ML17229B601
| ML17229B601 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 09/11/1997 |
| From: | Hopkins J NRC (Affiliation Not Assigned) |
| To: | |
| Shared Package | |
| ML17229B602 | List: |
| References | |
| NUDOCS 9709230283 | |
| Download: ML17229B601 (22) | |
Text
Cite as 46 NRC 96 (1997)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSlON DD-97-20 OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director fn the Matter of Docket Nos. 50-250 50-251 50-335 50489 FLORIDA POWER Ec LIGHT COMPANY (St. Lucle Nuclear Power Plant, Units 1 and 2; Turkey Point Nuclear Generating Plant, Units 3 and 4)
September 8, 1997 The Director of the Office of Nuclear Reactor Regulation has granted in part and denied in part a petition filed by Thomas J. Saporito, Jr., on behalf of himself and the National Litigation Consultants.
The Petitioners requested that the NRC take certain actions with regard to Florida Power & Light Company (FPL), including taking escalated enforcement action against FPL and certain of its employees, granting the Petitioners an interview, and taking various other actions.
As grounds for their request, the Petitioners asserted that the NRC's failure to take enforcement action against'PL on the basis of a Secretary of Labor's finding that FPL violated the Energy Reorganization Act (ERA) when it retaliated against Mr. Saporito for raising nuclear safety concerns has resulted in a "chilling effect" and continued discrimination against other FPL employees, that FPL and its managers are liable for creating a hostile work environment at FPL's 'Rrkey Point facility and have failed to stop harassment ofand discrimination against Mr. Saporito, and that the record in this case shows the direct participation of Mr. Saporito's "chain of command" in the retaliation against Mr. Saporito. With regard to the Petitioners'equest for an interview, this has been granted; in all other respects the petition is denied.
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ENERGY REORGANIZATIONACT:
.PROTECTED ACTIVITY An employee may not be discriminated against by an employer for coming directly to the NRC with safety concerns.
Nonetheless, an employee may also be required by the employer to bring these same concerns to the employee's management.
Whether an employee must bring issues to licensee management is dependent on the facts of each specific case.
DIRECTOR'S DECISION UNDER 10 C,F.R. 52.206 I.
INTRODUCTION By petition dated April 23, 1997 (as supplemented May 11 and May 17, 1997), pursuant to section 2.206 of Title 10 of the Code ofFederal Regulations (10 C.F.R.
g 2.206), Thomas J. Saporito, Jr., on behalf of himself and the Na-tional Litigation Consultants (Petitioners), requested that the Nuclear Regulatory Commission (Commission or NRC) take action with regard to operations at the Florida Power & Light Company's (FPL's or Licensee's) Turkey Point Station, Units 3 and 4, and St. Lucie Plant, Units 1 and 2. Specifically, the Petitioners requested that the Commission: (1) take enforcement action to modify, suspend, or revoke FPL's operating licenses for these facilities until FPL can sufficiently demonstrate that employees at FPL nuclear facilities are exposed to a work en-vironment that encourages employees to freely raise safety concerns directly to the NRC without being required to first identify their safety concerns to the Licensee; (2) take escalated enforcement action in accordance with 10 C.F.R.
g 2.202, because of discriminatory practices of the Licensee in violation of 10 C.F.R. f50.7 and/or other NRC regulations, and that the enforcement action be retroactive to the initial occurrence of the violation by the Licensee; (3) conduct a public hearing through the Atomic Safety and Licensing Board and permit Petitioners leave to intervene to perfect an evidentiary record in consideration of whether the Licensee has violated NRC requirements and/or regulations; (4) require the Licensee to post a written notice alongside each NRC Form 3 cur-
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rently posted at the Licensee's nuclear facilities that alerts employees that they can directly contact the NRC about nuclear safety concerns without first identi-fying the safety concerns to the Licensee; (5) require the Licensee to provide a copy of the posted communication to all employees and ensure that all employ-ees are made aware of those communications through the Licensee's General Employee Training Program; and (6) require the Licensee to provide the NRC with written documents authored by Licensee officers under affirmation that the requirements described in items 4 and 5 have been fully complied with.
