ML20055E277
| ML20055E277 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/25/1990 |
| From: | Driskill D, Hayes B, Van Cleave V NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION IV), NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | |
| Shared Package | |
| ML20055E276 | List: |
| References | |
| FOIA-90-201 4-89-008, 4-89-8, NUDOCS 9007110243 | |
| Download: ML20055E277 (26) | |
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Title:
COMANCHE PEAK STEAM ELECTRIC STATION: ,
ALLEGED IMPROPRIETIES BY BROWN & ROOT, INC.
Licensee: Case No.: 4-89-008 TV Electric Report Date: April 25, 1990 P. O. Box 2300 Glen Rose, TX 76043 Control Offi';e: O!:RIY Docket No.: 50-445/446 Status: ClJSED Reported by: Reviewed by:
- uT' O/ W l0n Virp4(la VYbleave, Investigator Donald D. Driskill, Direct W Office of Investigations Office of Investigations Field Office, Region IV Field Office, Region IV Approv, :
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Int:rmation in this record was deleted '
in accordance with the freedom of Inictmation Act, exemptions #V 7C --
0 i ' "Fibe!@ ton /
o Folk. W Z 'I --
L WARNING
[ The attached document / report has not been reviewed pursuant to
! 10 CFR I 2.790(a) exemptions nor has any exempt material been ,
I deleted. Do not disseminate or discuss its contents outside NRC.
Treat as "0FFICIAL USE ONLY.
9007110243 900605 , Copy 3of3 fJ$NSbNY-201 PDR , .Yl? [M / ] r l
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, SYNOPS!$
In April 1989, the Nuclear Re Office of Investigations (01)gulatory Comission (NRC) initiate an investigation requested to determine if a that the fonner Brown & Root (B&R) employee at Comanche Peak Steam Electric Station (CPSES) had meetings and/or telephone conversations with the president of B&R in approximately April 1986 and whether or not the BAR purpose of these mettings or conversations was to inhibit the former employee from bringing forth safety concerns regarding CPSES to the NRC.
In January 1987, as part of a Department of Labor (DOL) settlement agreement, the former employee agreed to not voluntarily appear as a witness or a party to proceedings before the Atomic Safety Licensing Board (ASLB). Shortly after an agreement between the Citi: ens Association for Sound Energy (CASE) and i Texas Utilities (TV) became public in 1988, the fonner employee was interviewed by newspaper reporters and claimed he had been coerced into signing his settlement agreement with B&R in January 1987. He stated that a condition of the settlement agreement was that he was prohibited from providing testimony to the NRC or the ASLB. As a result, he claimed, he had i additional safety concerns about CPSES that he had never provided to the proper regulatory authorities.
01 investigation determined that the empicyee did in fact meet with and hold telephone conversations with the president cf B&R. The empicyee himself ;
initiated contact with B&R's president, who agreed to meet with him. Although '
it was determined that an offer was made to the former employee by the !
president of B&R, no documentation or information was developed to indicate ,
that this was other than a simple offer made to settle an ongoing 00L case. i The evidence developed during the course of this investigation did not substantiate the allegation of wrongdoing on the part of the president of B&R '
l regarding his meetings with the former employee of B&R at CPSES.
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< ACCOUNTABILITY !
i The following portions of this Report of Investigation (Case No. 4-89-008) !
will not be included in the material placed in the POR. They consist of pages 2 though 25.
Case No. 4-89-008 3
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t TABLE OF CONTENTS f.ajlg 1
SYN 0PSIS.....................................................
ACCOUNTABILITY............................................... 3 APPLICABLE REGULAT10NS....................................... 7 DETAILS OF INVESTIGATION..................................... 9 l Purpose of Investigation................................ 9 Background.............................................. 9 Interview with Dan M. BERKOVITZ, Assistant Counsel to Committee en Environment and Public Works, i
Uni ted S ta te s Se na te . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
' Interview with Joseph J. MACKTAL, Jr., former B&R Employee, CPSES...................................... 11 Interview with T. Louis AUSTIN, Jr., Former President and Current Chai rperson of the Board , B&R. . . . . . . . . . . . 13 -
Interview with Glen G. KAGNUSON, Jr., Former Associate Ge ne ra l Cou n s e l , B &R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Interview with Billie P. GARDE, Former Attorney, GAP.... 16 Wi11 fulness / Intent...................................... 20 Allegation: Alleged Attempt to Prohibit Employee from Bringing Forth Safety 1 Concerns Regarding CPSES.............. 20 Agent'5 Conclusion...................................... 21 SUPPLEMENTAL INFORMAT10N..................................... 23 LIST OF EXHIBITS............................................. 25 Case No. 4-89-008 5
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i-APPLICABLE REGULATIONS 10 CFR 50.7: Employee Protection f I h
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1- ,- 1 DETAILS OF INVESTIGATION Pyrpose of Investigation ;
The purpose of this investigation was to detemine if meetings and/or telephone conversations took place between Joseph J. MACKTAL, Jr., and the
% President of Brown & Root (B&R) T. Louis AUSTIN, Jr., in approximately 'j April 1986 and whether or not the purpose of these meetings or conversations was to inhibit MACKTAL from bringing forth safety concerns he had regarding the Comanche Peak Steam Electric Station (CPSES).
Background i i
In January 1987, MACKTAL entered into an a 1 MACKTAL's Department of Labor (DOL) case (greement Exhibitla). with B&R in settleme As part of the settlement agreement, MACKTAL agreed that he would not voluntarily appear as a witness or a party to proceedings before the Atomic Safety Licensing Board (ASLB). Should he be served with compulsory process to appear, he further agreed to immediately notify B&R and to take all reasonable steps as suggested by B&R representatives. ,
In the sumer of 1988, the Citizens Association for Sound Energy (CASE) and Texas Utilities (TV) entered into a settlement agreement which included ,
approximately $5.5 million to be paid to various whistleblowers or previous employees of CPSES. Shortly after this agreement became public knowledge, MACKTAL was interviewed by newspaper reporters and claimed that he had been coerced into signing his settlement agreement with B&R in January 1987. He.
further stated that a condition of the settlement agreement was that he not ;
provide testimony before the U.S. Nuclear Regulatory Commission (NRC) or the- !
