ML20043E543
| ML20043E543 | |
| Person / Time | |
|---|---|
| Issue date: | 06/26/1989 |
| From: | Martin R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION IV) |
| To: | Joseph Kelly NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION IV) |
| Shared Package | |
| ML20043E518 | List: |
| References | |
| FOIA-89-540 NUDOCS 9006130116 | |
| Download: ML20043E543 (13) | |
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JUN 261985 Mr. James A.F. Kelly Physical Security Specialist Security and Emergency Preparedness Section Reactor Program Branch, Region IV
- Division of Radiation Safety and Safeguards U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 Arlington, Texas Re: Decision to Suspend for 15 Calendar Days
Dear Mr. Kelly:
By letter dated April 7,1989, Mr. Richard L. Bangart, Director, Division of Radiation Safety and Safeguards,-informed you of a proposal to suspend you from your position for 30 calendar days.
I have carefully and fully considered your oral presentation of May 11,'1989, the written transcript of that presentation, and your written reply submitted to me on May 11, 1989. I have also reviewed relevant portions of the CIA investigative report, and considered my own knowledge of the events occurring at the South Texas Project during the supper of 1987. I find that char empicyment with Houston Lighting and Power Coerpany (ge 1, improper solicitation ofHL&P) is supported by the evidence. Moreover, I find that charge 1, standing'alone, w9uld be sufficient to warrant a 30-day suspension. I find that charge 2, inappropriate conduct in your official dealings is also sustained.
With regard to charge 1, I find the statements of Messrs. Larry George and Charles Kern, HL&P, to be more credible than your explanation of the August 1987 contacts with them about employment. It is my conclusion that you were. improperly soliciting employment for yourself with HL&P, which is a serious breach of the conflict of interest regulations. You have held positions in your 9 years at NRC in which you have been well trained in this area of conflict of interest regulations, and I do not find it plausible that in these conversations with these two HL&P managers you were not aware that you had breached the solicitation of esployment regulations. Your having these conversations about employment for yourself at a time when rumors concerning your personal motivations were at a high pitch at the South Texas Project is particularly egregious. I find that this offense, alone, would support a 30-day suspension.
With regard to charge 2. I think your raising the issue of the rumors with HL&P management for resolution was inappropriate. These issues would have been more appropriately raised to upper level NRC management to be dealt with in a more formal manner. I find it particularly inappropriate that you demanded apologies and threatened lawsuits in your official capacity with regards to rumors about your persctal motivations, and that you independently pursued the matter up to the HL&P corporate level by meeting with Mr. Jerome Goldberg.
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F JW 261989 James A. F. Kelly I have considered the 'Ocuglas factors' in deciding this action. I am mindful that these events took place nearly 2 years ago, and that you have a good -
i disciplinary record over the 9 years you have been with the Agency. After taking i
- all of these factors into account, particularly iliven the seriousness of your U
L b each of the conflict of interest regulations, 9t is my view that your actions u rrent a severe corrective action. However, given the high degree of tension at.the South Tens Project at that point in time and the unique circumstances surrounding this matter, it is my decision, in order to promote the efficiency of the service, to suspend you for 15 calendar days effective July 2,1989. -
L in consideration of that decision, I have decided not to withhold your f
within grade increase which was scheduled to have been effective May 7, 1989.
I i
As a veteran's preference employee, you have the right under 5 United States Code 7701 to appeal this action to the Merit System Protection Board (MSPB). This is your right individually and can be exercised by you without l
t approval by NTEU. If you choose to appeal to the MSPB, they will issue a j
- decision within 120 days from the date of your appeal. To appeal to the MSPB, 1
you must file a petition of appeal:
. a) addressed to: Regional Director - Dallas Regional Office
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U.S. Merit Systems Protection Board 1100 Comenerce Street, Suite 6F20 Dallas, Texas 75242-9979 (b) during the 20 calendar days following the date of this decision, and (c) that includes the material required in Section 1201.24 of-the attached MSPB regulations. You may use the attached appeal fom if desired.
This decision may also be appealed by HTEU to arbitration in accordance with Section 39.9.2 and Article 51 of the Agreement. You should be aware that
.the decision to invoke arbitration rests solely with the Union and that this l
decision cannot be appealed to both arbitration and the MSPB. Moreover, my decision is not stayed by the filing of an appeal with the MSP8 or by the invocation of arbitration under the contract.
If you need further infomation concerning your appeal rights and how to pursue an appeal, you may consult with Ms. Huel Meadows of the Office of Personnel,telephoneextension(301)492-4692.
