ML20153D878

Advises That NRC Reviewing Apparent Violation of License NPF-57 Due to Encl Secretary of Labor Final Decision & Order Indicating That Former Contract Employee a Francis Discriminated Against by Bogan,Inc.Conference Will Be Held

ML20153D878
Person / Time
Site:	Hope Creek
Issue date:	05/03/1988
From:	Russell W NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I)
To:	Miltenberger S Public Service Enterprise Group
References
NUDOCS 8805090312
Download: ML20153D878 (11)

Text

- . .- . - _ _ __

r* .

6 i

i 68 WAY 1988  ;

Docket No. 50-354 Public Service Electric & Gas Company i ATTN: Mr. Steven E. Miltenberger Vice President and Chief Nuclear Officer Post Office Box 236 Hancocks Bridge, New Jersey 08038 i

Gentlemen:

Subject:

Secretary of Labor Decision Regarding Mr. A. Francis On April 1,1988, the U.S. Secretary of Labor issued a Final Decision and Order ,

which indicated that Albert Francis, a former contract employee at the Hope i

Creek facility was discriminated against by Bogan, Inc., his employer, for filing a series of field questionnaires and returning deficient test packages, i Mr. Francis filed his complaint with the U.S. Department of Labor in September  !

j 1985, alleging that he had been demoted from a supervisory instrument technician position to a technician's position because of his unwillingness to sign off

on packages that did not maet standards established by the licensee or the NRC. '

Based on the Secretary of Labor's finding, it appears that this discriminatory act by one of your contractors may constitute a violation of your license  !

and 10 CFR Part 50.7. Accordingly, we are reviewing this apparent violation '

for appropriate enforcement action. We plan to schedule an enforcement con-ference with you in the near future to discuss this apparent violation, its causes, and your corrective actions. At the conference, you should also be

prepareo to describe the actions taken or planned to assure that 1) this dis- ,

crimination did not have a chilling effect in discouraging other licensee or contractor employees from raising perceived safety concerns, and 2) adequate oversight of contractor activities will be maintained in the future to prec%de reoccurrence of such incidents.

In accordance with Section 2.790 of the NRC's "Rules of Practice," Part 2, l Title 10, Code of Federal Regulations, a copy of this letter will be placed in the NRC Public Document room.

1 i

4 y

0FFICIAL RECORD COPY N0EL/FRAN-TWO - 0001.0.0 I 8805090312 880503 05/02/88 l PDR O

ADOCK 05000354 '

DCD h\\

l gj.

Public Service Electric 2 and Gas Company 03 MAY 1988 Your cooperation with us in this matter is appreciated.

Sincerely, Or3-i.,e.1 Si-ned B7 t, .7. J. M LL William T. Russell Regional Administrator

Enclosure:

Secretary of Labor's Final Decision and Order dated April 1, 1988 cc w/ enc 1:

S. LaBruna, General Manager, Hope Creek Operations W. H. Hirst, Manager, Joint Generation Projects Department, Atlantic Electric Company L. A. Reiter, General Manager - Licensing and Reliability Rebecca A, Green, Bureau of Radiation Protection Public Document Rooni (PDR)

Local Public Documen'. Room (LPDR)

Nuclear Safety Inform 0 tion Center (NSIC)

NRC Resident Inspector State of New Jersey Bogan, Incorporated bcc w/ encl:

Region I Occket Room (with concurrences)

Management Assistant, DRPA (w/o enc 1)

DRP Section Chief Robert J. Bores, DRSS J. Taylor, DEDO i J. Lieberman, OE  ;

L. Chandler, DGC F. Miraglia, NRR G. Rivenbark, tJRR B. Clayton, E"b o RI:DRP RI:DRP RI:DRP RI:DRP RI:RC RI:E0

• P. Swetland

• E. Wenzinger

• 5. Collins *W. Kane *J. Guti..rez *D. Holody 4/ /88 4/ /88 4/ /88 4/ /88 4/ /88 4/ /88 RI:DRA RI: rah

• J. Allan W. Russell 4/ /88 I/y/88

• See previcus concurrencef)FFICIAL RECORD COPY N0EL/FRAN-TWO - 0001.1.C-05/02/88

o Public Service Electric and Gas Company 2

hgg M Your cooperation with us in this matter is appreciated.