ASLB. As a result, he claimed he had additional safety concerns about CPSES that were never brought forth to the proper regulatory authorities. On o ~
April 27, 1989, the Executive Director for Operations requested an investigation, later approved in part by the Comission, of this matter by the -
Office of Investigations (01) (Exhibit lb).
On May 4,1989, MACKTAL testified before the U.S. Senate at hearings regarding settlement agreements containing language that appeared to prohibit testimony before regulatory agencies. Following MACKTAL's testimony before the U.S.
. Senate hearings, Investigator Virginia Van Cleave. 01, NRC, had several-conversations with MACKTAL's attorneys, Michael and Stephen KOHN, in an attempt to interview MACKTAL regarding his allegations of meetings between himself and AUSTIN. Following the failure of these conversations to result in a mutually agreeable time and place for an interview, an NRC subpoena was issued (Exhibit 2). On June 5,1989 MACKTAL was served with this subpoena which ordered him to testify at the NRC Region IV offices on June 15, 1989.
The K0HNs notified the NRC that MACKTAL would not respond to the subpoena and would not be present to provide testimony to the NRC. They stated that MACKTAL would provide testimony to the NRC only under the following three conditions: 1) the interview must be conducted in Washington, D.C.-
interview must be conducted under a grant of confidentiality; and both KOHN 3} 2) the and MACKTAL must be given 30 days' notice prior to the interview date.
Case No. 4-89-008 9
On June 22, 1989, an NRC Order was issued in response to MACKTAL's motion to quash the NRC's subpoena (Exhibit 3). The Order denied MACKTAL's motion and ordered him to appear before the NRC Region IV on July 5, 1989. A copy of this Order was hand delivered to MACKTAL on June 26, 1989. MACKTAL did not appear in response to this NRC Order. Consequently, efforts were begun by both the Department of Justice (DOJ) and the NRC Office of General Counsel (OGC) to secure a Federal court order directing MACKTAL's compliance with the NRC subpoena. On August 3, 1989 U.S. District Judge David BELEW issued an Order to Show Cause why the subpoena issued to MACKTAL should not be enforced and ordered MACKTAL to appear before the U.S. District Court for the Northern l District of Texas on August 18,1989(Exhibit 4a). This order was personally ;
served on MACKTAL on August 3, 1989. On August 18, 1989, MACKTAL appeared before Judge BELEW without counsel and requested a postponement of the hearing ;
on the grounds that his Washington, D.C. attorneys were not present. He said that his attorneys would be in Dallas, Texas, on an unrelated matter in September 1989 and could appear with MACKTAL on September 11, 1989. BELEW granted a postponement and set a new hearing date of September 11, 1989.
On September 11, 1989 MACKTAL appeared again without counsel. Following a short hearing, Judge BELEW ordered MACKTAL to appear at the NRC Region IV offices on September 18, 1989, to testify and to produce all documentation required by the subpoena (Exhibit 4b).
Interview with Dan M. BERK 0VITZ, Assistant Counsel to Committee on Environment and'Public Works, United States Senate BERK 0VIT2 was interviewed by telephone on January 24, 1989, by Investigator Van Cleave (Exhibit 5). BERK 0VITZ stated that on July 30, 1989, MACKTAL 's former attorney, Ms. Billie P. GARDE, was relieved of her attorney- client privileges regarding MACKTAL by the Senate comittee. Following this decision GARDE provided BERK 0VITZ with what she claimed were all the documents concerning her previous attorney client relationship with MACKTAL.
BERK 0VITZ stated that the only document provided by GARDE regarding MACKTAL's dealings with AUSTIN was a chronology prepared by MACKTAL. BERK 0VITZ stated that GARDE told him that MACKTAL initiated contact with AUSTIN and. held several meetings and telephone conversations with him.. GARDE, according to BERK 0VITZ, said that MACKTAL never told her that AUSTIN threatened him or forbade him to testify before the NRC or any other body-regarding matters at CPSES. BERX0VITZ stated that GARDE maintained the only condition of settling the DOL case that MACKTAL mentioned to her was that AUSTIN requested that MACKTAL publicly renounce GARDE as his u torney. According to BERK 0VITZ, GARDE stated that she began to lose faith in MACKTAL's credibility approximately six weeks prior to the scheduled DOL hearing. She said that she was aware that attorneys representing B&R would question MACKTAL about his demands for money from AUSTIN, and she was uneasy about this issue. For this and other reasons, according to BERK 0VITZ, GARDE stated that she recomended to MACKTAL that he settle his D0L case as soon as possible. BERK 0VITZ stated that it was GARDE's opinion that B&R was willing to settle the case simply because it was less expensive to pay MACKTAL $35,000 than to engage in extended legal action.
Case No. 4-89-008 10
, ; Interview with Joseph J. MACKTAL, Jro, Former B&R Employee, CPSES MACKTAL was interviewed at the NRC Region IV offices on September 18.-1989, by Investigator Van. Cleave and Investigator Donald D. Driskill (Exhibit 6).
Present at the interview and representing MACKTAL was his attorney, Michael KOHN. Also present was his wife, L. Victoria MACKTAL.
MACKTAL stated that in early 1986, following his discharge from CPSES, he 4 initiated contact with AUSTIN by telephone. He told AUSTIN he wanted to discuss his termination from CPSES, and they arranged a meeting in AUSTIN's office in Houston, Texas. MACKTAL was unable to recall the date of this meeting, although he had a short handwritten notation concerning the matters !
discussed at-the meeting. Present at the meeting were MACKTAL, AUSTIN, and someone introduced to MACKTAL as a personnel director whose name he is unable to recall. MACKTAL stated that they discussed AUSTIN's animosity towards attorneys. He told AUSTIN he was unfairly terminated for bringing forth safety allegations. MACKTAL stated, although he did not discuss his specific safety concerns at that time, he did discuss harassment and intimidation with AUSTIN.. He told AUSTIN that he had taken his safety concerns to Lewis CERDA, B&R general foreman, John McPHATE, B&R superintendent, and to CPSES' SAFETEAM.