Sinedbl8 MAL SIGNED Sy ROBER D.MAUR Robert D. Martin Regional Administrator cc: Walter Dressler, NTEU Attachments:
- 1. MSPB Regulations
- 2. MSPB Appeal Form (SeenextpageforRIVDistribution) w V-
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CASE FILE INDEX VOL. I WE 73 DOCUMENT R. Martin to June 26, 1989 J. Kelly: Decision Letter W. Dressler to R. Martin: written response of J. Kelly response t May 12. 1989 proposed discipline Transcript:
Oral Response of J. Kelly to Proposed Discipline May 11, 1989 R. Ban art To J. Kelly: Proposed Discip ine Article 39 " Disciplinary / Adverse Adverse Actions": Collective Bargaining April 7, 1987 Agreement between NRC and NTEU (effective date)
Article 51 " Arbitrator Procedures" Collective Bargairing Agreerer.t
_Between NRC and NTEU hRC Regulations:
10 CFR 0.735-22(a)
March 17,1966 As amended March 3, 1975 (effective date)
NRC Announcement No. 96 July 11',-1986 lations: 10 CFR Sept. 29, 1967 NRCRef9a (effectivedate) 0.735-2 G C X W.
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Report of Investi9ation No. 87-25 Office of Inspector and Auditor (OlA)
U.S.MRC(Tabs 1-22)
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j VOL. 111 Report of Investig6 tion No. 67-25 Of fice of Inspector and Auditor (OI A)
U.S. NRC (Tabs 23 61)
Sept. 26, 1988
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5 VOL. IV.
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Supplemental Investigative Report of OlA
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' Article El ARRITRATION PROCEDURES 1
Section 51.3 51.3.1 The procedures for the selection of arbitrators for grievances arising in Headquarters and the Regional offices are set forth below. A grievance is defined as arising in Needquarters if the
$>ievant's duty station is in the Washington, DC, metropolitan area or if the grievance is filed solely in the name of the Union or by the NRC.
51.3.2 When arbitration is invoked by either the NRC or the Union for grievances arising in WRC Headquarters or the Regional Offices, the moving party will, within 10 workdays af ter invocation, request a list of 7 arbitrators from the Federal Mediation and
- Conciliation Service. if the moving party fails to do so within 10 workdays, the other party may request such list. These arbitrators will be from the Washington, DC, metropolitan area for Headquarters grievances and from the metropolitan area encompassing the Regional Office for grievances arising in the Regions.
-51.3.3 The NRC and the Union will meet within 5 workdays after both parties have received the list to seek agreement on an arbitrator.
51.3.'4 If the parties cannot agree on an arbitrator, the NRC and the Union will strike i name from the list alternately until 1 name remains.
The remaining person shall be the duly selected arbitrator. The toss of a coin shall detemine whether the NRC o* the Union strikes the first name.
'51.3.5 An arbitrator will be assioned within 15 days of t6e time the parties meet pursuant to Section 51.3.3.
51.3.6 Upon assignment, the arbitrator will be forwarded a case file by NRC consisting of the grievance, step appeals, responses, and any other relevant documents. A copy of the case file will be forwarded staultaneously to the Union.
51.3.7 Nomally, hearings will cesrance within 60 days after the date utitration is invoked unir ss the arbitrator's schedule does s
nit pemit or by mutual ar,reement of the parties.
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L Article 51 ARBITRATION PROCEDURES.
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Sec *.~ o n 51. 4 51.4.1 The arbitraor.'s fees and expenses, if any, shall be borne equally by the parties.
If possible, the arbitration hearing will be held on the NRC's premises during the regular day. shift hours of the basic workweek.
51.4.2 The grievant and the grievant's Chapter representative shall be allowed official time to attend the arbitration proceedings. All bargaining unit employees with relevant and necessary infomation l1 L
who are called as witnesses, and who are on active duty status, shall receive official time to the extent necessary to testify in-the arbitration proceedings without loss of pay. The NRC will grant the employee's request for official time to be excused from duty provided such absence does not cause a severe work interruption.
l 51.4.3 A verbatim transcript of the arbitration proceedings shall be made unless the parties mutually agree that one is not needed. The cost of the transcript will be shared equally by the parties.
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l Section 51.5 51.5.1 An arbitrator will strive *o issue a decision within 15 1
workdays af ter the close ' the record.
l 51.5.2 The.iurisdiction and auttority of the chosen arbitrator will be confined exclusively to the interpretation of the provision or o
i provisions of the Agreement at issue between the parties. The arbitrator will have no authority to add to, subtract from, alter, amend or modify any provision of this Agreement.
