ML20032E022
| ML20032E022 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 11/17/1981 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| EA-81-018, EA-81-18, NUDOCS 8111190517 | |
| Download: ML20032E022 (62) | |
Text
NUCLEAR REGULATORY COMMISSION g
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ATOMIC SAFETY AND LICENSING TsARD Q
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DOCKET NO. 503255',bs,
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
ATOMIC SAFETY AND LICENSING BOARD 4---
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In the Matter ofs s
Docket No. 50-255 6 CONSUMERS POWER COMP ANY (EA 81-18) 7 (Palisades Nuclear Power Facility) a s
8------
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Fifth Floor Hearing Room East-West Towers 10 East-West Highway Bethesda, Maryland 11 Tuesday, November 17, 1981 12 The above-en titled matter commenced at 9:30 a.m.,
pursuant to notice.
13
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BEFORE:
ALAN ROSENTHAL, Chairman 15 R. MOORE, Board Member CHRISTINE KOHL, Board Member 18 APPEARANCES:
17 On behalf of the Licensee, Consumers Power Companys 18 JUDD L. BACON, Esq.
19 Consumers Power Company 212 W.
Michigan Avenue 20 Jackson, Michigan 49201 21 On behalf of Appellants, Utility Workers Union of 22 America and Michigan State Utility Workers Council:
23 THEODORE SACHS, Esq.
Marston, Sachs, Nunn, Kates,
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24 Kadushin C O' Hare, P.C.
1000 Farmer at Bates 25 Detroit, Michigan 48226 ALDERSON REPORTING COMPANY INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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2 On behalf of the Nuclear Regulatory Commissions 3
STEPHEN BURNS, Esq.
O KAREN CYR, Esq.
4 Office of the Executive Legal Director Nuclear Regulatory Commission 5
Washington, D. C.
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O co"rt"Ts 2 ORAL ARGUMENT OFs g
3 THEODORE S ACHS, on behalf of Appellants,
O Utility Workers Union of America and 4
Michigan State Utility Workers Council 6
5 STEPHEN BURNS, on behalf of the NRC 24 6
JUDD L. BACON, on behalf of the 7
Licensee, Consumers Power Company 42 8
THEODORE SACHS, on behalf of the 57 Appellants, 10 11 12 13 O
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ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C.20024 (202) 554-2345
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(9:30 a.m.)
3 CHAIRMAN ROSENTHALs Good morning.
This Board is 4 hea ring oral argument today on the appeal of the Utility 5 Workers Union of America and its Michigan affiliate from the 6 Licensing Board's July 31, 1981, order.
That order denied 7 the Union's request for hearing with regard to an order 8 issued by the Director of the Commission's Of fice of 9 Inspection and Enforcement on March 9, 1981.
Insofar as 10 here relevant, that order imposed certain restrictions upon 11 the perforance of overtime by licensed reactor opetators at 12 the Consumers Power Company 's Palisades Nuclear Power 13 Facility.
O 14 The argument this morning is governed by the terms 15 of our October 28th order.
As provided therein, each side 16 has been allotted a total of 40 minutes for the presentation 17 of araument.
The Union Appellants may reserve a portion of i
18 their time f or rebuttal.
19 I will now call. upon counsel for the respective 20 parties to identif y themselves formally for the record.
And 21 I will start with the Union Appellants.
22 MR. SACHS:
Theodore Sachs of Marston, Sachs, 23 Nunn, Ka tes, Kadushin C O' Hare, of Detroit.
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24 CH AIRMAN ROSENTHA L.
Thank you, Mr. Sachs.
25 And for the Licensee, Consumers Power Company.
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ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 MR. BACON:
I am Judd Bacen, of the Consumers 2 Power Company, Jackson, Michigan.
3 CHAIRMAN ROSENTHALs Okay, Mr. Bacon.
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And for the NRC Staff.
5 MR. BURNSs My name is Stephen Burns, and I am 6 with the Office of the Executive Legal Director.
With me at 7 the counsel table is Karen Cyr, also of the Office of the 8 Executive Legal Director.
9 CHAIRMAN ROSENTHAL:
Thank you, Mr. Burns.
10 All right, Mr. Sachs, you may proceed.
I might 11 say before you commence your argument, Mr. Sachs, if it is 12 any comf ort to you, I can assure you that the dissenting 13 vote that I cast on the question as to whether to accept 14 your untimely appeal was not intended to reflect any views 15 on my part with regard to the merits of the appeal.
That 16 dissent, as indicated, was based exclusively on my view that 17 the appeal should not have been accepted because of its 18 untimeliness.
19 20 21 22 23
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24 25 ALCERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 ORAL ARGUMENT ON BEHALF OF APPELLANTS, 2
UTILITY WORKERS UNION OF AMERICA and 3
MICHIGAN STATE UTILITY WORKERS COUNCIL
}
4 ER. SACHS:
May it please the Board, as earlier 51ndicated, I am Theodore Sachs, and I represent the Utility 6 Workers Union of America and its Michigan affiliate, the 7 Michigan S~ ate Utilty Workers Council.
I would like to c
8 reserve at least 15 minutes of my time for rebuttal, 9 please.
10 As the chairman has already indicated, this is an 11 appeal f rom the July 21 order of the Licensing Board which 12 denied the Union's petition for hearing on the March 9 13 Director's order.
The Unions did not learn of that order by O
14 any formal issuance of it.
We were not party to any 15 proceedings which involved the promulgation of the order 18and, in any event, anything whicu led up to the order.
17 The Unions and their members first learned of it 18 when notices went 4p in the facility which indicated a 19 restriction on overtime.
20 MR. MOORE:
Mr. Sachs, does your collective l
l 21 bargaining agreement speak to overtime at all?
22 MR. SACHS:
Yes, it does, in many respects.
23 MR. MOORE:
What does it say?
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24 MR. SACHS:
It does not speak to a particular 25 grant or authorization of particular overtime, Mr. Moore, O
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1and there is no claim that it does.
2 MR. MOOREa So there is no provision in the
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3 collective bargaining agreement as to an entitlement to 4 overtime by your clients?
5 MR. SACHS There are elaborate provisions, as I 6 recall them, which speak to the assignment of overtime when 7 overtime is to be granted, and to priorities, ete cetera.
8 There are also restrictions in the collective bargaining 9 contract which limit the use of nonbargaining unit personnel 10 in the operation of company work and facilities.
That would 11 include supervisors and outside contractors.
That is 12 impacted here also, as I will develop.
13 Now, as I was indicating, notice was received in a O
14 practical f ashion, which members of the bargaining unit were 15 told that there would be restrictions on overtime, which 16 there had not theretofore been.
17 MR. MOORE:
Mr. Sachs, up to that point, had there 18 been a practice of overtime at the facility?
19 MR. SACHS:
Yes, sir, I believe so.
20 MR. MOORE:
What was that practice?
21 MR. SACHS I cannot give you the dealls.
There 22 had simply been no cap on the ' overtime other than what Z3 otherwise existed pursuant to the general regulations of
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24 this agency.
There has been no limitation, for example, 25 such as was imposed in this order, saying that there would O
ALDERSON REPORTING COMPANY,INC, 400 VIRGIN A AVE, S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 be a maximum of four hours overtime in a 24-hour period or 2 any other restrictions.
3 MR. MOORE:
But operators regularly worked
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4 overtime at the Palisades facility?
5 ER. SACHS I do not want to mislead with respect 6to the use of the word " overtime."
If that means did 7 operators work overtime, the answer is "Yes."
If you are 8 asking me the frequency or the consistency, frankly I do not 9 know.
10 My point is that there was not a limitation on 11 it.
12 CHAIRHAN BOSENTHAL Is that not relevant on the 13 question as to whethcr this overtime restriction which you O
14 seek to challenge has occasioned injury in fact to the 15 employees?
I think that is probably what Mr. Moore was 16 directing his questions toward.
17 MR. SACHS4 I was trying to be fa stidiously 18 careful in my response.
The answer isa Yes, there has been 19 an impact in the order, to the extent that overtime which 20 otherwise would have been worked has been denied to l
21 bargaining unit personnel and such work which otherwise 22 would have been worked by bargaining unit personnel has to 23 some extent been performed by supervision and outside the
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24 bargaining unit.
I 25 I think that answers your question concretely, if O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1that is the question.
2 CHAIRMAN ROSENT H.* L a That does not answer it to my
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3 satisf action.
Are you telling us that in point of fact 4 prior to the imposition of this restriction employees of 5 Consumers' worked larger amounts of overtime than is now 6 permitted by the restriction?
7 MR. SACHS:
Yes, sir, that is my understanding.
8 CHAIRMAN ROSINTHAL:
Is that in this record?
9 MR. SACHS4 It is nowhere in this reccrd, and tha t 101s why we are appealing.
11 CHAIRMAN ROSENTHALs It was your obligation, was 12 it not, to establish that you had standing to obtain a 13 hea ring on *he validity of this order?
Now, if standing O
14 hinges, among other things, upon injury, in fact was it not 15 your obliga tion to demonstrate in your papers seeking this 16 hearing that you had been injured in fact and, in that 17 connection, to set f orth the predicates of tha t injury?