Sincerely, William T. Russell Regional Administrator

Enclosure:

Secretary of Labor's Final Decision and Order dated April 1,1988' cc w/ enc 1:

S. LaBruna, General Manager, Hope Creek Operations i

W. H. Hirst, Manager, Joint Generation Projects Department, Atlantic

Electric Company

L. A. Reiter, General Manager - Licensing and Reliability i 1 Rebecca A. Green, Bureau of Radiation Protection 2

Public Document Room (PDR) j Local Public Document Room (LPDR) l a

Nuclear Safety Information Center (NSIC) i NRC Resident Inspector  ;

State of New Jersey  :

Bogan, Incorporated

, bec w/ encl:  !

Region I Docket Room (with concurrences)  !

Management Assistant, DRMA (w/o enc 1)  :

i DRP Section Chief Robert J. Bores, DRSS l

J. Taylor, DE00  ;

J. Lieberman, OE <

L. Chandler, OGC '

, F. Miraglia, NRR I

4. R:n Lek, nRR P "B. C.lu be, EDo RI:DR RP R RI:E0 P. Swetland E. Wenzinger .C ins / . Ka p ierrez D. Holody

4/$.7/88 4/9 788 4$/88 4/16/88 4/)8'/88 4/$0/88 1

2 RI:RA J. lan W. Russell 4/ h88 4/ /88 4

0FFICIAL RECORD COPY NOEL /FRAN-TWO - 0001.1.0 l l 04/27/88 l 9

. \

' U.S. DEPARYMENT OF LABOF l ,. ..',

l suc';tTAav or L. Aeon wAsHwotoN. C.C.

DJH 4/18/88 DATE: A 1988 CASE NO. pril 186 ERA.$ ,, , .,

A1.BERT FRANCIS, l

CLAIMANT, l

v. l BOCAN, INC.,

RESPONDENT.

BEFORE: THE SECRETARY OF 1 ABOR FINAL DECISluN AND ORDER l l

I The Recommended Decision and Order (D. and 0.) of Administrative ,

l 1.aw Judge (AU) Paul H. Teitler, dated March 21, 1985, in this case arising under section 210 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. I $851 (1982), is before se pursuant to 29 C.F.R.

I 24.6(b) (1987), ne AU held that Claimant, Albert Francis, was engaged in a protected activity under the ERA because he was "about to go to the NRC. . . .

• D. and 0, a:: 13. De AU held further that Respondent, Bogan, Inc. , discriminated against Claisant when it demoted his from his supervisory position to a technican's position.

H. at 14 The AU found the stated reason given by Respondent for ,

I demoting Claimant to be a pretext.

Claimant was a supervisory instrument technician for Respondent working on the calibration of instruments at the Hope Creek Nuclear Generating Station in Sales, New Jersey. At the time he was demoted, Claimant was the supervisor of a crew of technicians on the night shift. Claisant would be assigned test packages by the night shif t testing coordinator, David Davis. The test packages were supposed to 1

• 2 contain all the information needed to calibrpte the instruments to which the package applied. The AU's Recommended Decision and Order ,

describes the problems Claimant found in many of the test packages and D. and 0, at 4 5. The the actions he took to rectify those problems.

AU also fully discussed several "field questionnaires

• filed by claimant raising questions about the manner in which instruments and The record in this ,

equipment had been installed. D. and O. at 6 9.

esse has been thoroughly reviewed and, with the modifications discussed below, I agree with the AU's findings and recommendations.

(A copy of the AU's well documented Recommended Decision and Order is appended to this Decision.)

Respondent excepted to the AU 's decision on the grounds that Claimant did not engage in any protected activity, that there was no evidence of a causal connection between a protected activity (if there was one) and the decision to demote Claimant, t nd that Claimant was demoted for legitimate business reasons. Claimant excepted to the limited remedy ordered by the AU, two weeks backpay, arguing that he should be granted reinstatement and backpay with interest to the date i

Claimant also seeks attornay's fees and costs and of reinstatement.

correction of his employment records.