However, SAFETEAM revealed his identity and he was first demoted, then ,
harassed, and subsequently discharged. AUSTIN told him he would look into the natter and get back to him. :
Approximately two weeks later, MACKTAL spoke by telephone with AUSTIN'and set up a meeting at the airport in Cleburne, Texas. AUSTIN flew to Cleburne in a B&R Cessna, and he and MACKTAL went alone to a local restaurant where they
. discussed the initi&100L Wage and Hour decision, how MACKTAL was paying his attorneys, how the Government Accountability Project (GAP) was funded, and back pay.. According to MACKTAL, AUSTIN said he thought the e was some wrongdoing on the part of B&R, but he did not specify what that might be and said he had not yet completed his investigation. AUSTIN told MACKTAL that he had previously offered MACKTAL, through his attorneys, his job back without back pay. Since GARDE, his attorney, refused this offer, AUSTIN said he was not longer liable to pay MACKTAL-back pay. MACKTAL stated he knew this offer had been made but did not state whether or not GARDE refused the offer at his behest. Herefusedtoanswerthatquestiononthegroundsofattorney/ client privilege. The possibility of front pay or MACKTAL s working on another B&R job in another location in. lieu of front. pay was also discussed during this meeting. According to MACKTAL, AUSTIN stated that B&R won the initial Wage and Hour case on a technicality and would lose in a hearing. AUSTIN told MACKTAL he would get back to him.
Approximately two weeks later, AUSTIN spoke by telephone with MACKTAL and arranged a meeting in Stephenville, Texas, on April 12, 1989. Present at this meeting were MACKTAL, AUSTIN, and a B&R international attorney, whose name MACKTAL could not recall, but who took extensive notes during the meeting..
AUSTIN requested that MACKTAL tell him about all allegations that he had taken to SAFETEAM. MACKTAL said that these were the same allegations he had-taken
.to the NRC. MACKTAL said he brought notes that he had taken during his meeting with the NRC, and he and AUSTIN went over these notes. They talked about settling MACKTAL's 00L case without attorneys and before MACKTAL's deposition-to the'00L, but no dollar figure was discussed. AUSTIN told MACKTAL he wanted to know MACKTAL's safety concerns so he could reprimand Case No. 4-89-008 11 l
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CERDA for harassing MACKTAL. AUSTIN again admitted, according to MACKTAL, that there was some wrongdoing on the part of B&R. MACKTAL stated AUSTIN did not ask about details concerning MACKTAL's meeting with the NRC. They also discussed back pay and finding MACKTAL another job at a different B&R site, j MACKTAL stated that he. told AUSTIN that he wanted back pay and his job back.
MACKTAL stated, that either at that meeting or at the previous meeting in t Cleburne, he told AUSTIN he was " fed up" with Texas and wanted to go back to Arizona. He said he knew B&R had two or three jobs in Arizona. MACKTAL admitted tbat AUSTIN never mentioned a specific location, but MACKTAL ,
mentioned Arizona because he had grown up there and wanted to return there.
AUSTIN again told MACKTAL he would get back to him.
On August 17, 1986, AUSTIN telephoned MACKTAL and, according to MACKTAL, told hi:n he thought B&R had wrongfuily discharged him. As a result, AUSTIN stated l he was willing to settle with MACKTAL for $15,000 to him and an additional unspecified payment to his attorneys. As a condition of this settlement, MACKTAL had to fire his GAP attorneys. MACKTAL stated that AUSTIN did not !
offer him another job either at CPSES or in Arizona. He told MACKTAL he could take the money and return to Arizona. According to MACKTAL, this was a very brief conversation. MACKTAL told AUSTIN that if he decided to accept the i offer, he would telephone him. According to MACKTAl., AUSTIN did not put any !
add;;ional conditions on his receiving the $15,000 other than his firing GAP, nor did he tell MACKTAL he would have to sign an agreement to receive the ;
money. AUSTIN told MACKTAL, both during this telephone conversation and in ,
Stephenville, that he wanted to settle the DOL case before MACKTAL's deposition which was scheduled for approximately April 23, 1986. MACKTAL claimed that AUSTIN said he wanted to keep MACKTAL's safety issues from the intervenor CASE. This was, according to MACKTAL, information that MACKTAL had already taken to the NRC. MACKTAL told AUSTIN he had not taken the harassment and intimidation issues to the NRC, but he admitted to the investigators that he had, in fact, taken all his harassment and intimidation issues to ;
John SINCLAIR, 01, Washington, D.C. ,
MACKTAL said he decided not to accept AUSTIN's offer because he wanted his '
information concerning CPSES brought out before the ASLB. Since he had to sever relations with GAP to accept this money, he believed that meant he could not testify before the ASLB. Although AUSTIN did not tell MACKTAL he had to sever relations with CASE, MACKTAL insisted that to him GAP, GARDE, and CASE were all the same thing. MACKTAL stated he had no further meetings or conversations with AUSTIN following the final telephone conversation on April 17, 1986.
After some private discussion with KOHN, MACKTAL stated that he remembered that AUSTIN told him he would have to keep his concerns from the intervenors and the ASLB in order to receive the $15,000 settlement. He further claimed that was why AUSTIN wanted the settlement before the deposition was taken, so his deposition would not get into the hands of the intervenors.
MACKTAL stated he tape-recorded the April 17 conversation with AUSTIN, but he was unable to locate this tape. He had no recordings or other notes regarding his meetings and conversations with AUSTIN except the handwritten notes taken regarding the initial meeting and a typed outline of conversations that he prepared for GARDE several months after the meetings and conversations with AUSTIN. MACKTAL stated that he met with no one else from B&R or TV to discuss Case No. 4-89-008 12
s his case as he had done alth AUSTIN.
