ML20069J794
| ML20069J794 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/21/1983 |
| From: | Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8304260095 | |
| Download: ML20069J794 (30) | |
Text
{{#Wiki_filter:e-7 ~' April 21, 1983 . UNITED STATES OF AMERIC o) 3 NUCLEAR REGULATORY COMMI BEFORE THE ATOMIC SAFETY AND L NS,I j ~ $4 y In the Matter of ) / g ) N TEXAS UTILITIES GENERATING ) Docket Nos. 5.0-445 COMPANY, et al. ) 50-446 - ~ ' - ) (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses) APPLICANTS' BRIEF ON THE EFFECT ON THIS PROCEEDING OF THE RECOMMENDED DECISION OF THE DEPARTMENT OF-LABOR's ALJ IN "ATCHISON v. BROWN & ROQT" I. Introduction During the conference call of April 7, lj83',_theLicensing Board requested that the parties brief the question of collateral estoppel in regard to the Recommended Decision of the Department of Labor's (" DOL") Administrative Law-Judge--('"ADJ"T_ in Charles A. Atchison v. Brown & Root, Inc., Case No. 82-ERA-1 In accordance with the Board's request, Applicants hereby submit 1 In its Memorandum and Order of January 4,-1983, the Board stated that the exhibits, testimony and other evidence from the DOL proceeding are " relevant and necessary for a complete ,~E and adequate record on oC issues.- Memoranaum and Order at. 4, (January 4, 1983) The Board reserved decision on what effect the DOL Recommended Decision would iiave on the 'un Comanche. Peak proceeding. Id. In response to the Board's ~~ n Notice of Resumed EvidentiaW ' Hearing dated-March 4,
- 1983, W
the Applicants supplied the Board with " copies of the bb material core exhibits admitted into evidence by the DOL." Board Notice at 7. The Applicants also supplied the Board with the transcript of the DOL evidentiar hearings. en.O D
'his brief.- For the reasons set forth below, the doctrine of ~ t ~ collateral escoppel.need not and should not be appl;Te,d in this case.. Before discu,ssing collat'eral estoppel, however, Applicants -state their position on the more general question of'the effect 'of the DOL proceeding on this proceeding [ ]~ II. Summary of Position Applicants' position regarding the recommended-decision'of the Labor Department's ALJ is two-fold. First, Applicants contend that labor disputes arising under Section 2 02 can only be resolved by DOL and are not before this Board.
- Second, because the labor law questions in the DOL proceeding are not germane to the issues before the Board, there is no common issue to Which collateral estoppel might apply.
The question is not whether the Board is precluded from relitigiting Atchison's complaint. NopartyseekstocollaterallyathacktheDOL ~ decision in this forum, and if one did, the Board would lack jurisdiction to entertain such an attack. Rather, the question is what effect, if any, does the DOL poceeding hav3_on this 4 operating license proceeding. The starting po-int for this analysis begins with the issues in a section 210 proceeding and I how they' relate to an NRC proceeding. Section 210. authorizes the DOL to investigate an employee's complaint of discrimination or discharge for engaging in " protected activities," to conduct a hearing if those. allegations l I are substantiated by DOL's investigation and to grant relief to 2 Energy Reorganization Act of 1974, as amended, 42 UaS.C. l 5851. ~ t
.- ~ -c i an employee found to-have been discriminated against,by the employer. Only two issues are before DOL in a SectiIo~ 210 -[ proceeding,-viz., (1) was the employee engaged in a " protected activity" and (2) w'as he discriminated against or di5 charged because of such activity. In the Atchison case, the DOL ALJ stated the issue as follows:3 [T]he issue to be determined here is whether Brown and Root-violated the employee protection provisions of the Act, 42 U.S.C. {5851, by discharging Atchison for - complaining about and reporting the construction defects and quality control deficiencies in the nuclear plant w6rkplace,, for his averred filing of NCR #296, and his _ April 12, 1982 filing of NCR #361:- In deciding this issue, the ALJ found that Atchison's filing ~ ~ of NCR #296 and NCR 4361 were " protected activities" within the meaning of Section 210 and further found that his termination.by Brown & Root resulted from that activity, i.e., his filing of those two NCRs.4 Leaving aside the question of the finality of the ALJ's Recommended Decision (see Part III.C.2, infra)',' we now address the question of the effect on this proceeding.of the ALJ's -finding that the filing of an NCR is a protected activity. The NRC also has authority under Section 210, but that authority 3 Charles-A. Atchison v. Brown and Root, Inc., Case No. 82-ERA-9, slip op. at 9.(December 3, 1982). 4 Id., at.25-26. Brown & Root has taken the position before the Secretary of Labor that the ALJ's Recommended Decision is inconsistent with the facts and erroneous as a matter of law. Under DOL rules, there ir no final agency action l unless and until the Recommended Decision is affirmed by the Secretary. 29 C.F.R. $24.6. E .,,-----,,,-,,.,,,,,_,y, ~,, - -,,., ,.m. ..--m,
- ~ n ' complements DOL's, authority; and does not compet'e with it. ~ ' Pursuant to 10 C.F.R. 50.7, the Commission may.take; enforcement 3 action if a licensee or its con'tfactors discriminate against an - ~ employee for engaging in protected activities. Enforcement -sanctions may include denial, revocation _ or suspens-{on of a license or imposition of a civil penalty. 10 C.F.R. }50.7(c). However, Licensing' Boards presiding in operating license proceedings _have no authority under Section 50.7 to sanction a licensee found to have violated Section 210. Section 50.7 and its supporting Statement of Consideration (47 Fed. Reg. 30452) clearly envisage that this role is filled by the NRC Staff's Office of Inspection and Enforcement. NRC Regulations'contain no provision conferring jurisdiction on OL Licens[ng _ Boards to impose fines sua sponte or to take any other edforUement action.5 Rather, theStaffisvestedwiththeauthoritjto_idvestigate alleged violations and with the prosecutorial dis r'etion to ~ propose enforcement action. If its investigation of a Section 210 complaint discloses matters of health or safet9, significance, the Staff can issue a Notice of Violation and the applicant or I I licensee will have the opportunity to request a hearing. If a hearing is requested, then an ASLB will'be empaneled. 10 C.F.R. ((2.201-2.206. Then and only then might a Licensing Board become involved.6 5 Metropolitan Edison Co. (Three Mile Island Nuclear Station, j Unit 1), CLI-82-31, slip op. at 2-3 (October 14, 1982). l 6 Id., at 3. .-_,w. am
