ML20138R241

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Forwards Description of Options for Dealing W/Employees Discriminated Against for Reporting Qa/Qc Violations to Nrc,Per 820203 Request.Description of Recent Incident at Plant on 820126 Re Firing of Qa/Qc Inspectors Included
ML20138R241
Person / Time
Site: 05000000, Clinton
Issue date: 03/12/1982
From: Dircks W
NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To: Bradford, Gilinsky, Palladino
NRC COMMISSION (OCM)
Shared Package
ML20136E247 List:
References
FOIA-85-437 NUDOCS 8511180503
Download: ML20138R241 (5)
v • d • e


Text

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f c~ cecoq jo, UNITED STATES l

gg (y,g NUCLEAR REGULATORY COMMISSION l

E WASHINGTON, D. C. 20555 pv/;/

l MAR 1 2 1997 x:[,

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MEMORANDUM FOR:

Chairman Palladino l

- Co'mmissioner Gilinsky Commissioner Bradford l

Commissioner Ahearne Commissioner Roberts FROM:

William J. Dircks Executive Director for Operations

SUBJECT:

OPTIONS FOR DEALING WITH EMPLOYEES DISCRIMINATED AGAINST FOR REP LATIONS TO NRC In resporise to the request in item 2 of the February 3,1982 staff require-ments memorandum, the enclosure describes the available options for employee protection with regard to those liccnsee and contractor employees who are discriminated against for reporting QA/QC violations to NRC. The enclosed i

report also describes the recent incident at the Clinton Power Station.

(Signed William J. Dircks l

William J. Dircks Executive Director for Operations

Enclosure:

As stated l

cc: ACRS ASLBP ASLAP PDR

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OGC l

PE CONTACT:

G. Gallagher, IE 49-24792 N

8511180503 851017 PDR FOIA GILINSK85-437 PDR

l Enclosure Options for Dealing with Employees Discriminated Against for Reporting QA/QC Violations to NRC It is essential that licensee management provide full support for the identi-fication of quality related deficiencies.

The NRC relies upon a large number of resources which include licensee QA/QC inspectors. Comunication between QA/QC inspectors and NRC inspection staff is a must to assist in the early identification and resolution of issues.

The fact that QA/QC inspectors can be intimidated and fired by providing information to the NRC can severely inhibit other QA/QC inspectors from reporting quality violations to NRC.

Such actions cannot be tolerated by the NRC and are viewed as a failure on the part of management to instill confidence in their employ'ees to identify and correct deficiencies. This undermines the basic principles of the quality assurance program.

I.

OPTIONS FOR DEALING WITH DISCRIMINATION A.

Empicyee's 00tions Section 10 of Public Law 95-601 amended the Energy Reorganization Act of 1974 by adding a.new 6210, entitled " Employee Protectim." See 42 U.S.C. 5851.

This statute expressly identifies specific acts of employees as protected activities and prohibits employers from discriminating against employees who engage in these activities.

The statute grants specific authority to the Department of Labor (DOL) to act on employee complaints of discrimination for engaging in the protected activities. Among the protected activities are giving information to the Comission, comencing a proceeding for the enforcement or administration of the Energy Reorganization Act of 1974, as amended, or the Atomic Energy Act of 1954, as amended, testifying in any such proceeding, or assisting or otherwise participating in Comission proceedings. See 42 U.S.C. 5851(a). An employee is protected even if no formal proceeding is actually instituted as a result of the employee's actions.

See 124 Cong. Rec.

S15318 (Sept. 18, 1978) (remarks of Sen. Hart).

By means of an administrative proceeding before 00L, the statute provides a specific remedy to the employee who believes he has been discharged or discriminated against for engaging in pro-tected activities. The employee must file a complaint with the Secretary of Labor within 30 days after the violation occurs.

See 42 U.S.C.5851(b)(1). DOL is required to notify the person charged with the violation and the NRC of the filing of the complaint. Within 30 days of receipt of a complaint, DOL must investigate the complaint and notify the complainant and the person alleged to have committed the violation of the results of the investigation. Within 90 days of receipt of a complaint, D0L, unless the proceeding is settled, shall O

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issue an order either providing relief or denying the complaint. The order must be made on the record after notice and opportunity for hearing.

See 42 U.S.C. 5851(b)(2)(A).

If the complaint is sustained, DOL is empowered to order the person who committed the violation'to take affirmative action to abate the violation, to reinstate the complainant to his former position, to provide back pay, and to provide compensatory damages.

See 42 U.S.C. 5851(b)(2)(B). The com-plainant may also request an award of reasonable costs, including attorneys' fees and expert witness fees. The complainant, as well as 00L, may file a civil action in federal district court to enforce compliance with D0L's order, and the complainant may seek an award of the costs of such litigation.

See 42 U.S.C. 5851(d) & (e). Judicial review of DOL's decision is avaTTable to the complainant or the alleged violator. See U.S.C. 5851(c).

