ML20032E359
| ML20032E359 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 10/23/1981 |
| From: | Bacon J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20032E360 | List: |
| References | |
| ISSUANCES-SP, NUDOCS 8111200462 | |
| Download: ML20032E359 (26) | |
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USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 11 Ef 27 P252 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD OF SECRETARY CK TING & SERVICE BRANCH In the Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-255 SP
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(Palisados Nuclear Power Facility) )
o ISt' BRIEF OF CONSUMERS POWER COMPANY Q~
V IN SUPPORT OF ORDER g
RULING ON PETITION TO INTERVENE 5
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.Judd L. Bacon Managing Attorney Consumers Power Company 212 W. Michigan Avenue 0p Jackson, Michigan 49201 517/788-1366 4y October 23, 1981 hoh!5 A
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s TABLE OF CONTENTS Page INTRODUCTION - - - - - - - - - - - - - - - - - - - - - - - - - -
1 5
QUESTIONS PRESENTED aman-------_-----__---_-_----__-
5 I.
The Union is Not Entitled to a hearing as a 5
Matter of Right A.
The overtime restriction promulgated by NRC does not constitute deprivation of a property interest for which an opportunity for the Union to be heard is required under the Due Process Clause of the Fifth Amendment to the US Constitution 5
B.
The Union's interests in preserving its collective bargaining rights and in main-taining established overtime practices are not arguably within the " zone of interests" to be protected or regulated by the Atomic Energy Act so as to entitle the Union to a hearing as a tratter of right - - - - - - - - - - - - -
8 II.
The Referral Order Did Not Preclude the Licensing Board from Considering Whether to Grant the Union a Hearing as a ;;atter of Discretion 10 III. The Union Should Not Be Granted a Hearing as a Matter of Discretion, Considering the Factors to be Weighed in Deciding Whether to 14 Grant a Discretionary Hearing CONC LU S I O N - - -
20 4
TABLE OF AUTHORITIES CASES:
Page Association of Data Processing Service 8
Organization, Inc v Camp, 397 US 150, 25 L Ed 2d 184 (1970) - - - - - - - - - - -
Board of Regents v Roth, 408 US 564, 33 L Ed 2d 548 (1972) - -
6 Klein v Califano, 586 F2d 250 (3d Cir. 1978) 6 O' Bannon v Town Court Nursing Center, 6, 7 447 US 773, 65 L Ed 2d 506 (1980) - - - - - ~ - - - - -
Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636 (1972) - - - -
9 NRC CASES:
Detroit Edison Company, The (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 10 7 NRC 473 (1978)
' Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-535, 9 NRC 377 (1979) 9 Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-582, 11 NRC 239 (1980) - - - - - - - - - - - - - -
10 Northern Indiana Public Service Company
[
(Bailly Generating Station, Nuclear 1),
ALAB-619, 12 NRC $58 (1980) - - - - - - - - - - - - - -
13 Northern States Power Company (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523 (1980) - - - - - - - - -
8 Nuclear Engineering Company, Inc (Sheffield Waste Disposal Site), ALAB-473, 7 NRC 737 (1978) 8, 11 Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, 4 NRC 610 (1976) - - - - - - - - - - - - - -
8,11,14,15 3
CASES Page 1
Portland General E1cetric company (Troj an Nuclear Plant), ALAB-534, 9 NRC 287 (1979) - - - - - - -
13 Public Service Company of Indiana (Marble
{.
Hill Nuclear Generating Station, Units 1 i
and 2), CLI-80-10, 11 NRC 438 (1980) - - - - - - - - - -
12,13 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418
)
(1977) - - - - - - - - - - - - - - - - - - - - - - - - -
11,16 i
Union Electric Company (Callaway Plant, Units 1 j
and 2), ALAB-527, 9 NRC 126 (1979) - - - - - - - - - - -
17,18 i
Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-342, NRCI-76/8, p_98 (1976) - - - - - - - - - - - - - - - - -
9,10,16 i
Virginia Electric and Power Company (North' Anna Power Station, Units 1 and 4), ALAB-363, j
4 NRC 631 (1976) - - - - - - - - - - - - - - - - - - - -
11,16 i.
i STATUTES:
l I
2 9 US C & & l41 e t s e q. - - - - - - - - - - - - - - - - - - -
5 42 USC $2239 - - - - - - - - - - - - - - - - - - - - - - -
8
,i REGULATIONS:
i 10 CFR 52.202 12,13 10 CFR 52.206 2,3,8 I
i 10 CFR 52.714 1
OTHER:
US Constitution, Adt 5 - - - - - - - - - - - - - - - - - -
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UNITED STATES OF AMERICA NUCic.AR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4
In the Matter of
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4
)
Docket N'. 50-255 SP CONSUMERS POWER COMPANY
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(Palisades Nucicar Power Facility) )
BRIEF OF CONSUMERS POWER COMPANY IN SUPPORT OF ORDER RULING ON PETITION TO INTERVENE INTRODUCTION This proceeding involves the petition of the Utility Worker's Union of America and its affiliate, the Michigan State Utility Worker's Council (the " Union"), for hearing on the Order Confirming Licensee Actions to
~~
Upgrade Facility Performance at the Palisades nucicar power plant [the
" Confirmatory Order"), dated March 9,1981 and issued by the Director of the NRC's Office of Inspection and Enforcement. /
1 The Confirmatory Order recited, in Part II, that the performance of Consumers Power Company (the " Licensee") at Palisades in the areas of reactor operations and radiation protection was rated "below average" as compared to other NRC Region III licensees in the NRC's Systematic Appraisal of Licensees' Performance, based on a history of noncompliances and enforce-action. Part III of the Confirmatory Order referred to a personnel error
- 1 1/
- The Staff, in its June 17, 1981 Response to UWUA's Reply Brief, p 4, fn 5, asserts that a Itcensee's prior consent to a confirmatory order constitutes a waiver of hearing, of all right to seek review, or to con-test the validity of the order, citing 10 CFR $2.202(e). The Staff's reliance is misplaced, since 52.202(e) applies only to show-cause orders.
j
2 occurring on January 6, 1981, resulting in violation of a Limiting Condi-tion for Operation. These findings indicated to the Director that " major changes in the licensee's management controls are necessary to assure that the licensee can operate the Palisades facility without undue risk to the health c,d safety of the public." Confirmatory Order, p 3.
