ML19256A898
| ML19256A898 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 01/10/1979 |
| From: | Mike Farrar, Rosenthal A, Salzman R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7901170008 | |
| Download: ML19256A898 (101) | |
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NUCLE AR REGULATO RY COMMISSIO N-
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IN THE MATTER OF:
UNION ELECTRIC COMPANY Docket Nos. CPPR-139 (Callaway Plant, Units CPPR-140 1 and 2)
ORAL ARGUMENT Place - Washington, D. C.
Octe - Wednesday, 10 January 1979 Pages 1 - 99 t
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1 UNITED STATES OF AMERICA q
2 NUCLEAR REGULATORY COMMISSION l
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In the Matter of:
l 5
UNION ELECTRIC COMPANY Docket Nos. CPPR-1.39 i
CPPR-140 6
(Callaway Plant, Units 1 and 2) 7
- - - - - - - - - - - - - - -X ORAL ARGUMENT 8
9 Moot Courtroom Howard Universicy Law School 10 !
Houston Hall 2935 Upton Street, N.W.
j 11 Washington, D.C.
I i
12 Wednesday, 10 January 1979 l
13 Oral argument in the above-entitled matter was convened, 14 pursuant to notice, at 9:30 a.m.
t 15 BEFORE:
i i
16 ALAN S. ROSENTHAL, Chairman i
Atomic Safety and Licensing Appeal Board 17 i
MICHAEL C. FARRAR, Member 18 RICHARD S. SALZMAN, Member 19 APPEARANCES:
l 20 W. BRADFORD REYNOLDS, Esq., Snaw, Pittman, Potts &
21 Trowbridge, 1800 M Street, N.W.,
D. C.;
on behalf of the Applicant.
22 MICHAEh.BANCROFT and DIANE COHN, Esgs., Public Citizen 23 Litigation Group, 200 P Street, N.W.,
Washington, D. C !;
on behalf of the Intervenor William Smart.
I 24 A
wal Repornrs Inc.
l 25 ;
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2 i
1 APPEARANCES (Continued-I 2
JAMES P. MURRAY and STEPHEN G. BURNS, Esgs., Office j
of the Executive Legal Director, Nuclear Regulatory i
3 Commission, Washington, D.
C.; on behalf of the I
Nuclear Regulatory Commission Staff.
4 i
ALSO PRESENT:
5 JOHN L. CARR and ALAN J, WEISBAl', Esgs., Shaw, Pittman, 6
Potts & Trowbridge, 1800 M Street, N.W.,
Washington, D. C.
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ORAL ARGUMENT OF:
PAGE 3
j W.
Bradford Reynolds, on behalf of the Permittee 7
4 Mi hael Bancroft, l
5 on behalf of the Intervenor, William Smart 36 6
James P. Murray, n behalf of the NRC Staff 66 7
4 REBUTTAL ARGUMENT OP:
0 W.
Bradford Reynolds, 94 9
on behalf of the Permittee i
10 l 11 12 13 14 i
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16 17 18 19 i
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1ersi Reporters, Inc.
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CHAIRMAN ROSENTHAL:
This Atomic Safety and Licensin'g
,l Appeal Board of the Nuclear Regulatory Commission is hearing divid 1 i
oral argument this morning on the appeals taken by the Union i
Electric Company and William Smart on a different aspect of the Licensing Board's September 28th, 1978 initial decision.
This show-cause proceeding involved Union Electric's.
7 l
q Callaway nuclear facility in Missouri.
The issues presented in this proceeding are exclusively legal in character and 9
gi relate to the endeavors of the Commission's Office of Inspection and Enforcement to investigate the circumstaices
);
underlying the dismissal of Mr. Smart last April from the employ of a contractor on the Callaway construction project.
j i
More specifically, the principal issues are, one, whether the Commission has the authority to conduct an g
investigation for the purpose of determining if Mr. Smart's 16 j dismissal was causally related to his having brought certain 1
alleged construction work deficiencies to the attention of the Office of Inspection and Enforcement; and second, whether 39 the trial board correctly declined to consider an I
additional sought to be raised by Mr. Smart.
l This represents the first occasion on which an f
23,! appeal board of the Nuclear Regulatory Commission has heard 1o oral argument on a law school campus.
We are of course g
r.i nwartm. inc. }l
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25 ;
very grateful to the dean of the Howard Law School for r
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I 5
l I
id2 graciously making available this splendid moot courtroom for i
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our use.
i We also wish to acknowledge the attendance this 4
morning of the members of Professor Miles' administrative i
5 law class and Professor Thornell's environmental law l
6 seminar.
7 We trust that they will find the arg~ ment both u
interesting and instructive.
9' Although the panel from which NRC appeal boards 10 '
are drawn is comprised of both lawyers and scientists, the 11 appeal board for this proceeding consists of three lawyers.
12 On my right is Michael C. Farrar, and on my left is I3 richard S.
Salzman.
I am Alan S. Rosenthal, the chairman 14 I I
of this board.
I 15 The argument is governed by the terms of our 16 y December 21, 1978 order; as therein indicated, each of the o
17 '
three parties will have a total of 40 minutes for the 1
18 0 presentation of its argument.
We will hear from Union 19 Electric first to be followed by Mr. Smart and then by the 20 i
Commission staff.
21 l
As our order also stressed, the board is entirely l
'2 ll familiar wi.th the stipulated facts as well as the positions t
23 of the respective parties.
s 24
We will expect counsel to bear this fact in mind At vel Recorters, Inc.,1
'51
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in the presentation of their arguments.
In this connection, e
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david 3 there is no need for any counsel to present a detailed background statement at the inception of his argument.
2 I will n w ask counsel to identify themselves 3
I formally for the record.
I'll start with Mr. Reynolds.
MR. REYNOLDS:
Mr. Chairman, I'm William Bradford Reynolds of the firm of Shaw, Pittman, Potts, and Trowbridge here representing the permitee, Union Electric Company.
7 With me are Mr. John L. Carr and Mr. Alan J. Weisbar of the 8
same firm.
9 CHAIRMAN ROSENTHAL:
Thank you, Mr. Reynolds.
Mr. Bancroft.
jj i
MR. BANCROFT:
Mr. Chairman, my name is Michael Bancroft.
I'm with the Public Citizen Litigation Group representing William Smart, the intervenor, and with me is Diane Cohn.
CHAIRMAN ROSENTHAL:
Thank you, Mr. Bancroft.
I Mr. Murray, 17 MR. MURRAY:
I'm James P. Murray, and I represent the United States Nuclear Regulatory Commission staff at this 39 proceeding.
With me today is Mr. Steven G.
Burns who 20 i
is a newly minted member of the bar.
His appearance was entered in this proceeding yesterday.
22 23 lll CHAIRMAN ROSENTHAL:
Thank you, Mr. Murray.
F g ! Mr. Reynolds, you may proceed.
I At
= cat Reporters, Inc.
25 j Ii
l 7
1 i
c d4 ORAL ARGUMENT ON BEHALF OF PERMITEE l
2 l[
l BY MR. REYNOLDS:
3 !
t Mr. Chairman, members of the board, as you have 4
l stated, the case comes to the appeal board today from an i
i 5
initial decision issued on September 28th by an Atomic 6
Safety and Licensing Board growing out of r show-cause order that was issued on AAril 3rd by the director of the Office 8
of Inspection and Enforcement at the Nuclear Regulatory i
Commission.
Without going into factual detail, it should be stated that this matter arose initially as the result of a 12 firing on March 21st of 1978 by Mr. William Smart who was 13 I
a construction worker at the Callaway construction site.
1 There is no dispute at all that Mr. Smart was 15 tarminated and discharged; the day af ter his discharge his 16 union initiated grievance proceedings under the existing i
17 '
l contractual arrangement that the union had with the i
18 I l
contractor.
ll 19 Those grievance proceedings called for a series 20 i
of steps and they progressed in parallel or in tandem with 21 the proceeding before this agency.
On March 30th, I guess 72 '
it's a little more than a week after Mr. Smart was
!'I 23 terminated, the NRC sent inspectors to Daniel Construction 24 !
..i nwonm. ine. l Company, the contractor on the job, asking for access to c
25 l!records, personnel records, and actual personnel at the l,I l
l 8
1 I
d i.d 5 work site to investigate this firing.
i 2'
There is no dispute that the NRC inspectors i
3 I were denied access to records.
MR. FARRAR:
Is there any dispute, Mr. Reynolds, j
5 about whether your people asked if they had a warrant at that 6
time?
7 MR. REYNOLDS:
They did not ask if they had a 8
warrant at that time.
They did deny access, and I guess there's 9
also no dispute that no warrant was presented at that time.
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10 !
They were refused access of the records and the personnel for 11 the purpose of this investigation into the firing, and 12 their response was a show-cause order that I mentioned issued 13 I
on April 3rd that went to hearing before the Licensing Board 14 and on stipulated facts, as the Chairman has stated.
15 The central legal that was raised and argued 16, before the Licensing Board was, as stated by tht Chairman, 17 whether there was legal authority for this occasion to 18 investigate a disciplinary action by an employer of an 19 I employee when there is a claim that the action by the 20 employer was discriminatory or retaliatory due to the 2I l employee's statements f rom time to time to the commission of I
'2 l
, safety concerns that related to the construction that was i
23 I going on at the site.
24 h i
There is no dispute here that Mr. Smart prior to
,,,, Reporters. inc. I
'S his termination had from time to time spoken to the NRC,
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dm id6 voiced safety concerns about the construction work.
There is i
l 2
no dispute that those safety claims were invesc1 gated oy the l
i 3 !
NRC; I think that the record, such as it is, and there't j
4 a report, one report, that was received by the Licensing Board,,
5 indicates that some of the claims made show that there were 6
deviations.
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They were of an unsubstantial nature, and the 7
i 8
NRC inspectors concluded after their investigation that i
9 nothing that was brought to their attention or that they 10 :
had investigated warranted suspension of the permit.
The 11 position of Union Electric Company and Daniel Construction 1
12 Company is that the investigation of disciplinary action of 13 this sort is not within the authority of this agency.
}
I ja There is no real argument, I believe, that the 15 statutory framework under the Atomic Energy Act and also 16 under the Energy Reorganization Act contains no specific l
17 j authorization to the NRC to engage in investigations relating 18 to alleged discriminatory firing of employees.
19 MR. SALZMAN:
Mr. Reynolds, there's no doubt but 20 that the NRC investigators can check into circumstances of 21 unsafe construction practices.
I 22 d MR. REYNOLDS:
I think that's correct.
There's no Y
23 doubt that they can, and I think there's also no dispute 24 that they've been fully able to do that.
Ac vel Aeoorters, Inc. {l 23 q MR. SALZMAN:
Well, Mr. Reynolds, does a dismissal O
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~ yid 7 of an employee wno has been reporting, correctly or 2
f incorrectly as the case may be, that his company may have
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~I or may be engaged in unsafe practices?
Does that raise a i
4 reasonable inference that the company's iismissing of such an employee may be attempts to cover up those practices?
I 6
It's not an unreasonable assumption.
MR. REYNOLDS:
Let me accept that that's not 8
unreasonable.
I think that there could be a number of 9
explanations why he might be dismissed.
10 i MR. SALZMAN:
That's true.
11 MR. REYNOLDS:
I will accept that it's not
.t 12 unreasonable for one to assume, sitting in the Office of i
13 Inspection and Enforcement, for example, that this could l
i 14 perhaps indicate a coverup; I guess that if your question, I
15 your follow-on question is whether that is a sufficient 16 predicate to inspect the firing, I think that that is a quantum 17 'l leap which at least I have some difficulty making.
I 18 I
I don't think --
l 19 i MR. SALZMAN:
Well, Mr. Reynolds, what is your difficulty?
The Commission has authority to investigate i
21 unsafe construction practices; the firing of someone who has
'2 l' been reporting the practices as possibly unsafe leaves a l
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23 !ld reasonable inference that the company may be attempting to e
24 f[hideitsunsafeconstructionpractices,andthere'snothing
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in the statute that says that because some unsafe practice t
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4.d 8 may also arise in the context of.a labor dispute, the l
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Commission is suddenly barred from investigating it.
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MR. REYNOLDS:
I agree with that, and I really i
4 don' t want to reduce this to an argument of labels; that is, it's a safety investigation versus a labor investigation.
l 6
I think perhaps you've got the right question that was asked 7
at the wrong time in the wrong place.
If the Office of Inspection and Enforcement had l
9 focused their inquiry or their inspection in that direction, 10 !
I think that perhaps --
11 MR. SALZMAN:
No, no.
Let me follow -- you're 12 assuming I've made th& wrong predicate.
It seems to me you 13 made a mistake.
It's now your assumption and not mine.
14 Perhaps I'll go one step further then.
Is it not reasonable 15 for the Commission to assume that a contractor who might be 16 J engaged in the course of firing people who reported unsafe o
17 1 practices is not the sort of contractor that ought to be i
18 building nuclear power plants, which are dangerous if not 19 I properly constructed.
20 And why, therefore, cannot the Commist_on investigate 21 this firing as a first step in determining whether this is 22 'q the kind of contractor who should be engaged in this dangerous l
23 d business?
24 MR. REYNOLDS:
What your assumption is, as I A
eral Reconers, Inc.
25 llg understand it, that there may well be a policy or prcctice by i:
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this contractor of retaliating against employees who give 2
I information of the sort Mr. Smart was giving, be it valid or
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invalid, to the NRC.
4 M;t. SALZMAN:
It may or may not be.
5 MR. REYNOLDS:
My respcnse to that is:
I think 6
that the Commission can look into that.
I thir.:c it has 7
i authority to look into that.
I think the proper way to do it 8
is to issue a show-cause order, and the show-cause order would 9
be directed, I think more appropriately, under 206 of the 10 !
Energy Reorganization Act.
11 There is a reporting requirement that all the 12 companies have and the contractors have to report defects 13 l
on a regular basis to the Commission, and it seems to me that i
14 if you have some reason to believe that a contractor is 15 undermining his reporting responsibility or jeopardizing it 16
, or not properly fulfilling it,that the proper course is 17 to issue a show-cause order and to go to the Commission and 18 say, "I have reason to believe that this contractor is not 19 ding it."
20 CHAIRMAN ROSENTHAL:
Wait a minute.
Excuse me, 21 Mr. Reynolds.
Isn't..that institution of a show-cause 22 [l proceeding a little premature if the Office of Inspection and 23lI j Enforcement is able at a particular point to say no more 24 0' that it is possible that the dismissal was a retaliatory a
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ll measure?
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13 1
'.d10 Isn't it a responsible course for Inspection l
2 and Enforcement to conduct an investigation to determine 3l whether there was in fact any causal relationship between the 4
dismissal and the actions of the employee in calling to 5
the attention of Inspection and Enforcement certain alleged 6
safety irregularities.
l i
7 And if that investigation suggests that a causal 4
8 relationship exists and moving forward to seek the 9
institution of a show-cause proceeding --
l 10 '
MR. REYNOLDS:
I think it may be premature in 11 this instance, but I think that really raises the 12 authority question.
I guess that I would feel that there 13 I
should be some reasonable indication of a pattern of practices 14 by the employer.
It goes tc a discriminatory behavior.
15 MR. SALZMAN:
How would you establish the pattern 16 here without investigating the firing?
17 MR. REYNOLDS:
I think that really comes to the 18 forefront of the issue.
We had a grievance proceeding in 19 l this case.
We now have legislation newly passed that says 20 i
if an employee feels he's been discriminated against, he 21 can take his claim to the Department of Labor for
'2 1
' jI, an investigation and a hearing.
It's not that the employee
'3 ! now is unprotected.
