ML20129G527

Forwards 951120 Secretary of Labor Decision & Remand Order in DOL Case 91-ERA-001 & 91-ERA-011 & NOV Issues to Gpc for Violations of 10CFR50.7

ML20129G527
Person / Time
Site:	Vogtle
Issue date:	05/29/1996
From:	Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
To:	Dahlberg A AFFILIATION NOT ASSIGNED
References
IA-96-028, IA-96-28, NUDOCS 9610030077
Download: ML20129G527 (22)

Text

_.

1. AR #8 UNTTED STATES 3

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NUCLEAR REGULATCRY COMMISSION REGION H E o 101 MARIETTA STREET, N.W., SUITE 2000 G ATLANTA, GEORGIA 303230190

%,,,g)j May 29, 1996 IA 96-028 ,

Mr. A. W. Dahlberg ,

[Addressdeleted under 2.790]

SUBJECT:

DEPARTMENT OF' LABOR CASE NOS. 91-ERA-001 AND 91-ERA-Oll

Dear Mr. Dahlberg:

Enclosed for your information is the Secretary of Labor's (SOL) November 20, .

1995 Decision and Remand Order in 00L Case Nos. 91-ERA-001 and 91-ERA-Oll, t 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 case.

As you know, in the enclosed decision, the Secretary of Labor reversed the DOL Administrative Law Judges' earlier Recommended Decisions and Orders 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 action in the 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 l 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 j harassment, intimidation and discrimination against a licensee's employees for their engaging in protected activities is unacceptable. While we are not l taking enforcement action against you, you are on notice that 10 CFR 50.7 prohibits discrimination against an employee for engaging in protected i activities 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.  !

i 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. i l

i l

9610030077 960529 PDR ADOCK 05000424 i G PDR l i

t J Mr. A. W. Dahlberg 2 If you have any questions on these matters, please contact James Lieberman, Director, Office of Enforcement, at (301)415-2741.

Sincerely,

/

/g S ewa neter Regional Administrator

Enclosures:

1. Secretary of Labor Decision and Remand Order, Case No. 91-ERA-1 and 91-ERA-11 dated 11/20/95

2. Letter and Notice of Violation l

I s.

Mr. A. W. Dahlberg 3 l

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. Distribution'w/ encl:

PUBLIC JTaylor, EDO-JMilhoan, DEDR SEbneter, RII LChandler, OGC' JGoldberg, OGC EJulian, SECY '

BKeeling, CA Enforcement Coordinators RI, RIII, RIV JLieberman,'0E JGray, OE l OE:EA File (B. Summers, OE) (2) 1 DRosano, OE EHayden, OPA i DDandois, OC  !

LTemper, OC GCaputo, 01 EJordan, AE00 i LNorton, 0IG j DWheeler, NRR  ;

DHood, NRR i RWright, RII j CEvans, RII i BUyrc, RII l KClark, RII RTrojanowski, RII CCasto, RII PSkinner, RII IMS:RII NRC Senior Resident Inspector U.S. Nuclear Regulatory Commission 8805 River Road 4 Waynesboro, GA 30830 si doge ggg '

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u.s. DEPARTMENT OF t.ABOM i

- - - - sannsramy or Lamon wamemaetou, n.c.

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DATE: November 20, 1995

CASE NOS. 91-ERA-1 and 91-ERA-11 ,

i .

IN THE MATTER OF ,

ALLEN MOSBAUGH, COMPIAINANT, -

v.. .

GEORGIA PONER COMPANY, , ,

RESPONDENT.

BEFORE: THE SECRETARY OF LABOR' DECISION AND REMAND ORDER

- In these consolidated casas' ariising under the employes ,

protection provision of the Energy Reorganization Act of 1974 (ERA) , as amended, 42 U.S.C. I 5851 (1985) ,l' Complainant, Allen Nosbaugh, alleged that Respondent,. Georgia Power Company, violated the ERA when it downgraded his performance evaluation, removed his company car, suspended him with pay, and discharged him. In a Recommended' Decision and Crder (R. D. 'and 0. ) , tha -

Administrative Law Judge (AL2) recommended dismissal of the complaint on the ground that. Mosbaugh did not establish that .

l' Section 2902 of the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-s6, 106 Stat. 2776, amended 'the ERA for .

'olaims filed on or after the date of its enactment, October 24, 1992. See Section 2092(1) of Pub. L. No. 102-4s6. These complaints were filed in 1990 and therefore the 1992 amendments do not apply. -

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. . 1 Georgia Power violated the ERA., The AL7's findings of fact, .

i R. D. and O. at 4 32. are well supported by the record and I adopt them. After review of the record, however, I decline to  ;

. i adopt'some of the inferences' drawn'from the facts and relied upon, .

by the AIJ in . reaching his recommended' decision.L' Thersi'oro, I

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reject the AL7's reconmendation, find that Georgia. Power violated i the ERA when it discharged Moebaugh, and romand the complaint to'

, the AL7 for a recommended decision concerning remedies.