The Licensee requested a meeting with NRC enforcement personnel and presented a program of actions to upgrade performance. Additional commitments were made following the meeting. The Director determined that these commit-ments are required in the interest of public health and safety and should be confimed by an immediately effective order. Included among the or-dering paragraphs of the Confirmatory Order was the following:
"B.
Extended overtime on the part of licensed operators shall be avoided by restricting the overtime for licensed operators as follows:
(1) No more than 4 overtime hours in any 24-hour period;
.(2) No more than 24 overtime hours in any 7-day period; (3) No more than 64 overtime hours in any 28-day period.
The Director of Region III may relax or terninate any of the preceding conditions in writing for good cause."
Confirmatory Order, pp 6-7.
The Confirmatory Order proviued that any person who has an interest af-fected by it may request a hearing, and if.that person is other than the Licensee, that person "shell describe in accordance with 10 CFR 2.714(a)(2) l the nature of the person's interest and the manner in whf ch that interest i
is affected by this Order." Confirmatory Order, p 10.
If a hearing is j
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3 a
held, the Confirmatory Order went on, "the issue to be considered at such hearing sha'.. Se:
'Whether on the basis of the matters set forth in Sec-tions II and III of this Order, this Order should be sustained.'" Ibid.
Pursuant to the Confirmatory Order and 10 CFR 52.714(a)(2), the Union petitioned on March 31, 1981 (the "Unicn Petition") for a hearing on the Confirmatory Order on grounds that (1) the above-quoted overtime re-striction was " evidently proposed by the licensee, not this Commission, and without notice or consultation with the Union," Union Petition pp 1-2, (2) the overtime restriction is more restrictive than the generally ap-plicable interim criteria issued by the NRC's Director, Division of Li-censing on July 31, 1980, (3) "no reason was demonstrcted or existed or was pertinent to [the Confirmatory Order] to occasion greater restriction o on overtime that [ sic] is otherwise required by the Commission's general standards, or is permitted to the licensee under its collective bargaining obligations to the Union under the National Labor Relations Act", Union Petition, p 2, and (4) the employment opportun~itics of Union members are or may be adversely affected by the Confirmatory Order. The Union asked that the order be vacated in respect to 'the overtime restriction.
By order. dated July 31, 1981 (the "ASLB Order"), the Atomic Safety and Licensing Board (the " Licensing Board") to which the request i
for hearing was referred held that the Union had not established a legal right to a hearing on the Coufirmatory Order and
- hat it was not permitted to consider whether a hearing should be granted as a matter of discretion.
The Licensing Board went on to state that a discretionary hearing would concern matters not arguably within the zone of interests' protected by
4 the Atomic Energy Act and should not be granted even if a discretionary hearing could be considered.
On August 17, 1981, the Union appealed, arguing that (1) due process requires that the Union be afforded an opportunity to be heard since the overtime restriction adversley affects the Union's interest in maintaining contractually established employment rights and benefits, one of which is the exoectation that established overtime practices will not be altered without bargaining between the Licensee and the Union; (2) the Union has a right to be heard to challenge the overtime restriction in the Confirmatory Order on the basis that it is unrelated to any safety in-terest and is therefore unsupportable; (3) the Palisades operators have standing by virtue of their legally protected interest in maintaining em-ployment rights, "their singular status as workers employed within that radiological facility", their expertise, and the fact that their working conditions are directly affected by the Confirmatory Order; and (4) the Union should be granted a hearing as a matter of discretion since it is a party "equippen to make a substantial contribution to the development of a sound record" with respect to the relationship between evertime standards and safety; and (5) the Licensing Board erroneously concluded that the Commission's referral order of May 29, 1981 (the " Referral Order") did not t
permit it to grant a hearing as a matter of discretion.
By order dated October 8,1981, the Atomic Safety and Licensing Appeal Board (the " Appeal Board") accepted the Union's appeal and ordered Licensee and Staff briefs to be filed by October 23, 1981.
g For the reasons hereinafter set forth, the Licensee believes L
the ASLB Order should he af firmed, except insofar as it holds that the l
[
5 Licensing Board was without power to grant a discretionary hearing.
QUESTIONS PRESENTED A.
Does a labor union which is the collective bargaining agent for li-censed operators at a nuclear plant have standing so as to be entitled, as a matter of right, to a hearing on an NRC confirmatory order that limits the overtime hours of such licensed operators more severely than the NRC's generally applicable criteria, on the basis of a pro-posal advanced by the licensee without consultation with the union, where the union alleges that applicable labor law requires a change in overtime hours to be the subject of collective bargaining between the licensee and the union, and that the overtime restriction has not been justified by safety considerations?
B.
If the Union is not entitled to a hearing as a matter of right, was the ASLB correct in concluding that the Referral Order did not permit it to grant a hearing as a matter of discretion?
C.
If the ASLR could grant a hearing as a matter of discretion, is that action warranted under the circumstances?