It seems to me --
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24 i
v.i neoorms, ine. ;
CHAIRMAN ROSENTHAL:
The grievance procedure may 4,
25 not reach the question that the Commission is interested in, i
I 14
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which is whether there was at bottom retaliatory action l
2 involved; in this case, as I understand it, the arbitrator I
3 wht didn't have before him these records that the NRC 4
inspectors were seeking, determined simply that there was 5
an insufficient showing that Mr. Smart heard and 6
comprehended the foreman's order which he was allegedly 7
dismissed for f ailing to comply with.
O Now, that didn't reach this question,did it, 9
as to whether in fact there was a retaliatory action ir/olved 10 I here.
And that's the question that the Commission is interested 11 in.
i' 12 i
MR. REYNOLDS:
I think that's right.
I don't l
13 I
think though that that would be the case under the new Id legislation where tne focal point for grievance procedures 15 before the Department of Labor is discriminatory firing.
I 16 mean, that is the core of the Department of Labor's inquiry I7 from henceforth under the new legislation.
IO I think with respect to the grievance proceeding I9 here,you're right.
And under that kind of a grievance 20 proceeding, perhaps, it might not reach it, but what I am 21 suggesting is you asked me whether the show-cause might be 22 ! premature.
23 l I still come back to the point that I think that 1
24 i
,o acoorters. inc. ;lI what the NRC is telling us in this case is that there is a An
'5 l safety related concern with respect to activity of this sort
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by the employers because it suggests -- I really think it's i
2 [i what they come down to and it's what Mr. Salzman was saying --
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i because it suggests, perhaps, that there is a pattern of 4
activity out there, a pattern of practices whereby the employer wants to discriminate or intends to discriminate 6
against any workers who talk to the NRC about discrimination.
7 CHAIRMAN ROSENTHAL:
There isn't a pattern.
Let's say that this is an isolated instance.
9 MR. REYNOLDS:
I think this is an isolated instance..
10 !
CHAIRMAN ROSENTHAL:
Well, assume that for a 11 moment.
Why wouldn' t the inspectors justifiably be 12 interested in pursuing this as a safety matter, not as a 13 matter of resolving a labor dispute, but as a safety matter.
because of, one, the possibility that even though this 15 may be an isolated matter or instance, it nonetheless does 16 reflect upon a managerial attitude; or two, because it --
17 isolated though it may be, could have a chilling effect upon 18 other employees who similarly believed there to be 19 construction irregularities coming as did Mr. Smart to the end 1 I
inspectors.
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MR. REYNOLDS:
Let me say, first. in terms of 2
managerial a ttitudes, I am not sure wnat t he link is to safety 3
there.
Mr. Reynolds, as you develop that, let 5
me ask you, that you are not sure what the link is, or rather 6
for you to win the case doesn't it have to be absolutely 7
certain that there is no link?
Isn't the possibility of the a
link enough?
You say you're not sure.
9 MR. REYNOLDS:
I would have to say this:
that 10 probably I would have given the licensing board a little 11 different answer than I am now going to give you because I 12 have new legislation that I am looking to, and I am not so 13 sure that the absolute certainty there is not crucial in light 14 of the fact that the re is, I think, mucn less truism to the 15 argument of chill.
16 When I am looking at legislation that is now in 17 place that tells all the employees out the re that if they're 15 concerned at all about discrimination in any practices, 19 disciplinary practices, cecause they're going to the URC, tney 23 can go to the Departnent of Labor and it can investigate the 21 full. thing and it can have a hearing.
22 MR. SALZ1AN:
Mr. Reynolds, what do you make of the 23 statements cuoted in the Cornission's brief in whien 24 Senator Hart, indicates tnat tnis legislation is not to chenge 25 any preexisting authority of the Co-m iss ion to investigat e
.02.2 17
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similar matters?
2 MR. REYNOLDS:
I gue ss I agree it doesn't change 3
any preevisting authority.
It leaves ocen the cuestion of 4
exactly what that autnority was.
I tend to think 5
MR. SALZ.4AN:
Sut it does undercut your reliance on 6
the statute somewhat.
This is a firing that took pla ce before 7
that statute existed.
5 MR. REYNOLDS:
We ll. I gue ss I disagree with 9
Senator Hart in terms of how ne read the existing statutes.
I 10 don't believe -- again, it's one nan's opinion --
11 MR. SALZ:4AN:
Senator Hart doesn't read existing 12 statutes.
He says this new statute doesn't derogate from any 13 previously existing authority.
You can't rely on this new 14 statute to say that the Commission has no authority.
15 MR. REYNOLDS:
No. I am sorry. I misunderstood you.
16 I an saying I do not agree with Senator Hart that the existing 17 statutes contain sufficient authorlty for an independent 13 investigation of this kind of a firing by the NRC.
19 I think tnat wnere tne authority is in the statute 20 is much closer to t'e kind of situation that you we re oositing n
21 where one might assume a cattern of practices by an employer 22 which is designed to cover up. if you will, saf ety matters 23 that should be brought to the attention of the NRC.
2a
'JR.
SALZ4AN:
Mr. Reynolds, your argument is 25 interesting, out every oattern starts with the first dot, and
18
$'".32.3 ov i
in this area I think that the Commission is forever oeing 2
lumped uoon for not starting instantly the first t ime it has a s
3 suspicion.
4 MR. REYNOLDS:
I think that's right, but, aoain, I 5
cone back to -- and I was trying to answer it -- I don't see 6
on an isolated matter, where I have one firing, what the 7
s u gge s t io n, what the need is to look into that firing from a 3
saf ety standpoint as opoosed to taking care of the labor 9
d is pu te.
10 MR. FARRAR:
Is the question whether you see the
.11 need or whether any rational investigator could possibly see 12 the need?
13 MR. REYNOLDS:
I will have to take on the argument 14 in terms of "any rational investigator."
I am hooingitnat I 15 an acting rationally and responsibly in my argument.
I am not 16 trying to say that just because I don't that ends it.
17 I think, if there is a managerial a ttitude --
18 ge ttina bac k to the Chairman's cuestion -- you've got an 19 isolated firing and it tends to reflect a managerial a.ttitude 20 and they want to examine to see whether or not management is 21 in fact firing people for going to the NHC.
22 I guess my problem is I don't. as a reasonable 23 advocate -- and I don' t s ee tne safety-related aspect to thati 24 t he re is legislation and reaulations now that are in place 25 tnat inoose on all the comoanies and all their contractors and
19 6t0.02.4 ov i
everyone else to recort everything that they hear about safety 2
defects or discrecancies to tne.JRC.
3 I am not sure -- w e l l, let me ce e li ttle more 4
cositive.
I don't think, if the NRC is telling us tnat that 5
is being done responsibly, if I nave an isolated firing of 6
somebody and it's determined that it's beca'use he didn't go 7
through channels of command but ne went out on his own.
I am S
not so sure that the managerial attitude there gives me any 9
cause for concern on the safety side.
.1 e l l, that may be true on merits, but
.11 remember, this ocor investigator gets a report some poor 12 fellow has been fired allegedly for whistleblowing.
The 13 investigator doesn't know anything about it.
14 MR. REYNOLDS:
That's right.
15 MR. FARR AR2 He doesn't know what the managerial 16 a tt itude is -- good, bad, or indifferent.
He wants to find 17 out why.
Now, maybe --
13 4R. REYNOLDS:
I gue ss the cuestion is --
19
'4R. S ALZ.AAN:
Isn't the obvious reason that he wants 20 to find out that if he turns up one case in which you fire.d 21 somebody for reoorting somebody to the NRC, that mignt ce 22 cause to start a full-scale investigation to see that there 23 isn't a ca ttern in this thing.
In other words, this is the 24 first thread.
Once he turns uo the f irs t thread. then there 25 are a nu oer of good reasons for doing uthat you say.
20
.02.5 ov i
4R. REYNOLDS:
Let me ask you this:
I have now got 2
the Deoartment of Labor that is coing to look at that.
No, no, you nave the Department of a
Labor only if Mr. Smart or oecole like him don't get 5
discouraged and say, " Hey, I am going to work somewhe re else.
6 You know, I don't need any more of this hassle."
Mr. Smart 7
may now have the De cartment of Labor in addition to his 3
grievance procedure.
9 Mr. Murray's people c:on't have the Department of 10 Labor.
Mr. Smart leaves town.
The problem may be just as big 11 in Mr. Murray's e ye s.
When Mr. Smart is gone, he doesn't want 12 to prosecute.
Why can't Mr. Murray's people continue to look 13 into it?
It's far more important for them than for Mr. Smart.
14 It's a blg personal hardship on Mr. Smart.
15 MR. SALZMAN:
The Labor Decartment doesn't have ats to the site, that I 16 inspectors on the site or regular c
17 know of.
13 MR. REYNOLDS:
No, but the JRC does.
19 I guess that I come back to -- I don't want to 20 argue in terms of isolation and pattern, out the safety link, 21 it seems to me, is one of two things, as I have heard it from 22 the other side. I think as the ouestions indicate today:
23 Either we must investigate to find out if this was a 24 retallatory firing oecause it could give us an indication of 25 company a ttitude to cover uc. if you will, oefects in
21 l' ".02.6 ov 1
construction s or I think the alternative argument is that we 2
nust investigate because we have to do something in order to 3
make sure there's no chill on otners who would go out there 4
and talk with us.
5 And I guess where I come out on the safety side is 6
I think that in those, I think that if you've got a procedure 7
in place where labor discutes are decided, that the 14RC's 8
busine ss is to await the outcome of those and determine at 9
that coint whether it f eels tnat it should initiate some 10 action against the employer.
11 MR. SALZMAi4:
Private systems, or only puolic 12 systens?
In other words, a union-comoany grievance system is 13 enough to oust the NRC from any reasonable right t'o inquire?
14 MR. REYMOLDS:
I guess I am not saying that it's 15 ousting it.
I am saying that the outcome of the labor 16 grievance proceedings should be the triggering mechanism for 17 whatever action the NRC takes.
18 MR. SALZMAN:
We have a private proceedin; 19 involving this man, and the arbitrator who, from reading his 20 opinion, strikes me as a rather knowledgeable and intelligent 21 f e llow, makes a big point at the end of his case, saying 22 bas ica lly, "Because the matter wasn't brought before me by tne 23 company. I an not going to go any further in what acpears to 24 be on its face to be sone suggestion that the comoeny was in 25 fact trying to force this man out and did not in fact hire
22 SI.02.7 ov 1
him back, from which one could make a reasonable inference that 2
in fact they were firing him because he was a whistleb'.ower."
3 The. arbitrator simply puts it down and says, "That's not for me 4
to decide.
I decide on some other grounds."
5 But doesn't that show on its face the impe rf ection of 6
any such system where the arbitrator jurisdiction is limited?
7 If this were an NRC investigation, I douot very much if he 3
would have stopoed from going there.
He would have insisted 9
on some explanations, I would think, of earlier statements by 13 the company.
11 That's the real problem:
The arbitrator's focus 12 is, is it not, on whether this man ought to be put back on his 13 job?
The NRC's f ocus is on whether or not this is some 14 Indication of unsaf e building cractices in a construction firn 15 building a plant which is potentially dangerous if not 15 oroperly designed.
And that seems to me, similarly, the fault 17 in the Labor Department's investigatory oroblems under this IS new statute.
It, too, is f ocused' on putt ing the employee 19 back.
But the Commission's randate isn't cutting the employee 20 back; the Cormission's mandate is making sure the plants are 21 safely built.
And I don't see anything in the statute or any 22 statement anywhere that because an unsafe practice arises in 23 the context of a labor dispute that the labor-discute 2d resolution r_akes crecedence over the safety.
25 1R. REf90LJ3:
I think that's right, but I gue ss
23 02.8 ov 1
that what that assumes is that an unsafe practice has arisin 2
in the course of a lacor dispute. and I tnink that's what you 3
have to assume in order to get your argument into the oroad 4
language of the sections that are being relied upon.
5 CHAIRMAN ROSENTHAL:
4r. Reynolds. In order to 6
determine whether there is a potential safety problem --
7 MR. REYNOLDS:
No, I am not, because I have full 8
investigat.ing authority -
"1" oeing the NRC.
The NdC has 9
full investigatory authority to determine whether there is a 10 safety problem or safety defects out of that plant.
They can 11 out people out there, as many or as few as they want. as often 12 or as irregularly as they want --
Wait, wait, Mr. Reynolds.
14 MR REYNOLDS
- And they can follow up on all 15 claims.
- Mr. Reynolds, we would like to believe 17 that the staff inspectors are inf alliole and will uncover 13 e ve ryth ing, but we all know what the truth ist The re aren't 17 enough of then.
Let's assume every one of them is workinc 110 23 percent of capacity and is as good an inspector as you can 21 find.
There aren't enough of them to go 3round.
They have 22 trouble checking one or two percent of the paperwork, much 23 less one or two percent of the physical work that's being 24 done.
So, _1_et's not stand here and say we don't have to worry 25 aoout this Decause the staff insoectors are so good and there
24
.02.9 ov i
are so many of them that nothing will escape.
2 MR. REYNOLDS:
I wasn't saying -- I didn't mean to 3
say that.
If we can't say that, aren't they 5
entitled to say, "We need all the help we can get.
We can't 6
afford to leave any stones unturned"?
7 MR. REYNOLDS:
I think they're entitled -- I mean, S
I gue ss that that really trips you over into the 9
chilling-effect argument; I am not sure.
They have a 10 regulation that encourages everyoody to come forward who's 11 working out there.
If nobody comes forward, their saf ety 12 investigation of this plant is going to oe -- howe ver good it 13 is, depending on what their manoower efforts are, and I can't 14 and you can't and I don't think the staff can recuire all the 15 people out there to come forward.
They can encourage it, but 16 it's le ss than an imperf ect monitoring syster, and it's 17 because of the way it's set up.
13 I think at one coint this board said that anyoody 19 could recomnend more or other ways to do it, but that's the 20 way the system is now st ruc ture d, and the board indicated tney 21 were not going to fault it because it was not set up in a 22 different way.
23 CHAIRMAN ROSENTHAL:
Now, Mr. Reynolds, is it the 24 case that in, order to sustain your position, we must conclude 25 that there is no rational basis for believing that there is e
25 l'
~.02.10 ov i
possible saf ety link between the dismissal and the cause of 2
tnat dismissal.
In othe r words, that in those circumstances 3
could it be concluded that if, in fact, this employee had been 4
dismissed as a retaliatory measure, there were safety 5
implications to that action on the part of the employer?
Is 6
that what we have to conclude?
7 MR. REYNOLDS*
Can you give it to me?
I think I 8
heard you, but I want to be sure.
9 CHAIRMAN ROSENTHAL:
What I want to know is whether 10 we have to conclude that even if Mr. Smart, in this instance, 11 had been dismissed as a retaliatory measure, having gone to 12 the NRC inspectors with his report of alleged construction 13 deficiencies, there is no possible saf ety implication 14 attendant uoon that now a ssumed f act, the fact that the NRC 15 wished to investigate to determine whether it was a fact?
de 16 have to agree with you that there is no safety link there at 17 all in order to sustain your position that there is no 19 authority.
19 MR. REYN:)LDS:
Can I ask you as occosed to wnat, or 20 do you want ne to fill that in?
21 CHAIR 1/.AN ROSENTHAL:
do, you're telling us that tne 22 NRC can't inve st ig a t e bacause this is not a saf ety ma tter, and 23 you've conceded that the NRC can look into safety matters.
24 And I am jus _t asking you whether you may oelieve there's no 25 safety link, but I er asking you whether we have to conclLde
6'
.02.11 26 that a reasonable man could not find a safety link between a pv i
2 dismissal as a retaliatory measure and the protection of the 3
public health and safety through a well-built plant?
4 MR. REYfl3LDS :
I think I would be less than candid 5
if I didn't answer you by saying, yes, that would be what you 6
would have to conclude, that if they were looking into this 7
and they were to find that it was a retaliatory firing, that 8
the authority question, as the statute is now written. I think 9
that the authority question could be resolved in their favor, 10 unless one could say that the retaliatory firing provided no 11 safety.