18
'M R. SACHS:
Mr. Re sen tha l, I a m a f raid that, as in 19 the Staff's presentation, we are getting the cart somewhat 20before the horse, with all due respect.
We have been trying 21 to submit what our interest is, and we have been foreclosed 22 from doing sc.
23 CHAIRMAN ROSENTHAL:
How were you foreclosed?
}
24 Excuse me for interrupting you, Mr. Sachs.
But how were you 25 foreclosed from doing so?
Normally, when an individual O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
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1 files a petition for intervention and a request for hearing, 2 it sets forth in the.t petition all of the elements of its r~g 3 claim of strnding.
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Now, I wonder again, under Commission rules, 5 standing hinges upon the establishment of, first, an injury 61n fact and, second, an injury that falls within the zone of 7 interest of the particular statute being enforced.
But you 8 always have to nave an injury, in fact.
9 Now, why 'Jas it not your responsibility to have 10 alleged in your petition those f acts which were necessary to 11 establish that in point of fact this order injured your 12 members ?
13 3R. SACHS:
Er. Rosenthal, I believe we have done O
14 so.
let us recall, if we may, in the first place that the 15 order itself which started all of this, we did not come in 16 as an in terloper, just gratuitously filir.g a pe tition.
17 When we eventually got word of the order, and in 18 the mean time had seen through Consumers Power Company 19 publications that it claimed responsibility for initiating 20all of this, we got a copy of the order, which suggested 21 t ha t any person who claimed an interest could request a 22 h ea ring, which we did so.
23 And we followed the terms of that order, and the O
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24 petition was responsive to the order.
We have recited 25 consistently at every stage tha t our interest had been O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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1 seriously and adversely impacted.
2 CHAIRMAN ROSENTHALs Well, now, how has it been
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3 impacted unless as a matter of f act the workers were 4 performing overtime in excess of the amount now allowed by 5 the Director 's order ?
And if that is a necessary ingredient 6 of injury in f act, why did you not have to at least allege 7 that?
8 MR. SACHSs I do not understand, Mr. Rosenthal, 9 until this time, and maybe I misread or f ailed to comprehend 10 the volucinous papers here, that anyone has alleged that the 11 petition was inadequate in any pleading respect.
12 We have continued to assert, and we do assert, 13 tha t we are injured in fact in numerous respects.
There is O
141n fact a reduction in the available overtime hours which 15 would have been assigned but for the order.
But for the 16 order, employees in the bargaining unit would have done the 17 work.
They have not done it.
18 MS. KOHLS Has the employer ever voluntarily or l
19 independently cut back on the amount of overtime or put a 20 cap on it?
21 MR. SACHS Not to my knowledge.
But for the 22 order, supervision has done the work in question, which 23 would not otherwise have occurred, because tha t is
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24 restricted by the bargaining agreement.
25 CHAIRMAN ROSENTHAl That is alleged by you in ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
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1 your petition?
2 HR. SACHS I do not recall specifically, sir, 3 whether it was alleged by the petition, but it has certainly 4 been developed throughout in the supporting papers, and the 5 assertion, it again has not been questioned that we are 6 making that assertion.
7 We have f urther asserted that as a matter of our 8 rights under the National Labor Relations Act -- which we 9 are not trying to vindicate here; let us end tha t conf usion 10 -- but as a matter of our rights which demonstrate cur 11 standing and our injury, we have a right under the National 12 Labor Relations Act, if the contract did not say one word 13 about overtime but if the practice did not restrict O
14 overtime, to have the employer not unilaterally change tha t 15 condition of employment and impose a cap on the overtime.
16 CHAIRKAN ROSENTHAL4 But if you are not seeking, 17 Mr. Sachs, to vindicate rights under the National Labor 18 Rela tions A ct, under vhat constitutional or statutory l
19 provision are you seeking to vindicate rights?
Because I 20 take it you are aware of the Commission's holding that 21 judicial standing tests apply in this agency and, more 22 particularly, the test that was laid down by the Supreme Z3 Court in the data processing case.
What is the source, if
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241t is not the Labor Relations Act, of the interest which you 25 seek to vindicate in this proceeding?
ALDERSoN REPORTING COMPANY,INC, 400 VIF.GINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
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1 MR. SACHS:
Mr. Rosenthal, may I precede that 2 answer by pointing out that I have been attempting to
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3 indicate the standing and the injury in fact about which I 4 have been questioned, and I have been pointing out a variety 5 of ways in which we have a very direct, a very particular, 6and a very substantial interest which has been injured.
7 What we are asserting here is that the order which 8 was entered was entirely unnecessary, if not gratuitous 9 relevant to any safety justification which is presumably the to mission and justification for this agency's action.
11 We are sa ying tha t the order, when entered, was 12 merely confirmatory of what a Licensee, very worried about 13 what the agency was going to do to it, decided to throw in
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14 to mollify and placate the agency.
Consumers was worried, 15 and it threw in a laundry list of those items which it hoped 16 would get the agency off its back.
Among those was a 17 restriction on overtime hours.
18 CHAIRMAN ROSENTHALs I understand that.
What I am 19 g etting at is this:
Let us assume for the purposes of l
l 20 discussion that your members have in fact been injured in a l
21 sense that they are no longer able to perform overtime which 22 they had previously been able to perform, and this is l
23 af f ecting their pocketbook interests.
Let us assume that.
l 24 What I ask you is where is the basis of their 251eg ally protected right to perform this overtime which you
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1say is now being denied to them as a result of the 2 Director 's order?
And if you are going to complain about 3 that order, you have got to establish, do you not, that the
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4 order represents an invasion of some kind of legally 5 protected right that they possess.
And I am asking you what 31t is.
7 MR. SACHS:
Well, if you are asking, Mr.
8 R osenthal, what the legally protected right is under this 9 A ct, the right is to be free f rom this agency going beyond 10 any statutory authorization to regulate an area in which it 11 has no legitimate safety interest and in which it causes 12 significant injury.
13 CHAIRMAN ROSENTHAL:
Does that injury stem from 14 the Atomic Energy Act?
15 HR. SACHS:
Of course it does not.
But it stems 16 f rom the order.
The order caused the injury.
It is this 17 agency's order by the Director's order which says, as it did 18 not say the day before that order was entered, that thou 19 shalt not work overtime exceeding so many hours.
20 The day before, we could do so.
The day before, 21 1t was contrary to law for this employer to do anything 22 unilaterally which would have lessened the overtime M opportunities which existed.
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24 The proof of that, if you will, at this stage is 25 that the general counsel of the National Labor Rela tions O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 Board has issued a complaint on our charges and agreed with 2 the representations we are making and indicated that 3 Consumers unilaterally initiated these recommendations which 4 we are alleging the Director rubber-stamped.
5 Now, from the point of view of the NLRB, the 61nvasion of our rights is that we had a right to be free 7 f rom tha t unila teral action.
We had a right to have our 8 members not be injured in terms of their economic losses.
9 We had a richt to be taken into account as the statutory 10 bargaining representative in order to make collective 11 bargaining decisions.
That is the National Labor Relations 12 policy.
And it has been that f or nearly half a century.
13 MS. KOHL:
Mr. Sachs, can we decide this case O
14 without making a judgment as to what your rights are under 15 the National Labor Relations Act?
16 MR. SACHS:
Absolutely, Ms. Kohl, absolutely.
I 17 am not asking you to cite our rights.
But there has been a 18 constant mixture here which has caused confusion, where 19 first we have been asked to justify our standing and our 20 injury and then we are asked to --
21 MS. KOHL:
That was not an unreasonable request, 22 was it?
23 MR. SACHS4 That was not an unreasonable request.
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24 But I am suggesting there was confusion.
If our standing 25 and our injury relates to the fact that both as a matter of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 statutory right under the National Labor Relations Act and 2 as a matter of certain contractual rights, we have a right
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3 to be free f rom a unilateral change which imposed this e,i 4 restriction, the injury is real.
5 We submit that with respect to the Act under which 6this Board sits, we have a right-to have this agency be free 7 from taking actions which are not dependent upon 8 saf ety-related considerations.
9 Let me suggest, if I may, that if instead of the 10 particular proposal which Consumers made and which the 11 Director accepted, Consumers had simply put into the laundry 1211s t, "Let us-cut the pay of everybody by 50 percent," now, 131f that proposal had been made, presumably the same O
14 arguments now made by Staff to us could equally be mades 15 "Why we are addressing an economic interest?
Where is the 18 injury under the Nuclear Act?
What are we doing here?
Why 17 can we not get relief before the NLRB?"
18 And I suggest the answers are the same in either 19 case.
For the Director of this agency to cut the pay would 20 obviously have no basis or justification in law.
The kind 21 of argument which is being addressed, I would suggest, is to 22 say that the less defensible a position is in terms of any 23 jusification for safety-relatedness, the more invulnerable
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24 1t is going to be from any challenge.
25 Obviously, the Licensee is not going to enallenge O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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i l its own proposals.
The Sta ff, which has accepted them, is 2 not going to challenge them.
We are the persons who are
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3 hurt, we are the persons who have an interest, and we are
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4 the persons who can develop a record.
