ML20129G441
| ML20129G441 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 05/29/1996 |
| From: | Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | Mccoy K AFFILIATION NOT ASSIGNED |
| References | |
| IA-96-029, IA-96-29, NUDOCS 9610030052 | |
| Download: ML20129G441 (23) | |
Text
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pm Recoq'o UNITED STATES NUCLEAR REGULATORY COMMISSION p
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REGION H A
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May 29, 1996 IA 96-029 Mr. Ken McCoy
[ Address deleted under 2.790]
SUBJECT:
DEPARTMENT OF' LABOR CASE NOS. 91-ERA-001 AND 91-ERA-011
Dear Mr. McCoy:
Enclosed for your information is the Secretary of Labor's (SOL) November 20, 1995 Decision and Remand Order in DOL Case Nos. 91-ERA-001 and 91-ERA-011, Allen L. Mosbauch v. Georaia Power Co..
Also enclosed is the Notice of Violation issued today to Georgia Power Company (GPC) for violations of 10 CFR 50.7 in this and another discrimination case.
In the enclosed decision, the Secretary of Labor reversed the 00L Administrative Law Judge's earlier Recommended Decision and Order and found that GPC discriminated against Mr. Mosbaugh because he engaged in protected activities.
In the decision, the SOL indicates that you were involved in the discriminatory actions in this case.
We note that discrimination found by the Secretary in this case occurred over five years ago, prior to implementation of 10 CFR 50.5, " Deliberate Misconduct", and we recognize that you may not agree with the Secretary's findings. We are, nevertheless, concerned that the discriminatory actions found by the Secretary in this case could have had a chilling effect on other GPC employees, and we, therefore, take this opportunity to reiterate that harassment, intimidation and discrimination against a licensee's employees for their engaging in protected activities is unacceptable.
While we are not taking enforcement action against you, you are on notice that 10 CFR 50.7 prohibits discrimination against an employee for engaging in protected activites and 10 CFR 50.5 authorizes the NRC to take enforcement action against unlicensed individuals for deliberate violations of NRC requirements.
Persons found to have discriminated in deliberate violation of 10 CFR 50.7 are subject to individual enforcement action.
You are not required to respond to this letter.
If you wish to respond, however, you should do so within 30 days of the date of this letter.
Any response you submit should not include any personnel privacy, proprietary or safeguards information so that it can be placed in the NRC's Public Document Room (PDR) without redaction.
In accordance with 10 CFR 2.790, a copy of this letter, its enclosures and any response you may decide to submit will be placed in the PDR within 45 days of the date of this letter.
9610030052 960529 DR ADOCK 05000424 PDR
o Mr. Ken McCoy 2
If you have any questions on these matters, please contact James Lieberman, Director, Office of Enforcement, at (301)415-2741.
Sincerely, Stewart D. Ebneter Regional Administrator
Enclosures:
1.
Secretary of Labor Decision and Remand Order, Case No. 91-ERA-1 and 91-ERA-ll dated 11/20/95 2.
Letter and Notice of Violation I
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'Mr.; Ken McCoy
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i Distribution w/ encl:
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'JTaylor, ED0 l
JMilhoan, DEDR
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SEbneter, RII l.
LChandler, 0GC i
JGoldberg, OGC EJulian, SECY BKeeling, CA Enforcement Coordinators RI, RIII, RIV l.
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OE:EA File (B. Summers, OE) (2)
DRosano, OE EHayden, OPA DDandois, OC LTemper,-OC GCaputo, 01 EJordan, AE00 LNorton, OIG DWheeler, NRR DHood, NRR RWright, RII CEvans, RIl BUyrc, RII KClark, RII RTrojanowski, RII CCasto, RII PSkinner, RII IMS:RII NRC Senior Resident Inspector U.S. Nuclear Regulatory Commission 8805 River Road Waynesboro, GA 30830 03001G
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U.S. DEPARTMENT QF 1,AacM saERETARY W LAgen wasuser a n.c.
DATE: November 20. 1995 CASE NOS. 91-ERA-1 and 91-ERA-11 IN THE MATTER OF ALLEN M08BAUGH, COMPLAIFANT, v..
GEORGIA POWER COMPANY, RESPONDENT.
BEFORE:
THE SECRETARY OF LABOR DEC:sION AND REMAND CRDER 3
l In these consolidated cases ariking under the employee d
protection provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.c. I 5851 (1985),l' complainant, Allen l
Mosbaugh, alleged that Respondant,. Georgia Power Company, f
violated the ERA when it downgraded his performance evaluation, removed his company car, suspended him with pay, and discharged 4
him.
In a Reconmended Decision and Order (R. D. 'and 0. ), tha Administrative Law Judge (AIJ) recommended dismissal of the complaint on the ground that.Mosbaugh did not establish that i
I l'
section 2902 of the comprehensive National Energy Policy Act of 1992, Pub.
L. No. 102-86, 105 Stat. 2776, amendte'the ERA for-
' claims filed on or after the data of its enactment, October 24, 1992.
See section 2092(1) of Pub.
L. No. 102-485.
These complaints were filed in 1990 and theratore the 1992 amendments do not apply.
j an'd srtt Est ter ET 2.1 essi-TE me i
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Georgia Power violated the ERA., The AL7's findings of fact, f
R. D. and o. at 4
- 32. are well supported by th' a record and I adopt them.
After review of the record, however, I decline to j
)
adopt 'some of the inferences drs.wn'from the facts and k*1ied upon by the AZE in. reaching his renannamnded' decision.L' Therefore, I
)
reject the AIJ's recommendation, find that Georgia Power violated l
the ERA when it discharged Moebaugh, and remand the complaint to' the ALT for a racemmended decision concerning remedies.
l BACKGROUND Mosbaugh was a high. level manager for Georgia Power at its Plant Vogtle nuclame power station near Augusta, Georgia.
While serving as Acting Assistant General Manager of Plant Support in early 1990, Mosbaugh anonymously reported to the Nuclear l
Regulatory Commission (NRC) that. ether plant managers villfully I
had violated NRC 'tschnical standards.