! BACKGROUND t

l Mosbaugh was a high level nanager for Georgia Power at its l Plant Vogtle nucinar power station near Augusta, Georgia. While l serving as Acting Assistant General Manager of Plant Support in f

4 early 1990, Mosbaugh anonymously reported to the Nuclear l Regulatory Commission (NRC) that . ether plant managers willfully i

i had violated NRC'tachnical standards. T. 140-144; CX 15. As.a i '.

l result, the'NRc's.cffice of Investigation (NRC-CI) began an on-1 l site investigation and questioned several employees. T. 149-150.

i l Mosbaugh observed that senior managers' attitudes toward him j

changed after the company learned of thc NRC-CI investigation.

i T. 151-158 The plant's ceneral Manager, George Beckhold, . told l

Mosbaugh that "if you can't conform" to company standards, "you' need to get cut." T. 159, 152. Mosbaugh observed that plant I l' Under any standard of'l review 'I. am free to evaluate and reject inferences drawn by the AL7 from the' facts presented. See Nedstrom Co; v. NLRB, 62s F.2d 305, 316 (3d'cir. 1980), cert'.

j denied, .450 U.s. ses (1981) (agency has authority to draw itsiown l inferences from proven facts in the record withcut deference to

. . the . inferences drawn by. the ALT).. -

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employees were afraid to. disagree with, management's opinions.

T. 184=185. ,

As a member of the Plant Review Board, Mosbaugh spoke out.

• against using an experimental filtratibn device called a' FAVA -

filter because it did not meet'NRC standards. T. 175-181.

Nombaugh filed an extensive, writtan internal-Quality concern about the company's decisiion to use the PAVA filter, T. 131, CX 22, and followed up with additional written memoranda concerning it. CX 2'3, 24. Beckhold took the investigation of Mosbaugh's concern hvay from the Quality Concerns coordinator 'and .

handled it himself. T ,, 132-183.

Mosbaugh believed that his' notes and recollections.about conversations and events were not suffielent proof of the safeity violations that he believed occurred. T.'189-190. He read a legal opinion letter advising Georgia Power that surreptitious one-party tape recording.vas lawful'in the state of Georgia.

l CX 26. As a means to document his safety concerns and any .

) retaliation'for expressing them, Mosbaugh began to surreptitiously tape record selected conversations.in which he l

i participated. T.l202-205.

In a March 1990 accident, Plant vogtle lost all electrical

power and was unable for a time to keep the back up generatior '

running. The event caused the re, actor to heat up unsafely.

T. 207-209. Consequently, Georgia power declared a serious " site

. area. emergency.." T. 211.

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s Prior to restarting.ths reactor aftear the emergency, Georgit ,

1 Power had to assure the NRC in e Confirmation of Action Letter (COAL) that the reactor could resume power operations safely.

I T. 255-2ss. Mosbaugh reviewed the coal that was submitted to tha j Nac,.cx'40, and determined that. Georgia Power may have l intentionally misstated the reliability of th's generators.'

! T. 258-259. He sent a memorandum to Bockhold reporting the -

i

problems with the generators

• air quality system, T. 283, cx 41, ,

and obtained further data that verified generator failures.

T. 265-267. Mosbaugh reported the false statements to his j managers. T. 267.

The c0AL did no't and the matter, however. Mosbaugh revieva'd a draft Licensee Event Report (LER) that contained the same falsa .

information about the generators as the C3AL. T. 268-269. ,Na i promptly reported the false informatien in the draft to ,

?

i responsible managers, but the final LER submittad to the NRC '

i retained the false information. 7. 269-270s CX 42. Mosbaugh

! followed up with another memorandum to Bockhold enclosing the 1

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'ata that showed the falseness of the stataments regarding the

. generators. T. cX 43. Mosbaugh later worked on. revisions to-correct the falso statements in the LIR and the ccAL. T. 273,

$ 279-280.

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At a staff meeting after the site Area emergency, a managar.

made a statement that Mosbaugh interpreted as promoting a lax-attitude toward adherence to technical safety . requirements if it -

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would delay tho' restart of the reactor. T. 213-214. As a.

resuit, Mosbaugh began to tape record. more of his conversations.

