ML022590219
| ML022590219 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 09/11/2002 |
| From: | Robert Davis Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| Shared Package | |
| ML022590224 | List: |
| 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-521, RAS 4845 | |
| Download: ML022590219 (109) | |
Text
5280 1
A
- Yes, that's correct to say that your 2
record keeping is correct.
3 Q
All right. And with respect to positions 4
that were eliminated, such as Mr. Fiser's, there were 5
also other positions eliminated in Operation Support.
6 Correct?
7 A
That's correct.
8 Q
And to the extent my record keeping is 9
- correct, then TVA Exhibit 56 are the position 10 descriptions for all of those other positions that 11 were eliminated in the 1996 reorganization of 12 Operation Support.
13 A
That's correct.
14 Q
Now if you would look back at the other 15 notebook we had a minute ago, Joint Exhibit 49,.
16 MR. MARQUAND:
I'm going to direct the 17 witness' attention to TVA Exhibit 113, and I note that 18 it's not with the other three official copies.
And 19 Judge Bechhoefer mentioned this morning that you all 20 had received sets of exhibits from Chattanooga.
21 CHAIRMAN BECHHOEFER:
We haven't looked 22 through them yet.
They're right here.
23 JUDGE COLE:
113 is here.
24 MR. MARQUAND:
Two copies?
25 JUDGE COLE:
Three copies.
What do you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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want to do with them?
2 MR. MARQUAND:
I'm going to show the 3
witness a page out of TVA Exhibit 113.
4 BY MR. MARQUAND:
5 Q
TVA Exhibit 113 are excerpts from NRC 6
Staff responses to discovery, and it includes several 7
documents.
In the second document which is there on 8
page 2, and that second document is entitled, "NRC 9
Staff Response to Tennessee Valley Authority's Second 10 Set of Interrogatories." It's dated January 22, 2002 11 in the upper-right corner.
12 On the second page of that document, 13 Interrogatory Number 2, it asks the Staff to identify 14 each and every nuclear safety concern identified in 15 Mr. Fiser's '93 DOL complaint.
And the response 16 includes a supplement, and it specifically says that 17
-- you see, Mr. McGrath, in the third sentence of the 18 response it says, "Fiser's September 23,
'93 DOL 19 complaint sets forth a number of nuclear safety 20 concerns he raised, and are resolved, including co-21 run."
And then it talks about an issue with respect 22 to rad monitor effluent calculations, SCAR involving 23 a containment, rad monitor with proper alignment, and 24 a dispute over measuring of the three hour requirement 25 for post accident sampling.
Do you see that?
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A Yes.
2 JUDGE YOUNG:
Which page are you on now?
3 MR. MARQUAND:
That was pages 2 and 3 of 4
Staff's responses to TVA's second set of 5
interrogatories.
6 JUDGE YOUNG:
The first set, but I can't 7
seem to --
8 MR. MARQUAND:
The second set is --
the 9
first set is 18 numbered pages.
The next page is a 10 Certificate of Service. The page after that is Notice 11 of Appearance.
12 JUDGE YOUNG:
Okay.
13 MR. MARQUAND:
The next page is January 14 22, 2002, Response to Second Set of Interrogatories.
15 And I was referring to the second and third pages, 16 response to Interrogatory 2.
17 JUDGE YOUNG:
Thank you.
I have that.
18 BY MR. MARQUAND:
19 Q
Mr. McGrath, I'd also like to refer you to 20 Joint Exhibit 49 which we talked about a while ago the 21 February 7 th, 2000 letter from the NRC, transmitting 22 a Notice of Violation to you, personally. Do you have 23 that document?
24 A
Yes.
25 Q
If you would look at the second paragraph NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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on page 1.
2 MR. MARQUAND: Our records show that that 3
was not identified or admitted at the previous 4
hearing, and I want to have that marked at this time, 5
Joint Exhibit 49.
6 (Joint Exhibit 49 marked for identification.)
7 BY MR. MARQUAND:
8 Q
On Joint Exhibit 49, Mr. McGrath, that's 9
the Notice of Violation that the NRC sent to you 10 February 7 th, 2000.
Correct?
11 A
That's correct.
12 Q
It also includes a lot of other documents.
13 It looks 11' the pre-decisional enforcement 14 conference not___. and transcript, or agenda, and some 15 other documents which were provided at the pre-16 decisional enforcement conference, various enclosures 17 to the letter.
Is that correct, those are the 18 enclosures to the letter --
19 A
Oh, I'm sorry.
I didn't know you were 20 asking me that.
21 Q
Yes.
22 A
Yes, those enclosures were documents that 23 were used at the enforcement conference.
24 Q
All right.
Now I'd like to direct your 25 attention to the second paragraph of the February 7, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N W.
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2000 letter, the first page of Joint Exhibit 49.
2 A
Okay.
3 Q
Do you see the last sentence of that 4
paragraph that's referring to Mr. Fiser's protected 5
activities and says, "These protected activities 6
included Mr. Fiser's identification of chemistry-7 related nuclear safety concerns in 1991 through 1993, 8
and the subsequent filing of a Department of Labor 9
complaint in September '93 that was based, in part, on 10 these chemistry-related nuclear safety concerns." Do 11 you see that?
12 A
Yes.
13 Q
Now, Mr. McGrath, since the last time you 14 testified in this proceeding, there has been testimony 15 showing that the concerns stated in Mr. Fiser's 16 complaint; that is, the concerns with the rad monitor 17 setpoints, the concerns with the misalignment of a rad 18 monitor, the dispute over how to time the three-hour 19 pass, were not issues raised by him.
20 There's been further testimony that his 21 Department of Labor complaint was a protest that he 22 was being held accountable for the existence of those 23 underlying chemistry issues. Given that testimony, I 24 would like to ask you to give me your assessment of 25 the conclusion on page --
two conclusions on page 2 of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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this letter.
2 The first conclusion I'm going to ask you 3
about your assessment of is in the second paragraph.
4 In the middle of that paragraph, in the middle of the 5
sentence it says, "The NRC concluded that your 6
involvement in the implementation of the 7
reorganization and selection process was at least, in 8
part, motivated by your and other's knowledge of Mr.
9 Fiser's prior protected activity."
10 The other conclusion of which I would like 11 your assessment is in the last paragraph of that page, 12 again just below midway, the sentence that says, 13 "Moreover, NRC concluded it was highly unlikely that 14 given your position in the organization and the number 15 of TVA employees who were involved in the various DOL 16 and TVA Inspector General interviews, that you were 17 completely unaware of the fact that Mr. Fiser filed a 18
'93 Department of Labor complaint until '96." What is 19 your assessment of those conclusions?
20 A
In NRC's original letter they sent me, 21 they based their violation on a statement that I was 22 named as a culpable party in Mr. Fiser's original 1993 23 DOL complaint.
I could understand how that statement 24 would raise questions in people's mind that obviously, 25 I must have known something about it.
And two, if I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N W.
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was named as a culpable party, perhaps I would have 2
some sort of motive for taking some sort of action 3
against him because he accused me of something.
4 As was pointed out earlier, and even NRC 5
agreed, that particular statement was incorrect.
I 6
was not named as a culpable party in that.
In fact, 7
I'm not named at all, nor is there anything related to 8
the actions of NSRB or anything in that.
9 When NRC then moved on to the violation, 10 my reaction is that this was turned into somewhat of 11 a direct attack on my reputation, my credibility, my 12 integrity.
I have stated earlier in these hearings, 13 in the enforcement conference, and in response to the 14 NOV that I had no knowledge of that original DOL 15 complaint.
No involvement in it, no knowledge.
I 16 didn't even know he filed it.
Knew nothing of the 17 settlement of it.
That is still the truth.
I had 18 nothing at all to do with that.
19 There appears to me to be a need to 20 somehow connect me back to that in order to make a 21 basis for this, so when this violation came out, my 22 reading is that, all right.
NRC has no evidence that 23 I had any involvement whatsoever in that, so in order 24 to make the case, we're just going to assume you had 25 involvement, that you were aware of them.
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That's personally of deep concern to me, 2
because when I first read this, I said well, they're 3
accusing me of lying. That's really a personal attack 4
on me, which I'm very deeply concerned about.
They 5
didn't present evidence to support it.
They just 6
stated it, as almost it was stated because they needed 7
to make the statement in order to support a case.
8 Within this case too
- then, is the 9
assumption that even if I had knowledge of some 10 protected activity, and either later on in the course 11 of this case it looked as though we were grasping for 12 straws to find, perhaps there's another protected 13 activity you knew about we can tie this to.
14 I think I mentioned to you last time, it 15 wasn't until, I believe it was November of last year 16 in a deposition that a question about a letter to 17 Senator Sasser comes up, and then in answers to 18 interrogatories to some obscure article in some little 19 town newspaper in Tennessee.
You know, even if 20 somehow I knew something of some protected activity 21 done by Mr. Fiser, we now take this leap to say --
if 22 I was aware of a protected activity, just being aware 23 of it appears to be being taken as evidence that I had 24 a motive to somehow take action against him. And not 25 only is that totally inconsistent with my career - and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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let me explain that to you a little more - but even my 2
own thoughts on things.
3 Let me cover a couple of things.
One, I 4
was Chairman of the Nuclear Safety Review Board.
Now 5
the Nuclear Safety Review Board, as you all know, 6
there's a page full of requirements and the tech specs 7
of things we have to do.
My view of the primary 8
purpose of a Nuclear Safety Review Board was to really 9
enhance the nuclear safety culture of the utility, to 10 provide the opportunity for independent view, to raise 11 questions, to challenge opportunities for improvement, 12 to try to raise issues really long before they become 13 a safety issue.
14 In order to do that, the Board really has 15 to have two things.
It has to be aware of issues, 16 which probably meet the definition of protected 17 activities.
But for the Board to be successful, it 18 also has to have an environment where raising those 19 issues are important. It's important for the Board to 20 function, that people feel free to talk to us about 21 those issues, without any kind of fear that if they 22 talk to us, someone will somehow retaliate, that if 23 one of those members, a manager on the Board or the 24 Chairman somewhere down the line might retaliate 25 against them because they raised an issue.
It is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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totally inconsistent with the purpose of the Board.
2 When I was assigned to run the NSRB at 3
TVA, I probably mentioned this last time, they were 4
generally regarded both by TVA, NRC and others, as 5
ineffective, and I turned that around.
You'll 6
probably find the old NRC inspection reports over the 7
years as to how satisfied they were with the 8
performance of the Board, and the issues we raised.
9 And I think that we were successful in contributing to 10 and enhancing the safety culture, and helped add to 11 the change in the TVA nuclear program over the years 12 that moved TVA from basically being in a regulatory 13 shutdown, to now being one of the best performing 14 utilities in the country.
You can't do that without 15 having an environment that people not only are
-16 encouraged to raise issues, but are very clear to them 17 there's not going to be any kind of retaliation for 18 raising the issue.
19 I don't know how the NRC can conclude that 20 when that was my job to do that, that I would now 21 retaliate against an individual for some issue that I 22 am not even sure I knew about.
You know, I didn't 23 even know what the issue was.
24 If I could bring a second part.
In 25 addition to my running the NSRB, in my time at TVA, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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was also assigned as either a member or a leader in a 2
number of review teams, the Operational Readiness 3
Review Teams for the restart of all the Sequoyah and 4
Brown's Ferry units, for the initial start-up of Watts 5
Bar.
When Sequoyah got into some regulatory issues, 6
I think it was around 1993, I was assigned to head-up 7
the team to investigate all that.
8 In doing those items, and I don't think 9
there's any purpose to be saved by adding additional 10 paper to all the paperwork you already have here, but 11 I could have brought with me hundreds of pages of 12 nuclear safety-related issues that either I
13 personally, or teams that I headed-up, identified.
14 To me, I just can't understand how someone 15 would think that if I identify large numbers of these 16 issues myself, that I would have a motive to take 17 action against somebody for, perhaps, raising one.
18 It's interesting that back in the time 19 frame of the chemistry problems in early --
late 20 1991/early 1992, one of the conclusions of the NSRB 21 was that the problems that were being identified 22 appeared to be recurrences because they were so 23 similar to problems that had been identified in the 24 1989 vintage Operational Readiness Reviews.
25 I was a member of that team.
It would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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almost be saying here that I would have some reason, 2
a motive to retaliate against someone for, perhaps, 3
raising an issue that was the same issue that I, 4
myself, had raised a few years before.
I'm very much 5
concerned that, what is the logic behind that?
I 6
haven't seen anything that presented, in any of the 7
documentation or the enforcement conference, that 8
would support a reason for that type of conclusion.
9 I'd say that I was particularly concerned 10 relative to my reputation, my integrity.
Well, my 11 current job in TVA is not in nuclear power.
I spent 12 about 30 years in nuclear power between the Navy 13 Reactors Program and TVA. My primary job through all 14 that has been reactor safety oversight.
And I think 15 I established a good reputation for doing that, and 16 raising such issues myself.
That's why TVA selected 17 me to run these teams.
That's why NRC was very 18 satisfied with the results of these teams. That's why 19 the Sequoyah restart, why the Region II administrator 20 ran into me on the site and came to ask me for my 21 opinion on how well the plant was doing, and how they 22 were doing in improving their performance.
And I 23 think I had a very good reputation for doing that.
24 And you can really only do that if you set an 25 environment where people are willing to raise such NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N W (202) 234-4433 WASHINGTON, D C. 20005-3701 www nealrgross corn
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issues, are willing to act on such issues, and have no 2
fear at all of raising such issues.
3 To conclude at this time in my career that 4
I actually went off and retaliated against someone for 5
raising a safety issue, well, I guess that kind of 6
destroys 30 years of reputation.
You'd like --
you 7
know, the case trying to be put together here says 8
that I would wait many years, try to take action 9
against an individual at a time when I knew a DOL 10 case, the DOL complaint was filed. The TVA Inspector 11 General was actively investigating it.
I knew that 12 every action we took would come under great scrutiny, 13 and would put at high risk both my current job at the 14 time, because if I were to take discriminatory action 15 against somebody, I knew that TVA would fire me.