12 Did we get it backwards, or did I say it right?
13 I think the problem I have is that this is the only 14 legislation that I am aware of that, up until very recently, 15 did not address this-question in terms directly of 16 discriminatory treatment of emoloyees.
Congress has not done 17 that.
And I think what we're now doing is we're trying to say 18 can we engraf t on tne general provisions which Congre ss out in 19 which says the responsibility of this agency is public healtn 20 and safety, can we graft on that an intent or can we read into 21 that an intent that if we have a firing where the claim is 22 discriminatory and intend for the agency to get into that and 23 look at it because we can run through a series of assumotions 24 which lead us to some kind of a safety link?
25 VR. FARR AR:
i.; r. R eyno l ds, I am glad you came back
27 1
.02.12 ov 1
to that because at the very beginning of the argument you 2
seemed to take some comfort in tne f act that there were no 3
soecial orovisions in the Atomic Energy Act to deal with labor 4
disputes, there was only this blanket provision.
But that 5
blanket provision says, if I may paraphrase it:
"Do 6
everything you can to protect health and safety."
Now, with a 7
blanket provi ion like that, who needs any specific statutory 8
authority?
There is nothing in there that excludes labor 9
disp ut e s ; there is nothing in there that excludes, to my 30 knowledge, any kind of safety dispute.
11 The cases you cite where the courts found the 12 Commission's jurisdiction limited dealt with environmental 13 ma tters and anti-trust matt ers.
Never has there been 3 court 14 decision that I am aware of, any sort of dec ision, that in any 15 way limlts the Commission's authority to protect health and endd2 16 safety.
17 IS 17 20 21 22 23 22 25
CR 1618 HOFFMAN:GSH 28 T.
3 1
How then can you take any comfort at all in the j
terms of that statute?
2 3ll MR. REYNOLDS:
I'm not so sure how much comfort.
MR. FARRAR:
You started out your argument saying 4
there's nothing specific about a labor dispute.
5 i
MR. REYNOLDS:
If there were something specific, 6
it seems to me that we may not be here.
What I'm saying is 7
i that the only reason we're here is we have very broad language l 8
9 l
in the statute.
10 l The argument, it seems to me, that is before the 11 Court is whether that broad language gives this agency the ability to step in and investigate, let's say an assumed or 12 alleged retaliatory firing.
13 MR. SALZMAN:
Mr. Reynolds, you're suggesting that l
j4 t
Section 19.17C, or 16C, of the Commission's regulations, that 15 read -
"No.
licensee shall discharge or in any manner discrimi--
16 nate against a worker because that worker files a complaint, cr 37 institutes or Causes to be instituted any proceeding."
j9 That section is beyond the Commission's authority.
MR. REYNOLDS :
I don't think it is now because of j
20 the new legislation.
I think it may well have been beyond its 21 authority at the o ' me.
22 23 l MR. SALZMAN:
It's been on the books for five years, t
24 I understand, at least three, and no one's complained about wei Reporters, Inc. I Ac it.
25
i 29 ish 2 MR. REYNOLDS :
Okay, but I'm not sure that that's a test of whether it is or is not.
3 l
MR. SALZMAN:
It's a test in the sense that this Commission --
5 MR. REYNOLDS:
I don't know if it's been tested yet.
6 I don't even know if it's come up.
7 MR. SALZMAN:
A lot of cases have pointed out that 8
since the Commission's regulations are gone over with a proverbial fine-tooth comb, and that was in place at the i
10 I time when the Joint Committee on Atomic Energy was there, and l
there were no debates or suggestions to the Joint Committee 12 that that was inapproprinte, I'll grant you that it may not apply 13 to a construction situation as distinginshed frcm an operatinct situation.
14 But certainly, if that situation is valid, it indicates the i
15 l
existence of Commission authority.
16 I know no reason in administrative law why the Commission is required to answer any problem by a blanket 18 regulation and can't proceed, as apparently, it's doing here l
i 19 on a case-by-case basis.
20 In other words, do we need a similar regulation on l
21 the sic'a where construction is involved, rather than operating 22 plants.
'3
^
It can be answered by, well, let's see what experience, 24 i e.
We'll see from case to case.
That's lawful practice A.
va! Reporters, lm.
25 j j for an administrative agency.
Labor law does it all the time.
30 I
ish 3 I would use that citation.
j MR. REYNOLDS:
I don' t argue with anything you' ve 2
l said.
I still don' t know that all of that does not suggest 3
I 4l to me any authority for saying that that regulation is or is n t authorized by the statute.
5 I think that the argument for or against that 6
authorization of that regulation is similar to the one here.
And what you come down to is whether a claimed retaliatory l
8 firing has a sufficient safety nexus to allow the NRC to 9
10 !
investigate.
I I
MR. SALZMAN:
That's an old chestnut.
The Commission'is gj I
i' interpretation of its own statute is embodied in its own 12 regulation and is usually accepted, unless you can show some 13 really good reason why it shouldn' t be.
ja MR. REYNOLDS:
I know that.
I just don' t know that 15 g
that particular regulation has ever been called into question as to whether it is or is not authorized.
37 MR. SALZMAN:
It hasn't been, but the regulations 18 j9 were submitted to Congress.
I know that.
They all are.
It may not be for their formal approval on paper, but surely, l
20 the Joint Committee sees every regulation, or it did, that 21 went out.
It's been noted many times.
22 CHAIRMAN ROSENTHAL:
Mr. Reynolds, you have about 23 four minutes.
24 vel Repo,ters. Inc. l A
25 MR. FARRAR:
Let me ask Mr. Reynolds, you were talking
I 31 gsh 4 deferring, whether or not it's a jurisdictional point.
But
)
deferring to the private arbitration, or the Secretary of 2
1 Labor, under the statute, how long did the arbitration take 3
1 from beginning to end in this case?
4 I
MR. REYNOLDS:
March to November, was about six months.
5 MR. FARRAR:
What's the time limit on the Secretary 6
of Labor?
7 MR. REYNOLDS:
I have no idea.
8 t
MR. FARRAR:
It seems to me there was a 90-day I
9 t
10 I period.
MR. REYNOLDS:
I don't know.
11 MR. FARRAR:
Suppose we were thinking about deferring 12 to them.
Can the staff always wait that long?
A lot of 13 concrete can be poured over a lot of defects in six months, j,
r 90 days.
I'm not saying that the staff or any government 15 agency always moves with the speed of light, but there may 16 be instances in which they feel they have to move very rapidly.
37 Again, isn't it possible?
The investigator says, jg "I can' t wait 30 days, or 60 days, or 6 months.
Based on 19 i
my judgment and experience, or intuition, or whatever, there's; 20 I
something serious here and I've got to get at it before a 21 1 t more work is done."
22 MR REYNOLDS:
Well, I come back to what I said at 23 24 the outset, and I still think it's the right way for this Ac el Reponm, Inc..
25 agency to proceed in this matter.
haybe I haven't been l
32 7h 5 convincing enough.
2 i
I think it can be handled much more expeditiously 3i j
and more properly under the existing statute. If the agency feels that the reporting is not being done, there is some undermining, there is some policy in the company, there is 6
some practice that is not getting the information to the 7
agency.
I B
i If that's what it's concerned about, whether they j
e 9
label it " chill" or " practice," or what have you, they have 10 '
i a.aple authority under the existing statute in the regulations to come to the company with whatever their charges are in 12 that regard.
They don't need to take an intermediate step.
13 MR. FARRAR:
And then what will happen?
Let's say i
14 I agree with you.
They come to the company.
They file a 15 i
show-cause order that you talked about and the company answers.
16 Where does it go, then?
It goes to the commission.
And l
17 the commissioners will sit there and they will say to Mr.
Murray's people, "Here's the company's answer.
What do you have' 19 1 on these people?
Should we issue, you know, go ahead with l
20 l
this thing, set it up for a hearing.
And Mr. Murray's people j
i 21 i
will say, we don' t know what we have on it."
i 22 MR._ REYNOLDS:
They can subpoena records under that.
23 That's exactly the way the procedure works.
24 l eral Reporters, Inc. i-I guess what I'm getting to is, if you're really looking Ao 25 for that kind of information, you're not concerned about the I
i
l 33 1
gsh 6 records of William Smart.
What you're concerned about is the t
2l( practices, procedures, policies toward the employees that 3l i
the employer is taking.
That's what you want to get to.
4 If you're worried about a chill out there and whether,;
5 or not anybody's responding, you want to get the information 6
which goes well beyond the personnel records of William Smart.
7 MR. FARRAR:
Okay, what do you want to get?
8 MR. REYNOLDS:
I think what you want to get is you 9
want to get what the employer practices are of the company 10 1 l
vis-a-vis anybody who may have talked.
11 MR. FARRAR:
Can you ask the employees, for one 12 thing?
l 13 MR. REYNOLDS:
That is one way to do it, I think l
14 for the purposes of determining a chill.
15 MR. FARRAR:
Okay.
Ask the employees.
16 MR. REYNOLDS :
I think you can also ask the employer.
17 MR. FARRAR:
Well, if you ask the employees and they 18 say, wait a minute.
I'm not going to come over to your house 19 3
or your of fice to talk to you, because the last guy who came 20 over there, you promised him you would take full steps to 1
21 protect him in his job, and now, without even pushing it, l
22.1 l'
id vou don' t have any authority.
23 l you ve sa i
MR. REYNOLDS:
Let me just say something about the l
24!
e neporem. inc. l process, because I think it's really wrong for this board to An 25 !
j rest on that or put any credence on that at all.
That's not i
l 34 i gsh 7 part of this record.
I don' t know whether a promise of l
j that sort was made or was not made, but it's certainly not an 2
element of this particular case.
3 MR. FARRAR:
I was going to ask other people that.
4 i
MR. REYNOLDS:
We have a stipulation of facts and j
5 l
it came up for the first time in briefing of counsel.
I 6
l l
didn' t know about the promise and I don' t think it's really a j
7 part of this case.
g All I'm saying is I think that the safety link goes 9
to whether or not sources af information are being dried up 10 ;
because there's a monitoring factor which everybody recognizes 11 cannot be done solely by the inspectors out there as 12 effectively as it can be done if they had the assistance 13 I
of workers.
l j,
That's a legitimate concern.
15 MR. SALZMAN:
Mr. Reynolds, let me follow up my g
previous line of inquiry.
j7 Supp se Mr. Murray's people had come forth with a 18 subpoena which requested the same information which they 39 n w seek to demand by inspection.
Wouldn't your company have 20 f
resisted that subpoena on an identical ground?
Wouldn't it g
I just throw the agency into the courts and put it into the g
p sition of insisting that some courts should enforce the 23 subpoena?
24 Aq arsi Reporters, Inc. I l
MR. REYNOLDS:
To be honest with you --
25,
i I
1.
35 gsh 8 MR. SALZMAN:
If they had issued an administrative j
i 2 l subpoena, would the battle be over?
j MR. REYNOLDS:
I think we could have gotten a 3
4l protective order and an arrangement similar to the one this i
l board entered into.
5 l
!!R. SALZMAN:
Mr. Murray is not willing to agree to 6
any protective order in this case?
Does that sort of 7
I argu/*2nt fall back on that?
8 MR. REYNOLDS:
You asked me a hypothetical and I'm 9
t 10 '
not sure.
They might have resisted.
I won' t say they wouldn ' t '
11 But I think that the chances are, the real concern here from day 1 was an overlapping investigation with one that was 12 already going on under.the union grievance proceeding.
And 13 I don' t think tha t if things had been handled under the 14 i
15 subpoena route --
l I think, well, I go back --
16 MR. SALZMAN:
Let me ask you another one.
Your time j7 is short.
You've given us a list of statutes similar to the 18 j9 one just enacted by the NRC.
Under that list of statutes --
l I've gone through them all -- I haven't been able to come up j
20 i
with any case that holds that because that statute is being j
21 utilized, any other authority to investigate similar firings 22 is barred.
~
23 i
24 In other words, is there any authority for suggesting --
Ac:
prei Reoorters, Inc.
MR. REYNOLDS; No.
I can't say -- my argument here is 25 l I
i 36 l i
l I
1sh 9 not that that statute precludes this argument, or moots --
-J 2
because it says that's the only way that authority rests.
i
,l,
~
j What I'm saying is that I don't eliminates it in l
4 i
either respect.
I still think there is the responsibility i
for this board to find that..under the existing statutory 6
frame-work, there's a sufficient nexus to safety that the NRC can go ahead and go forward on a parallel course.
And 8
I recognize that.
i l
Under the new statute, I'm not saying that that new statute takes away any authority that might otherwise 11 l
exist.
12 That's why I'm saying I really wasn't at issue with i
13 Mr. Hart, except as he reads the existing statute.
Unfortunatel:y, 14 I
my time is up.
CHAIRMAN ROSENTHAL:
Your time has expired.
We'll give you a few minutes for rebuttal, but I think that's 17 covered in your brief.
18 Mr. Bancroft?
19 i
ORAL ARGUMENT ON BEHALF OF INTERVENOR 20 5
MR. BANCROFT:
Mr. Chairman, members of the board, j
i William Smart appeals the decision of the licensing board not 22 II to decide the, question of whether the NRC has the authority to I
23 protect a construction worker who provides safety information 24 to the NRC.
., i neconm. inc.,
Ae 25 1 l
CHAIRMAN ROSENTHAL:
Why isn' t that question moot in h
t 37 !
i
-gsh 10 jl the context of Mr. Smart?
The arbitrator has ordered him rest red to his employment.
I assume that he has been so 2
restored.
3 I
MR. SANCROFT:
No.
4 CHAIR'W ROSENTHAL:
He has not been restored?
5 MR. BANCROFT:
He is back working on the site at 6
the Callaway plant, but not in a government job.
He is still suf fering from the ef fects of his firing.
He's on a job which 8
is not consistent with his previous job, or with his seniority.
9 10 i CHAIRMAN ROSENTHAL:
Is this consistent with the 11 relief which the arbitrator gave him?
MR. BANCROFT:
No, it's not.
The arbitration 12 I
decision, in Mr. Smart's view, has not been fulfilled.
l 13 l
MR. FARRAR:
That's neither here nor there.
l 34 MR. BANCROFT:
That's right.
But from that point 15 16 of view of whether Mr. Smart has been completely satisfied --
i CHAIRMAN ROSENTHAL:
Well, no, that's not the point 37 I'm making.
If the arbitrator ordered him restored to his jg 19 position with back pay, why, then, isn't it, so far as we're 20 l concerned, this issue moot? Because if the arbitrator's award has not been fully observed by the employer, it seems to me 21 that Mr. Smart has his remedies there.
22 MR BANCROFT:
But it should still be of concern to 23 24 the NRC that an example is still being made of Mr. Smart that
-.i nwonm. inc. lhe 's a marked man on th e-project and he 's out Ac 25 in a job where he's i
i 38 l
gsh 11 exposed to below zero weather and can only work two days a l
j
)
l week.
l 2
I i
MR. FARRAR:
But let's make the case simpler for 3
i
! us.
Suppose he was back doing exactly what the arbitrator 4
told him.
The arbitrator gave him his award, he's back at his S
ld job, got back pay.
6 In that instance, why should we be concerned?
7 MR. BANCROFT:
The other reason for concern is that l
8 the statements that were made by the council for the NRC staff 9
10 ' during the argument of this case before the licensing board --
l t
i 11 CHAIRMAN ROSENTHAL:
Statements aren' t blessed, j
T l
with all due respect to Mr. Murray, with any presidential or i
12 l
ther significance, are they?
l 13
\\
l MR. BANCROFT:
No.
But I think they were widely l
14 i
15 publicized, if the appeal board is concerned.
MR. SALZMAN: Mr. Bancroft, you're making statements l
16 of fact that are not in the record.
As counsel, what authority 37 do you have to make such statements?