ARGUMENT I.
The Union is Not Entitled to a Hearing as a Matter of Right.
A.
The overtime restriction promulgated by NRC does not constitute deprivation of a property interest for which an opportunity for the Union to be heard is required under the Due Process Clause of the Fifth Amendment to the US Constitution.
The Union asserts that collective bargaining is mandated and pro-tected by the National Labor Relations Act, 29 USC 141 eti seq., that the Union ~and the Licensee have a contractual relationship defining employment e
I
6 rights, benefits and working conditions, that under the NLRA and applicable case law overtine hours are an established term of employment which may not be reduced without consulting the employees' bargaining agent, and that the Union therefore has an entitlement to a benefit which is a " property in-
~I terest" protected under the Due Process Clause of the Fif th Amendment against governmental interference without an opportunity to be heard.
The Union cites Klein v Califano, 586 F2d 250 (3d Cir. 1978) for the proposition tt.at a governmental agency may not change an established condi-tion of employment without extending to those affected an opporturity to be heard. Union Brief on Appeal, August 28, 1.981, p 8.
In Klein, the question was whether consultation with nursing home patients is required as a matter of due process before the Government may terminate the home's certification of eligibility to' serve Medicaid patients, who would therefore have to be transferred to a certified facil-ity.
The Third Circuit held that there was such a due process right.
How-ever, as the Staff has pointed out in its September 15, 1981 Reply to the Union's Showing of Cause for Late Filing, at p 4, the US Supreme Court has since held to the contrary in O' Bannon v Town Court Nursing Center, 447 US 773, 65 L Ed 2d 506 (1980). The Supreme Court was not persuaded by the claim that Medicaid provisions are the source of a constitutionally protected " property right"; although those provisions protected patients by limiting the circumstances in which the nursing home might transfer
-2/ "No person shall..
be deprived of life, liberty, or property with-out due process of law.
." Amendment 5, Constitution of the United States. An employment contract may be the source of a " property in-terest" protected by due process.
- See, e.g.,
Board of R'egents v Roth, 408 US 564, 33 L Ed 2d 548 (1972).
- - v.
7 patients -they did not limit the Government's right to make transfer neces-sary by decertifying the nursing home. The transfer impact, said the Court, l
is an indirect and incidental result of Government enforcement action, and "does not amount to a deprivation of any interest in life, liberty, or property." Jd., 65 L Ed 2d at 519. The pat'ients injured by the transfer might have a claim for damages against the nursing home, but not against the Government.
"Their position under these circumstances would be com-parable to that of members of a f amily who have been dependent on an errant father; they may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings, but surely they have no constitutional right to participate in his trial or sentencing procedures.
Ibid.
"Over a century ago this Court recognized the principle that the due process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action.
"... the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not turn the decertification into a governmental de-cision to impose that harm."
Id., 65 L Ed 2d at 520.
'The analogy to the present case is striking. Here, the Union is claiming that its right to.have collective bargaining with respect to an established condition of employment--a right which it claims vis-a-vis the Licensee--
1 has been adversely affected by the NRC's action restricting the manner in which the Licensee may operate its facility, based' on safety considerations, j
j The effect on the Union's interest is thus an indirect one.
Application of the _0' Bannon rationale requires denial of the Union's claim that due process requires an opportunity for hearing under the present set of facts.
I 6
8 B.
The Union's interesta in preserving its collective bargaining rights and in maintaining established overtime practices are not arguably within the " zone of interests" to be protected or regulated by the Atonic Energy Act so as to entitle the Union to a hearing as a matter of right.
The Commission has ruled that contemporaneous judicial concepts of standing govern in determining whether a petitioner for intervention in licensing proceedings has an " interest [which] may be affected by the proceeding" within the meaning of Section 189a. of the Atomic Energy
$ and its implementing regulation, 10 CFR 2.714(a).
Portland General Act Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976); Northern States Power Company (Tyrone Energy Park, Unit 1), CLI-80-36,12 NRC 523, 526 (1980); Nuclear Engineering Company, Inc (Sheffield Waste Disposal Site), ALAB-473, -7 NRC 737 (1978).
Ac-cordingly, a petitioner must satisfy two requirements in order to have standing: he must allege some injury that has or will probably result from the action in question--the " injury in fact" test--and he must allege an interest arguably within the zone of interests protected by the statute--
the " zone of interests" test.
Ibid.; Cf. Association of Data Processing
. Service Organizations, Inc v Camp, 397 US 150, 25 L Ed 2d 184 (1970).
Licensee believes that the Union has met the " injury in fact" test by asserting that its interest in maintaining established overtime practices and its members' economic interests in such practices (and their expectation of opportunities to earn overtime premium pay) will be
--3/ "... the Commission shall grant a hearing upon the request of any person whose interest may be af fected by the proceeding.
42 USC $2239a.
9 adversely affected by the overtime limitations in the Confirmatory Order.4/
The situation is analogous to that presented in Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-342, NRCI-76/8, p 98 (1976). There, a supplier petitioned to intervene in an operating.
license proceeding to litigate questions concerning the integrity of steam generator and reactor coolant pump supports. The supplier had furnished supports with defective welds, which the licensee caused to be removed and replaced by others, filing suit against the supplier for breach of con-tract.
In support of its own standing to intervene in the licensing proceeding, the supplier alleged that the supports might fail due to deficiencies in design and construction, in which event the supplier's repu-tation might well be damaged. The Appeal Board held that the " injury in fact" test had been met.
There, as in the present case, the injury was essentially economic in character.