As a general r.atter, I agree that section 210(a)(1) of the ERA explicitly protects an employee who is "about* to go to the Nuclear Regulatory Commission. 42 U.S.C. I 5851(a)(1). I do not think this record sapports the AU's finding that the management officials who maoe the decision to demote Claimant knew that he was about to go c.o It is not the NRC resident inspectors before they denoted him.

i

• 3 r

necessary to decide whether such knowledge is, required to establish a  !

violation of the ERA, however, since the AiJ's decision that the Claisant engaged in protected activity is correct for a different reason. I have consistently held that reporting safety and quality probless internally to one's employer is a protected activity under the ERA. 11.g Smith v. Noreo Technical Services & culf States Utilities Co._, 85 ERA 17, Secretary's decision issued October 2, 1987; Nunn v. Duke Power Co , Case No. 84 ERA 27, Secretary's decision issued July 30, 1987; Richter v. Baldwin Associates, 84 ERA 9,10,11 3 & 12, Secretary's decision issued March 12,1986; Ve11s v. Kansas cas 4

and Electric Co _, 83 ERA 12, Secretary's decision issued June 14,

)

1 1984, aff'd, Kansas can tieetrie v. Brock, 780 F.2d 1505,1510 (10th f Cir. 1985), cert. denied, 106 S. Ct. 3511 (1986); Mackowiak v.

i

pniversity Nuclear Systems. Inc , 82 ERA 8, Secretary's decision issued April 29, 1983, ren. on other arounds, 735 F.2d 1159 (9th Cir. ,

1 j -

1984) (aff'd as to scope of protected activity, 735 F.2d at 1163).

l The reasoning of those cases, ita, e.g. , EunD. slip op. at 1013, is ,

equally applicable here and compels the conclusion that claisant l

l engaged in protected activity under the ERA, of which So8an was fully I

aware.

on this record, it appears, and I so find, that Respondent was l

aware of the field questionnaires filed by claimant, and in particular i

i his insistence, the day before he was demoted, that some action be 4

,i d

taken on a field questionnaire he had written in January 1985. ing D, and O. at 7 9. Respondent was also aware that Claisant had returned a 1

{

number of test packages because they were deficient. T. at 241. This s

,,,,, -.---_,,,,--,,,..,,---,,,,--,,,,,-.---r-,.,.,,,, wm ,.-,---me.,_,,,-,n-,---,-

4 T. at 136. David delayed completion of testing the instruments. i confirmed Davis, Claimant's immediate supervisor on the night shift, that there were many deficiencies in the test packages. T. at 135.

One of the reasons given by Respondent for demoting Claisant was his l holdin5 of test packages.

T. at 204. Thus, the record shows that Respondent had knowledge of protected activity (filing a series of field questionnaires and returning deficient test packages) by Mr.

Francis when it demoted him.

Furthermore, I agree with the A1J's conclusion that the reasons The j

given by Respondent for demoting Claimant were pretextual.

opinions stated in the testimony of Respondent's two supervisors, i

DouS1 as Campbell and Robert Class, each of whom claimed to have made the decision to denote Claimant, that his productivity was low, were directly contradicted by David Davis. It is significant that Mr.

Davis was the test package coordinator on night shif t who worked with Claimant on a day to day basis, T. at 124, while the hit her level supervisors campbell and Class formed their impressions of Claisant's i work from discussions with other of Respondent's employees and from T. at 224, 228. The ,

computer summaries of test packages complaced.

sumaries were not introduced in evidence. Mr. Davis specifically denied ever discussing Claisant's productivity with Respondent's manage rs . T. at 133. Mr. Davis thought claimant's work was T. at competent, of good quality and up to productivity standards.

132 133. I Mr. Campbell did not ask Mr. Davis his opinion of Claimant's  !

I productivity. Rather Mr. Campbell based his opinion of Claimant's J

l t

5 productivity on Mr. Campbell's own experienca in the industry, and did not take into consideration the number of workers in Claisant's crew or the complexity of instruments being worked on. T. at 218 219.

l Claimant returned many test packages because they were deficient, l

T. at 26, 47.

which lowered his productivity of completed packages. l Mr. Davis confirmed that many test packages were in poor shape, containing irrelevant or erroneous data and incorrect procedures.

l Some packages applied to instruments which had not yet been installed.

