ML20095G699
| ML20095G699 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/27/1984 |
| From: | Watkins M BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-2, NUDOCS 8408280165 | |
| Download: ML20095G699 (10) | |
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UNITED-STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSf M E5f)1RD In the Matter of
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Docket gs.pgOpp4ggag
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50-446 TEXAS UTILITIES ELECTRIC
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COMPANY, et al.
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(Applicdtidn2for7
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Operatin'g" L'icense's')
(Comanche. Peak Steam Electric )
.., J,;,[,f,),~,h Yb Station, Units 1 and 2)
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APPLICANTS' MOTION TO OPEN THE RECORD REGARDING DISMISSAL OF ROBERT HAMILTON v
Texas Utilities Electric Company, et al., Applicants, have offered proofs to the Board regarding the reasons for, and the circumstances surrounding, Applicants' termination of Robert Hamilton's employment of Comanche Peak.
Applicants move the Board to open the record to receive these materials into evidence.
The Board's Finding Regarding Mr. Hamilton's termination, the Board has found that "we consider the grounds for dismissal to be pretextual."1 The Board reached this conclusion, along with several subsidiary findings, on the basis of Mr. Hamilton's testimony alone.
1 Memorandum and Order (Emergency Planning, Specific Quality Assurance Issues and Board Issues), LBP-83-60, 18 N.R.C.
672 (September 23, 1983).
8408280165 840827 PDR ADOCM 05000445 0
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Applicants' Offer of Proof Applicants have submitted the following materials to the Board relevant to Mr. Hamilton's termination:
.e Deposition of James N.
Scarbrough and David Ethridge (as'a panel) (Aug.
1, 1984); Deposition of David Ethridge (Aug. 19, 1984).
Ethridge, now a QC
. inspector, was the craft painter who requested the inspection that Hamilton, Krolak-and Shelton refused to perform.
Scarbrough was Ethridge's foreman.
e Deposition of Samuel T. Hoggard (Aug.
1, 1984).
Hoggard is, and was at the time Hamilton, Krolak and Shelton refused to perform their inspection, Senior Safety Supervisor for Comanche Peak.
Hoggard responded to QA supervisors' queries regarding the safety'of-the rotating platform access rail, and personally inspected to rail to
. determine its condition.
e Deposition of Houston F. Gunn (Aug.
1, 1984).
Gunn 1
was the only other paint inspector working on the day shift at the time Hamilton refused to inspect work on the rail.
e Deposition of Neill A.
Britton (Aug.~18, 1984).
Britton was Hamilton's supervisor, and is familiar with all events leading'to Hamilton's termination.
e Deposition of C.
Thomas Brandt (Aug. 16, 1984)
(part).
Brandt was the non-ASME QA Supervisor, with day-to-day responsibility for directing the activities of protective coatings QC inspectors and supervisors.
Brandt recommended that Hamilton, Krolak and Shelton be dismissed for refusa1 to perform assigned duties.
e Deposition of Gordon R.
Purdy (Aug. 16, 1984)
(part).
Purdy, as the senior Brown & Root QA representative on site, accepted Brandt's recommendation and terminated Hamilton, Krolak and Shelton.
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Significance of the Offer of Proof
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to the Existing Record Applicants' evidence contradicts numerous' facts. as to which Hamilton testified, and on which the Board relied in concluding that Applicants' reason for terminating his employment was pretextural.
In summary:
Hamilton Allegation Applicants' Evidence (Witness)
Neither Hamilton nor Krolak Both Krolak and Shelton worked nor Shelton had ever on the rail prior to the day inspected areas on the they were terminated; indeed, rail; they were afraid for they inspected the work their lives to do so on the performed by Ethridge when he day they were terminated.
was a painter (Scarbrough/
-Ethridge); an inspection report signed by Krolak shows that he performed an'inspec-inspection on the rail one week before he refused to work on the rail, and an inspection report signed by Shelton shows that he worked on the rail ten days before he refused to peform the inspection (Ethridge).
Krolak went to make the Neither Krolak nor Hamilton inspection, but returned appeared on the rail that and reported to Hamilton day (Scarbrough/Ethridge).
that the~ rail was unsafe; Hamilton physically climbed
=up there, looked it over, and concluded that it was unsafe.