5 And the record we propose to develop, Ms. Kohl, 6 has nothing to do with developing the record which we will 7 before the NLRB or the NLRB general counsel will in our 8 behalf; namely, that there is an unfair labor practice 9 because there was unilateral change without bargaining, when 10 ve would show here and seek to show here if given an 11 opportunity to do so -- because that is all that is involved 12 today is our right to participa te -- we would seek to show 13 tha t the order which was entered did not have a safety 14 justification and was simply a routine pro form response to 15 a worried Licensee which wanted the agency of f its back.
16 Now, I suggest that there is not a basis in law 17 for this agency or any other agency simply to enter orders 18 to placate or to mollify or because the ordess are otherwise 19 congenial.
Where is the record?
Where is the evidence to 20 justify wha t did happen here?
21 It is particularly ironic tha t in recent days we 22 have received from Mr. Burns a copy of what I understand to Z3 be the new policy respecting overtime, which is considerably 24 more liberal, as we understand it, than what existed 25 previously.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTOrd. D.C. 20024 (202) 554-2345
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so taet ta1=
etter proceees ev ce-
- 11e 2 Licensees generally appear to be under less constraints than 3 bef ore and the reviewing actions by the agency and its staff 4 indicate that a lessening makes more sense rather than a 5 tightening of these requirements, here there is a 6 requirement uniquely and not as f ar as we are able to tell 7 f rom the order or otherwise because of any concern -- not 8 concern but because of any factors which have been 9 demonstrated during the course of any investigation or prior 10 dealings.
11 The order itself says that is a hearing is 12 requested, the Commission will issue an order designating, 13 et cetera, if a hearing is held, the issue to be considered
'O 14 at such hea ring shall be "whether on the basis of the matter.
15 set forth in sections 2 and 3 of this order this order 16 should be sustained."
That would be the issue.
17 Now, I have read 2 and 3.
It indicates there are 18 problems.
We certainly are not going to be apologists for 19 the company.
20 MR. MOORE:
Mr. Sachs, I understand your 21 a rg um en t.
But my question is much more fundamental.
If you 22 would turn to your petition, which is your basic pleading in 23 this case, would you then show me where you in effect 24 pleaded or set forth in the petition the injury that your 25 employees are now denied and have been denied overtime which
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1 otherwise they would have worked?
2 The other aspect of that which you recited to me
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3 orally to me earlier was that other emploress are being 4 brought in to work whereas the operator union operators 5 would otherwise be working overtime?
Those seem, on the 6 surf ace, to be the type of allegations which normally 7 establish injury in fact.
8 I searched in vain in your petition to find any 9 such thing.
All I find is a statement that the evertime 10 restriction contained in said order is more restrictive than 11 the Commission standards otherwise applicable.
s2 MR. SACHSs Paragraph 4,
on information:
"I 13 believe, no reason was demonstrated or pertinent to this O
14 Commission's March 9,
1981, order to occasion greater 15 restriction on overtime," that that should be then obviously 16 "as otherwise required by the Commission 's general standards 17 or is permitted to the Licensee under its collective 4
18 bargaining obligations to the Union under the National Labor 19 Relations A ct. "
20 MR. MOORE:
Again, I am sorry, but it is 21 elementa ry that when you plead standing, you plead the basis 22 on which you are injured.
And here as a Union that is 23 rep resen tin g employees and are members of the Union, you
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24 have not sta ted that their injury is that they are being 25 denied employment that otherwise would be available to O
V ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHING TON, D.C. 20024 (202) 554-2345
20 1 them.
2 And that was the basis of my questions that there 3 seems to be a pleading failure here.
And your subsequent 4 papers, as I read them, indicate tha t what your claim of Sinjury is is, as opposed to what you have stated orally this 6 morning, is that what I am asked to choose in action is your 7right to negotiate overtime, is that your right has been 8 denied.
9 Now, this morning I do not understand that to be 10 your claim of injury in f act.
So perhaps you could clarify 11 f or me which of those tacks we sailing on.
12 MR. SACHS We have asserted in the course of 13 these several papers we have filed -- and again I do not O
14 understand that any refusal for hearing to date has been 15 predicated upon any lack of comprehension of what we are 16 asserting -- that there is injury in fact in several 17 respects.
18 There is injury in fact in that the hours of 19 overtime which otherwise would have been assigned to 20 bargaining unit personnel in fact have not been assigned 21 because of the Director 's order.
And that continues to be 22 the f act.
23 We have asserted that work assignments which O
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24 otherwise would have been made to bargaining unit personnel 25 have not and continue not to be made and are being made to O
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1 supervisory personnel because of the Director 's order.
We 2 have asserted and continue to assert, and the NLRB general (J~3 3 counsel agrees with us, that there is a statutory right 4 under another Act which you do not administer which protects 5us against unilateral changes in any material conditions of 6 employment, overtime or otherwise.
7 MR. MOORE:
But have you not disavowed this 8 morning that as an issue we need not reach, you say, in that 9 your standing is not predicated on the NLRB7 10 MR. SACES:
I am not asking vindication here 11 because of that fact.
I am asserting those are the injuries 12 which we are in f act suffering because we are losing those 13 opportunities, and every one of those injuries flows from O)
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14 the order of the Director.
15 MR. MOORE:
Mr. Sachs, not to unduly belabor this 10 point, I agree with you that those clearly are injuries.
17 Now, would you be so good as to point in your pleadings 18 where the three f actors that you have just pointed to me or 19 sta ted to me are found?
20 MR. SACHS:
In the particular document they d o ne'.
21 appear with that explicitness.
Of course they de not.
22 MR. MOOREs Thank you.
Go ahead.
23 CHAIRMAN ROSENTHALs If you wish to save 15
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24 minutes of rebuttal, you are almost at that point.
25 MR. SACHSa I do indeed wish to save that time.
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1 I would simply add one thing:
There are 2 substantial interests which are at stake here.
I have not 3 even used the words till now, though our pleadings reflect 4 them.
We believe we a re en titled to due process.
We asked 5 an opportunity to be heard to develop these points.
We 6 started off, perhaps naively, crediting the contents of an 7 order which suggested that persons dissatisfied with an 8 order initiate certain steps.
9 MB. M00RE4 That order very clearly shows, Mr.
10 Sachs, that any person filing a petition to intervene 11 pursuant in accordance with 10 CFR 2.71482, setting forth 12 the nature of the person's interest and the manner in which 13 tha t interest is affected by this order, which is 14 fundamental to our pleading here.
And it did cue to the 15 fact of how pleadings are done.
16 MR. SACHS:
I am well aware, sir, of the content 17 of the order.
I am also aware of the injury in question.
18 And we would simply hope that the agency would wish itself 19 to be assured that orders which have significant impact on 20 those affected by it would have some justification under the 21 mission of the agency.
That has been drawn into account 22 here.
23 There are public representations by the Licensee
()
24 which ha ve claimed credit for telling the agency this s what 25 we wanted, we got it.
I am pa ra ph ra sing, of course, but
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- ea e=4 11 we 2 ask now is not that you decide the merits of this matter.
3 CHAIRMAN ROSENTHAL:
I think we understand that, 4 M r. Sachs.
5 MR. SACHS:
Thank you.
6 CHAIRMAN ROSENTHAL:
Mr. Bacon.
7 MR. BURNS:
8 Mr. Chairman, Mr. Bacon and I discussed it 9 earlier, and we decided the Staff would go next.
10 CHAIRDN ROSENTHAL:
This is an unprecedented 11 event in my years around here for the Staff not to insist 12 upon the la st word.
I am sorry I made that assumption 13 without inquiring.
, O 14 1
15 16 17 18 19 i
20 21 i
22 23 O
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1 ARGUMENT ON BEHALF OF THE NRC 2
MR. BURNS:
Mr. Chairman, Judge Kohl, Judge Moore, 3 good morning.
4 Whether a third party who asserts no health and 5 saf ety harm may inject itself as of right into an NRC 6 enforcement proceeding and force the NRC to crank up its 7 adjudicatory machinery, that is the issue in this case.
8 Existing precedent and sound policy say such a result should 9 not obtain.
10 CHAIRMAN ROSENTHAL:
Let's stop right there.
Are 11 rou really telling us that this Commission can enter orders 12 which ha ve -- and we will assume for the purposes of this 13 discussion that there is a sufficient allegation of that 0
14 a substantial impact upon existing rights of others, without 15 persons injured in f act having any opportunity to challenge 16 the order as being totally arbitrary?
17 MR. BURNS:
Yes, I am.
l l
18 CHAIRMAN ROSENTHAL:
Well, I can just tell you, 19 speaking for myself, you have a long way to go in persuading 20 me of that.
I mean, supposing for example that, as Mr.
21 Sachs hypothesized, the Commission were to enter an order 22 which said henceforth reactor operators are not to be paid 23 more than four dolla rs an hour.
Are you telling me that
()
24 because that is simply an economic injury that the wo rk ers 25or their union would simply have to swallow that?
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1 MS. KOHL 4 Let's assume for Mr. Rosenthal's 2 hypothetical also that the agency makes a colorable argument 3 that the imposition of a four dollar an hour salary or wage 4 is safety-related.