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In the supplement of May 11, 1997, the Petitioners requested the imposition of a civil penalty in the amount of $ 100,000 against each of three former FPL managers and that the NRC refer the matter of the conduct of these managers'o the U.S. Department of Justice (DOJ) for consideration of invoking criminal proceedings.
In the supplement of May 17, 1997, the Petitioners requested imposition of a civil penalty in the amount of $ 100,000 against each of six FPL employees and restriction of the licensed activities of these employees and revocation of their unescorted access to nuclear facilities; the imposition of a civil penalty in the amount of $ 100,000 against the International Brotherhood of Electrical Workers (IBEW), and that the IBEW be required to inform its members in writing that they have the right to report safety concerns directly to the NRC without fear of retribution and that the IBEW encourages and supports such action at the discretion of its'embers; and the imposition of a civil penalty in the amount of $ 100,000 against two named individuals characterized in the petition as Licensee agents or representatives of the Licensee.
The Petitioners also requested investigations of "willfulfalsification" of a company business record and the cause of "transcripts found missing" in a Department of Labor (DOL)proceeding, and the referral of the matter ofthe conduct ofthe individuals a'nd ".entities" to the DOJ so that it can consider invoking criminal proceedings.
Finally, it was requested that the NRC conduct an interview with the Petitioners regarding the substance of their section 2.206 petition.
~ By letter dated June 14, 1997, I informed the Petitioners that, pursuant to section 2.206 of the Commission's regulations, the petition, as supplemented, had been referred to me and that action on their requests would be taken in a reasonable amount of time. I further informed the Petitioners that, with regard to their request for a meeting with the NRC Staff, they could call to arrange a suitable day and time for such a meeting.
On May 27, 1997, FPL responded to the petition. In its response, the Licensee maintained that it was strongly committed to maintaining a work environment in which employees are free to raise nuclear safety concerns directly to the NRC and that the petition lacked any factual basis and should be denied.
In response to the Petitioners'equest for an "interview" regarding their pe-tition, the NRC Staff held a public meeting with Mr. Saporito on July 14, 1997.
During the meeting, Mr. Saporito elaborated upon the bases for the petition and stated his concerns about reporting nuclear safety issues at the St. Lucie plant should the DOL Administrative Law Judge (ALJ) order his reinstatement
as an employee of FPL.'uring the meeting, Mr. Saporito also raised what he asserted were certain improprieties that occurred during the DOL hearing and specifically requested that the NRC investigate an additional concern that the Licensee or its attorneys may have "whited out" a page of a document he had requested during the DOL proceeding. Mr. Saporito stated that he was adding this request to the petition.
On August 13, 1997, FPL submitted an additional response to the petition. In this response, FPL stated that it was responding in opposition to the supplemental petitions filed by the Petitioners dated May 11 and May 17,
- 1997, and to.
assertions made by Mr. Saporito during the July 14, 1997 public meeting.
II.
BACKGROUND As a basis for the requests described above, the Petitioners asserted in their Petition of April 23, 1997, that the NRC's failure to take enforcement action against the Licensee on the basis of the Secretary of Labor's finding that FPL violated the Energy Reorganization Act (ERA) when it discharged an employee (i.e., Mr. Saporito) for raising safety concerns has resulted in a "chillingeffect" at FPL and continued discrimination against employees by FPL in violation of section 50.7.'n addition, in the Petitioners'upplement of May 11, 1997, to their petition, they asserted that Mr. Saporito's "Damages Brief" in the DOL proceeding mentioned above established that the Licensee and its managers are liable for creating a hostile work environment at Turkey Point and have failed to In rcsponsc to this concern, thc Staff rcfcrred Mr. Saporito to 10 CF.R. 550.7 and various NRC policy statements and other documents that describe the protection to individuals who raise nuclear safety concerns to thc NRC or to their employers, and offered to provide Mr. Saporito copies of relevant documents. The Staff provided Mr. Saporito these documents by kttcr dated July 28, 1997.
2This procccding, DOL Case 89-ERA-7 and 89.ERA-I7 (hereafter 89-ERA-7/17), involved two complaints by Mr. Saporito in which he alleged, respectively, that hc was disciplined and harassed in retaliation for engaging in protected activity and that he was discharged for engaging in protcctcd activity. On Junc 30, 1989, a DOL ALJ issued a Rccommendcd Decision and Order Denying Comphint, which dismissed both cases.