You agreed to a stipulation jg as to what the facts were here.
Your going beyond the 19 stipulation of facts strikes me as inconsistent with what 20 you. agreed upon.
21 MR. BANCROFT:
I was talking about matters which 22 have occurred since the stipulation of fact whether the.: case 23 24 l was moot or not.
As the facts occur, the board has to rely.
wel Reporters, Inc. !
Ao 25 l MR. SALZMAN:
As facts occur, the board only has to i
I i
I
i 39' i
1 12 rely on affidavits and evidence.
l 2
i MR. FARRAR:
Let him answer the question.
Go ahead, 3i Mr. Bancroft.
4 MR. BANCROFT:
The statements of the position of the NRC staf f, tha t.it could do nothing to help Mr. Amart, were 6
reported in the newspapers in Missouri.
CHAIRMAN ROSENTHAL:
You raised an issue as to I
8 i
whether that is so.or not.
And the licensing board declined
{
to consider that issue.
And let us assume that, for present 10 l
purposes, the issue, in a real sense, is now moot.
11 MR. BANCROFT:
Is now moot.
12 l
CHAIRMAN ROSENTHAL:
Assuming that.
That's what j
13 Mr. Farrar asked you to assume, hypothetically.
l 14 l
MR. FARRAR:
Wait.
I asked him to assume that the 15 l l man was back on the job where he was.
16 CHAIRMAN ROSENTHAL:
All right.
Well --
i MR. FARRAR:
That was my question:
Does that make 18 it moot?
19 MR. BANCROFT:
From the point of view of Mr. Smart, 20 it would make -- from the point of view of Mr. Smart, as he i
had intervened in this case, it would.
22 l I would say from the point of view of him being on 23 Ithe job at Callaway and wondering who he could rely on for 24 d
- rel Reporms, Inc. j' help.
The stated position of the staff, unless that's reversed Ac 25 l!
by this appeal board, would --
I
40 '
~h 13 CHAIRMAN ROSENTHAL:
Do you think it's our function 3
1 to render advisory opinions simply to cope with statements 2
3 that a lawyer may have made during the course of the proceedings?
I It seems to me that, offhand, we have a fairly heavy 4
l docket.
It seems to me we could better itilize our time than 5
engaging in that kind of exercice.
6 MR. B ANCROFT:
The point is it's not just a party, j
7 but it is the NRC staff.
And there's no other way for Mr.
8 t
Smart in this case to get that misapprehension corrected.
9 MR. SALZMAN:
Why can't he write the commission and 10 i 11 ask the commission if this is, indeed, their position?
Either do I
g l
it through Jim Murray, a counsel of the Commission -- write the l
General Counsel of the Commission and ask the General Counsel i
13 i
about it.
It's certainly not true that there are no other I
ja avenues.
15 MR. BANCROFT:
There's no other avenue for him to 16 seek a formal ruling and to get one.
I mean, he can write 37 18 a letter and ask for an opinion.
He may or may not get it.
19 MR. SALZMAN:
That's true.
He may or may not get it.
MR. BANC. FT:
I agree, he may or may not get it 20 fr m this board.
l 21 MR. SALZMAN:
What problems would the licensing give 22 23 j y u f r n t reaching the question?
i i
MR. BANCROFT: It wasn' t completely clear whether it 24 I
av y.t Reporwrs. lN.25 [jwas on grounds of rightness or on ---
41 !
i l
i Ish 14 CHAIRMAN ROSENTHAL:
I thought they concluded it was not within the four corners of the mandate which the 3
- board had received from the commission.
4 l
Wasn' t that it?
5 MR. FARRAR:
Isn' t that a serious point, because while 6
we can fool with the outer contours of mootness and prematurity, 7
I if the commission tells the licensing board, here is your job, I
i 8
maybe it was wrong to make it that narrow.
Maybe it was right 1
9 to make it that narrow.
10 !
But the commission says to a licensing board, i
11 I
here is your job.
Do X, Y, and Z.
Can the licensing board l
12 End T.
3 go beyond that?
I I
13 14 15 16 17 18 19 l
i 20 l
l 21 l
22 23 24 A,.
va! Pleporters, Inc.
25 ;
i i
t e
i 42 CR1618 1
MR. BANCROFT:
No, but the Licensing Board
_ge 4 2
can address questions which would apply.
If you look at david 1 3
the questions that were stated --
i 4 i MR. FARRAR:
Let's take this st?p by step.
So 5
you agree, if we can't find it in the Commission's order, o
express or implied, then the Licensing Board was right?
7 MR. BANCROFT:
Yes.
8 MR. FARRAR:
It was not expressed.
9 MR. BANCROFT:
That's right.
10 '
CHAIRMAN ROSENTHAL:
Okay, where do you find the.
11 implication?
12 MR. BANCROFT:
The whole discussion that you had 13 with Mr. Reynolds was likewise not expressly contained in i
14 the Board's order.
The three questions that were stated 15 were:
was the investigation refused --
16 MR. FARRAR:
That's not implied in that one.
I l
MR. BANCROFT:
Should the construction permit 17 I
18 be suspended until the investigation is allowed;
- and, 19 I should the investigation be postponed pending the grievance 20 procedure?
21 CHAIRMAN ROSENTHAL:
Which of those three issues 22 contains, in your judgment, the implication that the licensing I
l board was free to go on to consider whether the Commission 23 24 f had the authority to order the reinstatement of Mr.
Smart
-.,.-...., e 25 l or it's to be determined that idsmissal was a retaliatory i
43 l I
'd2 measure?
i MR. BANCROFT:
Before I answer your question, I
,!1
~
l just wanted to say that the discretion of the authority of 4
the NRC to conduct the investigation must have arisen 5
by implication in one of those questions; I assume the 6
second one.
7 CHAIRMAN ROSENTHAL:
Maybe it did; maybe it 8
didn't.
But this is an entirely different question that 9
you're trying to bring into the proceeding by way of l
10 1 implication.
And I would be interested to know precisely 11 where you find that implication.
12 MR. BANCROFT:
I wouldn't find it in the three 13 questions that were asked, but in the statement of the 14 purposes of the investigation.
15 i CHAIRMAN ROSENTHA :
But the Commission was very 16 specific.
They said:
"The.: sues before the Atomic Safety 17 and Licensing Board to be cc aldered and be decided shall 18 be" one, two, and three.
19 l MR. FARRAR:
Stating the purposes; they didn't
'O state them as the Commission's own purposes.
They stated i
21 i that the staff gave these as the purposes, and then they went l
22 di on to state them.
l<
l 23 I t i:
MR. BANCROFT:
Well --
ll 24 ::
Ai
- st Reporters, Inc.
x il
~~ l! reallv in the four corners of the Commission's statement of ti i
I
44
'd3 whm the issues are?
l I
2 MR. BANCROFT:
I can only ask did the Commission 3
j ask the Licensing Board and the Appeal Board to consider the 4
I authority of the NRC to conduct the investigation?
5 MR. FARRAR:
That may be the right track; is 6
the question, issue one, everyone agrees?
7 MR. BANCROFT:
The answer is yes.
8 MR. FARRAR:
The investigation was thwarted or 9
denied.
10 Then, number two, should you suspend the
'l l construction permits, turns in large measure on whether 1
12 the investigation was authorized.
13 Obviously, if the investigation wasn't authorized, 14 then you don't suspend the construction permits.
So, I take 15 it you have to tie your claim somehow into the authorization 16 i
for the invesgiation.
Is there any way that you can do that?
j 17 i
CHAIRMAN ROSENTHAL:
Bearing in mind that the i
18 second question is in terms of whether the construction 19 permit should be suspended, not whether certain other l
20 l
action should be taken, if the investigation is conducted i
21 and leads to a particular conclusion.
l 22
. MR. FARRAR:
Let me give you a hypothetical, Mr. Bancroft.
If the Commission has the authority to reinstate 24 workers who it finds, as may or may not be in this case, whom 4
4,r.i s.conen. ine..
1 25 it finds were fired for retaliatory purposes, would that i
4
45 i
I e'
rid 4 justify the investigation?
2 MR. BANCROFT:
Yes, I think that that is a f
3' i
broader classification.
Certainly, if it has the authority i
4 i
to order the reinstatement of a worker who was fired for j
5 retaliatory reasons, it has to conduct an investigation 6
first as a necessary part of that.
MR. FARRAR:
Then if we decided the cuestion you'd 8
like us to decide, that would go a long way, if we decided 9
I it in your favor.
i Wouldn't that go a long way to deciding the l
10 11 question of question number two because the predicate for 12 question number two, should the perr.its be suspended, I think 3
we agreed was, was the investigation authorized.
14 Is the investigation authorized if they have the i
i 15 authority to reinstate the worker?
I MR. BANCROFT:
Yes.
I would ask --
MR. FARRAR:
Is that link too tenuous?
18 MR. BANCROFT:
I would ask in considering 19 I
this narrow question of whether the investication can be i
20 conducted, what is the purpose of the investigation.
If i
21 the purpose is to find out whether the safety functions of 22 the NRC are being impaired by closing off their access to 23 t
work resources.
24 MR. FARRAR:
Suppose we concluded they couldn't e
.w.i n.conm. inc. ;
2S i do anything about that?
What good is an investigation that l
l I
46 l
i I
6
'd5 says, gee, we found all these te_rible things, but there's 2
nothing we can do about it?
l MR. BANCROFT:
That's the point I was trying to 4
make; the --
l t
MR. FARRAR:
Let me follow that up.
You never 6
got to finish answering me on whether this cac-was moot 7
as far as Mr. Smart was concerned, again, assuming that he's 8
I being given everything the arbitrator ordered.
j i
9 l
MR. BANCROFT:
Which is not the case; but you're i
10 !
l asking that as a hypothetical.
In that case, it would only i
11 be the reason for the Appeal Board to decide the question, is j
i for its concern for the chilling effect anithe appearance 13 given to other workers at the Callaway site who see the 14 example of William Smart.
l 15 Accounts were given that he was promised protection 16 by the NRC.
Then the NRC staff in the course of these l
proceedings --
18 CHAIRMAN ROSENTHAL:
The stipulated fact is that 19 was given --
20 MR. FARRAR:
Before we go off on that, could I 21 follow up on this?
Is that you're saying, you're conceding 22 it is moot as far as Mr..
Smart is concerned, but it's not 23 moot as far as the NRC staff is concerned?
24 l
MR. BANCROFT:
It would be moot as far as Mr. Smart Ac ieral Reporters, Inc.
25 i i
was concerned for the discrimination that he suffered last I
I 47 !
l I
1 c
'd6 year, but it is still of concern to him if we want to I
i' 2
take Mr. Smart as a representative of the workers who are 31 I
still~ working at the Callaway plant.
4 i
MR. FARRAR:
Speaking of today or tomorrow?
l, 5
MR. BANCROFT:
- Yes, Despite the passage of the 6
new Section 210, the NRC and the NRC staff are the ones 7
whom the workers have to deal with, and it's important 8
for them to know that whatever the Department of Labor may 9
do in the future -- and that is still an untried question 10 mark -- the Department of Labor hasn't done anything yet i
i 11 to show its presence that that statute exists.
12 CHAIRMAN ROSENTHAL:
Are you suggesting that 13 the Department of Labor isn't going to carry out the 14 statutory mandate?
It clearly gives the employees a 15 remedy, doesn't it' i
16 I
MR. BANCROFT:
Yes, but from the point of view i
17 l
of Mr. Smart and other workers who are asked to approach the 18 NRC and it's the NRC inspectors who are around all the time i
19 l
and have the general regulatory authority over the licensee.
j i
20 The workers would like to know --
21 CHAIRMAN ROSENTHAL:
I'm sure the workers would i
'2 like to know a lot of things.
I still don't see why it would not, again, on the assumption that Mr. Smart has been 24 i w.i nwormi, ine. l adequately taken care of, an assumption, which I grant you I
i 25 !
say is not the case.
The record doesn't indicate one way or l
I 48 i
I i
1
- id7 the other.
2 i
But on that assumption, why isn't it appropriate 3
l to wait until the Department of Labor mechanism comes into t
s full force and effect for determining whether it is necessary l
t for an advisory opinion by an adjudicatory tribunal of the 6
Commission on the Commission's powers in that area?
7 MR. BANCROFT:
Just because the stated position i
8 I
of the staff --
l 9
I CHAIRMAN ROSENTHAL:
The stated position of the j
t 10 i staff -- and again, I don't want at all to deprecate I
11 l
Mr. Murra
's importance in the scheme of things around the 12 Nuclear Regulatory Commission -- but I haven't seen a 13 regulation yet that enables him to speak generically on l
14 I
matters of this kind.
I MR. FARRAR:
There is a regulation, I believe, 16 that says only the general counsel can.
l 17 CHAIRMAN ROSENTHAL:
And Mr. Murray, unless I 18 am mistaken, has not as yet been clothed or annointed in 3
19 that position, and he represented the staff, and he could, j
20 l
I dare say, aind the staff insofar as this particular i
i proceeding is concerned.
22 But he cannot bind the Commission on any generic 23 position.
24 MR. BANCROFT:
I assume that as counsel for the e,
-mi n. corms, inc.
25 staff, he was taking the staff's posi. ion.
l I
l 1
49l i
d'"id8 I
MR. FARRAR:
But the staff, like us, works for I
2 the benefit of the audience.
The staff is not the 3
i Commission.
The staff is an arm of the Commission.
MR. BANCROFT:
Assume with me that the NRC staff i
5 has this authority to protect, to take action, to order 6
the reinstatement of a worker; unless'the staff is willing 7
to exercise that authority --
8 MR. FARRAR:
No, Mr. Murray says we don't have 9
that authority.
Let's say he's dead wrong; the general I
10 1 counsel or the Commission, either prompted by you or 11 I
somebody esse or whatever, can say to Mr. Murray:
"Mr. Murray,i 12 in fact, you're not doing your job properly.
We think you 13 dohave that authority.
Please go exercise it."
I#
And he's then required to do it.
15 MR. BANCROFT:
Excuse me.
How is he required to 16 do it?
Just because Bill Smart says --
II e
MR. FARRAR:
Because he works for the Commission.
18 It's Mr. Sal: man's suggestion that somebody get the message 19 I
to the general counsel.
You ca' do it by letter and ask i
r 20 him for a ruling.
You have a clit7t who was injured, you 21
- say, by Mr. Murray's claim or Mr. Murray's statement that 22 the staff has no authority to protect him.
23 That bothers you in this case, and it'a dangerous 24 for the future.
Please, Mr. General Counsel, would you 4
m,.i n evners. w.,
t 25' give us a ruling.
I assume to will either get or not get i
l 50 i i
c d9 a ruling, j
I 2
j If you get one, it will be binding on Mr. Murray 3{
and on the rest of us.
4 MR. BANCROFT:
And if I don't?
I 5
CHAIRMAN ROSENTHAL:
And if you don't we'll see 1
6 where we are.
There's a lot of, it seems to me, there's 7
a lot of speculation underlying your insistence that we 8
consider this.
9 Let me ask you another question:
what is j
i Mr. Smart's standing to assert the interests of other l
10 i t
workmen?
Is this a class action?
12 MR. BANCROFT:
NO, it'is not a class action.
13 His standing is just that he's a worker who is now working 14 at a nuclear power plant and considering whether or not i
15 he should go through this ordeal again by bringing information i
16 to the NRC.
j 17 CHAIRMAN ROSENTHAL:
I don't see how, again, 18 on the assumption that Mr. Farrar asked you to make, which 19 is that he's been in the vernacular made whole; what i
20 difference is it whether he was made whole one way or the 21 other.
22
,He's been made whole, and I don't see how he, 23 as opposed to these hypothetical other workmen --
24 MR. BANCROFT:
I would say that as an intervenor
,,,g,,,,,,,,,
25 party to this proceeding, the administrative proceedings of l
l i
l 51 c'
d10 the Nuclear Regulatory Commission are not as strictly l
2 adversarial with each party representing only his own 3l interests.