5 CHAIRMAN ROSENTHAL:
Or make the claim, at least.
6 MR. BURNSs That type of hypothetical I don't 7 think is the type of case which you have got before you 8 here.
9 CHAIBMAN ROSENTHAL:
Well, it may well be the 10 case, because what these workers might be claiming is not 11 that their salaries on a per-hour basis have been reduced, 12 but that their total compensation has been reduced because 13 they have been deprived of the opportunity to perform over O
14 time in the amounts that they had previously been allowed to 15 perform.
So it comes down either way to their paycheck.
16 MR. BURNS I think the answer to the question is 17 tha t essentially what we look at if you assume that there 18 was an injury in f act there --
19 CHAIRMAN ROSENTHAL:
I'm assuming that.
20 MR. BURNS
-- and you say there is some 21 restriction on the pay scale there, the question is then, 22 you can still ask yourself the question, has the union 23 asserted a health and safety harm there.
And I'm not sure
)
24 o f the type of case that you are --
25 CHAIRMAN ROSENTHAL:
Of course they're not O
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1 asserting a health and safety harm.
What they're saying is 2 that this agency, acting purportedly under the aegis of the 3 discharge of its health and safety responsibilities, imposed 4 an affirmative limitation on our paycheck, and we simply 5want the opportunity to demonstrate that there was no 6 foundation whatsoever for that limitation.
7 Now are you telling me that they can't be heard in 8 this agency?
And then the question I would ask you after 9 you've explained to me a little further why they can't be 10 heard in this agency, is are they remedyless or is there 11 some other tribunal in which they can obtain redress, and if 12 so what is it?
13 MR. BURNS:
I believe with respect to the O
14 hypothetical that you pose that, again, I'm not so sure that 15 there is no -- that they could not assert a health and 16 saf ety harm with respect to such a restriction.
Taken to 17 this case, of course, they have not done so.
18 But again, wha t we are talking about is a question 19 0f, do you have a consent type order?
You can ask yourself 20 tha t question.
You also have the question there that even l
211f you found that that was a purely economic injury, you 22 could still permit the union to intervene as a matter of 23 discretion on such a restriction.
()
24 CHAIRMAN ROSENTHAL:
I 'm asking you whether they 25 have a right in any form, not as a matter of discretion but O
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1 as a matter of right, to. challenge a restriction of this 2 type on the ground tha t it is totally arbitrary, it has no
{
3 foundation in safety at all.
Can they challenge it, and if 4 so where ?
5 MR. BURNS:
I think they could possibly challenge i
61t before this agency, that as a matter of the Atomic Energy 7 Act it is possible in that instance that you might have come 8 to the point that you have infringed upon a property right 9 that exists in those workers and tha t the union could 10 represent, and on that basis it may be possible for them to 11 challenge it before this agency.
12 MR. MOORE:
Mr. Burns, doesn't this agency have an 13 obligation under the Administrative Procedures Act, as well
, O 14 as the Atomic Energy Act, in the conduct of their business 15 not to act arbitrarily and capriciously?
16 MR. BURNSs Every governmental agency has that 17 duty.
The question of standing, however, is not -- when you 181ook at this from a point of view of this question of 19 standing, every citizen, you or I, do not have standing to 20 challenge the actions of administrative agencies because we 21 have interests as a citizen in f air play in government and 22 f air enf orcement.
23 MR. MOOREs Eut if this is an aggrieved person
(
24 under the APA, under final agency action -- and presumably 25 the Director 's order here is final agency action -- then ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 what is the next step if the union wants to pursue it?
2 Undr:r the Hobbs Act, it is direct review in the court of 3 appeals, is it not?
)
4 MR. BURNS:
Yes.
5 MR. MOORE:
And one of the standards there is 6 whether the final agency action is arbitrary and capricious, 71s that correct?
8 MR. BURNS:
Yes.
9 MR. MOORE:
Now, on what basis would a court of 10 appeals review thr.t decision?
..here is the reco rd ?
Whe re 11 was the administrative proceeding that developed, that the 12 agency action was not arbitrary and capricious?
13 MR. BURNS:
The record they have before them would O
14 be the order itself, and the question there -- you have to 151n that instance, because if they did actually review the l
16 merits of the order, in that instance what you would have 17 bef ore them is the order.
18 And I think then the question is --
19 MR. MOORE:
And nothing but the order, and th a t 20 would be the whole record tha t would be before the court of l
21 app eals?
22 MR. BURNS:
That's true.
If it reached 23 MR. MOORE:
Just offhand, would you venture a
()
24 quess how long the court of appeals would take in remanding 25 tha t case to this agency?
ALDERSON REPORTING COMPANY,INC,
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1 MR. BURNS:
Well, I don't think that-the court of 2 appeals would have to remand to this agency if the court of 3 appeals found again that the NBC was not required to grant 4 the union a hearing in this instanca, and if it did have to 5reacn the question of the substantive review of the order.
6 MR. MOORE:
How would you do it?
7 MR. BURNS:
It would look to the corners of the 8 order itself to see what justification there was in the 9 order for the particular award of remedies that were made 10 within the order, and it would make its decision on that 11 basis.
12 MR. MOORE:
And there would never have been an 13 opportunity for the union or anybody else that was aggrieved O
14 by that order to demonstrate that the action was and that 15 the reasons given by the agency were totally fallacious, in 16 f act that there was no safety significance at the levels and 17 the degree to which they were imposed here?
18 MR. BURNSs On the basis of the standing premises 19 that the union has come forward to this agency on, no, they 20 would not.
Again, here we have the example of a consent 21 ord er.
The Licensee could challenge the order, but it has 22 by virtue of its consent waived the right to a hearing on 23 tha t order.
And for purposes of finality and enforceability
()
24 of the order, it is final.
25 MR. MOORE:
If Consumers rolls over and plays O
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1 dead, why is that of interest to the union?
They are the 2 aggrieved party.
{}
3 MR. BURNS:
Well, the question of consent doesn't 4 directly impinge upon what arguments the union might make, S in the sense that the Licensee could have challenged the 6 order, could have challenged the order whether the union 7 wanted the Licensee to or not.
But the question before the 8 Board is whether the union asserting what it has has the 9 right under the existing standing concepts of this 10 Commission to go forward and press this matter to a 11 hearing.
12' CHAIRMAN ROSENTHAL:
Does this hinge upon whether 13 they, the union, has, or its members have, a property right 141n overtime?
I thought I heard you suggest that this case 15 might be distinguished fron the hypothetical I provided you 18 involving cutting or putting a ceiling on wages on the 17 g ro und tha t in that instance the union might be able to 18 argue that there das a property right involved, whereas here 19 there was no such property right.
20 Now, if that is the distinction you are drawing, 21how do you get that into this agency's standing doctrine as 22 you have invoked it?
Because that standing doctrine you say Z31s a very simple matter.
You could say economic injury,
(
24 there is no standing.
25 Now, if you applied that doctrine simplistically O
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1 you would reach the same result in the case of a salary 2 limitation as in the case of overtime, would you not?
3 HR. BURNSs I think purely looking at it from, as
{}
4 I say, from a health and safety standpoint, if indeed the 5 union vants to stop and keep its characterization of the 6 restriction as aff ecting a purely economic injury as for 7 purposes of looking at it from the point of view of the 8 Atomic Energy Act, they haven't shown enough in terms of, in 9 this case, from the injury in fact aspect or from the zone 10 cf interests that are protected by the Act.
11 CHAIRMAN ROSENTHAL You don't think that there is 12 a t least implicitly within the zone of inte rest, is an 13 economic interest which is f ounded on the proposition that 7-U 14 the agency has taken some affirmative action in the name of 15 saf ety which in point of f act has no safety link at all and 16 does us a lot of damage?
You don't think that that is the 17 kind of claim that is assertable in this agency?
18 You think tha t is totally comparable to what was 191nvolved in the ratepayer cases?
20 MR. BURNS:
Yes, I do.
21 MS. KOHL:
But hasn't the Commission, by ordering 22 certain actions that affect the labor force, these actions 23 governing overtime, necessarily brought the union's interest
()
24 within the purview of the Atomic Energy Act?
25 MR. BURNS:
I think that to the extent that we O
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1 brought any labor interests within the purview of the Atomic 2 Energy Act, it is their interest in maintaining workers 3 health and safety, and that is not the type of injury that
{)
4 the union is alleging here.
We haven't drawn into question 5 any economic harm or the economic relationship between the 6 licensee and the union and the operators that it 7 represents.
8 MR. MOORE:
Mr. Burns, in all of the pages of the 9 Atomic Energy Act there is no implied conditions in that Act 10 that the agency is not to act arbitrarily and capriciously.
11 MR. BURNS:
Well, as I said, I will admit any 12 agency has a basic duty of f airness in the administration of 131ts own Act.
14 CHAIRMAN ROSENTHAL:
If they aren't fair, should 15 people have the opportunity to challenge it?
16 MR. BURNS:
Persons who have standing should have 17 the opportunity to challenge it.
18 MR. MOORE:
I see a certain amount of uncertainty 19 h ere.