Interview with T. Louis AUSTIN. Jr.. Fonner President and Current Chairperson of the Board. B&R Investigator Van Cleave on October 23,1989, at his AUSTINwasinterviewedby(Exhibit office in Houston, Texas 7). Present representing B&R and AUSTIN was J J. Patrick HICKEY, attorney with Shaw, Pittman, Potts, and Trowbridge. AUSTIN i stated that he was President of B&R from 1983 until the beginning of 1989 when he became Chairperson of the Board.
AUSTIN recalled th:t M Tt with MACKTAL on two occasions. MACKTAL initiated contact with him by telephoning AUSTIN after a speech AUSTIN made at CPSES, during which he made some negative e.oments about lawyers. AUSTIN said MACKTAL telephoned him sometime in February 1986, said he did not like lawyers either, and asked to meet with AUSTIN. AUSTIN stated that he agreed to meet with MACKTAL because he has "the most open door policy of any chief executive in the world " and he will meet with anyone. AUSTIN recalled that his first meeting with MACKTAL was in Cleburne. He flew to Cleburne in a' B&R jet and went alone with MACKTAL to get a hamburger. MACKTAL told him he had been harassed by B&R supervision because he took safety concerns to SAFETEAM.
AUSTIN stated he told MACKTAL he wanted to know about his safety concerns. .
According to AUSTIN, he recalled that MACKTAL provided him with one example of alleged harassment. MACKTAL related that on one occasion, his wife contacted CPSES with an emergency, but he never received the message to call her.
AUSTIN believed that this was not an example of harassment and intimidation. -
MACKTAL stated he was angry with his attorneys, but AUSTIN could not recall him providing any reasons for that. MACKTAL told AUSTIN he was tired of fooling with attorneys, and he wanted to go back- to work. AUSTIN stated that although he did not believe MACKTAL had been harassed. B&R offered MACKTAL a .
job at CPSES by letter dated March 13,1986(Exhibit 8). AUSTIN stated this-letter must have been a follow-up to a conversation he had with MACKTAL during which he offered him his job back, but he was unable to recall =the specific conversation. He stated that he could not recall if MACKTAL telephoned him to
- decline this offer or if he received word through MACKTAL's attorceys that MACKTAL was not interested in it.
AUSTIN stated he did not know MACKTAL before MACKTAL telephoned him. He believed he was also unaware, at that time, of MACKTAL's pending DOL suit.
. After MACKTAL's telephone call, AUSTIN checked up on him and found out the ,
status of the DOL suit. AUSTIN stated that he checked into the MACKTAL matter '
by contacting CPSES. They provided him with copies of their interviews with MACKTAL, but AUSTIN claimed he did not receive a copy of the SAFETEAM investigation. AUSTIN did not recall meeting with MACKTAL at B&R's Houston-offices, but stated it was possible he could have done so. According to AUSTIN's calendar, the meeting in Cleburne was February 20 or 21,1986.
AUSTIN admitted that there was a notation on his calendar for February 21 which said "10:00 MACKTAL." AUSTIN reviewed his calendar for March 1986.and stated he found no reference to MACKTAL, although MACKTAL stated he met AUSTIN in Cleburne on March 25, 1986.
AUSTIN stated that when B&R offered MACKTAL his job back they did not offer back pay because their contention was that he quit B&R, although he claimed he Case No. 4-89-008 13
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< was harassed into quitting by B&R supervision. AUSTIN claimed he never '
considered MACKTAL's story to be a safety issue because MACKTAL had already taken all his concerns to SAFETEAM. He believed the issue in MACKTAL's mind was that he had been harassed because he had gone to SAFETEAM and that as a result he asked to be demoted from floor person to craftsperson and then quit.
AUSTIN told MACKTAL at the conclusion of the meeting in Cleburne that he would look into the situation, but he did not offer MACKTAL his job back at that time.
AUSTIN recalled that a second meeting took place between himself and MACKTAL in a motel in Stephenville. His calendar indicates that this meeting took place April 5,1986, although MACKTAL has stated the meeting occurred April 12, 1986. AUSTIN stated that in addition to himself and MACKTAL, present at the meeting was Glen G. MAGNUSON Jr., an attorney representing B&R, who took extensive notes during the meeting. At this meeting, MACKTAL impliec he had additional safety concerns which he had not expressed to SAFETEAM.
MACKTAL told AUSTIN he still believed he had been harassed, and he and AUSTIN reviewed his safety concerns, and MAGNUSON recorded them. AUSTIN stated that these safety concerns were all turned over to CPSES and checked out by B&R employees. During this meeting, AUSTIN stated he received the impression that MACKTAL did not want to return to work at CPSES, but wanted employment at another location. >
AUSTIN stated that sometime in April [according to MACKTAL this occurred '
April 17,1986], AUSTIN telephoned MACKTAL and offered him back wages and to help him find a job elsewhere. According to AUSTIN, MACKTAL told him he would 1 check on it and get back to him if he decided to accept the offer. AUSTIN was unable to recall if MACKTAL telephoned him or if he got word through the
" chain" that MACKTAL declined his offer. AUSTIN did not believe that B&R sent anything in writing confirming this second offer. According to AUSTIN, this offer was made contingent upon MACKTAL's dropping his labor suit. -AUSTIN stated he did not place any other conditions on MACKTAL's accepting the offer.
AUSTIN stated he did not recall telling MACKTAL that B&R would lose a D0L suit if it went to hearing, and he would not normally say anything like that to a fomer employee. He did not recall telling MACKTAL that he would have to denounce or sever relations with GAP or even mentioning MACKTAL's attorneys.