T.
140-144; CX 15.
As.a
)
result, the' NRC's office of Investigation (NRC-0I) began an on-l site investigation and quastiened several employees.
T.
149-150.
Mosbaugh observed that senier managers' attitudes toward him changed after the company learned of the NRC-CI investigation.
T. 151-158 The plant < s General Manager, George Boekhold, told' Mosbaugh that "if you can't conform" to company standards, "you' need to get out."
T.
159, 152.
Mosbaugh observed that plant 1
l' Under any standard of" review 'I. am free to evaluate and reject inferences drawn by the AL7 from tho' facts presented.
See Nedstros Co;
- v. NLRB, 629 F.2d 305, 316 (3d 'Cir. 1980), cert'.
denied,.4so U.s. 39s (1981) (agency has authority.to draw itsiovn inferences from proven facts in the record without deference to the inferences drawn by. the ALT)..
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employees were afraid to disagree with, management's opinions.
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T.
184=185.
1 4
l As a member of the Plant Review Board, Mosbaugh spoke out.
against using an experimental filtratibn device called a 'FAYA:
filter because it did not meet NRC standards.
T. 175-181.
Mombaugh filed an extensive, written internal. Quality concern about the company's decisiion to use the FAVA filter, T. 131, j
l CX 22, and followed up with additional writtan memoranda I
concerning it.
CX 23, 24.
Beckheid took the investigation of U
Mosbaugh8s concern away fren the Quality Concerns Coordinator and handlad it himself.
T.
182-183.
j i
i Mosbaugh believed that his notes and' racellections.about conversations and events vara not suffielent proof of the safeity i
violations that he believed occurred.
T. 189-190.
Me read a legal opinion letter advising Georgin Power that s'.trreptitious one-party tapa recording.was lawful in the Stata of Georgia.
5 CX 26.
As a means to document his safety concerns and any retaliation for expressing them, Mosbaugh began to j
surreptitiously tape record selected conversations.in.which he participated.
T.,202 205.
I In a March 1990 accident, Plant Vogtle lost all electrical power and was unable for a time to keep the back up generatier '
running.
The event caused the re, actor to heat up unsafely.
l T.
207-209.
Consequently, Georgia Power declared a serious " site j
area.amargency..
T. 211.
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Prior to restarting.the reactor after the emergency, Caergia 1
Power had to assure the NRC in a Confirmation of Action Latter (coal) that the reactor could resume power operations safely.
T.'255-25s.
Mosbaugh reviewed the coal that was submitted to the NRC,.cX'40, and determined that Gaorgia Power may have intentionally misstated the reliability of th's ganarators. '
T. 258-259.
He sent a memorandum to Beckhold deporting the problems with the generators
- air quality system, T. 283, ;cr 41, and obtained further data that verified generator failures.
T. 265-267.
Mosbaugh reported the f alse statements to his managers.
T.
267.
The ccAL did not and the matter, however.
Mosbaugh reviewa'd a draft Licensee Event Report (LER) that contained the same falsa information about the generators as the COAL.
T. 258-269.
,Na promptly. reported the false information. in the draft to responsibla managers, but the final LER submitted to the NRC retained the false infor=atien.
t.
269-270 CX 4 2.
Mosbaugh followed up with another memorandum to Bockhold enclosing the
'ata that showed the falseness of the statements regarding the d
generators.
T. CX 43.
Mosbaugn later worked on. revisions to' correct the falze stataments in the LIR and the ccAL.
T. 273, 279-280.
At a staff meeting after the cita area emergency, a managar made a statement that Mosbaugh intarpreted as promoting a lax-attitude toward adherence to technical safety requirements if it 4
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would delay tha' rast. art of the reactor.
T. 213-216.
As a.
result, Mosbaugh began to tape record. More of his conversations. '.
Mambaugh learned that Tea Greers, the Assistant General.
4
'.j Managar whom Moskaugh had tosporarily replaced. was returning from school and would raciaim hiss position.
T. 278-279.
o l
Mosbaugh feared for his futura in the company because he had no w
definits assignmient since the position ha formerly occupied'had-been abolished.
T. 232.
When creena. returned, Moshaugh'also.was 1
removed from the Plant Review Board.
T. 280-281; cx 44.
f Mosbaugh filed two additional anonymous complaints with the l
NRC concerning safety issues at the plant.
T.
215-222; CX 35, 4
l 36.
Mosbaugh also learned that the NRC called senior nanagara to 4
l Washington, D.C.
and criticized the attitude at Plant vogtle as
" cowboy, cavalier, and cocky."
T. 274-275 r see also T. 856.
I The NRC granted Mosbaugh "confidantial alleger" status in June 1990 and sought his cooperation in an investigation concerning the conpany8 s intentional submission of r.aterial falsa l
information.
T.
286-287! CX'45.
An NRC-OI investigator later I
asked Mosbaugh to wear a concealed. tape recorder onto the Plant l
Vogtle site.
T. 304-305.
Mosbaugh did not reveal that he had i
made such tapa recordings.on his own, T.
289-290, 304, and f
eventually declined the request.
Mosbaugh learned that the NRC would conduct a rare Sp*Cial Safety Inspection at the plant.
T. 297.
Bockhold intentionally did not invite Mosbaugh to a meeting of the plant managers concarning how.to. prepare for the inspection. T. Yst. 670-671.
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4 Mombaugh later overheard Vice President Ken McCoy state that the I
epecial inspection occurred "because of some immature behavior on T. 299.
the part of an employee or amployee allager."
In the midst. oi' the two week special inspection, Maebaugh received a mid-year performance rating of " average" that was' tina lowest overall rat 5.nq he had ever received at Georgia Power.
The appraisal listed improving communicaitions T. 301-302; CX 44.
as a goal for Mosbaugh to achieve.
CX 48.
Mosbaugh was selected to attend school to receive a genior.
Reactor operator license ("SRO schoci") and. learned t' hat he.was not entitled to keep his company car while attending SRO school.
