ML20138E515
| ML20138E515 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/23/1994 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Saporito T SAPORITO, T.J. |
| Shared Package | |
| ML20136A754 | List: |
| References | |
| FOIA-96-485 2.206, NUDOCS 9412140232 | |
| Download: ML20138E515 (33) | |
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., . UNITED STATES
!.f j NUCLEAR REGULATORY COMMISSION
$ ' 'f WASHINGTON, D.C. 20666-0001
'%' * . .'. * */ c p n '. S .'
Mr. Thomas J. Saporito, Jr.
7881 Piper Lane Lake Worth, Florida 33463
Dear Mr. Saporito,
Your letter of January 19, 1993 to Mr. K. E. Perkins, NRC Region V, has been referred to the Office of Enforcement for response based on your request, pursuant to 10 CFR 2.206, that the NRC take enforcement action against the Arizona Public Service Company (APS).
10 CFR 2.206 requires the submittal of specific facts to demonstrate the basis of the request. Your letter provides no factual information beyond that contained in your letter of September 16, 1992 concerning the alleged discrimination against you by APS. Therefore, I shall reiterate the NRC position on this matter which was previously provided to you in my October 16, 1992 letter. The NRC generally defers to the Department of Labor (DOL) process before taking action and normally does not take independent action with respect to alleged discrimination for the exercise of a protected activity prior to a decision by a DOL Administrative Law Judge (ALJ) absent a compelling safety
- reason. Your letter, like your September 16, 1992 letter, provides no reason for the NRC to depart from that practice in your case at this time. Accordingly, absent more specific factual information, the NRC will not treat your letter as a petition filed under 2.206. We do intend to review any DOL decision regarding your claim of discrimination which is presently before a DOL ALJ. If warranted, enforcement action will be taken.
Your request under the Freedom of Information Act is being handleo uncer tne appropriate NRC procedures and will be responded to separately. NRC Region V is continuing to look into the plant safety concerns that you previously brought to our attention and Mr. Perkins referred to in his letter of January 8, 1993. Again, those matters wil] be responded to separately.
Sincerely, w *'
Jtmes Lieberman, Director fice of Enforcement cc: Mr. William Conway, APS Mr. David Colapinto j
UNITED STATES OF AMERICA BEFORE THE SECRETARY OF IABOR
)
THOMAS J. SAPORITO, JR., )
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Complainant, )
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- v. ) Case Nos. 89-ERA-7
) 89-ERA-17 FLORIDA POWER & LIGHT CO., )
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Respondent. )
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i COMPLAINANT'S REPLY BRIEF Resp 9ctfully submitted by, David K. Colapinto Stephen M. Kohn KOHN, KOHN & COIAPINTO, P.C.
517 Florida Avenue, N.W.
Washington, D.C. 20001-1850 (202) 234-4663 Attorneys for Complainant March 2, 1994
INTRODUCTION Since respondent's reply brief relies extensively upon the June 30, 1989 Recommended Decision and Order ("RD&O") of l Administrative Law Judge ("AIJ") Anthony J. Iacobo, in order to adequately respond to FPL's reply brief it is necessary for complainant to address the numerous errors committed by the ALJ as well as the points raised by FPL in its reply brief. Notably, the ALJ committed critical errors of law, such as: (1) declining to find that complainant proved a prima facie case; (2) the conspicuous silence on the dual motive analysis; and (3) the outright failure to consider evidence of disparate treatment.
EPL's claim that the RD&O should be adopted due to the ALJ's cref.ibility findings must be rejected. Rather, the ALJ 's credibility findings are, in reality, irrelevant to the issues in dispute in this case,l' because Judge Iacobo misapplied the legal standards which control this case.
Additionally, the entire record contains evidence which was l completely ignored by the ALJ. Once the entire record is weighed and considered, and the correct legal standards are applied to this case, a different result from that recommended by the ALJ is 1
required.
1/ If a credibility determination is unreasonable, contradicts other findings of fact, or "is based on an inadequate reason, or no -
reason at all," the courts will not uphold it. NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir. 1978).
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LEGAL. ARGUMENT I. COMPLAINANT ESTABLISHED A PRIMA FACIE CASE.
Notably, the parties and the ALJ agreed on the six elements l that complainant was required to prove in order to establish a prima facie case. Egg, RD&O at pp. 14-15. See also, Mackowiack
- v. University Nuclear Systems. Inc., 735 F.2d 1159, 1162 (9th Cir. 1984) ; DeFord v. Secretarv of Labor, 700 F.2d 281, 286 (6th Cir. 1983). However, the AL7 misapplied the law when determining whether complainant met his burden of establishing a prima facie Case.
At issue here is whether complainant proved that FPL acted with discriminatory motive. RD&O at p. 15. The ALJ's conclusion that complainant failed "to show that the alleged discriminatory actions and eventual discharge were motivated in any way by complainant's protected activity," id., is at odds with the well-settled precedents on the issue of causation. Egg e,q,, Coutv v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989). Indeed, the most common fact used to establish retaliatory motive is evidence of timing.
Egg, Newkirk v. Cvoress Truckino Lines. Inc., Case No. 88-STA-17, slip op. of SOL, at 8 (Feb. 13, 1989) (" Adverse action closel'y following protected activity is itself evidence of an illicit motive."). The fact that an employer takes disciplinary action shortly after an employee engages in protected activity is, unto itself, " sufficient to raise an inference of causation" to establish that element of the prima facie case. Id. See also, 2
l Ertel v. Giroux gros. Transo.. Inc., Case No. 88-STA-24, slip op. I of SOL at 24-25 (Feb. 16, 1989); Priest v. Baldwin Assoc., Case No. 84-ERA-30, slip op. of SOL at 10 (June 11, 1986).
l It cannot be overemphasized that the RD&O did not even address the ample evidence of timing in this case, yet the AIJ concluded that there was no discriminatory motive established. l Such a glaring and fundamental error calls into question the l inherent reliability of the entire RD&O. The record in this case fully demonstrates that all adverse action taken by FPL occurred ;
shortllf after complainant engaged in protected activity. ALES 333, Complainant's Post-Hearing Brief at 13-17 (June 2, 1989).
Soon after complainant raised safety concerns in early May, 1988, he was subjected to discipline. On May 4, 1988, Mr.
Saporito complained to two FPL supervisors, Mr. Harley and Mr.
Tomaszewski, about problems with safety related clearance ,
procedures on a highly visible work order.F T. 735-45 (Saporito). Complainant escalated his safety concerns through his letter to INPO of May 9, 1988 which he copied to FPL F The subject matter of complainant's May 4, 1988 safety concerns occurred during the time the Institute for Nuclear Power i Operations ("INPO") was conducting an on-site evaluation at Turkey i Point, and, significantly, INPO investigators observed the job about which complainant raised safety concerns. RD&O at 6.
- Notably, by April of 1988, FPL had received poor performance ratings from the U.S. Nuclear Regulatory Commission ("NRC") (CX 103 and CX 118) and that FPL management was concerned that the NRC i might impose fines, or, even worse, that FPL might lose its license to operate the Turkey Point nuclear plant. It is uncontested that the NRC's poor ratings of Turkey Point resulted in increased scrutiny of FPL in the Spring of 1988 by the NRC and by INPO. T.
117 (Boyle); T. 1390 (Odom); T. 1976 (Kappes). l I
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management. RX 51. In his letter to INPO, complainant
} questioned whether Mr. Harley was properly trained to perform certain safety related clearance procedures. Within days of l complainant's letter to INPO, which directly questioned the i t <
competence of his FPL superiors to carry out safety related responsibilities, Mr. Harley recommended that Mr. Saporito be
- disciplined. T. 1829-30 (Harley).
