ML18107A471

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Discusses Administrative Proceeding Conducted by DOL Re Complaint Filed with DOL on 980419 by Nuclear Mechanical Technician & Forwards Notice of Violation & Synopsis of OI Investigation Rept 1-1998-023
ML18107A471
Person / Time
Site: Salem  PSEG icon.png
Issue date: 07/28/1999
From: Miller H
NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I)
To: Keiser H
Public Service Enterprise Group
Shared Package
ML18107A473 List:
References
EA-99-055, NUDOCS 9908050002
Download: ML18107A471 (5)


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EA 99-055 Mr. Harold W. Keiser UNITED STATES NUCLEAR REGULATORY COMMISSION REGION I 475 ALLENDALE ROAD KING OF PRUSSIA, PENNSYLVANIA 19406-1415 July 28, 1999 President and Chief Nuclear Officer Nuclear Business Unit Public Service Electric and Gas Company Post Office Box 236 Hancocks Bridge, New Jersey 08038

SUBJECT:

NOTICE OF VIOLATION (U.S. Department of Labor Case No. 98-ERA-39)

Dear Mr. Keiser:

This letter refers to an administrative proceeding conducted by the U.S. Department of Labor (DOL), regarding a complaint filed with DOL on April 19, 1998, by a nuclear mechanical technician. The employee asserted that he was discriminated against for raising safety concerns. A DOL Administrative Law Judge (ALJ) issued a Recommended Decision and Order on March 4, 1999, finding that PSE&G discriminated against the employee because he engaged in protected activities, in violation of Section 211 of the Energy Reorganization Act of 197 4, as amended (98-ERA-39). The NRC Office of Investigations (01) also initiated an investigation of this matter to determine if the individual was discriminated against. However, prior to completion of the investigation, 01 closed the case due to pursuit of investigations of higher priority. A copy of the synopsis of the 01 report is enclosed.

10 CFR 50.7, "Employee Protection," prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment.

Protected activities are established in Section 211 of the Energy Reorganization Act of 197 4, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act or the Energy Reorganization Act. Protected activities include, but are not limited to, providing the Commission or his or her emplQyer information about alleged violations of either the Atomic Energy Act or the Energy Reorganization Act.

Based*on the finding of the DOL ALJ, the NRC determined that an apparent violation of 10 CFR

50. 7 occurred, as noted in our May 14, 1999 letter to you. As a result, a transcribed predecisional enforcement conference was held on June 24, 1999, with Mr. Louis Storz and other members of your staff to discuss the apparent violation, its causes, and your corrective action~.

Based on the DOL finding, and the information provided during the conference, the NRC has concluded that a violation of NRC requirements has occurred. The violation is cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding it are described in

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detail in the ALJ's Recommended Decision and Order, dated March 4, 1999. Specifically, the nuclear mechanical technician raised a safety concern regarding the enhancement of valve packing during repair of a safety-related main steam valve at Salem Unit 1 in March 1998. The ALJ found that shortly thereafter, the technician was confronted in an accusatory manner by the Maintenance Superintendent, and subsequently received a negative performance appraisal.

The ALJ also concluded that these actions would not have been taken in the absence of the technician's protected activity.

At the conference, you-denied the ALJ finding that you had discriminated against the technician and asserted that there were legitimate reasons for the confrontation and negative performance appraisal. Specifically, you asserted that the Maintenance Superintendent confronted the technician about comments that the technician had recorded in the work order because he felt that they were inaccurate and misleading, not because the technician had raised a safety concern. You also asserted that the negative comments in the performance appraisal referred to a performance issue involving the individual's failure to follow station policies in that he included the name of an individual in the work order comments.

The NRG has carefully evaluated the information you presented at the enforcement conference and has concluded that the confrontation itself did not constitute discrimination in violation of the Commission's employee protection regulations. However, the language in the performance appraisal is at best ambiguous, and it is not clear whether the negative comments were motivated by the individual's raising a safety concern or for other reasons. You had the opportunity to fully litigate this matter before a DOL ALJ, which involved a full evidentiary adjudication of the issues, and the ALJ determined that you had not shown that the technician.

would have received the negative performance appraisal in the absence of the protected activity. You also had the opportunity to appeal the ALJ finding to the DOL Administrative Review Board, but did not do so.

The NRG has determined that you have provided no compelling reason why the NRG should not take enforcement aation based upon the ALJ's determination on this issue. Therefore, the NRC.

concludes that the technician was discriminated against for engaging in protected activity, iii violation of 10 CFR 50.7. However, we also recognize that the discriminatory action, while adverse, was limited to the negative comments in the appraisal, and did not otherwise affect the conditions of the technician's employment. Therefore, this violation has been categorized at Severity Level IV in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. We emphasize that, while you have the right to take adverse actions based upon valid performance considerations, you must ensure

. that any adverse action is based solely upon such legitimate considerations and is not taken in retali~tion for an employee's having engaged in protected activity.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence of the violation.

In particular, you should address situations in which managers and superviSQ/S are required to respond to performance issues with employe~s who are also involved in protected activities. In addition, you should describe your actions for assuring that this violation does not have a chilling effect on other employees' willingness to raise safety issues. After reviewing your response to

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this Notice, including your proposed corrective actions, the NRC will determine ~hether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your respon.se will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any persona.I privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

Docket Nos. 50-272 and 50-311 License Nos. DPR-70 and DPR-85

Enclosures:

1. Notice of Violation Sincerely, Regional Administrator

.2. Synopsis of QI Investigation Report 1-1998-023

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ccw/encl:

L. Storz, Senior Vice President - Nuclear Operations E. Simpson, Senior Vice President - Nuclear Engineering E. Salowitz, Director - Nuclear Business Support A. Kirby, Ill, External Operations - Nuclear, Delmarva Power & Light Co.

D. Garchow, General Manager - Salem Operations J. McMahon, Director - QA/Nuclear Training/Emergency Preparedness G. Salamon, Director, Licensing, Regulation and Fuels R. Kankus, Joint Owner Affairs A. Tapert, Program Administrator J. Keenan, Esquire Consumer Advocate, Office of Consumer Advocate W. Conklin, Public Safety Consultant, Lower Alloways Creek Township M. Wetterhahn, Esquire State of New Jersey State of Delaware

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Public Service Electric and Gas Company DISTRIBUTION:

PUBLIC SECY CA WTravers, EDO MKnapp, DEDE FMiraglia, DEDR JLieberman, OE HMiller, RI DDambly, OGC SCollins, NRR BSheron, NRR WKane, NRR Enforcement Coordinators RI, Rll,' Riii, RIV BBeecher, GPA/PA GCaputo, 01 PLohaus, OSP HBell, OIG DScrenci, PAO-RI NSheehan, PAO-RI OE:Chron OE:EA DCS Nuclear Safety Information Center (NSIC)

NU DOCS L Tremper, OC NRC Resident Inspector - Salem To receive a copy of this document, Indicate In the box: *C" = Copy without attachment/enclosure "E" OFFICE Rl:DRP Rl:RC NAME RBlough DATE To receive a copy of this document, Indicate In the box: "C" = Copy without attachment/enclosure "E9 = Copy with attachment/enclosure OFFICE Rl:ORA NAME DATE

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