He further was unable to recall mentioning MACKTAL's deposition, but admitted he could have done so because the deposition related to the suit. AUSTIN stated he was unable to recall mentioning anything to MACKTAL about testifying ;
before the ASLB, the NRC, or on behalf of intervenors. According to AUSTIN, he simply made an offer to MACKTAL to settle a labor case.
By this time, AUSTIN stated all concerns mentioned by MACKTAL had been checked out and reviewed by B&R employees. AUSTIN thought none of MACKTAL's alleged safety and/or harassment concerns were valid. AUSTIN stated he made _an offer ;
to MACKTAL because "I was bending over backwards trying to be fair." AUSTIN stated he did not have any other motive than that, and he was not trying to cover up anything. He stated he did not recall how much money he offered MACKTAL in back pay, nor did he recall if he also offered to cover MACKTAL's legal fees. As soon as AUSTIN heard that MACKTAL had declined his second offer,- he said he personally dropped the matter and let his lawyers take care of it. AUSTIN stated that he continued to meet with MACKTAL because he i honestly believed MACKTAL wanted to put everything that happened at CPSES !
behind him and go to work in another location. He stated that he had no Case No. 4-89-008 14 I
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further contact with MACKTAL until he saw him at the Senate Hearings in l' Washington in May 1989.
whatsoever to do with the final settlement of AUSTIN
$15,000 paidstated he had nothing$20,000 to MACKTAL and paid to his attorneys.He claimed he did ;
!' not fir,d out about the specific language in MACKTAL's settlement agreement L
until he was preparing for the Senate Hearings or a few months before that time. He said he was not responsible for putting the prohibitive language in 4 l the agreement and had no idea how the language in the settlement agreement was arrived at.
INVESTIGATOR'S NOTE: Investigator Van Cleave requested that AUSTIN and l
HICKEY attempt to locate any documentation that might help confirm the number and/or dates of the meetings and conversations between AUSTIN and MACKTAL. B&R Aircraft Use Reports provided by HICKEY to investigator Van Cleave in December 1989, indicate that the meetings between MACKTAL-and AUSTIN took place on March 31, 1986, andApril5,1986(Exhibit 9).
Interview with Glen G. MAGNUSON, Jr., Fonner Associate General Counsel, B&R MAGNUSON was interviewed on October 23, 1989, at his office in Houston, Texas, by Investigator Van Cleave (Exhibit 10). Also present during the interview was HICKEY, representing B&R, MAGNUSON stated he was employed as an Associate General Counsel for B&R from March 1980 until July 1986. He recalled being present at a meeting between AUSTIN and MACKTAL sometime in the' spring of 1986 in a motel room somewhere in central Texas. He and AUSTIN specifically flew to Cleburne on a B&R corporate plane to meet MACKTAL. He stated he was present at AUSTIN's request as B&R's counsel and as a " secretary" to record MACKTAL's statement. MAGNUSON stated he took extensive dated notes during this meeting, but he left all notes and work products at B&R when he left the company's employment.
I MAGNUSON stated he had little recollection of the meeting. He recalled it took approximately 2 to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> and concerned MACKTAL's complaints regarding a ,
series of occurrences and problems during his employment at CPSES. MAGNUSON stated he did not know MACKTAL: prior to this meeting. He recalled that MACKTAL stated he had referred some, but not all, of his concerns to CPSES' SAFETEAM. MAGNUSON could not recall what MACKTAL reported to SAFETEAM, nor could he recall why MACKTAL had not reported all his concerns to them. He said that AUSTIN questioned MACKTAL regarding his safety and other concerns.
MAGNUSON remembered that MACKTAL obtained AUSTIN's home telephone number, '
contacted him there, and asked to meet with him. MAGNUSON stated there was nothing unusual about this meeting because AUSTIN's policy was to meet with any employee who wished to meet with him. He said that AUSTIN was a " direct, no nonsense, and hands-on" individual who often treated employees or former employees in this manner. . MAGNUSON did not recall any discussion concerning reinstatement of MACKTAL's position, front pay, back pay, or any other payment-to MACKTAL from B&R. During this meeting, MACKTAL and AUSTIN did not have any private discussions outside of MAGNUS 0N's presence. MAGNUSON did not recall any discussion regarding MACKTAL's DOL suit or harassment or intimidation of MACKTAL while he was employed at CPSES. MAGNUSON stated that it was possible !
that he prepared a memorandum regarding MACKTAL's infonnation and provided it to TV's licensing attorney, Nick REYNOLDS. MAGNUSON reiterated that he had Case No. 4-89-008 15
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little recollection of this meeting, although his notes were very detailed and should shed light on the subject of the meeting.
INVESTIGATOR'S NOTE: HICKEY stated that B&R had located MAGNUS 0N's notes and a letter from MAGNUSON to REYNOLOS regarding a meeting between AUSTIN and MACKTAL. HICKEY refused to provide these to the investigator on the grounds that they were privileged under attorney / client privilege.
AUSTIN, when initially asked to provide these notes to 01, stated he would defer that decision to the B&R attorneys. 01 then requested, in writing to AUSTIN, access to the notes. HICKEY responded citing ongoing B&R litigation as the reason for not waiving the client / attorney privilege (Exhibit 11).
Interview with Billie P. GARDE, Former Attorney, GAP GARDE was interviewed at the NRC Region IV offices on October 27, 1989, by Investigator Van Cleave (Exhibit 12). On the speaker telephone representing GARDE was her attorney, Vernon JOHNSON.
GARDE. stated that MACKTAL had contacted Juanita ELLIS with CASE following what he characterized as his termination at CPSES. MACKTAL was interviewed at length by ELLIS who tape recorded his statement. ELLIS put MACKTAL in touch with GAP attorneys who represented him in his DOL suit against B&R. MACKTAL' was interviewed shortly after he brought his concerns to CASE by Vince NOONAN, the head of NRC's Technical Eeview Team in Washington, D.C. He was interviewed a second time at NRC Region IV by the Allegations Coordinator, Mark EMERSON. He was also interviewed in. Washington by 01 Investigator SINCLAIR concerning the harassment and intimidation aspects of his case.