{ The timing of FPL's disciplinary actions in May of 1988 1
- could not be more obvious. On May 11, 1988, complainant received 1
the first in a series of retaliatory disciplinary actions by FPL. I 3 The May lith discipline occurred just seven days after j
f complainant raised safety concerns directly to his supervisors at i h FPL and just two days after he wrote the May 9th letter to INPO l
j documenting his safety concerns.F i
The May 11, 1988 discipline was in fact pretextual. FPL fabricated its charge that complainant's immediate supervisor had allegedly lost confidence in complainant. This charge was s
! directly contradicted by complainant's supervisor who testified
- that FPL's allegation was not true. T. 1374 (Verhoeven).F l
l F Notably, at the hearing, Mr. Harley testified that he was 4 aware of Mr. Saporito's May 9, 1988 letter to INPO prior to the
- . May 11, 1988 disciplinary action. T. 1833-34 (Harley). Thus, FPL cannot claim that it was unaware of complainant's protected
- activity at the time of the discipline.
i A/ FPL also ignored its procedures which require discipline *
- to be handled by an employee's immediate supervisor. T. 103-04 j (Boyle).
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Following the May lith disciplinary action complainant's co-workers perceived that Mr. Harley was trying to get complainant fired. One employee felt that Harley was out to get rid of ,
complainant. T. 2160 (Colston). Another employee testifi J that Harley made comments that he was out "to get" complainant and that was common knowledge. T. 522 (Mathis). In fact, Mr. Harley even agreed that employees in the shop "probably interpreted it that way." T. 1863-64 (Harley). In addition, Mr. Harley conceded that he considered Mr. Saporito to be "an irritant." T.
1864 (Harley).
It was not just a perception that Mr. Harley was trying to get Mr. Saporito fired after he reported safety concerns in May of 1988. Mr. Harley did request FPL management to fire Mr.
Saporito in or about late May or early June of 1988.
At the hearing, John Odom, FPL vice president, confirmed that in early June, 1988, at the urging of Mr. Harley's manager, Mr. Kappes, the FPL Industrial Relations ("IR") department reviewed Mr. Saporito's personnel record to determine whether he could be discharged. T. 1513-14 (Odom). Notably, the IR l
department concluded in June of 1988 that there was insufficient reason to terminate Mr. Saporito's employment. Id.
Mr. Odom's testimony on this issue corroborates that Mr.
Harley was out to get Mr. Saporito fired shortly following complainant's protected activity in May, 1988. It also supports that the retaliatory actions taken against Mr. Saporito in May 5
and June, 1988, had a " chilling effect" on complainant's co-workers who correctly believed that Mr. Harley was trying to get i Mr. Saporito fired.
}
In an even more disturbing incident following complainant's May, 1988, protected activity, Mr. Harley gave Mr. Saporito a 1
hazardous job assignment that required Mr. Saporito to enter the containment vessel of the nuclear plant (a high radiation area)
- with protective gear and a respirator. Due to high temperatures of approximately 113 degrees fahrenheit, and a lack of air in the !
respirator, Mr. Saporito became fatigued and, consequently, went i
home sick.
After complainant went home sick from' extreme heat exposure, l
Harley boasted to other workers about causing complainant's illness, by stating, "I got him. I got him, I sent him home t
- sick." T. 2159 (Caponi). Notably, Mr. Harley admitted that 3
right after complainant became ill he commented that "Maybe he j fcomolainanti should have died." T. 1863 (Harley) (emphasis
- added). In other words, Mr. Harley wished Mr. Saporito had died 3 when he experienced health problems in the containment vessel.
- Additionally, all of the discrimination alleged by
- complainant in his letters to the NRC and DOL in the fall of j 1988, which themselves constituted protected activity, occurred l after complainant engaged in protected activity.F one 4
i f F on September 29, 1988 complainant sent a letter to the NRC j documenting his safety concerns and alleging that he was being J
(continued...)
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1 harassment incideot involved threatening behavior by Mr. Koran after complairant engegee in protected activity. In another incident, FPL's employee training radiological instructor, Mr.
Boger, shouted obscenities at complainant after he asked Mr.
Boger questions about topics covered in questions on a safety training exam taken by complainant. T. 1651-52 (Boger) . The Boger incident, in particular, establishes a prima facie case because complainant's questions to Mr. Boger were protected activity. Nonetheless, the ALJ ignored the evidence of timing and found that complainant did not establish discriminatory motive concerning these incidents. RD&O at 16-17.F Significantly, the adverse action complainant received in November and December, 1988, including his termination on December 21, 1988, occurred right after he engaged in additional protected activity. Complainant was in contact with the NRC between September and December of 1988, and he filed complaints under the ERA with the DOL in October and November of 1988. FPL learned these facts, which were common knowledge at Turkey Point, directly from the NRC during these months.
s F(... continued) l harassed for reporting safety concerns. By letters dated October 14, 1988, October 31, 1988 and November 8, 1988, Mr. Saporito filed complaints with the U.S. Department of Labor Wage and Hour Division pursuant to section 210 of the ERA, alleging retaliation.
F Although the ALJ found Mr. Koran's and Mr. Boger's conduct to be " outrageous" the ALJ concluded there was no violation of the ERA. The primary reason cited by the ALJ was that complainant was a questioning employee.
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} Mr. odom's questioning of complainant on November 23, 1988; j FPL's placing of complainant on restricted status; demeaning job i assignments (T. 812-13 (Saporito); T. 1760 (Harley)); and Mr.
l odom's attempted interrogation of November 30, 1988; relat J.
directly to complainant's protected activity and shortly followed complainant's contacts with the NRC as well as his filing of ERA complaints with the DOL. In addition, FPL's order to see a i
j company doctor on December 16, 1988 and the subsequent discharge
{ of December 21, 1988 each closely followed complainant's 4
i protected activity.F 1
i Because the evidence of timing is so overwhelming, the ALJ's
- conclusion that complainant did not establish a prima facie case i
l must be reversed as a matter of law.
j II. RESPONDENT FAILED TO MEET ITS BURDEN OF PRMF.
4 Unquestionably, this case presents quections of dual motive.
Respondent claimed it fired complainant for three reasons: (1) for refusing to divulge his safety concerns to Mr. Odom on November 23, 1988; (2) refusing to meet with Odom on November 30th; and (3) refusing to submit to a physical exam by company 7/ Taken together, all of the harassments incidents and adverse action that occurred between May and December, 1988, satisfy a prima facie case of " hostile work environment. " ERR, Mitchell v. APS/ANPP, Case No. 91-ERA-9, slip op of AIJ, at 36-3'7 (July 2, 1992). The elements of a " hostile work environment" claim are: (1) evidence of protected activity; (2) unwelcome harassment; (3) the harassment resulted from having engaged in protected activity; (4) the harassment effected a term, condition or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt, effective remedial action. Id.
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doctor. Sam, RD&O at 18. At least two of the three reasons proffered by respondent are inextricably intertwined with complainant's protected activity. Therefore, the AL7 erred as a matter of law by failing to find FPL's reasons pretextual or, in the alternative, to conduct a dual motive analysis. ;
I In a pretext case the employer's asserted legitimate reason i for discipline or discharge is considered a " sham in that the i purported rule or circumstance advance by the employer did not exist, or was not, in fact, relied upon." Wricht Line, 251 N.L.R.B. 1083 (1980), aff'd., 662 F.2d 899 (1st Cir. 1981), cert den., 455 U.S. 989 (1982). If the employer's legitimate reasons are pretextual there is no need for complainant to prove disparate treatment or to undergo a dual motive analysis. E33, DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983); ,
Francis v. Bocan, Inc. Case No. 86-ERA-8, slip op, of SOL, at 5 n.1 (April 1, 1988).