RX 32.
At a pre-hearing depositi'on taken by Georgia' Power in an j
earlier ERA case, Mosbaugh' revealed that he had filed several confidentini allegations with the NRC'and also revealed the existence of his tape recordings.
T. 30s-309.
The same(day, Mosbaugh joined a forr.cr Georgia ' Power employee in 'a petition.to the NRC seeking. review of the transfer of certain management functions concerning Plant Vogtle to a new entity, Southern Nuclear Power company (Southern Nuclear).
CX 49.-
Vice President McCoy was upset about the tape recording and recommanded that Mombaugh be placed on administrative leave.while the company investigated the taping.
T. 568-570.
Georgit Power's President, A.W. Cahlberg, agreed and. suspended Mosbaugh Thirty days later,. Georgia Power discharged with pay.
T. 594.
\\
7 Mosbaugh for engaqing in surreptitious tape recording at Plant Yogtle.
T. 478-479, 581; CX.53,' 54.
Mosbaugh filed ERA' complaints challengirig the lawfulness of the lowered performance appraisal, removal of his company car,.
suspension, and discharge.
MOTIONS CCNCERNING THE RECORD 1.
Motions to exceed page limitaittions.in briefs.
^
Mosbaugh s unopposed motions to exceed the page limitatica i
~
in his initial brief and in his 1994 supplemental brief ara granted and the briefs are accepted as filed.-
'2. Georgia Power s motion to strike-portions of Mosbaugh's 8
brief and reply brief.
Georgia Power asks that I strike portions'of Mosbaugh's brief and reply brief because they attempt to introduce evidence that is not part of'the record.
Since I agree that offers of proof are not evidence (Motion at 3, 8), I shall not. rely upon any statements in.the offers as evidence.
Mosbaugh attached to his. Reply Brief a copy of the February 19, 1993 decision of the NRC's Atomic Satsty and Licensing Board.(ASLE Decision) that granted Mosbaugh's petition to become a. party in the case in which Caorgia Power sought.
authority..to transfer its operating license to southern Nuclear.
The AsLa decision was issued after the close of the record, the issuance of the recommended. decision, and the.transear of the record to the secretary.
Under the regulatione governing proceedings before Department of Labor administrative.1aw judges, a party may seek
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.autnerity to suppiament the record' vith newly discovered evidence j
that van not readily available prior to the close of' the record.
i 13 c.r.R. I 18.54('c).
I will treat Mosbaugh s reference' to ths AsLB decision as a request to supplement the record with the.
decision.
The ASLB decision is a relavant public document that bocase available only' after the close of'the hearing and the transfer of the record to me.
Althottgh I' de not consider the A513 decision critical to my decision in this case and I have not relied upon it, I will, in the interest of a complete record,. admit the ASLB -
decision into the record for whatever probative value it 'may a
j have.. See 5'U.S.C. 557(5) (1988): "on. appeal from or review. of the initial decision, the agency has all the powers which it
'would have in making the initial decision except as it.may limit i'
the issues on ' notice or by rule."
- 3. Letters from NRC Chair =an to Sacratary of Labor I
and to Senator Baucus.
1 I.
In response to an inquiry from the Senate Committee on i
Environment and Public Works, the NRC's chairman wrote a letter i
to the connaittee8 m chairman, Max Baucus, giving the NRC's vieve "whether one-party ' taping of. conversations by employees of NRC licensees could constitute, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 4
1974."
Pursuant to Baucus' suggestion, the NRC' Chairman provided a copy. of his views to the secretary of Labor and served a copy t
on the parties to this proceeding.
Although' I have not. relied 4
l upon the views of the NRC Chairman i~n. reaching a decision on
i i
9 i
Moshaughs s complaint, the July 14, 1993 lettars from the NRc chairman to Senator Baucus and to the searatary of Labor are i
admitted into. the record in this case for whatever probative j
valua they nay have.
l
- 4. NRC-CI Memorandum and Report of Inymatigation.
Moabaugh seeks to admit into the record the December 17, 1993 NRC-CI Report of Investigation entitled "Vogtle Elasitris 2
Generating Plant:
All'eged False Statements Regarding Test
+
1 Results on Emergency Diesel' Generators," and a December 20, 1993 memorandum from the Director of the NRC-OI concerning that report.
The report and memorandum refer to investigation of saft +:y concerns that Mosbaugh brouEyht' to the NRC's attention.
Georgia Power opposes their admission.
. Pursuant to a memorandum of understanding, the Deparmant of Labor has agreed.to administer its responsibilities undar the -
ERA's employee protection provision with maxi =um cooperation and
" timely exchange of information in areas of mutual interest" with 9
the NRC.
Memorandum of Understanding Betvaan NRC and Department-I of Labor, Employee Protection, 47 Ted. Reg. 54555 -(Dec. 3, 1982).
To that end, copi's of both recommended and' final. decisions in a
ERA carmes are provided to the NRC 'to aid in its responsibility to-l ensure the safety 'of nuclear power installations.
Since the memorandum and NRC-CI report were issued in 1993',
they wara not readily available prior to the 1992 hearing.
In i
view of the NRC's responsibility concerning nuclear safety and I
the unavailability of the documents prior to the close of the I
51841 SEST-TE-fD4 BT*d EFTP E9P M E I
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i 10 hearing, I will' admit into the record the December N,.1993.Nac-
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OI report and the December 20, 1993 memorandum of the NRC-0I Director concerning that report for whatever probative,valua they may have.,'although I have not relied upon the report and memorandum.in reaching thi's decision.
- 5. Motion to. reopen the record, grant a new trial.
, and for 'other relief.
Meshaugh sought to reopen the record to obtain the testimony of an NRC-CI investigater Larry Robinson concernintJ.the report discussed above.
Subsequently, Mosbaugh moved to reopen the record,. grant additional discovery, and for a new trial on the basis of the testimony of Joseph Farley, former Executiva Vice President - Nuclear of Southern Company and Southern Company services, at the ASLB proceeding concerning transfer of the license for Plant Vogtle to Southern Nuclear.