GARDE denied knowledge that MACKTAL might not have revealed all his safety or harassment and intimidation concerns to the NRC during these interviews. She stated that she had prepared a 3-page outline of the issues, and he talked from that outline during his interviews. She stated she was sure that all information from that outline was placed on the record.- If he had any additional concerns he had not expressed them to Mr. and they had not been put on the outline. GARDE denied telling MACKTli 5.ot to provide the NRC with all his concerns. She stated that she tried to delineate between the safety concerns which he discussed with EMERSON and his harassment and intimidation concerns which he discussed with SINCLAIR.
GARDE stated that she did not learn about MACKTAL's meetings with AUSTlH until the end of one of the last depositions in discovery in October or early November 1986, prior to MACKTAL's DOL case going to trial. She recalled that at the conclusion of that deposition, the attorney for B&R, McNeal WATKINS, made some comment to her regarding having MACKTAL testify about his meetings with AUSTIN. She said that she had had no personal or business dealings with AUSTIN regarding MACKTAL's case and that all her dealings were with lawyers from BISHOP, LEIBERMAN, COOK, PURCELL, and REYNOLDS. Following that coment by the B&R attorney, she said she telephoned MACKTAL imediately and asked him what WATKINS was referring to. She stated that she was very angry and unhappy because she was preparing MACKTAL's case for trial in approximately three weeks and had no information concerning any MACKTAL/ AUSTIN meetings.
GARDE stated that MACKTAL admitted he had contacted AUSTIN and arranged to meet with him on a number of occasions in an attempt to settle his D0L case.
Case No. 4-89-008 16
She said that MACKTAL' told her B&R had offered him $15,000 cash to settle his case-if he fired GAP publicly. GARDE related that MACKTAL said he refused to 1 do that, even though AUSTIN also said that B&R would take care of his lawyers, {
She said MACKTAL felt that this was not enough money, and as a result, the potential settlement did not work out. According to GARDE MACKTAL said he did' not tell her about that because it was between him and AUSTIN " man to-man." a GARDE stated she could not recall exactly why MACKTAL-said he went to AUSTIN i in an attempt to settle his case without his lawyers. GARDE stated that she j was very upset and tcld MACKTAL that she believed AUSTIN would testify that the sole motivation for MACKTAL's going to trial was an attempt to get more
- money out of B&R, and he was even willing to go behind his own lawyers' backs i to cut a deal. ,
f GARDE stated that at her request, MACKTAL prepared a f ypewritten summary in November 1986 of his contacts with AUSTIN (Exhibit 13). She stated she had no other documents, notes, recordings, or anything else regarding MACKTAL's 1 meetings with AUSTIN. She said that MACKTAL denied having any recordings of !
his conversations with AUSTIN. She further stated she did not recall MACKTAL tell'ingherthatAUSTINincludedhis[MACKTAL's]nottestifyingornot I pursuing his. concerns with the NRC as conditions of this settlement offer.
GARDE stated that her knowledge of the meetings and conversations was '
reflected in the typed outline that MACKTAL provided to her.
GARDE stated that prior to the initial _ investigation stage, B&R offered to -
hire MACKTAL back at CPSES as a regular journeyman helper without back pay.
She stated there were several other offers, but she was unable to recall what they were. She said MACKTAL rejected the initial offer because he wanted more money and was offended by the offer of- journeyman instead of foreman. He stated he did not want to return to CPSES unless he^ received foreman pay because he believed he had been demoted in retaliation for having raised safety concerns. GARDE stated she did not recall any settlement discussions of any substance between that initial offer in March 1986 and the final settlement in November or December 1986. She stated that MACKTAL's case was settled on the day the trial was scheduled to begin. She said that everyone was present for the trial including all witnesses, and she was ready to begin a the trial. She stated she believed $35,000 was B&R's final offer, and after she presented it to MACKTAL he accepted the offer. She believed that this i figure was authorized by Bill BEDMAN, an in-house attorney for B&R. She had h no knowledge or recollection of AUSTIN's name being mentioned that day or his having any input into the settlement agreement.
GARDE stated that she and Anthony ROISMAN recommended that MACKTAL accept the settlement offer because they believed if he went forward he would lose at trial. She stated that technically speaking, the only type of activity that.-
earns one protection of the " Whistle Blowers Protection Act" was contacting a competent organ of government prior to being fired. She said that MACKTAL had not contacted the NRC before he left CPSES so he had no automatic claim based on that. She stated that she was going to argue that he had been working his way up the chain, and it was reasonable to expect that he would have contacted the NRC. However, the judge in the case stated that she was not going to allow this type of argument in an attempt to change the Fifth Circuit ruling of B&R vs. DONOVAN in her court. GARDE stated there was no transcription of
.this conversation with the judge. GARDE believed her case was weak if she was not allowed to put forth that argument.
Case No. 4-89-008 17
GARDE believed that B&R had compiled a good record of MACKTfL's attendance violations and improprieties and inabilities as a foreman.(
GARDE stateil that the closer s)e had cotten to the DOL trial date 'he t more things "started tn fa11' apart.
JShestated
=, that- the final straw fui c.cr was when she found out about MACKTAL4 meetings t j ,
with AUSTIN. At-that point, she said she became convinced she was representing someone who had an illegitimate claim. GARDE admitted she requested that she be removed by GAP from MACKTAL's case, but her request was denied, and ROISMAN was assigned to assist her.
GARDE stated that throughout the day of the final settlement, she and ROISMAN kept MACKTAL apprised of offers and conditions. She stated that MACKTAL was aware, at that time, that he owed GAP approximately $13,500. The retainer agreement which MACKTAL signed with GAP stated that he agreed to reimburse the firm for expenses incurred in pursuing this claim should no attorney's fees be provided through settlement or court order (Exhibit 14). GARDE stated she had j always believed that MACKTAL was responsible for his expenses, but she denied that she or ROISMAN told MACKTAL that he would have to pay their legal fees if ,
he wished to pursue his claim. However, she admitted she told MACKTAL that he was responsible for the $13,000 in legal fees. GARDE stated that GAP often lost money on clients who never repaid them. !
