money to upgrade the program.
4 So I disagree with you, categorically, and 5 totally.
6 ADMINISTRATIVE JUDGE YOUNG: You disagree 7 with it categorically and what?
8 THE WITNESS: I disagree with counsel's 9 representation of this issue, categorically and 10 totally, because I think that is what he is referring 11 to, is the long standing issues with the online 12 monitoring portion of the chemistry program, which 13 was, indeed, and in fact, unbelievably bad, as he has 14 stated here.
15 I think he was having problems 16 remembering, since he was there for such a short time, 17 the various terms that were used in the chemistry 18 program.
19 BY MR. MARQUAND:
20 Q Now, Judge Young asked you about whether 21 or not some of these statements reflected on your 22 aggressiveness in addressing problems, or approaching 23 people to get problems fixed.
24 If you would look, we talked about '89, 25 '91, '92. If you would look again at Joint Exhibit NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2465 1 33, your 1992 performance review, under the first 2 heading, summary statement of employee's performance 3 and potential, do you see the statement that says, 4 there were difficulties expected in the rotation, in 5 that the loyalties of some chemistry staff members 6 were to the individual that rotated to Sequoyah, and 7 some of their allegiance to Gary.
8 Do you see that statement?
9 A Which exhibit is that?
10 Q Joint Exhibit 33. This is the performance 11 appraisal Dr. McArthur gave you in September of '92.
12 A That is correct. Now, let's read that 13 statement again.
14 Q You see the statement that says: there 15 were difficulties expected in the rotation, in that 16 the loyalties of some chemistry staff members were to 17 the individual that rotated to Sequoyah, and some of 18 their allegiance to Gary.
19 Do you see that?
20 A That is correct, I see that.
21 Q If you will turn to the next page, under 22 the heading fourth quarter, which is in the middle of 23 the page, there is a typewritten comment there.
24 Do you see where it says: Gary has 25 attempted to manage the chemistry group under the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2466 1 cloud of the previous manager's strong influence. This 2 has been a difficult task. Efforts to bring this 3 group into full cooperation has been slow, and the 4 technical leadership needs attention. This has been 5 a difficult experience by an individual who has 6 performed well in some other efforts.
7 Do you see that?
8 A Yes, I do.
9 Q Did you not understand that to be a 10 reference to the fact that possibly you were somewhat 11 weak in getting the attention of your subordinates?
12 A Well, if you take what he said at face 13 value, it said that two of the individuals, that would 14 be Sam Harvey and Chandrasekaran, they were hired in 15 by Bill. They worked for Bill, they had allegiances 16 to Bill, they were upset about the fact that he was 17 now at Sequoyah, and they were left downtown to work 18 for me.
19 And he felt like their allegiance was to 20 Bill, and he expected a difficulty. Now, that is just 21 a face value of what he says. Now, in point of fact, 22 these people, Sam Harvey was supporting Sequoyah 23 chemistry at my direction. And was doing a good job 24 supporting Sequoyah chemistry.
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2467 1 Browns Ferry, and they were profoundly pleased with 2 the support that he was providing at Browns Ferry, as 3 were the people at Sequoyah, with Sam.
4 At this particular time Watts Bar was 5 still a good ways from start up and there was more 6 limited support required by them, and provided to 7 Watts Bar.
8 Q Thank you. If you will turn to the next 9 to the last page of Joint Exhibit 33, this will be my 10 last question.
11 Under supervisory impartiality, there is 12 a comment, strong separation between the people 13 holding allegiance to the previous chemistry manager, 14 and those holding allegiance to the present chemistry 15 manager.
16 Do you see where it says: During his 17 tenure as chemistry manager these differences have not 18 improved?
19 A Yes, I do.
20 Q Is that not similar, are the comments in 21 here about the improvements, the differences not 22 having improved, and above that where it says, changes 23 not taking place as quickly as they should, and 24 previously where it said that you were having a 25 difficult time managing because of the previous NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2468 1 manager's strong influence.
2 Is that not similar to the criticism that 3 had previously been leveled at you about having 4 difficulty using the authority of your position 5 effectively?