= ~' Both logic and fundamental due process di't'te this a approach, beepuse if a' Board could take enfo~ cement ~o,r licensing r it would'be 'cting on the ' action on the basis,of a DOL decfsion, a basis of allegations against Which the applic&nt had'no opportu-nity to defend. AnapplicantisentitledtoaheaE}i~ng, if requested, under section 189.of the Atomic Energy Act, 42 U.S.C. .$2239, on any matter affecting its fundamental rights. The hearing must be conducted in accordance with Section 4(c) of the Administrative Procedure Act. The APA provides tha a party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to cross-examine witnesses as required for full disclosure of-the facts. 5 U.S.C. $556. The agency's decision must be based on the Jecord before the agency and must be supported by substanEiaf evidence. 5 U.S.C. $$556, 557. As to enforcement actions if a~ hearing is requested, the same requirements apply. 5 .S.C. $'558. Applicants here have had no such opportunity to defend themselves. Even if the ultimate DOL decision were_to be accorded conclusive effect in the enforcement proceeding (a legal question.not addressed here), Applicants stil would be entitled to litigate the propriety of the enforcement sanction imposed. The Licensing Board lacks authority to look behind the ALJ's - Recommended Decision to determine Whether Section 210 was violated. This is the exclusive responsibility and area of expertise of,the Labor Department. Further, as noted above, the Board also lacks enforcement authority, that being the province of the NRC Staff. From the Board's standpoint as the protector r 3 .s._
w ~ 'of the public health and safety, what then is important about f Section 210 proceedings in general and the Atchison'~c,ase in ~ paticular? If the,, Recommended ' Decision of the ALJ is adopted by ~ the Secretary of Labor and becomes a final order, fo6r questions 'arise from a conclusion that Atchison wqs unfawfuli[y[ terminated by' Brown & Root _for engaging in protected activities.
- First, what is the safety significance of the two NCRs involved in the DOL decision and how were they dispositioned?~ NCR # $6 involved 4 CB&I supplied pipe whip restraints alleged to have. deficient welds.
All four restraints were subsequently reinspected and repaired in accordance with procedures in the? vendor's,OA manual. Applicants' Exhibit 122E. NCR #361 involved an allegation that there were no procedures for training inspectors for non-ASME' welding activities. This NCR was voided as I atentEy wrong p because quality procedures specify that Brown & Root is responsible'for such training. Applicants' Exhibit 135. There ~is no evidence of record even suggesting that either disposition was inappropriate. ~ l l The second question is: does Atchison's termination indicate that there was a systematic practice of retaliatory discrimination on other occasions at Comanche Peak? Third, was l l Atchison's termination designed to have, or did it in fact have, - a " chilling effect" on employees reporting health and safety concerns? Either question might imply that the Quality l Assurance / Quality Control ("QA/QC") program was not functioning ~ adequately. However, there is absolutely no evidence of record to support any such inferences. The Atchison, discharge was an
_7- ~ isolated incident.- There is no evidence that others,have been discriminatedsagainst. To the contrary, the record r.eflects that -I ApplicantshavemaintainedanaghressiveQA/QCprogramthat encourages its insp'ectors to find and report non-conforming ' conditions. '(E.g., Applicants' Exhibits.43, ~59, 6'0[and141at 38-39.) Indeed, Atchison himself was instructed to report defects found outside the scope of his assigned tasks. CASE Exhibit 650W. Finally, the records before DOL and this Board and the DOL ALJ's finding that Atchison was incredible (Recommended Decision at 3-4) could raise safety questions about thb quality _of any work which Atchison inspected during his several weeks as a QC inspector for non-ASME activities. However, the evidence of record here indicates that Applicants conducted an~ extensive verification program in which every weld inspected-by Atchison was reinspected and appropriately dispositioned (Applicants' Exhibit 141 at 17). The QA/QC issues before the Board flow from Contention 5.7 Resolution of the health and safety matters pl' aced in issue by 7 Contention 5. The. Applicant' s failure to 5dhere to the l quality assurance / quality control provisions required by the construction permits for Comanche Peak, Units 1 and 2, and the requirements. of Appendix B of 10 CFR Part 50, and the construction practices employed, specifically in regard to concrete work, mortar blocks, steel, Tracture toughness testing, expansion joints, placement of the reactor vessel for Unit 2, welding, inspection and testing, materials used, craft labor qualifications and working conditions (as they may affect QA/QC), and training and organization of QA/QC personnel, have raised substantial questions as to the adequacy of the contruction of the facility. As a result, the Commission cannot make the findings required by 10 CFR $50.57(a) necessary for issuance of an operating license for Comanche Peak.