But 16 I would also totally ruin my career anywhere in the 17 nuclear power industry. If my expertise being Reactor 18 Safety Oversight, how could anybody hire someone to do 19 Reactor Safety Oversight who had been found guilty of 20 retaliating against people for raising reactor safety 21 issues?
22 I mean, it sounds --
if you look at it, to 23 me, it's almost ludicrous to think that I would risk 24 my entire career to go down and deliberately --
not to 25 talk about all the logistics problems of getting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N W.
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people in the Office of General Counsel, several Human 2
Resources Managers and others to all co-conspire with 3
me to do this.
4 So when I read this, you know, I don't 5
know why it's being pushed.
It makes no sense to me.
6 They're asking you to believe that I would risk my 7
entire career.
If this turns out --
if this come out, 8
I believe my career at all the nuclear power is over 9
with.
10 Now TVA has decided to restart Brown's 11 Ferry Unit I. A few years down the line, we will be 12 back into needing the safety reviews. I would like to 13 be in the position that if TVA comes to me and says 14 will you run those because I'm probably the most 15 experienced person in the country of running those 16 kind of reviews, having done so many in the TVA 17 program, that I could do that, because that would help 18 the company.
It would also help ensure that we're 19 ready to safely restart that reactor.
But they 20 couldn't do that if I had a cloud over my head that 21 said oh, yeah, but he retaliates against people who 22 raise safety issues.
23 MR. DAMBLY: At this point, I think we've 24 gone way beyond any question that was pending. And I 25 don't think Mr. McGrath's future plans for employment NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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have any bearing whatsoever in this proceeding.
2 MR. MARQUAND: Well, I think he's finished 3
his answer. Your Honors, at this time, I would tender 4
into the record Joint Exhibits 46 and 49.
46 is the 5
origin --
it was identified previously.
It is the 6
invitation to Mr. McGrath to attend the pre-decision 7
enforcement conference.
Did I say that?
Joint 8
Exhibit 46 and 49.
46 is the invitation to attend the 9
closed enforcement conference.
49 is the Notice of 10 Violation issued to him.
11 CHAIRMAN BECHHOEFER:
Any objections to 12 those two exhibits?
I'm asking if there's any 13 objection to the two exhibits that are being offered.
14 MR. DAMBLY:
The only objection I have, 15 and I think we've addressed this before, is these 16 pertain to a different case.
This is NRC versus the 17 TVA, the licensee. They want to put in documents from 18 NRC versus Mr. McGrath.
It's a different case.
And 19 to the extent that someone might think you're 20 adjudicating that
- case, I think it would be 21 inappropriate.
22 MR. MARQUAND: we're not asking the Board 23 to adjudicate that case, but those documents and the 24 allegations against Mr. McGrath are the basis for the 25 allegations against TVA in this case.
And since Mr.
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McGrath has never had an opportunity to address those 2
issues on his own behalf, I think it's certainly 3
appropriate for him to exercise this forum to say that 4
here as well.
5 MR. DAMBLY:
Well, I would object to the 6
last part of counsel's statement.
He had an 7
opportunity, and he responded to NOV as per the 8
agency's regulations and the way business is done 9
here.
It doesn't give him a right to come in here and 10 get on a soapbox about a different case.
11 JUDGE YOUNG:
We're on the objection on 12 the exhibits.
And I don't think you're arguing that 13 they're not relevant, are you?
14 MR. DAMBLY:
I'm not sure they are, but 15 they go to a different case.
The issues that are in 16 front of you are in the Notice of Violation for this 17 case.
18 (Judges confer.)
19 JUDGE YOUNG: We're going to overrule the 20 objection. Even though they involve a different case, 21 we find that the issues are inter-related, and 22 therefore, would be relevant.
23 JUDGE COLE: Now that was Joint Exhibit 46 24 and Joint 49.
Correct?
25 MR. MARQUAND:
Yes, Your Honor.
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JUDGE COLE:
All right.
2 (Joint Exhibits 46 and 49 received.)
3 BY MR. MARQUAND:
4 Q
Mr. McGrath, I'd like to direct your 5
attention to --
we talked about --
mentioned briefly 6
a minute ago that Dr. McArthur was placed in the Rad 7
Chem Manager position without competitive selection.
8 And there's been testimony that that decision to place 9
him in that position was based upon a determination 10 that he had a right to that job, it was essentially 11 the same as the job that he previously held. Did you 12 play any part in that decision?
13 A
As I mentioned earlier, the original 14 determination from HR was that we should have 15 advertised that position.
Mr. McArthur came to me, 16 raised a question relative to the job he had 17 previously held, which he thought was equivalent to 18 that position. I referred Mr. McArthur's question to 19 Ed Boyles in Human Resources, and asked him to look at 20 it.
21 I think, as I mentioned in the earlier 22 testimony, my reason for doing that was something I 23 had been involved with several years before, where HR 24 had advised me that if there were changes made within 25 certain short periods of time, that people retain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W.
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their right to their prior jobs. And I knew that some 2
of the changes made relative to Mr. McArthur's prior 3
job had been made in very short periods of time, so it 4
sounded to me like there might be some merit to his 5
question, but I really didn't know those rules, so I 6
referred it to Human Resources.
7 Human Resources and Ed Boyles subsequently 8
came back to me and told me they had reviewed the 9
situation, and in this case, indeed, Mr. McARthur did 10 have a right to that position.
11 Q
All right.
Were you involved in 12 influencing in any way Mr. Boyles and HR's decision 13 that he had a right to that job?
14 A
No, I was not. I referred it to them, and 15 asked them for their evaluation.
16 Q
All right.
And we've already mentioned 17 the TVA exhibits from all of the other positions 18 created in Operation Support, and those positions were 19 advertised on VPAs.
20 A
That's correct.
21 Q
Now assuming that the decision --
that Mr.
22 Boyles' decision was wrong, that McARthur's job should 23 have been posted, and that he didn't have a right to 24 the job, would that mistake, one way or the other, 25 whether to post that job or not post that job, did NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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that have any influence or bearing, to your knowledge, 2
on whether or not the Chemistry Program Manager 3
position should have been posted?
4 A
No, it had no bearing on it.
The 5
Chemistry Program Manager, the decision to post that 6
had been made a month or two prior to the decision 7
relative to Mr. McArthur.
8 Q
And for that matter, did the decisions 9
that the other many positions, new positions in 10 Operation Support had to be posted on VPAs, did those 11 decisions play any part in whether or not to post, to 12 post or not to post the Chemistry Program Manager job?
13 A
Well, no, not to my knowledge.
To my 14 knowledge, what Human Resources did, is they had 15 guidelines in which they'd made that determination.
16 And they applied those guidelines to all of the jobs 17 in Operation Support.
And in fact, I believe at the 18 same time, there were several other reorganizations 19 going on within Corporate Nuclear at the time, and 20 applied those same guidelines to a number of other 21 positions in Corporate Nuclear.
22 Q
Now you're aware that at some point in 23 time, Ron Grover complained about the failure to 24 advertise the Rad Chem Manager position, which Dr.
25 McArthur was placed in.
Correct?
At some point in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N W.
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time you learned that.
2 A
Yes, at some point. I learned that later, 3
yes.
4 Q
All right.
Did anyone tell you in 1996 5
that Ron Grover was threatening to file an EEO 6
complaint over the failure to advertise that Rad Chem 7
Manager position, and give him an opportunity to apply 8
on it?
9 A
Mr.
Boyles mentioned to me, it was 10 probably August/September something of '96, that Mr.
11 Grover had raised EEO concerns relative to that.
12 Q
And when he --
Mr. Grover has testified 13 that both Ed Boyles and Phil Reynolds told him that 14 they were wrong in deciding not to post that Rad Chem 15 Manager job. Did Mr. Boyles or Mr. Reynolds ever tell 16 you that they thought that they were wrong in their 17 decision not to post that job?
18 A
No, they did not.
19 Q
The last thing I'd like to ask you about 20 is the selection board --
about the selection process 21 and the board that met in July, and made the selection 22 for the Chemistry Program Manager jobs.
23 Did you provide any input into the 24 selection review board as to who should or shouldn't 25 be selected?
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A No, I did not.
2 Q
Did you have any discussion with any 3
members of the board about the relative qualifications 4
or merit, or performance of any of the candidates?
5 A
No, I did not.
6 Q
There's been testimony that the selection 7
review board was provided books that included resumes, 8
names of the applicants, score sheets, questions, et 9
cetera. Did you see any of those selection books that 10 the SRB used in the summer of '96?
11 A
No, I did not.
12 Q
Have you seen them since then?
13 A
I believe I've seen some portions of them 14 as part of like preparations for the enforcement 15 conference.
16 Q
Did you have any input into the questions 17 that the selection review board asked?
18 A
No, I did not.
19 Q
Did you see any of the questions?
20 A
No, I did not, until as I mentioned later, 21 as part of the preparations for the enforcement 22 conference.
I believe I learned what a few of the 23 questions were.
24 Q
Did you tell Dr. McArthur what questions, 25 or even what types of questions to use in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N W.
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selection process?
2 A
No, I did not.
And let me add, that was 3
also consistent with a dozen or more positions that 4
were being filled throughout all of Operation Support.
5 I did not have any involvement in the documentation 6
provided to those boards, or any of the questions that 7
would be used.
8 MR. MARQUAND: No further questions, Your 9
Honors.
10 MR. DAMBLY:
May we have a few minutes?
11 MR. MARQUAND:
May we have an escort?
12 CHAIRMAN BECHHOEFER: Ten minutes is fine.
13 (Whereupon, the proceedings went off the 14 record at 3:00 p.m. and resumed at 3:14 p.m.)
15 CHAIRMAN BECHHOEFER:
Okay.
Back on the 16 record.
17 MR. MARQUAND:
Judge, I had one more 18 question I needed to ask Mr. McGrath before I tendered 19 the Witness.
20 CHAIRMAN BECHHOEFER:
Okay.
21 BY MR. MARQUAND:
22 Q
Mr. McGrath, Mr. Fiser has testified that 23 the NSRB, when he was the Chemistry Superintendent at 24 Sequoyah, had suggested or recommended more trending.
25 And he's testified that he flatly refused to implement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N W (202) 234-4433 WASHINGTON, DC. 20005-3701 www nealrgross com
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or even consider that trending. Aside from whether or 2
not --
I'm not asking you whether or not the NSRB made 3
such a recommendation or not. Aside from that, would 4
it be appropriate for --
5 MR.
DAMBLY:
I'll object to the 6
characterization of Mr. Fiser's testimony.
I don't 7
think that's what he said.
8 BY MR. MARQUAND:
9 Q
Assuming that's what the record says, Mr.
10 McGrath, would it be appropriate for a manager at the 11 Plant to refuse to consider or to implement or even to 12 discuss with other Plant management an NSRB suggestion 13 without first exploring the feasibility or 14 practicability or possibility of such a
15 recommendation?
16 JUDGE YOUNG:
Before you answer, let me 17 just ask this question first.
Substitute "refused to 18 even consider, implement or" --
what was the other 19 thing?
20 MR. MARQUAND:
I said flatly --
21 JUDGE YOUNG: Just say if the person were 22 to refuse to do it.
Substitute that and take out the 23 other modifiers.
24 MR. MARQUAND:
Well, let me ask --
why 25 don't I ask --
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JUDGE YOUNG: There was an objection based 2
on what the testimony was.
3 MR. MARQUAND:
I'll take out the "flatly 4
refused," but I mean I want to ask him whether it's 5
appropriate for a manager to refuse to consider or 6
refuse to implement or refuse to discuss with other 7
Plant management that suggestion without exploring the 8
feasibility or practicability.
9 JUDGE YOUNG: There was an objection, and 10 I can actually look up the testimony on here if you'd 11 like me to.
My recollection was that the word 12 "refused" was definitely used. I don't recall whether 13 the others were.
I don't think that it makes a huge 14 amount of difference, but to respond to the objection, 15 I think it would probably be more appropriate to just 16 use the word, "refuse."
17 MR.
DAMBLY:
And I believe that the 18 testimony was he never refused to do trending; he 19 refused to put something in a procedure which couldn't 20 be met and would result in violations. That's what he 21 testified to.
There's no testimony ever about 22 refusing to trend anything.
23 JUDGE COLE: Yes. I think the record will 24 reflect what he
- said, but I
think your 25 characterization is closer to my understanding, Mr.
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Dambly.
2 CHAIRMAN BECHHOEFER:
It's closer to mine 3
as well, my recollection.
4 JUDGE YOUNG:
Do you remember what dates 5
Mr. Fiser --
6 MR.
MARQUAND:
- Well, aside from the 7
testimony, let me refer to Mr. Fiser's own sequence of 8
events which he purported to transcribe, and that's 9
Joint Exhibit 27.
At Page 52, Mr. Fiser states, "I 10 really cross those guys because they sat in my office, 11 Rob, and they demanded that I turn out 52 or 53 plots 12 every day, seven days a week, holidays, weekdays, 13 everything.
I refused.
I could not do that.
It was 14 impossible."
That's not just putting in procedure, 15 that's just doing the trending and refused to do the 16 trending as well.
17 JUDGE YOUNG:
I think that fits with the 18 testimony that I recall.
19 MR. DAMBLY:
I don't think that's his 20 testimony. That's what in this statement that he had 21 when he was discussing, but that's not what he 22 testified to.
23 MR. MARQUAND: Certainly, he sponsored the 24 document.
25 To resolve that issue, I'll restate the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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question.
Mr. McGrath, is it appropriate for a 2
manager to refuse to follow a recommendation from the 3
NSRB without exploring the feasibility or 4
practicability?
5 THE WITNESS:
No.
I would not consider 6
that to be appropriate, and let me explain what I 7
mean.
As you phrase it here, to refuse it without 8
consideration of the feasibility or appropriateness is 9
inappropriate.
As I mentioned earlier, we really 10 endeavor to have a nuclear safety program or culture 11 which one of the key attributes of that is critical 12 self-assessment.
The NSRB in no way attempts to 13 declare itself infallible that should the NSRB make a 14 suggestion you just have to go run off and do it. An 15 expectation is that given the caliber of the 16 individuals who are on this Board, their experience 17 elsewhere in the industry, that if a suggestion is 18 made, it should be given some due consideration.