. Nombaugh learned that Tem Greene, the Ammistant General Manager whom Moebaugh had temporarily replaced, was returning .

from school and would reclaim his position. '

T. 278-279. .

1 Mosbaugh feared for his future in O s company because he had no ,

)

definite assignment since the position ha formerly occupied'had- ,

been abolished. T. 282. When Greene returned, Mosbaugh'also.was .

removed from the Plant Review Board. T, 280-281; CX 44.

Mosbaugh filed two additional anonymous complaints with the NRC'concerning safety issues ~at the plant. T. 213-222; CX 35,

36. Mosbaugh also learned that the NRC called senior managers to washington, D.C. and criticized the attitude at Plant Vogt1s se

" cowboy, cavalier, and cocky." T. 274-275; see also T. 856. -

The NRC granted Mosbaugh " confidential alleger" status in j Jose 1990 and sought his cooperation in an investigation ,

I concerning the company's intentional submi.ssion of natarial false

, information. T. 286-287 ; CX 45. An NRC-OI investigator later asked Mosbaugh to wear a concealed. tape recorder onto the Plant

] vogtle site. T. 304-305. Mosbaugh did not reveal that ha had made such tapa recordinge.cn his own, T. 289=290, 304, and eventually declined the request. ,

Mosbaugh learned that the NRC would conduct a rare Special 2 Safety Inspection at the plant. T. 297. Bockhold intentionally i

did not invita Mosbaugh to a meeting of the plant managers concerning how .to,prepara for tha inspection. ,

T. 299, 670-671.

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1 i Moebeugh later overheard vice President Ken McCoy state that the 4

special inspection occurred "because of some immature bahavior on the part of an employe . or employee allager." T. 399.

In the midst.of the two week special . inspection, Meshaugh ,

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received a mid-year performance rating of " average" that vae'tism j

lowest overall rating he had ever received at Georgia Power.

T. 301-302; cx 48. The apprainal listed improving communicaitions' as a goal for Mosbaugh to achieve. CX 48. ,

4 Moebaugh was selected to attend school to receive a Genior. -

4

! Reactor operator license ("SRO schooln) and. learned tihat he .wes i

,i not entitled to keep his company car while attending SRO school.

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RX 32.

At a pre-hearing depositi'on taken by Georgia Power in an ,

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earlier ERA case. Mo' s baugh' revealed that he had filed several confidential allegations with the NRC'and also revealed the I

The sams' day, existence of his tape recordings. T."308-309. -

i Mosbaughj d oined a for=cr Georgia Power enployee in 'a petition.to i

' the NRC seeking. review of the transfer of certain management i

i functions concerning Plant vogtle to a new entity, Southern Nuclear Power Company (Southern Nuclear) . CX AS.-

i Vice President McCoy was upset about the tape recording and l recommended that Mosbaugh be placed on administrative leave.while -

the company investigated the taping. T. 568-570. Georgia j Power's President, A.W. Cahlberg, agreed and. suspended Hesbaugh j

! with pay. T. 594. Thirty days later,. Georgia Power discharged l

s uv u. m w.una e.1 7 .

Mosbaugh for engaqing in surreptitious tape recording at Plant Vogtle. T. 478-419, 581; cx 53, 54. ,

Moskaugh filed ERA complaints challengin's the lawfulness of the lowered performance appsfaisal, removal of his company car,. .

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suspension, and disgharge. .

MOTICNS CONCERNING THE RECORD

1. Motions to exceed page. limitations.in briefs.

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Mosbaugh i s unopposed motions to exceed tha page limitation - - -

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in his initial brief and in his 1994 supplemental brief ara granted and the briefs are accepted as filed.-

'2. Georgia Poser s motion to strika 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 i .

j that is not part of the record. Since I agree that offers of proof are not evidenca (Motion at 3, 8), I thal'1 not. rely upon i

any statements in.the offers as evidence.

i Mosbaugh attached to his. Reply Brief a copy of the

! February 19, 1993 decision of*the NRC's Atomic Safety and

! Licensing Board.(ASL3 Decision) that granted Mosbaugh's petition i

to become a. party.in the case in which Caorgia Power sought.

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! authority..to transfer its operating license to southern Nuclear.

The AsLB

• decision was issued after the close of the record, the -

1 issuance of the recommanded decision, and tha.transrar of the I record to the secretary.