~' ~ that Contention should be the focus of the Licensing Board. The Board must be satisfied' that construction of! the factlity is -I adequate in order tio make the f'indings in 10 C.F.R. 50.57(a) implicated by this' Contention (see 10 C.F.R. }2.760a}. Questions ~oflaborlawsuchasWhetherthefiling_ofanNCR[i}s'a" protected activity" or not,'and Whether an employee was unlawfully terminated, are immaterial to the Board's decision unless they lead to safety problems. The merits of personnel actions are within the exclusive province of the Labor Department, and are matters over wh'ich NRC has no authority. In sum, the Board's responsibility is to.' resolve the QA/QC ~ issues raised in Contention 5. As to the question of whether Atchison.was improperly discharged in violation oE Section 210 of -the Energy Reorganization-Act, the final resolution of the DOL - - ~ case will be dispositive. Onthedistinctanhs'eparatequestions ~ under the Atomic Energy Act of (1) Whether the NCRs that led to Atchison's termination had safety significance, (2) Whether the l discharge was part of a systematic pattern that might call the r l ~ QA/QC program into question, and (3) Whether the discharge was calculated to have or did in fact have a " chilling effect" on employee reporting, the Licensing Board' has made its own record and must issue.its own decision to the extent necessary to resolve Contention 5. The adequacy of the NRC Staff investigation of ~ Atchison's termination, about Which -the Board has expresses skepticism in the past, is not really a pertinent factual issue in this case. The Board is free to decline to rely .on this aspect of the Staff investigation as evidence on these 4
4-questions. See Ap licants' Motion for Reconsideration, filed simultaneousiz herewith.- There is ample probative, aterial evidence in the record adduced by the Applicants to rebut any ~ negative inferences,as to the QA/OC program which the intervenor would have the Board draw from the Atchison discharge. ~ III. Collateral Estoppel In view of the foregoing, Applicants submit that there is nothing in the DOL case that can or should be relitihated here, ~ and thus that collateral estoppel need not be invoked by the Board. Nevertheless, in view of the Board's directive that the parties' discuss the applicability of collateral estoppel, Applicants provide the following analysis. --It concludes that s collateral estoppel does not apply here.because th.ere is no -- identity of parties and issues, and becauseIthe DOb decision is not final. ~ 4 A. In General Collateral estoppel as well as the. associated doctrine of res judicata are judicially formulated doctrines founded upon " consideration of economy of judicial time an '(the'l public ~ policy favoring the establishment of certainty in legal rela- ~ b o 4 r e e --F h, y 9 ,m -,w-p s,,, ,---r 3 -*ur-- e-m ew-v"--r-r ---r
.- 10 _ 3 ~ tions.a8 Underapphopriatecircumstances, thedoctr}neof collateral estoppel is applicable to administrative-proceedings (as well as judicial proceedings),9 and he,Appeai' Board has recognized its applicability in NRC proceedings.10 In Parklane Hosiery,-Inc. v. Ehore, 439 U.S. 322; 327 n.5 (1979), the Supreme Court described the doctrines of res judicata and collateral estoppel as follows: Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the _same-cause of action.. Under the doctrine of collateral estoppel, on the other hand, the second action is~'upon a^different cause of action and the judgment in the p~rior sui.t precludes reli-tigation of issues actually litigatef and greessary to the. outcome of the first action. 13, J. Moore,.Feder.al Prac-tice 50.405[1], at 622-624 (26 ed. 1973; e.g.,.Lawlor v. National Screen Serv. Corp., 349 U.S.-322, 326 (1.95 5 ) ;. Commissioner v. Sunnen, 333 U.S. 591', 597-(1948); Cromwell
- v. County of Sac, 94 U.S.
351, 352-353_ (187,6.). Given those definitions, only the doctrine of collateral estoppel is proper for analysis here. For a prior decision to be binding l - a l in a subsequent proceeding on the basis of coll.atetal estoppel, t ~. 8-Commissioner v. Sunnen, 333 U.S. 591, 597- (1948,). 19 See United States v.-Utah Construction and Mining Company, ~ TET U.S. 394, 421-422 (1966). l-10 Alabama Power Company (Joseph M. Farley Nuclear Plant, Units i 1 and 2), ALAB-182, 7 AEC 210, 216, remanded on other i grounds, CLI-74-12, 7 AEC 203-(1974). 1 W a 4 n-s
_ 11 _ ~ 'he following elements must be shown:ll (1) the parties sought t to be bound or estopped'in the second action:must h,Yve been parties or controll,ing non-part'es or in close privity to the i parties in the first action; (2) fotir factors' relatisg to' issues ~ -must be sati' fied -- (a) theissuesoughttobepre]cludedmustbe s the same as that involved in the prior proceeding, (b) the iss'ue must have been actually litigated, (c) it must have.-been ~ determined by a valid and final judgment, and'(d) th$'determina-tion must have been essential to the prior judgment.12 and (3) the adjudicatory body in the prior proceeding must have had competent jurisdiction.13 As discussed at length below, neither the identity of parties test nor any of the--issues-tests for application of collateral estoppel are satisfied itere. It may be added that even if all tests we2e sE.isfied, there arecircumstanceswhichwarrantexceptiontohpplicationof collateral estoppel. The Appeal Board has recognized that "significant supervening developments having a possible material bearing upon any of the issues previously adjudicated . or . the presence of some unusual factor having special public interest implications" may mitigate application of collateral estoppel". Farley, supra, ALAB-182, 7 AEC at 216. A major factor 11 See Montana v. United States, 440 U.S. 147, 153 (1979); ' Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-378, 5 NRC 557 (1977); see also 1B Moore's Federal Practice 10.443 (1977). 12 Gulf Oil Corp. v. FPC, 563 F.2d 588, 602 (3d Cir. 1977); Haize v. Hanover Ins. Co., 536 F.2d 576, 579 (2d Cir. 1976); see Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-79-27, 10.NRC 563, 566 (1979). 13 1B Moore's Federal Practice, 50.443 (1977).