19 My experience has been that actually some 20 of the best actions were taken where the management of 21 the site really questioned what NSRB suggested, so 22 they understood what was behind it, and in looking at 23 it, may not have done what NSRB suggested but one 24 often did something a little different or changed a 25 current process or something in order to address what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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really the point was behind it.
And that's what I 2
really think is appropriate.
If NSRB suggests 3
something, you need to give it due consideration and 4
understand why.
5 BY MR. MARQUAND:
6 Q
Thank you, Mr. McGrath.
7 CHAIRMAN BECHHOEFER:
Let me follow up a 8
little bit, though.
It was my understanding that the 9
refusal or the declining to take particular actions 10 was motivated by a lack of adequate resources to do 11 that now.
Would the expectation be then that the 12 manager take certain steps to obtain greater resources 13 or on several occasions I believe Mr. Fiser mentioned 14 that he attempted to get greater resources, and when 15 he couldn't it would disrupt the operations of his 16 organization to do the additional trending without 17 adequate staffing and resources to do that. That's my 18 understanding.
19 THE WITNESS: Your Honor, let me answer in 20 general without --
and I don't know the answer now 21 back on this whether there was adequate resources for 22 this particular item or not, but I would think the 23 adequacy of resources and the relative balance as to 24 how you can use those resources and most effectively 25 use them is an appropriate consideration when you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N W.
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looking at something like that.
I can't answer 2
whether or not there were -- whether there was really 3
a resource issue relative to this specific item or 4
not.
5 CHAIRMAN BECHHOEFER: But would a refusal 6
based on adequate --
sorry, inadequate resources be 7
different from just a flat refusal or to consider an 8
issue?
Maybe the word "flat" shouldn't be in there 9
based on previous --
10 THE WITNESS:
Somewhat I'm talking 11 hypothetical situations on the thing. If a suggestion 12 was made, and if I may use something other than this 13 specific one so we're not discussing whether trending 14 or not, whether there were adequate resources.
If 15 NSRB was to make a suggestion, and whether the issue 16 be resources --
well, resources may not be just 17
- people, it may be adequate computer capacity or 18 whatever --
certainly, what it would take to do it is 19 a consideration --
is a valid consideration and 20 considering the resources required to do something 21 against the relative benefits you would get out of it.
22 I would consider that to be a consideration, and you 23 have to balance it.
If it really was a significant 24 safety issue, the answer might be go get those more 25 resources.
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very well be a conclusion that says,
- hey, the 2
resources required to get that enhancement aren't 3
worth the benefits you'd get out of it.
4 CHAIRMAN BECHHOEFER:
Thank you.
5 BY MR. MARQUAND:
6 Q
But is the adequacy of resources an issue 7
that management should look at and address and 8
determine whether that cost/benefit justifies pursuing 9
more resources.
10 A
As I said, that would be one of the things 11 you would look at if it was the type of issue where 12 resources were involved.
13 JUDGE COLE:
Mr. McGrath, you and one 14 other person from the NSRB discussed the possibility 15 of increasing trending with Mr. Fiser, did you not, 16 sir?
17 THE WITNESS: At the Subcommittee meeting, 18 where Mr. Peterson who is an outside advisor --
19 JUDGE COLE:
Tom Peterson?
20 THE WITNESS:
Tom Peterson and Wilson 21 McArthur were discussing a number of subjects, which 22 included trending, with Mr. Fiser and other members of 23 the Chemistry staff, and the Corporate Chemistry staff 24 were involved as part of that NSRB activities that 25 day.
I joined them at one point.
The point is I do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 2 0 2 1 22 2 3 24 2 5 5309 not remember trending being discussed while I was in the room, and so I --
JUDGE COLE: Then I can't ask you the next question.
MR. MARQUAND:
I tender the Witness, Your Honor.
CROSS EXAMINATION BY MR. DAMBLY:
Q Mr. McGrath, you were asked on direct about the diesel fuel oil sampling issue in the LER; do you recall that?
A The issue that Mr. Marquand asked me about a little bit earlier?
Q Yes.
A Yes.
Q And I believe you testified you never discussed that with anyone in Sequoyah Management? Is that true?
A Yes.
Q How did you learn about the issue?
A Mr. Marquand asked me about the issue somewhere in the preparations for this.
I told Mr.
Marquand at the time, I asked him if he was referring to an issue I remembered several years later that had to do with a tech spec change for the diesel fuel oil NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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tanks.
I really don't remember what that tech spec 2
change was. And he told me, no, it wasn't and showed 3
me an LER that had been written about it.
4 Q
So before that you didn't know about it at 5
all.
6 A
No, unless I read somewhere -- there's so 7
many things that I don't --
that was relative to the 8
preparation for this whole case.
It may have been a 9
couple of years ago that I had, but prior to that I do 10 not have any recollection of knowing anything about 11 that.
It is certainly a possibility that in my NSRB 12 mail I have read the LER back that many years ago, but 13 particularly in that time frame at Sequoyah we had a 14 lot of LERs to read.
15 Q
You also testified --
responded to some 16 questions by Mr. Marquand about in '94 there was this 17 group that did chemistry and environmental work under, 18 I guess, Mr. Grover.
Do you recall that?
19 A
- Well, I took over as the head of 20 Operations Support in October of 1995.
21 Q
I'm referring to just earlier this 22 afternoon. Mr. Marquand asked you questions about did 23 you have expectations that the people under Mr. Grover 24 were going to perform the environmental functions that 25 were in their positions?
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A I felt his question was referring to when 2
I --
after I became General Manager of Operations 3
Support in October of 1995.
4 Q
Okay, 1995.
And you said you expected 5
they'd be performing those environmental functions.
6 A
That's correct.
7 Q
Did you look at their position 8
descriptions to see what their functions were?
9 A
No, I did not.
10 Q
Do you know how the positions came about?
11 A
No, I do not.
12 Q
What's the basis for your statement?
13 A
I knew the responsibilities of the 14 Chemistry and Environmental Group.
You may recall 15 back in my earlier testimony the Chief Nuclear Officer 16 had requested my predecessor in the job to perform a 17 review of the functions of the Organization and the 18 Organization, whether they were properly aligned.
19 When I took over, a document I received, which I 20 believe was entered into the record back in April, was 21 an organization and functional chart that had been put 22 together by Operations Support which under each of the 23 various groups listed what the responsibilities of 24 those groups were. And by reviewing that, I knew what 25 the responsibilities of the groups were.
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Q All right.
And do you have any evidence 2
that in point of fact Mr. Grover's group was not 3
performing its responsibilities?
4 A
I have no evidence that they were not 5
performing.
6 Q
Do you know whether or not Ms. Nida was in 7
fact doing the environmental work that was the 8
responsibility of that Organization?
9 A
As I stated earlier today, from my 10 perspective the responsibility belonged with Mr.
11 Grover, and it was up to Mr. Grover as to how he used 12 his employees to effectively perform those functions.
13 Q
Mr. Marquand prefaced his question with a 14 statement that Mr. Fiser has testified he was doing 15 practically none or maybe five percent, at most, 16 environmental work.
Is that a problem for you?
17 A
It would have been a problem if I was 18 aware of it.
He did not tell me of that nor in the 19 few months when I first got into this job did I have 20 any indication from the groups he was supposed to 21 serve or anything that was supposed to be being done 22 that it was not getting done.
23 Q
And would it surprise you to know that 24 yesterday in that very chair you're sitting in Mr.
25 Harvey told us he was doing 95 percent chemistry and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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five percent other work?
2 A
That's certainly possible.
3 Q
That wasn't anything unusual about what 4
Mr. Fiser was doing at that time under Mr. Grover, as 5
far as you know?
6
-A I don't know what Mr. Fiser was doing 7
under Mr. Grover relative to environmental work at the 8
time.
9 Q
And you mentioned something about training 10 for Mr. Harvey? Was he sent to a training course?
11 A
I don't remember the specifics.
It may 12 have been a training course, it may have been required 13 reading.
I do not recall the specifics.
14 Q
Now, did you -- you reviewed the memos or 15 the notes that Mr. Grover and I guess Mr. McArthur had 16 sent to Mr. Harvey concerning those incidents?
17 A
I do not recall seeing those memos.
18 Q
What were you told by Mr. McArthur --
or 19 Dr. McArthur about those?
20 A
As I mentioned earlier today, McArthur 21 told me that there had been an allegation. This many 22 years later I don't remember the specifics of what he 23 may have told me what the allegation was.
He told me 24 that the alleged violation could not be substantiated, 25 was unfounded, but as part of it that he had made a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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3 4
5 6
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5314 decision to provide some additional training to Mr.
Harvey.
Q I'll show you Staff Exhibit 67. Would you take a moment to look at that?
A Okay.
I've looked at it.
Q You note in the second paragraph where it says, "Mr. Harvey acknowledged these incidents that occurred and stated he was unaware of the impact of his behavior toward Ms. Landers."
Yes?
A Yes.
Q And you notice Mr.
McArthur Dr.
McArthur is a cc on this document?
A Yes.
Q And your testimony is Dr. McArthur told you these were unfounded and couldn't be proven.
A Mr. McArthur told me as well that they were that allegations of intimidation and harassment were unfounded.
Now, as I read this particular document, it said that what he did was deemed inappropriate and insensitive, that this does not say that he was --
that he violated something relative to employee intimidation and harassment, which I don't remember the definitions of it, but I read this to say that they looked into it and saw that what he had done may have been inappropriate but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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didn't meet those requirements because it just said he 2
agreed to exhibit better behavior in the future and he 3
was going to go to some training.
4 Q
Is inappropriate and insensitive what you 5
look for in a manager?
6 A
No, that definitely would be a weakness 7
that someone would have to have worked on.
8 Q
Now, when you testified years ago now, 9
whenever it was we were in Chattanooga the first time, 10 do you recall a discussion about the '96 reorg and who 11 made the decision as to what the positions were going 12 to be under the combined RadCon and Chemistry 13 organization?
14 A
Yes.
15 Q
And do you recall saying that you're the 16 one that told McArthur and Grover just come up with 17 what they needed, and they're the ones that decided 18 there would be a PWR and a BWR manager position?
19 A
Yes.
They made the split of PWR/BWR.
20 There would have been other ways to split the 21 responsibilities.
22 Q
Would it surprise you to know that both 23 Mr. Grover and Dr. McArthur said that you made that 24 decision immediately and told them from the beginning 25 there would be one PWR and one BWR position?
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A That is not true; I did not do that.
2 Q
So they both misunderstood you?
3 A
In fact, the original proposals that they 4
came back with had different organizations, and it had 5
organizations that were based --
they had different 6
splits and responsibilities as well as different 7
numbers of people.
8 JUDGE YOUNG:
Are you saying they came 9
back with several alternatives; is that what you're 10 saying?
11 THE WITNESS:
Originally, they came back 12 with several alternatives. The original alternatives, 13 they were not in accordance with the overall planning 14 guidelines I had given the entire department, and they 15 were not the only department who came back where their 16 first cut wasn't in accordance with the requirements.
17 And the requirements --
one of the requirements I sat 18 down is I wanted them to look at what would be the 19 logical long-term organization and then take the first 20 logical steps that we could take to get to that 21 organization.
22 If I could use an example in one other 23 group, the Maintenance group originally proposed an 24 organization with two supervisors. The logical long-25 term organization was just one. There weren't enough NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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people to substantiate having two supervisors.
But 2
like some of them said, well, we could probably meet 3
next year's budget goal and keep the second 4
supervisor.
Well, I turned that down because we 5
wanted to take the logical step to get where we needed 6
to go.
7 And the original proposals, which split up 8
Chemistry and RadCon differently, and I don't remember 9
the specifics of them all right now, were similar to 10 that in that basically the basis for the proposals was 11 to minimize head count reduction, not to move towards 12 a logical final state. The logical final state, which 13 had been based on benchmarking, which had been done 14 prior to my coming into the group, indicated that 15 having two Chemistry specialists would be sufficient 16 for our needs and the size of our program.
Point out 17 to you that about a year after we did this 18 reorganization there was another reorganization of 19 Corporate which was done on a different type of 20 functional review, and the Chemistry and RadCon 21 organization was left unchanged, that based upon that 22 that other review confirmed that it was a logical 23 way to organize.
An example of another way to 24 organize rather than going BWR/PWR would have been to 25 split it primary Chemistry/secondary Chemistry.
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BY MR. DAMBLY:
2 Q
All right. Now, back to my question. Did 3
you or did you not tell Grover and McArthur you wanted 4
one PWR and one BWR Chemistry Manager position in the 5
new organization?
6 A
I did not.
7 Q
So when both of them said that's what you 8
did, they didn't understand you.
9 A
Or perhaps as you're asking these 10 questions seven years later, they're having trouble 11 recollecting what was said.
12 Q
Ah.
Now, in the reorganization in '96 of 13 your organization, the Operations Support, and I think 14 we've covered this during your first testimony but it 15 wasn't real clear this afternoon, in point of fact, 16 other than Dr.
McArthur no positions in that 17 organization were non-competitively filled during the 18 reorganization?
19 A
Of the new positions, that is correct.
I 20 mean there were some other positions that were deemed 21 to be essentially unchanged and the incumbent just 22 stayed in.
23 Q
What were those positions?
24 A
For example, in the Maintenance group, we 25 had a turbine expert. We still had a turbine expert.
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The only change in his position description was the 2
manager to whom he was reporting.
3 Q
As I recall, the last time when you were 4
asked this question, in fact and one of the judges 5
even said, "So nobody was performing the same 6
functions after the reorganization as they were 7
performing before," and you said that was correct.
8 A
I was referring to all of the new 9
positions. There were a certain number of positions, 10 and the example would be the turbine expert, the valve 11 expert in the Maintenance group, where their positions 12 were unchanged by the reorganization.
13 Q
- Now, you indicated you wouldn't 14 intentionally discriminate against Mr. Fiser because 15 you knew TVA would fire you if you did it.
Remember 16 that?
17 A
Yes.