Among other things, the AU found that FFL had legitimately tcrminatcd Mr. Saporito for acts of insubordination, which included Mr.
Saporito's refusal to reveal safety concerns to thc Licenscc and his insistcncc that he raise them to the NRC instead. In a Decision and Remand Order issued June 3, 1994, the Secretary held that an employee who refuses to reveal his safety concerns to management and asserts his right to bypass the "chain of command" to speak directly with the NRC is engaging in protcctcd activity and remanded the case to the AU to rcvicw the record in light of this decision and submit a new recommendation to the Scretary as to whether FPL woold have discharged Mr.
Saporito for unprotcctcd aspects of his conduct.
By ktter to thc Secretary of Labor firom then NRC Chairman Ivan Sclin, thc NRC expressed concern about thc Scretary's broad statement, noting that licensees, not the NRC, are in thc best position to deal cffcctivcly with safety concerns.
In a subscqucnt order issued February 16, 1995, denying reconsideration of his Junc 3 decision, thc Secretary clariticd his June 3 dccYiion by stating that it would not be accurate to Interpret thc decision as providing an ernployec an "absolute right" to refuse to report safety concerns to thc plant operator. Rather, thc Secretary stated that thc right of an employee to protection for bringing information directly to thc NRC and his duty to inform managcmcnt of safety concerns are indcpendcnt and do not conflict but that the cmploycr's motivation should bc reviewed on a case.by~ basis, pursuant to a "dual-motive" analysis, to cnsurc that the employer would have taken the same action regardless of whether an.cmployec insisted on his right to speak first to the NRC. The Secretary specifically noted that his June 3 Order had not decided thc ultimate tiucstion regarding thc appropriate outcome of the dual-motive analysis to thc facts of this case.
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stop harassment and discrimination against Mr. Saporito. &e Petitioners further stated that the record in this case contains evidence showing direct participation of Mr. Saporito's "chain of command",in the retaliatory actions taken against Mr. Saporito.
In their Supplemen't of May 17, 1997, to the petition, the Petitioners asserted that certain pleadings and transcripts in this DOL proceeding set out a chronol-ogy of events surrounding missing record transcripts and the falsification of a Licensee company business record and establish that Licensee employees and union members played a role in discriminating against Mr. Saporito. The Peti-tioners further stated that additional evidence exists that necessitated a meeting between the NRC and the Petitioners.
III.
DISCUSSION Because of the numerous requests and interrelated nature-of the issues raised and the bases provided by the Petitioners, the requests in the petition and supplements previously described have been considered together and are categorized as follows:
(1) NRC should take escalated enforcement action against the Licensee and certain individuals employed by the Licensee and refer this-matter to the DOJ; (2) NRC should take escalated enforcement and other action against the IBEW; (3) NRC should initiate investigations into matters regarding the DOL proceeding, including willful falsification of a company business record, willfulfalsification of the DOL transcript, and alleged "whiting out" ofa page of a document by the Licensee's attorneys; and (4) miscellaneous requests.
1.
Petitioners'equest for Enforcement Action Against the Licensee and Certain Empioyees ofthe Licensee As previously stated, the Petitioners request that the NRC take enforcement action to modify, suspend, or revoke FPL's operating licenses until FPL can sufficiently demonstrate that employees at FPL's nuclear facilities are "exposed to a work environment" that encourages these employees to freely raise safety concerns directly to the NRC without being required to first identify their safety concerns to the Licensee. In addition, the Petitioners request that the NRC take escalated enforcement action against the Licensee because of the Licensee's discriminatory practices in violation of section 50.7 and that this enforcement action be retroactive to the initial occurrence of the violation by the Licensee.
As a basis for this request, the Petitioners assert that the Secretary of Labor found in S9-ERA-7/17 that FPL violated the ERA when it discharged Mr.
Saporito but that the NRC failed to take any enforcement action against the 100
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Licensee for this violation, and that as a direct result of the NRC's failure to take such action, a "chillingeffect" was instilled at the Licensee's facilities that continues to dissuade employees from raising safety concerns.