In a dual motive case, once complainant proves a prima facie ;
case the burden shifts to respondent to demonstrate by a preponderance of evidence that it would have taken the same adverse action in the absence of protected activity. Mackowiak, 735 F.2d at 1163-64. Notably, the employer bears the risk if !
"the influence of legal and illegal motives cannot be separated."
Id. The employer may not satisfy its burden by simply relying on
" general allegations by management witnesses" that the company's action was nondiscriminatory. cram v. Pullman-Hiocins Co., No.
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- 84-ERA-17, slip op. of ALJ at 10 (July 24, 1984), adopted in part by SOL (Jan. 14, 1985).F It is incumbent upon the employer to produce " specific examples" or corroborating documents to meet 1
i its burden of proof. Egg, gig, Priest, suora. , slip op. of SOL at 12-13.
A. FPL's Interrogations of Complainant About Eis Protected Activity Were Illegal And FPL Did Not Prove Complainant
- Was Insubordinate.
It is uncontested that on two occasions complainant refused
, to tell Mr. Odom, an FPL vice president, safety concerns that everyone involved knew had already been reported by complainant to the NRC. However, as a matter of law, an employee's refusal l
i to tell an employer about safety concerns communicated to the NRC t
cannot be considered insubordination.
The ALJ considered complainant's conduct to be " insolent",
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" contemptuous" and " insubordinate" for refusing to be l interrogated about his safety concerns by an FPL vice president
! and for allegedly refusing to be examined by a company doctor l after he returned to work from sick leave. RD&O at 18-20. The e
l ALJ's conclusion violates precedent of the Secre'.ary which states I that:
employees engaged in statutorily-protected activity may not be disciplined for insubordination so long as the
" activity (claimed to be insubordinate) is lawful and i
l F Most of the ALJ's supposed credibility findings are merely i statements that the ALJ believed respondent's witnesses' general denials that their conduct was not motivated by complainant's i protected activities. RD&O at 17-19. Such general denials are not
. sufficient to satisfy respondent's burden of proof, s
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the character of the conduct is not indefensible in its context." The right to engage in statutorily-protected l activity permits some leeway for impulsive bahavior, which is balanced against the employer's right to ',
maintain order and respect in its business by correcting insubordinate acts. A key inquiry is whether the employee has upset the balance that must be ,
maintained between protected activity and shop !
discipline. The issue of whether an employee's actions l are indefensible under the circumstancer turns on the distinctive facts of the case.
Kenneway v. Matlack. Inc., Case No. 88-STA-20, slip op, of SOL, ,
i at 6-7 (June 15, 1989).
i Notably, this is not a case where the complainant shouted obscenities at management, openly defied work orders or otherwise actively disrupted the work place.F Rather, complainant simply refused to be interrogated about his safety concerns. l 1
In Dunham v. Brock, the court specifically cautioned that
" foul language" and " mere resistance to change" in response to ;
improperly motivated employer conduct would not be enough to ,
justify discipline. Dunham, 794 F.2d 1037, 1041 (5th Cir. 1986).
Here, the complainant's conduct does not even compare to the r
complainant's conduct in Dunham. ,
In this case, the ALJ failed to properly strike a balance between the need to encourage employee disclosures to the NRC' 1/ While FPL management was trying to "get rid" of complainant after May, 1988, by contrast, complainant's immediate supervisor had a positive impression of complainant's work performance and protected activities. Steven Greg Verhoeven testified that complainant was " safety conscious", his safety concerns were " legitimate" and that he was correct "90 per cent" of the time. T. 1371 (Verhoeven). Although complainant raised -
numerous safety concerns his immediate supervisor did not consider them to be disruptive. T. 1376-77 (Verhoeven).
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without restrictions imposed by employers and the business need l to correct insubordinate acts. The ALJ ignored the statutory and
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t regulatory scheme enacted by Congress and the NRC which protects the public from the hazards of nuclear contamination and expressly protects employees from retaliation.
First, the NRC has enacted regulations to ensure that licensees cannot interfere with communications between licensee l
l employees, like complainant, and NRC personnel. 333, L L , 10 i
C.F.R. Part 19. Specifically, the NRC has expressly provided l that employees and NRC inspectors may communicate privately without interference from licensee employers as follows:
l (a) Commission inspectors may consult orivately with workers concerning matters of occupational radiation l protection and other matters related to applicable l provisions of Commission regulations and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection.
(b) During the course of an inspection any-worker may brina orivately to the attention of the insoectors, either orally or in writing, any past or present condition which he has reason to believe may have L contributed to or caused any violation of the act, the
- regulations in this chapter, or license condition....
I 10 C.F.R. I 19.15, " Consultation with workers during inspections" I (emphasis added). j Likewise, NRC Form 3 informs employees that they may contact the NRC directly without first reporting safety concerns to their employers. RX 117. See also, 10 C.F.R. 5 19.12(c).
More importantly, the NRC has recognized that employees have
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a right to communicate directly with the NRC without informing ;
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their employer about safety concerns.EV The NRC has expressly f defined " protected activities" under the ERA and NRC regulations to include, but are not limited to:
(i) Providing the Connicsion information about possible violations of requirements imposed under [the ERA or the Atomic Energy Act);
(ii) Requesting the Commission to institute action against his or her employer for the administration or enforcement of these requirements; (iii) Testifying in any Commission proceeding.
10 C.F.R. 5 50.7(a).
In response to public comments on the NRC's proposed rule ;
prohibiting restrictive conditions in settlement agreements, the NRC commented as follows:
... in those cases where employees do not feel they can talk about a safety problem with their management, they must be free of any restriction which would prevent their raising the issue with the NRC.
I 55 Fed. Reg. 10397, 10402, " Preserving the Free Flow of Information to the Commission" (March 21, 1990) (emphasis added).
Second, Section 210 of the ERA itself is an expression of ,
Congressional intent to protect employees who, like Mr. Saporito, commenced and participated in NRC proceedings, from harassment or EV If the Secretary adopts FPL's position that employees should be " required to disclose ... nuclear safety concerns to the licensee" (agg, Resp. Reply Br. at 16), the DOL will directly j contradict NRC policies that expressly recognize the right of l employees to bypass management and report their concerns to the J NRC. Requiring employees to report safety concerns to their '
employers would frustrate the purpose of Section 210 that i encourages the reporting of safety concerns, and would be as !
illogical as requiring employees to report concerns to the l government before protection is extended under the ERA.
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f discrimination. Notably, the Secretary has broadly construed the j
scope of protected activity to protect employees who bypass their I
- employers and only report safety concerns to the government.1V 4
In one case arising under the clean Air Act's employee protection provision, the Secretary held:
4 Employees who have the courtesy to take their concerns first to their employers, [ citation omitted] to allow 4
the employer a chance to correct ... violations without the need for governmental intervention, have as much i
' need for protection as do aanlovaes who first no to the government with their concerns.
Poulos v. Amhassador Pus 1 Oil Co., Inc., Case No. 86-CAA-1, slip j op. of SOL, at 11 (April 27, 1987) (emphasis added).
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! Thus, the Secretary has interpreted the environmental i
t whistleblower protection acts to equally protect employees who go j to the government first and those who only report concerns to
! their employers. Id. However, there is no requirement that the t
employee must report their concerns to employers. Indeed, I
Congress recognized that the "best source of information about what a company is actually doing is often its own employees." H.
Rep.95-294, 95th Cong. 1st Sess. 325, reorinted in 1977 U.S.
1U To ensure the free flow of information between employees and the government the scope of whistleblower protection under statutes like the ERA has been interpreted broadly "in order to prevent" the government's " channels of information from being dried up by employer intimidation..." NLRB v. Scrivener, 92 S.Ct. 798, 801 (1972). Notably, in Scrivener, an employer questioned employees who met with and gave statements to a NLRB field examiner. Holding that the es)loyer's subsequent firing of employees who gave statements to the NLRB was illegal, the Supreme
- Court stated, employees must have " complete freedom" to contact the government and engage in other forms of protected activities. Id.