GARDE stated that MACKTAL agreed to the settlement agreement, although he did not believe he was getting enough money. He stated he needed money immediately, and he wanted it within 30 days. He accepted the settlement and authorized GARDE and ROISMAN to settle his' case with B&R, GARDE stated the only impression she received from him that day was that he wished he could have obtained more money, but he was willing to settle for the.$15,000. B&R was slow in paying MACKTAL the money, and towards the end of the 30 days.
MACKTAL stated that if B&R did not pay him, he wanted to press forward with his DOL claim. .
Although MACKTAL's settlement agreement . 9 signed by GARDE on his behalf.
MACKTAL signed a general release on January 7,1987, regarding his receipt of
'$15,000 from B&R (Exhibit 15). GARDE stated it was not unusual for attorneys to execute settlement agreements on behalf of their clients. MACKTAL was aware that she was going to sign the settlement agreement because they had agreed that this was the quickest way for him to obtain his money. GARDE asserted that she had a power of attorney which had been included in the retainer agreement signed by MACKTAL, GARDE said that B&R wrote a joint check to her and MACKTAL. She put the check into her bank and paid MACKTAL with her check. She stated she did not recall whether the endorsement on the back of the B&R check was MACKTAL's or if he had authorized the deposit over the telephone. Again, GARDE reiterated that she had power of attorney to sign for MACKTAL, although she stated the Case No. 4-89-008 18
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j signature on the check was not_in her handwriting. l t
- GARDE stated that she was not responsible hr putting the " gag order" in j MACKTAL's final settlement agreement. GARDE said that she and ROISMAN agreed !
to the paragraph regarding MACKTAL's not providing testimony to intervenors or I the ASLB because they had nothing to lose. Thty believed that due to his I L credibility problems, they did not want him to " clutter up the ASLB record." l L She believed that MACKTAL could do nothing but hert himself and CASE if he i
_ testified in a licensing hearing. Consequently, it was to his advantage to l never be in a position to be put on the stand where he might be proven a liar.
GARDE admitted that the paragraph in the settlement agreement spoke to MACKTAL's not testifying in the licensing hearings. i According to GARDE, B&R's attorney drafted the paragraph in question because in the past many questions, which B&R had considered settled, came back to haunt them during licensing hearings. Consequently, this was an effort to ban MACKTAL from any further dealings with B&R, They also believed that the issues of harassment and intimidation of quality control inspectors and others raised by MACKTAL might have a negative impact on CPSES' licensing proceedings. Those_ issues were, at that time, in front of the ASLB, and B&R did not want any further possible substantiation for those issues.
GARDE stated she did not know if AUSTIN was aware of the specific terms of MANTAL's settlement agreement or if he had any input in the draf ting of the settlement agreement. GARDE insisted that all conditions were reviewed with MACKTAL, and he agreed to them. She denied coercing MACKTAL into a settlement agreement. GARDE stated that she had heard nothing concerning any additional safety concerns he.had until he hired the KOHNs to represent him.
GARDE presented Investigator Van Cleave with a-note from ELLIS stating that-MACKTAL told her that he read about the CASE /TV settlement in the newspaper, and he believed hi should have waited to settle his DOL case. He did not t
mention anything to ELLIS at that time about additional safety concerns.
GARDE stated that she did not believe MACKTAL had any additional safety concerns and-believed that he had told the NRC all his concerns shortly after his release from CPSES, GARDE reiterated that she would never have told any client to withhold safety issues from the NRC.
GARDE stated that MACKTAL's DOL claim was totally removed from any subsequent-CASE /TU settlement agreement. She stated that at the time of his trial date, CASE and TV were not actively engaged in negotiations that began in approximately May 1988. ,
Willfulness / Intent Allegation: Alleged Attempt to Prohibit Employee from Bringing Forth Safety ;
Concerns Regarding CP5E5 A. BERK 0VITZ stated that GARDE told him that MACKTAL never told her that AUSTIN either threatened him or forbade him to testify before the NRC or ,
any other body regarding matters at CPSES. GARDE stated that MACKTAL admitted that he had initiated contact with AUSTIN (Exhibit 5),
i Case No. 4-89-008 19 l
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, m B. MACKTAL admitted that he initiated contact with AUSTIN. He claimed that
'following several meetings and/or. telephone conversations, AUSTIN told him that the NRC had wrongfully discharged MACKTAL. As a result, AUSTIN offered to settle with MACKTAL for $15,000 to him and an additional unspecified payment to his attorneys. MACKTAL stated that AUSTIN did not put any conditions on his receiving the $15,000 other than he fire GAP nor did he tell MACKTAL he uuld have to sign an agreement to receive the money, MACKTAL claimed AUSTIN said he wanted to settle the case prior to the DOL hearing because he wanted to keep MACKTAL's safety concerns from CASE. MACKTAL admitted this was information that he had already provided i to the NRC. MACKTAL claimed he refused AUSTIN's offer because he we.ted to take his concerns to the ASLB and he believed that if he severed relations with GAP, he could not testify before the ASLB. Although he o- admitted AUSTIN did not tell him he had to sever relations with CASE, he believed that GAP, GARDE, and CASE were all the same thing (Exhibit 6).
C. Following some private discussions with KOHN, MACKTAL remembered that AUSTIN told him he would have to keep his concerns from'the intervenors and the_ ASLB in order to receive the $15,000 settlement. Although MACKTAL claimed that he tape recorded the April 17 conversation with AUSTIN, he was unable to locate the tape (Exhibit 6).
