ML20205C251

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Requests That Listed Changes Be Made to Svc List for Case Number 93-ERA-43,Douglas Harrison Vs Stone & Webster Engineering Corp
ML20205C251
Person / Time
Issue date: 06/01/1994
From: Uryc B
NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
To: Hinton D
NRC
Shared Package
ML20205B966 List:
References
FOIA-99-76 NUDOCS 9904010124
Download: ML20205C251 (38)
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Text

= h I UNITED STATES

[>R 88Cg# o* NUCLEAR REGULATORY COMMISSION

,3* *4 REGION 11 E o 101 MARIETTA STREET, N.W., sulTE 2900 5  ;

j ATLANTA, GEORGIA 303ZH)190

,,,,,# June 1,1994 NOTE FOR: Ms. Diana L. Hinton FROM: BRUNO URYC, Jr., Director ENFORCEMENT AND INVESTIGATION COORDINATION STAFF

SUBJECT:

DOUGLAS HARRISON vs. STONE & WEBSTER ENGINEERING CORPORATION 93-ERA-43 PLEASE MAKE THE FOLLOWING CHANGES ON THE SERVICE LIST FOR THE ABOVE REFERENCED CASE.

DELETE: Regional Administrator U.S. Nuclear Regulatory Commission 101 Marietta Street, N.W.

! Suite 3100

Atlanta, GA 30303 l

l s 'O: Director Enforcement and investigation l Coordination Staff l U.S. Nuclear Ret ~ary Commission l Region 11, Suite 2900 101 Marietta Street, A.W.

Atlanta, Georgia 30323 Director Office of Enforcement U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of General Counsel U.S. Nuclear Regulatory Commission ATTN: Deputy Assistant General Counsel for Enforcement 11555 Rockville Pike lockville, Maryland 20852 9904010124 990324 7 PDR FOIA t'

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Thanks for your help on this. Should you have any questions, please contact me at 404-331-5505.

Bruno Uryc, Jr.

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U.S. Department of Labor Othes of Admnstratwo Law Juoges -

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tsod> en-Joss DATE: November 8,1994 P.ZG .a Case No.: 93-ERA-44

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IN THE MATTER OF DOUGLAS HARRISON, Corapiamant, v.

STONE & WEBSTER ENGINEERING GROUP, Respondent.

Appearances: Ja nes H. Stanaali, Jr., Esq.

For the Compiamant Robert M. Rader, Esq.,

For the Respondent Joan B. Tucker Fife, Esq.,  ;

For the Respondent BEFORE: Richard K. Malamphy l P "+.dve Law Judge .

. I RECOMMENDED DECISION AND ORDER o Prehminary Statement '!

I CW-6m Douglas Hamson brought this aw:r . .u sing that P ==aa~ia=. Stone & Webster Fa-iaaarmg Corp., discrimmated agamst him in viola:: . of t he whisdeblower provisions of Section  ;

210 of the Energy Reorgamzanon Act (" ERA"), 42 U.S.c. s 5851, and the imp!= r'-5 ra==I=h= l of the Secretary of Labor at 29 C.F.R. Part 24. Speci5cally, Mr. Harrison aHeges that he was demoted and transferred to a less rmaihle work area in retahation for engagmg in activity protected under the ERA Harrison asserts that the fact that Stone & Webster demoted him on the

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same day that he reported what he believed to be safety violations to the Nuclear R*=nia'ary Commission site representanve, indicates a retahatory or C.--.ary motrve In addition, Hamson i complains that he was required to leave the restricted area of the reactor and move to an "outade EXHIBIT L 9 7p o. :g.__

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2 crew" two days aAer he was demoted, and the men fonnerly under his supervision refused to work because their safety concerns had not been addressed by supervisors. Harrison argues that his demonon and transfer to an outside crew, so closely following his report of alleged safety vial =*iaan, supportsWaference that Stone & Webser took these employment actions against him in r==h=*iaa 5 -

Rampandam asserts that Hamson did not engage in any protected aaad==~. and was cut back frorn his lead foreman posnion for stnctly tagi'i'ame, business-related reasons. Hamson rejected the foreman position offered to him at the time of the cutback, and innimad on talang a journeyman's poenion. The Ba=paadaar naar-in it was merely a fortunous raarklaar* that Hanison's supervisors reviewed the roster for excessive lead foremen positions, and that Hanison first spoke to his supervisors about his safety concerns, on the same date. The R ==aaMaa' argues that: [1] Harrison did not engage in any protected conduct because his supervisors were unaware that, prior to his cutback, he was attempting to raise a safey issue; and [2] the decision to cut back Harrison to a foreman was a legitimate, busmess-related detennmation.

The haanns in this matter was held on February 23-25,1994, in Huntsville, Alabama Both parties appeared at the beanns and subnutted post-beanng briefs FINDINGS OF FACT Respondent

1. Stone & Webster is a contractor for the T=nnam- Valley Authorny ('TVA"), liemanarl by the Nuclear Regulatory Comnasson ("NRC") to construct and operate the Browns Ferry Project.

The Browns Ferry Project, located outside Huntsville, Al=ha'a=. is a three-unit nuclear plant that j

produces electric power. Stone & Webster p fviss construction and maimaamar* work for the

. _ project. (Tr. 388).8 j

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2. Unit 3 of the Project has a Reactor Buildag with a drywellinside ofit. (Tr. 388). The drywell is about 50 to 60 feet in total diamster. It has an outer concrete wall and an inner wall withm  ;

the reactor vennel The riintmare betwoun the inner and outer walls is about 15 to 20 feet. (Tr. 391). j There are several eiennons in the drywell The bottom elevation is elevanon 563, which is ground i 2

The followig citations to the record are used herein:

CX - CW-:--at's Exhibit ,

RX - Ra=aaadent's Exhibit JX - Joint Exhibit Tr. - Transcript.

i Findings refer to the manbered Aadia-< in this decision.