18 Q
And I think we covered this the last time 19 in your testimony, do you know who Joe Bynum is?
20 A
Yes.
21 MR. MARQUAND:
If we covered it the last 22 time, I'm going to object.
23 MR. DAMBLY:
Well, everything that you 24 covered today we covered the last time, and he opened 25 the door with his testimony.
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CHAIRMAN BECHHOEFER:
Overrule the 2
objection.
3 BY MR. DAMBLY:
4 Q
And in point of fact, the NRC issued an 5
order barring Mr. Bynum from licensed activities for 6
five years for intentional whistleblower 7
discrimination; is that correct?
8 A
I'm not sure.
I don't know the specifics 9
of everything that came out of that particular case.
10 I don't remember them now.
11 Q
Oh.
So when an order is issued to a high 12 level manager at TVA nobody hears about it; is that 13 right?
14 A
No, I didn't say that.
15 Q
You don't know --
16 A
It was quite a number of years ago.
If 17 you're asking me the exact provisions of that, I'm not 18 positive that I remember the exact provision. I know 19 there was an order.
20 Q
Do you know what the basis of the order --
21 A
I know there was an order and that Bynum 22 was not allowed to participate in nuclear for some 23 period of time.
24 Q
And you know he wasn't terminated.
25 A
That's correct.
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Q In point of fact, he was transferred to 2
the non-nuclear side of TVA at the same pay?
3 A
I know nothing at all about Mr. Bynum's 4
pay.
5 Q
What's the basis for saying you're going 6
to be fired?
7 A
The statement I was making was that if I 8
actually did discriminate against someone and TVA 9
found that I did, I would expect to be fired.
The 10 fact that NRC issued that order against Mr. Bynum does 11 not necessarily mean that TVA agreed that he actually 12 did it.
In this particular case here, TVA is 13 appealing this violation. TVA does not agree that any 14 discrimination happened in this case.
15 Q
And so then in this case, no matter what 16 the finding, TVA doesn't think you did anything wrong, 17 so you don't have anything to worry about.
18 A
I don't know what TVA will do when the 19 outcome of this case is finalized.
What I was 20 answering was that if I really did something like 21 that, I would expect to be fired for doing it.
22 Q
Now, with regard to Mr. Grover in the EEO 23 complaint, did it surprise you when the only African 24 American manager that you had in your organization was 25 the position for which he could have competed was non-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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competitive given that Mr. McArthur that somehow that 2
would lead to a complaint?
3 A
I'll try to answer your question, and if 4
we talk about --
Mr. McArthur --
you make it sound 5
like it was just given to Mr. McArthur.
6 Q
Well, we've had a lot of testimony about 7
that.
8 A
My understanding is under the Human 9
Resources rules he had a right to the position and 10 that's why he was put in the position.
11 Q
They haven't talked to you since the last 12 testimony?
13 A
I can't exactly specify on what may or may 14 not motivate Mr. Grover to whether he would submit a 15 complaint afterwards or not.
16 Q
In regard to NSRB roles and interactions 17 with the staff, I'd like to read to you from Mr.
18 Richey's testimony in this hearing. It starts at Page 19 4695 in response to a question from Judge Young, and 20 at the bottom of 4695, Mr. Richey says, "And the NSRB 21 was more, from what I remember, more confrontational 22 than they have been in the last ten years.
Now it's 23 more of a real discussion about what you are doing 24 about your problems and what problems have been 25 identified, and, yes, they will bring things up.
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I have never seen anything since then that was as, and 2
I'll say antagonistic for lack of a better word, as I 3
remember during that time period."
Are Mr. Richey's 4
perceptions of dealing with the NSRB inaccurate?
5 A
I'm not sure I understand what his 6
perceptions are and what the time periods were that 7
you're referring to.
8 Q
The time period this line of 9
questioning had to do with the 1991 NSRB meeting, 10 Subcommittee meeting on trending.
That's what the 11 train leading into this was about, and that was the 12 discussion.
So back in 1991, back at that meeting.
13 A
And he's referring to the ten years prior 14 to that?
15 Q
No.
He's saying since then, in the last 16 ten years, it hasn't been like it was then.
Do you 17 want me to read it to you again?
18 A
I didn't understand what the ten meant.
19 I really cannot comment on particular subcommittee 20 meetings or how they were all carried out over time.
21 We have changed a lot of members over the years.
In 22 the particular meeting in question, there were two 23 issues at that meeting, both of which had been open 24 items with Sequoyah for six to nine months over which 25 they had taken no action.
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accident sampling and demonstrating the ability to 2
meet the NUREG-0737 requirements, and the other was on 3
an issue of unmonitored release pass.
Both of those 4
had been open for a number of months; in fact, for the 5
part of the meeting I was in, in two of them, there 6
was a fair amount of confrontation there between the 7
Corporate Chemistry Manager and the Site Chemistry 8
Manager who both disagreed strongly on the issues.
9 But that particular meeting had a number of issues 10 that I would not expect that would come up routinely, 11 and fortunately we got by the point of there being 12 issues that stayed outstanding for extended periods of 13 time.
14 Q
All right.
- Now, one last area of 15 questions, and hopefully we can get Mr. Fogleman in 16 here. You stated in the speech you made at the end of 17 your testimony that you couldn't see any basis at all 18 how NRC could conclude you had anything to do with the 19
'93 to '96 complaints by Mr. Fiser or any activities 20 out of there, and it would only take a witch hunt to 21 try and tie you to any of that.
22 A
No.
I didn't say that. You're trying to 23 tie it to the '96 complaint.
I never mentioned the 24
'96 complaint.
25 Q
Just the '93 complaint?
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A And a witch hunt is your characterization.
2 Q
Well, what did you say?
3 A
Do you want me to go back and do that all 4
again?
5 MR. MARQUAND:
He's --
6 BY MR. DAMBLY:
7 Q
Did you not say there was no basis by 8
which the NRC could rationally conclude that you had 9
any involvement whatsoever?
10 A
The NRC in any documentation made 11 available to me by NRC, by anything stated by NRC at 12 the Enforcement Conference or at any of these hearings 13 is I have not heard anything that would rationally tie 14 me to the 1993 complaint.
15 Q
All right. Do you remember there being a 16 1996 complaint?
17 A
The 1996 complaint, that had to do with 18 the posting of the position?
19 Q
And do you recall the '93 complaint being 20 a subject in the '96 complaint?
21 A
I recall that the 1996 complaint totally 22 recharacterized the 1993 complaint and made statements 23 in it that there were issues raised in the 1993 24 complaint that were not actually raised in the 1993 25 complaint. And the total characterization of the 1993 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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complaint in the '96 one was totally false.
2 Q
Do you recall there being a Motion for 3
Summary Disposition filed on behalf of TVA in that 4
complaint at DOL?
5 A
Which complaint are we talking about?
6 Q
Ninety-six.
7 A
I recall that TVA made a submittal to DOL.
8 Q
Do you recall the administrative law judge 9
denying the Motion for Summary Disposition?
10 MR. MARQUAND:
Objection.
We've been 11 through this before, and that's not relevant to 12 anything.
What the judge decides with respect to 13 summary judgment, whether the judge may think there's 14 material issues of fact is not pertinent to anything 15 this Board has to decide.
Motion on summary judgment 16 which is denied is not dispositive of anything.
It 17 doesn't decide anything.
18 JUDGE YOUNG:
What's your purpose for 19 offering --
asking --
20 MR. DAMBLY:
My purpose is very simple.
21 He said that the NRC could not have rationally 22 concluded from anything that was presented to anybody, 23 here, there or anywhere, that there was any basis to 24 connect him to the '93 complaint.
We have an order 25 from an administrative law judge at the Department of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Labor which has a section called, "Undisputed Facts,"
2 which specifically states the complaint was based on 3
new procedures required by --
the September 23, '93 4
complaint was based on new procedures required by Tom 5
McGrath, Chairman of the NSRB, and Wilson McArthur, a 6
member of the same Board.
7 MR. MARQUAND:
That's not --
8 MR. DAMBLY:
That's undisputed.
It's 9
listed as undisputed facts, and that's based on the 10 briefs submitted by Mr. Marquand and by Mr. Fiser and 11 his attorney and all the depositions and whatever that 12 were included in that. And there are more statements 13 along those same lines dealing with Mr. McGrath.
If 14 we're going to have to listen to speeches about how 15 irrational we are, then I think -- was the Department 16 of Labor irrational?
Were they out to get you?
17 THE WITNESS: I believe if you read that, 18 that it was very clear to me that the Department of 19 Labor judge made his decision, probably like OI did 20 originally, by reading the 1996 complaint 21 characterization of the 1993 complaint.
If you go 22 back and actually read the 1993 complaint, there is no 23 mention whatsoever of trending, there is no mention 24 whatsoever of me. If the administrative law judge for 25 the DOL lists as an undisputed fact that that was in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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the 1993 complaint, I contend that he was wrong, and 2
he probably never read the '93 complaint; he relied on 3
the 1996 characterization of the '93 complaint.
4 BY MR. DAMBLY:
5 Q
Did you review what your Counsel filed?
6 Do you know if they disputed that fact in '96?
7 MR. MARQUAND:
Your Honors, I'm going to 8
continue to object.
What is submitted in summary 9
judgment is not dispositive of anything.
It doesn't 10 it's not --
11 MR. DAMBLY:
It constituted admission.
12 MR. MARQUAND: It's not res judicata, it's 13 not precedent, it's not an admission.
14 MR. DAMBLY:
Yes, it is.
15 CHAIRMAN BECHHOEFER:
I think it may --
16 MR. MARQUAND: But what the judge says is 17 not an admission by anyone.
If he wants to submit 18 something that says we made an admission of something, 19 I'd like to see it.
But what the judge states with 20 respect to it, if the judge is in error, is not an 21 admission by TVA. It's certainly not precedence, it's 22 not law of the case, it's not res judicata.
23 JUDGE YOUNG:
I'm not sure that engaging 24 in argument with the Witness over what happened in 25 another legal case is really that pertinent to what we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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have to decide.
2 MR.
DAMBLY:
- Well, I
don't have 3
necessarily a disagreement, although I think if I was 4
to file their motion, that clearly would be an 5
admission. And when you are in a summary disposition 6
state, if somebody alleges a fact and you do not 7
dispute it, that is an admitted fact. So I think that 8
would be relevant.
But beyond that, they opened the 9
door with this long speech about the NRC's lost its 10 mind, they've got no basis for anything, nobody could 11 rationally conclude.
If they want to tell me the 12 Department of Labor is irrational too, then I think 13 that at least puts in context the testimony.
14 JUDGE YOUNG: I guess what I would have to 15 say would be that up until the end of Mr. McGrath's 16 testimony you did not object, and certainly you have 17 the right to cross examine, but I'm not sure that it's 18 a very efficient use of any of our time to argue about 19 what happened in another legal proceeding with this 20 Witness.
You can make your arguments to us, either 21 verbally at the conclusion of the hearing or in 22 proposed findings of fact and conclusions of law.
23 MR. DAMBLY:
Well, we can't make them if 24 this is not in the record.
25 CHAIRMAN BECHHOEFER:
We have admitted NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N W.
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into evidence documents relating to a different 2
proceeding, and I think on the same rationale I would 3
allow the questions to go forward here.
4 JUDGE YOUNG:
I think some leeway is in 5
- order, but keep in mind that if lawyers file 6
something, I'm not sure how much a witness would have 7
to say about the legal documents that are filed by 8
lawyers and how helpful that is or how that efficient 9
that is in terms of how to spend our time at this 10 hearing.
With that said, we'll allow you a little 11 leeway.
12 MR. DAMBLY:
I think I've asked the 13 question I was interested in. I would, at this point, 14 however, since we've now admitted NOBs and statements 15 by Mr. McGrath in a case that is not this case, I 16 would like to move in Staff Exhibit 147, which is the 17 brief in support of the Motion for Summary Decision 18 filed by TVA, and Staff Exhibit 148, which is the 19 order denying the Motion for Summary Decision. And I 20 would note that Staff Exhibit 147 was signed by Mr.
21 Slater and Mr. Marquand.
22 JUDGE YOUNG:
Any objection?
23 MR. MARQUAND:
Yes, Your Honor.
I still 24 contend that the Motion for Summary Judgment and what 25 is said in response to it is not --
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proceeding provides no basis for this Board to make 2
any sort of decision.
The fact that TVA makes a 3
Motion for Summary Judgment and contends that certain 4
facts are undisputed doesn't mean that the other 5
allegations are conceded. And the fact that the judge 6
comes back and says, "Well, based on what Mr. Fiser 7
says, I'm making a determination of undisputed facts,"
8 is not binding in that case.
It's certainly not 9
precedential or res judicata or collateral estoppel in 10 this case and would have no bearing in this case. The 11 fact that TVA decides to pursue summary judgment on 12 one issue doesn't mean that there may not be other 13 grounds in that case to proceed.
14 JUDGE YOUNG: Let me stop you.
Let's try 15 to separate out the issue of res judicata or 16 collateral estoppel, because I don't think that's 17 what's being argued.
And, certainly, on the Motion 18 for Summary Judgment or Summary Disposition, I would 19 agree with you. So let's take that off the table, and 20 if you could just address the relevance of this.
21 MR. MARQUAND: All right. One forty-seven 22 is TVA's brief in support of its Motion for Summary 23 Judgment. I don't think Counsel is arguing that TVA's 24 motion should have been granted nor do I think he is 25 asserting that the facts as stated by --
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agrees with the facts as stated by TVA in that brief.
2 JUDGE YOUNG: But would it not be relevant 3
to what TVA's position would be with regard to the 4
same set of facts as are at issue in this case?
5 MR. MARQUAND:
I don't know that TVA's 6
position has changed.
7 JUDGE YOUNG:
Then what would your 8
objection be?
9 MR. MARQUAND: What possible relevance is 10 it?
He's not contending that we've changed our 11 position. That's not what he's arguing. He's arguing 12 13 JUDGE YOUNG:
He's relying on your brief 14 as a statement of what your position was and certain 15 statements that you made with regard to what the facts 16 were or are with regard to the same set of facts that 17 underlay the case before the Department of Labor and 18 that are at issue in this case.