The Appeal Board just as readily found, in North Anna, that the supplier's interest was not " arguably within the zone of interests pro-tected by the Atomic Energy Act."
The supplidr's concern for the safety of the facility had as its sole source the supplier's interest in pro-tecting its business reputation and avoiding possible damage claims.
"But we have been pointed to nothing in the terms.or legislative history of the Atomic Energy Act which might
-4/ An organization whose members are injured may represent those members, and may meet the " injury-in-fact" test by demonstrating injury to one or more of its members. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979).
Cf. Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636, 645 (1972).
10 l
provide even a s7bbly underpinning for a suggestion that the statutory health and safety provisions had--even as a secondary purpose--the furtherance of an interest of that character. Nor do we perceive any basis for pre-suming the existence of such a legislative danger."-
]Bl., at 105-6.
The Appeal Board has reached.the same result where the interest sought to be protected was the maintenance of property. values in the light of peti-tioner's plans to invest in real estate near a nuclear plant site. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980). Similarly, utility members' or ratepayers' interest in avoiding electric rate increases is not within the protected zone of interests. The Detroit Edison Company (Enrico Fermi
. Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 476 (1978); Pebble Springs, supra.
Although the Union has asserted that the overtime restriction should not be sustained because the Confirmatory Order does not establish a connection between the restriction and any safety considerations, this is unavailing so far as any right to a hearing is concerned. This is so because the interest sought to be protected is an economic one and is there-fore outside the zone of interests protected by the Atomic Energy Act.
North Anna, supra.
II.
The Referral Order Did Not Preclude the Licensing Board Considering Whether to Grant the Union a Hearing as a Matter of Discretion.
Although a person petitioning to intervene in a proceeding may not meet the tests for intervention as a matter of right, the Commission has recognized that, in a particular case, such a person may be, able to make a valuable contribution to the decision-making process. Accordingly, the
e 11 Commission has established factors to be weighed by adjudicatory boards in exercising discretion to pernit intervention.
" Permission to intervene should prove more readily avail-able where petitioners show significant ability to con-tribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set forth those matters with suitable specificity to allow evalua-tion, and demonstrate their importance and immediacy, justifying the time necessary to consider them."
Pebble Springs, supra, 4 NRC at 617.
The Commission set forth in Pebble Springs "some factors" to be considered in making this determination. Subsequent cases have held that the primary factor to be considered is whether participation by the prtiitoner would likely produce a valuable contribution to the agency's decision-making process. Nuclear Engineering Company, Inc (Sheffield Waste Disposal Site),
ALAB-473, 7 NRC 737 (1978); Tennessee Valley Authority (Watts Bar Nuc1 car Plant, Units 1 and 2), ALAB-413, 5 t;nC 1418,1422 (1977); Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 633 (1976).
In the present case, the Licensing Bo,ard held that it was not per-mitted to exercise this discretion at all, since the Referral Order stated that the Licensing Board was to " decide whether the union shculd be~ granted a hearing.
If the Licensing Board determines that a hearing is required, it should conduct the hearing." (Emphasis added) ASLB Order,'p 18.
In arriving at this conclusion, the Licensing Board said that the phrase "should be granted" is most appropriately read in context with the word
" required", and accorded considerable weight to the fact that the "use of discretionary hearings is rare in general, and unheard of in the con-text of an NRC enforcement action."
Ibid.
12 Although Licensee is not persuaded that "should", in the Referral Order, _ must be read in the context of " required" rather than the other way around, it believes that some support for the Licensing. Board's reading can be found in the policy considerations applicable to this type of proceeding.
In holding that it can limit enforcement proceedings to whether the facts as stated in an order are true and whether the remedy selected is supported by those facts, the Commission has stated that:
"The reasons for this are simple. We believe that public health and safety is best served by concentrating inspection and enforcement resources on actual field inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings. This consideration calls for a policy that encourages licensees to consent to, rather than contest, enforcement actions.
Such a policy would be thwarted if licensees which con-sented to enforcement action were routinely subjected to formal proceedings possibly leading to more severe or -
different enforcement actions. Rather than consent and risk a hearing on whether more drastic relief was called for, licensees would, to protect their own interests, call for a hearing on each enforcement order to ensure that the possibility of less severe action would also be considered. The end result would be a major diver-sion of agency resources from project inspections and engineering investigations to the conduct of hearings."
Public Service Company of Indiana (Marble Hill Nuclear Generating Station Units 1 and 2), CLI-80-10, 11 NRC j
438, 441-2 (1980).
At the same time, it must be recognized that Marble Hill involved a re-quest to consider enforcement remedies additional to those set forth in the enforcement order under consideration.
In such cases, 10 CFR 2.206
--5/ The Commission did decide,'after consideration, not to grant a hearing to petitioners in the circumstances of that case as a discretionary matter.
It offered no guidance, however, as to whether it expects ad-j judicatory boards to always, never, or sometimes consider whether a r
discretionary hearing should be granted.
{
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13 makes available to petitioners the alternative remedy of a show-cause order, and a hearing board need not consider such additional remedies absent di-rection from the Comission to do so.
Marble Hill,' supra, 11 NRC at 441; Northern Indiana Public Service Company (Bailly Generating Station, Nu-clear 1), ALAB-619,12 NRC 558 (1980); Portland General Electric Company (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90, fn 6 (1979).
Here, in contrast, the Union alleges among other things that the overtime restriction is not supported by the facts set forth in.the Con-firmatory Order as a basis for the remedies therein ordered--an allegation i
squarely within the terms of the issue to be litigated in this case if a hearing is granted. The Union is not, like the Marble Hill petitioners, claiming that the order does not go far enough in assuring safety--a com-plaint for which 2.206 is an availabic remedy--but, rather, is claiming that the order goes too far, by imposing a restraint not related to safety.