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Code Cong. & Ad. News 1404. If, as respondent suggests, f employees were required to repod: their safety concerns to employers then some employees may choose to never report safety violations out of fear of 7;etaliation.
Third, the interrogation of an employee about safety ;
concerns he or she has communicated to the NRC constitutes discrimination under Section 210 of the ERA. Egg, Dartev v. Zack Comoany of Chicano, Case No. 82-ERA-2, slip op. of SOL at 9-10 I (April 25, 1983). In Dartey, after the employer found out that the complainant had reported safety concerns to the NRC the ,
employee was questioned by a company vice president and the ;
company attorney. Id. The Secretary held that the interrogation l l
of the employee about safety concerns was a form of illegal discrimination prohibited by the ERA. Id. ;
FPL and the ALJ attempted to skirt the public policy issues implicated by FPL's interrogation of complainant about his protected activity. RD&O at 19; Resp. Reply Br. at 16. While it :
is true that FPL, as NRC licensee, is required to obey federal laws regulating nuclear power plants, the assertion that FPL can ;
interrogate employees because the NRC "is not responsible for the ,
safe operation of Turkey Point" (Resp. Reply Br. at 16), strains all reasonable interpretation of the federal laws regulating nuclear power. Also see, T. 1438J-1438K (Odom). Indeed, even FPL's training instructor, who was hostile to complainant, 15
testified that employees always have the "right to talk directly to the NRC, if they choose." T. 1658-59 (Boger).
Moreover, the ALJ ignored that complainant was completely responsible in trusting the NRC to take care of his concerns. It is uncontested that FPL already knew that FPL was aware that complainant had contacted the NRC before Mr. Odom interrogated complainant about his safety concerns. RDEO at 11; T. 1563-65 (Odom). In fact, Mr. Odom tried to obtain information about complainant's concerns from the NRC before he interrogated complainant. Id. However, the NRC exercised its regulatory discretion to refuse Mr. Odom's requests. The NRC, not the DOL, has the expertise to determine whether NRC licensees should be privy to safety concerns.1U It is uncontested that the NRC eventually provided FPL with information about some of complainant's safety concerns in January, 1989. That FPL maintained it needea the information sooner is not a determination that can be made by the DOL. Rather, the DOL must defer to the NRC's judgment that its providing the information in January, 1989, was sufficient.
Notably, it is unrefuted that the NRC told complainant not to tell FPL certain information. The testimony of complainant and his wife about the requests of Oscar DeMiranda, Allegations Coordinator in NRC Region II, that complainant not tell FPL SV In this case, the NRC informed FPL in November,1988, that the concerns raised by complainant were not an immediate threat to the public health and safety. T. 1563-65 (Odom).
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information related to conolainant's concerns about FPL's falsification of documents went unrefuted by FPL. T. 702-04 (R.
Saporito) ; T. 888-94, 1189-92 (Saporito); T. 171-72 (Boyle). In addition, Loretha Mathis testified she heard Mr. DeMiranda during a conference call tell Mr. Saporito he was under no legal requirement to inform FPL of his safety concerns. T. 566-68 (Mathis).MV The proper inference that is raised by the record is that FPL sought to obtain information related to the NRC's l 1
investigation of potential criminal conduct and intentional 1 violations of the Atomic Energy Act by FPL management. 333, 10 C.F.R. 5 50.5, " Deliberate Misconduct."
Moreover, FPL's labeling of complainant as insubordinate because he refused to tell FPL about safety concerns he communicated to the NRC interferes with the free flow of information between employees and the NRC. That " chilling ;
effect" is even more serious in this case because a NRC representative told complainant not to tell FPL information i i
related to his safety concerns. Consequently, adopting the RD&O would frustrate'the long standing public policy encouraging the t EU Although the NRC denied complainant's requests for Mr. ;
DeMiranda's testimony, FPL did not even attempt to call Mr. i DeMiranda or any other NRC representative as a witness. Thus, it I was uncontested that the NRC asked conclainant not to reveal ,
information related to his safety concerns to FPL. The Secretary I must accept the record concerning Mr. DeMiranda's communications. l However, if complainant did not sufficiently refute FPL's claims !
of insubordination, then the case must be remanded in order that Mr. DeMiranda's testimony is obtained and included in the record. ,
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free flow of information enunciated by Congress, the NRC, the DOL and the courts under the ERA and would create a " chilling effect"
] upon employees.19 Assuming, arau ndo, that FPL had a legitimate reason to interrogate complainant about his protected activity, FPL failed to prove that notwithstanding complainant's protected activities it would have disciplined complainant for refusing to tell FPL 4 the safety concerns he had reported to the NRC. As a threshold matter, if complainant had not engaged in protected activity he would not have been labeled insubordinate because the purpose of ,
Mr. Odom's interrogation was to obtain the information which
! complainant had provided to the NRC.U/
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Respondent was also unable to prove that other employees who .
- were considered insubordinate for refusing to obey management's j direct orders were terminated from employment. In fact, the l
) El Given the strong public policies against employer interference with an employee's protected activity, the ALJ 's supposed findings on whether complainant was justified in refusing interrogation about his protected activity by Mr. Odom are irrelevant. Egg, RDO at 18-20. Specifically, the Secretary need not decide whether complainant was too sick to talk to Mr. Odom on November 30, 1988 since the attempted interrogation was not legitimate in light of an employee's right to freely communicate with the NRC.
EV FPL also restricted complainant's access on November 23, 1988, immediately after complainant refused to be interrogated by Mr. Odom. RX 104. While FPL attempts to justify restricting complainant's access on alleged fears of " sabotage" FPL's Report of Discipline states that the access was restricted solely because complainant refused " supervisory direction," i.e. Mr. Odom's November 23, 1988 interrogation. RX 104.
18
record shows that other FPL employees who refused more directives than Mr. Saporito were treated less harshly. RX 111; T. 2058-63 (Kappes).
Additionally, FPL violated its positive discipline policies, which provide for verbal warnings, reprimands, and suspensions prior to termination. T. 111 (Boyle) ; CX 102; RX 52.
Thus, FPL failed to meet its burden under the dual motive l test regarding the first two proffered reasons for terminating complainant's employment.
B. FPL's Interrogation Of Complainant About His Protected Activity Is Illocal Pursuant to NLRA Case Authority.
The NLRB and the courts have usually found employer ,
I interrogation of employees concerning their contacts with the l i
NLRB to be coercive and illegal. Under the NLRA, questioning 1
employees about their protected activities is unlawful if "the interrogation tends to coerce employees in the exercise of their (protected] rights." NLRB v. Brookwood Furniture, Div. of U.S.
Indus., 701 F.2d 452, 460 (5th Cir. 1983). See also, NLRB v.
McCullouch Envtl. Servs., 5 F.3d 923, 928 (5th Cir. 1993).
Notably, if interrogation is coercive it makes no difference ,
1 under the NLRA that employees are not, in fact, coerced. Id.
The courts have considered the following eight factors in j determining whether an interrogation tends to be coercive: l (1) the hirtory of the employer's attitude toward its employees; (2) the nature of the information sought; (3) the rank of the questioner in the employer's hierarchy; (4) the place and manner of the conversation; (5) the truthfulness of the employee's 19
1 I
reply;-(6) whether the employer had a valid purpose for j obtaining the information sought about the union; (7) l- whether a valid purpose, if existent, was communicated to the employee; and (8) whether the employer assured j the employee that no reprisals should be forthcoming should he or she support the union.
t f McCu11 ouch Enytl. Servs., 5 F.3d at 928.MV Here, seven of the above-stated factors overwhelmingly' weigh in complainant's favor. First, it was uncontested that FPL j management expressed strong feelings against complainant after l
l May, 1988, when he engaged in protected activity, while, at the same time, complainant's direct supervisor felt there was nothing wrong with complainant's performance. Other employees also had the impression that FPL was out to "get rid" of complainant after he blew the whistle. T. 2160 (Colston) ; T. 566 (Mathis).