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level within the Reactor Building. (Tr. 392). Other elevations are elevations 584,604, 616, and 628.

(Tr. 486). Elevanons in the drywell are connected by either a series ofladders, catwalks or platforms.

(Tr. 392). ,

3. De work performed by ironworkers at the Unit 3 drywell in early 1993 was e ac upgrade of platform steel. (Tr. 618).
4. As oflate January 1993, four ironworker production crews were assigned to vari a elevanons in the drywell. (Tr. 549, 618). One crew was assigned to elevation 563 and three we assigned at elevation 584. (Tr. 618). Elevation 563 was known as " lower steel" and elevanons 584 and above were known as " upper steel." (Tr. 619).

Complainant

5. Douglas Hamson. C. -.iEE..E was enployed by Stone & Webster dunng 1992 and 1993, at the Browns Ferry Project in the Unit 3 drywell in several e=paciei=. as journeyman ironworker, ironworker foreman, and as a general foreman (also known as lead foreman). (Tr.13).
6. When Complainant was Srst hired ,ammi- in June 1992, he worked as an ironworker journeyman Complainant was frst promoted to foreman aAer a six week biring-in i program, during which time he underwent training in safety programs, i" : radiological safety.

(Tr.14).

7. At the time Complainant was hired, approximately 30 or 40 other ironworkers were hired also. Complainant recalled that there was a mananam hire in process over the next few months. (Tr.15). All of the men hired in with Hamson were hired from the locrj umon. . Workers hired later belonged to other unions throughout the coumry. (Tr.16).
8. C==plainam recalled that when he was hired in with both TVA and Stone & Webster, they encouraged him to raise any safety concerns, if he had any during the job. (Tr.102). He understood that ifhe had any safety concern he should raise it with Stone & Webster supervision, and that if he could not get a response he should go to the Nuclear Regulatory Conenssion ("NRC").

(Tr.105). Complainant admnted that rone ref his supervisors ever said anything to discourage him fram raming a safety concern with any '.amnsprs or the NRC. (Tr.106). His supervisors never spoke of the NRC in any derogatog way to C~--l-;=== They never threatened Complainant with retaliation if he spoke to the NRC abcut a safety issue or raised a safety ismae with management. l (Tr.108).

9. Complainant was advanced to the postion of second lead foreman in the Unit 3 l drywell on October 6,1992. He difference in pay from his position as foreman and his position as lead foreman was about two dollars per hour. (Tr.16). No other benefits ar==p=aiad the i promotion. (Tr.17).

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10. Wayne Tennyson, one of Complainant's supervisors. and Gene Hannah, another lead foreman, o5 ired the lead foreman position to Cr-- r'=t== They told Complainant that the posnian <

was available to him because he had worked in the plant before, he knew his way through the plant, and he knew the procedures. They needed a new general foreman because they had several new hires coming in who had never been in a nuclear plant before. (Tr.17-18).

11. The first time he was promoted to lead foreman, Complainant was given no assurances  ;

as to how long he would hold the position. (Tr.116). Mr. Tennyson told C~aalata== that if there I came an occasion to cut back the lead foremen, Cr=4 ==^ would be cut back first because of Gene Hannah's seniority as lead fcireman Co=al ia== agreed to this arrangement. (Tr.116).  !

12. After Cml i=at was set up as general foreman in October 1992, he was cut back to foreman in late Ncu. Lsr h-~n- the plant had a reduction in fome. As foreman, C+3p=t=-

' went back to pushmg a crew, Terry Keaton, the foreman who had been set up in Complainant's place went back to ajourneyman's postion. (Tr.117). Complainant made no complaints about being cut back.(Tr.I16).

13. r== plain == knew at the time he was cut back in November 1992, that more than a couple of crews were laid ofE with each crew consisting of approxanately seven men. (Tr.19).
14. In early Januaiy 1993, Camplainam was set up as a lead foreman again, under the same condaions as his promotion in October 1992. (Tr. 20). Stone & Webster was tryms to finish the " lower meel" on elevation 563 and was moving workers to elevanon 584. (Tr.120, 489).

C;-- ' '== was designated lead foreman over the work on elevation 563, while Gene Hannah, the other lead foreman in the drywell, n==wi responsibility for the new work on elevanon $84.

(Tr.489-90).

15. When Complainant was set up as second lead foreman agam, in January 1993, he recaBed that Wayne Tennyson and Joe Fonte, another supervisor, again advised him that, if there was a reduction, Cc=g'^ " would be the first one cut back because ofHannah's seniority. (Tr.120).
16. C~aal-ia== testi6ed that he did not recall receiving any wrnten instruccons orjob d -hdos setting forth his duties as lead foreman in the Unit 3 drywell. (Tr. 21). The information Complainant received rey dQ his authority and t=aaa=iki1W as lead foreman came from his supervisory personnel, either John Sintway, Wayne Tennyson, or Joe Fonte. (Tr. 22).
17. One of Ca=al i=*'s responsibilities, both as foreman and lead fe.% was to conduct safety meetings for his crew. (Tr. 22). The safety meetags occurred once a week, usually on Monday mornings. The meenngs took place in the dress out area. While the meetags were going on, the crews were required to parW:gr.:s in the meetmg, then they would dress out and go inside the drywell. He men were charged 30 a:inutes on their time sheets every Monday mornmg for safety I mestags. (Tr. 23).
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5 18s In addition to Complainant, other foremen and supervisors attended the safmy moeungs,includmg Wayne Tennyson. Joe Fonte, John Sertway, Steve Ehele, and waaianany Gary Davis or Mr. Butts. (Tr. 24). If anyone had a safety issue to discusw it would be presented to the smup for dammainn Complainant did not recall a time when the four supervisors were not preses.