How are you going to get standing to challenge that 20if you are aggrieved and injured in fact with an economic 21 inj u ry, and yet you don't fall within the zone of interest Z2as you would define it?
23 MR. BURNS 4 I don 't think yo u a re.
24 CHAIRMAN ROSENTHAL:
But do I understand you 25 correctly to be asserting ultimately this:
that this agency O
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tis free to do what it pleases to the economic interests of 2 third parties, no matter how arbitrary or capricious that 3 action may be?
No matter how damaging to the economic 4 interests to those individuals that action may be, the 5 individuals simply have to take it.and lump it; is that 6 really what you are telling us?
Because that is frankly, 7 Hr. Burns, the way you are coming across to me.
8 And I would have to tell you again, speaking for 9 myself, that that position is one which I find 10 extraordinarily difficult to swallow.
Now, if I have 11 overstated the position, then you tell me in what respect.
12 MR. BURNS:
I think what we have to do is ask 13 ourselves -- what you focused on is the notion that in 14 effect what the Commission action is and does is, it goes to 15 third parties, it can go to fourth parties, fif th parties, 16 sixth pa rties.
17 The actions of this agency, yes, against its 18 licensees, yes, can reverberate with a number of effects 19 through the economy.
The question of standing, which is the 20one before you, is whether those third, fourth, fifth and 21 sixth parties are the proper ones to bring the claims before 22 this agency.
23 CHAIRMAN ROSENTHALs They are the ones that are
()
24 inj ured.
And you talk about third, fourth and fifth 25 parties.
We're not talking about strangers that happen to O
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1 valk by the Nuclear Regulatory Commission.
You're talking 2 about a union which is representing a group of significant 3 employees in a nuclear power plant.
4 MR. BURNS That's true.
5 CHAIRMAN ROSENTHAL:
And these are not private 6 attorneys general.
These are people that are in the overall 7 scheme of things and have, we will assume, a vital interest 81n this matter.
9 MS. KOHLS Is this an injury to tally without 10 remedy ?
11 MR. BURNSs No, I don 't believe it is.
1?
MS. KOHLS Well then, where do they have a 13 remedy?
O 14 MR. BURNS:
Let's look to wha t extent, where the 15 injury occurred.
If you look through the papers of the 16 union, continually the union says that its interest in 17 collective bargaining and its inchoate interest in certain 18 overtime hours was injured by the unilateral act of its 19 employer in accepting a consent order and proposing certain 20 conditions to the Nuclear Regulatory Commission.
21 In effect, that injury flowed from its employer's 22 unilateral f ailure to bargain under the National Labor 23 Relations Act.
The NLRB is able to remedy that unilateral
()
24 f ailure.
25 MS. KOHL:
Perhaps so.
But isn't there a second
()
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1 level of injury, and that is when the NBC put its stamp of 2 approval on that particular proposal?
And as I understand
[}
3 the pleadings, there is some question as to who proposed 4 what in this case.
But let's leave that aside for the 5 soment and focus on the agency action, apart f rom whatever 6 the employer may or may not have done in not consulting with 7 the union beforehand.
8 What do you do about that second level?
9 MR. BURNS:
I'm not sure I understand what is the 10 second level of injury.
11 MS. KOHL:
The agency action, the Commission's 12 approval of this particular remedy for the violations that 13 had occurred at Consumers Power.
O 14 MR. BURNS:
And I say in this instance the union 151s not entitled to challenge it.
16 CHAIRMAN ROSENTHAL:
Anywhere?
I mean, here is 17 the NRC order which af fects, if anybody, adversely only thes
~
18 employees.
19 MR. BURNS:
I wouldn't say it only affects the 20 employees only.
It also affects Consumers Power Company.
21 The restriction on the license imposed on Consumers Power 22 Company saying you cannot opera te if you ha ve to use 23 operators that work --
()
24 CHAIRMAN ROSENTHAL:
Okay, I will accept that, 25 that it might have some impact upon Consumers Power.
But it O
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1 has direct impact, we will assume, on these workers.
- Now, 2 what you are telling me, if I understand you correctly, is 3 that while the workers can go to the NLRB --
)
4 MR. BURNS And redress their economic injury.
5 MS. KOHLS What can the NLRB do vis a vis the 6NRC's order, which is the proximate cause of the alleged 7 injury in this case?
Can the NLRB supersede the,
8 Commission's order in this case?
Can they take.any action 9 with regard to it whatsoever?
10 MR. BURNS:
They can redress the economic injury.
II I agree with you that the NLRB cannot set aside the 12 Director 's order in this instance.
13 CHAIRMAN ROSENTHAL:
You say they redress it.
O 14 Ultimately, sie-- che NLRB, as you agree, can't touch the 15 Commission 's.
4c, the Commission's order will stand a:4d 16 these workers will be still subject to the overtime 17 res triction.
Now, looking at that overtime restriction 18 rather than their grievance against their employer stemming i
i 19 from its alleged unilateral action in proposing this without 20 consulting with the union, but now focusing on the NRC's 21 order, you agree that the NLRB can't touch it?
22 MR. BURNS:
Yes.
23 CHAIRMAN ROSENTHAL:
And therefore what you ere
()
24 saying is, I think, th a t that order, no matter how much 251mpact it may have on the union, no matter how arbitrary or
()
i l
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1 capricious it might have been, is not subject to being 2 attacked by the people who are directly affected by it.
Now
{}
3 that is your position, is it not?
4 MR. BURNS:
My view is that the union, havino not 5ess9tted health and safety harm from that order --
6 CHAIRMAN ROSENTHAL:
I understand.
That is the 7 Lesult of your argument, isn't it?
8 NR. BURNS:
The result is that, yes, in this 9 instance the union does not have -- it is not entitled to 10 intervene in this proceeding and challenge that order.
11 CHAIRMAN ROSENTHAL:
And that all stems from this 1211ne of cases dealing witn ratepayer standing, or North 13 Anna?
O 14 MR. BURNS:
With the subcontractor in VEPCO.
15 CHAIRMAN ROSENTHhLa So that is what I think 16 you 're telling me, since your brief acknowledged itself, and 17 maybe it was the utility's brief, that several of these 18 decisions were mins.
This is what you are telling me was 19 the progeny that I spawned, is that righ t?
20 MR. BURNS:
Yes.
And again, I think it makes good 21 s e n se.
I think there may be aspects, and I understand tha t 22 you may feel uncomfortable with it.
But the idea is --
23 CHAIRMAN ROSENTHAL4 Well, I'm glad a t least that
()
24 that has come across.
25 MR. BUPNSs Put the question is, if we look at it O
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1from -- the question that is always before any court or 2 before any administrative body, is ultimately a question of
{}
3 whether the agency's action is reasonable within its 4 jurisdiction or anything similar.
That doesn 't entitle you 5 or I as citizens or any other person to intervene in those 6 proceedings to challenge those actions.
7 CHAIRMAN ROSENTHALs No matter how much we may be 81njured?
9 MR. BURNSa No ma tter how much we may be injured.
10 If we are outside, if we haven't demonstrated that injury, 11 and if we haven 't demonstra ted tha t that is an interest 12 which the Commission must take into account in framing its 13 enforcement action, then we don 't have to let, as a matter 14 of law, tha t type of intervention into NRC enforcement 15 proceedings.
16 That is the point I hope to make to you this 17 morning.
18 MS. KOHL:
Can any party ever challenge an order 19 such as this on the basis that it goes too far and that what 20it orders is not necessary to promote safety?
I gather from 21 your arguments in the brief that you seem to be saying that 22 the party here would have to argue that something more is 23 required for health and safety.
)
24 MR. BURNS:
No, because we would argue that they 25 can 't do that.
That is Marble Hill, and essentially unless l
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1 the order has been scoped such that an extension of remedies 2 beyond what the agency or its delegate has ordered are
{
3 appropriate, unless the order specifically says that, the 4 Commission has ruled in Marble Hill that as a matter of law 5 someone cannot claim injury from failure to take further 6 action as a basis for challenging the action that was 7 actually ordered.
8 MR. MOORE:
I believe the question was not going 9 as far.
If the agency order establishes as X '.he alleged 10 saf ety standard, may anyone ever say that X sinus one is a 11 sufficient level of safety?
12 MR. BURNSs I think no, except for a Licensee, who 131s the person primarily responsible to the Commission.
O 14 CHAIRMAN ROSENTHAL:
Supposing the Licensee cotes 151n and says, look, you are requiring me to do X.
That is 16 going to cost me $100 million.
Y, which is something less 17 than tha t, will suffice and tha t will only cost $50 18 million.
So we are pleading our $50 million economic 19 int er es t.
l 20 MR. BURNS:
Whatever the motivation of the l
21 Licensee may be for coming into this, the Licensee has a l
22 right to challenge that action of the Commission by virtue Z3 of the provision to the Licensee of a right to hearing in O(_/
24 the regula tion.
And also, look at what the interest of the 25 Licensee really is in that instance.
The Licensee is l ()
t l
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1 entitled to a license under the Atomic Energy Act if it 2 aeets the Act and the Commission 's regula tions, sta te health 3 and safety standards.