Second, FPL's attorneys, Stier, Anderson & Malone (" SAM"),
questioned complainant at length about his protected activitiesF/ and Mr. Odom's interrogations attempted to obtain the substance of what complainant had told the NRC. Third, Mr.
Odom was the highest ranking FPL management official at Turkey Point and the SAM attorneys reported directly to the highest i
levels of FPL management. Fourth, complainant was summoned to BV Notably, even if all of the above factors weigh in favor of the employer coercive interrogation may still be found to exist. Id.
F/ It should be noted that the SAM attorneys were hired by !
FPL as " investigators", their interrogation of complainant was not subject to legal process and questioning took place outside of any adjudicative process. Therefore, complainant was under no legal -
obligation to meet with the SAM' attorneys or to answer their questions.
20 m:, ,,, . , , , , . . _ - . - , -- - -
.. .-,_-......-----.--.. ---~. - ----- ---
lengthy formal meetings with Mr. odom and the SAM attorneys where j his statements were transcribed by a court reporter. Fifth, i
complainant refused to be interrogated by Mr. Odom and asserted his right to tell the NRC his concerns. Sixth, although FPL
]
! claimed a valid purpose to obtain complainant's safety concerns, complainant had a legal'right to freely communicate with the NRC i and FPL had alternative means by which to obtain the information .
i from the NRC. Seventh, FPL did communicate its reason for j wanting to obtain the information. Eighth, FPL never assured i complainant that no reprisals would be forthcoming and two of l
FPL's proffered reasons for complainant's termination were that l he refused to discuss his protected activity with Mr. Odom.
Wh in interrogation of employees about protected activities l
l is accompanied by subsequent firings a finding that the employees
! have been coerced is justified. NLRB v. M& B Headwear Co., 349 j F.2d 170, 172 (4th Cir. 1965). Here, the fact of complainant's 4 ,
- termination for refusing interrogation is even stronger than the typical NLRA cases finding coercive interrogation.
Indeed, whenever a high executive interrogates production <
- line employees about their protected activities in an atmosphere 1
of " unnatural formality" there is an " inevitable implication of coercion." Id. See also, Brookwood Furniture, 701 F.2d at 462. ;
Here, the record reveals that on November 23, 1988 complainant was questioned "at a formal meeting" about his safety concerns by a vice president in the presence of a court reporter. RD&o at l
1 21 l I
i l
1 l
1
- 18. That FPL went to the trouble of attempting 'o transcribe complainant's response to questions about his protected activities reflects coercion.
Additionally, an employer commits an unfair labor practice when employees are questioned by employer's counsel about their protected activities. NLRB v. A=hox. Inc., 357 T.2d 138, 141 (5th Cir. 1966). It is also illegal for an employer's counsel to fail to inform employees that reprisals could not be taken against employee for refusing to cooperate with an employer's interview about protected activities. Standard-Coosa-Thatcher Carnet Yarn Div. v. NLRB,691 F. 2a 1133, 1140-41 (4th Cir. 1982).
In this case, complainant was never informed by the SAM attorneys or FPL management or Mr. Odom that no reprisals would be taken against him if he refused to cooperate. Indeed, FPL labeled complainant insubordinate for refusing to cooperate with Mr. Odom's interrogations. RX 104. Because FPL never assured complainant that no reprisals would take place, the circumstances of FPL's interrogations of complainant require that the RD&O be reversed, that complainant be reinstated to his former position and that complainant be awarded all available relief under the ERA.
Finally, the fact that complainant refused to answer Mr.
Odom's questions does not reflect insubordination, but rather it is evidence that complainant feared retaliation. Egg, McCullough 5
Enytl. Servs., 5 F.3d at 929 (an employee's refusal to answer a 22
supervisor's questions about protected activities " objectively indicates possible fear of retaliation."). Accord., Brookwood Furniture, supra.
In this case, the RD&O must be reversed in order to assure employees that they have " complete freedom" to communicate with the NRC about safety concerns and violations of the law.
C. FPL's Request That Complainant Be Examined By A Company Doctor Was Not Justified And FPL Did Not Prove That Complainant Was Insubordinate.
With respect to FPL's third purported legitimate reason to justify complainant's termination, i.e. his alleged refusal to be examined by the company doctor, the record does not support that )
complainant would ordinarily have been fired for this alleged offense even if it were true.1U FPL did not show that its )
request for a company physical exam was legitimate and FPL failed to prove it would have fired complainant for allegedly refusing to be examined, but for his engaging in protected activity.
Mr. Kappes, an FPL management official, testified there were two supposed reasons for ordering complainant to see a company doctor on December 16, 1988. RD&O at 13. First, FPL wanted to i
see if complainant was really sick when he refused to be interrogated by Mr. Odom on the evening of November 30, 1988.
Id. This purported reason defies common sense. How could any SF As previously noted, complainant disputes that he
" refused" to be examined by the company doctor. Egg, Complainant's Post-Hearing Brief at 47; T. 942-43 (Saporito) ; T.
610-12, 627-28, 645 (Caponi).
23
medical doctor determine whether complainant was suffering from gastritis two weeks after the fact? Significantly, even 6.he i
- company doctor contradicted FPL's first asserted purpose for the exam. T. 833 (Dolsey). Because FPL's first stated purpose for l i the company physical was pretextual it is not subject to the dual
! motive analysis. Egg, DeFord, 700 F.2d at 286.
Second, FPL claimed for the first time at the hearing that the physical was required to determine if complainant was fit for duty. RD&O at 13. However, FPL did not provide complainant with notice that the purpose of the company physical was Fitnese for 4
Duty related, or provide him with a " Fitness for Duty Examination Authorization and Consent Form," as required by company policy.
] Compare, CX 119, " Fitness for Duty Program, Nuclear Energy,"
Section II.2.C. "First Time Incident," with RX 104, at 2-3. In 1
addition, FPL violated its procedures which afford employees the option of either being examined by a company doctor or a one day suspension without pay. Id.
Mr. Boyle, a representative of complainant's union, had conversations with Mr. Kappes during the week of December 12-16, 1988, concerning the company's request for a physical exam. At l no time did the company state to either the union or complainant that the purpose of the requested physical was to determine
{ whether complainant was fit for duty. T. 174-77, 181 (Boyle); T.
934-35 (Saporito). In fact, Mr. Boyle specifically asked FPL if the physical was Fitness for Duty related and the company refused 24
to provide him with an affirmative response. T. 181 (Boyle).
Mr. Boyle further testified that had the company simply said the exam was for Fitness for Duty purposes there would have been no question in anyone's mind that complainant would have been required to submit to a company physical, and that it was customary for union employees to voluntarily submit to fitness for duty physicals. T. 181-82 (Boyle).
Notably, Mr. Boyle's testimony is supported by the only contemporaneous documentary evidence submitted on the record:
FPL's report of discipline written to support the December 21, 1988 discharge of complainant which states only that complainant refused a company medical exam. RX 104. That report's conspicuous silence on the issue of Fitness for Duty supports that FPL did not inform complainant that the purpose of the physical was Fitness for Duty related.
Also, the evidence demonstrates that other employees who had medical conditions similar to complainant's were not examined by the FPL company doctor after returning to work from sick leave.
T. 851 (Dolsey). Significantly, Mr. Caponi testified that he had a more serious medical condition than complainant in November, 1988, approximately one month before FPL ordered complainant to see a company doctor. T. 503-04 (Caponi). Mr. Caponi suffered from stress related heart problems and gastritis and he provided FPL with a doctor's note describing his medical condition when he returned to work from sick leave on November 1, 1988. Id.