The fact that the Union wishes to litigate an issue that is within the scope of the Confirmatory Order, has properly alleged an injury-in-fact, and represents / employees directly affected by the order complained of, dis-6 tinguishes their case from Marble Hill and renders less applicable the policy considerations there enunciated by the Comission. That being so, and in the absence of an explicit directive to the Licensing Board not to consider a discretionary hearing, Licensee would not urge this Board to i
lean upon the slender reed of the quoted Referral Order terms to conclude f
that a discretionary hearing cannot be considered. Nor should that result 0I
- Licensee concedes that the Union is exclusive bargaining agent for Palisades employees (including nonsupervisory licensed operators).
(See Union Brief on Appeal, August 18, 1981, p 7, fn 2)
l 14 be reached because the Union seeks to protect an interest outside the protected " zone of interests," since the Commission has admonished ad-judicatory boards to consider discretionary hearings for petitioners who are not entitled to a hearing as a matter of right. Pebble Springs, supra. The Licensing Board may have had its own doubts on this score, since it took pains to evaluate the Union's petition in light of the Pebble Springs discretionary hearing criteria notwithstanding its con-clusion that it was not free to grant a discretionary hearing.
III.
The Union Should Not Be Granted a Hearing as a Matter of Discretion, Considering the Factors To Be Weighed in ' Deciding Whether to Grant a Discretionarv Hearing.
The Commission has stated that administrative procedbres are' sufficiently flexible to accommodate petitioners who would have a valu-able contribution to make to the agency's decision-making process, but who do not have the requisite standing to be accorded a hearing as a matter of right. Pebble Springs, supra, 4 NRC at 617.
Some of the fac-tors to be considered in deciding whether to grant a discretionary hearing are:
(a) Weighing in f avor of allowing intervention:
(1) The extent to which the petitioner's participation may reasonably be expected to assist in develcping a sound record.
(2) The nature and extent of the petitioner's property, fi-s nancial, or other interest in the proceeding.
(3) The possible effect of any order wh!.h may be entered in the proceeding on the petitioner's interest.
w
n 15 (b) Weighing against allowing intervention:
(4) The availability of. other means whereby petitioner's interest will be protected.
(5) The extent to which the petitioner's interest will be represented by existing parties.
(6) The extent to which petitioner's participation will in-appropriately broaden or delay the proceeding.
Id. at 616 1.
The Union's participation may reasonably be expected to assist in developing a sound record.
The Licensing Board found that the Union cannot assist in de-veloping a record beyond the one that already exists. ASLB Order, p 20.
In so doing, it apparently adopted the Staff's observatio'n that the Union has not alleged that Palisades has been made any less safe as a result of the restricting of overtime hours, concluded therefrom that the Union's
" contribution" would be to non-safety related issues and that such issues would be outside the scope of the proceeding. This reasoning ignores the fact that the issue to be litigated in the event a hearing'is held is b
"Whether, on the basis of the matters set forth in Sections II and III of this Order, this Order should be sustained." Confirmatory Order, p 10.
In the centext of the Union's petition, this issue translates as "Whether, I
on the basis of the license violations described in the Confirmatory Order, 9
the overtime restriction should be sustained." The Union has alleged, in substance, that there is no causal relationship between overtime hours and the safety-related deficiencies listed in the Confirmatory Order.
Surely, this assertion could be litigated in the proceeding if a hearing i
I e
16 were otherwise being held, notwithstanding that imposition of the over-
. time restriction may not render the facility "less safe."
Otherwise, the plain meaning of the above-quoted language would be distorted beyond recognition. Were a hearing being held in any event, the desirability of the Union's participation would be more readily apparent.
In this con-nection, the North Anna case, supra, is instructive.
In ALAB-342, the Appeal Board in that case held that the supports supplier did not have standing to intervene in an operating license proceeding as a matter of right because its interest in preserving its reputation was not within the protected " zone of interests." However, in Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), tL*.3-363, 4 NRC 631, 633 (1976), the Appeal Board permitted the supports supplier to inter-vene as a matter of discretion, concluding that it was weIll equipped to make a " genuinely significant" contribution to exploration of the safety issue it had raised, namely, the integrity of the steam generator and reactor coolant pump supports.
It seems to Licensee that the Union, or least its members who are licensed operators at Palisades, are com-at parably equipped to contribute to the exploration of the extent to which operator overtime was a factor in the license violations recited in the Confirmatory Order as the basis for the overtime restriction. The ques-tion remains, whether this factor is decisive if a hearing would not otherwise be held. Watts Bar appears to indicate that the petitioner's
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burden is greater in such a circumstance, but that case is distinguish-able on the basis that the petitioner there had not alleged a cognizable personal interest in the operation of the facility.
Licensee has found no precedent which is controlling on the point.
In view of the Union's J
l l
1
17 allegation--sufficient, in Licenace's view--of injury-in-fact, and in view of the lack of any description in the Confirmatory Order of a demonstrable link (or even any consideration of one) between the described violations and the overtime restriction, and in view of the litigable issue as set ferth in the Confirmatory Order, Licensee believes that this factor weighs in favor of the grant of a discretionary hearing.
2.
The Union has asserted an interest in the proceeding which is more than a mere academic interest.
The ASLB's consideration of this factor was limited to the observa-tion that the Union's interest is not within the protected " zone of interests."
ASLB Order, p 20.
Licensee agrees, but believes consideration should also be given to the fact that the Union's interest in maintaining employment rights is real, particularized, and not merely academic or held in common with a large segment of the population.