1 Under the regulations governing proceedings before .

Department of Labor administrative. law judges, a party may seek i

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. authority to supp lement the record'with newly diiscovered evidence ,

- that was not readily available prior to the class oi' the record.

is c.F.R. I 18.54(c). I will treat Moskaugh i s reference'to tha AsLB decision as a request to supplement the record w"ith the.

decision. '

T!un AsLB decision is a relevant pub.'.ic document that becess available only'atter the close of'the hearing and the transfer of the record to me. Although I' do not consider the AsLB 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- l l

decision into the record for whatever probative value it'may l have.. See 5 'U.S.c. 557 (3) (1988): "on. appeal from or review.of l the initial decision, the agency has all the powers which it

'would have in making the initial decision except as it.may limit the issues on' notice or by rule." '

3. Letters from NRC Chairman to Sacratary of Labor and to senator Baucus. .' ,

l In response to an inquiry from the Senate Committee on Environment and Public Works, the NRC's chairman wrote a letter to the connaittee's chairnan, Max Baucus,. giving the NRC's views "whether one-party taping of. conversations by esplayees of NRC licensene could constitute, in some circumstances., protected activity under section 211 of the Energy Reorganization Act of 1974." Pursuant to Baucus' suggestion, the NRC Chairman provided a copy of his views to the secretary of Labor and served a copy on the parties to this proceeding. Although I have not. relied upon the vieve of the NRC Chairman i'n.rsaching a decision on

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9 Mosbaugh's complaint, the July 14, 1993, letters from the NRC Chairman to Senator Baucus and to the secretary of Labor are .-

admitted into the record in this case for whatavar probative l i

valua they may have. .

4. NRC-OI Memorandum and' Report of Investigation.

Mosbaugh seeNs to admit into the record the December 17) .

1993 NRC-OI Report of Investigation entitled "Vogtle Elacitria Generating Plants All'eged. False Statements Regarding Test ,

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 safety concerns that.Mosbaugh brought'to the NRC's attention.

Georgia Power opposes their admission. .

. Pursuant to a memorandum of undcrstandir.3, the Department of Labor has agreed .to administer itis responsibilities under the -

ERA's employee protection provision with naximum cooperation and

" timely exchange of information in areas of mutual interest" with the NRC. Memorandum of Understanding Between NRC and Department- i of Labor, Employee Protection, 47 Ted. Reg. 54555 - (Dec . 3, 1982). .

To that and, copies of both recommended and' final. decisions in ERA cases are provided to the NRC to aid in its responsibility to-ensure the safety'of nuclear power installations.

l since the memorandum and NRC-OI report; vare issued in 1993', l l

they wara not readily available prior to the 1992 hearing. In j 1

view of the NRC's responsibility concerning nuclear safety and l l

. the unavailability of the documents prior to the close of the , l

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i hearing, I will admit into the record the December 17,.1933.NRC-l OI report and the December 20, 1993 memorandum of the NRC-02 Director concerning that report'fo'r whatever probative,value they I may hava.,'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. l

, and for other relief.

- l Mosh'aughsoughttoreopentherecordtoobtainthetestinehy of an NRC-CI investigator Larry Robinson concerning 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 Executive Vice

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President - Nuclear of Southern Company and Southern Company services, at the ASL3 proceeding concerning transfer of the -

license for Plant Vogtle to Southern Nuclear. Farley's testimony purportedly reveals that Farley conaunicated animus.against Mosbaugh to coorgin Power president Dahlberg, who made the decisions to suspend and discharge Mosbaugh. Georgia Power opposes the motions.

In light of the disposition of this complaint in Mosbaugh's favor, there is no reason to remand to the AIJ for the purpose of reopening the record to, permit Mosbaugh to conduct. additional  ; -

discovery and adduce additional testimony. Accordingly, th's 4

motions are denied.

In connection w3.th' this motion, Mosbaugh'requestad leave to file a reply to Respondent's Brief in opposition to comFl ainant's:

Notion to Roopen the Record, ate.- Georgia power opposed the ,

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request. In the interest of a complete record of pleadings, i

Mosbaugh's motion for leave to file a reply.is. granted and the l reply is accepted .into.the record, as. is Georgia Power 6s Brief in

• I opposition'to complainant'.s Motida to rile a'Raply. -

. . ' DISCUSSION ,

where a respondent has introduced evidence to rebut a prima facie casa of a violation of the ERA's empicyme protection l .

. provision, it is unnecessary to examina the question of whether the complainant established a prima facie casa. See Carroll v.

l Becheel Power' Corp., Casa No. 91-ERA =0046, Final Dec. and Order,

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Feb. 15, 1995, slip.op, at 11 and n.9, petition for review

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docketed, No. 95-1729 (8th Cir. Mar. 27, 1995). "The (trier of fact] has before it all the evidence it needs to determine whether 8the defendant intentionally discriminated against the p1nint'iff.'" USPS Bd. of ^ Governors .v. Aikans, 460 U.S. 711, 115 (1983) quoting Texas Department of Community Affairs v. Bardine, 450 U.S. 245, 253. (1981). Thus, the question is whether Mosbaugh proved by a preponderance of the evidence that cecrgia Power discriminated'against him for engaging in' protected activity. . .