(Tr.25).

19. Complainant testi6ed that he was presiding at a safety meeting on the morning of February 1,1993. At that meeting, individual ironworkers raised safety concerns about the implememation of the fire protection program plan in the drywell. (Tr. 25). Complainant said that "the guys' big beefwas fire watch." (Tr. 25).

Stone & Webster's Fire Protection Pragam

20. TVA and Stone & Websser established a pracuce in late 1992 and early 1993, requsing iramworkers to anend fire watch school, conducted by TVA, to train them to perform their own fire watches whde they were in the drywell. Prior to this new program, the laborers had ahways mamtmined the complete fire watch in the drywell. (Tr. 27).
21. To maatain the complete fire watch, the laborers were en-pinaY r==paa=h for Gras that may have broken out in the drywell. They signed offon all the fire watch papers Theykeptthe fire aia-niah- and went to the fire watch school. (Tr. 28).
22. The concept ofkeepmg the exposure to radiation as low as possible for each indrvidual is referred to as ALARA_ ("as low as reasonably achievable"). Under the ALARA principle, it is better that fewer persons are exposed to ranistion. (Tr. 514). The means of keepag radiation doses as low as possible is to control personnel access in a particular area of radiation. (Tr. 390). The drywellis higher in r=Aa dve dose than any other part of Browns Ferry Unit 3. Therefore, because of the ALARA p dy' .,dradioacuvny in the drywell affected managemem's decision about deployag workers there. (Tr. 609). Keepmg doses within ALARA hmits for work perfonned in the Unit 3 dryweil was of concern to Stone & Webster. (Tr. 609).
23. Under the new fire protecuan pmgram plan, authored tr/TVAin October 1992, duact r== pan =whry for the fire watch was placed upon the perananal in the vicinity actually doing the work.

(Tr. 368). As soon as ironworkers were tramed in fire watch r==aa==ihE%s, they were instrussed to

. perform their own fire watches. (Tr. 30). #raramaar I of the Brown's Ferry Nuclear Plant Fire Petecnon Program Plan (JX 1) is posted outade the drywell and is signed by those performing fire watch. (Tr. 29-30).

24. Attachmaar I at 5.3.4., provides for a firt ' :h to be present throughout any operations in which there is a potennal for fire and vuh e 'S ty of property and equipment

{" hot work"). 'Ihe fire watch must remam in the immedia ,. area for 30.rninutes after the ea==M of all " hot work." The fire watch visy be responsible for more than one hot work assivity 1

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6 if the work is coordinated properly and location of activitics is within the scope ofview of the fire watch. (JX-1).

25. 'Ihe general practice, according to Cumplainant, has been to pair up the ironworkers to work together, one 6tter and one welder. : Supervision expected that the structural man would are watch for the welder, then the weider would fire watch for the structural man while he was cienning (Tr.54).

26.

Two isborara per elevanon in the drywell also peefonned a roving fire watch any time hot work was performed on or above that elevanon. (Tr. 402). Tbs laborers were avadable to wasch the weidag machims and other ignition sources in the drywell. (Tr. 397). Lahorers who perfonned "conunuous area fire watch" (also known as " roving fire watch") would . sign on to tbs hot work pernat ofAn=+=== I ofthe Fue Protection "my-u Plan. (Tr. 377-78, 407; JX 1). Under the new fire watch procedures, the rovmg fire watch was considered secondary to' the primary fire wasch l perfonned by the ironworkers. (Tr. 378, 397).

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By using ironworkers for the prunary fire watch, and limiting a }ehorers to fire watch ofthe weidung mausa, and otherignition sourass in the drywell, and performann of the secondary j fire watch, stone a webster was able to avoid the need to put extra bodies in the dryweE for are i watch purposes. (Tr. 398). This reduced overall ==3- 1' exposure to radienna i

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There will be two roving Src watches per elevation [in the drywell).

Ironworkers will fire watch for (thanssives] at dotaded locations The roving fire watch will be on hand for the one-ha'fhours cool-down at i the end of the dive.

1 (Tr. 204-05; CX-6). This log ent:y contams no reference to any disagreewer over fire watch responsibilities or A==ia== with Stone & Webster supervisors

29. Ironworkers did not work continuous 10-hour shiAs in the drywell. (Tr. 33). They would come out of the drywell, oRen aAer perforunng hot work, for the monang break, lunch, a6amoon break, and quanng time. (Tr. 34). Upon exning the contamination zone, each worker who had recewed fire watch tram:ng rernaiami signed on to A*=^'a=* I of the Fue Protecnon Plan, inchcating that he was responsible for fire watch durmg the 30-minute cooWlown period at the site where he had been working (Tr. 34).
30. Stone & Webster supervision understood that laborers were available to perfonn

====w= 6te watch ifironworkers needed to leave the drywell for breaks, lunch, or at the end of the day, provided the laborers had signed on to the " hot work" perunt. (Tr. 404).

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Complainant testified at the hearing that the roving fire watch was not maria because in some areas on the elevation you can see approximately (Tr.53).cannot see more than three or four feet on either side because of duct pip 32.

At the hearing, Complainant's supervisors, however, described the drywe much bigger than this room (25 feet X 11 feet). (Tr. 380). Mr. Butts said th could maneuver himself to a position from which he could see everything w 180".(Tt. 380). Mr. Ehele added that it took about two minutes to go around t elevanon 563. (Tr. 658). Mr. Ehele was able to do so without climbing up a get over or around things. (Tr.659).

Comniainam's Involvement in the Fire Watch l===

33.