- 12 _ ~ inilitating against, application of the doctrine 'here is the vast difference ingareas.of expertise and focus betwe.en DOL and NRC, as will be discussed later. Such' mitigating factors have also -been recognized by the Supreme Court. Montana v. Uriited States, -supra, 440 U.S. at 155. { ~ Underlying all discussion of collateral-estoppel, moreover, i.s the-principle of fundamental fairness in the due-process Notwithstanding a showing of the elements sek'forth sense. above, public policy requires that collateral est:oppel be considered in conjunction with the policy that a litigant shall not be deprived of a fair adversary proceeding-in which to present or defend its case. See Makariw v. -Rinardr 336 F.2d 333, 334-35.(3d Cir. 1964); 1B Moore's Federal Practice _TO.406[2] at 904-906. Having set forth the general legalTprlnce"ples, we now turntoconsiderationofcollateralestoppel[nthis' case. B. Parties ~ l l Among the elements of collateral estoppel which must be ~ present before the doctrine applies is that there niu_st be l identity of parties. It is essential that a party in the present litigation against whom a prior judgment is asserted was a party l or in privity with a party in the earlier litigation.14 This l requirement is founded upon-due process considerations. A person cannot be bound by a judgment unless he has had reasonable notice of the claim against him and an opportunity to be heard in l 14 Montana v. United States, 440 U.S. 147, 153-154 (1979). Mosher Steel Company v. NLRB, 568 F.2d 436, 440 (5th Cir. 1978). South Texas, supra, 10 NRC at 572; s ee 1B -Moore's Faderal Practice 50.411. } l [ l'
- ~ defense ' of that claim. Blonder-Tongue Laboratories, Inc. v. University ofsIllinois Foundations, 402 U.S.1313.; 3,29: (1971); see -I 1B Moore's Federal Practice 10.41'l[1]. This is to assure that a party has been afforded a " full and fair" opp 6rtunity to litigate ~the issue at some point and eliminates the constitdtional ~ argument that a party will be denied due process. See Allen v'. McCurry, 449 U.S. 90, 95 (1980); Parklane Hosiery Co. v.
- Shore, 439 U.S.
322, 327 n.7 (1979). The Applicants in the NRC proceeding are Texas Utilities Generating Company, Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company,.' Texas -Municipal Power Agency, Brazos Electric Power Cooperative and Tex-La Electric Cooperative of Texas. Not one-of_these arganizations was a party to the Labor Department proceediig.- tee only parties to-thatproceedingwereMr.AtchisonandBrowh&Rodt, ~ Inc. Thus, the question is whether any of these 5pplic nts was a controlling non-party or in privity with Brown & Root. In ~ deciding whether a prior decision should bind a no -party, the court or adjudicatory body must determine whether the nature and extent of the non-party's interest in the prior litigation is sufficient to deem him a " participating or controlling" non-party. The Supreme Court, in United States v. California Bridge & Construction Company, 245 U.S. 337, 341 (1917), stated that privity involves a person so identified in interest with another that he represents the same legal right. Generally, a non-party must have control of, or at least joint control, or the right to .yy__ m -y -,,m ,.7 e
_ 14 _ i 'ontrol,.the prosecution or defense of the suit to be deemed in ~ c privity with a party.15'The non-party must, for ins,Eance, be able to control'the'deci,sion to appeal'.16 It is not sufficient that a non-party merely assists or cooperates in the*prosecdtion or -defense by providing funds for payment of lit'lgatibji expenses,17~ by providing an attorney,18 or by procuring -witnesses or evidence.19 ~ If a relationship found to exist between the party and non-party is too attenueted, collateral estoppel will be. barred by due process considerations. Blonder-Tongue Laboratories v. 4 University of Illinois Foundation, 402 U.S. 313, 329 (1971). For instance, in Bigelow v. Old Dominion Copper -Mining-& Smelting Company, 225 U.S. 111, 126-127 (1912), the. Supreme _ Court stated that privity was not established because the'qu'estion litigated wasonethatmightaffectthenon-party'sliahility'ina subsequent action. The Seventh Circuit, in Whitley v.