In short, the factor does not favor the Union's participation, but neither does it compel denial of a hearing.
3.
The Confirmatory Order may adversely affect the Union's alleged interest.
The ASLB correctly concludes that the Commission "should not pro-vfde a tribunal to resolve what are essentially labor disputes between a Licensee and its employees," namely, Licensce's failure to consult the Union before committing to the overtime restriction. ASLB Ord'er, p 21.
This conclusion is supported by Union Electric Company (Callaway Plant, Units 1 and 2), ALAB-527, 9 NRC 126 (1979). That case involved an order to show cause why construction permits should not be suspended until the li-censee and its contractor agreed to allow the NRC Staff access to records and empley: es to investigate the firing of a contractor's employee in
18 possible retaliation for his reports to NRC inspectors of possible safety-related deficiencies. Suspension was found to be proper, on the ground that the investigation was to ferret out substandard construction practices rather than to resolve a labor dispute.
But the Appeal Board also said, with respect to the fired employce's request for a ruling ordcring his reinstatement if he was found to have been fired in retaliation for making safety complaints to the NRC, that "we doubt that the Commission intended the question of employee remedies to be reached in this proceeding."1!
Here, however, the Union has also alleged that the overtime re-striction will adversely affect the members' legally-protected expectation that the previously-existing and more liberal overtime practices would continue. This assertion of injury-in-fact weighs in favor of the Union's participation as a matter of discretion.
4.
The Union's interests can be protected by other means.
To the extent that Licensee's conduct in connection with the Confirmatory Order constituted an unfair labor practice, the Union con-cedes that the National Labor Relations Board ' as exclusive jurisdiction h
to fashion an appropriate remedy. Union Brief on Appeal, August 18, 1981, p 8.
In this connection, the Union did 1n fact file an unfair labor prac-
~
tice charge against Licensee on August 26, 1981.
Copics of the charge,
-7/ Id. at 144. The Appeal Board did not have to decide the question, which was rendered moot by. completion of a grievance proceeding. The Board did hold, however, that possible incidental effects of the NRC investigation on the pending grievance proceedings did not outweigh the need to investigate, in view of the possibic safety hazards being created during construction, notwithstanding cases warning against un-necessary intrusions into the " delicate area" of national labor re-lations policy.
i
19 Licensee's September 25,1981 response to the charte, the NLRB's October 6, 1981 complaint and notice of hearing, the NLRB's October 7, 1981 proposed informal settlement agreement and notice to employees, and Licensee's October 15, 1981 answer.to the complaint are attached hereto. The Licen-see concedes that the NLRB has-the power to impose the kinds of relief requested in the complaint should the facts be found to warrant such relief, and submits that the Union's interests asserted in this proceeding, could thereby be fully protected. This factor weighs heavily against the grant of a discretionary hearing to the Union.
5.
The Union's interest in this proceeding will not be represented by existing parties.
The Licensing Board found this factor irrelevant, on the basis that the Union's interest is not within the protected " zone of interests."
ASLB Order, p 23.
Licensee submits that the relevant consideration is that the Union's interests will not be represented by existing parties, since those economic and legal interests were ignored by the Staff in fashioning c
the Confirmatory Order and since there will be no hearing absent the grant of one as a matter of discretion. If a hearing is allowed, both the Staff and the Licensee could reasonably be expected to uphold the validity of the overtime restriction, contrary to the Union's position. This factor does not weigh against the grant of a discretionary hearing.
6.
Participation by the Union would broaden and delay the proceeding.
The Licensing Board found that the Union's participation would inappropriately broaden the proceeding, based on the Union's alleged rea-sons and grounds, and because a hearing would not otherwise'be held.
t
20 Licensee agrees that granting the Union a hearing would broaden and de-lay the-proceeding, since a hearing would not otherwise be held. One can argue that this is not inappropriate under the circumstances, since the Union can be expected to make a significant contribution to the ques-tion whether the overtime restriction.is sustainable on the basis of the license violations recited in the Confirmatory Order. Moreover, the Union's participation would not delay the imposition of the overtime re-striction, since by its terms the Confirmatory Order was immediately ef-fective. However, the availability to the Union of a satisfactory alterna-tive remedy before tae NLRB, and the fact that the Commission and the Licensee would have to commit resources to participate in the proceeding that could better be utilized in enforcement and operational activities, respectively, weigh against the grant of a hearing as a matter of dis-cretion.
In short, factors 1 and 3 weigh in favor of participation by the Union, factors 4 and 6 weigh against Union participation, and the other factors are essentially neutral. On balance, particularly in view of the fact that the Union has a satisfactory remedy elsewhere, Licensee concludes that the Union should not be granted a hearing as a matter of discretion.
CONCLUSION For the reasons stated above, Licensee concludes that the Union does not have standing to demand a hearing as a matter of right, and that a hearing should not be granted as a matter of discretion. The ASLB Order denying the Union a hearing should be affirmed, except insofar 4
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21 as it holds that the Referral Order prevented the Licensing Board from deciding whether a hearing should be granted as a matter of discretion.
Respectfully submitted.
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udd L. Bacon October 23, 1981.
ou sel for Consumers Power Company P
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t se ca.,,e P w,e Laurene M Hensany waves A Kirktv AJbert O WCassuen Deved A hbkonenes PmAs H Mails Vincen, P Prowetaane Mr. Patrick Labadie as,.n no me.
National Labor Relations Board g "* %
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wei., so.a s s Patrick V. McNa= ara Federal Building A T ue,v.