The concern about fire watches that was expressed at the February minute cool-down period. (Tr. 26).was that the fire watch was no 34.

Complainant testified that crews were working in several different places elevation, so that two rovers could not physically see wnhin their scope o ,

worked on that elevation. (Tr. 34). Complainant's foresnen were complaining tha;  !

not enough to watch a 360 degree circle. (Tr,148).

35.

The ironworkers were concerned that the rovers were not capable of ci work areas dunng the 30-nanure cool-down period. Tr. 33). De ironworkers off on Attaehmam I cemfying that they were respo(nsible for fire wa they had heard rumors that no one would be fire watching during the cool-do 36.

De iromvorkers told Co=,laia== that they did not like having to sign the fire wa paper and do the fue wandt because they would be on their way home sad still be on t paper for that 3C.nunute -cool-down period. (Tr.142).

37.

Ca=al=Wa= asserted that to "get rid of the kaadarka, give it [the fire wa bit back to the laborers. Den there wouldni be a 30-msane cool-down for th l about." (Tr.141). De ironworkers did not want the responsibility the way the fire was being implemented.

At his deposition, Complainant stated "From the time that started, ke. Mars and any other crafts . . . that were asked to take [the fire watch] felt t

+ puttmg more r==paamhili y to them to an already very responsible job and, . . . they were r to take it. Day renHy didnt went to take it but, . . it was other take it or hit the roa ahead and took it." (Tr.145).

38.

C2 3' ' =4 said that he never argued that the laborers should do the fire watch rat than the ironworken. (Tr.139). He has never had a problem with an ironworker do

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8 watch. The problem was the question of who would perform the fire watch during the 30-minne cool-down. (Tr.139).

39. Attachmem I required that "the fire watch may be responsible for more than one hot work activny ifit is within his scope of view." (JX-1, Tr.161). Complainant believed that two laborers on the roving fire watch alone could not keep all the places being worked on one elevanon within their scope of view. (Tr.161).
40. Complainam said that he did not reshme urail the February 1,1993 safety meeting that this issue had escalated as far as it had, or he would have done something about it. (Tr. 37).

Complainam's two foremen, Terry Keeton and Billy Davis, came to him immediately following the safety messmg and said they needed some relieffrom the fire watch issue because they were working out of 9 =f= = with the regulations. Complainam responded, "give me today and I'll get to work on it and see where the problem lies with it" (Tr. 37).

41. Before the February 1,1993 safety meeting. Complainant tesafied that he, pomonally, never spoke with any supervisor about any fire watch concerns. (Tr.156). Complainam said that he only became actively involved in trying to get the matter of the fire watch resolved after listening to ironworkers complain at safety moeungs for six weeks. (Tr.156).
42. After the mestag on February 1,1993, Complainars sought out information from fire watch tr.h.k4 and the fire marshal, both TVA of5cials. (Tr. 38). After hearing C=i ".

concerns, Gary Wallace, the TVA fire protection of5cial, told Complainant to have Mr. Ehele emil or come by. (Tr.162). CsA:==nt had not mennoned that he intended to speak to Mr. Ehele. After talking with Gary Wallace in fire pro:eczion, Cr-- ; =- consulted the lead foreman for the laborers, David Sparks.

43. Mr. Sparks == .;= .:ed Complainant to a meetmg with Steve Ebele, Complainam's supervisor. (Tr. 39). In that moeung, Complaiamat told Mr. Ehele that he had been to fire protecuon and to training, trymg to' work out the problem so that his men could be in compliance with the procedures. (Tr. 39).
44. Mr. Ebele expressed to David Sparks his concem about the munher of men spondag time in the contamination area. (Tr. 39). Complainant recalls Mr. Ehele saying, "What am I going to have to do in there? . . . youh canng me alive on man hours in that drywell now on fire watches "

(Tr. 39).

45. At the end ofthe meenng, C=g ;nt told Mr. Ehele that he had been to TVA Fue Protec. tion and that Mr. Wallace wamed Ehele to call him or stop by to see him. (Tr. 40).

Complainant did not recall Mr. Ehele makmg any vocal response to him ie. dhig this request.

(Tr. 41). Because Ehele and Sparks dimW the idea of putting more labore~ into the drywell, C=F== left the mestag with the impression that the next day there would be two more people

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per elevation to perform roving fire watch. (Tr.179). Complainant went back to his work area and

. told his two foremen that he thought he had their problem solved. (Tr. 41).

. 46.- When Complainant came in to work the next day, February 2,1993, he checked to see whether the fire watch was being performed according to procedure during the 30-minute tool-down penod. The Attachmem I sign-off sheet outside of the drywell revealed that there had been no change in the number of roving fire watches, and that the ironworkers were still signing ofrom the sheet dunng the 30 mirane cool down, when they were not in the drywell performing the fire watch.

(Tr.42).

47. As a resuh, Complainant went back to TVA Fire Protection to talk to Mr. WaBace.

Mr. Wallace said that he had not seen or heard from Mr. Ehele. Complainant testified that he was  ;

angry at this news, because he thought that Mr. Ehele was not helping him get to the bottom of a senous problem. (Tr. 43). ,,

48. Cc=p=== decided that he would put his men in compliance with TVA procedures by any means possible, so he walked across the street by himself to the Nuclear Regulatory Commismon ("NRC") of5ce. (Tr. 43). Complainant did not tell Mr. Wallace that he was going to the NRC. (Tr,162).
49. Complainant spoke with Joe Mundy, the NRC site royi Os, and gave him a

@* report of the atuation. (Tr. 43). Complainam told Mr. Mundy that the fire watch was not -

being property adherad to during the cool-down because there were not enough people to watch aH the hot places that were in operation. (Tr.163). To confirm Complainant's descripnan of noncompliance, Complainant showed Mr. Mundy the A"meh=== I sign-off sheet which allegedly revealed the number of azimuths, or C. dens, being worked and the raamber of fire watches for each ,

l elevation. (Tr. 44).