- Seibel, 676 F.2d 245, 248 n.1 (7th Cir. 1982), summarized the parties requirement as follows:
l 15 See Southwest Airlines v. Texas International Airlines, Inc. 546 F.2d 84, 95 (5th Cir. 1977) cert. denied sub nom. Texas International Airlines, Inc. v. Texas Aeronautics Commission, - 434 'U.S. 832 (1978); American Safety Flight Systems, Inc. v. Garrett Corp., 528 F.2d 288, 289 (9th Cir. 1975). See also Del Mar Avionics v. Quinton Instruments, 645 F.2d 87Y7 E74 35 2 (9.th Cir. 1981). 16 Litchfield v. Goodnow, 123 U.S. 549, 551 -(1887). 17 TRW, Inc. v. Ellipse Corp., 495 F.2d 314,-338 (7th Cir. 1974). 18 McIllheny Co. v. Gaidry 253 F.2d 613 (5th Cir. 1918). 19 Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 293 F.Supp. 892 (S.D.N.Y. 1968). v y-m-4 j r-y e-y, ,-,-r q -w--,-,y
~' Collateral, estoppel can be invoked by and'against new . litigants. It can be used as a shield by a n'ew defendant against a plaintiff who was a party t6 the f5'rmer liti-gation. Or it can be used as a sword by.a new plaintiff who was a pa.rty to the former litigation. It can never be used as a sword against a party who has not pTeviously had his day in cburt. [ citations omitted] ~ l ~~ ~ The question of parties arose in the St.~ Lucie antitrust proceeding at the NRC. There the applicant argued that collateral estoppel effect should not be given to a-prior decision of the Fifth Circuit regarding territorial allocation of the wholesale power market on the grounds that the intervenor in .the NRC proceeding should not have the benefits of that decision without having risked an adverse result, in that it -could have, but did not, intervene in the judicial proceeding.- Florida Power & Light Company (St. Lucie Plant, Unit No. 2), 14 lute 1167, 1173-1174.20 The Board ruled that it must l'ook-to "all relevant considerations", not merely whether a party c.guld easily have joined in a prior action, in determining whether to invoke the collateral estoppel doctrine. The Board gave collateral estoppel -effect to'the Fifth Circuit decision on the basis of the Applicant's full participation and vigorous def-ense as a party to that suit and because the appellate court's d termination (setting aside a jury verdict in appeal) was that the evidence of i l-conspiracy was " overwhelming," such as to admit if only one i 20 There are many aspects to the St. Lucie decision. In addition to arguments relating to the effects of the district court decision, the Board heard collateral estoppel arguments on two FERC opinions'and a Fifth Circuit decision. l We-discuss the arguments and the Board's ruling on these L other decisions later in the brief. } i
~ 'reasonab-le conclusion. St. Lucie, supra, LBP-81'-58, 14 NRC at 1174-1175. 3 ~ St. Lucie is d,istinguishab15 from the case at bar for ~ -j several reasons. There, the applicant was ths defendant in the -~ ~ federal antitrust litigation in the federal c~ourts' Tater sought to be used against it in the NRC proceeding-by a non-party to the federal case. That applicant against whom collateral estoppel was asserted had fully defended the prior suit in federal court. St. Lucie, supra, LBP-81-58, 14 NRC at 1174. Heie,_ Applicants, against whom the DOL decision would be asserted were not parties nor controlling non-parties to the Labor Department-proceeding and have not had an opportunity to defend. -Second, ths issues in St. Lucie were the same as those in the_ prior proc _eeding. As - discussed fully at pages 18-27, infra, the i~ssues n the present NRC case are not the same as in the prior (DO ) cass. In resolving the question of parties in this instance, it is important that the Board is aware of the relationship between Applicants and Brown & Root. Brown & Root is the general contractor in the construction of the Comanche Peak Steam Ele'ctric Station. During relevant times, Brown & Root employed j over 4,0D0 employees at the site, with approxh.mately 400 employees assigned to the QA/QC department. The QA/QC department is divided into two separate ~ entities -- the ASME21 QA program and the,non-ASME QA program. The ASME program governs construc-tion activities undertaken pursuant to the ASME Code and is the responsibility of Brown & Root. The non-ASME program governs 21 AmericanSocietyofMechanicalEngineers}("ASME").
~' non-ASME. construction activities and is the re'sponsibility of TUGCO. Browng& Root employees are assigned to
- work'~i,n both
-I programs. While th,,ose Brown & Ildot employees assigned to the non-ASME program arb supervised by TUGCO, thep remai5 the ~ employees of Brown & Root and any personnel action' ~r elating to ~ ~ such. employees is taken by Brown & Root (Applicants' Exhibit 141 at 14). Charles Atchison was employed at the site by Brown & Root as a OA/OC field inspector. He was detailed to TUGCO or a period, during which he remained a Brown & Root employee, and was returned to Brown & Root just prior to his discharge. The decision to terminate was made by Brown & Root's On-Sif.e OA Manager. Tr. 2508, 2510-2513. Pursuant to Section 210 of the Energy feorganb ation Act of $5851andtheappiicableregulations 1974, as amended, 42 U.S.C. of the Labor Department,22 Atchison filed a comp 1aint against his employer, Brown & Root, alleging that he had been terminated illegally for engaging in a " protected activity". 'On the basis of DOL's investigation of Atchison's complaint',- a proceeding was instituted against Brown & Root to determine whether it had discriminated against its employee engaged in protected activity. The proceeding before the DOL ALJ was defended by counsel for Brown & Root, all pleadings were filed by Brown & Root, and the legal theories employed were those of Brown & Root. The relief ordered by the ALJ, i.e., reinstatement of Atchison to his former 22 29 C.F.R. Part 24. }
18 - ~ ~ position. and payment of back pay, if sustained, will operate {' solely against Brown & Root. Applicants did,not participa'te in the Labor Department proceeding and did hot have control of, or the right:to control, 'the defense of Atchison's allegations. Applicantspouldnotbe ~ directly affected by the DOL proceeding since the L6bor Departnent can only grant relief to an employee found to have been illegally discriminated against, and only against the employer. Applicants were not and cannot be deemed _ participating or controlling non-parties to the DOL proceeding. Applicants have not had their day in court and, therefore, to-bind Applicants by the DOL Recommended Decision would be a denial of due process. C. Issues Whileabsenceofidentityofpartiesaloheis.sufficientto prevent application of collateral estoppel in a subsequent proceeding, we nonetheless discuss the standards relating to issues. As noted above, four tests as to issues must be satisfied for litigation of an issue to be precluded: (1) the issue sought to be precluded must be the same as that-in the prior action, (2) the issue must have been actually litigated, (3) it must have been determined by a valid and final judgment, and (4) determination of the issue must have been essential to the' prior judgment. Philadelphia Electric-Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1459-1460 (1982). See also Houston Lighting and Power Company (South Texas project, Units 1 and 2), LBP-79-27, 10 NRC 563, 566 Il i --.m ,-,y< --,,w e y r
} 19 - (1979), aff'd, ALAB-575, 11 NRC 14 (1980). Ali four, criteria must be satisfied if the issue is to be preciuded.,'See 1B I Moore's Federal Practice 10.433[l]. 1. Differing Legal Standards and Agency' Expert 5se. ~ In applying'these principles,- the Board should,, consider the different legal standards involved in the two proceedings. In Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-560, 10 NRC 265,-363 (1979) the Ap eal Board stated: Where the legal standards of two statutes are signifi-cantly different, the decision on an issue under one statute.does not give rise to collateril estoppel in a litigation of a similar issue under a different_ statute. [ citations omitted). The Licensing Board in the South Texas / Comanche Peak ~ antitrust proceeding elaborated on this point, stating th'atr# Issues are not identical if the second action involves.the application of a different. legal standard,~even though the factual setting of both proceedings may be the same. Thus the same historical facts may be involved in two actions, -but the legal significance of the facts may differ because different legal standards are applicable to_them. [ South l Texas, supra, LBP-79-27, 10 NRC at 569 (footnotes omitted)]. l i In South Texas, the Licensing Board concluded that the legal l ~ l standards and issues in antitrust proceedings'-under.Section 105c of the Atomic Energy Act were "significantly different" from those in Section 1 of the Sherman Act, and, therefore, that the
- decision of a district court based on the Ehe~rman Act could not' give rise to collateral estoppel.