6 A To me if we just look at the comment, a 7 strong separation between the people --
8 Q Can you answer the question yes or no? If 9 you need to explain do so. Is that not the --
10 A I would say no.
11 Q -- same kind of criticism, that you 12 weren't using authority effectively?
13 A No.
14 Q Thank you.
15 MR. MARQUAND: Your Honors, I think that 16 will be enough, we can break for the day.
17 ADMINISTRATIVE JUDGE YOUNG: Let me leave 18 you with a thought, and you can answer it today, if 19 you want to.
20 What I'm trying to get clear in my mind, 21 what I would like clarification from you on, is part 22 of what we have to look at here is whether the posting 23 of the job in 1996 was a retaliation or discrimination 24 against you for your filing of a Department of Labor 25 complaint earlier.
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2469 1 Or whether it was for other reasons, which 2 I believe the record at some point has indicated that 3 the other reasons asserted by TVA was that there were 4 performance related reasons.
5 One example that you have talked about, 6 and I think some other witnesses may have talked 7 about, was the meeting in which the data trending was 8 discussed, and the criticism was that you were not 9 doing what needed to be done to see that the data 10 trending was done every day.
11 And I believe that your testimony earlier 12 on was to the effect that you saw that as sort of 13 setting you up for failure, because you didn't have 14 the resources, the personnel, which would require 15 money, to not just collect the data, but create 16 trending reports with.
17 Do you recall what I'm talking about?
18 THE WITNESS: Yes, Your Honor, I do.
19 ADMINISTRATIVE JUDGE YOUNG: What I feel 20 the need to have clarification on, and there may not 21 be time today to answer it. But any clarification you 22 can provide for us on how we can differentiate, or I 23 will speak for myself, how I can differentiate 24 between someone criticizing you for not being -- I 25 think you said at one point that Mr. Jocher was a go-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2470 1 getter, for you not being aggressive.
2 An expression people sometimes use is this 3 is a person who you can give them the ball and they 4 will run with it. And the criticisms that seem to be 5 made about you, and whether they are true or not, we 6 need to decide, to some degree, in order to resolve 7 this, is whether you were being aggressive enough to 8 try to achieve results, or whether in your view of it, 9 you were being set up for failure.
10 In order for me, I feel that in order for 11 me to understand clearly what really happened, I need 12 to have further clarification on what was actually 13 going on.
14 So if you want to provide any, at this 15 point, since this issue has been raised, that would be 16 helpful.
17 THE WITNESS: I can get it started, I'm 18 sure I will not get through, just let me make the 19 statement that before I went to outage management I 20 was the one that was getting that job done. I was, as 21 far as I know, the only one in the country, perhaps 22 the only one in the world who was doing it.
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2471 1 in short order.
2 So as far as whether I was aggressive 3 enough to get the job done, I'm the one that did it in 4 the first place. And I was the one who got it going 5 again within virtually days of returning from outage 6 management.
7 So I think that should help address that 8 problem. As far as -- and I would want to come back 9 to this when we start the testimony next week, or 10 month.
11 If I put in a procedure a requirement to 12 turn those things out seven days a week, Saturday, 13 Sunday, holidays, etcetera, and my computer, I don't 14 have a redundant computer, I have one computer that 15 does this.
16 And if it should blow a power component, 17 and I don't get it out that day, then I have violated 18 my procedure, then I'm in violation of my program.
19 And that is not a good thing. That gives you a lot of 20 trouble with a lot of people.
21 Until I get the redundancy, and until I 22 get the authorization to work the overtime, over the 23 weekends and the holidays, which I did not have, I 24 can't even bring the people in on the weekend without 25 authorization to do so, and to work the overtime.
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2472 1 That would have to be done in advance. So 2 I'm the one that did it before, I'm the one that did 3 it after, I'm the one that refused to put in the 4 procedure because I knew that was -- with the 5 equipment that I was supplied --
6 ADMINISTRATIVE JUDGE YOUNG: Let me share 7 a thought, and ask you to -- okay.
8 If you were criticized about not doing the 9 data trending, and they wanted you to put in this 10 procedural requirement and so forth and so on, I can -
11 - I wasn't there, but I can imagine several situations 12 that could develop.
13 Someone could say, well, if we do that I'm 14 going to need to have X more people, this more 15 computer, X, Y, Z, will you support me in getting that 16 done, what can we work out here? That is one 17 approach.
18 You could take another approach and you 19 could say that is impossible, because we don't have 20 the funding, or there could be any in between there.
21 And what I'm trying to get a sense of, and 22 clarification of is what kind of response you gave at 23 that point, and in general when presented with the 24 problem? Was it listing all the reasons why you could 25 not solve it, or sort of affirmatively saying, here is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2473 1 what I need, will you help me get this, etcetera, 2 etcetera?