Farley's testimony purportedly reveals that Farley communicated animus.against Mosbaugh to caergin Power president Dahlberg, who made the decisions to suspend and discharge Mosbaugh.
Georgia Power opposes the notions.
In light of the disposition of this complaint in Mosbaugh's favor, there is no reason to remand to the ALT for the purpose of reopening the record to, permit Mosbaugh to conduct additional,
discovery and adduce additional testimony.
Accordingly, the motions are denied.
~
In connection with' this motion, Mosbaugh' requested leave to file a reply to Respondent's Brief in opposition to CoBF ainant's; l
Motion to Roopen the Record, ate.-
Georgia Power opposed the e
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<.46 11 request.
In the interest of a complete record of pleadings, Mosbaugh's motion for inave to fi,la a reply is. granted and tha reply is accepted.into.the record, as. is Georgia Power 85 Brief in -
opposition to complainant *s Motida to 5'11e a 3taply.
mIseusszou where a respondent has introduced evidence to rebut a prima facia casa of a violation of the ERA's employee protection provision, it is unnecessary to examina the question of whether the complainant established a prima facie case.
See Carrell v.
Sechtel Power Corp., Case No. 91-E3tA=0 04 6, Final Dec. and order.
Feb. 15, 1995, slip op. at 11 and n.9, petition for -raview docketed, No. 95-1729 (5th Cir. Mar. 27, 199!i).
"The (trier of j
fact]hasbeforsitalltheevidencek.tneedstodetermine whether 'the defendant intentionally discriminated against tha p1xLnt'iff.'"
USPS Ed. of' Governors v. ALkcns, 460 U.S. 711,.115 (1983) quoting Texas Deparcient of Community Affairs v. Bttrdine, j
450 U.s. 24s, 253. (1981).
Thus, the question is whether Mosbaugh I
proved by a preponderance of the evidence that Georgia Power discriminated'against him for -engaging in protected activity.
i i
There is no dispute that Mosbaugh's complaints to the NRC about nuclear safety issues constituted protected activities t
i under ths. ERA.
Also protected were his internal safety
}
complaints to superiors.
Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 928 (11th Cir. 1995).
After Mosbaugh made a confidential complaint to the NRC he engaged in sacret ena-party ET'si SPW ESP M Sis &T MS3-TEW134
mv c.c.
n we m 12-tape recording ~ that was legal in the state of, caergia.I'
- Indeed, i
the NRC later asked Mosbaugh to make such recordings to aid in 1
its investigation of Mosbaugn's allegations concerning management
\\
i actions at Plant Vogtle, Georgia. Power ar1lruas that even though
.the tape recording was legal, its affact was so detrimental.tci-open communi' cation that Mosbaugh's discharge.was appropriate.
The secretary previously has found that " assisting the secret tape recording of. conversations.
government by.
conecrning alleged illegal dumping practicasd constituted.
protected activity.under the employee protection' provision of the solid Wasta Disposal Act, 42 'U.S.C.
6971.
Kaney v. Ndr.th Dec.,Juneho,1382, American Car Corp., case No. 81-5DWA-1, Sec.
f slip op. ati 4.
Here, Mosbaugh!s recordings clearly supported his l
complaints to the NRC concerning r.anagement actions at Plant l
vogtle.
f l
The AIJ stated that even if. Mosbaugh's tape recording i
constituted protacted activity at the cutsot,.its duration and 5
scope "became se egregious and potentially disruptive to the workplace that it' lost any protected status it may have once possessed.."
R, D. and O. at 35.*
The AIJ opined that after tbs i
l' contrary to Respondents' argument (Resp. Brief at 25)., I find I
that Mosbaugh's ' lawful tape recording is not analogous to the situation in Darcey v. Zack Co. of chicago, case No. 82-EFA-2, Dec-and Final ord., Apr. 25, Isas.
In enas case,.the employer.
fired an employee who violated the company's explicit instruction j
when he took confidential personnel filas from tne company vault and placed them in his truck.
Carrey, slip op4 at lo.
The Secretary found in that case that misappropriation of confidential company records was a lawful reason to suspend or discharge an employee.
Id. at 12.
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13 NRC was engaged in investigating Mosbaugh's three complaints, there was no reasonaisia or appropriate reason for Mosbaugh to continue tape recording his conversations at Plant Vogtle. 'Id.
The NRC, however, asked Mosbaugh to make secret recordings during the period in which the AL7 found that Mosbaugh's taping constituted egregious, disruptive behavior.
No one d'iscovered*
that Mosbaugh made the tap'es until he revealed <their existence, and therefore I question whether his behavior can be called disruptive.
I disagree that the duration and scope of the recording removed it from being a protected. activity.
I find that Mosbaugh engaged in protected' activity under the ERA by making lawful tape recordings that constituted evidence gathering in support of a nuclear safety complaint.
Mosbaugh's tape recording is analogous to other evidence gathering activitias that are ' protected under employee protection provisions, such as making notes and taking photographs that document environmental or safety complaints.
- See, e.g., Adams v. Coscal Product.icn Operacions, Inc., Case no.
89-ERA-3, Dec. and Order of Remand, Aug. 5, 1932, slip op at 9 and n.4 (photographing oil' opill constituted protected activity).
Georgia' Power attempts to justify the discharge' on the ground that Mosbaugh coul'd. net be an ef. factive manager 'once other employees learned of his tape recording.
'The company argues that the employees would.not likely engage in fi.ee and frank communication with Mosbaugh because of fear of being taped.
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Accordihg to coorgia Power, open communication among employees is
' critical in a nuclear plant.
l I reject Georgia Power's argusment'.for several reasone.
It.
was coorgia Power that revealed the existance of the tape j
I rec'rdings in a general announcement to all employees and also e
conducted' staff meetings to discuss the taping.
T. 679r RX.'22.
l Moebaugh sought no publicity, kept the tapes in a locked safe, and gave the tapes 'only to'ths.NRC.