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50. Complainam knew that it was the policy of the NRC r ys . Mas to keep l confidenual any safety concerns that employees brought to them. (Tr.165). Complainant does not l J

believe that the NRC inspectors ever revealed his idennty to Stone & Webster. (Tr.165).

51. Complainant testified that no one from the NRC ever got back to him personally i i, (J..g his fire watch concerns. He received a letter in February 1994, explaining that the NRC j had toured the drywell on March 30,1993, and that everything was as it should have been.

j CWh= never received any communication from the NRC that the NRC determined there was a violation of any Stone & Webster or TVA fire watch procedures. (Tr.168).

52. Later in the day ofFebruary 2,1993, Cc- -p ==^ checked back at the ====damian zone to see ifthere had been any changes regarding the fire watch. (Tr. 55-56). He learned that there  ;

were still two roving fire watches, no more than there had been the day before. At syy.vai idy 2:00 p.m., C I-6== called Wayne Tennyson from the phone outside the drywell. Tennyson

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4 10 instructed Complamant to come to Tennyson's office right away. When Complainant amved, Tennyson told Complamant that he was being demoted to a to a foreman's position. (Tr. 56).

Comolainant's Radetion From L*=d Foreman 53.

Tennyson told Co=al=;a a* that management also planned to reduce two employees fmm foremen positions Complainant did not recall that Tennyson gave him any explanation for the cut back. (Tr. 57).

54.

At the end of the day Joe Fonte and Wayne Tennyson told Complainant that they would try to get supervision to reconsider the decision. Fonte and Tennyson went to a superdsion meetmg, at which Steve Ehele and Tunmy Butts were present. When Fonte and Tennyson came mn  !

of the moeung, they told Complamant that they had saved the jobs of two foremen, but they could not help C=*4w (Tr. 58).

55. Tennyson told Complainant several times that he could take a foreman position.

(Tr.123). When Complainant came to work the next moming, on February 3,1994, he refused the foreman posnion. He said that he did not want to take ajob away from one ofhis foremen for some action he had taken. (Tr.123). Complainant told Mr. Fonte that "he would rather not take a foreman'sjob and . . . bump one ofthe (foremen] that's been working under him as a foreman and said that he would rather go back in the crew." (Tr. 596).

56. Complamant asserted his personal belief that Stone & Webster took acnon took l

against him because he went to the NRC and had conversations with them re.irig the fire watch l procedures. (Tr.169). Complainant admined that he had not heard anyone say that the reason for the cut back was that he had gone to the NRC or to fire protection and fire training and made waves l

over the issue of the fire watch. (Tr. 59). i

57. On Febeuary 3,1993, the morning that Complainant came to work aAer being cut i back, he received pemassion from Gene Hannah, the lead foreman, to speak to the journeymen who had previously worked under Complamant's supervision. (Tr. 90). Complainant told the men that he had been om back the previous afternoon, and that the fire watch probleen was the same as it had been i the day before. (Tr. 91). Complamant wanted the men to know that the two foremen who had i previously worked under him, had offered Complainant to let him take their gang, but Complainant had refused. (Tr. 90). He explained to the men that he was not going to take a foreman's position i because he did not want to pumsh one ofhis foremen for something Complainant himselfwas doing.  ;

(Tr.90).

58. As Complamant was leaving the meeting he heard someone say that the men should nos go back to work until the fire watch problem was straightened out. (Tr. 91). After Complainant left, the L-skers refused to enter the drywell. (Tr.189). Mr. Ehele came down into the area to speak with the ironworkers personally to get them back to work. (Tr.189).

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Also on February 3,1993, Complainant went back to see Mr. Mundy at the NRC, accompanied by Lany Morrow, the union represen:stive, and Louis Moore, the AFL CIO representative for all employees. Complainant informed Mr. Mundy of the demotion. (Tr. 9 well, that day Complainant consulted with Mr. Salowitz in Stone & Webster's Employee Con ofEce.(Tr.96).

60.

Ahhough Tennyson asked him to reconsider taking a foreman position several tim Complainant refused. Complainant chose, instead, to take a job as a journeyman ironworker Complainam performed some work for Teny Keeton, a forenan managing a crew in the Unit 3 drywell, previously under Complainant's supervision. (Tr.124). Complainant said that .4 did n recall exactly when he was assigned to Terry Keeton, and testified that one would have to ask his supervisors "where they put me" because "I dont really remember." (Tr.128).

61.

Late in the day, on February 3,1993, Complainant was straightenmg out a storags aren, and was not inside the drywell. (Tr. 60). Because Complainant was not inside the drywell, overheard a meetmg of the supervisors, including Mr. Ehele, with the AFL-CIO representative and the labor steward, David Sparks. (Tr. 60). The meenng was about the fire watch issue, the 304nhase cool <iown period, and :wrfC.ii related to it. (Tr. 61). Complainant test:6ed that at the end of the mestag the laborers got the complete fire watch back. (Tr. 63). The ironworkers no longer 6re watched. (Tr. 63).

62.