But the Appeal Board --
t 4
i CHAIRMAN ROSENTHAL In order to intervene, did l
5 Mr. Smart have to assert a personal interest in the 6
outcome of the proceedings?
Hasn' t the Commission indicated 7
that in terms of intervention as a matter of right, 8
judicial principles of standing govern, which include 9
injury, in fact.
10 I Now, doesn't it follow from that that when the 11 individual is admitted to the proceeding that he is confined 12 to asserting his own interests?
13 MR. BANCROFT:
I don't think that last one 14 follows.
15 CHAIRMAN ROSENTHAL:
Why not?
16 MR. BANCROFT:
Once he is in the proceeding, he 17 i
can raise the -- he can in fact raise the public interest i
18 and the interest of the Nuclear Regulatory Commission in 1
19
'l pursuit of the public interest to take the actions necessa.y l
i 20 l
to counteract the effects of the statements that there's 1
21 I
nothing that the NRC can do for a fired worker, j
22
.Ajyd that is having an effect.
l 23 I
CHAIRMAN ROSENTHAL:
I don't think he_could take any 24 action, but the action that the NRC is being asked to take er.i n.oonm. inc.1 n
25 l i
is to determine that there's authority within the Commission
1 52 I
- dll to order any reinstatement of Mr. Smart, and Mr. Smart's i
2 l
l already been reinstated.
I 3
j We can't ask for action pertaining to himself, 4
which in the context of himself is academic.
l 5
MR. BANCROFT:
You come back to the statement 6
that was originally made as a hypothetical.
7 CHAIRMAN ROSENTHAL I come back with a hypothetical 8
because we don't have anything here to es ablish that that 9
I hypothetical is wrong.
i 10 !
Now, we've been informed that maybe that was off l
11 the record as well, that the arbitrator had ordered Smart 12 restored with back pay.
You suggested earlier -- at least 13 as you interpret it -- that order called for his reinstatement 14 I
to his former position without loss of seniority, et cetera.
l i
15 i
Then what we have here is a failure on the part of Daniel 16 I
to comply with the arbitrator's award.
j Now, that may be so or that may not be so.
18 MR. SALZMAN:
If I'm correct, you were the first 19 one to inform us of Mr. Smart's reinstatement.
20 MR. BANCROFT:
I did.
l 21 CHAIRMAN ROSENTHAL:
And it seems to me that at this point.we have no record basis for assuming that 23 the arbitrator's award which is presumably a matter of 24 public record of which we can take official notice, that e
m,,.i a,pon,,,, w.
25 I award was not complied with.
I
I 53 1
I c
idl2 MR. SALZMAN:
And it was judicially enforceable I
2 too.
i 3
MR. BANCROFT:
By Mr. Smart's union.
i MR. SALZMAN:
Or Mr. Smart?
5 MR. BANCROFT:
I'm not sure at this point about 6
Mr. Smart.
7 CHAIRMAN ROSENTHAL:
All that we can take official 0
notice of now is that there was an arbitrator's award that 9
called for Mr. Smart's restoration to his former position l
10 !
without loss of seniority, in other words', to make Mr. Smart I
11 whole.
12 Now, if in fact that's not the case, it seems to 13 me that to avoid mootness, you have to get that before
'4 us in some proper form, unless we were to agree with you that j
15 I
even if Mr. Smart has been made whole, nonetheless, the i
0 1
matter should not be treated as moot.
17 And I can't speak for my two colleagues on that, 18 but I can tell you you have an uphill road insofar as I'm 19 1
concerned, j
l 0
MR. BANCROFT:
As I understand it, the Licensing l
21 Board and Appeal Boards can take matters which are affecting
'2 the NRC's function on their own whether or not William l
l 23 Smart is argued in the matter.
24 If you are aware of a situation where the I
25 I l
example that has been made of William Smart with the t
l 54 i c'
'.dl 3 I
promises that were made to him --
l 2
CHAIRMAN ROSENTHAL:
The promises that were 3
made to him are also not part of the record.
t MR. FARRAR:
I have to apologize to the Chairman 5
because I interrupted him 10 minutes ago to ask about that.
6 CHAIRMAN ROSENTHAL:
That's the dangers.
I forgot 7
the question, which I suppose is some indication that they're O
not that important.
9 MR. FARRAR:
I thought it was.
What are we to do i
10 I with these promises that are not part of the stipulated facts?
12 Mr. Reynolds, none of his people would have b'een 13 there, so he has no way of denying them or admitting them.
Id You've thrown them into some briefs, and I'll ask Mr. Murray 15 about them.
From your point of view, what can we do with j
16 the fact that you've said there were some promises?
I 37 end 4 18 i
19 i
20 i
22 l
23 24 A
- eral Reporters. Inc.
25 j i
CR1618 pv DAV
- 5 55 '
ll MR. BANCROFT:
That is not part of the record, and 2 h it is not part of the stipulated facts, so you can'.t rely on i
3 that fact.
l 4'
MR. FARRAR:
Isn't that crucial?
5 MR. BANCROFT:
No.
6 MR. FARRAR:
Assumi.ng this case is otherwise moot 7
now, I'm not saying it is mcot. We can mumble something about it 8
in our opinion, but we usually want to have a good reason to go '
9 ahead and do that.
10 1 (Laughter.)
II MR. FARRAR:
But if you can't say to me that the I
12 equity that you r man had going for you might have induced me to 13 reach this question, even though it might in a court of law be 14 considered moot.
15 CHAIRMAN ROSENTHAL:
Assuming it was in the Commis-16,sion's Notice of Hearing.
17 l MR. FARRAR:
Even though it might be moot in a court 18 of law, I might have been induced to reach it because you said 19 your man sat in a room, the inspectors promised him that if he'd 20 tell them what was going on out there they would protect his job.
21 Now, whether that happened is pretty crucial to me in 22 deciding whether this man has a claim on our time and resources 23 l to go ahead and decide the question of the Commission's authcrity.
24 Mr. Reynolds is absolutely correct -- I think he is Ace
- a! Reporters, Inc.
25 absolutely correct.
Is he correct that this is not in the
pv2 56 l 1
record in a way that we can take cognizance of it?
2
. MR. B ANCROFT :
Yes, he is correct.
And the thing 3
that you can take cognizance of is that from the point of view 4
of Mr. Smart in the future, and other workers looking at his 5
case, the same publicity that was given to Mr. Murray 's state-6 ment that there was nothing that the NRC could do for Mr. Smart,j i
7 the promise that was made to Mr. Smart was reported in the news !
8 papers by the reporter who was present at the meeting.
9 MR. FARRAR:
If this were an evidentiary hearing, of 10 I course, Mr. Reynolds would be up now, of course, saying that Il that's no better, either.
12 MR. BANCROFT:
It is,from the point of view not that 13 the truth that the promises were made, but to other workers who 14 were considering on relying on assurances by the NRC of confi-15 dentiality.
16 MR. FARRAR:
Okay, I will agree with you.
17 Well, let's assume we can take cognizance of 18 Mr. Murray's remarks.
Mr. Reynolds may have something to say 19 about that.
But Mr. Murray says we can' t help.these people.
He 20 doesn' t say -- I don' t know if he said whether or not there was 21 a promise made, but he says we can't get these people reinstated.
22 Is that reason enough, in this case, for us to say, 23
" Wait, there's a serious problem.
There is something we had 24 better write something about."
If no promises were made to At eral Reporters, Inc.
25 j Mr. Smart, doesn't bringing us into this facet of the. case depend, I
pv3 57 l
l 1
from an equitable point of view, on whether the promises were 2
made?
i 3i Mr. Murray is just sitting there saying generally we I
4 don't prot ct these people.
Maybe that's a point for a rule-5 making.
But doesn't this case, our decision in this case,. turn !
l 6
on promises that we have no record of?
7 MR. BANCROFT:
The importance, from the point of t
8 viewoftheNuclearRegulatoryCommission,ofmakingthisrulingf i
9 on its authority is not the individual case of Mr. Smart.
I i
10 I agree that, from the point of view of your allocation of your 11 time and resources, the equities of an individual are important.'
i 12 But the larger issue that you have to address is:
Is there.a 13 situation out at the Calloway plant that may be dangerous 14 because of the perception of workers there that the NRC can't be 15 relied on?
It's a question of the credibility of the NRC.
16 MR. SALZMAN :
Doesn't that depend upon evidence?
And 17 there is the problem:
There isn't any evidence in this case.
18 I can presume there are dangerous situations anywhere.
19 People see all sorts of horrible things that other people poo-poo 20 and say there's nothing to it.
But in any sort of administra-21 tive board you must rely on the record and, aside from this one 22 incident that's covered by the stipulated facts, I see no evi-23 dence of which we can take cognizance that any such situation 24 exists.
At 4eret Reporters, Inc.
25 i Remember, the word is " evidence."
You are an attorney,
pv4 58 l
l 1
and you know what evidence is.
I don't see any evidence that 2
such a situation exists.
I do not know that it's in my authority 3l to say that " evidence-shrevidence" will decide anything.
4 MR. BANCROFT:
As evidence of the perception of the 5
workers at the plant, I would be happy tc submit the newspaper. '
l 6
MR. SALZMAN:
No, no, no.
Your time for submitting 7
is over, Mr. Bancroft.
What happened in the trial is finished. l s
B You were the responsible attorney.
You handled it as you saw l
9 fit.
And at the tbn e you thought that the best way to proceed i
10 was to join in the stipulation.
That eliminated the evidence.
Il This is an appellative hearing.
We must decide on 12 the basis of the record we have before the licensing board.
13 There is no evidence in this record, am I correct, that any such 14 perceptions exist?
There certainly is none contained in Me 15 stipulation of fact.
16 MR. BANCROFT:
Evidence as to the promises made.
17 MR. SALZMAN:
Evidence as to the promises or evidence 18 as to the concern by other workers.
It would have been easy 19 enough, I would presume, if you would come forward with appropri-20 ate affidavits or request that these things be amended or added 21 to the stipulation or disagreed with the stipulation at the 22 trial.
But none of these things did you do, Mr. Bancroft.
And 23 we are bound to decide the case on the four corners of the 24 h record.
Ae. -
rei neoo,an. ine. l 1
25 l MR. BANCROFT:
The cases involving chilling effects l
pv5 59 I
1 in First Amendment cases, the questions of chilling effects and !
2 what not, are always matters of inference.
3l MR. SALZMAN:
What authority do you have for that l
zr 1
4 statement, sir?
I mean, I don' t know of any such authority.
5 MR. BANCROFT:
In First Amendment cases where they're 6
talking about -- or where the courts are talking about voidness 7
or vagueness in questions, there are no evidentiary hearings as 8
to will you be chilled from doing this again in the future?
9 MR. FARRAR:
How about the List case years ago?
10 I NAACP versus Button.
It's been a long time since I have read II it, but that went off, if I remember right, not chilling List 12 because then people would be afraid to join.
Wac that the fear 13 of joining proven in the trial, or was that the Supreme Court 14 assuming that that was human nature?
15 MR. BANCROFT:
I don't know, in that case.
But I 16 it is my recollection from reading many of those cases that 17 the chilling effect was not a matter of proof.
18 CHAIRMAN ROSENTRAL:
Well, it might be a matter of 19 proof if it's being used to avoid a claim of mootness.
It may 20 be for some purposes that this chilling effect is being presumed 21 or is justifiably presumed.
That doesn't necessarily mean that 22 it's presumed for all purposes; does it?
I mean, there is, as 23 Mr. Farrar suggested, it seems to me, an appeal to equity here, 24 when you're asking us to undertake a consideration of a question A-
- al Rooortets, Inc,,
25 l in the context of your client, when the record before us suggests
pv6 60 l
1 that your client has already gotten a relief which you would have l
2 us declare he's entitled to.
You're asking us to utilize our i
3 time, which is reasonably precious, to pursue this question.
4 It seems to us that there ought to be some kind of 5
record foundation for the special considerations that yo u sug-6 gest warrant this.
7 MR. BANCROFT:
In answer to Mr. Salzman's concern i
8 about the lack of proof about the perceptions of other workers 9
as to the reliability of the NRC, what I am asking the Appeal 10 ' Board to presume is the fact that Wil.'iam Smart was fired, which 11 is of record, af ter he gave information to the NRC, would be i
i 12 widely known among the workers at the Calloway plant.
i 13 MR. SALZMAN:
Would the reason for his reinstatement i l
14 be equally widely known?
15 MR. BANCROFT:
The reasons for his reinstatement were 16 from the grievance proceeding, so that doesn't do anything to 17 increase --
18 MR. SALZMAN:
Step back from this case for one minute.
19 I find it, with all deference, a little difficult to see all these 20 union workers trembling for their jobs because the NRC. cannot 21 protec t them.
22 Are you aware of how long people have been building 23 f atomic plants?
Years.
The NRC and its predecessor, the AEC, l
24 hhave been supervising their construction for a long time.
Nothing Ac val Reporters, Inc.
25lyouoranyoneelsehastoldmeevensuggeststhatoneinstance i
pv7 61 l i
i 1
has arisen in which the NRC has been called upon to step in to 2
protect workmen.
I 3,
Now, given that track record, how can we be free to i
4 presume that the workmen at Calloway were all really concerned 5
about protection of the NRC?
I would assume the.. presumption, if i
6 any one is to be drawn, is that nobody really thought the NRC i
7 would do anything.
I mean, that is certainly an equal if not 8
much stronger presumption in this case, and isn't that really i
9 the reason why we have to have some evidence?
The NRC hasn't, 10 1 for 20 years --
11 MR. BANCROFT:
But we don't have any other cases.
12 MR. SALZMAN:
I see.
This is the first situation in '
13 which any employer has ever fired anybody in the retaliatory --
14 MR. BANCROFT:
If you are referring to the absence of' 15 instances that workers know --
16 MR. SALZMAN:
Inferences that you would have us draw 17 are hardly compelled by the record, Mr. Bancroft.
If you wish us 18 to take in what we do know, we do know that the NRC has not in 19 the past generally intervened in these matters.
Therefore, any 20, perception of the workers is equally logical, if not more so, 21 that the workers presume that the NRC are not going to inter-22 lveneinthisparticularinstance.
1
~
23 h MR. BANCROFT:
They might or might not assume that f
24 ! a priori.
But after an instance has arisen where a worker was At
- ral Reporters, Inc.
25 l fired and af ter going to the NRC and then the NRC staff announces
pv8 i
6 21 l
1 that it can do nothing for him --
2 MR. SALZMAN:
Fell, that's what would happen with the case before l
3 hand. It's never done it beforehand, and now it says it isn't going to do anythina.
How does that change the status quo?
4 5
MR. BANCROFT:
The case beforehand was that it was i
6 untested.
This is the first instance, a case of first impres-l 7
sion.
I 8
MR. SALZMAN:
It just strikes me as anomalous to ask 9
us to draw that any people, without any evidence, are relying 10 I upon the NRC to guard their jobs when, for 20 years,.the NRC II hasn't done so and no incident has ever arisen.
If anything, Il 12 suspect the inference it draws is that their suspicion is con-13 firmed by these statements rather than that something else is i
Id checked.
15 My point is not whether these things are right or 16 wrong.
It's equally logical to draw the inference the other way.
17 That being so, I think we're precluded from drawing the inference 18 you want in the absence of some evidence.
l9 MR. BANCROFT:
The question here is not that you have 20 to conclude as a matter of fact and proof that there is a chill -
21 ing effect at Calloway; it's a question of whether your sense is' 22 that that is plausible and that it's probable enough that you 23 should take the time to address this issue.
24 MR. SALZMAN:
I suggest that reasonable men might At erst Reoorters, Inc.
25 i differ on whether that's a plausible inference, is what I am
pv9 t
63{
t 1
suggesting.