25 t
4 d
4 Unlike complainant, however, Mr. Caponi was not requested to see i
j a company doctor when he returned to work. Id.; T. 851 (Dolsey). <
Mr. Caponi's testimony fully refuted FPL's legitimate
- reasons for ordering complainant to see a company doctor in 4
December, 1988. Therefore, FPL's reasons for the company l physical exam should be considered pretextual. DeFord, agggg.
i
! In addition, complainant was completely reasonable in his l
- request for information about his medical condition. He provided FPL and its doctor with access to his personal treating
$ physician. RX 116 at 14-15 (Dr. Klapper). Complainant was also l
l subjected to a random drug test upon his return to work in I ;
December, 1988, the results of which were negative, i.e. there
, were no traces of any drugs that could arguably interfere with !
j complainant's fitness for duty. T. 183-86 (Boyle).
l FPL never proved why it was so concerned about complainant's !
fitness for duty in light of: (1) FPL's history of permitting employees with similar conditions to work without requiring a physical; (2) the company doctor's consultation with complainant's personal physician; and (3) the negative results of the random drug test administered to complainant after he returned to work in December, 1988. Indeed, FPL never warned ,
complainant that if he refused to take a physical he would either be in violation of fitness for duty rules or be subject to discharge. The manner of FPL's discharge of complainant violated the company's contract with the union (CX 3) and deviated from )
I i
26 )
i i
- i i
t 1
the company's rules governing medical exams as well as its normal l
t practice of positive discipline. I 4
Finally, if the Secretary finds that complainant improperly l l refused to be examined by the company doctor, complainant contends that his conduct was provoked by FPL. 333, Kenneway, supra., slip op. of SOL, at 2; NLRB v. Florida Medical Center, 576 F.2d 966 (5th Cir. 1978). It was respondent's prolonged l harassment of complainant between May and December, 1988, after i
he raised safety concerns, as well as FPL's hiring of attorneys to interrogate him about his allegations of discrimination and -
FPL's illegal interrogations which caused complainant's symptoms of stress and gastritis on November 30, 1988. After more than six months of retaliation and harassment, including direct orders ,
from an FPL vice president to reveal the substance of his safety i I
concerns, complainant had every right to be suspicious of FPL's request that he see a company doctor. In fact, complainant was l justifiably. concerned that he was being set up for discharge for medical reasons when FPL ordered him to see the company doctor on December 16, 1988, because Mr. Kappes had told complainant just two days earlier that he had no problem with complainant resuming work. T. 934-35 (Saporito). ]
l Thus, FPL failed to meet its burden under the dual motive i analysis regarding the third reason to support its termination of complainant.
27
t III. FPL's DISPARATE TREATMENT OF COMPLAIMENT, NEICE WAS COMPLETELY IGNORED BY TIE ALJ, REQUIRES REVEREAL OF TEE RD&O.
In summary, this case must be reversed because complainant was subjected to disparate treatment, including the i
following:EU
- 1. FPL deviated from its normal disciplinary 1
procedures when it terminated complainant. In other words, i
complainant received the harshest discipline when compnny policies called for lesser penalties. The union contract l provided employees with the right to notice and opportunity to grieve discipline before it became effective. CX 3. Here, FPL l
did not afford complainant any rights to contest or challenge his l termination the grievance procedures pursuant to the union
, contract. Additionally, FPL's progressive discipline policies also provided for lesser penalties such as suspensions and I reprimands prior to discharge. !
- 2. The Fitness for Duty policy provided employees an )
option of a one day suspension without pay for refusing a l physical exam. CX 119, " Fitness for Duty Program, Nuclear l Energy,"Section II.2.C. "First Time Incident." By contrast, complainant was not even told the requested physical was fitness for duty related and he was terminated without being provided the option of a one day suspension. RX 104.
II/ The AIJ ignored the evidence of disparate treatment presented in this case, which was addressed at length by complainant below. Egg, Complainant's Post-Hearing Brief at 24-49.
28 ;
i
J f
- 3. As previously noted, other employees were not required to submit to a physical examination after notifying the
! company they suffered from stress related gastritis or heart problems and that they were on medication. T. 503-04 (Caponi).
- 4. FPL treated complainant more harshly than other employees accused of disobeying management orders. RX 111. Mr.
Kappes conceded that another employee who refused management's direct orders on numerous occasions (and more tiles than i complainant allegedly refused orders) was not fired. T. 2058-63.
Unlike complainant, this other employee was afforded a meeting with union stewards and management to discuss his repeated failures to comply with direct orders before discipline was imposed. Id. Significantly, this other employee was suspended and demoted rather than fired. Id.
- 5. FPL violated its " holdover" procedures when it order complainant to holdover for a meeting with Mr. Odom after complainant's quitting time on November 23, 1988. CX 3, at p. 6, 54-60; CX 102, General Operating Procedure 100.6, at pp. 1-6.
There was no job continuity to require complainant's holdover and as a senior worker complainant had the right to refuse a holdover. Id. Moreover, other employees were not required to
" holdover" for meetings with management. T. 169 (Boyle). ;
- 6. It was company policy for discipline to be handled l at the lowest possible level of management. By contrast, complainant's immediate supervisor, Mr. Verhoeven, was not 29 l
l
permitted any role in the disciplinary actions taken against complainant between May and December, 1988. As Mr. Verhoeven testified, after the INPO incident it was "out of my hands." T.
1372 (Verhoeven). Notably, Mr. Verhoeven had no problem with complainant's performance. Id.
CONCLUSION For the foregoing reasons, the RD&O should be reversed and complainant should be afforded all relief available pursuant to Section 210 of the ERA.
Respectfully submitted, L 3 ---
David K.(Collapinto U Stephen M. Kohn l KOHN, KOHN & COLAPINTO, P.C. I 517 Florida Avenue, N.W. l Washington, D.C. 20001-1850 (202) 234-4663 Attorneys for Complainant 1
March 3, 1994 30
V CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Complainant's ;
Reply Brief was served by overnight mail, postage prepaid, on this ,
3rd day of March, 1994, upon:
James S. Brannick, Esq.
Paul C. Heidmann, Esq.
MULLER, MINTZ, et al.
Suite 3600 First Union Financial Center 200 South Biscayne Blvd.
Miami, FL 33131-2338
)
By: .' David 1(.. ColapinU 526\ cert
)
THOM AS J. SAPORITO, JR.
POST OFFICE BOA 7003 JUPfTER FL 33466 7803 VOCf..F AX e = 147.74S 2118 March 13, 1994 Executive Director for Operations U.S. Nuclear Regulatory Commission !
Washington, D.C. 20555 i
Re: Supplement to Petition Filed Under 10 C.F.R. 2.206 Against The Florida Power & Light Company
Dear Sir:
COMES NOW, Thomas J. Saporito, Jr., (hereinafter
" Petitioner") pursuant to 10 C.F.R. 2.206, and hereby files his i
Supplement to Petition Filed Under 10 C.F.R. 2.206 Against The !
Florida Power & Light Company dated March of 1994, requesting i
specific action by the U.S. Nuclear Regulatory Commission ("NRC")
within a reasonable time against the Florida !
Power & Light Company (hereinafter " Licensee") and operator of the Turkey Point and St. Lucie nuclear stations located in the State of Florida.
Specific Request:
A. Petitioner requests that the NRC construct and submit an amicus curiae brief to the U.S. Department of Labor (" DOL")
pursuant to 10 C.F.R. 50.9; 29 C.F.R. 18.10(d); 29 C.F.R.