Room 300
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477 Michigan Avenue Detroit, MI 48226 CONSUMERS P0rr.R COMPANY i
7-CA-19737 i
Dear Mr. Labadie:
This vill serve as the E=ployer's response :c the charge in the above matter.
i Our response in this case will necessarily be in su==ary form because, as you have advised me, the Board's ' inflexible rules precluded the granting of my request for an additional two or three days for the submittal of the Co=pany's response in this =atter.
The E=ployer, Consumers Power Co=pany, operates its Palisades Nuclear Power Plant in Covert Township, Van Buren County, Michigan. This facility is not permitted to operate without a license from the Nuclear Regulatory Co==ission (NRC).
In the recent past the Palisades facility has been cited by NRC personnel l
for a nu=ber of violations of regulatory requirements.
Escalated, enforce =ent action was taken on two occasions by the NRC, and the E=ployer was advised that, "If regulatory performance does not shov i= prove =ent, additional escalated enforce =ent action will be taken."
J i
Earlier this year, based on the infor=ation in its possession, the Co=pany l
was concern'ed that the NRC would suspend the plant's license to operate, there-by requiring the plant to be shut down. Accordingly, Company representatives requested a =ceting with NRC personnel, in an effort to assure that the plant f
could continue to operate under the NRC license.
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The meeting between NRC representatives and the Company occurred on February 18, 1981. At this meeting the Company proposed to take certain actions to overcome alleged problems at the plant. The Company's proposals did not include restrictions on operator overtime. NRC representatives made it clear, however, that because of the Company's alleged record, because of the possibility of excessive overtine and in order to avoid more human errors, the NRC would reduce operator overtime at the plant. It was the understanding of the Company's representatives at that meeting that if the Company did not agree to conform to the NRC's requirements, the NRC would shut the plant down. The Company, accordingly, did not contest the overtime reduction requirement of the NRC.
~
On March 9,1981, the NRC issued its Order EA81-18 (copy attached as Exhibit A) requiring, in relevant part, that (at p 6, thereof):
"B.
Extended overtime on the part of licensed operators shall' be avoided by restricting the overtime for licensed operators as follows:
(1) No more than 4 overtime hours in any 24-hour period; (2) No more than 24 overtime hours in any 7-day period; (3) No more than 64 overtime hours in any 28-day period."
As noted by the Atomic Safety and Licensing Board of the NRC at page 24 of its decision dated July 31,1981 (Docket No. 50-255 SP) denying the Utility Workers Union's Petition to Intervene in this =atter:
"... the (NRC) Staff feared that the Licensee (the Employer) might increase overtime hours verked by the Palisades operators in order to fully i=plement the long-term changes and to offset any hours that might be lost through operator attrition.
As a result, in order to ensure that the overall safety of the facility would be protected, the Director ordered that the restriction on operator overti=e hours be i= posed. Con-trary, then, to the Union's position, the Director's Order rested on sound footing in that it was based upon the unique safety-related circu= stances in existence at the Palisades
-facility."
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It is the E=ployer's position that in this case the Employer is not guilty of an unfair labor practice because:
l
-1.
As a matter of law, it's compliance with an applicable order o'f a regulatory agency cannot constitute a refusal to bargain (see, e.g., Standard Candv, 56 LRRM 1316 and Southern Transport, Inc, 55 1.RRM 1023).
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2.
The applicable labor agreement (copy attached as Exhibit B) provides in relevant part that (Article XXI, Section 1, at p 80):
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"In the event that any provision of this Agreement shall con-flict with any Federal or State Law, order, directive, regula-tion, permit provision or license provision now or hereaf ter enacted or issued, such provision hereof shall not remain opera-tive or binding upon the parties but the remaining portion of this Agreement shall remain in force and effect."
Therefore, under the terms of the above provision of the applicable labor agreement, the Employer is required to comply with the NRC order restricting
' operator overtime at the Palisades facility even if the labor agreement contained contrary provisions, which it does not.
3.
As a matter of fact, the restrictions on operator overtime were not imposed unilaterally by the Employer but were imposed by the Nuclear Regula-tory Commission, with the Employer having no real choice in the matter.
4.
Even if the E=ployer had solicited the overti=e requirements of the NRC Order, compliance with the terms of the order is no more a refusal to bargain than a Union's successful lobbying effort to increase the minimum wage above the level of that Union's negotiated wage rates.
5.
Article V, Section 1, of the applicable labor agreement provides, at page 16 thereof, that:
"Section 1.
It is agreed that the management of the Co pany, the supervision of all operations, the control of the property, and the composition, ass.ign=ent, direction and determination of the size of the working forces belong to and are vested in the Company, except as they may be otherwise specifically limited in this agreement."
'J The applicable labor agreement contains no provision which specifically limits the Co=pany's right to decrease the nu=ber of overti=e hours worked by employees.
There being no such specific limitation, the Company, under the ter=s of its labor agree =ent with the charging party, is free to restrict overtime hours for operators as it deems fit.
3-Based on the foregoing, the Company submits that the charge in this matter shc td.
be dis =issed. The Company, however, reserves the right to raise whdtever addiR" tional =atters and/or defenses it dee=s fit in the event a co= plaint should issue, including, but not limited to, defenses based on applicable lhaitations periods.
Very truly yours, A. T. Udrys e
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e UNITED STATE!OF AwtRICA e
NATIONAL LABOR RELATIONS BOARD CHARGE AGAINST EMPLOYER DO NOT WRITli IN THis 5PeCE INSTRflCTIONS: hle es origiul ood d repies of sAis ekerge eish NLRB con No.
regional direeser for the regien is aukiek the elleged enfair leber preesier 7-CA-19737 1
neerret er to ursering.