{}
4 If the Commission takes action to take away that S license, the Licensee has a right to challenge that it is 6not meeting the health and safety standards.
7 MR. MOORE:
You're telling us that no one can ever 8 intervene on behalf of the Licensee, isn't that what you're 9 telling me?
10 MR. BURNS:
On behalf of the Licensee, that is 11 essen tially it.
12 MS. KOHL:
In other words, holding a license or a 13 permit is your ticket to a hearing in this agency, is that O
141t ?
Is that what this is about?
15 FR. BURNS:
Not in all instances.
If you are 16 alleging that Commission action has detrimentally affected 17 you with respect to radiological health and safety, yes, you 18 are entitled to intervene in those type of proceedings.
19 MS. KOHL:
That goes back to my original 20 question.
You're saying, then, that you have to show that 21there has been some harm to health and safety and that 22 something more should be required.
I am talking about the Z3 person who alleges harm and says that something less should
()
24 be required to promote the health and safety.
25 MR. BURNS:
And I 'm sa ying in the absence of a O
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1 challenge from the Licensee that type of intervention is not 2 restired in our proceedings.
3 CHAIRHAN BOSENTHALs Your time has expired.
{}
4 MS. KOHL:
Well then, the general rule here that 5 you are proposing would not only apply to this particular 6 union in this particular case.
Then we might as well issue 7 an order right now saying others need not ever apply for I
81nterv'ention in these kind of hearings and just get it over 9 with.
10 MR. BURNS 4 In view of the type of consent -- in a 11 consent type of order, I think generally it is true, is that 12 you will not have other intervention, e t least that which 13 does Lot allege a health and safety harm.
In view of the O
14 Licensee 's special position as the person responsible under 15 the license for its activities, I think that makes good 16 sense, and I think a holding otherwise would undermine the 17 authority of the Director to enter into such consent 18 agreemen ts.
4 19 CHAIRMAN ROSENTHAL:
Thank you.
20 We will take a ten-minute recess and then we will 21 hea r f rom Mr. Bacon.
22 (Recess.)
l I
23 24 25 O
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1 ARGUMENT ON BEHALF OF THE LICENSEE 2
BY MR. BACON 3
MR. BACONa let me first comment on the questions
{)
4 that the Board has asked Mr. Sachs and Mr. Burns.
5 On the question of Mr. Sachs relating to injury in 6 f act, we have taken a position that he thought such an 71njury existed.
I recognize the same problem that the Board 8 did.
There is a lack of specificity in the pleadings about 9 the injury.
10 MS. KOHL:
Isn't it a little late for you to be 11 promoting that argument richt now?
As I understand it, you 12 did not oppose the request for a hea ring below, and your 13 submission of a brief in support of the Licensing Board's O
14 order is the first time that you have really made an 15 affirmative appearance and certainly one that is in 16 opposition to the Union's interest.
17 Can we even entertain your arguments on appeal?
18 MR. B AC0!!:
That is for your to say.
However, we 19 took the notice issued by this Board as an order to file a 20 brief, so we did.
21 HS. KOHL But haven't you flip-flopped in 22 position ?
23 MR. BACON:
I don 't think so.
We had taken no
()
24 position bef ore this.
Now our basic --
25 MS. KOHLS As I understand, you did not oppose the O
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1 grant of a hearing.
2 MR. BACON 4 We neither opposed nor supported it.
[
3 0ur position at bottom is the same as the staff, that there 4 should be no hearing based upon the zone of interest Squestion and the non-satisfaction of the discretionary 6 f actors, but upon injury in fact, I think we do agree with 7 Mr. Sachs despite the lack of specificity in his pleadings.
8 He does, I think, say enough that the Board in applying its 9 VEPCO doctrine, which is taken, I think, that you should 10 construe the pleadings liberally in f avor of standing 11 CHAIRMAN ROSENTHAL4 Well, what is it in his 12 pleadings that you think sufficiently establishes injury in 13 f act?
14 MR. BACON:
Well, in the original petition, 15 paragraph 5, it is alleged that the employm ent opportunities 18of the members may be adversely affected by the order, and 171n reply brief it said the restrictions would directly and 4
18 adversely affect the working conditions as established under 19 the collective bargaining agreement.
On page 2 and also on 20 page 11 they said the members stand to be injured by what 21 amounts to uncritical acceptance by the enforcement staff of 22 the Licensee 's gratuitous bid to restrict the overtime of 23 the licensed operators.
()
24 Now, neither the staff nor the Board below 25apparently had any problem translating this to say that we O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
44 1 are letting them work less overtime, they are going to get 2 less pay.
3 CHAIRHAN ROSENTHAL:
So you are telling us that 4 there was not a chslienge by any party below to the 5 suf ficiency of the petition insofar as it related to injury ein fact and that the Board itself did not put its decision 7 on that ground.
8 MR. BACON:
I don't believe that is correct.
I 9 think the staff largely ignored the question of an injury to 10 the members of the Union and concentrated on the Union's 11 interest in its collective bargaining rights and said that 12 wasn't injured, and we agree with that.
The Board below, 13 when it got to the decision point on this question, said O
14 that it didn't understand what employment opportunities 15 being adversely aff ected meant because there weren't any
~
16 jobs at stake.
17 CHAIRMAN ROSENTHAL:
Does the Union have to 18 establish some injury in f act to itself or would it have 19 been suf ficiant for it to have established an injury in fact 20 to its members whom it presumably represents?
21 MR. BACON:
It would be sufficient for it to 22 establish injury in f act to its members, and that is the 23 basis upon whicn we think they have established it.
This O
24 reises e question of the extent to which they ere the egent, 25 tha t they have alleged, and it is correct, that they are the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
.. ~
45
()
1 exclusive bargaining agent.
They are legally entitled to 1
2 represcat their employees, and the facts, I think, are
(~ )
3 distinguishable f rom those cases involving ad hoc
]
4 organizations where this Commission and this Board have said 5 that they have to specifically identify an individual and 6 show how he is injured.
7 CHAIRMAN ROSENTHAL:
Would you turn, Mr. Bacon, to 8 the matter of zone of interest?
You, as I reen11 it, take 9 the same tack that the staff takes in reliance upon our 10 decisions dealing with rate payers and the like.
Do you 11 reach the same bottom line that the staff reaches, that 12 there is simply no way in which the Union's position can 13 challenge this order no matter how arbitrary it might be, no O
14 matter what economic impact it might have on the Union's 15 members?
16 Do you see that as the outcome, and if so, I would I
1711ke to hear your justifica tion f or it.
18 HR. BACONS Well, I think essentially we come out 191n the same place on this order.
There is an alternate 23 remedy before the NLRB and the courts.
21 CHAIRMAN ROSENTHAL:
'A ell wait a minute before the 22 N LR B.
You assert, if I recall correctly, that the Z3 Commission's order stands as a def ense to the Union 's charge.
24 MS. KOHLS And in fact you assert that the NLRB 25 has no jurisdiction in this matter.
O l
, ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
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1 CHAIRMAN ROSENTHAL:
Now, how do you reconcile the 2 position you have taken before the NLRB with the statement 3 you have just made to us?
4 MR. BACON:
The fact first that we may have some 5 def enses does not mean that the NLRB as an agency has no 6 power to fashion the kinds of remedies that would make the 7 Union members whole.
8 MS. KOHLS Well, isn't that encompassed within 9 your sta tement that it has no jurisdiction?
If it has no 10 jurisdiction, then it can't act.
11 MR. BACONa Mo, that statemen t ca ught my eye too, 12 and I asked the attorney who prepared it what he meant, and
^
13 without, I hope, giving anything away in th a t proceeding, he O
14 said this was just meant to preserve whatever technical 15 arguments he might have that they don't have jurisdiction 16because it is untimely or because of certain other threshold 17 things.
18 CHAIRMAN ROSENTHA Ls Well, let us assume this for 19 a minute.
Even assuming that the NLRB would have 20 jurisdiction to consider t:te Union's complaint that the 21 company should have negotiated with it before putting up 22 this pro posal to the NRC, what jurisdiction would the NLRB 23 have over the Commission's order?
There is an outstandino
()
24 NRC order now and this is what is being sought to be 25 challenged in this proceeding, which restricts the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHING'ON, D.C. 20024 (202) 554 2345 I
47
()
1 performance of overtime.
2 Now, does the NLRB have the authority to determine
[}
3 whether or not that order had a safety link, and if it 4 determined that it didn't have a safety link, does the NLRB 5have the power to set the order aside or what?
6 MR. BACON:
I think not.
7 CHAIRMAN HOSENTHALs So do I.
Now, what remedy 8 then can the Union obtain that would protect this or provide 9 redress for the injury which it says flows directly from the 10 NRC order?
11 MR. BACON They can order monetary compensation.
12 CHAIRMAN ROSENTHALs For what?
13 MR. BACON:
For lost overtime.
14 CHAIREAN ROSENTHALs They can require -- well, can 15 they require the company, as you see it, to pay these 16 employees overtime compensa tion in perpetuity f or work which 17 they have not in point of fact performed but might have 18 performed but for the restrictions of the NRC order?
