ML20203J873
| ML20203J873 | |
| Person / Time | |
|---|---|
| Issue date: | 09/10/1996 |
| From: | Stephen Burns NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Diaz N, Dicus G, Shirley Ann Jackson, Mcgaffigan E, Rogers K, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML20203J328 | List:
|
| References | |
| FOIA-97-384 NUDOCS 9712220121 | |
| Download: ML20203J873 (6) | |
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WASWNGTON, D.C. MM-0001 sg September 10,1996 0FFICE OF THE GENERAL COUNSEL MEMORANDUM TO:
Chairman Jackson Commissioner Rogers Commissioner Dicts Commisslor.er Diaz Commissioner McGaffigan FROM:
Stephen G.
Associate Generst Counsel for Hearings, Enforcement and Administration
SUBJECT:
MEETING WITH NUCLEAR ENERGY INSTITUTE REGARDING THE SECRETARY OF LABOR'S DECISION IN D/AZ ROBAINAS V. FLORIDA POWER & LIGHT CO.,
Case No. 92-ERA-10.
INIRQDUCTION
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in response to a letter dated April 12,1996, from Phlllip Bayne, then Chief Executive Officer of the Nuclear Energy Institute (NEI), the Chairman requested that members of the NRC's Office of the General Counsel and the staff meet with NEl representatives to discuss NEl's concerns regarding the Secretary of Labor's decision in D/az-Roba/nas v. Flor /ds Power & L/pht Co., Case No. 92 ERA-10. The Chairman requested that the staff report the results of the meeting to the Commission, in response to the Chairman's request, the staff arranged for a public transcribed meeting which was held on July 24,1996. A summary of the discussion is provided below. (The meeting transcript !s attached hereto as.)
BACKGROUND l
On January 19,1996, the Secretary of Labor (SOL or Secretary) issued a Decision and Romand Order in D/ar-Roba/nas v. Flor /da Power & L/pht Co., 92-ERA-10
. (Attachment 2). In that dacision, the SOL held that Florida Power & Light Company (FP&L or licensee) discriminated against an engineer, Regino R. Diaz Robainas, in J
violation of Section 211 of the Energy Reorganization Act (ERA) when it ordered him to take a psychological evaluation solely to discourage his engaging in i
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activities protected under the statute.' in so doing, the SOL reversed the Recommended Decision and Order of a Department of Labor Administrative Law 4
Judge, who had found that the licensee's order to submit to psychological testing did not constitute an adverse action such as would constitute discrimination.
2 On February 20,1996, the licensee filed a motion requesting reconsideration of the SOL's decision. On March 27,1996, the Nuclear Energy Institute (NEI) filed a Motion for Leave to File a Brief Am/cus Cur /se and a Brief Am/cus Curiae in support of the licensee's motion for reconsideration. By letter to the Chairman dated April 12,1996, Phillip Bayne, Chief Executive Officer of NEl, forwarded copies of its brief and motion to the Commission, in his letter, he expressed NEl's concern I
that the SOL's dec!sion was likely to have a " grave impact on the NRC's regulatory regime" in that it conflicted with the NRC's Fitness for Duty regulations.
Specifically, Mr. Bayne expressed concern that, as a result of the SOL's decision, licensees may be reluctant to refer individuals for psychological testing for fear that this could be characterized as an actionable " adverse employment action." He stated further that NEl would appreciate an opportunity to discuss these issues.2 By letter dated May 7,1996, the Chairman responded to Mr. Bayne's letter, in her letter, the Chairman stated that, in response to his request to discuss these issues, she had asked members of the NRC's Office of the General Counsel and the staff to meet with NEl's representatives, and to convey the results of those discussions to the Commission.: On July 24,1996, a transcribed public meeting was held
'The protected activity included raising safety concerns to his management and the NRC, and indicating that he would raise these concerns to the media.