There was no scaffolding on Scaffolding had been placed which to stand or walk, just between the rail and the liner the rail.
plater in fact, the craft painters could not have worked on the liner plate without scaffolding.
Scaffolding was in place at the specific area that Hamilton, Krolak and Shelton refused to inspect (Scarbrough/Ethridge, Britton, Brandt).
There were oil and grease Not only were there no oil and on the rail.
grease on the rail, but it was free from any other debris; because craftsmen spent so much time working at that ele-vation, they were especially vigilant for contaminants on the rail (Scarbrough/Ethridge, Hoggard, Britton).
The safety cable was slack, The lO,000-pound test safety and a persan slipping off the cable was taut, with little rail would have fallen at slack.
A person would have least eight feet before his fallen two feet before being lanyard caught him.
caught by his safety lanyard (Britton, Hc ggard ).
Hamilton was genuinely afraid Numerous craftsmen worked at to work on the rail.
that elevati)n, and three QC supervisors.ind the chief safety officer inspected the rail after Hamilton voiced his refusal for safety reasons; told of their findings and the possible result of his continued refusal, Hamilton commented, "They're bluffing" (Scarbrough/Ethridge, Britton, Hoggard).
A day shift QC inspector was The only other ongoing QC available to perform this protective coatings inspector inspection, but was not on the day shift, Houston asked to do so.
Gunn, worked in a fabrication shop and was never asked to perform field inspections.
Gunn suffered from acrophobia so acute that, the first and last time he was asked to perform a field inspection at altidue at Comanche Peak, he had to be helped down.
In seven years, Gunn was never again asked to perform inspection work involving climbing, and only once during that time, for one day, di6 he even work in the field (Gunn, Britton).
A night shift OC inspector was Joe Fazi and Bill Dunham, asked.to perform this the only two ongoing OC inspection on the rail, coatings inspectors on the refused, but was not night shift at the time, did terminated.
not refuse to perform this work.
In fact, the inspection was performed the night that Hamilton refused to do it.
No other OC inspectors were asked to do this work, and no one other than Hamilton, Shelton and Krolak refused to do it (Britton).
Hamilton was assigned a The ongoing OC coatings new supervisor three days inspectors and the backfit before he refused to perform OC coatings inspectors were the inspection, which had consolidated into a single something to do with his group under Britton's termination.
supervision on the day before Hamilton's refusal to perform the inspection (Britton).
Hamilton's termination was Brandt, who recommended based on something other Hamilton's dismissal after than his refusal to confirming the safe perform duties as assigned.
condition of the rail and giving Hamilton several chances to undertake the work, based his decision exclusively on Hamilton's refusal to perform duties as instructed.
Purdy's approval of Brandt's recommendation was strictly limited to the same facts (Brandt, Purdy, Britton).
Hamilton's termination did Hamilton's termination was not follow established directly related to the policy procedures.
governing refusal to obey instructions; Hamilton left his supervisors little choice but to terminate him (Purdy, Brandt, Britton).
The testimony of Applicants' witnesses, it is clear, contradicts Hamilton's testimony in virtually every significant respect.
- 1 The Board Should Open Tne Record a'nd
-Admit Applicants' Evidence Regarding the Reasons for Hamilton's Dismissmal.
In candor, Applicants might have sought'to introduce this Levidence in response.to Mr. Hamilton's-allegations shortly after-Lhe presented his testimony to the Board.
If we made a mistake in this' regard, we can only contend that'it was an honest mistake.
Intervenor CASE failed to file any proposed findings respecting any of Hamilton's testimony, much less the reasons for his termination.
Ste Board's July 29, 1983 Proposed Initial Decision first' identified the reasons for Hamilton's dismissal as anfissue'in this proceeding; like so many other issues discussed
- in that order, it appeared that the termination. issue would
-remain open to further evidence.
By the time the Board issued fits September 23, 1983 Memorandum and Order, however, the Board had apparently closed the issue.
Perhaps-the most pertinent authority supporting the admission of this testimony is this Board's statement regarding its responsibility with respect to defaulted. issues (such as-those raised by Hamilton's testimony):2
[T]he Board its not just an umpire calling balls and strikes.