The Petitioners cite numerous cases in support of their assertion that the Licensee has continued to discriminate against employees who engage in protected activity.
This request is similar to a request made by Mr. Saporito in an earlier petition, which was addressed in a Director's Decision issued on May 11, 1995 (DD 7, 41 NRC 339). As previously described herein, and as explained in DD-95-7, contrary to the Petitioners'ssertion, the Secretary of Labor has not yet made a finding on the merits in 89-ERA-7/17 as to whether the Licensee violated the ERA in discharging Mr. Saporito.
Rather, in an order issued on June 3, 1994, the Secretary directed the ALJ to submit a new recommendation on whether FPL would have discharged Mr. Saporito absent his engaging in protected activities.
Therefore, the Order of June 3, 1994, does not constitute a final decision by the Secretary of Labor, and because there is no DOL finding of discrimination, there is no basis to justify. enforcement action by the NRC at this time.3 As further explained in that Director's Decision, the NRC will monitor the DOL proceeding and determine on the basis of further DOL findings and rulings whether enforcement action against the Licensee is warranted.
With regard to the Petitioners'ssertion that the NRC's failure to take enforcement action has resulted in a "chillingeffect" at the Licensee's facilities, the Petitioners have offered no evidence to substantiate this claim. Over the past 2 years (July 1995-June 1997), eighty-nine allegations from FPL employees or contractors have been submitted to the NRC, of which six have been
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allegations related to discrimination. Of these allegations, the Staff was unable to evaluate two allegations because the alleger would not reveal his or her identity. With regard to the remaining allegations, in two cases, discrimination was not substantiated.
The remaining two allegations are still being evaluated.
Should these allegations be substantiated, the NRC will determine at that time whether enforcement action against the Licensee is warranted.
Nonetheless, even ifthese allegations are substantiated, there is presently no indication that there has been a "chillingeffect" at the Licensee's facilities. The NRC Staff has conducted inspections of FPL's Nuclear Safety Speakout Program (Employees
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Concerns Program) and has examined the safety-conscious work environment "at FPL's nuclear facilities. The results of the last two inspections, conducted in April-May 1996 and June 1997,'ndicate that the Speakout Program has been effective in handling and resolving individuals'oncerns.
The Speakout 3 As of this date, the ALJ has not issued a new Recommended Decision.
NRC Inspection Reports 50-250/96-05, 50.25I/9645, 50-335/96-07, and 50-389/9647, dated May 3I, 1996, and 50-335/97-08 and 50-389/97-08, dated July 16, 1997.
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Program has been readily accessible, and employees are familiar with the various avenues available by which to express their concerns.
The Petitioners have relied upon 89-ERA-7/17 and eight additional cases to
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demonstrate both widespread discrimination by FPL against its employees and a lack of NRC enforcement action to deal with this alleged discrimination.'ith regard to 89-ERA-7/17, as previously stated, no final determination that discrimination occurred has yet been made by DOL. A close examination of the remaining cases does 'not support Petitioners'ssertion that the NRC's "lax attitude" caused a pattern and practice of discrimination at FPL's nuclear
'acilities. Allof the cases cited by the Petitioners, except for two cases (Pillolp
- v. Bechtel, &7-ERA-3S, and Diaz-Robaiitas v. FPI92-ERA-10), were either settled, voluntarily dismissed at the request of the complainant, or otherwise dismissed by DOL before a final determination was made by the Secretary of Labor. Two of the cases relied upon by the Petitioners did not involve FPL, but other companies (and one of these cases did not involve matters under NRC
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ll il 5Thc other eight cases and their disposition a(e as follows:
(1) Pillowv. Bcchrcl, 87-ERA-35:
'Ihe Scaetary found that discrimination by Bcchtel had occurred and ordered eoinpcnsation for damages.
The NRC issued Notices of Vioh(tion on February 1 1, 1994, to FPL and Bechteh for violations that occu(red in 1987 and that were based on both 87-ERA-3S and 87-ERAM (EA 93-199 and EA 93-200).