'On April 15,1996, the SOL issued an Order Denying Motion fer Reconsideration (Attachment 3), in which he reaffirmed his prior decision and reiterated h's position that ordering an employee to take a psychological evaluation in retaliation for engaging in protected activity affected the terms, conditions and privileges of employment and constituted discrimination in violation of Section 211. The SOL emphasized that this decision did not undermine the employer's duty to participate in the NRC's " behavioral observation program" or to refer or remove an_ employee whose fitness it questioned, f
8 in accordance with the Commission's Enforcement Policy, on-June 26,1996, a Notice of Violation and proposed imposition of Civil Penalty ($100,000) was issued to the Licensee for a violation of-10 CFR 50.7, which was categorized at a Severity Level ll (EA 96-051). In light of the fact that FP&L has appealed the SOL's decision to the IJnited States Court of Appeals for the Eleventh Circuit, FP&L was allowed to defer its submittal of a written response to the Notice and (continued...)
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The Commission between representatives of the NRC and NEl Tee NRC was represented by the Office of the General Counsel, the Director of the Office of Enforce:vnt, the Commission's Agency Allegation Advisor, and represent:tives from the Office of Nuclear Reactor Regulation with responsibility for the Commission's fitness-for-duty requirements.
SUMM ARY OF MEETING NEl began the discussion by stating that its purpose in requesting a meeting was not to argue the merits of the decision in the D/ar-Roba/nas case but, rather, to discuss what NEl believes are troublesome generic implications of that decision.
NEl's concern, as expressed during the meeting, is that the decision reflects a confi'ct between the Secretary of Labor's responsibility to assure that appropriate remedies are implemented for any individual who has been subject to discrimination in violation of Section 211 and the NRC's responsibilities to ensure that licensees carry out their responsibilities regarding the public health and safety.
In NEl's view, the Secretary has established in the Dlaz Roba/nas decision new criteria not presently in Part 26 for when a licensee can take measures for the detection of persons who are not fit to perforrn licensed activities. Specifically, NEl stated that the Secretary has suggested that a licensee may not take such measures unless aberrant behavior meets a certain threshold; that such behavior must be obvious and pose an aggressive threat to public health and safety, based upon demonstrated psychologicalinstability as observed by an individual's supervisor or co-workers.
In addition, NEl stated that it is troubled by the NRC's acceptance of, and acquiescence in, the Secretary's decision and " adoption" f these new criteria.
NEl asserted that this " acceptance" is evidenced by the NRC's issuing a Notice of Violation to Florida Power and Light Company based solely upon the Secretary's decision, w!;hout acknowledging that the NRC's own " investigation" determined that there hed been no discrimination.' NEl expressed concern that the
- (... continued) payment of the proposed civil penalty pending the outcome of the appeal, dit was determined during the meeting that there had not been an investigation of the circumstances surrounding the case by the Office of Investigations (01).
Rather, NEl representatives apoarently were referring to an Allegation Team inspection conducted at FP&L's Turkey Point facility October 28,1991, through November 8,1991, of a number of issues, including the allegation that the (continued...)
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1 D/si Aobs/nas decision will cause licensees to be wary of taking the necessary measures for early detection of employees who are not fit for duty.
NRC representatives asked NEl whether it agreed with the principle, stated in the D/si Aobalnes case, that ordering n employee to submit to a psychological evaluation or testing, solely as a result of the employee's protected activity, constitutes. discrimination in violation of Section 211. NEl agreed that if an objective determination coutrl be made that this has been the case, this would constitute discrimination, but emphasized that in most cases it would be impossible to clearly establish such a causal connection.
. NEl further expressed uncertainty as to how it should counsel licensees to proceed in light of this decision. NEl suggested that licensees should seek courisel from the NRC before taking action in circumstances in which it has reservations about the fitness for duty of an employee who has engaged in protected activity.
NRC representatives emphasized that the Secretary had not established new criteria regarding fitness for-duty evaluation or otherwise changed NRC requirements. Rather, NRC representatives stated that the Secretary was simply identifying factors that would be considered in determining whether a licensee had a legitimate basis for referring an employee for psychological evaluation or testing, The decision reflects the principle that, when licensee management makes a l
decision to take adverse t.%, against an employee, there must be a legitimate, l
l non discriminatory basis fo it decision. While we recognize that competing l
faciors may come into play w..hese cases, the D/ar-Roba/nas case is really no different than other cases in which employees engage in protected activity and licensees take action which results in their having to defend their actions before l
- (... continued) ordering of th8s employee to submit to a psychological evaluation was discriminatory. The inspection finding regarding this issue, which was documented in an inspection report dated January 2,1992, inspection Report 50-250/91-45 and 50-251/91-45, was that there had been no inappropriate or discriminatory use of pst hological evaluation. Notwithstanding the inspection finding, the staff may rely oi. DOL findings of discrimination to support enforcement action against a licensee. The DOL findings are developed through adjudicatory procedures, including discovery, cross examination, transcribed testimony and an independent judge as the finder-of-fact, and thus generally provide a well-developed record for the NRC to use in making its enforcement decision. More important!y, the DOL edjudication might be given collateral estoppel effect by other agencies, and
~ Section 211(c)(2) of 1'e ERA provides that a DOL adjudicatory decision in a 4
discrimination case cai,ot be reviewed in any civil proceeding.