51.5.3 The arbitrator shall have the authority to:
1 1.
administer oaths, 2.
rule upon offers of proof and receive relevant evidence, 3.
limit lines of questioning of testimony which are immaterial, irrelevant or unduly repetitive, 4.
regulate the course of the hearing and, if appropriate, exclude i
from the hearing persons who engage in misconduct or cause di s turbance, 5.-
strike any or all related testimony of witnesses who refuse ti, o
answer any questions ruled to be proper.
6.
hold conferences to discuss simplification of the issues and possible settlement with the consent of the parties; and 7.
request the parties at any time during the hearing to state their restective positions concerning any issue in the case or theory 'n support thereof.
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L-Section 51.5 (Cont'd) 51.5.4 The arbitrator shall.not have the authority to:
1.
Require the attendance or testimony of witnesses not called by either party.
2.
Require the production of documents not offered in evidence by either party.
3.
Make an independent investigation of the matter, other than at the hearing.
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' James Kelly and National Treasury Employees Union (NTEU) v.
FMCS No. 89 23367 U.S. Nuclear Regulatory Commission (NRC)
AFFIDAVIT OF GREG BENOIT 1.
My name is Greg Benoit.
I am the Director, Division of Resource Management and Administration, Region IV, NRC.
I have' held that position since June 26, 1989.
I was formerly the Chief of Policy and Labor Relations for the NRC, and 2,
I was a member of worked in Labor Relations f rorr 1978 to November 1969.
the management bargaining teams which negutiated both-the current (I was chief negotiator) and immediately preceding contracts between NRC and NTEU.
I was present and a party to the negotiations for Article 51, " Arbitration 3.
Procedures."
With respect to discovery in general, the intent of Article 51 as agreed 4.
to between the parties was not to allow pre-hearing discovery in arbitrations.
Se:t c-51.5.3(2) is intete: to ghe the artiteat: the authority to i
5.
" rule open offers of proof anc receive relevant evicence only at nearing.
Section 51.5,4(2) was intenced to exclude from the record " documents not of fered in evidence by either party" at hearing.
It was-agreed to after it the union made a proposal for pretrial discovery which was rejected, is intended not to allow for pre hearing discovery.
Article 45 was. intended to deal with all information requests by the union.
6.
With respect to 5 USC 7114(b)(4), those requests for documents are covered by Sections 45.6.1 - 45.6.4.
They contain the " relevant and necessary"
, test (5.45.6. 2).
They also contain a. provision at Section 45.6.3 requiring the union to 7.
give the specific case or potential case for which the documents are This section was intended to make $ 7114(b)(4) requests case sought.
specific and to prevent " hypothetical" or." fishing expedition" types of requests by the union.
y 'y, GregBenoi(
5
, 1989.
Subscribed and sworn to before me this day of U,m.M!vbuw 9!#//b My commission expires:
Motary Public 3 - J - e r H ".I "
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i Article 45 ACCES$ 70 PERSONNEL RECORDS AND INFORMATION REQUESTS -
L Section 45.1 Each employee and/or the employee's representative (designated in writing) shall, upon written request and proper identification, be granted access to--
ahy record (s) pertaining to the employee in accordance with the Privacy Act L 9:
or other applicable law or 1*egulation. Such access will take place in the i
presence of the individual (s) having official custody of'the record.
L Section 45.2 Copies of documents made available under Section 45.1 may be furnished to the employee and/or designated representative upon written request by the employee. Charges shall be in accordance with 10 CFR 9.14 Section 45.3 Any record which is not available to the employee or his/her representative i
L (designated in writing) for inspection and review will not be lade available to any unauthorized person (s) for inspection, review, or duplication. Such W
information will be made available to authorized persecs-only for official use y
as provided for in the Privacy Act of 1974 Section 45.4 It is' agreed that Official Personnel Folders (OPF's) and other personnel records will be maintained in accordance with' applicable law and regulation.
. including the Privacy Act of 1974 The NRC will purge records in accordance with'any standard set forth therein.
Section 45.5 w,
Written notes and manoranda of a supervisor concerning any employee under
. his/her supervision shall be subject to disclosure or non-disclosure as provided n
by applicable law and Government-wide regulation. In addition, any material which a supervisor maintains on an employee which is of an adverse nature or g:
could pose potential ham to the employee's career must be shown to the employee at the time that a supervisor proposes to place such material in the employee s official personnel folder, and the employee must be given an opportunity to copy such material for his/her own records, 3- ]__] Qp,"y" 112 k
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Article 45 ACCES$ To PERSONNEL RECORDS AND INFORMATION REQUEST 5 Section 45.6 The following governs union requests for documents under 5 U.S.C. 7114(b)(4),
45.6.1 WRC agrees to provide to the Union documents appropriately requested under 5 U.S.C. 7114(b)(4) to the extent that such documents are not classified, proprietary or otherwise prohibited or restricted from disclosure by the Privacy Act or other law or regulation. To the extent that their d;sclosure is not restricted..
the requested documents will be provideo by NRC as soon as reasonable and practicable. The Hatan ws11 he advised hv NRC wi thin In workdavs a' ****ia' if *he eouest 'n wnetner and to wnat extent tne requested documents can be releaseo.