There is no dispute that Mosbaugh's complaints to the NRC about nuclear cafety issues constituted protected activities under tha ERA. Also protected vara his internal safety .

complaints to superiors. Bechtel Const. Co. v. Secretary of ,

Labor, 50 F.3d 928 (11th Cir. 1995). After Mosbaugh made a confidentini complaint to the NRC he engaged in secret one-party ET*d SPfr Esp.est -

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{ tape recording' that was legal in the stete of. Georgia.1' Indeed,

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the NRC Inter asked Mombaugh to make such recoifdings to aid in j its investigation of Mosbaugh's allegatione concerning management I actions at Plant Vogtle, Georgia *. Power argues that even though

.the' tape recording was legal, its affact was so detrimential.to*

) open communi' cation that Mosbaugh's discharge.was appropriate. - -

l 'The secretary previously has found that " assisting the government by . . . secret tape recording of. conversations.

) concerning alleged illegal dumping practices" constituted

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protected activity .under the employee protection provision of the .

i i j solid Wasta Disposal Act, 42'U.S.C. 6971. Hanay v. Nor.th  !

l American Car Corp. , ' Case No. 81-SDWA-1, Sec. Dec.,' June 50, 1982, j j slip op. at'4. Here, Mosbaugh.'s recordings clearly supported his complaints to the NRC concerning management actions at Plant ,

vogtle.

i The AIJ stated that even if. Mosbaugh's tape recording I constituted protected activity at the outset, .its duration and i scope "became so egregious and potenti~ ally disruptive to the workplace'that it' lost any protected status it may have once possessed.." R, D. and O. at 3 5.- The AIJ opined that after the 1

1 l' contrary to Respondents' argument (Resp. Brief at 25)., I f1nd that Moebaugh's ' lawful tape recording is not analogous to the situation in DArtey v. Zack Co. of Chicago, Case No. 82-ERA-2,

Dec. and Final Ord. , Apr. 25, 1953. In that case,.the employer-

! ' fired an employee who violated the company's explicit instruction I

when he took confidential personnel files from the company, vault

and placed them in his truck. Dartay, slip op4 at 10. The' .

Secretary found in that case that misappropriation of

! confidentini company records was at lawful reason to suspend or discharge an suployee. Id. at 12. .

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. 13 NRC Vas engaged in investigating Mosbaugh's three complaints,

! there was no reasonable or appropriate reason for Mosbaugh to l

! continue tape recording his conversations at Plant Vogtle.

Id.

The NRC, however, asked Mosbaugh to make secret recordings 1 I

during the period in which the AL:r found that Mosbaugh's taping '.

I constituted egregious, disruptive behavior. No one discovered' .

l that Mosbaugh made the tap'es until he revealed their escistence, and therefore I question whether his behavior can be called disruptive.

l I disagree that the duration and scope of.the recording romanrad it from being a protected . activity. I find that Mosbaugh engaged in protacted' 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 activitics that are protected under employee protection provisions, such as making notes and taking photographs that document environmental or safety complairits.

See, e.g., Adams v. Cosca.l Product. ion Operacionso Inc.o Case No.

89-ERA-3, Dec. and Order of Ramand, Aug. 5, 1992, 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 not be an effective manager'once other employees learned of his tape recording. 'The company argues that the employees would-not likely engage in free and frank communication vith Mosbaugh because of fear of being taped.

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j According to coorgia Power, open communication am ng employees is ,

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critical in a nuclear plant. , ,

l I reject Georgia Power's argument'.for several reasons. It .

was Georgia Power that revealed the existence of the tape ,

recordings in a' general announcement to all employees and also condiacted ' staff meetings to discuss the taping. T.;679F RX.'22. - - I Mosbaugh sought no publicity, kept thei tapes in a locked safe, and gave the tepes 'nly e to the.NRC. Moreover, he only revealed the . tapes

• existence in response to a question at s sworn -

l deposition taken by Georgia Power. .

Further, other employees' potential unwillingness to communicate with Mosbaugh'is not dispositive. Dahlberg testified.

that the company would not have fired Mosbaugh if he had madei the ,

secret recordings at the request of the NRC.i' T. 428. But the chilling of open. communication would be the same even if the NRC, had' directed Mosbaugh's secret taping.- Further, if Mosbaugh were, simply known as a whistleblower and not as a recorder of conversations, the chilling effect would be the same. .I therefore find that other employees' potential unwillingness to comruinicate with Mostaugh was not a legitimate reason for discharging him. .

i' Dahlberg. distinguished Mosbaugh's 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 Ins' criminal investigation into certain Georgin Power accounting practices. T. 469-471; see CX 84. Since the.