19 MR. MARQUAND: I didn't hear him make that 20 argument.
With due respect, I heard him argue that 21 the judge's decision on summary judgment --
I heard 22 him argue that the judge's decision on summary 23 judgment was a statement of the undisputed facts.
24 JUDGE YOUNG:
We haven't read either one 25 of them, so let's limit the argument at this point to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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TVA's brief, and I think that what we have drawn from 2
Mr. Dambly's statements is that he's relying on what 3
TVA said in its filings in the Department of Labor 4
case, specifically it's Motion for Summary Disposition 5
and I guess the brief in support of it.
And so what 6
I'm asking you is what's your objection?
7 MR. MARQUAND:
Well, let me take a brief 8
break and look at the document.
I may not have an 9
objection.
10 JUDGE YOUNG:
Okay.
And if we've 11 misstated your position, Mr. Dambly, feel free to 12 correct us.
13 MR. DAMBLY:
No, Your Honor.
14 (Whereupon, the foregoing matter went off 15 the record at 4:01 p.m. and went back on 16 the record at 4:07 p.m.)
17 MR. MARQUAND:
Your Honor, I'm finished 18 reviewing Staff Exhibits 147 and 148.
Staff Exhibit 19 147 is the brief in support of his Motion for Summary 20 Decision, filed by myself --
and I don't see a 21 signature on it --
filed by myself and Mr. Slater, 22 with the understanding that these are statements of 23 counsel and certainly statements of counsel made a 24 long time ago before all of the facts were well 25 understood.
I don't really object to this document.
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I believe it's essentially consistent with everything 2
we've said in this case.
3 With respect to Complainant's 148, the 4
order denying the Motion for Summary Judgment, that's 5
Judge --
as you know, Judge Phalen is the Department 6
of Labor Administrative Law Judge, and he was 7
reviewing a Motion for Summary Judgment in a light 8
most favorable to the Complainant based on assertions 9
made by the Complainant. And as such, he states facts 10 that he finds, and I don't know whether it's fair for 11 his statement that those are undisputed facts or not, 12 but those are --
as you know, on summary judgment, he 13 has to take the disputed facts in the light most 14 favorable to the Complainant, and he may have made a 15 misstatement there where he says those are undisputed 16 facts.
And in
- fact, I
don't with that 17 understanding of the standards for summary judgment, 18 I don't object to Complainant's Exhibit 148.
19 JUDGE YOUNG:
You don't?
20 MR. MARQUAND:
I don't think it proves 21 anything.
22 JUDGE YOUNG:
If you have no objection, 23 then they'll both go in.
24 CHAIRMAN BECHHOEFER:
Yes.
25 MR. DAMBLY:
And we have no further NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions.
CHAIRMAN BECHHOEFER: Okay. And the Board will admit TVA Exhibits 147 and 148.
JUDGE COLE:
NRC Staff Exhibits 147 and 148.
CHAIRMAN Exhibits 147 and 148.
BECHHOEFER:
I'm sorry, Staff (Whereupon, the above-referred to documents, previously marked as Staff Exhibit Nos. 147 and 148 for identification, were admitted into evidence.)
MR. MARQUAND: May the Witness be excused, Your Honor?
CHAIRMAN BECHHOEFER:
Pardon?
MR. MARQUAND: May the Witness be excused?
CHAIRMAN BECHHOEFER:
I have one or two Do you have further questions?
MR. DAMBLY: I have no further questions, questions.
so far.
CHAIRMAN BECHHOEFER:
Okay.
JUDGE YOUNG:
Do you want to go ahead or shall I?
CHAIRMAN BECHHOEFER: I just have a couple of very short ones.
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JUDGE YOUNG:
If you want to go ahead.
2 CHAIRMAN BECHHOEFER:
Yes, I'll --
Mr.
3 McGrath, when the matter concerning the placing of Dr.
4 McArthur in his position without competition was 5
referred to you, were there any views expressed by the 6
person who was doing the referral?
7 THE WITNESS:
The question about Mr.
8 McArthur being appointed was actually raised by Mr.
9 McArthur. He came to me and he raised the question as 10 to whether or not he should really have the right to 11 the position. The basis that he mentioned to me, and 12 this is what triggered my thoughts of the timing 13 issue, there had been a reorganization in Operations 14
- Support, I think it was 1994, in which -case the 15 position, which the title at that time was Technical 16 Support Manager, which McArthur held, which was over 17 RadCon and Chemistry and some other activities, that 18 position was eliminated.
Mr. McArthur subsequently 19 ended up the Radiological Controls Manager.
20 A few months afterwards, the position of 21 Chemistry and RadCon Manager was created again, 22 similar to the Technical Support job he had.
An 23 individual who really was taking early retirement was 24 put in there on an acting basis.
That other 25 individual was in the process of retiring when I took NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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over the group, so that position became vacant shortly 2
after I took over the group in October of '95.
3 Mr. McArthur raised the question on the 4
basis of, "I held this position, it was eliminated, 5
shortly thereafter it was recreated, and that person 6
put in there on an acting basis, that person is gone.
7 Why wasn't that my job?" As I mentioned before, given 8
a similar circumstance years before and knowing there 9
were rules relating to --
to protect employees so you 10 can't abolish their job today, eliminate them, and 11 turn around next week and recreate their job and toss 12 them out of it, it's sounded like something I needed 13 to refer to HR.
I didn't know what the rules were 14 relating to that.
I was just under the impression 15 there were some.
And that's why I referred it to 16 them, and the issue was raised by Mr. McArthur 17 himself.
18 CHAIRMAN BECHHOEFER: When you referred it 19 to HR, though, did you discuss or comment at all about 20 the merits of one view or another?
21 THE WITNESS:
I just explained to them 22 what Mr. McArthur had brought up, and when I talked to 23 Mr. Boyles I told him about my prior impression from 24 before, because the Human Resources Manager who had 25 told me that at this particular time was now Mr.
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Boyles' manager, the next level up.
So I wanted him 2
to be aware of that so he would talk with his boss 3
about it.
And in fact I believe when they made that 4
decision it was his decision.
He referred it and 5
consulted with his boss as to whether the decisions he 6
made were correct.
But if you're asking, no, I did 7
not talk to him about the relative merits, saying, 8
"Gee, I'd really like you to do this."
I just 9
referred it to him because I thought it was a question 10 that needed to be resolved within the Human Resources 11 rules.
12 CHAIRMAN BECHHOEFER:
And you've 13 testified, as I understand, that at the time that was 14 after the decision to post the Chemical Manager 15 position was made.
16 THE WITNESS:
That's correct; in fact --
17 CHAIRMAN BECHHOEFER:
Time-wise.
18 THE WITNESS:
Right.
Because time-wise 19 Mr. McArthur brought that question up because I had --
20 I don't remember how I communicated to all my managers 21 that basically the decision was that all the new 22 positions would be advertised, including a RadChem 23 Manager.
24 CHAIRMAN BECHHOEFER:
I see.
25 THE WITNESS: So some weeks subsequent to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that McArthur came to me with the question.
2 CHAIRMAN BECHHOEFER:
Okay.
Thank you.
3 JUDGE YOUNG:
Yes.
I'd like to clarify 4
just a couple of things on which there's been 5
testimony by others that mentioned you.
I believe it 6
was Mr. McArthur who testified that you had mentioned 7
Mr. Rogers as a good person to take the place of Mr.
8 Cox for the Selection Review Board for the PWR 9
Chemistry Manager?
Does that coincide with your 10 recollection?
11 THE WITNESS: At the time, and I'm coming 12 up with another member, there were a few meetings 13 involving myself, Mr. McArthur and Mr. Boyles, a few 14 discussions in my office.
At this time, I don't 15 remember exactly who was there each time.
The 16 sequence of events is the first discussion we had is 17 we thought we would try to get the Watts Bar Assistant 18 Plant Manager.
McArthur went and attempted to get 19 that individual, and he was not available.
We then 20 discussed, and I knew that HR strongly recommended we 21 continue with three people on the Board rather than 22 just two.
Our rules would let you drop the two but 23 that's not the preferred way to do it. The discussion 24 to use someone from Corporate, and actually there were 25 two individuals mentioned, Mr. Rogers and a Mrs.
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Cooper, I really don't recall whether Mr. McArthur was 2
in there at the time or not in the discussion.
3 JUDGE YOUNG:
But your recollection is 4
that you did recommend --
5 THE WITNESS:
When we talked about it, 6
yes, I was probably the one who suggested Mr. Rogers 7
and probably another alternate, a Mrs. Cooper, who was 8
also another Corporate manager in the organization.
9 JUDGE YOUNG:
And since there has been 10 some testimony about whether Mr.
Rogers was an 11 appropriate person, just could you clarify for me the 12 basis for recommending him as one person who might be 13 a good one to sit in that spot?
14 THE WITNESS:
Mr.
- Rogers, by his 15 background.
I remember we were looking for a Board 16 member, I believe it was five positions.
There were 17 two Chemistry positions, two Radiological Controls and 18 a
third
- position, which was Rad Waste and 19 Environmental Functions.
By his background, Mr.
20 Rogers had been what we call a Technical Support 21 Manager at the Plant, and now he had numerous jobs 22 working up to being the Manager of the whole group.
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systems, radiological controls were all items about 2
which he needed to be knowledgeable of.
In addition, 3
he was a qualified as a shift tech supervisor, which 4
I also believe the qualifications like that, which are 5
fairly similar to those of a shift senior reactor 6
operator --
7 JUDGE YOUNG:
I'm sorry, a shift test --
8 THE WITNESS:
a shift technical 9
supervisor.
10 JUDGE YOUNG: Tech supervisor. Thank you.
11 THE WITNESS:
In addition to the licensed 12 operators, there's also a requirement for a shift 13 technical supervisor to be on watch, and they have --
14 very generally, their qualifications are similar in a 15 lot of areas, at least the technical knowledge of the 16 Plant, to --
17 JUDGE COLE:
Is that the STA advisor, 18 shift technical advisor?
19 THE WITNESS:
Yes.
Yes.
That's right, 20 shift technical advisor.
Sorry, I got the acronym 21 mixed up. And given that wide background and I don't 22 remember now how many years experience he had. He had 23 worked at both Sequoyah and Watts Bar.
And I just 24 felt that he had a lot of experience and would be 25 appropriate on such a Board.
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JUDGE YOUNG:
While I'm still on it, I 2
just thought of this one.
There's also been some 3
testimony about whether rescheduling would have been 4
an appropriate alternative, given that I think there's 5
some testimony that it was somewhat unusual to go into 6
the evening, as the schedule that remained in place 7
necessitated.
Was the option of rescheduling 8
discussed or considered or how is that normally 9
handled, to your knowledge, if you know?
10 THE WITNESS:
Well, yes, we did discuss 11 it.
Now, it was after --
I don't think I knew at the 12 time that the interviews were not starting until the 13 afternoon.
But in using the three site RadChem 14 managers, the original scheduling had been set up to 15 pick a day where all three of them would have been in 16 Chattanooga, and I believe they had a meeting that 17 morning.
That was the reason they started later in 18 the day.
19 When Mr. Cox said he could not go, there 20 was only a few days notice.
Between --
because we 21 were interviewing for five positions. In addition to 22 the Board, you had those who were being interviewed 23 for all of the positions and in addition some of the 24 HR support people and the like.
So it was probably --
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12 to 15 people, and there was a concern, "Well, can 2
we even now come up with a date where we can get all 3
the candidates who need to be interviewed there?"
4 JUDGE YOUNG: So you were looking at it as 5
one whole grouping of the five top positions --
6 THE WITNESS:
Right.
We were looking at 7
it as all --
8 JUDGE YOUNG: -- rather than separating it 9
out.
10 THE WITNESS:
That's right.
We were 11 looking at it as all five and holding them all 12 together, because the plan was to use the same 13 Selection Review Board for all five positions, and we 14 really only had a few days notice to go change it.
15 And then we tried to go through some substitutes to do 16 it, and that's why we did not reschedule it was the 17 just the logistics of rescheduling that many people on 18 a couple of days notice.
19 JUDGE YOUNG:
And I don't recall this, 20 actually, but was there any question raised about the 21 makeup of the Board in that interim period between 22 when Mr. Cox indicated he could not do it and when the 23 interviews were actually held?
Was there ever any 24 objection or question raised?
25 THE WITNESS:
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or question raised, except to the extent that Mr.
2 McArthur, Mr. Boyles and I discussed who would be a 3
qualified person to put on the Board. I mean that was 4
the question. No other individuals raised a question 5
relative to the makeup of the Board.
6 JUDGE COLE:
And the reason why the 7
meeting started at 12 or after 12 was?
8 THE WITNESS:
There was a meeting of what 9
we called the RadChem Managers Peer Team, which was a 10 meeting that was held approximately monthly at one of 11 the sites in which -- at one location. And the three 12 RadChem managers would have to come to Chattanooga in 13 order to do that, and it was actually difficult to get 14 days you could get them all in one place at one time.
15 And so they had a meeting that was scheduled for that 16 morning, and then they were going to go do the 17 interviews.
18 JUDGE COLE: Okay.
So your original plan 19 was to use all three RadChem managers.
20 THE WITNESS:
That's correct.
21 JUDGE COLE:
All right.
Thank you.
22 JUDGE YOUNG:
The only other thing I 23 wanted to ask you about was there's also been some 24 testimony, and I think it's all been since you first 25 testified, because as I recall you were pretty early NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE, N.W.
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on, about efforts to place Mr. Harvey at Sequoyah as 2
a means of assuring that no one --
none of the three 3
persons, Harvey, Fiser or --
was out of a job.
4 There's been some testimony that that was considered 5
but that you might have suggested or stopped that --
6 stopped Mr.
Harvey stopped the plans or 7
consideration of any plans to put Mr. Harvey at 8
Sequoyah?
9 THE WITNESS: When that subject came to my 10 attention, the three Chemistry and Environmental 11 Program managers had identical position descriptions.
12 Position descriptions had not indication that they 13 supported any particular plant.
When you have three 14 individuals in the same position, there is no way to 15 just take one of those people and move them to another 16 site.