(2) D(hz-Robninns v. FPL 92.ERit(-10:
Although the Scaetary ofLabor found that disaindnation occurred, hc remanded thc case to thc ALl for a dctcrmination of the appropriate remedy, so that the Secretary's decision was not a final decision by DOL Thc case scttkd before thc AU issued his decision.
Thc NRC lssucd a Notice of Violation and Proposed Civil Penalty of $100,000 against FPL for thc violation, which occurred in 1992 (EA 96451).
The Ucensec paid the civil penalty on Dcccmbcr 3, 1996.
(3) Phipps v. FPJ, 95.ERA-53:
The DOL Wage and Hour Assistant Area Director concluded that Mr. Phipps'ngaging in protected activities was a factor in FPL's decision to prohibit him from working during plant outages.
FPL appeakd thc decision, and a hearing was schcdulcd bcforc a DOL ALJ. Bcforc thc hcaring, the parties cntaed into a scnkment agreement. A final DOLOrder,'dated February 21, 1996, dismissed the case with prejudice on the basis of a voluntary stipuhtion by the parties.
There was no finding for discrimination by DOL (4) Dyscn v. FPL 92-ERA-26:
The DOLWage and Hour Area Director determined that there was no discrimination. The complainant appealc(L but then requested that thc case be dismissed prior to a determination by an AU as to whether disaimination occurred. A fiual order affirming the dismissal of the compkint was issued by thc Scaeta(y on June 28, 1993.
(S) Kisin(an v. FPL 91-ERA-50:
The DOL Wage and Hour Area Director determined that there was no disaimination. The complainant appcalcd, but then rcqucstcd that the case be dismissed prior to a determination by an AU as to whether discrimination occu(red. A final order affinning thc dismissal of the complaint was issued by thc Secretary on February 21, 1992.
(6) Young v. FPJ, 93-ERA-30:
Thc DOL Wage and Hour Area Director determined that there was no discrimination. The complainant append, but then requested that the case bc dismissed prior to a determination by an ALJ as to whether discrimination ccuureed. A final order affinning thc dismissal of the compkint was issued by thc Scrretry on July 13, 1995.
(7) Fry v. hrhnrk Consrrucik(n Fnbrics, Inc., 96$ TA-7:
This case did not involve FPL or any NRC licensee, did not involve thc raising of nuckar safety concans or any other matters under NRC jurisdiction, and did not arise un(kr the Energy Reorganization Act, but under thc Surface Transportation Aa.
(8) Collins v. FPI 91-ERA47 (actually Collins v. FPC):
The Secretary of Labor issued an order on May 15, 1995, finding that no discrimination occurred. In addition, thc rcspondcnt in this case was actually Florida Power Corporation, not FPL 102
jurisdiction). With regard to Pillow, the discrimination that was the subject of this case occurred before the case involving Mr. Saporito.
Therefore, such discrimination is neither indicative of FPL's current performance nor could it have resulted from the lack of NRC's enforcement action in the present case 6
The only additional cases cited by the Pe'titioners in which any finding was made by DOL that discrimination occurred were Phipps v. FPL, 95-ERA-53, and Diaz-Robainas.
In Phipps, the DOLWage and Hour Assistant Area Director concluded that Mr. Phipps'ngaging in protected activities was a factor in FPL's decision to prohibit him from working during plant outages.
FPL appealed the decision;
- however, the case was dismissed on the basis of a voluntary stipulation by the parties prior to a hearing before an ALJ. The NRC Office of Investigations investigated this case and did not substantiate that discrimination had occurred. In the Diaz-Robainas case, the Secretary of Labor did determine that discrimination had occurred.
This one example, however, for which the NRC took. appropriate enforcement action,'oes not support the Petitioners'ssertion that the NRC has a "lax attitude" which has caused a pattern or practice of discrimination at FPL's facilities.
F'or all of these reasons, the Petitioners have not set forth a sufficient basis that would warrant that the NRC take escalated enfoicement action against the Licensee at this time. Therefore, this request by the Petitioners is denied.
The Petitioners also request that the NRC impose a civilpenalty in the amount of $ 100,000 against each of three former FPL managers; a civil penalty in the amount of $ 100,000 against six current FPL employees and restriction of the licensed activities of these employees and revocation of their unescorted access to nuclear facilities; and a civil penalty in the amount of $ 100,000 against two named individuals characterized in the petition as Licensee "agents" or "representatives."