South Texas, supra, LBP-79-27, ~10 NRC at 571. O w m ,9,-,.y- -, ~ e, ,,w -a n
~' By contrast,,the Licensing Board in the s't. Lucie antitrust proceeding found that the particular legal standardiii Applied by ~ 'the NRC and the Fe<1,eral Energy Regulatory Commission ("FERC") were not significarttly different, and that collaterai estoppel ~effect could thus be given in the NRC proceeciing t'o[a FERC finding. St. Lucie, supra, LBP-81-58, 14 NRC at 1175-1176. The Board noted, however, that only those FERC findings-that were relevant to the matters at issue in the NRC proceeding would be accorded binding effect. St. Lucie, supra, LBP-8i-58, 14 NRC at 1176. Here, the DOL proceeding involved a labo'r dispute,between an ~ employee against his employer under Section -210 of-the Energy Reorganization Act. The only basis for-an, action _under Section ~ 210 is an allegation of retaliatory discrimina iorr against an employee, and the standards by which DOL must ev'aluate the ~ allegation are whether a protected activity was involved and whether the personnel action by the employer resulted from the employee's protected activity. Thus, the Labor Dei >Artment's attention is focused on protection of the emp1'oyee. The legal standards and issues involved in this operating license 'roceeding are completely different from those in the p Labor Department proceeding. While DOL is concerned with - employee protection, NRC is concerned with protection of public health and safety. The standards against which an application for an operating license is judged, and the ultimate findings which the Board must make under the Atomic Energy Act and the . Commission's. Regulations, are whether there i_s reasonable e-m e w,-,
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~' assurance.thattheactivitiesauthorizedbythh'licensecanbe conducted without endangering the health and safety,'~of the I public, that such 4,ctivities will be conducted in. compliance with p the Commission's rules, and that issuance of the license will not ~be inimical to public health and safetyu 10C.F.R'.[$50.57. The ~ more narrow issue, as to allegations involving the OA/OC progr'am, is whether the plant is constructed in conformity wi-th the construction permit and the application. 10 C.F.R. {50.57(a)(1). The roles of. DOL and NRC, and the responsibility granted to each.by Section 210, define the nature of the issues to be decided by each. While complementary, those issues are distinct, ~ and derive from the unique expertise of the Department of Labor to decide labor disputes on the one hand, and, on the other hand, ? the' expertise of the NRC to decide health add safe 5~y questions relating to the ' construction and operation of[ nuclear power facilities. Section 210 gives the Secretary of Labor authority: (1) to investigate an employee's complaint of discrimination or discharge for engaging in " protected activitie's", (2) to conduct hearings on the employee's allegations based on the. Department's investigation and (3) to order relief to employees found to have been the subject of unlawful discrimination. - The NRC also has - broad investigatory power over health and safety matters arising under Section 161 of the Atomic Energy Act which is in no way diminished because the same facts may also involve labor disputes or alleged employment discrimination. However, NRC's authority does not serve the same purpose"and is not invoked in the same l I
~. } ~ 1. 1 manner as DOL's authority. There appears to be only one NRC decision ' interpreting the Commission's authority.unp~e,r Section I 210, viz.. Union El_ectric Company (Callaway Plant, Units 1 & 2), ALAB-527, 9 NRC 126' (1979 ). Callaway involved two principal ' questions--first, whether the CommissiorL could susp',e[nd a construction permit - until the constretetor cooperated with an NRC investigation of-alleged employee discrimination, and second, 3 ~. Whether the NRC could' order a worker reinstated. The Appeal Board stated that the investigatory powers of the Commission and the Labor Department are: . [B]oth en- . complementary, not duplicative courage the reporting of unsafe or improper practices to Commission officials. But Section 210 focuses chiefly on protecting employees against retaliation, rEther than~on safeguarding the public's rights. [Id. at l38-(emphasis added)]. A principal difference between the authority of DOL,and NRC is the relief each agency can grant. t I [T]he Secretary Cof Labor] apparently lacks _two. remedial powers -- Which the Commission possesses -- necessary to insure full. protection of the public interest. The first is the right to take important action against the employer, and the other is authority to do so immediately. Thus, even after finding that an employee has been fired for reporting unsafe construction practices,-the Secretary - not correction of may order reinstatement and back pay
- d. at 138-1393 the' dangerous practices themselves. [I l