We could have pursued moving the entire 17 function to the site, which would have meant moving 18 all three of them.
Moving it would have been beyond 19 my authority, but I could have recommended it to the 20 site Vice Presidents to do it, perhaps.
21 But without doing it, you can't --
when 22 you have three identical people, within the rules, you 23 can't just come in and pick one of them and say, 24 "Well, I'm going to move you there."
You would have 25 to --
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description.
The proper way to handle that would be 2
that if Sequoyah had a position, and it's one thing 3
Sequoyah could have done but they elected not to do, 4
would just be to advertise the position. Then any one 5
or all of those three individuals or anyone else could 6
have applied on the position.
7 If any of them had been applied and been 8
selected by Sequoyah, not only would I --
could say, 9
yes, I would have let them go, the only real basis you 10 can have to turn down someone who's been selected, not 11 let them go, is an overwhelming need of the Company to 12 stay where they were.
Well, if the position they're 13 in was being eliminated, there's hardly an 14 overwhelming need to the Company to stay there.
So 15 had Sequoyah advertised the position, any one or all 16 three of them could have applied on that position and 17 Sequoyah could have selected their best qualified 18 candidate.
19 One impression, though, even that I told 20 you there really wasn't a way to move any one of them.
21 Recognize that even if there were only two left, we 22 would have still had to advertise the position. There 23 was no guarantee that the two remaining Corporate 24 people would be selected.
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been in corporate jobs who would have every right to 2
have applied on those positions and potentially could 3
have been still been selected over the remaining two 4
Corporate people.
5 JUDGE YOUNG: Thank you. Anything further 6
or any follow-up?
7 (Judges confer.)
8 MR. MARQUAND:
It's TVA 152.
9 CHAIRMAN BECHHOEFER:
Mr. McGrath, you 10 were asked certain questions about an incident 11 involving employee harassment and intimidation of Mr.
12 Harvey, and you were asked --
this was based on TVA 13 Exhibit 28.
Well, a similar document is TVA Exhibit 14 152, which I understand has been admitted.
And you 15 received a copy of that one.
16 MR. DAMBLY: I think the first document is 17 Staff 67.
18 CHAIRMAN BECHHOEFER:
Oh.
Well, I was 19 referring to TVA 28, which --
20 MR. MARQUAND:
Staff 67, Judge, is the 21 same as TVA 28, but TVA 28 is not in the record.
We 22 made an attempt yesterday to not throw it in as well 23 24 CHAIRMAN BECHHOEFER:
Well, we only need 25 one.
Of those two, it's clear we only need one.
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MR. MARQUAND:
Right.
2 CHAIRMAN BECHHOEFER:
What would your 3
reaction --
what was your reaction or would your 4
reaction be to the circumstance that Mr. Harvey 5
testified that he never took any sensitivity training 6
course, which was certainly recommended in both of 7
these memos?
Would that have --
should that affect 8
the evaluation of Mr. Harvey's suitability for a 9
particular position?
10 THE WITNESS: Excuse me, Your Honor. You 11 said that Mr. Harvey testified that he did not 12 actually take the storage racks?
Did you mention 13 that?
14 CHAIRMAN BECHHOEFER: Well, before us, Mr.
15 Harvey said he never took the sensitivity training 16 course that apparently he agreed to take after this 17 incident occurred.
He admitted to us that he had 18 taken some file folders from Ms. Landers' office, and 19 he apologized for that.
20 THE WITNESS: And your question was should 21 his failure to have taken the training been considered 22 in the selection process?
23 CHAIRMAN BECHHOEFER:
Yes.
24 THE WITNESS:
I'll give you two slightly 25 different answers to it.
I don't think from looking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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at the dates on these documents that he was required 2
to have taken the training before the selection.
3 CHAIRMAN BECHHOEFER:
No.
Yes.
There's 4
no date.
5 THE WITNESS:
In general, if an employee 6
was required to do something like that and they failed 7
to do
- that, then that should be taken into 8
consideration in their performance ratings, possible 9
consideration of disciplinary action.
And if those 10 actions were taken, they would show up in their 11 performance history which would then be considered in 12 any future job assignment.
13 CHAIRMAN BECHHOEFER: Right. Now, I guess 14 it would be unlikely to have occurred prior to the 15 date of the SRB interviews, which was very shortly 16 after, I guess, this period.
17 THE WITNESS: Yes.
Those interviews were 18 sometime in mid-July, I believe.
19 CHAIRMAN BECHHOEFER: Right, right, right.
20 And this one memo was July, one was June, so would an 21 employee who had received such a recommendation be 22 expected to sign up for a course or try to enter a 23 course in that period of time or would that not be --
24 THE WITNESS: It would probably take quite 25 a stroke of luck to find one that was being offered in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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that short of time period and getting signed up in 2
time to do it.
I also recall later when Mr. McArthur 3
discussed this with me that he was aware that Harvey 4
had not yet taken it.
Now, this was maybe a couple of 5
months later, but he was expected to take it.
6 CHAIRMAN BECHHOEFER:
Okay.
Thank you.
7 MR. DAMBLY:
If I may ask a question.
8 CHAIRMAN BECHHOEFER:
Yes, you may.
9 RECROSS EXAMINATION 10 BY MR. DAMBLY:
11 Q
Mr. McGrath, earlier when you were asked, 12 you said the first time you knew about this was when 13 Mr. McArthur told you some two or three months after 14 the selection.
If you look at TVA Exhibit 152, dated 15 July 1, which is prior to the selection in '96, you're 16 listed as a cc on that.
17 CHAIRMAN BECHHOEFER:
Well, I mentioned 18 that, yes.
19 THE WITNESS:
I do not recall ever seeing 20 this document.
Now, I may have.
It's also quite 21 possible that whenever I went out of town and I 22 believe I was traveling some that month my mail stock 23 gets kind of high and it sometimes took me a long time 24 to get through them.
I obviously was on the 25 distribution.
I honestly do not recall seeing this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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document, but what I remember is the first that I 2
heard of it was Mr. McArthur talking to me about it.
3 MR. MARQUAND:
I have one more question.
4 CHAIRMAN BECHHOEFER:
Okay.
5 REDIRECT EXAMINATION 6
BY MR. MARQUAND:
7 Q
Mr. McGrath, Counsel asked you about TVA 8
Exhibit 28, the June 24 memorandum from --
I'm sorry, 9
Staff Exhibit 67, the June 24, '96 memorandum from 10 Grover to James Boyles, entitled, "Employee Harassment 11 and Intimidation," and you now have before you --
and 12 he pointed out in that a sentence that said, "Mr.
13 Harvey acknowledged these incidents did occur and 14 stated he was unaware of the impact of his behavior 15 towards Ms. Landers." You now have, I believe, before 16 you TVA Exhibit 152, which Mr. Harvey testified about 17 yesterday.
And it's his handwritten notes at the 18 bottom. At some point, did you become aware that Mr.
19 Harvey denied those allegations as well as the fact 20 that Dr. McArthur told you that they had not been 21 substantiated?
22 A
To be honest with you, at this time all I 23 can remember was what McArthur --
that McArthur told 24 me they weren't substantiated.
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them.
2 Q
- Well, with respect to the questions 3
Counsel asked you about whether it would be 4
appropriate or not to take into consideration the 5
selection process, whether or not a manager had acted 6
inappropriately, insensitively, would it be important 7
to know whether those allegations were proven or 8
whether the individual even denied those allegations?
9 A
Yes.
10 MR. MARQUAND:
I have nothing further, 11 Your Honors.
12 MR. DAMBLY:
Nothing.
13 CHAIRMAN BECHHOEFER:
Anything further?
14 MR. DAMBLY:
Nothing.
15 MR. MARQUAND:
No, Your Honors.
16 CHAIRMAN BECHHOEFER: Mr. McGrath, I guess 17 you're released again.
18 THE WITNESS:
Thank you.
19 CHAIRMAN BECHHOEFER:
We appreciate your 20 coming up here and appearing before us again.
21 THE WITNESS:
All right.
Thank you.
It 22 was nice to see you all again.
23 MR. MARQUAND:
Your Honors, we have Mr.
24 Fogleman here.
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tomorrow.
2 JUDGE YOUNG:
Great.
3 MR. MARQUAND:
Could we have five or ten 4
minutes first?
5 JUDGE YOUNG:
Ten minutes?
6 CHAIRMAN BECHHOEFER:
Ten-minute break.
7 MR. MARQUAND:
That would be great.
8 (Whereupon, the foregoing matter went off 9
the record at 4:36 p.m. and went back on 10 the record at 4:54 p.m.)
11 CHAIRMAN BECHHOEFER: Back on the record.
12 Mr. Marquand?
13 MR. MARQUAND: Your Honor, TVA calls Keith 14 Fogleman.
15 CHAIRMAN BECHHOEFER:
Mr. Fogleman?
16 Whereupon, 17 H. KEITH FOGLEMAN 18 was called as a witness by counsel for TVA and, having 19 been first duly sworn, was examined and testified as 20 follows:
21 DIRECT EXAMINATION 22 BY MR. MARQUAND:
23 Q
State your name, please.
24 A
Keith Fogleman.
25 Q
Who are you employed by?
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A Tennessee Valley Authority.
2 Q
For how long?
3 A
A little over 24 years.
4 Q
What is your current position at TVA?
5 A
I'm a senior manager of human resource 6
operations for the chief operating officer 7
organization.
8 Q
What are your responsibilities?
9 A
My group, which comprises about 46 people, 10 provides the day-to-day HR delivery services, human 11 resource delivery to the nuclear organization, the 12 transmission organization, the river systems 13 environmental group and the fossil power group, as 14 well as the chief operating officer staffs.
15 In that job, we're responsible for, like 16 I said, day-to-day HR operations, which would include 17 administering collective bargaining agreements, would 18 include insuring that, you know, we're following TVA 19 policies and procedures, consulting with the 20 management team on HR issues, assisting employees with 21 HR
- issues, just generally providing overall HR 22 services.
23 Q
Are you the highest-level employee in the 24 human resources organization in the chief operating 25 officer's organization?
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A
No.
Q Who--
A Bill Reynolds would be my supervisor.
Q He exclusively human resources?
A He's non-exclusively human resources.
He's human resources, safety, and technical training.
Q My question is, are you the most senior or the highest-level human resource employee in the chief operating officer's organization?
A Yes.
Q What is your educational background?
A I have a B.S.
degree in industrial technology from East Tennessee State University. And I have one year of night law school.
Q Could you give us a brief thumbnail of your experience at TVA?
A I came to TVA in 1978 working as a management trainee for the construction organization.
Within that training, within that position, I had part of my training included labor relations, which was kind of a mixture of labor relation and some human resource functions.
I was in that position when the plant started being deferred.
I moved to Bellefonte and continued to function in the labor relations-human resource area, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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then the Browns Ferry; did some work, continued to do 2
some of the work I've done at Bellefonte and 3
Hartsville; also had some supervisory responsibilities 4
over procedures and a training group; was selected for 5
a labor relations officer in the late '80s; worked at 6
Watts Bar and Sequoyah as a human resource consultant; 7
came in '93 as a labor relations manager and in the 8
corporate office for TVA nuclear and have been labor 9
relations manager, moved to the general manager of 10 human resources in the I believe '99 time frame; and 11 then was selected last June, 2001, for the current 12 position.
13 MR. MARQUAND:
We've provided a copy of 14 this document to staff, but I don't believe we entered 15 a TVA Exhibit 142 already.
16 MR. DAMBLY:
It's just I think they 17 numbered them ahead of time. And obviously we've gone 18 way past this now, but it hasn't ever been dealt with.
19 (Whereupon, the aforementioned 20 document was marked for 21 identification as TVA Exhibit 22 Number 142.)
23 BY MR. MARQUAND:
24 Q
Mr. Fogleman, I've provided you a copy of 25 TVA Exhibit 142.
What is that?
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A It's a copy of my resume.
2 Q
As far as it goes, is it accurate and up 3
to date?
4 A
Yes.
5 MR. MARQUAND:
Your Honors, we tended to 6
you Exhibit 142.
7 MR. DAMBLY:
No objection.
8 CHAIRMAN BECHHOEFER:
Without objection, 9
TVA 142 will be admitted.
10 (Whereupon, the aforementioned 11
- document, having previously 12 been marked for identification 13 as TVA Exhibit Number 142, was 14 received in evidence.)
15 BY MR. MARQUAND:
16 Q
There's been a lot of discussion, Mr.
17 Fogleman, about the word "human resources" in this 18 proceeding. What is the concept of human resources in 19 TVA nuclear?
20 A
The concept of human resources at TVA, not 21 just TVA nuclear, but --
is that when you look at an 22 organization, you've got your --
in the case of the 23 nuclear organization, you've got your three nuclear 24 sites and that's your physical assets or your 25 generating assets. And then the other big factor in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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running an organization is the human asset.
2 In the human resource, the concept or the 3
function is to help the organization maximize the use 4
of the human asset.
And that's through compensation 5
schemes, collective bargaining agreements, through, 6
you know, implementing TVA's personnel practices, 7
personnel policies, human resource policies and 8
practices to ensure that we're trying to maximize 9
that, the human asset for TVA and TVA nuclear.
10 Q
What functions do the human resources 11 organization perform in TVA nuclear?
12 Q
It provides --
first of all, it provides 13 consultation to the management team on issues related 14 to their employees. I mentioned earlier; for example, 15 helping them with things like administering the 16 collective bargaining agreements, with compensation 17 and pay issues, trying to ensure that management team 18 is following the policies and practices of the 19 organization, that we're administering our collective 20 bargaining agreements.
21 Then we've got ownership over some of the 22 policies and procedures in TVA, accountability for 23 those.
24 Q
Who has got ownership of personnel records 25 and files?
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A Human resources.
2 Q
What types of functions and processes does 3
human resources have ownership of?
4 A
It would have ownership of the performance 5
management processes; of the vacant position and 6
selection processes; reduction process, reduction in 7
force; reinvestment process; responsible for the --
I 8
think I said, the termination processes; generally 9
just our HR processes.