Moreover, he only revealed' the. tapes' existanos in response to a question at's sworn deposition taken by Georgia Power.
q l
Further, other employees' potential unwillingness to '
i Dahlberg testified j
communicate with Mosbaugh is not dispositive.
4 that the company would not have fired Mosbaugh if he had'madei the secret recordings at the request of.the NRC.t' T. 428.
But the chilling of open.com=unication would be the same even if the NRC had ' directed Mosbaugh's secret taping.-
Further, if Mosbaugh were simply known as a whistloblower and not as a reoerder of conversatiens, the chilling effect would be the same.
.I therefera find that other employees' potential unwillingness to communicate with Moseaugh was not a legitimate reason for discharging him.
i' Dahlberg. distinguished Mosbaugh8s tape recording from the case of a Georgia. Power accountant who, at the request of the.,
Internal Revenue Service, secretly tape recorded conversations related to the IRS' criminal investigation into certain Georgia Power accounting practices.
T. 469-4713 see CX 84.
Since the.
ItRC asked Mosbaugh to do the kiite of tape' recording that ha did on his own, however, I do not agre's that thars is a significant,
distinction between the tuo situations.
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15 Georgia Power s president admitted that he suspended and s
1 discharged Mosbeugh. solely because of his tape recording.
R; D.
j and c. at 35.
Therefore, the company admittedly fired Mosbaugh for angaging in activity that'was legal and in furtherance of protected activity.. Thus, Georgia Power has admitted to a l
violation of the ERA employee protection provision.
i l
I will turn now to another adverse action about which a
Mosbaugh complained, his " average" interim performance rat'ing in l
August 1990.
Both Beckhold and McCoy testified.that Mombaugh 1
1 needed to improve his communiettion skills and' teamwork, particularly 'in coordinating with his counterpart', the Assistant i
}
Plant Manager for Operations, Skip Kitchens.
T. 527, 640.
One.
i of Mosbaugh's subordinates, Richard Mansfield, agreed that i
i Mosbaugh was ineffective in Working with other depart =ents.
T. 845.
Moreover, Mosbaugh's performance rating for 1989 similarly mentioned the goals of improving " organizational I
synergy" and improving relations with Kitchens to battar than "peacaful coexistence."
cx 8.
Since Mosbaugh introduced no testimony to overcome the various.vitnesses' assessments of'his need to improve coordination and communication with othar f
departments, I find that the average. rating was given for-permissible reasons and did not violate the ERA.
Mosbaugh also complained about the removal 'of his company Georgia Power explained that it provided Mosbaugh with a car.
car to use for company business when his position required him to go to the plant at umisual hours.-
T.
556-567.
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theti the company removed the car when Mosbaugh' was assigned to
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SRO school because he no longer would need to go' to the' plant at i
unusual hours.
T. 557.
Although Tan Greene kept his car while a
. attending 830 school. McCoy explai;ned that Greena a car was part of his compensatidn' as a higher. level employee' than Mosbaugh.
c Id. ' The record ravaals.that other employass.with status equal to -
Mosbaugh's similarly lost their company cars while attending S30 school.
Id.
I find that Mombaugh'did not overcome the ev'idence that removal of the car was proper uniier company policy.
REMEDIES A. success'ful complainant under the ERA is entitled to reinstatement.and back pay.
42 tr.s.c. f 5551(b) (2) (B) (1i).
Accordingly, I will' order Georgia Power to rainstata Mosbaugh to the position he occupied when he was discharged, or an equivalent position with the same terms, conditions, and privileges of empicyment.
Mosbaugh is entitled to back pay from the date of discharge -
until reinstatement, inas any interim' earnings.
Sprague v.
American Nuclear Resourcesa Inc., Case No. 93-ESA-31,* Sec.. Dec.
and ord., Dec.
1, 1994, slip op..at 12.
He also is entitled to interest on the back pay amount, at the rate specified for underpayment of Federal incess tax.
26.U.S.C. I 6621.
Blackburn
- v. Metric Constructorso Inc., Case No.'as-Enk-A, Dec. and Order on Damages, cat. 30,.1991, 'siip' op. at 18'-19, aff'd in relevant '
part and. irew'd on other groundse Blackburnv.l Martin,983T,3d 125,(4th. Cir. 1992).
41*J WWM Of 841 9051-1NE34
i 4
i 17 4
Although the record reflects Mosbaugh's monthly.' salary at-the time of discharge, CX 55, there has been no calculation of 4
the exact amount of'back pay owed.
For example, Mosbaugh is f
antitled to salary increases that reasonably would hav's occurred
)
in the five years. since his. discharge.
Accordingly, I will 4
remand to the AL7 for any further proceedings ha deems necessary in this' regard and for a recommended decision 'natting. forth the 3
i amount of bueh pay.
Mosbaugh also received various employee benefits.
see CX 56 j
and 57.
He is entitl'ad to repayment.of benefits that Georgit Power would have provided to him from the data of discharge to i
i rainstatament.
i The ERA also authorizes compensatory damages for a i
i, complainanta s pain and suffaring.
52 U.S.C.
5 5851(b) (2) (b) (ii)
(1988).
To. recover compensatory damages, Mosbaugh had'"to show that he experienced mental and emotional distress and that tho' i
S l
wrongful discharge caused the mental and emotional distress."
4 Blackburn V. Martin, 982 T.2d 125, 131 (4th Cir. 1992), citing j
Carey v, Pfphus, 435 U.S.
247j 263-64 and n.20 (1978).
i Mosbaugh testified that his professional reputation was i
destroyed by the discharge.and t' hat in one and 'a half years i
I between his discharge and the hearing, he was unable to obtain any empicyment despite documented efforts to. find a position at nuclear facilities that he knew were hiring.
T. 322-324r saa f
cX 58'through 75.
Moskaugh reported that he experienced, stress, headachas,familkproblems,andfeeling" bad?about'notfinding sis &T 985T-TE coM BT'ai 'SP19 35P EE
18 another position.