D. AUSTIN stated that he was contacted by MACKTAL in early 1986 and because he had "the most open door policy of any chief executive. in the world," .
he agreed to meet with MACKTAL. AUSTIN stated that he and MACKTAL discussed-safety concerns and alleged harassment and intimidation concerns at CPSES. AUSTIN stated that although he did not believe '
MACKTAL had been harassed, he offered him a job back at CPSES, which
, MACKTAL subsequently declined (Exhibits 7 and 8).
E. Following subsequent meetings between MACKTAL and AUSTIN, AUSTIN stated that he believed MACKTAL did not want to return to work at CPSES but wanted employment at another location. AUSTIN admitted that sometime in
' April 1986, he telephoned MACKTAL and offered him back wages and offered to help him find a job elsewhere in settlement of his pending DOL case.
AUSTIN stated this offer was made contingent upon MACKTAL's dropping his labor suit and that no other conditions were placed on this offer.-
AUSTIN claimed that he simply made an offer to MACKTAL to settle a DOL case (Exhibit 7).
F. MAGNUSON stated he was present during a meeting between AUSTIN and MACKTAL sometime in the spring of 1986, but he had little recollection of the meeting. MAGNUSON stated that MACKTAL initiated contact with AUSTIN, who agreed to meet with him. There was nothing unusual about this because AUSTIN's policy was to meet with any employee who wished to mcac with him. MAGNUSON recalled AUSTIN and MACKTAL discussing MARTAL's safety concerns regarding CPSES, but he was unable tc raall any discussions of payment of any sort to MACKTAL from B&R (Exhibit 10).
L G. GARDE stated that MACKTAL told her that he initiated contact with AUSTIN, i but she was unaware of this contact until shortly before the end of' L October or November 1986. GARDE stated that MACKTAL told her AUSTIN L
offered him $15,000 cash to settle his D0L case if he fired GAP publicly. '
According to GARDE, MACKTAL did not believe this was enough money and as Case No. 4-89-008 20 l
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a result he refused to agree to the potential settlement. GARDE said )
that MACKTAL told her he did not previously inform her of these meetings i becauseitwasbetweenhimandAUSTIN"mantoman"(Exhibit 12).
H. MACKTAL, at GARDE's request, prepared a typewritten suninary in November 1986 regarding his contacts with AUSTIN. This suninary did not mention any prohibitions placed on MACKTAL regarding any testimony he might ,
provide to the ASl.B or the NRC (Exhibit 13). l I. GARDE stated she had no further documents regarding'MACKTAL's meeting with AUSTIN. She stated she did not recall MACKTAL s telling her that AUSTIN included his not testifying or not pursuing his concerns with the- ,
NRC as conditions of a settlement agreement. GARDE stated the sum total )
of her knowledge of the meetings and conversations between MACKTAL and '
AUSTIN 'were reflected in the typed outline that MACKTAL provided to her 'l (Exhibits 12 and 13). l i
J. On November 14, 1989, the Secretary of Labor issued an order rejecting in ,
part and approving in part the settlement between MACKTAL and B&R. This !
order was based in part on a detennination that MACKTAL entered into a valid binding agreement which he could not repudiate simply because he e changed his mind or later found the settlement to be disadvantageous.
Additionally, the Secretary determined it was inappropriate for MACKTAL to seek to overturn a settlement about which he was silent for 21 months and from which he received $15,000 (Exhibit 16).
Agent's Conclusion The evidence developed during the course of this investigation failed to disclose-any illegal activity on the part of AUSTIN or B&R regarding AUSTIN's meetings with MACKTAL. MACKTAL initiated contact with AUSTIN and AUSTIN-agreed to meet with the former B&R employee. The investigation did not develop any documentation or information to indicate that the offer made by AUSTIN was other than a simple offer made to settle MACKTAL's D0L case. -
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4 SUPPLEMENTAL INFORMATION
~0n November 14, 1989, the Secretary of Labor ruled, regarding MACKTAL's .
request to the Secretary of Labor, not to approve the settlement agreement.
The Secretary of Labor issued an Order rejecting in part and approving in part
, the settlement between MACKTAL and B&R (Exhibit 16). The settlement was ,
approved with the exception of the paragraph relating to MACKTAL's ability to appear as a witness before the ASLB or testify before intervenor organizations regarding CPSES. The Order was issued and based, in part, on a determination that MACKTAL entered into a valid, binding agreement which he could not '
repudiate simply because he changed his mind or later found the settlerent to be disadvantageous. Additionally; the secretary determined it was inappropriate for MACKTAL to seek to overturn a settlement about which he was
- silent for 21 months and from which he received $15,000. ,
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. . LIST OF EXHIBITS Exhibit No. Description la Department of Labor Settlement Agreement Number 86-ERA-23, dated January 2, 1987.
Ib Request for Investigation, dated April 27, 1989.
2 NRC Subpoena, dated June 2, 1989.
3-NRC Order Number 01-4-89-008, dated June.22, 1989.
4a U.S. District Court Order to show Cause, dated August 3,1989.
Ab U.S. District Court Amended Judgment,. dated September 14, 1989.
5 Report of Interview with BERK 0VITZ, dated July 24, 1989.
6 Transcript of Interview with MACKTAL, dated September 18. 1989.
7 Transcript of Interview with AUSTIN, dated October 23, 1989.
8 Letter from B&R to MACKTAL, dated March 13, 1986.
9 B&R Aircraft Use Repo:ts, dated March 31, 1986 and April 5, 1986, 10 Report of Intervir;w with MAGNUSON, dated October 23, 1989, 11 Letter from HICK 1Y to investigator Van Cleave, dated
-December 8, 1989, 12 Transcript of Interview with GARDE, dated October 27,'1989.
13 Summary of MACKTAL's Contact with AUSTIN from MACKTAL to GARDE, undated.
14 Retainer Agreement from MACKTAL to GARDE, dated February 10, 1986.
15 General Release Concerning Settlement Agreement Number 86-ERA-23 by MACKTAL, dated January 7,1987.
16 Department of Labor Order in Case Number 86-ERA-23, dated November 14, 1989; Case No. 4-89-008 25
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