l The Appeal Board's interpretation of'Section 210 in Callaway i is reinforced by the Commission's recent rulemaking which implements Section 210 and a Memorandum of Understanding between NRC and DOL which expresses recognition of each agency's area of l responsibility. Effective October 12, 1982 the NRC amended its . Regulations (10 C.F.R. $50.7) to Laplement Section 210 of the 4 i I ' Energy Reorganization Act and to incorporate int'o the Commis- ~ sion's Regulapions its authority under Sectien-161 pif; the Atomic ~ Energy Act to inves,tigate matte'rs having health and safety significance in connection with allegations of unlawful discrbminationagainstanemployeeandtotakeappf}(priate I action, and to complement the Labor Department s regulations. 47 Fed. Reg. 30452 (July 14, 1982); See 29 C.F.R. Part-24. The NRC ~ rule prov. ides that an adverse finding against'an employer by DOL under Section 210 may serve as the basis for the^ Commission to take enforcement or adverse licensing action against an applicant or licensee. 47 Fed. Reg. 30552 (July 7, 1982). However, such enforcement authority has been delegated by-the Commission to its 2 Staff, not the Licensing Boards. Metropolitan Edi_ son Company-(Three Mile Island, Unit 1), supra, CLI-82-31,'slijIop. at 2-3. ~ On December 3, 1982, NRC and DOL published in_the Federal Register < a Memorandum of Understanding concerning employee protection which emphasizes that NRC and DOL have separate and distinct responsibilities under Section 210. 47 Fed. Reg. 54585 i j (December 3, 1982). The purpose of the Memorandum is to i facilitate coordination and cooperation regar ing handling of Section 210 complaints. The Memorandum recognizes that the NRC l l and DOL have " complementary responsibilities"-in the area of f employee protection and that "each agency will carry out its statutory responsibilitie,s independently" but at the same time 1 cooperating to the fullest extent and exchanging information in areas of mutual interest. Id. (emphasis added). l l ~
l The statutory and regulatory scheme under-Section 210 grants DOL distinct zesponsibil'ity and authority. DOL's s51e responsibility is to resolve labo'r disputes. Th'e Department can
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grant relief only t6 employees and then only against' employers. 'It cannot directly affect the rights of NRC. applicants or licensees (unless, of course, the applicant -or licensee is the employer). While NRC's Regulations authorize the Commission to take enforcement action against an applicant or licens'ee on the basis of a DOL finding of retaliatory discriminatio.by a contractor, such action is at the discretion of the Commission. See 10 C.F.R. $50.7(c). 5 The issue before the NRC is not whether an Applicant's contractor has been held to have violated Section 210r, but whether any such violation affects health and s'afety. Because thelegalstandardsinvolvedandissuesbefor[the_t'woagencies significantly differ, the prior decision should not bind the Board in this proceeding under principles of collateral estoppel. 2. Finality ~ i Another of the essential elements of the doctrine of collateral estoppel is finality of judgment in the prior proceeding. See G&C Merriam Company v. Saalfield, 241 U.S. 22, 28 (1916); 1B Moore's Federal Practice 10.409El]. St. Lucie, supra, 14 NRC at 1189-1190, the Licensing Board refused to give I collateral estoppel effect to an order of the U.S. District Court 1 granting summary judgment favorable to the Applicants on certain antitrust matters. The intervenor in that proceeding argued that ~ the District. Court's Order was not a final judgment and, l I
' herefore, it couLd not give rise to collaterai estoppel. Id. t The applicant, on the other hand, argued that the OJ3,er should .] bind the intervenor,. _Id. The Bo'ard rejected th'e argument that the District Court Order was binding on the isterven6r.23' Id. at 1190. ~ '~~ In this case, the Recommended Decision -of the DOL ALJ is not final and cannot presently be enforced even against-the employer Brown & Root. Ithasthestatusofa"recommendatio$d to the Secretary of Labor who may or may not uphold that recommendation.24 Under the applicable DOL rules, 29 C.F.R. $24.6, the Recommended Decision will not constitute -final agency action unless affirmed by order of the Secretary. -That order is, ~ 23 The Board determined that the intervenof in the NRC proceeding was not in privity with the party to which the ~ District Court's Order applied. Id. at 1189.. 24 Cf. Rawlins v. United States, 686 F.2d 903, 906 (Ct. C1. IT82). In Rawlins, the plaintiff contended that findings of fact made by a trial commissioner and adopted by the review panel in a Congressional reference proceeding should be given binding effect in a subsequent suit. The Court _of Claims stated that: A congressional reference proceeding is.not-the equivalent of a inw suit, because the determinations of the panel do not result in a final judgment.! Conclusions of law made by a congressional reference review panel are mere recommendations to Congress as to whether a plaintiff has presented equitable grounds for recovery, While Congress has, for the niost part, agreed with review panel recommen-dations, it reserves the right to disagree. Therefore, the i findings and conclusions of the review panel have no l collateral estoppel.effect. This.is not to say that the evidence introduced at the [ congressional reference proceeding is of-no value l whatsoever. A congressional reference proceeding is indeed adversarial and there are many similarities between the procedures of congressional reference cases and those of l cases.within the general jurisdiction of this court, i 1 - -. -- -.. - -.