10 CHAIRMAN BECHHOEFER:
Did you say 11 "reinvestment?"
12 THE WITNESS:
Reinvestment.
Yes, sir.
13 CHAIRMAN BECHHOEFER:
Of what?
14 THE WITNESS:
We currently have a
15 practice.
TVA does not reduce anyone in force.
So 16 when we have --
we do have situations in the 17 organization where we have surplus employees, either 18 through --
where we have had process improvement, we 19 have reorganized the staff, whatever.
20 And I think you probably --
you know, 21 there has been some discussion probably about services 22 and things like this.
This is a very similar type to 23 our former services or employee transition programs.
24 It's just a --
it's a process to allow us to reduce 25 the particular department or organization.
Yet, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N W.
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employee is not reduced in force. And they have some 2
options about what they want to do.
One of those 3
options would be to try to find another position 4
within TVA.
5 BY MR. MARQUAND:
6 Q
Is it in the nature of --
you are right.
7 We have already heard testimony about employee 8
transition program and TVA services. Reinvestment, is 9
it in the nature of a successor program to those 10 programs?
11 A
It would be considered a successor 12 program.
Some of the things we learned from those 13 programs we applied into this program.
14 Q
We've talked about the functions a human 15 resources organization performs.
What functional 16 areas in the human resources area do you have 17 experience in?
18 A
I've been responsible for labor relations, 19 compensation, for staffing, recruiting, the --
some 20 safety --
I've hard some safety responsibilities and 21 some training and development responsibilities.
22 Q
Have you had responsibilities to interact 23 with the corporate HR organizations in TVA?
24 A
Yes.
If you kind of look at how TVA is 25 structured, we have a corporate HR organization that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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reports to the executive vice president of human 2
resources.
And that organization provides us our 3
policies and our procedures and our programs.
4 My organization, which is part of the line 5
management organization, essentially takes those 6
policies and procedures and is responsible for 7
implementing and assisting line managers implement 8
these policies and procedures in the line 9
organization.
10 JUDGE YOUNG: Before you go on from that, 11 there has been some testimony, I think, if I 12 understood it correctly, --
correct me if I am wrong 13 that some of the corporate HR people assist 14 managers in selection, processes, and reorganizations, 15 and so forth.
Is that different than what they --
I 16 didn't understand the distinction there.
17 MR.
MARQUAND:
I think there is a 18 distinction.
19 BY MR.
MARQUAND:
20 Q
Can you explain to the panel the 21 distinction between corporate TVA versus corporate TVA 22 nuclear and how those different HR organizations fit 23 in?
24 A
The corporate TVA organization is strictly 25 responsible for policy and procedure.
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JUDGE YOUNG:
Are you talking about your 2
3 BY MR. MARQUAND:
4 Q
Don't say "HR1' but corporate.
What's 5
corporate? When we are saying "corporate TVA," what 6
do we mean?
7 A
Corporate TVA. That would be the big TVA, 8
all of TVA now.
When you're talking --
9 JUDGE YOUNG: And that's where you are?
10 THE WITNESS:
No, ma'am.
I'm --
11 JUDGE YOUNG:
You're under operations?
12 THE WITNESS:
I'm under operations, the 13 chief operating officer's organization, which includes 14 the nuclear organization, the fossil organization, the 15 river systems and environmental organization, and the 16 transmission and power supply organization.
17 All the generation and transmission 18 organizations report to the chief operating officer.
19 The executive vice president of human resources would 20 be one of his peers. And that person is responsible 21 for the corporate human resource organization that 22 provides policies, procedures, programmatic direction 23 for TVA.
24 Now, within my organization, which is a 25 line HR organization, line management HR organization, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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I have people stationed at site locations.
For 2
example, I have people stationed at Sequoyah, Watts 3
Bar, and Browns Ferry nuclear sites.
4 And then I have also people who are still 5
day-to-day implementers stationed in the corporate 6
office. And they provide support to the corporate --
7 BY MR. MARQUAND:
8 Q
Corporate COO.
9 A
Corporate COO organization.
10 JUDGE YOUNG: So would that be people like 11 Ed Boyles and Ben Easley?
They would be under your 12 site?
13 THE WITNESS:
Yes, ma'am.
Yes, ma'am.
14 JUDGE YOUNG:
Okay.
That explains it 15 better.
16 MR. MARQUAND:
Sure.
17 BY MR. MARQUAND:
18 Q
We are using the word "corporate" in two 19 different senses, Mr. Fogleman.
TVA's head is a 20 three-member board of directors, correct?
21 A
Correct.
22 Q
And the COO, or the chief operating 23 officer, operations is one organization that reports 24 to the board?
25 A
Yes.
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Q Now, there are other organizations that 2
report-to the board as well, correct?
3 A
That's right.
4 Q
And you said the corporate HR is one of 5
those?
6 A
That's correct.
7 Q
And there are other administrative 8
organizations that report to the board as well, right?
9 A
Chief financial officer, administrative 10 functions. There's some other TVA offices that report 11 there.
12 Q
The general counsel?
13 A
The general counsel.
14 Q
The inspector general?
The overall 15 administrative offices that report generally for all 16 of TVA report to the board, correct?
17 A
That's correct.
18 Q
And that's where the corporate HR is 19 versus the HR for the chief operating officer?
20 A
Correct.
21 Q
Now, distinguish the overall corporate HR 22 organization from the corporate COO's HR organization.
23 A
Okay. Small staff in the corporate human 24 resource function in Knoxville that --
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resource information system, the programs and policies 2
outlining our compensation and performance management 3
- systems, and other types of programmatic 4
responsibilities.
5 The corporate human resources within the 6
Coo, or the chief operating officer's, organization 7
would be line HR people reporting to me that provide 8
day-to-day service to the corporate --
to primarily 9
the Chattanooga corporate offices when they provide 10 day-to-day HR service.
11 Q
Let's further confuse matters and refer 12 back to '96.
There wasn't a chief operating officer 13 at that time, was there?
14 A
No, there wasn't.
15 Q
There was a chief nuclear officer, right?
16 A
That's correct.
17 Q
Was there a human resource function in the 18 nuclear organization?
19 A
Yes, there was. And at that time, we had 20 HR people at three sites in Chattanooga in the 21 corporate office.
22 Q
And that was referred to as a corporate 23 TVA nuclear office, wasn't it?
24 A
That's correct.
25 Q
That's where you were at that time?
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A In '96, I was labor relations manager in 2
the corporate office.
3 Q
Of nuclear?
4 A
Of nuclear.
5 Q
All right.
- Now, you've mentioned 6
reductions in force being one process owned by HR and 7
that you said you had experience in it.
I would like 8
to discuss that.
Have you had any experience in 9
conducting reductions in force?
10 A
Yes, I have.
That is the first round of 11 experience that I had with this was in the early '80s 12 at the Hartsville nuclear construction site.
13 Q
Right. And Hartsville was intended to be 14 what?
15 A
It was intended to be a four-unit BWR 16 nuclear plant.
17 Q
A rather large one, then, right?
18 A
Right.
19 Q
So tell us about your experience there.
20 A
The plant was deferred in the early '80s, 21 I believe about the '83 time frame, '82 time frame.
22 And we had a substantial workforce of construction 23 employees who at that given time in TVA were TVA 24 employees.
And we were responsible for --
I was 25 responsible for doing the reductions of the traits in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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labor employees with construction employees at the 2
nuclear --
at the construction site.
3 Q
What did you do with respect to carrying 4
out those reductions in force?
5 A
My role --
I had some assistance from our 6
office on site.
They helped me get the retention 7
registers together, but and do some of the 8
recordkeeping for me.
But essentially I was 9
responsible for 3,000-plus construction workers:
to 10 prepare reduction-in-force notices; to get the notices 11 delivered to the employee; get the rights, appeal 12 rights, anything like that, that they had that was 13 involved in that process; get the management team 14 prepared to understand what the process was going to 15
- bee, how it was going to be; prepared them with 16 understanding of what we were doing, what our rules 17 and regulations were; and then essentially went 18 through the process of removing those employees from 19 the site.
20 Q
About 3,000?
21 A
In the neighborhood of 3,000, yes.
22 Q
Have you had any other experiences in 23 conducting reductions in force?
24 A
When I went to --
25 Q
About how many times?
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A About how many times?
Probably in the 2
neighborhood of I'll say ten times probably.
3 Q
Can you tell us the next situation you had 4
to conduct a reduction of force?
5 A
When I went to Bellefonte, we had a 6
similar situation that we did at Hartsville.
7 Bellefonte was a construction project.
And it was 8
also deferred.
And we had a substantial amount of 9
trades and labor employees or construction workers 10 that had to be reduced in force.
11 And I did virtually the same function I 12 did at Hartsville, coordinate that reduction in force 13 and the letters and the retention registers.
- Again, 14 the employment office at Bellefonte helped me with 15 that.
16 Q
In the various other reductions in force 17 that you conducted, have you had other different types 18 of responsibilities?
19 A
When I was a human resource officer at 20 both Watts Bar and Sequoyah, I was -- would take -- I 21 actually did the RIF along with the administrative 22 people supporting me.
23 We established the retention registers, 24 developed letters, prepared managers with their 25 talking points, got the letters together.
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after the letters were issued, we also put the appeal 2
packages together.
3 Q
What do you mean "appeal package"?
4 A
Part of the RIF process, they have appeal 5
rights to the Merit Systems Protection Board. So when 6
those appeals would come forth, we developed the 7
package that would go back to the Merit Systems 8
Protection Board.
9 Q
About how many employees over the years 10 have you had personal experience in reducing the 11 force?
12 A
Hartsville and Bellefonte was probably 13 close to 5,000 employees between those two sites. And 14 then Watts Bar, Sequoyah, some of my responsibilities 15 as labor relations manager overseeing as a labor 16 relation officer helping conduct RIFs, I'm going to 17 guess in the neighborhood of seven to eight thousand.
18 Q
How many of these individual reductions in 19 force have you been involved in defending?
20 JUDGE YOUNG: By "defending," do you mean 21 when there has been an appeal?
22 MR. MARQUAND:
Some sort of an appeal.
23 THE WITNESS: To put a specific number on 24 that, I don't know that I --
I can't.
It's --
when 25 you look at the grievances, the EEO complaints, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the number of Merit Systems Protection Board appeals 2
that we have had, more than --
I am going to say more 3
than 100 and possibly hundreds but more than 100.
4 BY MR. MARQUAND:
5 Q
You mentioned three separate processes.
6 Can you explain how those three processes evolve:
7 grievances, EEO appeals, MSPB? Why are they involved 8
in RIFs?
9 A
- Well, first of all, when an employee 10 receives a reduction-in-force notice, by the fact that 11 they're a federal employee, they have rights to appeal 12 it to the Merit Systems Protection Board.
So that's 13 where they come in to play.
14
- Now, the other part --
the other two 15 appeal processes, if the --
if a person feels like 16 they have been discriminated for age, race, sex, so 17 on, so forth, then they can utilize the EEO process to 18 file an appeal.
19 And the other one, the grievance process, 20 75 percent of the employees in TVA are covered under 21 a collective bargaining agreement.
So if they feel 22 like they have been treated unfairly, under those 23 collective bargaining agreements, they have rights to 24 file grievances. And so we have had appeals through 25 the years in all three of those venues.
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Q What has been your involvement in 2
defending those various RIFs in those various forums?
3 A
Well, I mentioned a little earlier that I 4
had --
when we had appeals to the Merit Systems 5
Protection Board, there was an initial package that is 6
required to go back that outlines TVA's position and 7
some --
and the supporting documentation.
So I was 8
involved at Watts Bar and Sequoyah putting those 9
packages together.
10 Then also at from Hartsville, 11 Bellefonte, and Sequoyah, Watts Bar, I participated in 12 the hearings that occurred as a result of those 13 appeals.
14 In the EEO process, I have also been a 15 witness in the early stages.
Let me start over.
In 16 the early stages, I work with the counselors as 17 they're working with employees and management to try 18 to resolve the complaint and then later serve as a 19 witness and also assist the Office of General Counsel 20 in their preparation for the cases.
21 And then in the grievance process, then 22 the lead person responsible for defending the 23 grievance action, which includes trying to mediate it, 24 work out -- work a resolution out in the early stages, 25 and represent management up through step three of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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process, and then assist our labor relations function, 2
our corporate TVA labor relations staff, when the 3
cases went to arbitration.
4 Q
You mentioned that 75 percent of TVA 5
employees were covered by collective bargaining 6
agreements.
Are management specialist employees 7
covered under collective bargaining agreements?
8 A
No.
That's the 25 percent that's --
9 that's not.
We have some excluded administrative 10 employees that are not covered by --
11 Q
Are different rules or different 12 procedures applied to management specialist employees 13 in conducting RIFs?
14 A
No.
We use the same process.
15 Q
Same process.
What formal or informal 16 training have you had in conducting reductions in 17 force?
18 A
Formal training has been minimal.
I 19 received --
as we were starting the process at 20 Hartsville back in the early '80s, the Office of 21 General Counsel came down and helped us transition on 22 the process and how we were supposed to go through it 23 and explained the details of the -- you know, of TVA's 24 policies and practices on the reductions in force.
25 Then I have also -- when we went through NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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initially, I mentioned that we didn't put the --
I 2
would put the appeal package together when a person 3
filed an appeal to the Merit Systems Protection Board.
4 And there was some training in that process, what 5
should be included in that package that would go back 6
to the Merit Systems Protection Board.
7 Other than that, the training that --
my 8
training has basically been on-the-job training, 9
working through the different issues and problems that 10 you run into in going through one of these processes, 11 working with our Office of General Counsel, our 12 programmatic policy people in HR, and, you know, 13 trying to understand what the --
what our regulations 14 are and how we need to be applying them to the 15 employees in TVA.
16 Q
You mentioned on-the-job training. How do 17 you apply or how do you use decisions you receive from 18 Merit Systems Protection Board?
19 A
Well, we use them two ways.
If they're 20 positive decisions, then that kind of affirms that the 21 process that we have been using is reasonable, 22 workable, follows the standards.