45.6.2 All Union requests for documents under 5 U.S.C. 7114(b)(4) shall contain a statement showing clearly the reasons (s) why the documents are sought and demonstrating how they are relevant and necessary to the Union as exclusive representative.
45.6.3 Union requests for documents for the purpose of representing a grievant (s) shall contain the following:
1.
A description of the documents requested.
2.
The name of the potential or actual grievant.
3.
An explanation of the nature of the grievance (or potential grievance) and specific need for documents requested (this would include scope of information requetted -- for example, one branch).
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4 An agreement that the use of the documents provided shall be limited to the specific grievance identified in the above.
5.
Signature and date requested.
45.6.4 Whenever the Union requests documents for the purpose of rep-resenting a grievant (s) the time frame for Union response /
action on the grievance shall be extended day for diy, from the s
time the request is received until the NRC either /,entes the request or provides the documents, whichever is appropriate.
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1 Article 45 ACCESS TO PER$0NNEL RECORD $ AND INFORMATION R(00ESTS L
45.6.5 Whenever the Union requests documents for the purpose of bargaining over changes in personnel policies, practices, or conditions of.
employment not otherwise covered by this Agreement (i.e., as described in Article 49, Sections 49.1 and 49.2 and requiring -
a 10 day notice to the Union and opportunity to bargain), the Union may be granted an extension of time'to submit proposals L
under the following conditions:
The Union must request documents within 5 workdays of being noticed. An extension of time within which to submit proposals will be oranted to the Union allowing 2 additional days from the time NRC either denies the request or provides the documents.
l For example, if NRC denies /Fovides up to the eighth day of the original 10 day notice Meriod then no extension is provided.
However, if the NRC denies /provides on the ninth day, the Union would have. until COB the eleventh day to submit proposals, or if J
management were to deny / provide on the tenth day, the Union would i
have until COB the twelf th day to submit proposals, etc.
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in other words, when the Union requests documents within the i
first 5 days af ter being noticed, the Union will have at j
1 least 2 days from dental / provision in which to submit proposal s.
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Walter E. Dresslar, Assistant Counsel National Treasury Employees Union 3636 Executive Center Drive, Suite 201 Austin, Texas 78731-1617 Re: Infomation Request Dated July 25, 1989, Kelly Adverse Action
Dear Mr. Dresslar:
This is in response to your above-referenced request, in which you seek for the second time information originally requested by you on April 14, 1989 which was denied May 1.
After full consideration of your secono request the information sought is again denied for the reasons discussed below, by numbered item.
'Reqest #2.
Any and all materials maintained by Mr. Yandell in his supervisory capacity that pertain to the meetings referenced in Charge No. 2 of letters of proposed discipline issued to Mr.
Kelly.
Response
After search, NRC again concludes that no documents pertaining to this request exist.
Mr. Yandell has no notes on the meetings mentioned in your request.
Request #7.
Any and all materials concerning allegations of, or proven (administrative 1y or otherwise) improper or unsatisfactory investigative conduct, while involved in an investigation against any NRC employee raised against:
a.
Ms. Sharon Connelly b.
Ms. Donna M. Rowe, and/or c.
the Office of Inspector and Auditor Request #8.
Any and all materials constituting proposed and/or final discipline or reassignment issued to, or concerning, Ms.
Sharon Connelly.
Response
Your requests numbered / M S are again denied on the grounds that you have failed *n demonstrate the relevance or necessity of the documents requested. The issues in this case are Mr. Kelly's employment solicitation and his conduct relative to the rumors and allegations.
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- Questions concerning the appropriateness of Mr.
Kelly's conduct will be decided on the basis of the credibility of Mr. Kelly's testimony vs.
that of others to those events and circumstances.
Questions you raise about NRC investigator (s) are not relevant to these issues. As-I stated in my response of May 1,1989, and state now, you have f ailed to cite any instance of or specific basis for a charge of misconduct on the part of NRC investigator (s).
Sincerely.
Michael J. Fox, Chief
- 1. abor Relations Office of Personnel k
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