19 MR. BACONS My understanding is that they can 20 fashion both prospective and retrospective relief in terms 21 of compensation to the members of the Union.
22 CHAIRMAN ROSENTHALs Well, wouldn 't you think in 23 the general scheme of things that it would be in the
(
24 interest of all concerned, and the company, in particular, 25 to have the question of the validity of this order in terms O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
48 4 ()
1 of its safety link adjudicated?
Because clearly, I would 2 think, if this order does have the appropriate foundation in
/^%
3 terms of a safety link, at least as to the future, that V
4 would be the end of the matter.
5 I mean you still might have to deal with the Union 6 with regard to whether you should or should not have 7 consulted with them before going to the NRC with your 8 proposal, but it seems to me a very un sa tisf a c to ry way of 9 dealing with this for the NLRB to be entering an award for 10 the future requiring the company to pay people for work th e y 11 are not performing in circumstances where the limitation on 12 overtime might be a perfectly valid one, but the NLRB, of 13 course, would have no jurisdiction to pass on that.
14 ER. BACONS That is right.
And I think the worst 15 of all possible worlds may be that the restriction stands 16and we are compelled to make such a remedy.
17 CHAIRMAN ROSENTHALs But doesn't it make more 18 sense f rom your client's standpoint?
I don't understand 19 your argument at all. I would think that yo u would --
20 MS. KOHLS Wouldn 't you voluntarily pay what the 21 N LR B a wa rd ed ?
22 CHAIRMAN ROSENTHALs You would fight it out, but 23 why wouldn't, from the company's standpoint -- and I am not
(
24 paid to represent the company, but I am sort of curious 25 about this.
Why from the company's standpoint isn't it O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1better to have the question of the validity of this order 2 litigated in the only forum which is appropriate to litigate
(}
31t, and that is the NBC, and then it goes one way or the 4 other?
5 If the order is set aside as being arbitrary and 6 as not having a required safety foundation, then the 7 restrictions are removed.
On the other hand, if the order 81s upheld as having the necessary safety foundation, then I 9 think you would be essentially home free as to the future.
10 I just don't understand your position at all in terms of the 11 interest of the company.
12 MR. BACON:
You may be perfectly correct but I 13 don ' t see that as the issue in this case.
14 MS. KOHL:
Well, it is to the extent that 15 arguments have been made that there might be another forum 16that would be the appropriate place for the Union to press 171t s 18 MR. BACON:
There is even another forum in this 19 agency, naaely, a 2.206 proceeding, but the y would not have 20 to show standing.
21 CHAIRMAN ROSENTHALs They would not have to show 22 s ta nding ?
23 MR. BACON:
That's my understanding.
On the other 24 hand, it 's 25 CHAIRMAN ROSENTHALs Well, it would remarkable O
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11ndeed if the director were to grant a hearing at the 2 request of a 2.206 petitioner who lacks standing to obts.in 3 review in this more direct fashion.
{
4 MR. BACON:
Well, it would be unusual to have a 5 hearing at all under 2.206 petition, I think.
6 CHAIRMAN ROSENTHAL:
Well, that may be the 7 practical effect.
Well, you see no distinction, I take it, 8 and the staff sees no distinction between this case and the 9 rate payers cases?
Is that true?
10 ER. BACON:
Essentially that is correct in terms 11 of the zone of interest aspect of the problem.
This agency, 12 as the court has said, is not in the business of protecting 13 the pocketbooks of the interested parties.
14 CHAIRMAN ROSENTHAL:
Well, we are not in the 15 business of protecting the pocketbook interests.
We are in 16the context of a conventional licensing proceeding.
Does it 17 necessarily follow that we have no responsibility to look 18 out for the pocketbook interests of an individual or 19 individuals who claim that some affirmative order which the 20 Commission has entered adversely affects their pocketbook 21 interests and is totally arbitrary ?
Are they really the 22 same thing?
23 MR. BACON:
On the basis -- if it is a totally O) 24 arbitrary m atter, I would think right.
(
25 CHAIRMAN ROSENTHAL:
That is the claim, isn't it?
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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(_)
1 I thought in this case what the Union is asking for is an 2 opportunity to demonstrate at a hearing that this order was
(';
3 arbitrary in the sense that it had no safety link at all.
4 MR. BACON:
Yes, this case is distinguishable from 5 most, if not all of the other cases cited in that the issue 6they wish to litigate is squarely within the terms of the 7 confirmatory order.
But still, when you get right down to 81t what they are trying to protect is the economic interests 9 of their mem bers, and that has been held in decision after 10 decision of this agency not to be within the protected zone 11 of interest.
12 CHAIRMAN ROSENTHALs In a licensing context, not 131n this context.
What we said in the rate payer cases, was 7s
(,,I 14 1t not, that somebody could not come in and oppose a plan on i
15 the ground ' tha t the plant would raise his or her electric 16 rates ?
We said that when we are licensing a plant, we 1711 cense it with an eye only on the health and safety and 18 environmental considerations, anti-trust, of course, to one l
19 side.
20 Now, does it follow from that that someone cannot 21 come in where there has been an aff.m mative order entered by 22 the Commission which has a direct impact upon that person's 23 pocketbook interest, the person cannot come in and say wait 24 a minute, we think that order is arbitrary?
And in 25 actuality I suppose wha t they are saying is that in entering G's.)
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 that order, you the Commission went beyond the bounds of 2 your statutory responsibili ties. Your statutory
/~T 3 responsibility is to regulate safety, and what you have done V
4 here is to get into the labor-management relations area 5 without there being any safety connection a t all.
8 You don't see that distinction?
7 MR. BACON 4 No, I'm afraid I don't. I don't think 8 that the distinction has been drawn in the agency's 9 decisions.
10 CHAIRMAN ROS ENTH AL :
We haven't had this case 11 before, have we?
12 MR. BACON:
Not this particular case.
13 CHAIRMAN ROSENTHAL:
Haven't all of our economic O
14 int erest decisions been in the context of either a 15 construction permit or an opera ting license proceeding or 16 perhaps a conventional operating license amendment 17 proceeding?
'Je ha ven ' t had anything that dealt with an 18 a tt empt to challenge an affirmative Commission order of this 19 nature.
20 MR. BACON - Marble Hill, I think, involved an 21 order for permanent suspension of construction.
22 MS. KOHL:
Isn't an underpinning, though, of all Z3 of our economic interest cases the fact that there might be
(
24 other fora that would exist for the litigation of the rate 25 payers ' interests?
For example, they could go to their l
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
53
(])
1 state regulatory agency or the FERC, the agencies that are 2 set up to deal with those kir d of economic interests,
{~}
3 whereas in this case it is unclear to what extent the NLRB 4 could exist or could establish a remedy for the alleged hara 5here.
6 MR. BACON 4 I think the first part of your 7 statement is generally true.
I think this Board has relied 8 upon the availability of an alternate forum or an alternate 9 route within the Commission.
10 MS. KOHL:
Well, not merely an alternate forum but 11 one tha t is more appropriate to the resolution of economic 12 f actors such as what rate should be paid.
13 MR. BACON 4 That's right.
Then I think you have O
14 those alternate fora here.
15 CHAIRMAN ROSENTHALs Well, not one that can pass 16upon the justifica tion f or this restriction.
If this 17 restriction has a safety link, this agency I would think is 18 clea rly in the best position to so determine. NLRB kmows 19 very little, I would suspect, about the operations of a 20 nuclear power plant, the impact, if any, that working long 21 hours2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br /> might have on the attentiveness of the operators or 22 wha te ve r.
23 This agency, it seems to me, is peculiarly suited
()
24 for making the judgment on the existence or non-existence of 25 a saf ety link, whereas as Ms. Kohl points out in the case of C
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1 economic implications of a nuclear power plant, we have no 2 special expertise in that sres at all, and that is a
{}
3 question which is much better addressed and decided by a 4 public utilities commission in a particular state.
5 MR. BACON:
I think the cases are analogous.
I 6 don 't think the NLRB would try to have this agency's order 7 set aside, and I think they could, they do have the power to 8 f ashion a remedy that would make the Union and its members 9 whole, or as nearly so as possible without affecting this 10 role.
11 CHAIRMAN ROSENTHAL*
So they make the members 12 whole.
In order to make the members whole they would in 13 f act have to say to the members, well, we don't know whether 14 tha t NRC order is valid or not because we don 't have the 15 jurisdiction to pass upon its validity, but we are going to 16 give you benefits on the assumption that that order is 171nv alid.
Unless they did that, then the employees would not 18 be made whole, it4would seem to me.
19 MR. BACON:
I think they would do it, if they did 20 it at all, on the basis that there had been an unfajr labor 21 practice involved by the company.
22 CHAIRMAN ROSENTHAL An unfair labor practice in Z3 not consulting with the Union in advance means that the
()
24 company must pay the piper in perpetuity because of the NBC 25 order that eventually ensued as the result of or as O
ALDERSON REPORTINL,OMPANY. INC.
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1 partially a result of the unf air labor practices.
2 Is that right?
[]}
3 HR. BACON:
Well, I can't represent to you for 4 certain that it is in perpetuity, and certainly we would 5 argue against such a presumption.