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nturn,.subjectt,ojudicial'reviewintheU.S.}CourtofAppeals. i . M. $24.7. The ALJ'.s Recommended Decision is pending,before the .] Secretary of Labor at present. '60L regulat.ons as to recommended decisions do not include an equivalent to the NRC rule which -treats licensing decisions as immediately e.ff ctive~itnd allows e licensees to proceed with certain license'd activities pending final agency review.25 See 10 C.F.R. $2.764. Since the Secretary has the right to disagree, Eie ALJ's Recommended Decision is not presently effective and_is not enforceable until the Secretary acts upon it. This does not mean that the Board must delay this proceeding pending the Secretary's decision. To the contrary, the Appeal Board in Callaway, supra, 9 NRC at 138, citing remarks by Senator. Hart durin_g floor debate on Section 210, stated that pendency of a DOL pkoosTeding need not delay'any action by the Commission. In.itsp[es4nt' status, however,.there is no final order and it would be o'ntrary to established principles of collateral estoppel to aecord binding effect to the Recommended Decision. 3. Issue Actually Litigated and Necessary to Decision As to the remaining two factors, i.e., thattheissuesought to be precluded was actually litigated in the prior proceeding and that that issue was essential to the prior decision, neither is satisfied inasmuch as the issues before DOL and NRC are .significantly different. The root issues actually litigated as 25 As to the Secretary's final order, however, the Labor Department's regulations provide that the filing of a petition for review does not operate automatically to stay that final order, unless, of course, a reviewing court so orders.. 10 C.F.R. $24.7(a).
,g. - ' essential to the 40L decision were (1) determinatioQ of Whether ~ " protected ac$ivitie.s"'were involved and (2):whe.ther'the employee .L was terminated as a, result of sudh activities. hny additional findings were unnecessary to the decision and; therefore,'may be ' regarded as dicta to which collateral es_toppel does~~not attach. South Texas, supra, LBP-79-27, 10 NRC at 571. D. Public Policy Considerations l Both.the Commission and the Appeal Board'have recognized that there are exceptions to application of collsteral estoppel f even when, unlike here, all of the elements are present.26 In Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 & 3) ALAB-378, 5 NRC 557, 561 (1977), the Appeal Board stated that when the legislative intent is to vest :pribarfpower to make particular1 determinations concerning a subject matter in a particular agency, a court's decision concerning that subject matter may be without binding eflect_upon that agency, 2 Davis CAdministrative Law Treatise] 1812 at pp. 627-628. cf. United States v. Radio' Corporation of America, 358 U.S. 374, 347-352 (1959). Similarly in FTC v. Texaco, 555 F.2d 862, 881 (D.C. Cir. 1977), cert. denied,-421 U.S. 974 (1978), the Court oE Appeals admonished that "[a] court should approach gingerly a-claim that one agency has conclusively determined an issue later analyzed 26 E.g., Houston Lighting & Power Company (South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 1303 (1977); Davis-Besse, supra, ALAB-378, 5 NRC at 561; Farley, supra, ALAB-182, 7 AEC at 213-216.
o 'from another perspective by an agency with diffe' rent subject ~ matter jurisdfction." ] As we have argued with reg ~rd to issues, Section 210 vests a authority in the Secretary of Labor to investigate and resolve labordisputesbetweenanemployeeandhisemployer]resulting ~ from protected activities. NRC has complementary authority to -investigate events which gave rise to the labor dispute and to take action against an applicant or licensee under Section 50.7 of the Commission's Regulations. The joint Memorandum of Under-standing provides that NRC and DOL will carry out their respec-tive statutory responsibilities independently, but will exchange information of mutual interest. 47 Fed. Reg. 54585 (D6cember 3, ~. 1982). DOL lacks authority and expertise to decid_e matters related to public health and safety arising:under Ehe Atomic Energy Act of 1954 and the NRC's Regulations,[authprity and expertise that the NRC Licensing Board alone poss s'ses. See Applicants' Proposed Findings of Fact, at Finding IO4A, pp. 111-13 (February 25, 1983). Similarly, NRC lacks auth5rity and expertise to decide labor disputes. Accordingly, public policy dictates that any collateral estoppel effect, if it arose at all, must be limited to those limited issues over which DOL has jurisdiction and expertise under Section 210.. Public policy consid'erations and principles of fundamental fairness such as these are necessary to mitigate the harsh effects of collateral estoppel and assure that a party to a subsequent proceeding in which the doctrine is raised is afforded the opportunity to be heard. Here,, although collateral estoppel is not applicable to a.,. - -m w u e, -m-- + - - .,-.y---w,,---.w--w t - i- ,-w---
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~ the DOL decision for the various reasons discussed, these . additional considerations strengthen the argdment tp'at the DOL -I decision should not, bind the Boar'd in this proceeding. III. Conclusion ~ The Recommended Decision of the Lab _or Departmelii. ALJ, while ~ it may be worth noting in the course of the .srd's consideration of-QA/QC issues in this proceeding, should not be accorded binding effect under principles of collateral' estoppel'. The essentialelementsofcollateralestoppelarenotshtisfiedand, further, policy considerations militate against invoking the doctrine. The DOL Recommended Decision is not a final judgment; it is not presently enforceable even against-the employer. ~ ~2 Applicants were not a party to, and cannot.be cons _idered participating or controlling non-parties to," th'e LEbor Department proceeding. TheissuesinvolvedinthetwoRhocbedingsare significantly different. The Labor Department was concerned only with the allegation of illegal discrimination. NRC on the other hand is not concerned with labor disputes, per se, but rather whether a plant has been constructed in a manner that is not inimical to the public health and safety. For all of-the foregoing reasons, the Recommended Decision of the Labor 9 e 6 5 l l
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~ ? Department Adminis,trative Law Judge should not b'e given binding ef fect under principles of collatera estoppel.. Respec fu y s bmitted,' l s ) ~ ~ Nichol S Reynolds'~ Jeb'C. ariford - -~ DebevoksehLiberman 1200 Seventeenth Street, N.W. Washington, D.C. 2003.6 (202) 857-9800 ee e L M =.. -~ e O m
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