Date Filed 5
- 1. EMPt.orta 404tNsT nt:04 CHARGE IS BROUGHT 1
. n om. e, E.,i.,e,
- b. N emner... seer. E.,.,ed I
CONSUMER'S POWER COMPANY
- s. Address of Establiebsent (Stand med ensber, city, State,
- d. Employer Representatin to Coatect
- e. Phone No.
- d ZIP del PALISADES NUCLEAR POWER JUDD BACON, 212 W.
(517) j FACTLT"Y, COVERT TOWMSHIP, MICHIGAN Pichican, Jackson, MI 49201 78b-1366 j
- 1. Type of Establiebeest (Factory, mine. =hele eler, etc.sg$
g, identify Principal Prednet er Service Nuclear Power Plant Nuclear Energy L. De ebeve.nemed emple-er bem engaged is med le eageging iri soleir leber practices witbie the messing of secties 8(e),
seboectione (1) and (M
el the Natiesel Leber Relatiese Act, o se.....u..ee)
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sed these enfait laber practices are enfair labor practices effecting commerce withis the messing of the Act.
1 2.
Basis of the Charge (Be specilie n te facio, semen, oderessee, piente involved, detes, gleces, etc.)
Since on or about March 9, 1981, the above named employer has unilaterally reduced the established nu:::ber of overtime hours permitted to be worked by licensed operators at the Palisades Nuclear Facility. These emplover-initiated changes in overtime procedura, which were imposed in a March 9,1981, " Confirming Order" issued by the Nuclear Regulatory Commission, werc made without prior notice to, bargaining with or agreement with the c:arging party as representative of the affected employees.
The Atomic Safety & Licensing Board of the Nuclear Regulatory Con =is-sion has refused the chargung party's request for hearing, having determined that "the NRC should not provide a tribunal tc resolve what are essentially labor disputes." See attached NRC Memorandum and 1
Order Ruling on Petition to Intervena, pp. 20-21.
N N
N By the ebe., sed other sets, the eben-used e nplay-r bee seierfered with, restreised, sed ecemed esplayees in the r *rei** of the righte guerseteed is Secties 7 el the Act.
3.
Full Name el Party Filies Charge (Illabor orgeessettee, gi.e feil name, secteding leest some med aeresera Michigan State Utility Workers Council ee. Address (Strut and member, city, State, est ZIP code) eb. Telepaose be.
I 505 South Jackson Street, Jackson, Michigan, 49203 (517)787-0644 1
5.
Fet! Name of Natiesel er internatianal I.abe orgeoisetie, el which It le se Affiliate or Co ameest Unit (To be filied to
=bes eberge le !!!ed by a labor organiss.tient Utility Workers Union of America, AFL-CIO
- 6. DECLARATION I declare thee I beve reed the n eberge and ebet the statements thereis are tree to the best of my kee= ledge end belist.
d ay /
Attorney J5igeseure of replenestattu e4 s ereen liting chargd (Title, si say)
JLAURA J. CAMPBELL (P-32217)
(313)-
4 dd,eo 1000 Farmer, Detroit, MI 48226 965-3464 8/25/81 g
4Teiephone esmber) iDete) ett.t.Fut.1.7 FALSE Sir 4, TENTS OM This CIL GEE (. AN BE PUN 15HED ST FINE AMD IMPRISONMENT (U.S. CODE. TITI.E 18 SECTOM1001) tre fee of t k
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I FCRM NLRS-4338 t
19-75)
NATIONAL LABOR RELATIONS BOARD NOTICE Case No.
7-CA-19737 I
The issuance of the notice of formal hearing in this case does net mean that the mat +er cannot be disposed of by agreeme9t of the parties. On the contrary, it is the policy of this office to encourage voluntary adjustments. The examiner or attorney assigned to the case will be pleased to receive i
and to act ;lromptly upon your suggestions or comments to this end. An agreement between the parties, accreved by the Regional Director, would serve to cancel the hearing.
However, unless otherwise specifically ordered, the hearing will be held at the date, hour, and place indicated. Postponements will not be granted unless goed and sufficient crounds are shown md t*e faituwina recuirements are met:
(1) The request must be in writing. An original and two copies must be served on the Regional Director; (2) Grounds therefor must be set forth in detail:
G) Alternative dates for any rescheduled hearing must be given; (4) The positions of all other parties must be ascertair:ed in advance by the requesting party and set forth in the request; and 01 Ccoles must be simultaneously served on all other parties Disted below),
and that fact must be noted cn the request.
MscecE23Miaect:lenosLNunntsmestMRKattiW3ROINt90tMM.dRSISt19fk
.'t%1Cm):tMLtedXte35.11cated)stLWitetH RS22Kimetofldger:c3X IT IS REQUESTED OfAT WE AMRNEY CHECK WI*M HIS CLIE*l? AND PDCSPr?'_T WI'"NESSES TO ASSURE THAT THEY WILL BE AVAIIABLE CN THE HEARING CATE SET l
FOR"H IN *HE COPf!AINT.
i I
RIASONS FCR POSTPCNEMEN"5 NOT ADVA_NCED WITHIN CNE WEEK CF, THE CATE CF THIS COMPLAINT cam:OT SE CCNSIDERED CAUSE FOR SUBSEOUC;T AMOURNMCl?
l RECUEST.
A. T. Udrys, Esq.
G. A. Sando, Esq.
Consumer Power Ccapany 212 W. Michigan Avenue Jackson, Michigan 49201 Laura Campbell, Attorney 1000 Far-er Detroit, Michigan 48226 l
l RECEIVED GCT 9 631 c P.ca Lecci l
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