ML20073S247

Requests Review of Tj Saporito Re Termination of Employment Due to Identification of Safety Concerns

ML20073S247
Person / Time
Site:	Turkey Point
Issue date:	03/17/1994
From:	Graham B SENATE
To:	Rathbun D NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA)
Shared Package
ML20073S245	List: ML20073S247
References
CCS, NUDOCS 9405270087
Download: ML20073S247 (3)

Text

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6-300 GRAHAM e,

..0a*0A Enited $tates 5tnatt WASHINGTON DC 20510-0903--

March 17, 1994

-Mr. Dennis K. Rathbun Director, Office of Congressional Affairs Nuclear Regulatory Commission 1

Washington, D.C.

20555 Dear Mr. Rathbun Enclosed is a letter from Mr. Thomas J.

Saporito, Jr.

I would appreciate your reviewing his inquiry and providing me with your comments.

Please addressLyour reply to my state officet Post office Box 3050, Tallahassee, Florida 32315, Attention:

Ginger Wainner.

Your cooperation and assistance are greatly appreciated.

I-look forward to haaring from-you soon.

With kind regards, Sincerely, W

United States Senator BG/glw Enclosure 9405270087 940412 PDR ADOCK 05000250 U

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THOMAS J. SAPORITO, JR.

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March 7, 1994

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Hon. Bob Graham j

United States Senator Subcommittee on Clean Air j

and Nuclear Regulation

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United States Senate Committee on Environment and Public Works Washington, D.C. 20510-6175 1

Dear Senator Graham:

('

My family and I have resided in the State of Florida since 1

1976.

In March of 1982, I obtained employment with the Florida

_"FPL")

as an instrument control

(

Power Light Company.

technician.

During the course of my employment at the FPL Turkey Point nuclear station near Miami, Florida in 1988, I identified safety concerns regarding operations at the Turkey Point facility i

to FPL management and to officials ~ of; the Nuclear Regulatory i

Commission ("NRC").

Shortly after I raised these safety issues l

to the NRC, my employment at Turkey Point was terminated by FPL management.

l Following my termination from FPL in December of 1988, I

l filed an employment discrimination complaint with the U.S.

Department of Labor

(" DOL")

against FPL.

I also filed a

discrimination complaint with the NRC.

My DOL complaint in Case No. 89-ERA-7/17 (consolidated) is currently before the Secretary of Labor (" SOL") awaiting a final decision.- Since my termination l

from FPL's Turkey Point nuclear station, the NRC has failed to j

protect me as an employee who raised safety concerns at a NRC licensed facility and under 10'C.F.R. 50.7.

l Most recently, I ' filed a petition under. 10 C.F.R.-

2.206, seeking assistance from the NRC.

I requested in my 2.206 petition, in part, that the NRC construct and submit - an amicus j

curiae brief to the SOL pursuant to 29 C.F.R.

18.12; 29 C.F.R.

18.10(d); 10 C. F. R. 50.7; and 10 C.F.R.50.9 ~ regarding issues. _of fact in DOL Case No. 89-ERA-7/17 (consolidated).-

333, copy of March 7,

1994 petition under 10 C.F.R. 2.206 attached hereto.

i The 2.206 petition makes direct reference to citations of law and NRC regulations regarding an employees right to communicate directly to NRC officials concerning safety concerns about i

4 1

O l

Hon. Bob Graham United States Senator Saporito/ Graham March 7, 1994 Page No. 3 Senator Graham, your cooperation and assistance in this urgent matter is both anticipated and appreciated.

I look forward to.your timely written response.

Very truly yours, m : Q "I

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LP' s

Thomas J. Saporito, Jr.

Registered Democrat

)

cc:

w/o enclosures-Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Oscar DeMiranda, SACRII U.S. Nuclear Regulatory Commission 101 Mariette St.,

N.W.,

1. 2900 Atlanta, GA 30323 4

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'1 THOMAS J. SAPORITO, JR.

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POST OFFICE BOX-7603, JUPITER, FL 33468-7603 VOICEO FAXo l-407-745-2118 i;

4 5

March 7, 1994-4 j

Priority Mail Certified:

P 282 384 450 J'

i Executive Director for Operations 4

2 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 i

Re:

Petition Filed Under' 10 C.F.R. 2.206 Against The-Florida Power fu Light Company J

i f

Dear Sir:

i COMES

NOW, Thomas J..

Saporito, Jr.,

(hereinafter i

1 l

" Petitioner") pursuant to 10 C.F.R. 2.206, and hereby files his request for specific action by the U.S.