We must assure that relevant and material evidence bearing on the admitted contention is sufficiently well developed so that-we can prepare a reasoned decision resolving the issues before us.
In this case, we have sworn testimony concerning an admitted contention about. quality assurance deficiencies; the Board ~must be satisfied that the allegations in this testimony have been adequately answered.
2 Memorandum and Order (Reconsideration of Order of September
- 23, 1983), LBP-83-69, 18 N.R.C.
1084 (Oct. 25, 1983), slip op. at 2-3.
a
It is precisely to ensure that the Board has before it a.
full and complete record that it should admit Applicants'
~profered testimony.- Two important factors support admission of this evidence.
First, the testimony of Applicants' witnesses fundamentally contradicts both the facts as to which Mr. Hamilton testified, and the-inferences to be drawn from those facts.
We believe that evaluation of these facts should lead the Board to reconsider its findings regarding the reasons for which Hamilton was dismissed.
Second, the Board itself has' deemed the circumstances prompting Mr. Hamilton's dismissal as "particularly serious".3 As.the Board later acknowledged, however, the record on Hamilton's termination is not complete.4 To the extent that the Board considers Mr. Hamilton's dismissal as serious, then we i
submit that it should possess all facts relevant to that matter in order to reach a reasoned decision.
To leave the Board's findings on this issue undisturbed in light of the evidence that Applicants offer would represent a distortion in the decision-making process.
We suggest that for the Board to exclude these materials would be error amounting to f
a miscarriage of justice.
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Memorandum and Order (Sept. 23, 1984) at 19.
4 Memorandum and Order (Oct. 25, 1983) at 6.
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Conclusion ^
The Board should admit Applicants' offer of proof on this issue, consisting of the deposition testimony of Scarbrough, Ethridge, Hoggard, Gunn, Britton, Brandt and Purdy.
Applicants will, of course, make these witnesses available for cross-examination at the request of the Board or any party.
Respectfully submitted, McNeill Watkins II William A.
Horin Bishop, Liberman, Cook, Purcell
& Reynolds 1200 Seventeenth, N.W.
Washington, D.C.
20036 (202) 857-9800 Counsel for the Applicants August 27, 1984 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE'THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket Nos. 50-445-2 and COMPANY, _e t _a l.
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50-446-2
-(Comanche Peak Steam Electric
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(Application for Station,-Units 1 and 2)
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Operating Licenses)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Motion to Open tdie Record Regarding Dismissal of Robert Hamilton" in the above-captioned matter were served upon the following persons by hand-delivery,* overnight delivery,** or by deposit in the United States mail,*** first class, postage prepaid, this 27th day of August, '984:
- Peter B.
Bloch, Esq.
- Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.
S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
- Mr. William L.
Clements
- Dr.
Walter H.
Jordan Docketing & Services Branch 881 West Outer Drive U.
S.
Nuclear Regulatory Oau Ridge, Tennessee 37830 Commission Washington, D.C.
20555
- Herbert _Grossman, Esq.
U.
S.
Nuclear Regulatory
- Stuart A.
Treby, Esq.
Commissicn Office of the Executive Washington, D.C.
20555 Legal Director U.
S.
Nuclear Regulatory
- Mr.
John Collins Commission Regional Administrator Washington, D.
C.
20555 Region IV U.S.
Nuclear Regtilatory
- Chairman, Atomic Safety and Commission Licensing Board Panel 611 Ryan Plaza Drive U.S.
Nuclear Regulatory Suite 1000 Commission Arlington, Texas 76011 Washington, D.C.
20555
- Renea Hicks, Esq.
Anthony Z.
Roisman, Esq.
Assistant Attorney General Executive Director Environmental Protection Trial Lawyers for Public Justice Division 2000 P.
- Street, N.W.
P.O. Box 12548 Suite 600 Capitol Sta. tion Washington, D.
C.
- Ellen Ginsberg, Esq.
- Lanny A.
Sinkin Atomic Safety and Licensing 114 W.
7th Street Board Panel Suite 220 U.
S.
Nuclear Regulatory Austin, Texas 78701 Commission Washington, D.
C.
20555
' /Mruce' L. ' Downey cc:
Homer C. Schmidt Robert Wooldridge, Esq.
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