T. 323.
He testified.that additional stress occurred because he had to use the funds set meide for his.
children'scollegIadoc'ationtopay'hislegalexpenses.
Id.
The very fact of being discharged in violation of' the ERE,
may have a serious emotional impact on a complainant.
Blackburn, 982 F.2d at 132.
Although a complainant day support him claism of pain and suffering.vith the testimony.of medical and psychiatrie eseparts, it is. net required.
Thomas'v. Arizona Public Selm[ce Co., Case'No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip op. at 27-2s t.Susche v. Rurkee, 649 F.2d 50R, 519 n.12' Nth cir.), cert. denied,. 454 U.s. 397 - (insi).
Mor/caugh is entitled to some compensatory 'dsnages based on the existing record, 'which I
~
demonstrates his anguish over losing his job and remain ~ing.
unemployed for a lengthy time.
Mosbaugh attempted to introduce.tha tiesti=ony 'of an. expert witness, Dr. Donald soaken.
In l'ieu of. permitting Seeken's testimony, the AL7. accepted into the record a written offer of proof concerning the expert's expected tastimony.
T. 322, 946.
seeken, a social worker who regularly counsalad whistleblowers, interviewed Mosbaugh and Mosbaugh's wife arid would have testified
~
to the stress and financial difficulties that the discharge caused Moskaugh and his family.
See soaksin offer of proof submitted to the recordaan March 18, 1992.
On romand, the ALT shall permit the examination and cross-examination of Dr. seeken concerning stress, emoti.onal distrssa, h
g si d sr* est ess
, asu.s sess-m 1
i i
13
)
i and related subjects,, and shall. recommend the amount of j
compensatory damages to which Mosbaugh is entitled.
I Mosbaugtr also is entitled'to payment of his ' attorney's fees l
and costs.
.Since the record does not contain~ any' statement of costs and attorney's fees, on remand'Moshaugh may submit a, I
detailed petition anG doorda Power shall be afforded the I
opportunity to respond.
In view of the AIJ's recommended 4
4 decision dismissing the compiaint, I consider the attorney 8t fees.
l and costs associated with Mosbaugh's various requests to reopen and supplement the record to. have been reasonably incurred. in bringing the complaint, see 42.U.S.C. I 5851(b) (2) (b), even '
though I have denied some of the requests as unnecessary in: light -
l
- l of the disposition of the case.
optiER
- 1. Georgia Power shall immediately offer Mosbaugh a
i reinstatement to the same position he occupied at the time of s
i discharge, or a substantially similar position,'with the same terms,, conditions, and privilegas of employment.
J i
- 2. The case is' REMJutDED to the AIJ for any necessary
(
l supplemental proceedings consistent'vith this decision and a supplemental recommended decision on the amount of back pay,
~
benefits and colapensatory damages to which Mosbaugh is entitl'ad.
The amount of back pay and benefits. owed shall be' subject to' interest at' the ratie' specified i'n' 25 U.S.c. I 1621.
- 3. The AIJ ahall, afford Mosbaugh the opportunity to submit a detailed petition setting forth him costs and atternsy's fees, g
p a,a,,,L_
w.,
- e. =
Ta:'d nuni l
20 l
1 and shall efford Georgin Power tha opporttLnity to respond.
IR
~
j the recommended supplemental decision, the ALT shall sat forth j
the amount of costs and attorney's fees to vnich. Mosbaugh is i
entitled, consistant with this decision.
S 1
50 ORDERED.
,p 1
i Secretary of Labor 1
f Washington, D.C.
I
,1 1
I 1
a 1
i l
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1 i
I i
1
$184T.SAB5-TERO4 Tr*,e - epte P.4> fuE
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UNITED STATES NUCLEAR REGULATORY COMMISSION O
REGION 11 101 MARIETTA STREET. N.W., SUITE 2E00 n
j ATLANTA, GEORGIA 30E501E5 May 29, 1996 EA 95-171 and EA 95-277 Georgia Power Company ATTN: Mr. W. George Hairston, III Executive Vice President Post Office Box 1295 Birmingham, Alabama 35201
SUBJECT:
(DEPARTMENT OF LABOR CASE NOS. 90-ERA-30, 9'-ERA-001, AND 91-ERA-011)
Dear Mr. Hairston:
On August 4, 1995, the Secretary of Labor issued a Decision and Remand Order in Department of Labor (DOL) Case No. 90-ERA-30, Marvin B. Hobby v. Georgia
+
Power Company.
The Secretary of Labor found that, in 1990, senior managers of Georgia Power Company (GPC or licensee) discriminated against Mr. Hobby, former General Manager of GPC's Nuclear Operations Contract Administration (NOCA), when Mr. Hobby's position was eliminated and he was forced to resign from GPC.
In addition, the Secretary of Labor found that other acts of discrimination occurred such as relocation of Mr. Hobby's office, restrictions on his access to the building, and revocation of his executive parking privileges. The Secretary of Labor determined that GPC terminated Mr. Hobby for engaging in protected activities, which included his raising safety concerns related to the operation of the Vogtle Electric Generating Plant in an April 27, 1989 memorandum that Mr. Hobby provided to GPC's Vice President of Bulk Power.
In the memo and during meetings, Mr. Hobby expressed concerns that the actual organizational structure governing operation of the licensee's nuclear facilities violated NRC requirements.
This Decision and Remand Order rejected the Department of Labor's Administrative Law Judge's Recommended Decision and Order issued on November 8, 1991, which found that actions taken against Mr. Hobby were not motivated by his engaging in protected activity.
Our concerns regarding the apparent violation of NRC requirements and a copy of the Secretary of Labor's Decision and Remand Order were transmitted to you by letter dated September 1, 1995.
A predecisional enforcement conference regarding this matter was conducted in the Region II office on October 4,1995, to discuss the apparent violation, the root cause, and your corrective actions to preclude recurrence.
This conference was open for public observation in accordance with Section V of the NRC Enforcement Policy, NUREG-1600.