18.12; and 10 C.F.R. 50.7 regarding issues of fact in DOL Case Nos. 89-ERA-7/17 (consolidated) concerning the Licensee's retaliatory conduct towards Petitioner during Petitioner's period of employment at the Licensee's Turkey Point nuclear station in 1988 as a direct or indirect result of Petitioner having engaged in " protected activity" under 10 C.F.R. 50.7 and the Energy Reorganization Act of 1974 as amended ("Act"), 42 U.S.C. 5851, Section 210/211.
$ !/Ojjl03lZ l h k
Executive Director for Operations U.S. Nuclear Regulatory Commission Supplement 2.206 Petition /FPL March 13, 1994 Page No. 2 B. Petitioner requests that the NRC institute a show cause proceeding pursuant to 10 C.F.R. 2.202 to modify, suspend, or revoke authorizing the Licensee's permissive operational licenses the operation of the Turkey Point station.
nuclear C. Petitioner requests that the NRC institute a show cause proceeding pursuant to 10 C.F.R. 2.202 and Order the Licensee to provide the Petitioner with a "make whole" remedy, including but not limited to, immediate reinstatement to his previous job as an instrument control technician at Turkey Point, back wages, front pay, interest on back wages and front pay, compensatory damages for pain and suffering, and a posting requirement to offset any
" chilling effect" Petitioner's discharge may have had on other Licensee employees at the Turkey Point and St. Lucie nuclear stations.
Basis and Justification:
- 1. In Case Nos. 89-ERA-7/17 (consolidated), the ALJ rendered a decision in June of 1989 concluding, in part, that Complainant's refusal to divulge his safety concerns to FPL's vice president, John Odom, was insubordinate conduct by complainant justifying termination.
FPL claimed it fired Petitioner for three reasons: (1) for refusing to divulge his safety concerns to Mr. Odom on November 23, 1988; (2) refusing to meet with Odom on November 30th (to divulge his safety concerns); and (3) refusing to submit to a physical exam by a company doctor.
- 2. The NRC is mandated by Congress to ensure that a non-hostile work the NRC.
environment exists at facilities licensed to operate by The NRC simply cannot tolerate a " hostile work environment" at the FPL Turkey Point nuclear station insofar as allowing licensee management to discipline employees for .
not divulging their safety concerns to the licensee. This situation is significant because discrimination (e.g.,
discipline) creates a " chilling effect" that discourages other licensee employees from raising safety issues. Such an environment cannot be
Executive Director for Operations U.S. Nuclear Regulatory Commission Supplement 2.206 Petition /FPL March 13, 1994 Page No. 3 tolerated if licensees and the NRC are to fulfill their responsibility to protect the public health and safety.
Thus, licensee management must avoid actions that discriminate against individuals for raising safety concerns, and must promptly and effectively remedy actions that constitute discrimination.
- 3. FPL's interrogations of Petitioner about his protected activity in 1988 were illegal conduct under the law and NRC regulations under Title 10 of the Code of Federal Regulations. The record in Case No. 89-ERA-7/17 (consolidated), demonstrates that the licensee doesn't contest that on two occasions Petitioner refused to tell Odom, an FPL vice president, safety concerns that everyone involved knew had already been reported by Petitioner to the NRC. (i.e. DeMiranda and Jenkins and other NRC officials).
As a matter of law and under NRC regulations, an employee's refusal to tell an employer about safety concerns !
communicated to the NRC cannot be considered !
insubordination.
- 4. Subsequent to the trial in Case No. 89-ERA-7/17 (consolidated), Petitioner discovered that at least (18) eighteen pages of testimony from the case transcripts in the DOL proceeding were missing from the official record of the DOL. Significantly, the 18 pages of missing transcripts contained testimony of FPL's vice president at Turkey Point, John Odom. Odom's testimony under oath in this case was extremely critical of the NRC. Odom testified that " ...the NRC is not technically capable to determine what a nuclear safety concern is..." that only he [Odom] could determine what constituted a nuclear safety concern. On this basis, FPL asserted to the DOL that Saporito's refusal to tell Odom his safety concerns was insubordination and warranted .
termination.
{
The testimony of Odom was immediately addressed to the NRC during the trial. Saporito contacted NRC SACRII, Oscar DeMiranda, and informed DeMiranda of Odom's comments about 3 the NRC's inability to determine what constitutes a nuclear j safety concern. Saporito requested that DeMiranda appear at '
trial to refute FPL's statements but DeMiranda stated that his superiors would not permit his participation at trial.
Executive Director for Operations U.S. Nuclear Regulatory Commission Supplement 2.206 Petition /FPL March 13, 1994 Page No. 4 The NRC failed to assist the DOL in this matter in spite of previous communications between the NRC (George Jenkins, Oscar DeMiranda, Regional Counsel, and others) informing Petitioner's counsel that Odom was told by the NRC, prior to his ordering Saporito to divulge his safety concerns to FPL, that no significant health and safety issues existed which would prevent the safe operation of the Turkey Point station. The NRC also told Odom that the NRC's Office of Investigations was actively investigating Saporito's allegations of alleged criminal conduct and that Odom and FPL were not privy to that eformation.
- 5. The NRC must challenge FPL's position by filing an amicus curia brief in this case holding that employees should not be required to disclose nuclear safety concerns to the licensee. The NRC cannot allow FPL's position to stand because the agency will contradict its own policies and regulations that expressly recognize the right of employees to bypass management and report their concerns to the NRC directly.
- 6. The interrogation of an employee about safety concerns he or she hos communicated to the NRC constitutes discrimination under Section 210 and (now Section 211) of the ERA. The NRC must not allow licensees' internal programs (e.g.,
employee concerns programs) to be a substitute of the employees' right to bypass management and report their safety concerns directly to the NRC.' In deed, cosanon sense would hold that the human nature of employees placed in this situation, (required to report safety concerns to the licensee), would cause employees to be dissuaded from raising safety concerns for fear of retaliation by the licensee.
Therefore, the NRC must provide licensee employees with a work environment that permits employees to bypass licensee management and report perceived safety concerns directly to the NRC. A case on point here is, Thomas J.
i
. l I
Executive Director for Operations U.S. Nuclear Regulatory Commission Supplement 2.206 Petition /FPL March 13, 1994 ~
Page No. 5 i
Saporito. Jr. v. Arizona Public service Company, et. al., Case No. 92-ERA-30. In this case the licensee admitted that its management retaliated against Saporito because he raised safety concerns directly to the licensee management. It is human nature that licensee management would characterize an employee as a
" troublemaker" and a "non-team player" for bypassing management and going directly to the NRC with perceived safety concerns especially, in light, of the fact that in Case No. 92-ERA-30, the employee first when to the licensee before going to the NRC.
WHEREFORE, premisec considered, the licensee cannot demonstrate to the NRC reasonable assurance that the Licensee did not illegally retaliate against Petitioner in terminating Petitioner's employment at Turkey Point in December of 1988, for Petitioner having engaged in " protected activity" or that a
" chilling effect" does not exist at the Turkey Point and/or the St. Lucie nuclear facilities. Accordingly, it is appropriate for the NRC to consider this petition under 10 C.F.R. 2.206 wherein the Petitioner has set forth the facts that constitute the basis for the request. See. Philadelphia Electric Company (Limerick Generating Station. Units 1 & 2), DD 85-11, 22 NRC 149, 154 (1985).
Executive Director for Operations U.S. Nuclear Regulatory Commission Supplement 2.206 Petition /FPL March 13, 1994 Page No. 6 Petitioner strenuously urges the NRC to assist the DOL process by submitting an amicus curiae brief to the SOL in case No. 89-ERA-7/17 (consolidate) holding that zicensee amployees have a right to bypass licensee management and report perceived safety concerns directly to the NRC.