Based on these facts, as well as others discussed by T. at 135 136. 1 the AU, D. and 0, at 1415, I agree with the AU's vcighing of the evidence that claimant proved that Respondent's articulated reason for j demoting him was a pretext. M Therefore, I adopt the AU's conclusion that Respondent discriminated against claimant when it demoted him.

The AU recommended limiting the remedy for Claimant to two weeks backpay because he found that in August, 1985, Claimant was considering saking a request to be relieved of his supervisory duties.

The AU apparently felt, therefore, that awarding more than two weeks backpay would be a windfall anc that Mr. Francis was not entitled to D. and o. at 17. It is a long accepted rule of reinstatement.

V As explained in Dartev v. Zack Co , 82 ERA 2, Secretary's decision issued. April 25, 1983, the dual motive analysis set out in Mt. Healthy City School District Board of Education v. Dovie, 429 U.S. 274 (1977),

is applicable only where an employer's adverse action was rotivated by two reasons, one legitimate and one prohibited. Here the AU determined that Bogan's explanation for Francis' demotion was pretextual. Thus, Francis was entitled to prevail and no further discussion of dual motives was appropriate. The AU's apparent reliance on Mt. Healthy, however, was harmless given the explicit

^

finding of pretextuality.

' 6 remedies in labor law that the period of an e,aployer's liability ends when the employee's employment would heve ended anyway for reasons independent of the violation found. Egg Valt Disney Freductions, 48 N.L.R.B. No. 892 (1944), enf'd at modified,146 F.2d 44 (9th Cir.

1944). But the esses require some explicit act or concrete event to In cut off backpay or extinguish the ri5ht of reinstater.ent.

Knickerboeker Plastic Co , 132 N.L.R.B. No. 1209 (1961), for example, the National Labor Relations Board (NLRB) denied reinstatement to a discharged employee who had declined an explicit offer of reinstatement by the employer. See als2 Ford Motor Co. v. EEOC, 458 U.S. 219, 231 232 (1982). In Bouroue v. Powell Electrical Co._, 617 F.2d 61, 66 (5th Cir.1980), an employee who proved waga discrimination was entitled to backpay only until the date she resigned.

In contrast, the NLA3 has "consistently . . . discounted statements, prior to a good faith offer of reinstatement, indicating unwillingness to accept reinstatement.' Heinvick Motors . Inc . ,166 N.L.R.B. No. 88 (1967), 1967 CCH NLRB 21,654, at 28,297. I t'aink the reasons for this NLRB rule in discharge cases are equally r,pplicable to the situation here. As the NLR3 said in Heinwick Mot 2II:

We are mindiul of the fact that such statement *, may reflect only a momentary state of mind that is subject to change:

prior to an offer of reinstatement, such statements are in the nature of answers to a hypothetical question; and the discriminatee's (xpression 'may have been made in the heat of dissatisfaction with his treatment by Respondent.'

4

. w.

.empg l

1 1

CERTIFICATE OF_ SERVICE Inc.

Albert Francis v. Bogan, CASE Names 86-ERA-8 Case No. :

Final Decision and Order Document :

b ve-referenced document This is to certify that a copy of the a o _.

to the following persons __

was sent

[ 'M0 bd _

CERTIFIED HAIL Charles W. Boohar, Esq.

Perlino & Lentz 2300 Packard Building Philadelphia, PA 19102 James Katz, Esq.

Tomar, Parks, Seliger Simonoff & Adourian 41 South Haddon Avenue Haddonfield, NJ 08033 James Bogan, President Bogan, Inc.

1500 Chester Pike Eddystone, PA 19013 Albert L. Francis 248 G Street 08069 Carneys Point, NJ REGULAR HAIL Hon. Paul H. Teitle rDistrict Chief Administrativ Law Judge 3535 Market Street Room 2350 Philadelphia, PA 19104

l Monica Gallagher s Associate Solicitor J U.S. Department of Labor Office of the Solicitor Suite N-2716 200 Constitution Ave., N.W.

Washington, D.C. 20210 Honorable Nahum Litt office of Administrative Law Judges lill 20th Street, N.W.

Washington, D.C. 20036 Director of Enforcement Staff .

Nuclear Regulatory Commission Washington, D.C. 20555 Chief Counsel Regional Operation and Enforcement Nuclear Regulatory Commission Washington, D.C. 20555 1

1 1

M