As a basis for this request, the Petitioners allege that these individuals were involved in the discrimination against Mr. Saporito, which is the subject of DOL Case 89-ERA-7/17. Because a final determination has not been made by DOL or NRC that discrimination occurred against Mr. Saporito, the requested enforcement action against these individuals is not warranted at this time.
In addition, the Petitioners request that the NRC refer the matter of the con-duct of various FPL managers and other individuals and "entities" (i.e., the Licensee and the IBEW) to the DOJ so that it can'consider invoking criminal In addition, the NRC has taken enforcement action in the PI0ow case. Scc note 5.
As noted in note 5, the NRC issued a Notice of Violation and Proposed Civil Penalty of $ I00,000 to FPL for this violauon.
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proceedings against these persons and entities.'s discussed ih this section, DOL has not made a final determination in this case as to whether discrimination occurred. Therefore, the Petitioners'equest is denied pending a final decision by DOL as to whether discrimination occurred in DOL Case 89-ERA-7/17. The NRC willmonitor the DOL proceeding on remand to the ALJ and determine on the basis of further DOL findings and rulings in this case whether a violation of NRC requirements has occurred, whether enforcement action against the Licensee or its employees'is warranted, and whether this matter warrants referral to the DOJ.
2.
Petitioners'equest for Action Against the IBEW
'11Ie Petitioners request that the NRC impose a civil penalty in the amount of $ 100,000 against the IBEW and that the IBEW be required to inform its members in writing that they have the right to report safety concerns directly to the NRC without fear of retribution and that the IBEW encourages and supports such action at the discretion of its members.
The Petitioners request that the NRC take such action because they allege that IBEW officials conspired with FPL management to have Mr. Saporito's site access revoked at Turkey Point Station. The basis for this request was clarified at the meeting between Mr. Saporito and the NRC Staff on July 14, 1997.
During that meeting, Mr. Saporito stated that two Licensee officials testified during the DOL hearing that a comment was made by union officials to Licensee management that Mr. Saporito could potentially sabotage the plant, and that, as a result of that comment, his access to the site was revoked.
The testimony of these Licensee officials is a part of the record that is currently before the DOL ALJ. As previously stated, the NRC will monitor the DOL proceeding on remand to the ALJ and determine on the basis of further DOL findings and rulings in this case whether any violation of NRC requirements has occurred that would warrant enforcement action by the NRC.
For this reason, this request by the Petitioners is denied.
3.
Petitioners'equest for Initiation of NRC Investigations
'Ihe Petitioners request that the NRC investigate the "willfulfalsification" of a company business record and the cause of "transcripts found missing" in the
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8 The Petitioners assert as a basis for their rcriucst that enforccmcnt action be taken against Licensee cmployces and union officials that certain pleadings they have 6led in the DOL case, as well as transcript records, provide evidence of retaliation by these individuals.
It should bc noted that the pleadings and transcripts in a DOI proceeding aie not, by themselves, conclusive that discrimination occurred.
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DOL proceeding.9 During the meeting held.with the NRC on July 14, 1997, Mr.
Saporito also raised what he asserted were certain improprieties that occurred during the DOL hearing and specifically requested that the NRC investigate an additional concern that the Licensee or its attorneys may have "whited out" a page of a document he had requested during the DOL proceeding. Mr. Saporito stated that he was adding this request to his petition.
This matter relates solely to the conduct of a DOL proceeding.
The NRC Staff has, therefore, referred these issues to DOL. The Petitioners'equest that the NRC investigate these matters is denied.
4.
Other Petition Issues The Petitioners request that the NRC require the Licensee to post a written notice alongside each NRC F'orm 3 currently posted at the Licensee's nuclear facilities that'alerts employees that they can directly contact the NRC about nuclear safety concerns without first identifying the safety concerns to the Licensee. In addition, the Petitioners request that the NRC require the Licensee to provide a copy ofthis posted communication to all employees and ensure that all employees are made aware of those communications through the Licensee's General Employee Training Program.