2 CHAIRMAN ROSENTHAL:
Your time is expired.
i 3l MR. FARRAR:
Let me ask,Mr. Bancroft, we've talked I
4 here about the standing of Mr. Smart and whether we have to wait 5
for the grievance procedure; under the terms of the contract I
6 Mr. Smart works under, is he entitled to ask the NRC staff to 7
reinstate him in his job?
Now, I grant that they're not bound 8
by the grievance procedure.
I assume they have.the authority 9
someplace else to take steps they believe are necessary.
But 10 suppose Mr. Smart goes to them and says, " Hey, I just got fired 11 because I think it's retaliatory.
Help me get my job back."
12 Can he do that under the grievance proceeding?
13 MR. BANCROFT:
I am not sure what your question is.
14 MR. FARRAR:
It's binding on the er npany, it's bind-15 ing on the union, and it's binding on him.
16 MR. BANCROFT:
Is your question whether he can do 17 both?
In other words, if he invokes his grievance?
18 MR. FARRAR:
No. Whether or not he invokes his 19 grievance, can the company or the union claim " foul" if he runs 20 to the staff?
21 MR. BANCROFT:
I think that the safety significance 22 of the Atomic Energy Act overrides, even if there were a pro-23 vision of the collective-bargaining contract.
24 !
CHAIRMAN ROSENTHAL:
Why isn't he bound if there is e,.i Reporters, Inc. l A
25 l a contract extant between the union and the company and he, under i
pv10 1
64 l I
conventional principles of law, is bound by that contract?
In i
2 other words, he has a contractual obligation to pursue one route 1
3 and one route alone, and that's the grievance procedure under 4
the collective-bargaining agreement.
How can he come to the 5
NRC and say, "I am entitled to breach my contract'.'?
6 MR. BANCROFT:
You see, I don't think that the 7
grievance mechanism is mandatory that a worker with a grievance '-
8 CHAIRMAN ROSENTHAL:
It isn't a question of mandatory..
9 Does it allow him, as a matter of contract, does it allow him 10 to say, "I am going to ignore the grievance p;;.cedure that's II established under the collective-bargaining agreement, and, in 12 lieu thereof, come to the Nuclear Regulatory Commission and ask 13 them."
14 MR. CANCROFT :
I think it does allow that.
I think 15 the only thing he gives up is the right to strike.
16 CHAIRMAN ROSENTHAL:
And you say that is a matter of 17 labor law or contract, reading the contract?
18 MR. FARRAR:
Now, I think we saw the contract at one 19 point.
Maybe we didn't.
We've seen a number in the past.
20 You're saying it just doesn't say that the remedy is binding 21 once invoked.
You're saying that's all it says, this particular 22 I contract, the remedy is binding once invoked, or the procedure l
23 is binding once invoked; it gives the employee the option to 2d j pursue another route?
At
-re6 Reporte,s, Inc.
25 i
MR. B ANCROFT :
Yes.
pvll 65 i
1 MR. FARRAR:
Mr. Reynolds, can you get us the con-i 2
tract?
i 3l MR. REYNOLDS:
I am sure I can.
4 Do you have the contract, a copy of it here, in 5
i 6
MR. MURRAY:
I have got a new copy, the relevant por-7 tions, in one of the briefs, i
8 MR. REYNOLDS:
That was just the grievance procedure.
t 9
MR. MURRAY:
Oh, sorry.
10 1 MR. REYNOLDS:
I think I can ge t it.
l Il CHAIRMAN ROSEHTHAL:
Your time is expired, I
I2 Mr. Bancroft.
i I
13 I think we will now follow our customary procedure i
14 to take a 10-minute break, in order, among other things, to give!
15 the reporter,who works perhaps harder than anyone else, the 16 opportunity to take a welcome respite.
i 17 We will resume at quarter after.
2nd#5 18 (Brief recess.)
19 20 1
21 22 1
23 l 24 A
aeret Reporters Inc.
25 [
l 1
66 i
CR 1618 HOFFMAN t-6 mte 1 ORAL ARGUMENT ON BEHALF OF THE NRC STAFF j
,i 2
BY MR. MURRAY:
3 CHAIRMAN ROSENTHAL:
Please be seated.
4 All right, Mr. Murray, we will now hear from you.
I 3l MR. PURRAY:
Thank you, i
l 6l Mr. Chairman, and may it please the Board:
The utility here may think that what's involved is a i
I 8
labor dispute or an attempt bi the NRC to exercise watchdog i
9j authority over labor matters.
But I respectfully submit daat l
jo at the heart of this case is the reach of the investigatory 1
11 authority of the Nuclear Regulatory Commission, the authority I
i 12 to protect public health and safety by investigating whether i
13 an individual was fired because he came to us with safety
!I 14 [ information.
Il j3 Now, I submit that there are at least half a dozen U
a 16 :i good reasons why we have the authority to make the investigation; e
I!
"here in cuestion.
,g g Nurber one, we 're dealing with a concededly broad 19 ; statute, a s tatute that says, if I may paraphrase it, you may 1
20 make any investigation you wish in the interes t of the public 21 health and safety.
It doesn ' t say, unless there 's a labor 22 dirpute also concoritantly involved.
It says you may make any 23 ![ investigation you wish, so long as the public health and safety Do 24 q interest is involved.
Ac, rei Reporters. Inc.
25 y I've sat here this morning.
I've listened to you r
I:
67 mte 2 i
i 1
gentlemen question the previous counsel.
You know that a health:
- l 2i and safety purpose us behind this investigation.
It's set forth.
3l in the stipulation.
It's set forth in the order to show cause.
4 Beyond that, the statute Chat we deal with has a clear health I
5 and safety purpose.
That 's why we ' re here,
i 6l We're not interested in the labor dispute qua labor l
I l
~
7 dispute; we're interested in the impact on the public health and 8
safety of a licensee of ours going around and firing people for '
9 giving us safety information.
10 '
MR. FARRAR:
I'm sorry, I was trying to follow up 11 your las t question.
You say it's set forth in the stipulation 12 that there 's a safety purpose.
Is that set forth that the 13 company agrees to that?
I 14 I
!!R. MURRAY:
I confess to being a little bit disingen-l!
li j uous on that point.
Il 16 MR. FARRAR:
The company agrees that you said it had 0
[ a safety purpose.
R ij 11R. MURRAY:
That's correct.
And until today, n
'I incidentally, this was the first time I heard a clear statement 20 from the licensee that it didn't have a safety purpose.
All I I
21 heard was a labor dispute was involved and nothing else, until 22 today, beyond the health and safety purpose of the statute.
23,
These types of statutes are recuired by the courts 24 9 to be given a liberal construction.
The Public Service wai Reporters. Inc. l A,
25 Company of IIew Hampshire case requires this particular g
u
68 mte 3 l
l 1
s tatute be given a liberal cons truction.
2 l!
Two other reasons repose in the notions of common d
3 [ sense and sound policy.
It simply doesn 't make common sense i
4l to suppose that the Congress of the United States, in delegating 5
authority to protect the public health and safety from the 6
potential hazards of nuclear power, in delegating that autho-7 rity, said you can do it except where a labor dispute is 8
involved.
9 CHAIRMAN ROSENTHAL:
But Mr. Reynolds disputes that 10 i
there is in fact a safety link.
I don't think he disagrees II with you that if 'in fact there were a clearly discernible 12 safety link,. that the Commission would have the authority to I
i 13 inves tigate it under its broad statutory authority in the area i
f of the preservation of the public health and safety, the Id ii li f protection of the public health and safety, i
16 j MR. *1URRAY:
Yes, Mr. Chairman, ir CIIAIRMAN ROSENTHAL:
He says that link doesn't exist.
is MR. MURRAY:
I heard that expressed for the first
'9 I time this morning explicitly.
20 CHAIRMAU ROSEMTIIAL:
Whether you heard it for the 21 first time this morning or you had heard it on Inany prior 22 i
occasions, what's your response to it?
l1 23 MR. MURRAY:
My response to it is nonsense, that it's 1
24 clear that we have a health and safety purpose here.
If a A
w Reporms, Inc.
25 ;
licensee of the Nuclear Pegulatory Commission. a licensee I
69 i
mte 4 t
1 authorized to construct a nuclear power plant, can go around i
2 j! firing whistle-blowers, workers who come to the NRC with ll information concerning what they perceive to be, at leas t, 3
- y potential safety defects -- if they can go around firing people 5'
for that and we knew about it before the license was issued, 6
I respectfully submit we would not have issued the license.
7 CHAIR!'AN ROSENTHAL:
Do you see a difference between l
8 what appears, on the face, at least, to be an isolated instance ;
9 and what appears to be a pattern?
In other words, if it came 10 !
to the NRC inspector's attention that there had been a number f
11 of people that had been fired by this contractor and, lo and 12 behold, it also appeared that each of those persons at one time 13 or another had been in conversation with the inspectors over 14 alleged construction deficiencies, that might establish a 15 -
pattern that would give the inspectors some reason to wish to l
16 get underneath the causes of dismissal, the assigned causes of
"[ dismissal.
i2f But as far as the stipulation indicates here, this 19 l is the one and only occasion.
I 20 !
MR. MURRAY:
It's not in the s tipulation, but I I
21 would concede it's the only one that 's gone to litigation that 22,
I am aware of, i
i 23 I
CHAIRMAN ROSENTIUE:
The stipulation certainly does i
.I 24b not refer to any other ins tar.ces.
Ao nel Reporters, Inc.
25 j MR. MURRAY:
Right.
1 J
mte 5 70 1
i CHAIRMAN ROSENTHAL:
So perhaps by negative inference, 0
1 2 [ one could proceed on the basis that this is the first instance, F
3 at least, that's come to the intention of Inspection and I
4 Enforcement, in which an employee had been dismissed from i
5 D aniels ' employment af ter having spoken with the inspectors.
I 6I Now, do you think this makes any difference whether we're l
7' dealing in the context of a possible pattern?
i 8
MR. MURRAY:
I can see a difference, Mr. Chairman, 1
I 9!
in some respects, but not really directly relevant to this l
10 '
case.
I can see a difference in terms of how exacerbated the i
11 !
situation might be if it were a pattern, if we would view it I
i 12 with more alarm than a single ins tance, I suppose.
13 CHAIRMAN ROSENTHAL:
I'm not interested in whether 14 ! you would view it with more alarm.
I'm interested in whether li '
it makes a difference from the standpoint of your authority 16 to investigate.
t l
'7,-
MR. MURRAY:
None whatsoever.
We either have the iE h authority or we don't have the authority.
And if we ' re exer-c d f cising it for the first time or for the one-thousandth time, 1
20 i we have the authority.
I i
21 MR. SALZMAN:
Doesn't the suggestion that the 22 authority hasn't been exercised over all these years suggest 23 h that probablh you do have it and you just decided to try it c
24 d now?
At ef al AeDorters, Inc.
25 j MR. MUFRAY:
That ray be an inference you' wish to L
l t
i ete 6 71 I
draw, Mr. Salzman, but I would draw the inference that times i
4 2 p! are changing.
People are fighting back these days.
People are 4
3 !i not behaving the way they did some years ago.
N 4
I'd be inclined to say dnat you had 5'
an authority which died by lack of exercise.
6 My serious question is :
If the Commission exercises j
i the authority and has seen fit to exercise it in the connection !
7 8
of operating licenses under Section 19 of the regulations, the i
9!
Taf t-Hartley, and has not seen fit to exercise it at all with l
10 l respect to construction permits, how do you get the authority i
11 !
to investigate it?
In other words, you have specific proce-12 :
dures.
The Commission has issued rules and said, this is the I
l 13 l way our authority will be exercised, and it will be exercised i
14 !
in these circumstances.
l 15 l Isn't it arguable that the Commission has not i
ll 16,j elected to use similar authority in the operating history?
il
" j, MR. MURRAY:
I suppose you could construct a weak is argument along those lines.
The short answer, of course, is 19 that Part 19 deals with remedies, not with our authority to 20 make an investigation.
Part 19 deals with what we can do with 21 respect to the employee-employer relationship.
What we're 22 talking about in this case is the authority of the government 23 to make an investigation into whether or not circumstances li 24 O exist which cast doubt on the public health and safety.
Ao tal Ptoorters. Inc. l 25 ;j MR. SAL"MAU:
Part 19 is labeled " Inspections which H
I!
mte 7 72 i
I contain express authority to investigate."
And the normal H
e 2p rule in law is that a scecific provision takes precedence over P
3 I a general provision.
4 MR. MURRAY:
Expressio unius est exclusic alterius.
5' I'm f amiliar with it.
i 6
MR. SALZMAN:
You start with that.
And here the 1
7 Commission has said, in these circumstances you can do this,
8 and you have another set of circumstances in which the 9
Commission has chosen not to exercise its authority, or at 10 '
least so it appears.
11 MR. MURRAY:
The Commission has chosen not to 12 exercise its authority in a rulemaking context, that 's true,
i 13 If you look. at the his tory of Part 19, Mr. Salzman,.you 'll find I
I 14 ;
that it's associated with enactment of the occupational l
11 Safety and Health Act.
Under that Act, authority was given to j
16 !
various agencies to take over in part authority that OSHA would b
;. otherwise have in areas where those other agencies had juris-iE diction.
19 '
That was ' done by the AEC, and they took over the 20 jurisdiction to regulate the health and safety, the OSHA-type 21 health and safety, over uses of radiation instruments, uses of 22 actual radiation.
We would have authority at construction 23 l sites to invoke Part 19 for a radiographer who was welding pipe, 1
24 0 or something of that sort.
It just excluded, by not including, w nanm. inc. 'l 4
25 ) the more general cuestion of authority to take action in the h
h
mte 8 73 i
l interest of public health and safety at a construction site 2 ! where the radiation potential or radiation dancer is 30 years 1
3' down the pike, where if something is built into that plant, a 4
latent defect that we don't know about because the worker doesn't i
1 l
5 come forward to tell us, because he 's chilled from coming i
l 6
forward because he sees that Mr. Snart or perceives that l
t 7
Mr. Smart is fired for giving us safety information, it gets 8
built into that plant and 30 years later the thing goes up in 9
smoke.
10 l Now, those were the kind of defects that we're l
Il '
talking about getting at.
I2 l MR. SALZMAN:
May we take into consideration whether i
I 13 h workers perceive a chilling effect here?
The cuestion -- be l
1 Id I
careful how you answer that, because if you answer it yes, l
i
]c 'l aren 't we then also obliged to do what Mr. Bancroft said?
16 hl
$1R. MURRAY:
I'm not going to answer it yes, have no
-F fear.
l R ll MR. SALZMAN:
You just suggested it to me, because 6
I thought your argument was relying in part about how the 20 poor workmen are going to be chilled in their views and 21 therefore will not bring these matters to your attention.
22 l
MR. MURRAY:
We're worried about a reasonable man's I
I
'3j perception of a firing for coming to us with safety information, n
24 not how an individual workman happens to perceive it.
If we
...,..-...., n\\
25 q were to follow dnat path, if they perceived it and he was i
O i
l
mte 9 74 t
i 1
fired for a valid reason and they perceived it differently, we 2 [I would be arguing we could do something about th at, which of h2' course we can't.
4 I might say, while I'm in that area, I've been 5
quoted around here quite a bit this morning as to what I said 6l or didn 't say, and so forth and so on.
I didn't have the oppor-tunity, I suppose, to put forward the idea, which is f actual
?
8, as far as I'm concerned, that I made some remarks in the course 9l of oral argument at the trial stage in this proceeding.
I
{
l 10 would submit that Mr. Bancroft has taken those remarks wholly i
t Il i out of context.
l 12 i What I meant to say was simply that we may not be l
I i
l 13 g able to help Mr. Smart personally for this particular proceed-14,
ing.
But we sure can take action against the Licensee if we
!l h
find out that Mr. Smart was fired because he gave safety 16 inforration to NRC.
il MR. FARRAR:
Let me ask you.