6 CHAIRMAN ROSENTHALs I 'm sure you would.
7 MS. KOHL:
Can I clear up some confusion about 8 what the source of this overtime proposal was?
I think you 9 state in an attachment to your brief -- it is a letter to an 10 of ficial of the NLRB -- tha t the particular overtime 11 restrictions here were not a proposal by the Licensee but 12 rather something proposed by the staff; is that correct?
13 MR. BACON:
I wish I could clear that up.
That is 14 a question of f act that I really can't answer.
I don't know 15 whether it was originally proposed orally by the staff and 16 we said fine and put something down in writing, or whether 171t oricinated with us.
18 MS. KOHL M r. B urns, can you clear that up?
19 HR. BURNS:
I was not present at the meeting where 20 the restrictions were proposed.
I have talked to members of 21 the Region III staff who informed me to the best of their 22 recollection the Region III staff had a concern about the Z3 impact of the overtime.
They did not propose the particular
(
24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> that came from the company.
25 MS. KOHL:
But the subject of overtime O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 restrictions originated with whom?
2 MR. BUh.15:
The subject matter itself originated
{)
3 with the Commission staff, the Inspection and Enforcement 4 staff.
5 MS. KOHL So that is consistent with the letter 6 signed by counsel for your company.
7 MR. BACON:
Yes, but I was not present at the 8 meeting either and I don't know the specificity with which 9 the suggestion was made, so I really can't clear that up.
10 MS. KOHLa But if tha t is sta ted in a letter that 11 your co-counsel signed, in a letter to the NLRB, is there 12 any reason to doubt it?
Are you saying you don't agree with 13 1 : or he would make a representation that is not correct?
O 14 MR. BACON:
His representation is a general one, 15 a s I he a rd i t.
I'm merely saying I don't know.
16 MS. KOHL:
Well, he takes creat pains to underline 17 that particular statement in the letter.
That is what 18 caught my eye about it, and it seemed to be a little bit at 19 odds with some of the prior presentations.
i 20 MR. BACON:
I'm sorry, I'm just saying I don't 21 know the specifics of the matter.
l 22 CHAIRMAN ROSENTHAL:
Your time has expired.
l l
23 Mr. Sachs.
(
24 25 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
57
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1 FURTHER ARGUMENT ON BEHALF OF THE APPELLANT 2
HR. SACHS:
I would like to respond on two
{}
3 points:
The first, on who initiated what.
The NLRB's 4 general counsel's investigation supported and supports the 5 position of the union.
That is part of the formal 6 complaint.
Specifically, in paragraph 9 the allegation is 7 that this was initiated by the employer.
Shortly after the 8 order entry in the house journal of the company speaking to 9 the o rd e r, it concludes with reference to Russell CeWitt, 10 vice president of nuclear operation for the com; sny, as 11 follows.
DeWitt noted again that the order "merely confirms 12 steps that the company's management had proposed and is 13 implemen ting."
14 HR. MOORE:
M r. Sachs, why is it relevant as to 15 whether it was proposed by Consumers or the agency, if your 16 claim is in either case it is a rbitrary?
It might be 17 relevant to the NLRB action, to your refusal to bargain 18 claim and an unf air labor practice complain t.
But why is it 19 relevant here?
20 MR. SACHS.
I couldn't agree with you more.
But 21 I ' m merely elaborating -- I'm responding to the question 22 which was just put by Ms. Kohl.
23 Secondly, with respect to the availability or
(}
24 adequacy of the remedy bef ore the NLRE, as has already been 25 noted, the Licensee's position before the NLRB is quite O
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I contradictory with their position here.
Here the assertion 21s that we have an adequate remedy there.
There the
(]}
3 assertion is that we have an adequate remedy here, or at 4 least 5
CHAIRMAN ROSENTHALa Where did they argue that, 6 that you have an adequate remedy here?
7 MR. SACHS:
Well, the im plication is that.
The 8 affirmative defense in the answer is, of Consumers', and 9 this is bef ore the NLRBs 10 "One, the alleged restrictions upon overtime were 11 imposed by the Nuclear Regulatory Commission and not by the 12 Respondent, and as a matter of law compliance with an 13 applicable order of a regulatory agency cannot constitute a 14 refusal to bargain."
15 CHAIRMAN ROSENTHALs I undersetand that.
But that 161s scarcely, by implication or otherwise, a suggestion that 17 you have an adequate remedy here.
They're just saying that 18 the existence of that order provides a defense.
19 MR. SACHSa Well, presumably they are implying, at 201ea s t, that the order that was entered here was a proper 21 order and therefore an order on which they can rely, and not 22 only an order upon which they can rely but one on which-the 23 NLEB was bound.
24 MS. KOHLS I think their a rgument is not that so 25 much as it is one -- it is an order with which they have to
. LDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 comply.
That is the implication I-get from reading thi s 2 affirma tive defense.
3 MR. SACHSa I grant that.
But they go on in rg V
4 paragraph 2, the conclusion of the answer of paragraph 2:
5 "The alleged overtime restrictions were imposed pursuant to 6a federal order and therefore cannot constitute a refusal to 7 bargain."
So they are asserting that as a direct defense to 8 the allegation at the NLRB that there is a refusal to 9 bargain.
10 In any event, the assertion is they claim that the 11 agency, that agency is bound -- they are bound.
So that 12 while the suggestion is here that we should look over there, 13 when we get there we are met by that kind of response.
14 In terms of what the NLRB can do, obviously the 15 NLRB cannot directly attack the order of this agency, nor I 16 suspect would it even entertain evidence in an evidentiary 17 hea ring as to any safety impact or rela tedness standard.
18 There the issue would be how the matter came to be l
19 formulated, and specifically what the company's role was in 20 that formulation, not whether there was a safety 21 justification.
l 22 CHAIRMAN ROSENTHAL:
Well, what redress are you 23 specifically seeking from the NLRB?
You appear to recognize
()
24 tha t the NLRB is not going to tamper with the Commission 's 25 order.
If the order remained in effect, that would impose i
C)
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTC , D.C. 20024 (202) 554 2345
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1 these overtime restrictions in perpetuity or for as long as 2 the order remained in eff ect.
What, in terms of economic
("J) 3 redress, are you contemplating in your NLRB complaint?
u 4
MR. SACHSa At this stage, it is beyond what we 5are asking, because under the National Labor Relations Act 6 the genersi counsel has exercised his nonreviewable 7 discretion, brought a complaint and seeks relief.
That 8 relief, among other things, seeks to make employees whole 9 for the lost overtime.
10 CHAIRMAN ROSENTHAL:
Past and future?
11 MR. SACHS:
Presumably.
Let me give you the 12 specific language, and it is part of the attachment of the 13 Consumers saterial.
The formulation in the prior paragraph, O
14 2B, of page 4 of the NLRB complaint is "make whole its 15 employees f or any financial losses sustained by them as a 16 result of the Respondent's unilateral changes described 4
17 above in paragraph 9 and 10, with interest computed in 18 accordance with current Board policy."
19 Then there is also a request that notice be 20 p osted, and then the notice itself contains certain 21 provisions.
But there is no request for relief by the 22 general counsel in any way, shape or form, should tha t 23 complaint go to successful trial, et cetera, which would in
()
24 an y way directly impact upon the order here at all.
25 And the maximum prospective relief which is asked
/-..
i ALDERSON REPORTING COMPANY,INC, l
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1 would require the Licensee to bargain with the union with
,j 2 respect to any proposed changes, presumably then to come
)
3 back here, that is the two of them together with some 4 concerted view or, in the event of impasse, then by the 5 employer as a supplicant to this acency, as opposed to 6 dealing directly with the underlying order.
7 So safety never gets examined, the order itself 8 never gets examined, except in the sense that if, after the 9 exhaustion of the NLRB proceedings, which involve a trial 10 which will not come until next August and potential 11 administrative and judicial review proceedings have another 12 three to five years, would at the end of the line then 13 enable that kind of request.
14 Now, that is hardly an adequa te remedy and does 15 not begin at all to deal with the source of the damage.
The 16 initiation of the damage was the company 's request, but th e 17 source was the order which is involved here.
18 I have nothing f urther, unless the Board does.
19 CHAIRMAN ROSENTHALs Thank you, Mr. Sachs.
20 On behalf of the entire Board, I wish to thank 21 counsel for their helpful o;esentations this morning.
And 22 on that note, the union's appeal will stand submitted.
23 (Whereupon, at 11408 a.m.
the hearing was
()
24 adjourned. )
25 O
ALDFRSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
~
Q]
NUCLEAR REGILAT'ORY COMMISSION This is to certify that the attached proceedings before the 9g ATOMIC SAFETY AND LICENSING BOARD in the :: tatter of:.
Consumers Power Company (Palisades Nuclear Power Facility)
Date of Proceeding:
November 17, 1981 Docket Number:
50-255 (EA 81-18)
Place of Proceeding: Bethesda, Maryland were held as herein appears, and that this is the original transcript thereof for the file of the Cocimission.,
Ray Heer Official ?.eporter (Typed)
',h 7
[ 0h/
Ad Officia Reporter (3ignature) r
- !}(
f