NRC asked Mosbaugh to do tha kind or tape' recording that he did -

on his own, however, I do not agre's that thers is a significant ,

distinction between the two situations. .

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! is Georgia Power 8s president admittad that he suspended and

! ' discharged Mosbaugh. solely because of his tape recording. R.,D.

l and c. at 36. Therefore, the company admittedly fired Mosbaugh

! for engaging in activity that'was legal and in furtherance of protected activity.. Thus, Georgia Power has admitted to a ~.

violation of the ERA employee protection provision.

I will turn now to another adverse action about which .

Mosbaugh complained, his average" interim performance rasing in .

August 1990. Both Bockhold and McCoy testified.that Mombaugh needed to improve his communication skills and teamwork, l particularly 'in coordinating' with his counterpart', the Assistant Plant Manager for operations, Skip Kitchens. T. 527, 640. One, of Mosbaugh's subordinates, Richard Mansfield, agreed that .

Mosbaugh was ineffective in working' with other departments.

T. 845. Moreover, Mosbaugh's performance rating for 1989 similarly mentioned the goals of improving " organizational -  !

synergy" and improving relations with Kitchens to better than

" peaceful coexistence." cX B. 'Since Mosbaugh introduced no j testimony to overcome the various vitnesses' assessments of'his need to improve coordination and communication with other departments, I find that the average. rating was given for. ,

permissible reasons and did not violate the ERA. ]

Moshaugh also complained about the removal *of his company car. Georgia Power explained that it provided Mosbaugh with a car to use for company business when his position requirad him to go te the plant at umisual. hours.- T. ses-567.

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that' the company removed the car when Mosbaugh' was assigned to SRO school because he no longer would nand to go'to the' plant at -

unusual hours. T. 557. Although Tom Greene kept his car while a

. attending sao school, Mccoy explai;ned that Greena a car was part l of his compensati'on' as a higher . level amployee' than Moshaugh. .

Id. - The record reveals.that other employees with status equal to-Mosbaugh's similarly lost their company cars while attending 830 ,

i school. Id. I find.that Mombaugh did not overcome the evidence 1

j that removal of the car was proper under company policy.

0 REMEDIE5 l i

A. successful complainant under the ERA is entitled to .

i reinstatement.and back pay. 42 U.S.C. I 5551(b) (2) (B) (ii) . .

l Accordingly, I will' order Georgia Power to reinstate Mosbaugh to the position he occupied when ha was discharged, or an equivalent l position with the same terms, conditions, and privileges of b

(

employment.

Mosbaugh is entitled to back pay from the data of discharge-

! until reinstatement, loss any interim' earnings. Sprague v. . -

1 American Nuclear Resourcesa Inc. , Case No. 92-Enk-31, Sec.. Dec. ,

and ord., Dec. 1, 1994, slip op..at 12. He.also is entitled to -

1

~

interest on the back pay amount, at the rata specified for -

(

! underpayment of Federal income tax. 26.U.S.C. I 6621. Elsekburn 4

v. Metric Conscructo::co Inc., case No.'as-ERA-4, Dec. and order on Damages, Oct. 30,. 1991,' slip'op, at 18'-19, aff'd in Islerant '

I part and. rev'd on other groundse Blackburn v.^ lHattin, 983 T,3d ,

125 -(4th. cir. 1952) .

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• Although the record reflects Hosbaugh's monthly / salary at the time of discharge, cx 55, there has been no calculation of i

For example, Mosbaugh is i

the exact amount of back pay owed. -

l entitled to salary increases that reasonably would have occurred ,

in the five years sincia his, discharge. Accordingly, I will -

l romand to the AIJ for any further proceedings he deems necessary -

in this' regard and for a recommended decision ' setting.forth the .

i

amount of back pay. .

Mosbaugh also received various employee benefits. See cx 56

, and 57. He in entitled to repayment.of benefits that Georgia l Power would have provided to him from the date of discharge to -

j .

I reinstatement. ,

l The ERA also authorizes compensatory damages for n i

l complainant *s pain and suffering. 52 U.S.C. 5 5551(b)(2)(b)(ii) -

(1988). To recover compensatory damages, Mosbaugh had'"to show.

I that he experienced mental and emotional distress and that tho'

wrongful discharge caused the mental and emotional distress."