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5-DOL.- it may help licerisees in such situations to carefully document employee performance and behavior, in any event, of paramount concem to the NRC and licensees is the need to protect the public health and saftty. In this connection, the staff emphasized that, although it is willing to provide guidance on interpreting -
its regulations, the staff cannot become involved in counseilli.0 licensees with regard to every issue that arises.
Subsequent to the meeting, NEl's Vice President and General Counsel submitted a letter dated August 5,1996, to the NRC's Deputy Assistant General Counsel for Enforcement which purported to document both NEl's understanding of the NRC's-position on the issues discussed during the meeting and NEl's resulting concerns.
- in that letter, NEl essentially reiterated its position that in D/ar Roba/nas, ths Secretary of Labor had Interpreted the NRC's regulations in 10 CFR Part 26 in a manner different than that provided in Part 26, and that the NRC, by apparently Jdeferring to DOL, had in this instance abdicated its responsibility under Part 26. In the letter, NEl stated met it would appreciate the opportunity to discuss further with the NRC possible avenues for the resolution of these issues. By letter dated August 23,1996, the Deputy Assistant General Counsel for Enforcement provided a response to NEl's-August 5th letter.~ The response reiterated NRC's position that the Secretary in the D/ar Roba/nas case had not established new criteria for evaluating fitness-for-duty or otherwise changed NRC requirements. The response emphasized that the NRC had not relinquished its authority in this area. The response informed NEl that since its August 5th letter did not raise any new issues not discussed at the July 23d meeting, there is no need for an additional meeting on this same subject. Copies of NEl's August 5th letter and the NRC's Au]ust
--23d reply are attached hereto as Attschments 4 and 5.
CONCLUSION The NRC representatives stated that the Secretary of Labor's decision in the D/az-Robalnes case does not conflict with the Commission's fitness-for-duty regulations. Under Section 211, an employer may not take any action that affects the terms, conditions or privileges of an employee's employment solely as a result of his engaging in protected activity.'in this case, the Secretary found that FP&L ordered Robalnas to submit to a psychological fitness for-duty evaluation as a tool
' 'In certain cases, it may appear that the employer took such action based partly upon an individual's having engaged in protected activity, but also as a result of other factors, such as poor performance. In these so called " mixed motive" cases, after a pr/ma facle case of discrimination is established, the burden shifts to the s
- employer to demonstrate that this same action would have been taken absent the
' employee's having engaged in the protected activity.
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The Commission 6-to discourage him from revealing concerns to the media or the NRC.' As such, as the Secretary held in his Order denying NEl's motion for reconsideration, FP&L's order was " unreasonable,lilegitimate, and retaliatory, and culminated in Robalnas being fired on pretextual grounds," thus affecting the terms, conditions and
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privileges of his employmont for engaging in protected activity. As the Secretary emphasized, the record in this case did not substantiate that Robalnas engaged in aberrant behavior suggestive of any risk to the public health and safety; thus, the decision does not undermine the employer's duty to pa rticipate in the NRC's behavioral observation program or refer or remove an employee whose fitness it questions.
Attachments: As stated cc w/att: SECY EDO OCAA W. Russell, NRR J. Lieberman, OE
'Although the Secretary found that FP&L's stated reason for imposing the order to submit to a psycholoutcal evaluation was a pretext, and that there was no legitimate reason for oroering the evaluation, he noted that, even assuming that this was a case of " mixed motives," FP&L failed to prove that it would have taken the same action against Robalnas even if he had not engaged in protected activity.
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