B.

NRC's Options The enactment of the employee protection provision of'the Energy Reorganization Act was not intended to abridge the Commission's pre-existing authority under the Atomic Energy Act to investigate alleged discrimination against employees as a consequence of their actions to report information to the NRC regarding nuclear safety matters and to take appropriate enforcement action against a licensee-employeer. See 124 Cong. Rec. S15318 (Sept. 18, 1978)

(remarks of Sen. Hart). Although the subject of employee protection is not addressed explicitly in the Atomic Energy Act of 1954, as amended, the general authority in sections 53, 63, 81, 103, 104 and 161 of the Act emp.owers the Comission to investigate alleged discrimination, impose license conditions prohibiting discrimination, and to promulgate regulations prohibiting discrimination. The question of the Commission's authority to investigate alleged discrimination was adjudicated in the Callaway case, with the result that the Appeal Board found the NRC had such authority, l

Union Electric Co. (Callaway Plant, Units 1 & 2), ALAB-527, 9 NRC 126 (1979). Thus, NRC can perform an immediate investigation upon being notified of a discharge or other discrimination against an employee l

for reporting QA/QC violations or any other safety concerns to l

determine the facts and follow up on alleged items of safety significance.

In addition, the NRC can meet with licensee management l

to discuss results of the investigation and impress upo~ licensee n

management that such actions of employee discrimination are contrary to the quality assurance program. A strong recommendation for imediate reinstatement of the employee can be made if the discrimination claim is substantiated by the NRC's investigation.

Regulations or license conditions prohibiting discrimination would be enforceable under sections 186 and 234 of the Atomic Energy Act.

Therefore, in appropriate cases, the Comission could impose civil penalties or modify, suspend, or revoke a license or refuse to grant a license on the basis of the licensee's or applicant's discriminatory acts.

. Although the NRC may impose such sanctions for discrimination, the NRC lacks authority to provide discharged workers a direct remedy in the nature of reinstatement or back pay *. The Comission has promulgated a regulation,10 CFR 19.16(c), that prohibits licensees from discriminating against their employees for disclosing information to the Comission concerning alleged violations of the Comission's requirements. Although it applies to employees of NRC materials licensees and licensees of operating reactors, the regulation does not apply currently to employees of NRC construction permit holders.

The Comission has proposed changes to Part 19 and other Parts (30, 40,50,70,71,150) of the regulations to expand the coverage of the current regulation and to add provisions that will clarify the Comission's authority to take enforcement action. See 45 Fed. Reg. 15184 (March 10, 1980). The proposed final rule would cover construction permit holders. The propose'd changes will require posting a notice to employees of their rights under section 210 of the Energy Reorganization Act. The Comission's Enforcement Policy provides guidance on treatment of discrimination against employees for providing information to NRC.

II. CLINTON CASE On January 26, 1982, two electrical contractor (Baldwin Associates) QC inspectors were fired while the NRC Region III Office was conducting an investigation into QA/QC problems at the Clinton Power Station of Illinois Power Co. The inspectors alleged that their firing was related to state-ments they had made to NRC. The QC inspectors had been involved with safety related electrical work which is currently under investigation. A Confirmation of Action Letter was issued on January 27, 1982 to confirm l

that the licensee's Stop Work Order would remain in effect until Region III is assured that safety related electrical work can be adequately performed and controlled. The reason given by the contractor for origi-nally firing the two employees was poor performance. The general perception of other QC inspectors interviewed during the Region III investigation was that the inspectors were fired for providing information to NRC. One of the QC inspectors was instructed not to assist or spend much time with NRC because the contractor's management felt the NRC was being provided too much information. The QC inspector provided the Region III ir.vestigator a sworn statement indicating this was part of the reason for being fired.

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  • See attached letter (enclosures omitted) dated August 9,1978, from Chairman Hendrie to Hon. John D. Dingell, which states:

"Hocever, the NRC does not have the authority to require the reinstatement of an employee or the payment of the employee's lost wages and expenses where it is found that the employer-licensee has taken discriminatory action igainst the employee who has provided safety information to the NRC."

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. 1 Information that was provided by the QC inspectors was followed up by the investigators.

It was alleged that the contractor's management provided instructions that violated established written QC procedures and that items identified as deficient were not formally documented on non-conformance reports. These allegations were substantiated during the Region III investigation.

A meeting was held on January 29, 1982 at the NRC Region III Office to discuss associated quality assurance matters with the Illinois Power Co.

Chief Executive Officer. On February 1,1982, the President of Illinois Power Co. advised the Regional Administrator that extensive corrective actions would be taken to resolve the quality problems at the Clinton facility. The formal program to accomplish this has not yet been received by Region III.

On February 2,1982, Illinois Power Co. directed the reinstatement of the two electrical QC inspectors. The reinstatement was a direct result of the actions taken by the President of Illinois Power Co.

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