When Complainant came to work the following day, February 4,1993, as a jouir.si eh irsi. 6&i in Terry Kee:on's crew, he was in the east access building with Teny Kea when he ran into Brownie Harnson, a TVA construction supervisor, and longame acceine=ana o cz_.; ' ='s. Cr-

,E== explained the story ofhis complaints to NRC, his subsequent d=*ia=

and all the other detads. (Tr. 65). When Complainant finished talking Brownie Harnson sat quie for a few seconds, then got up and left the building without responding to Complainant. (Tr. 6  ;

l

63. Forty-6ve minutes after his conversation with Brownie Harrison, Campfeia=='s job steward, Lany Morrow, came to escort him out ofthe area at Mr. Ehele's instruction. Larry Morrow

{

told Co=p=t== he had heard that Complainant was a troublemaker, and that he was like Moses in i the Red Sea to the ironworkers in the drywell. (Tr. 66). l

64. Ehele tasafied that after his meenng with the Unit 3 supervison on February 2,1993, ,

to determine which foremen would be r=d w he was egy.oeded by Ca=plaia=ar and Iarry

Morrow in the hallway. Mr. Morrow r-- '-8, on behalf of CompMnant, that ra=pl=iamar be asigned to a work area other than the drywell where he had previously been lead foreman. (Tr. 626 27). Mr. Ehsie agreed to the transfer request. (Tr. 627). Mr. Ehele tesafied that it is not unusual fur i

an employee who has been reduced from a lead foreman or foreraan posnion to request a transdir.

(Tr. 628). These "mdividuals do not necessanly warn to work in t!e same crew where they previously made potentially unpopular decisions. (Tr. 628). l 1

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65. When Mr. Ehele saw that Complainant was still in the area of the Unit 3 drywell on February 3,1993, he asked Mr. Morrow to get CW*ia** and return him to his normal work area, outside the drywell. (Tr. 640). AAer the ironworkers refused to reenter the drywell because of their discussion with Ce==f-6=. Mr. Ehele felt that Complainant was holding meetings with some drywell workers and that Complainant could undermme Mr. Hannah's authority as lead foreman (Tr. 640). Mr. Ehele adoutted that he feh Complainant had a following, and Ce=a8-:aaw's meeting with the ironworkers did not let them go about their business He believed that Complainant was "actmg as Moses when he pans the Red Sea." (Tr. 640). 1
66. At Ehele's request, Morrow esconed Complainant outside to a new supervisor and general foreman on Febmary 4,1993. (Tr. 66). Complainant worked in the outside crew perfonning odd jobs and do'mg some welding until he was laid off afier his surgery in April 1993. (Tr. 67, 71).
67. Complamam knew c' oo other ironworkers that were cut back or laid offbetween February I and February 4,1993. (Tr. 67). While Complainam was lead foreman supervising work in drywelllevel 563, until February 4,1993, the number ofironworkers remained e-mam (Tr. 70).
68. Job rosters recording the number of workers employed, revealed that berwoen February 1 and April 12,1993, the number ofworken, forumen, and supervison in the Unit 3 drywell stayed the same. The only thing that ch a:~i was the number of lead foremen. (Tr. 89).

CW 6= testified that afier he was reduced from lend foreman on February 2,1993, no other lead foreman was set up for the crews that CW--= bad previously supervised. Mr. Hannah e=*i==d to supervise those crews by himself Complainant was not replaced in any wry. (Tr. 207).

Stone & Webster Sunervisors

69. James L Durts is the Field Manager for Stone & Webster at Browns Ferty. He held that position during the events in question. (Tr. 332). Butts has been the Field Manager at Browns Feny since his arrival in April 1992. (Tr. 387). He has been employed by Stone & Webster for 25 years. (Tr. 388).
70. Butts is responsible for all field acuvities, inAnding 50 supervisors and about 350 craftsmen. Butts is ultimately responsible for all Stone & Webster crafts at Browns Feny.

(Tr. 333-34).

71. Under Batts' supervision were Steven Ebele, John Sertway, Joe Fonte, and Wayne Tennyson. (Tr. 333). In the chain of coa ===ad Ehele reponed to Butts; Sertway, Fonte and Tennyson reponed to Ehele; and the w "==.. foremen, and lead foremen reponed to their r;pervisors. (Tr. 333).
72. Steven Ehele is the Chief Construction Supervisor for Stone & Webster at Browns Ferry. He was brought in somenme after January 6,1993, to manage the Unit n3
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.c 13 (Tr. 619 20). He was responsible for assuring that all crafts working in the drywell performed their work in a timely, effective and efficient manner. (Tr. 616-17).

73. Ehele has been employed by Stone & Webner for fifteen years. He was first assigned to the Browns Ferry Project in Augun 1991 as manager for maintenance. (Tr. 617). Ehele has broad experiencz in consruction acovities in nuclear power plants, including several nuclear power stanons throughout the United States wher- b nas worked as both craftsman and supervisor. (Tr. 617-18).
74. Tennyson is employed by Stone & Webster as a Senior Construction Supervisor at Browns Ferry. He was first appointed to that position in May 1992. (Tr. 476). Tennyson has over twenty years of experience in the nuclear industry, as both supervisor and craftsman. (Tr. 477).
75. In late June or early July 1992, Tennyson was reassigned to supervise ironworkers in

. the Unit 3 drywell. (Tr. 477-78).

e

76. Sertway has been -.@yed as Chief Construction Supervisor at Browns Ferry since 1992. (Tr. 536-37). When he firm came to Browns Ferry in 1991, he was the A==iarme Manager for civil structural craft at the site. (Tr. 537). Sertway has been employed by Stone & Webster for 24 years. (Tr. 536). Sertway has been a construction supervisor at several other nuclear power plants throughout the country. (Tr. 537).
77. When Sertway first came to Browns Ferry in 1991, he was in charge of all civil crafts at Browns Ferry Unit 3, iadadi=g laborers, ironworkers, carpenters and rament masons. (Tr. 539).

Later, Sertway assumed responsibility for ironworkers at elevation 584 in the Unit 3 drywell (Tr. 539-40). Bendes the i.m.-i- crew he supervised in January 1993, Sertway supervised abset metal workers in the drywell. (Tr. 541).