A report summarizing the conference was sent to you by letter dated October 11, 1995.
By Decision and Remand Order, dated November 20, 1995, in DOL Case Nos.
91-ERA-001 and 91-ERA-Oll, Allen L. Mosbaugh v. Georgia Power Company, the WMON h
i Georgia Power Company,
Secretary of Labor concluded that GPC discriminated against Mr. Mosbaugh when GPC terminated him.
In his decision, the Secretary of Labor concluded that j
Mr. Mosbaugh had engaged in protected activity "by making lawful tape recordings that constituted evidence gathering in support of a nuclear complaint" and that other employees' potential unwillingness to communicate with Mr. Mosbaugh was not a legitimate reason for discharging him. This Decision and Remand Order rejected the DOL Administrative Law Judge's Recommended Decision and Order issued on October 30, 1992, which found that
- Mr. Mosbaugh did not establish that GPC violated the Energy Reorganization Act. A copy of the Secretary of Labor's decision was sent to you under separate cover on December 12, 1995.
4 i
On December 11, 1995, during a telephone conversation between you and Hessrs. Ellis Merschoff and Bruno Uryc of my staff concerning Mr. Mosbaugh's case, you advised that a predecisional enforcement conference was not required at that time.
On December 12, 1995, a letter was sent to you requesting that you provide an explanation of your views on the apparent violation, its root causes, and a description of planned corrective actions.
In addition, you were given an opportunity to point out any disagreement with the facts and/or findings presented in the Secretary of Labor's decision.
You also were asked to address the potential chilling effect that Mr. Mosbaugh's termination may i
have had on other employees.
On December 13, 1995, GPC filed a Motion to Reopen the Record and for Further Hearings with DOL in this case'.
In your g
December 21, 1995 response to the NRC's December 12 letter, you requested that the NRC allow GPC to defer its response _to the apparent violation until its Motion to Reopen is ruled upon.
After review of GPC's Motion to Reopen and the December 21, 1995 request, the NRC concluded that deferral of the response to the apparent violation was not warranted.
By letter dated January 12, 1996, the NRC requested that you provide a full response to the apparent violation and potential chilling effect by January 19, 1996.
Your response of January 19, 1996 denied the apparent violation and addressed the potential l
chilling effect associated with the Secretary of Labor's findings.
l Based on the Decision and Remand Orders issued by the Secretary of Labor, the l
l We note that, in the Motion to Reopen, GPC has argued that Mr. Mosbaugh i
deliberately violated NRC requirements and that, as a consequence, pursuant to l
Section 211(g) of the Energy Reorganization Act, the protections of section 211 do not apply to Mr. Mosbaugh. The NRC recognizes that it found that Mr.
Mosbaugh was involved in some of the performance failures that resulted in the submittal of inaccurate or incomplete information to the NRC -- see Modified i
Notice of Violation C.3 (EA 93-304, NRC letter dated March 13, 1995):
the Acting Assistant General. Manager - Plant Support, the General Manager for j
Plant Support, and the Technical Support Manager failed to clarify and verify the starting point of the successful consecutive DG starts reported in the April 19, 1990 LER...." However, the NRC did not there find that Mr.
Mosbaugh deliberately violated any requirement.
It is the NRC's view that, but for Mr. Mosbaugh's activities in raising concerns and taping meetings and conversations among GPC personnel, the evidence to support the enforcement actions with regard to GPC's submittals of inaccurate and incomplete 2
information would not have been obtained.
r, m-%.
- ~
(
Georgia Power Company,
violations involve the failure to adhere to the requirements of 10 CFR 50.7, Employee Protection, which prohibits discrimination against employees engaging in protected activities.
During the predecisional enforcement conference and in your letter of January 19, 1996, GPC denied the violations involving Messrs. Hobby and Mosbaugh. Despite those denials, it is our view, based on the Secretary of Labor's decisions, that the facts support the conclusion that GPC violated the regulations applicable to employee protection as stated above. Therefore, the NRC adopts the Secretary of Labor's decisions in thess cases and finds that the actions taken against Messrs. Hobby and Mosbaugh were acts of discrimination for their having engaged in protected activities.
These violations are of very significant regulatory concern because they involved acts of discrimination by senior corporate management. The NRC places a high value on the freedom provided to nuclear industry employees to raisa potential safety concerns to licensee management or to the NRC.
Section 210 (now 211) of the Energy Reorganization Act and 10 CFR 50.7 establish strict requirements for the protection of employees against discrimination for raising nuclear safety issues ano the NRC Enforcement Policy calls for significant enforcement action in cases where senior corporate management violate these requirements.
Therefore, these violations have been categorized in accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level I.
In accordance with the Enforcement Policy, a base civil penalty in the amount of $100,000 is considered for Severity Level I violations.
Because the Statute of Limitations for imposing a civil penalty has expired, no civil penalty is being proposed for the violations.
Had the Statute of Limitations not expired, we would have considered the circumstances surrounding these matters, including corrective actions and efforts to avoid a chilling effect, to determine whether to impose civil penalties to the full extent of NRC's statutory authority in these cases.
To emphasize the importance of ensuring that employees who raise real or perceived safety concerns are not subject to discrimination for raising those concerns and that every effort is made to provide an environment in which all employees may freely identify safety issues without fear of retaliation, harassment, intimidation, or discrimination, I have been authorized, after consultation with the Commission, to issue the enclosed Notice which includes two violations, each categorized at Severity Level 1.
You are required to respond to the enclosed Notice and should follow the instructions specified in the enclosed Notice when preparing your response.
In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence.
Although we recognize that the U.S. District Court for the Northern District of Georgia recently ruled that the Secretary's Order with regard to Mr. Hobby is not final or now immediately enforceable,'we are, nevertheless, concerned that your decision in the Hobby and Mosbaugh cases -- that GPC would not immediately reinstate Messrs. Hobby and Mosbaugh as stated in the Decision and Remand Orders of the SOL -- may itself have-a chilling effect on other employees.