Nuclear Regulatory i

Commission ("NRC") within a reasonable time against the Florida

{

Power & Light Company (hereinafter " Licensee") and operator of j

j the Turkey Point and St. Lucie nuclear stations located in the j

State of Florida.

Specific Request:

A.

Petitioner requests that the NRC construct and submit I

an amicus curiae brief to the U.S.-Department of Labor i

(" DOL") pursuant to 10 C.F.R. 50.9; 29 C.F.R.

18.10(d);

j 29 C.F.R. 18.12; and 10 C.F.R. 50.7 regarding issues of fact in DOL Case Nos.

89-ERA-7/17 (consolidated) l j

concerning the Licensee's. retaliatory conduct towards i

Petitioner during Petitioner's period of _ employment at l

the Licensee's Turkey Point nuclear station in 1988 as i

indirect result of Petitioner having i

a direct or engaged in " protected activity"' under 10 C.F.R. 50.7 l

and the Energy Reoganization, Act of-1974 as amended

("Act"), 42 U.S.C. 5851, Section 210/211.

Petitioner requests _that'the NRC institute a show cause i

B.

proceeding pursuant to 10.

C.F.R.

2.202 to, modify, or revoke the Licensee's permissive

suspend, the operational' licenses authorising the operation of i

Turkey Point nuclear station.

'o-1j,.

4

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Executive-Director for Operations-j U.S. Nuclear Regulatory Commission 2.206 Petition /FPL March 7, 1994 i

Page No. 3 l

i Petition.er's discharge from the Turkey Point nuclear 1

station in December of 1988, i '

2.

The NRC and DOL have a -long i standing Memorandum of j

j Understanding

("MOU")

which provides for the cooperation of these two government agencies to work 2

together on DOL discrimination' complainants as inLCase j

Nos.

89-ERA-7/17 (consolidated).

See, 47 FR -54585; j

December - 3, 1982.

Thus, while the NRC actions in discrimination cases are normally held in abeyance-

}

pending.the DOL process, there are times, because' of the significance of the issues to public health and j

safety, that NRC actions are warranted notwithstanding j

the ongoing DOL process.

3.

NRC action in complying with the requests set out above in this petition against the Licensee are warranted for 4

{

the following reasons:

(a)

On June 30, 1989, the DOL ALJ issued a Recommended Decision and Order- ("RDO") in Case' Nos. 89-ERA-7/17 (consolidated) recommending that the case be l

dismissed.

The ALJ's RDO was opposed by Petitioner through his counsel in a March 2, 1994, a'

Reply Brief to the DOL Secretary of Labor (" SOL").

l

See, copy of Complainant's Reply Brief - ( "CRB" )

dated March 2, 1994, and' attached hereto, i

{

(b)

The entire record in Case' Nos.

89-ERA-7/17

)

(consolidated) contains evidence which was completely ignored by the ALJ.

The NRC should i

d weigh the entire record in this case in determining whether the Licenses violated the ERA and 10 C..F.R.

50.7 in discharging. Petitioner from the Turkey Point nuclear station in December of l

1988.

See, CRB at p.1.

i (c)

In Case Nos. 89-ERA-7/17 (consolidated), the parties-and the ALJ agreed on the six elements that complainant was required to-3 prove in order to establish a prima facie case.

The ALJ's conclusion that complainant failed "to show that J

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4 p.

l

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Executive Director for Operations i

U.S. Nuclear Regulatory Commission i

2.206 Petition /FPL l

March 7, 1994 l

Page No. 5 l

l i

i DeMiranda and other NRC officials, during these i.

months.

b l

Odom's questioning of Petitioner on November 23, j

1988; FPL's placing of Petitioner on restricted i

status; demeaning. job assignments; and Odom's i

attempted interrogation of Petitioner _ on November f

30, 1988; related directly to Petitioner's protected activity and shortly followed i

Petitioner's contacts with the NRC and his' filing i

ERA complaints with the DOL.--Sea,_CRB at p.7-8.

t

}

(g)

The Licensee's actions taken against Petitioner in I

1988 as described abeve constitute a " hostile work environment" under the law.

All of the harassment 4

j incidents and adverse actions that occurred between May and December, 1988, more than satisfy a prima facie case of " hostile work environment."

Mitchell v.

APS/ANPP, Case No. 91-ERA-9, slip op.

of ALJ, at 36-37 (July 2, 1992). See, CRB at p.8.