Finally, the Petitioners request that the NRC require the Licensee to provide the Commission with documents authored by an officer of the Licensee under affirmation affirming that the Licensee has complied with these requests.
This request is similar to a request made by Mr. Saporito in a petition filed on March 8, 1995, and responded to in a Director's Decision issued on May 25, 1995 (DD-95-8, 41 NRC 346 (1995)). In that petition, Mr. Saporito requested that each Licensee be required to report to the Commission under oath or affirmation that it had completed a review of its station operating procedures to determine whether those procedures included restrictions that would prevent an employee from bringing safety concerns directly to the NRC and that it had communicated to its employees that they were free to bring concerns directly to the NRC without followingthe normal chain of command. As explained in that Director's Decision, the Secretary of Labor did not hold in his Decision of June 3, 1994, that employees have an "absolute right" to refuse to inform licensee management of public health and safety concerns and to bypass the licensee's 9 Mr. Saporito elaborated on thcsc alleged falsitications at the mccting held on July l4, 1997. Specifically, Mr.
Saporito sscctcc 4 with regard to thc missing transcript pages, that 20 pages containing testimony by the Licenscc's vice president were missing from thc initial copy of the transcript that hc was provided (although thc record was eventually amended to contain these pages). With regard to thc falsification of a business record, be asserted that minutes of a meting held between him and Liccnscc officials did not accurately reflect thc real reason that his site access was being revoked; that is, that union ofacials had told Licensee management officials that he might sabotage the planb 105
management in order to bring safety concerns directly to the NRC. Although an employee may not be discriminated against by the employer for coming directly to the NRC with safety concerns, an employee may also be required by the employer to bring these same concerns to the employee's management.
Vfhether an employee must bring issues to licensee management is dependent on the facts of each specific case, As further explained in DD-95-8, the NRC requires in 10 C.F.R. g 19.11(c) that all licensees and applicants for a specific license post NRC Form 3, "No-tice to Employees," which describes employee rights and protections. In addi-tion, section 50.7 and associated regulations were amended in 1990 to prohibit agreements and/or conditions of employment that would restrict, prohibit, or otherwise discourage employees from engaging in protected activity. Finally, in November 1996, the NRC issued a brochure, "Reporting Safety Concerns to the NRC'NUI&G/BR-0240), which provided information to nuclear workers on how to report safety concerns to the NRC, the degree of protection that was afforded the worker's identity, and the NRC process for handling a worker's al-legations ofdiscrimin'ation. These measures are sufficient to (1) alert employees in the nuclear industry that they may take their concerns to the NRC and (2) alert licensees that they shall not take adverse action against an employee who exercises the right to take concerns directly to the NRC.
The NRC Staff believes that these existing requirements for posting and making other information available to workers are adequate.
The Petitioners have not provided a sufficient basis for requiring their suggested additional measures.
Therefore, Petitioners'equests related to a supplemental posting are denied.
As previously stated, a public meeting was held with Mr. Saporito enabling him to fully present information regarding the issues raised in the petition. In addition, the NRC will monitor the DOL proceeding referenced in the petition to determine whether there has been a violation of NRC regulations.
In view of these facts, there is no basis to hold any hearing at this time. Therefore, the Petitioners'equests related to a public hearing are denied.
HI.
CONCLUSION For the reasons discussed above, no basis exists for taking the enforcement actions r'equested in the petition and its supplements.
Nonetheless, as previously described, on July 14, 1997, a public meeting was held between Mr. Saporito and representatives of the NRC Staff, the purpose of which was to provide Mr.
Saporito with the opportunity to provide additional information regarding the substance of this petition.
Therefore, to the extent that the Petitioners have requested that the NRC conduct an interview with the Petitioners regarding the
substance of their section 2.206 petition, the petition has been granted; With regard to all other aspects of the petition, the petition has been denied.
A copy of this Decision willbe filed with the Secretary of the Commission
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for the Commission to review in accordance with 10 C.F.R.
$ 2.206(c).
As provided by that regulation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time.
FOR THE NUCLEAR REGULATORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 8th day of September 1997.
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St. Lucie Units 1 and 2 Docket Nos. 50-335 and 50-389 L-98-188 Enclosure - Exhibit 11