23 If it's not, if we've got unfavorable 24 decisions, then we need to readjust our approach. And 25 we have not always had 100 percent positive decisions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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from the Merit Systems Protection Board.
And it has 2
caused the organizations that I have supported and TVA 3
to adjust its practices.
4 Q
Have you had any training from the Office 5
of Personnel Management, or OPM, in conducting 6
reductions in force?
7 A
No.
8 Q
Have you consulted the OPM regulations in 9
order to conduct reductions in force?
10 A
From my -- to conduct a -- to actually do 11 the reduction in force, what I have relied on through 12 the years is TVA has had it spelled out about -- TVA's 13 policies for doing the RIF was spelled out.
TVA had 14 a procedure for how it was to be conducted.
And 15 that's what i've used to typically conduct a RIF. You 16 know, in our --
it's my understanding that TVA's 17 policies and procedures are an interpretation of 18 Office of Personnel Management regulations.
19 JUDGE YOUNG: They go into greater detail 20 than OPM or do you know?
21 THE WITNESS:
I don't know that I could 22 make that judgment whether they are in grater detail.
23 It's TVA policies, procedures.
24 BY MR. MARQUAND:
25 Q
Mr. Fogleman, I'm going to show you Joint NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Exhibit 65.
2 JUDGE YOUNG: That's already in evidence, 3
I think.
4 BY MR. MARQUAND:
5 Q
Mr. Fogleman, what is Joint Exhibit 65?
6 A
It's --
7 MR. MARQUAND:
Does everyone have Joint 8
Exhibit 65?
9 BY MR. MARQUAND:
10 Q
Mr. Fogleman, what is Joint Exhibit 65?
11 A
It's a copy of TVA's personnel manual.
12 Reduction at Section 7 covers reductions in force and 13 layoff dated May 6, 1987.
And it's the --
14 Q
Is it familiar to you?
15 A
Yeah I've used this document several 16 times through the years.
17 Q
Is that the document you said you consult 18 in order to conduct reductions in force?
19 A
Yes.
20 Q
So back to my last question.
Do you 21 routinely consult or have you consulted OPM 22 regulations to conduct reductions in force or is it 23 Joint Exhibit 65, TVA personnel manual?
24 A
I've always used the TVA personnel manual 25 to conduct a reduction in force.
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5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5376 Q
What is your understanding of how the procedures are set forth in that personnel manual with their interpretation of or with their implementation of?
A It's an implementation of the OPM regulations.
As a matter of fact, I think in here somewhere it says that.
Q But is it, as you said, "enlightened by TVA's experience in this precedent with the MSPB appeals"?
A Yes.
We have --
as a matter of fact, on Page 12, it talks about that, the OPM regulations.
And this is TVA's interpretation of the understanding of what the OPM regulations are.
And, you know, through the years, as, you know, we have had hearings and decisions, when necessary, we have adjusted these guidelines.
Q Let's talk about --
CHAIRMAN BECHHOEFER:
Has OPM ever reviewed or approved these procedures, to your knowledge?
Your Honor.
see whether THE WITNESS:
I don't know.
MR. MARQUAND:
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at, which is the ultimately 5 Code of Federal 2
Regulations.
And if TVA is wrong, then they set it 3
aside.
4 CHAIRMAN BECHHOEFER: I was focusing more 5
on whether these were, for instance, submitted to OPM 6
for review prior to being put into effect.
7 MR. MARQUAND:
I'm not aware of any such 8
requirement, nor am I aware that it has ever been 9
done.
10 CHAIRMAN BECHHOEFER:
Okay.
Thank you.
11 BY MR. MARQUAND:
12 Q
I'm going to now show you TVA Exhibit 125, 13 which is entitled "Supervisor's Handbook."
14 JUDGE YOUNG:
TVA 125?
15 MR. MARQUAND:
Yes, Your Honor.
16 (Whereupon, the aforementioned 17 document was marked for 18 identification as TVA Exhibit 19 Number 125.)
20 BY MR. MARQUAND:
21 Q
Mr. Fogleman, what is TVA Exhibit 125?
22 A
This is a copy of the supervisor's 23 handbook put out by Tennessee Valley Authority dated 24 October 1st, 1990.
25 Q
And it covers a number of subjects.
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note on Page FG2, it's got a table of contents. And 2
specifically there's a section that says on Page 87 3
for reductions of force.
4 A
That's correct.
5 Q
What force and effect, if any, does this 6
supervisor's handbook have?
7 A
Well, what the supervisor's handbook was 8
developed was to give our managers a tool that 9
outlined generally how we would conduct business in 10 the world of human resources.
11 It talks about a variety of topics ranging 12 all the way from, you know, the equal employment 13 opportunity process down to restoration rights.
And 14 it was developed to be a tool that our managers could 15 use as they got into different situations, you know, 16 whether it be
- pay, leave, retirement
- issues, 17 discipline issues, reduction, appeals, and grievances.
18 And it's a compilation of things from 19 collective bargaining agreements, from TVA's 20 practices, policies, procedures.
You know, it's a 21 compilation of a lot of human resource stuff into one 22 document.
23 Q
It explains things to supervisors?
24 A
It explains things for supervisors.
25 Q
As between this and the personnel manual, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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which is Joint Exhibit 65, which does human resources 2
use in conducting various matters, specifically 3
reductions in force?
4 A
Well, if you're going to do -- you've got 5
to go back to your --
in this case, it was a personnel 6
manual, human resource procedures. That's what we're 7
going to use in human resources.
8 Q
Let's talk about reductions in force.
9 What are the reasons that management could have to 10 conduct a RIF?
11 MR. MARQUAND: First, Your Honors, I would 12 like to tender TVA Exhibit 125 into evidence.
13 MR. DAMBLY: No objection.
14 CHAIRMAN BECHHOEFER:
Without objection, 15 TVA 125 will be admitted.
16 (Whereupon, the aforementioned 17
- document, having previously 18 been marked for identification 19 as TVA Exhibit Number 125, was 20 received in evidence.)
21 BY MR. MARQUAND:
22 Q
Mr. Fogleman, back to my question.
What 23 are the reasons management might have to conduct a 24 reduction in force?
25 JUDGE YOUNG:
Did you have time to stamp NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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this?
2 THE WITNESS:
I'm sorry.
Your question?
3 BY MR. MARQUAND:
4 Q
What reasons might management have to 5
conduct a reduction in force?
6 A
Lack of work, a reorganization, lack of 7
funds.
Those would be the three primary.
There's 8
some things in there about people having reassignment 9
rights and reclassifications and things like that, but 10 the three predominant reasons that you're going to 11 find is lack of work, reorganization, and lack of 12 funds.
13 Q
When we talk about reorganization, what 14 kinds of things might drive a reorganization?
15 A
Several things I think could drive a 16 reorganization. When you --
reorganizations are done 17 because the function of the organization work has 18 changed.
And so it could be technology process was 19 improved, technology improved.
It could be that the 20 function of the workgroup changes or is changing.
21 It could be that part of the 22 reorganization is also part of a reduction effort and 23 that the department only has --
will have less people 24 to do the job.
So to get --
to continue the work, 25 they need to assess how they're going to do that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5381 which may also cause a reorganization putting functions together, things like that.
Q Can there sometimes be more than one reason to conduct a RIF?
A Well, oftentimes --
I mentioned just a moment ago that three primary reasons are usually lack of funds, a lack of work, or reorganization.
And usually those three things are --
many times those three things or at least two of the three are tied together.
Q Give us some examples of how that might happen.
A
- Well, an organization benchmarks the industry and finds out that the rest of the industry or the top performers in the industry are performing work in a manner different than TVA is performing it.
So what would happen is come back and analyze the way we're doing work and decide that we can do it cheaper and more efficiently if we would adjust our processes.
Process improvement results in lack of work.
And also the process improvement determines that we have adjusted the way we do work.
So we have reorganized our work.
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organization.
2 Q
Did the completion of the restart, say, of 3
Sequoyah and Browns Ferry or the completion of 4
construction at Watts Bar result in reductions in 5
force? And if so, how?
6 A
Well, look at TVA during that time frame.
7 We had both Brown Ferry and Sequoyah that were not 8
operating and was in the process of trying to start up 9
Watts Bar.
And so our organization was a
10 predominantly construction-focused, recovery-focused 11 organization.
12 We had a lot of people supporting those 13 recovery efforts as well as that start-up effort at 14 Watts Bar.
We had people who had that specific 15 start-up skills.
And we were focusing on starting 16 plants.
17 As '96 approached, you know, we at that --
18 by that time, we had the --
the Browns Ferry and 19 Sequoyah units were recovered.
And we were in the 20 midst of starting up Watts Bar.
21 And so the organization was changing from 22 an organization that had been focused on plant 23 recovery and plant start-up to an organization that 24 was focusing on operating and maintaining the plants.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5383 at that the organization's functions were going to be changing. The structures in some cases were going to be changing because we were shifting from an organization, shifting the role from the organization from start-up, recovery to operating and maintenance.
And some of the functions of an organization would be different there in those roles.
Q Give the panel an idea of change in the size and magnitude of the TVA workforce. At one point you were at Hartsville. When TVA had Hartsville under construction, you also mentioned Bellefonte.
JUDGE YOUNG:
Excuse me.
Mr. Dambly had mentioned that he needed to go at 5:45.
And it is getting close to that.
So you might want to start winding up this line of questioning.
MR.
MARQUAND:
Let me finish this question, and I'll be done.
JUDGE YOUNG:
Okay.
BY MR. MARQUAND:
Q During that time frame back in the '80s, when Hartsville was under construction, Bellefonte was under construction, other nuclear facilities were under construction, TVA had construction forces, about how many TVA employees were there?
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had Yellow Creek, Bellefonte, Hartsville, Phipps Bend 2
under construction.
Browns Ferry was operating.
3 Sequoyah I think we had a unit operating.
And Watts 4
Bar was under construction.
There was over 50,000 5
employees in TVA.
6 Q
And today how many TVA employees are 7
there?
8 A
There's 13,000 TVA employees.
9 Q
So there's been a substantial reduction?
10 A
Substantial reduction, yes.
11 Q
Not only reductions but change I assume, 12 since we're no longer talking about construction 13 change in the skill sets of the employees who are 14 still at TVA?
15 A
Yes.
It's an --
when I came to work in 16
- 1978, it was an organization that was heavily 17 engineering-focused and construction-focused and it's 18 a --
we still have a lot of engineering, but it's 19 engineering focused towards operating and maintaining 20 plants.
21 Q
What about construction?
Does TVA have 22 construction employees?
23 A
TVA doesn't have construction employees.
24 When we're going through our outages and doing 25 modifications, the restart of Browns Ferry Unit I will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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be done by contractors.
2 MR. MARQUAND:
I think that would be a 3
good place to break, Your Honors.
Thank you.
4 JUDGE YOUNG:
Okay.
See you tomorrow 5
morning.
6 MR. MARQUAND:
Thank you, Your Honors.
7 CHAIRMAN BECHHOEFER:
We'll be back at 8
9:00 o'clock tomorrow.
Parties, don't forget that 9
once we get through, we want to check on documents 10 that maybe should be in the record but haven't been 11 formally offered.
12 MS. EUCHNER:
And also, Your Honor, I 13 think we need to double check. I don't know how your 14 lists were made, but I went through your lists.
And 15 I found stuff that we had as admitted that wasn't on 16 your list as admitted.
I don't know whether you just 17 did it from the front pages of the transcripts.
18 JUDGE COLE:
I think that's probably how 19 it was done.
20 CHAIRMAN BECHHOEFER: I think for the most 21 part, that's how it was done.
22 MS. EUCHNER:
So we may actually have to 23 go back and check the transcripts themselves to see if 24 some of these were admitted.
25 CHAIRMAN BECHHOEFER: Before we close the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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record, we want to make sure that the documents that 2
are admitted or have been admitted or should be 3
admitted are there.
4 JUDGE COLE:
Particularly the ones you 5
want to use.
6 CHAIRMAN BECHHOEFER:
Yes, yes.
7 JUDGE YOUNG:
Yes. And I think it would 8
be useful. Mr. Marquand, Mr. Slater, I think it would 9
be useful.
We talked yesterday about how we would 10 take documents out that were not proffered.
11 And I think it would be useful for counsel 12 to take part in that because you said you could just 13 make a list and have someone else do it, but we have 14 each got a set.
There are three other sets.
And it 15 might go quicker.
And then you could be absolutely 16 sure that you have had everything taken out that has 17 not been proffered if we just divide them up and go 18 through them.
19 So counsel might want to plan to stay 20 after we have released Mr. Fogleman tomorrow and see 21 if we can all get on the same page.
22 JUDGE COLE: Yes.
But would that provide 23 enough time to make sure that the record has been 24 checked so that the documents that are supposed to be 25 in evidence are, in fact, identified as being in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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evidence?
2 MR. MARQUAND: We're going to have to do 3
that, too.
4 MS. EUCHNER: Well, we can check that.
I 5
mean, I have already, in part, checked it all.
Just 6
go back and find the ones that I didn't see on your 7
list and check the transcripts. So if we already have 8
our lists and know which ones we think we were not on 9
the master list that you provided us, that should take 10 very little time.
11 JUDGE YOUNG:
Another thing.
I've got 12 this computer here now.
And so I've got the whole 13 transcript up through whenever Mac put it on there.
14 So as we go through taking them out, if we get to an 15 exhibit, we're not sure if it's admitted, I could just 16 do a search for Exhibit Number X, Y, Z, or whatever, 17 find out, and then as we go through them --
now, that 18 will only be updated through possibly our June 19 setting, but, still, we know what has happened since 20 Monday, we hope.
21 CHAIRMAN BECHHOEFER:
We'll adjourn for 22 the day.
23 (Whereupon, at 5:46 p.m., the foregoing 24 matter was recessed, to reconvene at 9:00 25 a.m. on Thursday, September 12, 2002.)
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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 Browns Ferry Nuclear Plant, Units 1,2,3 50-390-CivP; ASLBP No: 01-791-01-CivP Rockville, Maryland Docket Number:
Location:
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.
Rebecca Davis Official Reporter Neal R. Gross & Co., Inc.
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