78. During the latter part of 1992 and early 1993, Fonte was employed by Stone &

Webster as a Structural Supervisor at Browns Ferry. He was supervising ironworkers at vanous elevations in the Unit 3 drywell. (Tr. 584). Foese has been employed by Stone & Webner since 1979.

(Tr.584).

Stone & Webster's Claim that the Roster Review was the B==ie for Cuta=Are

79. Butts tesafied that anmenme in January 1993, work began to wind down on the lower elevanon of the drywell. Stone & Webster was concentratmg more heavily on the upper elevations where work was already in progress. (Tr.~417).
80. As Stone & Webster began moving its work to the upper elevanons of the drywsil, Butts reviewed the craft roster for "prudency protection." (Tr. 419). "Prudency protection" refers to TVA's practice of reviewing the ratio of fore men to craft to see whether Stone & Webster could jusufy how and why it was spendmg TVA's mom.y. (Tr. 419). 7he sole conaderation in Butt's review of the roster was the ratio of workers to foremen. (Tr. 351).
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81. Butts reviewed the roster on January 27,1993, and was particularly concerned about the ironworker area. He saw 38 ironworkers, and nine eithese were designated foremen (i=E-N two lead foremen). (Tr. 421). Butts was concerned because he realized that the ratio was three ironwoders per foreman. (Tr. 421). 'Ihe exact ratio between crews and foremen depends on the job site, the work being performed, complemty of the work and other considerations. For a skiBed craft, such as ironworkers, Stone & Webster tries to hold the ratio to about eight ironworkers per foreman.

(Tr. 421422).

82. To the best of Mr. Butts' recollection, he 19oke with Ebele at the end of January 1993, to request that Ehele consider whether there should be any foreman or lead foreman cutbacks based on the di.+rtionate numbers ofironworkers per foremen represented on thejob roster.

(Tr. 473). The exact date that Butts spoke with Ehele about this m.2tter is ambiguous. Butts told Steve Salowuz, the Employee Concems Of5cer for Stone & Webster, on February 5,1993, that he had spoken with Ehele on January 29 to canaidar foreman m'h=4=, yet Butts tantdiad at the hearing that he spoke with Ehele on January 27,1993. (Tr. 471, 473). Regardless of the exact date, however, Butts set in motion the roster review that eventually resulted in Ca== ia aPs proposed cutback by January 29,1993, before Complainant's safety rnecting on Februarv 1,1993.

83. In addition to Ehele, Butts asked the supervisors of other craAs, iN_: the pipefitters, boilermakers, sheet metal workers, and other nwhaniemi craAa, to look at their rosters for possible cut backs on the same day he made the request to Ehele. (Tr. 427-28).
84. Butts ef =t=' that his roster review and consideration of cutbacks was never based ,

on the completion of any particular work package or the number of work plans in progress. He  !

desenbed work as "an evolving process." (Tr. 446). Butts merely noted the imh laae* between the number of foremen and crews and requested that the supervisors review the situation. (Tr. 452-53). j l

85. Butts instructed Ehele and other supervisors to review the areas where supervision i' unght be top heavy and report to him to " resolve that issue." (Tr. 420). Butts asked Ehele to contact his supervuors, Tennyson, Forse and Sertway, to review the numbers and look for possible cut backa, though Butts did not suggest the di=ination of any individuals in particular. (Tr. 427,621).
86. When Ehele reported to Butts, eith:r that afternoon or the following mornmg, he told Butts that a determmation had been made that the crews west indeed top heavy with supervison.

(Tr. 423). Ehele recommended that they cut back Complainant to a forernan position, and cut back Tommy Willis and Troy Faulks, two other ironworkers receiving foremen's pay, to journeyman iv.,ma- pcations. (Tr. 424).

87. At the time Ehele spoke with them. Sertway, Tennyson and Fonte expected to finish .

work at elevation 563, where Complamant supervised the only construction crew, and to move the crew to elevanon 584 ander Gene Hannah's supervision. (Tr. 495-96, 549). As a result, Fonte,

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15 Sertway and Tennyson decided that they could get by without Compiamant as a second lead foreman (Tr. 495).

88.

The supervisors agreed that the crews were " top heavy with one lead foreman."

(Tr. 586). As Sertway observed, at the time of Complainant's cutback, there were only four ironworker crews in the drywell. Sertway thought it was difficuh to justify two lead foremen supervising four total crews. (Tr. 549).

89. .

Sertway testified that the only consideration in his decision to recommend to Ebele Complainant for a cut back rather than Hannah,' was the fact that Hannah had been set up f (Tr. 551-52). No comment by any ironworker regarding fire watch responsibility wu in any way factor in the supervisors' decision to recommend to Ehele that Complainant be cut back. (Tr

, . 90. The supervisors believed that one lead foreman in the drywell would be enh because there were mere work plans onihe upper elevations and only a few on elevanon 563 renamed (Tr. 587). At the time he was cut back, Complamant only had one crew working for him.

Furthermore, ironworker work was bems consolidated into the upper elevations. (Tr. 563,587).

91. When the supervisors recommended to Ehsie that Cornplainam be at back, Ehele was also concerned about the jusu6 cation for paying foremen's wages to Willis and Faulks. (Tr. 590 Willis and Faulks were not supervising crews, but were perfornung functions allowag Stans &

Webster to close out work packages. (Tr. 308, 544). Faulks and Willis did not report to a lead foreman; they performed essemial paperwork and reported directly to a supervisor. (Tr. 648).

.)