I .Blackburn v. Martin, 952 F.2d 125, 131 (4th Cir. 1992) , citing 1

]

Carey v. Piphus, 435 U.S. 247, 263-64 and n.20 (1978).

j Mosbaugh testified that his professional reputation was

) destroyed by the discharge.and that in one and 'a half years  ;

?

between his discharge and the hearing, he was unable to obtain l any employment despita documented. efforts to find a positio'n at i

nuclear facilities that he knew were hiring. T. 322-324; see j I cx 58'through 75. Moabaugh reported that he experienced, stress, .l

! hoedaches, familk problems, and feeling "bati" about not f(nAing

'~' - ~ r.to g- . . ~ " ' .

i .

i, ..

! 1s another position. T. 322. He testified.that additional stress ,

i .

4 occurred because he had to use the funds set maide for his -

~

children's college education to pay'his legal expenses. Id.

1 .

l The very fact of'being discharged in violation of the ERA ,*

i may have a serious; emotional impact on a complainant. Blackburn, i

982 F.2d at 132. Although a complainant day support him claim of pain and suffering.vith the testimony .of medical and psychiatrio experts, it is not required. Thomas 'v. Nizona Public Service ,'

Co., Case'No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, ,

slip op. at 27-28; .Busche v. Burkee, 649 F.2d 509, 519 n.12'('th 7

cir.), cert. denied,.454'U.S. 897*(1981). Nosbaugh is entitled I

j to some compensatory damages based on the existing record,'which a

demonstrates his anguish over losing his job and remain'ing.

4

. unemployed for a langthy time.

l Mosbaugh attespted to introduce.the testi=ony'of an. expert i

witness, Dr. Donald Soeken. In l'ieu of. permitting seeken's l testimony, tha AIJ. accepted into the record a written offer of i

{ proof concerning the expert's expected testimony. T. 322, 946.

f seekan, a social worker who regulariy counseled whistleblowers, l

interviewed Mosbaugh and Mosbaugh's wife an'd would have testified to the stress and ' financial difficulties that the discharge l caused, Mosbaugh and his family. See Soeken offer of proof I

submitted to the record.on March 18, 1992. ,,

on remand, the AIJ shall permit the examination and cross-examination of Dr. Soeken concerning stress, anotional distress, .

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and related sub eats,.and shall. recommend the amount of -

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! compensatory damages to which Mosbaugh is. entitled. ,

Mosbaugtr also is entitled to payment of his ' attorney's fees j ,

i .

j and costs. .Sinen the record does not contain' eny~ mtatement og J costs and attorney's fees, on remand'Mosbaugh may submit a. -

~ .

detailed petition and' Georgia Power shall be afforded the -

i '- -

j opportunity to respond. In view of the AL7's recommended

! decision dismissing.the complaint, I consider the attorney's fees.

j and costs associated with Mosbaugh's various requests to respen .

L -

I and supplement the record to have been reasonably incurred. in .

bringing the complaint, sse 42.U.S.c. i SS51(b) ('2) (b), even l f though I havE denied some of the requests as unnecessary inelight -

l of the. disposition of the case.

L .

ORDER' .

l

- 1. Georgia Power shall immediately offer Mosbaugh reinstatament to the same position he occup'ieda 't the time of .

1

! discharge, or a substantially similar position, with the same -

i

! terms,. conditions,'a.nd privileges of employment. .

! 2. The case is REMANDED to the AL7 for any necessary

! supplemental proceedings consistent'with this decision and a

supplemental recommended decision on the amount of back pay, . '.

benefits and compensatory damages to which Mosbaugh is entitl'ed. '

i .

The amount of back pay and benefits ,0wed shall be' subject to j

l interest at'the rats' specified in 26 U.S.C. I 1621.

l ,

3. 'The AL7' shall, afford Mosbaugh the opportunity to submit a

' detailed petition setting forth his easts and attorney's fees, .-

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1 and shall afford Georgin Power tha opportunity to respond. In . .

the recommended supplemental decision, the AIJ shall set forth the amount of costs and attorney's fees to which.Mosbaugh is . .

entitled, consistant with this decision.

50 ORDERED. .

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sacratary of Labor l

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m y NUCLEAR REGULATORY COMMISSION y $- nealON N

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.E ATLANTA. ceDRelA 3055o189

..... May 29, 1996-i 1

EA 95-171 and EA 95-277

-Georgia Power Company L ATTN: .Mr. W. George Hairston, III i Executive Vice President j Post Office Box 1295 Birmingham, Alabama 35201

SUBJECT:

NOTICE OF VIOLATION i (DEPARTMENT OF LABOR CASE NOS. 90-ERA-30, 91-ERA-001, AND

91-ERA-011)

Dear Mr. Hairston:

4 On August 4, 1995, the Secretary of Labor issued a Decision and Romand 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 i Georgia Power Company (GPC or licensee) discriminated against Mr. Hobby, i former General Manager of GPC's Nuclear Operations Contract Administration i (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 L on his access to the building, and revocation of his executive parking