Let's assume you went R g ahead with this inves tigation.
Forget the grievance procedure ti for the moment.
You went ahead with the investigation, 20 concluded Mr. Smart was fired for whistle-blowing and were I
21 ready to take action.
You could suspend the permits if you 22 had sufficient reason, say, you guys are such bad actors we i-23 !i don' t want you near us any more, that 's the end; revoke the
!l 24 0 permits.
Reporters. Inc. j O
eral 25 d That would be the worst that you could do.
- Please, c
mte 10 l
75 l1 lt I'm not in any way suggesting that those are the facts in this 2j; case.
But you would have the authority, if you could justify 1
34 it, to take that action, revoke the permits, go away, leave 1
4 the site, you cannot build this nuclear power plant.
If you 5,
can do that -- and I think no one would dispute your authority i
i i
6 l to do that -- why can' t you say:
Well, we 're worried about t
l
?! your management attitude, we're going to send some more l
l 8l inspectors out there and keep a close eye on you people, and I
9l sort of like Richard Burton and what's his name, we 're going l
10 to have a public humiliation, I forget of who.
You people 11 are going to go out there and say to the workers:
We've i
12 j changed, we shouldn't have done what we did to Mr. Smart, and i
13 it's the first step in proving it to them to make sure there t
14 d is no chilling effect around here in the future, we are going o
Il li to reinstate Mr. Smart.
t 16,
Now, why couldn't you direct them -- it 's a somewhat F
humorous example, but why couldn't you take that kind of step 42 ' to say, look, the only way to shape this job situation up is 6 ;, for you to take Mr. Smart back and tell all the employees that 20 you're doing it, too.
21 MR. MURRAY:
I'm not sure that we couldn 't.
I'm not 22 j positive thac we couldn ' t.
I hadn't researched this point H
23 because it's not involved in this case.
But I suggested the 24 reasons why we might not be able to go to the remarks of eral Reporters. Inc. j Ar 25, fe. Sal = man earlier, when he was talking about Part 19, an c
i It
mte 11 76 1
explicit statement of authority to help workers in a Part 19 2 ldl context.
3 MR. FARRAR:
That's a nice short answer to what for me is a very serious question, assuming these promises were 5'
made.
6 i MR. MURRAY:
What promises?
7 MR. FARRAR:
Okay, let me ask you about that.
Is 8 I there anything in the record to your knowledge about whether 9
in fact your inspectors made any promises to Mr. Smart?
10 l MR. ?'URRAY :
It depends on how you describe the I
i 11 record.
If you describe the record as including argumentation --
i 12 l'R. SALZMAN:
No.
13 l CHAIRMAN ROSENTHAL:
Argumentation of counsel?
l 14 fir. MURRAY:
Argumentation of counsel.
11 i CHAIPliAN ROSENTHAL:
It clearly doesn't.
i 16,
MR. MURRAY:
There is nothing whatsoever on that
!i point.
I had one nore reason --
MR. FARRAR:
On the other hand, when these claims i E g' i9 h had been floating around, you've never denied it anywhere.
20 MR. MURRAY:
If you'd like a little background, I I
I 21 happen to have called the director of the Region III.
22 MR. FARRAR:
No, Mr. Reynolds will be up if you li 23 y start th a t.
- i 24 i MR. MURRAY:
It might put the inspectors in a better ei neoorters, inc. ]
c.
25 l light, although I submit it 's not part of this proceeding.
o U
ll
mte 12 77 1
There was another reason --
S h
2 lt MR. FARRAR:
We'd better keep out of it, but wait a 3
minute.
Why do you daink, if diat 's what you said, that you 4l can 't help Mr. Smart in this proceeding?
I think you answered 5l i
me yes, there are situations in which you could recuire, as a l
6! condition of keeping the permit, that the company reinstate the !
i 7
fellow.
Why would you, in effect, throw in the towel rather I
8 l than push for that?
Mow, you might push for that and lose.
9 Mr. Reynolds may succeed in convincing us or some court that I
10 you don't have that authority.
11 Why, without even attempting to exercise it, would 12 you say, well, we can 't help Mr. Smart in this case?
13 MR. MURRAY:
There are ceveral. reasons.
Number one, 14 a grievance proceeding is going on.
He had a lot of grievance l
11 machinery there available to him, and he was exercising it.
I 16 l Number two, this is a first case of first inpression, O
PS so far as I know.
It's certainly the first time it 's been i
ic h litigated.
And considerations of fairness in the rulemaking
'9 process, Part 19's existence, all conspire --
20 MR. FARRAR:
Wait a ninute.
I don' t follow that.
21 If it's the firs t cas e, then I would say you can have an 22 arguable basis for your position.
Try it out.
If you lose j
23 h and find out you have no authority, why, you haven't lost 24 y anything.
If you win and find out you do have the authority,
-.i nworms. inc. y an 25 ] then you have it, we don' t need a rulemaking, we don' t need h
ll
mte 13 78 1
anything else.
I 2g MR. MURRAY:
You're dragging me off, of course -- and 1
31 I unders tand that -- into a policy cuestion that I'm not a;
prepared to answer.
It's not part of, really, my function.
I I
5-I will sa3 this:
that our main focus was on public 6
health and safety and how public health and safety is impacted l
i by this situation, by the apparent circumstances or the alleged 7
8 circumstances of Mr. Smart being fired because he came to us e-6 9
with safety information.
10 I
11 12 13 !
14 I n
li ]
16 s
.-i 1-t l'
19 h I
20,I t
21 l
l 22 l i
23 h n
24 ;P j
Aci eral Reporters, lec. l 25 ;l!
l'I lI il
79 618 Our interest was:
what are we going to do to l
I e
2 tape 7 protect the public health and safety from latent defects 3
david 1 being built into that plant?
And we weren't that much 4
concerned with poor Mr. Smart, as I put it at one time, for l
5 those reasons.
6 MR. FARRAR:
It may not have been the principla 7
focus, but it's a way of getting to what you just said, 8
is your principal point.
And if you say, that's not a 9
step we'll take, if our worker, you know, I might wonder about l
10 it.
Il MR. MURRA'1:
I'm not sure whether it is a step 12 we'd take or not.
It's a step we haven't taken here before.
I 13 We felt we had ample authority for.the five reasons we've 14 already given you.
There's a sixth reason.
To make the 15 investigation, and didn't need the throw-in of trying to 16 raise essentially a cuestionableissue, as Mr. Salzman 17 pointed out.
18 MR. FARRAR:
So, are you saying, then, since you I9 were thwarted at the outset of the investigation, that the l
l 20 Commission staff has made no decision on whether they would 21 push for Mr. Smart's reinstatment and will not make such l
22 a decision until they come face to face with that at the 23 end of the investigation?
24 MR. MURRAY:
I most assuredly am, Mr. Farrar.
/
Metal Reporters, Inc.
25 Most assuredly I'm saying that.
It's totally premature until l
i 80 l
1 1
I c
'd2 we make the investigation.
I I
n li MR. FARRAR:
So, it is not true -- it is i
^
3!
j not necessarily true that the staff believes it cannot help i
4 I
Mr. Smart in this case.
5 MR. MURRAY:
No, that's quite correct.
It's not 6
necessarily true.
However, with the overtaking of events 7
by the new employee protection legislation which we've 8
heard about this morning, with the reinstatement with full 9
back pay according to Mr. Smart's own papers, I don't know j
i 10 I about what's happened since then.
l 11 MR. FARRAR:
Wait a minute.
It was from your 12 brief that we got the citation of Senator Hart saying 13 the new law doesn't derogate from'your prior authority.
14 MR. MURRAY:
It says a good deal more than that.
l 15 i
MR. FARRAR:
No, no.
We've had that.
i 16 MR. MURRAY:
Importantly, it says we have 17 currently this authority.
18 MR. FARRAR:
Okay.
I can't see then how that 19 overtakes things that the new legislation --
l 20 MR. MURRAY:
It doesn't wholly overtake it.
21 MR. FARRAR:
And I can't see that th.s reinstatement!
3",
i wholly overtakes it because -- let's take my hypothetical j
23 l that I gave Mr. Bancroft.
Even if he's fully reinstated into l
24 i
his old job, there still could be a germ of an idea in his Al 4.,.i n. corms. inc.
25 mind, hey, I'm not going to go through that again.
i i
81 I
c' i.d 3 MR. MURRAY:
I put this forward for your 2
consideration, Mr. Farrar.
If the new employee protection i
3l legislation which gives plenary remedial authority to the 4
Secretary of Labor to deal with just this sort of case, it 5
doesn't require much imagination to suppose that Senator 6
Hart might have had this case in mind when he made the 7
remarks he made.
8 Certainly, it was going on at the same time, 9
i but with this legislation coming on, it pretty much fills the i
10 field.
It tells us that Congress thinks that this is about i
11 as far as we ought to go.
12 MR. FARRAR:
I don't know.
I used to have a 13 little something 'to do with labor relations, and sometimes, 14 you know, the union and the employee don't see things eye to 15 i'
eye.
The employee can't always count on the union to 16 represent only his interests as opposed to some slightly i
different interest the union might have.
18 And as_far ashthe Secretary of Labor is concerned, 19 couldn't a rational workman figure -- Commission inspectors l
20 say -- those are the guys with the muscle.
They're right in 21 on this job.
They have the power of life and death over these companies. 'You know, it's a big plus to me, says the 23 employee, to be able to look to that remedy rather than to 24 w.i n.oonen. inc. {
my grievance procedure and rather than to the Secretary of 4
25 Labor.
i
I 82 l
i 1
I de 14 I still don't see how these things have overtaken --
l 2
MR. MURRAY:
I would suppose that anything is possible, 3i l
Mr. Farrar, but we must remember that we now have something we never had before.
We have a federal statute that makes it 5
against the law for licensees of the Nuclear Regulatory 6
Commission to go around firing people for coming to us with 7
safety information, a federal statute giving full powers of redress, as least as I read the statute, to the Secretary of Labor in the event such a thing should happen.
10 !
MR. FARRAR: So, then, is this a way of saying that I
11 l
we should steer clear of this question for the time being?
12 MR. MURRAY:
Well, it is; I would just briefly 13 summarize to say that it's premature to reach it, and it's 1
14 unnecessary to reach it, and it is of course, as has been l
15 brought out in the questioning here before, wholly outside the l 16 scope of this proceeding.
i 17 I might just add this proceeding is an enforcement 18 proceeding.
This proceeding is noticed by the Commissioners 19 i
themselves, not by a Licensing Board, not by the Appeal Board. !
20 This proceeding has within it explicit, narrow issues for decision by you gentlemen.
22 MR. FARRAR:
Let's see how narrow those issues are.
23 Let's go to issue number two, whether the permit should be 24 suspended.
Now, that's a narrowly stated issue, but what's 4
a.i a. con... inc.
25 lwrong with the chain that I forged with Mr. Bancroft?
t I
83 I
id5 MR. MURRAY:
You can make that argument.
2 I
MR. FARRAR:
You can't suspend the permits unless l
3 i
the investigation was authorized, and one reason that the investigation might have been authorized was that the 5
Commission has the power to reinstate this fellow, That 6
gives them the authority to investigate, and that gives 7
them the authority to suspend the permits if the investigation i
i 0
is thwarted.
What's wrong with that argument?
i i
MR. MURRAY:
I suggest that in light of the i
11 cloud cast over that argument by Mr. Salzman's remarks, i
the six good reasons why we have the authority; we don't' 13 need to drag in some questionable reason for it.
14 MR. FARRAR:
Refresh my recollection.
I recall i
15 some clouds emanating, but not specifically.
16 MR. MURRAY:
The cloud I was referring to was 17 the expressio unius est exclusic alterius.
And I think 18 insofar as it went to the narrow point it went to is a perfect 19 i
valid point or at least is arguable.
It certainly casts a i
20 good deal of doubt over whether we without a regulation i
21 could go in there and reinstate Mr. Smart.
22 MR. FARRAR:
Now, wait a minute.
Our procedures,
{
23 cs distinguished from some other agencies, say that you can 24 do things by regulation or by order.
I'm not aware of anytt.ing e
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25 that limits your authority to only things in the health and i
I 84 l
d d6 I
safety area and only things that are already established 2
that a regulation --
3 MR. MURRAY:
I agree.
MR. FARRAR:
So, why can't you do it by order here, l and why couldn't we get to it?
l 5
1 0
MR. MURRAY:
Because the fundamental authority 7
to act by order may not be there.
The fundamental l
i 8
authority to take the action -- we can act by order if we
{
9 can act in a legal way.
10 CHAIRMAN ROSENTHAL:
That's the question.
The i
thing I thought Mr. Farrar's point was this, which was in 11 i
12 the context of the question as to whether this board or 13 the Licensing Board could decide the matter one way or the I#
other of the Commission's authority to order an employee l
15 be reinstated upon a finding that that employee had been 16 dismissed as a retaliatory measure.
Now, Mr. Farrar's suggestion, I thought, was 18 the second Commission question, the Commission said was 19 within the framework of the proceeding, was whether the O
permits should be suspended until such time as the contractor l
2I submitted to the investigation.
l 22 All right.
So the question is:
does the 23 l Commission have the authority to conduct the investigation?
24 Because if it doesn't have that authority, plainly it could A.
Se el Reporters, Inc.
25 not suspend the construction permits until the contractor l
t 85 I
id7 submitted to the investigation.
2 MR. MURRAY:
My silence is aggrievant at all times.
3 I
CHAIRMAN ROSENTHAL:
Mr. Farrar's suggestion was 4
that in determining whether the Commission had the authority l
to conduct the investigation, it might be relevant whether 6
the Commission has tha authority to order reinstatement of an 7
employee dismissed for whistle blowing because if it has that 8
i latter authority', the authority to order reinstatement, I
I 9
i then, so the argument would go, it has the authority to 10 i
suspend the permits as a sanction to require compliance with l
i 11 the investigation request.
12 That was what, if I understood Mr. Farrar -- so 13 this has nothing to do with whether -- what the answer is to the i
14 I
question in ordering the statement.
j 15 i
MR. FARRAR:
It has only to do --
I 16 MR. MURRAY:
I believe the record will show that I conceded that that would be a make way argument for the 18 proposition that we have the authority.
That would be an 19 i
argument for that proposition.
I don't think we need that i
l 20 argument.
We have six other arguments that are better, in i
21 my opinion.
22 CHAIRMAN ROSENTHAL:
So your argument, then, just 23 l so that I understand it, is that it was unnecessary in this i
24 case to reach the question of the power to order reinstatement g
,,g,,, g 25 in the context of the question of the power to investigate l
l
l 86 l
l I
vid8 because whether or not the Commission has the power to 2
order reinstatement, it does have the power to take all kinds 3
of action against the licensee, and that that power standing alone is enough to justify the position of the staff that l
5 there is authority to investigate.
6 MR. MURRAY:
You said it far better than I did, 7
Mr. Chairman.
0 CHAIRMAN ROSENTHAL:
That, I take it -- but why l
9 couldn't the Licensing Board say to you, you may think that l
10 I i
that's right, but we would like to see or examine all of the i
11 possible strings to an authority pull.
12 MR. MURRAY:
If you wish to deliver yourselves of 9.
i 13 an advisory opinion, or to give some advice to Mr. Smart, j
14 I
you can do that, but it's not only premature because we p-t haven't even made the investigation that we're trying to i
16 l
make here.
17 What this case is about is making an 18 investigation to find cut whether Mr. Smart was fired because 19 he gave us safety information.
Once we net that authority, i
20 then we'll come back and argue with you, if we have the 21 authoriti.
22 I
i MR.
l
~
SALZMAN:
It's obvious that the statute cannot 23 protect at face value.
It's true that the Commission has 24 p
cast Aroorurs,1%.
9 9
25 terms.