3 THE WITNESS: Oh, absolutely. As a matter 4 of fact I made that point. Once we had the new 5 program, which takes data from a -- it is an online 6 monitor, and automatically feeds it into a computer, 7 and that is what we were working towards, once we had 8 that portion of the chemistry upgrade project, then it 9 would become possible to do it every day, seven days 10 a week.
11 That was part and parcel of the chemistry 12 upgrade project. So, in essence I was saying, and I 13 think I do recall taking a note of this saying, that 14 once we had the chemistry upgrade project on line, 15 then that is possible. Until then it is not possible, 16 because I do not have the prerequisite redundancy and 17 equipment, and the speed of taking a data point in the 18 field and automatically putting it into this computer 19 that automatically generates the trend.
20 Until I get that it is not possible for me 21 to live with that requirement.
22 CHAIRMAN BECHHOEFER: Were you being 23 criticized for not aggressively seeking more personnel 24 in order to cover the weekends, that type of thing?
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2474 1 because I refused to put a requirement, a hard and 2 fast requirement in a procedure that I could not meet 3 at that time. And that is why the meeting ended when 4 it did, and these two guys jumped up and said, well, 5 there is no need for continuing this meeting.
6 ADMINISTRATIVE JUDGE YOUNG: Before you 7 refused did you say, if I'm going to do this, did you 8 say anything like this, if I'm going to achieve this, 9 this is what I'm going to need.
10 THE WITNESS: Yes, I did.
11 ADMINISTRATIVE JUDGE YOUNG: Will you help 12 me get this?
13 THE WITNESS: That was implicit in the 14 statement, yes. I was hoping for NSRB to join, 15 essentially the coalition that I was forming between 16 the groups downtown, corporate chemistry, engineering, 17 Goetches and his steam generator group. And 18 engineering to get the work prioritized such that we 19 could get it approved.
20 And there was an invitation for them to 21 get behind us, because that is why I made mention of 22 the fact, as soon as we get the chemistry upgrade 23 project and the capability to enter online data into 24 the computer base, we can do it.
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2475 1 statement.
2 ADMINISTRATIVE JUDGE YOUNG: Thank you.
3 CHAIRMAN BECHHOEFER: I guess with that we 4 would --
5 MR. DAMBLY: I would like to make one 6 statement for the Staff. Because if I understood 7 Judge Young a minute ago, you made the statement that 8 you have to decide somehow whether the posting in '96 9 had to do with performance. And I don't think there 10 has ever been an allegation that the posting --
11 whether they posted the job, or didn't post the job, 12 I've never heard from TVA or anybody else, that it had 13 anything to do with his performance.
14 MR. MARQUAND: Your Honor may have simply 15 misstated that. But I understood that you were saying 16 in the context of the posting in '96 was allegedly in 17 retaliation for some previous protected activity the 18 filing of his '93 Department of Labor complaint.
19 In the '93 Department of Labor complaint 20 alleges, as well, discrimination. For some reason the 21 Staff felt bound to try the 1993 Department of Labor 22 complaint in which he alleged he was removed from 23 Sequoyah chemistry, and not returned to that job.
24 So I guess it is incumbent upon us to 25 address why he was, in fact, not sent back to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2476 1 Sequoyah.
2 But we understand that performance is not 3 the issue behind the posting in 1996 as well.
4 ADMINISTRATIVE JUDGE YOUNG: Maybe I 5 misstated it. I had heard various arguments being 6 made that TVA had acted based on performance. If I 7 misstated that, please --
8 MR. MARQUAND: No, he was taking the job 9 in 1992 for performance, yes. But counsel is right, 10 the posting in '96 nobody says has anything to do with 11 performance at all. That is not a performance based 12 issue. It is a reorganization issue.
13 ADMINISTRATIVE JUDGE YOUNG: Okay.
14 CHAIRMAN BECHHOEFER: So I guess we will 15 adjourn until 9 o'clock tomorrow morning.
16 (Whereupon, at 4:54 p.m. the above-17 entitled matter was adjourned, to be reconvened May 18 9th at 9:00 a.m.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Tennessee Valley Authority Watts Bar Nuclear Plant, Unit 1, Sequoyah Nuclear Plant, Units 1 and 2, Brown ferry Nuclear Plat, Units 1,2,3 Docket Number: 50-390-CivP; ASLBP No. 01-791-01-CivP Location: Chattanooga, Tennessee were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Ed Johns Official Reporter Neal R. Gross & Co., Inc.
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