Respectfully submitted, For the Environment,
^
- ,2 : -
- g Thomas J. S%org,Jr.f
- cc: Hon. Joseph I. Lieberman Chairman, subcommittee on Clean Air and Nuclear Regulation United States Senate Committee on Environment and Public Works Washington, D.C. 20510-6175 Hon. David Williams Inspector General U.S. Nuclear Regulatory Commission Office of the Inspector General Washington, D.C. 20500 Oscar DeMiranda, SACRII U.S. Nuclear Regulatory Commission 101 Marietta St., N.W., #2900 Atlanta, GA 30323
[ ,
i'
] Docket No.
! (10 C.F.R. $ 2.206)
Mr. Thomas J. Saporito, Jr.
! P.O. Box 7603 i Jupiter, Florida 33468 i
j
Dear Mr. Saporito:
l This letter is to acknowledge receipt of'your Petition filed with
, the executive Director for Operations (EDO). March 7, 1994, i
requesting that the Nuclear Regulatory Commission take action with regard to the Florida Power and Light company. Specifically, you request that the NRC: (1) submit an amicus curiae brief to the Department of Labor (DOL) regarding 89-ERA--7/17 concerning your claim that the licensee retaliated against you for engaging in protected activity during his employment at Turkey Point Nuclear Station in violation of 10 C.F.R. 50.7; (2) institute a show cause proceeding pursuant to 10 C.F.R. 2.202 to modify, suspend or revoke the licensee's licenses authorizing the operation of Turkey Point; '
and- (3) institute a show cause proceeding pursuant to 10 C.F.R. 2.202.and order the licensee to provide you with a "make whole" remedy, including but not limited to, immediate reinstatement to your previous position, back wages.and front pay with interest, compensatory damages for pain and suffering, and a posting requirement-to offset any " chilling effect" your discharge may have had upon other employees at the Turkey Point and St. Lucie Nuclear Stations. Your stated bases for your requests can be summarized as follows: (1) Although the NRC generally defers to the DOL process before taking action against a licensee, in this case the ALJ rendered a decision, enabling the NRC to take the action you request, particularly to offset any " chilling effect" which may have resulted from the licensee's action; (2) under the Memorandum of Understanding (MOU) with DOL, there are times NRC actions are warranted notwithstanding the ongoing DOL process because of the significance of the issues to public health _and safety; (3) the record in this case contains evidence which was ignored by the DOL Administrative Law Judge (ALJ), and the NRC should weigh the entire record in determining whether the licensee violated the Energy l Reorganization'Act (ERA) and 10 C.F.R. 50.7; (4) the AI.J erred in several respects as a matter of law in reaching his decision that your were not discriminated against; (5) the adverse action by the licensee occurred immediately after you were in contact with the NRC and filed complaints under the ERA with DOL; (6) the licensee's actions against you constitute a " hostile work environment" and the NRC is mandated by Congress to. ensure that a non-hostile work environment exists at NRC-licensed facilities; (7) the NRC has a duty to ensure that licensee employers maintain a work environment which encourages employees to raise safety issues, which is not the situation at Turkey Point because of the licensee's continuing retaliation against employees who do so; (8) the licensee illegally interrogated you about your protected activity; (9) if the NRC fails to act, it will contradict its own regulations that
l i
the NRC fails to act, it will contradict its own regulations that l
' recognize the right of employees to bypass management and report their concerns directly to the NRC; (10) the NRC has expressly defined " protected activities"; (11) the licensee's request that ;
you be examined by a company doctor was unjustified; (12) the i licensee's disparate treatment of you was illegal and must be i challenged by the NRC; and (13) the NRC is required to act by j virtue of its regulations at 10 C.F.R. 50.9 which provide that the l DOL process is an extension of NRC authority.
The NRC is also in receipt of your " Supplement to Petition Filed Under 10 C.F.R. 2.206 Against the Florida Power & Light Company" I dated March 13, 1994. The NRC will consider any additional information provided by this supplement in responding to your :
Petition.
l Your Petition has been referred to me pursuant to 10 C.F.R. S 2.206 l of the Commission's regulations. As provided by Section 2.206, action will be taken on your request within a reasonable time. I l have enclosed for your information a copy of the notice that is being filed with the office of the Federal Register for publication. <
Sincerely, 1
James Lieberman, Director Office of Enforcement
Enclosure:
As stated cc: Florida Power and Light Company
U.S. NUCLEAR REGULATORY COMMISSION Docket No.
FLORIDA POWER AND LIGHT COMPANY (Turkey Point Nuclear Station)
(St. Lucie Nuclear Station)
RECEIPT OF PETITION FOR DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 Notice is hereby given that by Petition dated March 7, 1994, Thomas J. Saporito,.Jr. (Petitioner) has requested that the NRC:
take action with regard to the Florida Power and Light Company.
Specifically, the Petitioner requests that the NRC: (1) submit an amicus curiae brief to the Department of Labor (DOL) regarding 89-ERA--7/17 concerning the Petitioner's claim that the licensee retaliated against him for engaging in protected activity during his. employment at Turkey Point Nuclear Station in violation of 10 C.F.R. 50.7; (2) institute a show cause proceeding pursuant to 10 C.F.R. 2.202 to modify, suspend or revoke the licensee's licenses authorizing the operation of Turkey Point; and (3) institute a show cause proceeding pursuant to 10 C.F.R. 2.202 and order the licensee to provide the Petitioner with a "make whole" remedy, including but not limited to, immediate reinstatement to his previous position, back wages and front pay with interest, compensatory damages for pain and suffering, and a posting requirement to offset any
" chilling effect" Petitioner's discharge may have had upon other employees at the Turkey Point and St. Lucie Nuclear Stations. The
Petitioner's stated bases for his requests can be summarized as follows: (1) Although the NRC generally defers to the DOL process '
before taking action against a licensee, in this case the ALJ rendered a decision, enabling the NRC to take the action Petitioner requests, particularly to offset any " chilling effect" which may have resulted from the licensee's action; (2) under the Memorandum of Understanding (MOU) with DOL, there are times NRC actions are warranted notwithstanding the ongoing DOL process because of the significance of the issues to public health and safety; (3) the record in this case contains evidence which was ignored by the DOL Administrative Law Judge (ALJ), and the NRC should weigh the entire record in determining whether the licensee violated the Energy Reorganization Act (ERA) and 10 C.F.R. 50.7; (4) the ALJ erred in several respects as a matter of law in reaching his decision that the Petitioner was not discriminated against; (5) the adverse action by the licensee occurred immediately after the Petitioner was in contact with the NRC and filed complaints under the ERA with DOL; (6) the licensee's actions against the Petitioner constitute a " hostile work environment" and the NRC is mandated by Congress to ensure that a non-hostile work environment exists at NRC-licensed facilities; (7) the NRC has a duty to ensure that licensee employers maintain a work environment which encourages employees to raise safety issues, which is not the situation at Turkey Point because of the licensee's continuing retaliation against employees who do so; (8) the licensee illegally interrogated Petitioner about his protected activity; (9) if the NRC fails to act, it will
4 3 contradict its own regulations that recognize the right of employees to bypass management and report their concerns directly to the NRC; (10) the NRC has expressly defined " protected !
j activities"; (11) the licensee's request that Petitioner be l examined by a company doctor was unjustified; (12) the licensee's disparate treatment of Petitioner was illegal and must be [
challenged by the NRC; and (13) the NRC is required to act by virtue of its regulations at 10 C.F.R. 50.9 which provide that the DOL process is an extension of NRC authority.
The request is being treated pursuant to 10 C.F.R. S 2.206 of the Commission's regulations. The request has been referred to the '
Director of Enforcement.
A copy of the Petition is available for inspection at the Commission's Public Document Room at 2120 L Street, N.W.,
Washington, DC 20555.
FOR THE NUCLEAR REGULATORY COMMISSION James Lieberman, Director i Office of Enforcement Dated at Rockville, Maryland This day of 1994.