Do you think we could conduct or the staff could
l 87 l
I id9 conduct an investigation to determine whether or not --
I I
let's suggest the president of Union Electric Company's having 3 I satisfactory marital relationship with his wife.
4 MR. MURRAY:
Mr. Salzman, let me answer you this 5
way:
we never denied that there are limits on our antitrust 6
and environmental authority.
We haven't claimed that there 7
are no limits on our authority to protect the public health 8
and safety.
We haven't made that claim.
But we are contending that whatever the limits i
10 I are on our public health and safety investigatory authority --
and I'm not prepared to tell you what they are -- they are not 12 reached by this case.
l 13 This case clearly represents an instance where 14 I
we are attempting to make a lawful investigation into why i
15 an individual employee at a nuclear reactor construction site 16 who comes to us with stories about defects in that plant, 17 if he was fired for doing that.
18 We can make that investigation.
19 i
CHAIRMAN ROSENTHAL:
What would be the practical j
20 i
significance of the suggestion of Mr. Reynolds that at a l
1 21 bare minimum the staff should be required under the new 22 scheme of things to abide the advent of the Department of 23 Labor's inquiry into the matter in its determination?
24 MR. MURRAY:
I would think that in the normal case 4
er.i neponers. inc. i 25 ' that we would abide the advent of the Labor Department issuing
88 1
i d
id10 its determination, but there could circumstances -- and t
2 I
I believe Mr. Farrar brought that point out earlier today --
3l there could be circumstances under which the public health and I
4 safety would demand an answer to the question of why was this j
5 individual fired before the Labor Department could get 6
finished with its investigation.
7 MR. FARRAR:
And you'd never know unless you did
~
8 your investigation whether those circumstances existed.
9 MR. MURRAY:
That's correct.
i 10 !
l MR. SALZMAN:
I take it also in the case of the i
11 Labor Department investigation, like the arbitrator's 12 decision here, it might not reach the question you're interested 13
.in.
14 MR. MURRAY:
Well, I would have to side more with 15 f.r. Reynolds on that one.
The new statute is explicitly 16 addressed to these types of things, whereas the arbitration i
I thing is entirely different.
That was a strinctly employee-18 employer bag.
This new statute is explicitly enacted to 19 i
get at just the kind of situation that Mr. Smart contends he j
20 I
finds himself in.
l 21 MR. FARRAR:
Let me push Mr. Salzman's hypothetical 22 a little farther from the point of view of Mr. Reynold's 23 l client.
l 24 9
A2 1eral Reporters, Inc.
3 25 i and they didn't want to give the material.
They didn't see i
4 i
e
89 I
'idll the safety connection.
What are they to do to protec*
1 2l' themselves against what they might view as the unjust i
3'
~
investigation in the hypothetical Mr. Salzman mentioned.
4 1
And I assumed your investigators would come in and i
5
~
make again a plausible case.
We have reports that the 6
president of the company is coming in like a crazy man 7
every day, giving all kinds of,really bolixing up the job 8
because he's having marital problems, and we want to, you 9
know, go into his home, and we want to investigate this.
i 10 1 Mr. Reynolds' clients apaprently would be, you j
i 11 know, offended by that, wouldn't let you go ahead with the 12 Investigation.
13 But I can sit here ani say a rational investigator, 14 knowing certain facts, might think that it was important j
15 I
whether or not this particular company official remained on the; 16 job.
How does Mr. Reynolds defend himself against 18 what he might view in that case as an unjustified i
19 i
investigation.
And if he can't defend himself there, how i
20 i
i does he defend himself here?
l 21 What steps is he to take or must he comply with 22 anything your investigator comes up with?
'3 MR. MURRAY:
He must do what he feels he must 24 and have what he does reviewed through a legal process.
4 m.i neponeri, inc.
25 MR. FARRAR:
But see, we can't review it.
I hate i
90 i
I "dl2 to resurrect the forums of action.
2 MR. MURRAY:
Maybe I'm out of synch here.
l l
l MR. FARRAR:
He's really put in a demur.
He said, 4
I'm not going to give you the investigation, so we have i
5 no facts.
We don't know why Mr. Smart was fired.
How can 0
we review this situation to see if the investigator was l
7 authorized when the investigation is stopped at the outset?
O We couldn't say whether the fellow was having marital 9
difficulties.
l I
10 i We can't say whether Mr. Smart was fired.
How 11 do we evaluate whether your inspector was justified in making
}
l 12 this demand?
13 MR. MURRAY:
I suppose the only basis for I
14 evaluation is your own perception of a rational link between 15 the health and safety purposes of the Atomic Energy Act 16 and this particular investigation.
MR. FARRAR:
So that's what it comes down to.
18 Could a rational investigator think --
19 MR. MURRAY:
A rational investigator upon 20 i
review, yes.
That would be ultimately the courts, I suppose.
21 MR. SALZMAN:
I suppose that if Mr. Reynolds' 22 client didn't care, couldn't be reached, and we attempted to 23
' close down the plant, he'd have immediate recourse to the 24 l courts, and I take it they would be able to draft an
- wa Remrtus,IN.
A r
25 appropriate motion.
I 91 i
I 1
d
'dl3 MR. MURRAY:
If necessary, I would agree.
I'm not l
l 2
l i
convinced that this is required.
3!
j MR. FARRAR:
But how does the court review it?
The ultimate authority, the Supreme Court or whoever, how 5
are they going to -- what is the test they are going to 6
apply to what an investigator has to come up with?
7 MR. MURRAY:
I don't think it's useful, with all I
O due respect, to think in terms of what an investigator has 9
l to apply.
10 I t
MR. FARRAR:
Before you say it's not useful, we l
11 have Mr. Reynolds in the griddle up here, asking, wasn't j
12 it perfectly rational for an investigator to say, hey, 13 there's some circumstances here in Mr. Smart's firing that I
want looking into.
15 MR. MURRAY:
But it cecmc to mc you've got to 6
view the investigator as the entire agency.
In that sense, 17 yes.
18 MR. SALZMAN:
Mr. Murray, isn't the answer to your question that when people -- one always must draw fine i
20 lines as to what is and what is not rational in a given set I
of circumstances.
But when people embark on activities 22 which are hazardous, that line is drawn much closer to the 23 l bone than it would be if they were running beauty parlors.
24,
MR. MURRAY:
As I tried to suggest in referring Ao nel Reporters, Inc.
25 to the Public Service Company matter, and other cases.
i 4
l 92 i
I 6
114 MR. SALZMAN:
There is no escape from the dilemma.
I 2
i The person who decides must always make these distinctions, l
3 I and in the long run, there's nothing to fall back on except 4
your own common sense and your own care and thought because there comes a point where there isn't an answer that's 6
written down.
f 7
end 7 8
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10 I 11 1
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15 j
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21 22 23 i
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24 l A;
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MR. MURRAY:
In the sense that you're saying it, 2
that's right.
Of course, we feel we have statutory law.
3 MR. SALZMAN:
There 's nothing involved with 4
Mr. Reynolds' client's wife.
5 MR. MURRAY:
I am sorry?
6 MR. SALZMAN:
Mr. Reynolds' client's wife is not 7
involved in this investigation.
That's beside the point.
8 MR. MURRAY:
I think you can draw hypothetical cases 9
that stress that line.
That's right.
But I think that is 10 considerably stretched beyond the line in this case.
Il CHAIRMAN ROSENTHAL:
But you are not suggesting, are 12 you, that it would be impossible for the Commission's inspectors 13 to decide they want to get into the personal lives of company 14 officials on the grounds that there might be a link between their 15 personal lives and the safety of the plant?
16 MR. MURRAY:
I am not suggesting it's impossible.
17 CHAIRMAN ROSENTHAL:
You're just saying we don't need 18 to reach that interesting speculation here?
19 MR. MURRAY:
Right.
20 CHAIRMAN ROSENTHAL:
You have got about two minutes.
21 MR. MURRAY:
I would lik e-to just say one thing --
22 MR. FARRAR:
Mr. Murray, was one of your reasons why 23 l we shouldn't reach Mr. Smart's request, that it was moot?
You I
24 l gave me a list of things.
An wel Reporters, Inc. j 25 l MR. MURRAY:
Yes.
It was moot, premature, and outside l
pv2 l
94 l
1 the scope of the Commission's established proceedings.
2 MR. SALZMAN:
May I ask one question, Mr. Murray:
3 Would you have any objection to our saying, for the benefit of 4
Mr. Bancroft, to take you up on what you said -- and we repeat 5
it, that the Commission has not decided, that Mr. Murray has 6
not said that the Commission has decided?
l 7
MR. MURRAY:
I would appreciate it if you said that.
8 MR. SALZMAN:
What the authority would be, in the 9
event we were to find such a good reason for a show-cause effort.
MR. MURRAY: I would appreciate it if you said that, Mr. Salz-II man.
It would help me out in light of what has acne on here this morninc.
I2 I just want to say one last word.
A decision by you l 13 gentlemen that the Nuclear Regulatory Commission does not have I#
the authority to make the investigation that we believe we're 15 entitled to make, it seems to me, would be contrary to the 16 plain words of the statute.
It would be contrary to common I7 sense and considerations of sound policy and would be contrary 18 to public health and safety.
19 CHAIRMAN ROSENTHAL:
Thank you, Mr. Murray.
20 Mr. Reynolds, I will give you a few minutes of 21 rebuttal, if you would like it.
It should be confined to the 22 arguments tha_t counsel that followed you had made.
23 REBUTTAL BY MR. REYNOLDS:
2#
MR. REYNOLDS:
Is that limiting?
At vel AeD0f ters, Inc.
25 CHAIRMAN ROSENTHAL:
I don't know if that's limiting
pv3 95 i
i I
or not.
2 (Laughter.)
i 3{
MR. REYNOLDS:
I will just take a few minutes.
4 I think that maybe, to put it in focus, what I would t
5 like to pick up on is Mr. Sal: man's statement that in the area 6
of public safety, when one draws lines you may have to draw it l
i 7
a little closer to the bone.
8 We don't contest that.
I think that is correct, and 9
I think that what we're looking at here is whether this kind of 10 !
inspection, given a claim of retaliatory firing in a single II instance, is one that warrants the NRC to investigate the claim 12 of discrimination.
And I think that this case can be discussed 13 and has been discussed in a number of hypothetical terms, and 14 I believe that hypothetical gloss, if you will, on the case, is 15 important for purposes of where I have been trying to say the 16 authority question comes out.
17 I will have to tell you very candidly that I would 18 have a different case and I think I would feel much less com-I9 fortable standing up here if we were coming to you with a situa-20 tion where the utility or its contractor had engaged in a series 21 of discriminatory firings or discriminatory disciplinary actions 22 of workers who had,over the past 2-1/2 years of construction on 23 this site, taken complaints to the NRC.
24 We don't have that.
We have an isolated instance.
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eral Reporters. Inc.
25 l And I view that as a material situation.
pv4 96 i
l l
1 MR. SALZMAN:
Who was it that said that the longest t
i 2
iourney begins with a single step?
3l MR. REYNOLDS:
I think that 's right.
But I also i
I 4
think there is a great deal of mischief afoot, and announcing 5
or pronouncing the authority of this Commission under the 6
general rubric that we're talking about here, to go in and 7
become embroiled in these kinds of controversies, I think that 8
if one is to focus on that and address the authority question, 9
it should be in a very circumspect manner.
10 I I personally do believe that if one can point to som, II reason to believe --
12 MR. SALZMAN:
Mr. Reynolds, let me ask you this:
13 In what universe is it that circumspection in the interest of Id public safety is a coal that we should look for?
15 MR. REYNOLDS:
I think that it is relevant.
I think 16
-- let me put it this way:
I think that circumspection is 17 important for the reason that, one, I think you are trying to 18 link an event here to the safety function; and one should not, 19 as you've expressed yourself, be too cavalier with that particu-20 lar exercise, because there is a host of other investigations 21 that might trip on in afterwards.
22 I think the other factor which is very relevant is 23 that, as we've heard before today, this agency has precious i
24 del Reporters. Inc. l little extra time; it is very involved in a number of important Ao 25 safety matters.
You are talking about, I believe -- and ma:-be
pv5 I
97 l
l 1
this is the parade-of-horribles type of argument, but I think l
2 it's a realistic assumption -- you are talking about another 3
element of activity for this agency to be involved with.
And 4
whether you're talking about the staff level or whether you're I
5 talking about --
6 CHAIRMAN ROSENTHAL:
That doesn't go to authority.
7 That goes to the order of priorities that are established amonc t
8 the various powers that the agency has.
9 MR. REVNOLDS:
I was trying to address why it makes 10 !
cense to be circumspect when you're dealing in an area of this II sort, with the label "public health and safety."
That's all I 12 am suggesting..
13 I think that if we had a situation here where some-I Id body could point -- a rational man could point -- to a chilling 15 effect, if you will, that that would perhaps bring one closer 16 to the authority question, link it to safety.
I don't think we I7 l have any indication -- in this case we certainly have no indi-18 cation. And certainly with the new legislation I don't think we 19 even can indulge in the presumption that we're talking about a 20 chill, because one worker gets fired and claims that it was 21 retaliatory.
22 I don't think that we're talkinc about a comoromise, 23 if you will, or an infringement on the monitoring capability of 2#
staff and its inspectors under the scheme of things, when you A<
eral Reporters, Inc.
25
! raise a situation of a firing of a single worker over a period
pv6 98 1
of 2-1/2 years and his claim is because he went to the agency.
2 And I think you're right:
We have to take judicial 3
notice of the grievance.
And I will have to readily admit it 4
did not reach the question and it did leave open other questions.
5 But it does seem to me, if we're talking about an i
6 authority question, I really believe that the link has to be to l 7
the safety aspect of it, has to be one that a rational person 8
can determine on the basis of the situation at hand.
9 Mr. Murray has told us today we have to get to the 10 '
facts to find out if it's retalitatory because we need that for 11 safety purposes, and I still am not, in my own mind -- hopefully,,
12 as a rational person -- clear what the safety purposes are that 13 suddenly come to the forefront, if I find out it was a retalia-14 tori firing.
15 It seems to me if there are regulations that they 16 want to put in place if there's further inspection, this agency l
17 can assume that it's got a retaliatory firing and it can take 18 ! those measures.
And it would be the same measures it would take 19 if it went out and investigated.
And I don't see that the factual 20 investigation has the link to the safety situation.
21 CEAIRMAN ROSENTHAL:
I think you've made that point 22 before.
23 h MR. REYNOLDS:
Unless we talk about it in much dif-Il i
24 'l ferent hvoothetical terms.
A(
etal Reporters, Inc.
25 i CHAIRMAN ROSENTHAL:
Thank you, Mr. Reynolds.
I h
pv7 99 1
Do you want about two or three minutes, Mr. Bancroft?
2 MR. BANCROFT:
No, thank you, Mr. Chairman.
3, CHAIRMA11 ROSENTHAL:
Thank you.
i 4
On behalf of the entire Board, I wish to thank all 5
counsel for very stimulating argument this morning.
6 I also wish, once again, to express our appreciation l 7
to the Howard Law School.
This, I can say, is one of the most, 8
if not the most, attractive moot-court facilities that I have 9
encountered, and I would go beyond that to say that it is con-10 '
siderably more attractive than most of the courtrooms that I 11 have been in, and I have covered a fairly substantial number of 12 at least the. federal courtrooms, both trial and appellate.
13 But we very much appreciated the hospitality of 14 Howard, and, once again, we thank you very much, and on that 15 note, the matter before us will stand submitted.
16 We will try our hand at deciding it in a reasonably i
17 comprehensible, and possibly even intelligent, fashion.
It 18 might well be that some of the students that have heard this 19 I entire argument can do a better job of it than could we.
I 20 l On that note, the matter stand s submitted.
I end#8 21 (Whereupon, at 12:05 p.m.,
the hearing was adjourned.)
22 23 24 An'
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25 l, d
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