2 (h)

The NRC is mandated by Congress to ensure that a non-hostile work environment exists c facilities licensed to operate by the NRC.

The NRC simply cannot tolerate a " hostile work environment" at i

the FPL Turkey Point nuclear station.

'Indeed, in Case No. 91-ERA-9 and in Case No. 89-ERA-19, Sarah j

C.

Thomas v.

APS/ ANPP, - the NRC took enforcement i

action because the licensee allowed a hostile work environment to exist at the Palo Verde Nuclear Generating Station.

The NRC's enforcement action

{

taken against Arizona Public Service Company i

stated, in part, that:

)

...Both situations are significant because discrimination may 0

create a chilling effect which could discourage individuals from raising safety issues.

Such an environment cannot be tolerated 1

if licensees are to fulfill their responsibility to protect the public health and safety.

Thus, licensee management must avoid that j

actions d

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l Executive Director for Operations U.S. Nuclear Regulatory Commission i

2.206' Petition /FPL l

March 7, 1994

-Page No. 7 ii l

uncontested that on two

. occasions petitioner l-refused to tell

Odos, an. FPL vice president, safety concerns that everyone involved - knew - had

(

i already been, reported by Petitioner to..the NRC.

l (i.e.

DeMiranda and-Jenkins-and other NRC officials).

As a matter ' of-. law, an. employee 's l

j refusal to. tell an employer about safety concerns-communicated to the NRC cannot be' - considered i

4 insubordination.- See,;CRB at p.10.

j (k)

The 'ALJ considered Petitioner's conduct-to be a

" insolent", " contemptuous" and " insubordinate" for J

i refusing to) be interrogated -about-his safety; concerns by an.FPL vice president 'and for j

allegedly refusing to be examined by. a company j

doctor after he returned to work from sick leave.

i The - ALJ 's conclusion violates precedent of the

{

Secretary which states that:.

i 1

... e a p l'o y e e s e n g a g e d in statutorily-protected activity may not be-disciplined

.for insubordination so. long as the

" activity j

(claimed to be insubordinate) is lawful-and the l

character of the~ conduct is not indefensible in its context."

The

'right to engage in l

statutorily-protected activity permits some i

leeway for impulsive

behavior, which is i

balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts.-

A key inquiry i

j is whether the employee has upset the. balance that. must be maintained-between protected activity and shop discipline.

The issue of i

whether. an. employee's actions are indefensible under the circumstances turns

'on the distinctive facts of the case..."

See,-

}

Kenneway v.

Matlack, Inc., Case No. 88-STA-20,-

slip op. of SQL, at 6-7 (June 15', 1989).

4 Case No. 89-ERA-7/17 (consolidated) is not a case where the complainant shouted obscenities at 4

l openly defied work orders or otherwise management, a

u.

r e.

I 1

i'

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l Executive Director for Operations i

U.S. Nuclear Regulatory Commission i

2.206 Petition /FPL l

March 7, 1994 j

Page No. 9 i -

2 1

)

safety concerns to the licensee" (see, Respondent's 1

j Reply brief at 16), the NRC will contradict its own policies and regulations that expressly recognize the j

right of employees to bypass management and report their concerns to.the NRC directly.

NRC Form 3 informs i

employees that they may contact the NRC directly-without first reporting safety concerns to their employers.

See, CRB at p.12.

1 5.

The NRC has expressly defined " protected activities" i

under the ERA and NRC regulations at 10 C.F.R. 50.7(a) to include, but are not limited, to:

(1)

Providing the Commission information about possible violations-of requirements imposed under (the ERA.or the Atomic Energy Act);

[

(ii)

Requesting the Commission to institute action against his or her employer for. the administration or-enforcement of these requirements; (iii)

Testifying in any Commission proceeding.

j 6.

The interrogation of an employee about safety concerns he or she has communicated to the NRC constitutes discrimination under Section 210 and (now-Section 211) i' i

of the ERA.

See, CRB at p.15-22.

The Licensee's request that Petitioner be examined by a

)

7.

company doctor in Case No. 89-ERA-7/17 (consolidated) was not justified and FPL did not prove that Petitioner j

1 was insubordinate.

See, CAS at p.23-27.

I 8.

The Licensee's disparate treatment of Petitioner was illegal and must be challenged by the NRC.

See, CRB at

)

i p.28-30.

9.

NRC regulations at 10 C.F.R. 50.9 provide that the DOL process is, in

fact, an estension of the NRC's authority.

Thus, the NRC is ' required to act on the requests set forth in this petition.

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