Therefore, in.
your response to this letter, you should describe any steps you intend to take to ensure that this decision by GPC will not create a chillino effect. After
Georgia Power Company reviewing your response to the Notice, including any actions you have taken to address the potential chilling effects, and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.
In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice," a copy of this letter, its enclosure and your response will be placed in the NRC Public Dccument Room. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.
Sincerely, A
Stewart D. Ebneter Regional Administrator Docket Nos. 50-424, 50-425 License Nos. NPF-68, NPF-81
Enclosure:
Notice of Violation cc w/ encl:
(See next page) l i
o Georgia Power Company CC W/ encl.
J Mr. C. K. McCoy Office of the County Commissioner Vice President Burke County Commission Vogtle Electric Generating Plant Waynesboro, GA 30830 1
Georgia Power Company P. O. Box 1295 Harold Reheis, Director
)
Birmingham, AL 35201 Department of Natural Resources j
205 Butler Street, SE, Suite 1252 J. D. Woodard Atlanta, GA 30334 Senior Vice President Georgia Power Company Thomas Hill, Manager P. O. Box 1295 Radioactive Materials Program j
Birmingham, AL 35201 Department of Natural Resources 4244 International Parkway J. B. Beasley Suite 114 General Manager, Plant Vogtle Atlanta, GA 30354 Georgia Power Company P. O. Box 1600 Attorney General Waynesboro, GA 30830 Law Department 132 Judicial Building J. A. Bailey Atlanta, GA 30334 Manager-Licensing Georgia Power Company Ernie Toupin P. O. Box 1295 Manager of Nuclear Operations Birmingham, AL 35201 Oglethorpe Power Corporation 2100 E. Exchange Place i
Nancy G. Cowles, Counsel Tucker, GA 30085-1349 Office of the Consumer's Utility Council Charles A. Patrizia, Esq.
84 Peachtree Street, NW, Suite 201 Paul, Hastings, Janofsky & Walker Atlanta, GA 30303-2318 10th Floor 1299 Pennsylvania Avenue Office of Planning and Budget Washington. D. C.
20004-9500 Room 615B
)
270 Washington Street, SW Atlanta, GA 30334
~
4 Georgia Power Company Distribution w/ encl:
PUBLIC JTaylor, EDO JMilhoan, DEDR SEbneter, RII LChandler, OGC JGoldberg, OGC EJulian, SECY BKeeling, CA Enforcement Coordinators' RI, RIII, RIV JLieberman, OE JGray, OE OE:EA File (B. Summers, OE) (2) l DRosano, OE EHayden, OPA DDandois, OC LTemper, OC GCaputo, 01 EJordan, AE00 LNorton, OIG 0 Wheeler, NRR DHood, NRR RWright, RII CEvans, RII BUyrc, RII KClark, RII RTrojanowski, RII CCasto, RII PSkinner, RII IMS:RII NRC Senior Resident Inspector U.S. Nuclear Regulatory Commission 8805 River Road Waynesboro, GA 30830
.'o NOTICE OF VIOLATION Georgia Power Company Docket Nos. 50-424 and 50-425 Vogtle Electric Generating Plant License Nos. NPF-68 and NPF-81 Units 1 and 2 EA 95-171 and EA 95-277 As a result of Secretary of Labor decisions dated August 4, 1995 (90-ERA-030) and November 20,1995 (91-ERA-001 and 91-ERA-011), violations of NRC requirements were identified.
In accordance with the " General Statement of Policy and Procedure for'NRC Enforcement Actions," NUREG-1600, the violations are listed below:
10 CFR 50.7 prohibits discrimination by a Commission licensee against an i
employee for engaging in certain protected activities.
Discrimination includes discharge or other actions relating to the compensation, terms, conditions, and privileges of employment.
Protected activities are described in Section 210 (now 211) of the Energy Reorganization Act of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act or Energy Reorganization Act.
A.
Contrary to the above, in January and February 1990, Georgia Power Company (Licensee) discriminated against Mr. Marvin B. Hobby, then an employee of the Georgia Power Company, as a result of his having engaged in protected activities.
The protected activities included Mr. Hobby's expressed concerns that the actual organizational structure governing operation of the Licensee's nuclear facilities violated NRC requirements.
The Licensee terminated Mr. Hobby on February 23, 1990 and took other adverse actions as a result of his having engaged in these protected activities.
The Secretary of Labor issued a Decision and Remand Order in Department of Labor case 90-ERA-30 on August 4, 1995, which found that Mr. Hobby's discharge as well as his office relocation, the denial of executive parking privileges and loss of access were acts of retaliation for engaging in these protected activities.
(01011)
This is a Severity Level I violation (Supplement VII).
B.
Contrary to the above, in September and October 1990, the Licensee discriminated against Mr. Allen L. Mosbaugh, then an employee of the Georgia Power Company, as a result of his having engaged in protected activities.
The protected activities included making tape recordings that constituted evidence gathering in support of a nuclear complaint.
The Secretary of Labor issued a Decision and Remand Order in Department of Labor cases 91-ERA-001 and 91-ERA-011 on November 20, 1995 finding that Mr. Mosbaugh's suspension and discharge were acts of retaliation for engaging in protected activity. (02011)
This is a Severity Level I violation (Supplement Vil),
hbN
i r a s Notice of Violation Regulatory Commission, ATTN:
Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region II, and a copy to the NRC Resident Inspector at the facility that is the subject of this Notice, within i
30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a " Reply to a Notice of Violation" and should include for each violation:
(1) the reason for the violation, or, if contested, the basis for disputing the violation, l
(2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) the date when full compliance will be achieved.
Your response may reference or include previously docketed correspondence if the correspondence adequately addresses the required response.
If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as to why the license should not be modified, suspended, or revoked, or why.such other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time.
Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.
Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the POR without redaction.
However, if you find it necessary to include such information, you should clearly indicata the specific information that you desire not to be 4
placed in the PDR, anu provide the legal basis to support your request for withholding the information from the public.
Dated at Atlanta, Georgia this 29th day of May, 1996