- privileges. The Secretary of Labor determined that GPC terminated Mr. Hobby i for engaging in protected activities, which included his raising safety concerns related to the operation of the Vogtle Electric Generating Plant in i; 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 i that the actual organizational structure governing operation of the. licensee's j i nuclear facilities violated NRC requirements. This Decision and Remand Order i i' rejected the Department of Labor's Administrative Law Judge's Recommended j Decision and Order issued on November 8, 1991, which found that actions taken i i against Mr. Hobby were not motivated by his engaging in protected activity.

t 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-011, Allen L. Mosbaugh v. Georgia Power Company, the '

i I

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/OO.SC,? C ?S hf0

. s 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 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 00L 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.

On December 11, 1995, during a telephone conversation between you and Messrs. 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 have had on other employees. On December 13, 1995, GPC filed a Motion to l Reopen the Record and for further Hearings with DOL in this case'. In your I 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 i violation and potential chilling effect by January 19, 1996. Your response of January 19, 1996 denied the apparent violation and addressed the potential chilling effect associated with the Secretary of Labor's findings.

Based on the Decision and Remand Orders issued by the Secretary of Labor, the 1

We note that, in the Motion to Reopen, GPC has argued that Mr. Mosbaugh deliberately violated NRC requirements and that, as a consequence, pursuant to 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 ,

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 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

.information would not have been obtained.

I 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 i above. Therefore, the NRC adopts the Secretary of Labor's decisions in these

! cases and finds that the actions taken against Messrs. Hobby and Mosbaugh were

{ acts of discrimination for their having engaged in protected activities.

1 1 These violations are of very significant regulatory concern because they l involved acts of discrimination by senior corporate management. The NRC i' places a high value on the freedom provided to nuclear industry employees to )

raise 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 4 raising nuclear safety issues and the NRC Enforcement Policy calls for significant enforcement action in cases where senior corporate management i.

violate these requirements. Therefore, these violations have been categorized i in accordance with the " General Statement of Policy and Procedure for NRC l 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 i statutory authority in these cases.

, To emphasize the importance of ensuring that employees who raise real or l perceived safety concernc 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, i harassment, intimidation, or discrimination, I have been authorized, after i consultation with the Commission, to issue the enclosed Notice which includes j two violations, each categorized at Severity Level I.

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 j the U.S. District Court for the Northern District of Georgia rocently ruled that the Secretary's Order with regard to Mr. Hobby is not final or now l immediately enforceable, we are, nevertheless, concerned that your decision in the Hobby and Mosbaugh cases -- that GPC would not immediately reinstate j 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 j your response to this letter, you should describe any steps you intend to take l .to ensure that this decision by GPC will not create a chilling effect. After i

i

.4 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 l

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 i personal privacy, proprietary, or safeguards information so that it can be i placed in the PDR without redaction.  ;

Sincerely, O!k &

Stewart D. Ebneter Regional Administrator Docket Nos. 50-424, 50-425 License Nos. NPF-68, NPF-81

Enclosure:

Notice of Violation I cc w/ encl: (See next page) l 1

l l

l I

1 4

i

. . . 3 Georgia Power Company cc w/ encl:

Mr. C. K. McCoy Office of the County Commissioner Vice President Burke County Commissirn e Vogtle Electric Generating Plant Waynesboro, GA 30830 Georgia Power Company P. O. Box 1295 Harold Reheis, Director Birmingham, AL 35201 Department of Natural Resources 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 Birmingham, AL 35201 Department of Natural Resources 4244 International Parkway J. B. Beasley Suite 114 General Manager, Plant Vogtle Atlanta, GA 30354 Georgia Power Ccmpany 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 l Birmingham, AL 35201 Oglethorpe Power Corporation 1 2100 E. Exchange Place 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 Poom 6158 270 Washington Street, SW etlanta, GA 30334

L e e. %

Georgia Power Company 1 Distribution w/ enc 1: l PUBLIC i

JTaylor, EDO i JMilhoan, DEDR 1 SEbneter, RII l LChtndler, OGC i JGoldberg, OGC EJulian, SECY BKeeling, CA

Enforcement Coordinators'  ;

l RI, RIII, RIV  ;

JLieberman, OE JGray, OE I OE:EA File (B. Summers, OE) (2) l DRosano, OE  !

I 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 i

)

,, c. .-

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 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 (Licenses) 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 VII).

ftWe&EdOST 4/3

r

. ,, e liotice 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 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, (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 PDR without redaction. However, if you find it necessary to include such information, you )

should clearly indicate the specific information that you desire not to be '

placed in the PDR, and 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