1

92. The supervisors ad===ndy felt that Willis and Faulks served necessary functions as foremen. (Tr. 544). Ehele disagreed with the supervisors' assessment ofWillis and Faulks. (Tr. 624 l 25). As a result, the supervisors held a meeting on February 2,1993, to resolve the disagreement over these tv o foremen. (Tr. 546). Ultimately, Tennyson, with Butts arbitrating, succeeder' h persuading Ehele that Willis and Faulks were p in...g duties abcve the responsibilities of a normal journeyman ironworker. (Tr. 626). The supervisors persuaded Butts and Ehele that there was a justification for Willis and Faulks to continue to receiving foremen's wages. (Tr. 43g-39, 544 45, 591)
93. Mr. Ehele testified that any concerns expressed by Complaht over the fire watch duties absciutely did not factorin his decision to reduce Complainant from lea 6 foreman to foreman.

(Tr.629).

94. At the February 2,1993 moeung no riisminion was held regardag C{=i"- ".

- +t because all agreed on the necessay ofit. (Tr. 626).

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t 16 Stone & Webster Suoervisors Perceived the Fire Watch f*=ne as a Jurha einnn1 Disnute Between the Ironworkers and the i mhorers

95. When the ironworkers began to assume responsibility for their own fire watch in the fa5 ofl992, the ironworkers were not receptive to the practice They told Mr. Tennyson that they would prefer not to do the fire watet.es. Tennyson told them that he could not understand why the ironworkers did not want to police the work of their own trade, and why they would want to give theirjob to someone else. (Tr. 502). Tennyson had difficulty graspmg the iMers' objection to perfomung their own fire watches. (Tr. 501).
96. CW-w dmated a that Mr. Tennyson had gd,MJy told him that it was foolish for the ironworkas to give up part of their work because they would be losing overtime. (Tr.141).

. 97. Teenyson could not recall specifically when Corapiainant and Gene Hannah together raised a concern about the 6re watches, but lee understood it to be more of a jurisdictional probism i about which trade would perform the work than any other problem. (Tr. 529).

98. CW-e acknowledged that in his dimen==iana with his supervisors about the firs watch, the only thing he ecsad recall Tennyson telhng him was that "you should do [the fire watches).

It's your work." (Tr. 212).

99. Sertway never heard any ironworker +wM= about any unsafe practice associated with the fire watch or anything that might have affected nr.fety. (Tr. 555). Throughout the period when new fire watch procedures were being impla====d. it was Sertway's understandag that the ironworkers did not want to perform their own fire watch bae=>. "they wanted the laborers to do the fire watch." (Tr. 555).

100. Fome recalled occasions wnen the ironworkers said they had a problem with doing tlwir own fire watch, which Fonte irmerpri.ned as more a jurisdictional appeal. (Tr. 597). Fonte could not recall any reason stated for the ironworkers' preference; he merely heard that "they didn't want

- to do their own fire watch." (Tr. 598). Fonte interpreted this to raean that they felt like they were takmg another person's job. (Tr. 598).

101. Fonte und::rstood all of the ironworkers' concerns as jurisdictional disputes: the ironworkers did not want to do their owa prunary fire watch. (Tr. 60041). Fonte really did not know whe'her Complainw was attemptmg to raise some differern issue. (Tr. 601).

102. After Ehele ===nnad responsibihty over the ironworkers in the Unit 3 drywell in early.

January 1993, he lemmed at a safety meeung that the ironworkers did not was to perform their own fire watches. (Tr. 629-30). At the safety meeting on February 1,1993, Ehele perceived that the ironworkers were not happy performing their own fire wstch; however, nothing said at that meetag shed light on the reason for that preference. (Tr. 630).

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17 103. Larry Morrow testined that Mr. Ehele told him. "I cant understand why y'all don't want to do your own work. You know, that's y'all's work in there." (Tr. 301). Morrow said that, nevertheless, the ironworkers did not want to do it. "That was jun not our space - to us it wasn't our work. It had never been until time when it had been changed over." (Tr. 301-02).

5 104. After Stone & Webster began implementing the new fire protection program in October 1992, Mr. Butts heard complaints through his supervisors that the ironworkers did not want to do the fire watch. (Tr. 406). Butts was told that the ironworkers did not feel that fire watching was theirjob. They simply did not wam to do it. (Tr. 406).

105. At the inmal meetings regarding the fire watch issue, Mr. Butts had the impression that there was a labor problem. (Tr. 366). Butts had already held many meetings with the laborers on the fire watch issue, and the laborers' concem was that the ironworkers were taking work from them (Tr. 366). 'Iherefore, until the resolution of,the Sre watch issue in February 1993, Butts' impresson was that there was a need to resolve k controversy between the laborers and the ironworkers.

(Tr. 366).

106. Butts explamed that the laborers' busmess agem acmead Butts and Stone & Webster's labor relations personnel of taking the laborers' work. (Tr. 408). Butts tried to explain that Stone &

Webster had wamed the ironworkers to perform their own fire watch because placing that responsibility upon the person actually performing the hot work improves safety. (Tr. 408-09).

Despite Butts' explanation that Stone & Webster had not meam to violate any junsdictional etiquette, the laborers' business agent took exception to Butts' statement. (Tr. 409). This issue esme up periodically as a topic of discussion at council meetings between Stone & Webster managernem and the laborers' representatives. (Tr. 409).

107. The nrst time Butts understood that the ironworkers' objection to performmg nre watches was anything other than a jurisdictional issue, in that they simply did not want to do it, wm in early Februsry 1993, the day the ironworkers refused to go into the drywell. Butts then learned that this "isn't necessanly a labor issue, that the laborers are refusing to sign on to the fire watch permit." (Tr. 407).

108. Butts explained that no one from TVA ever cortacted hifu regardmg any fire watch issue supposedly raised by ironworkers. (Tr. 414). None of the TVA ofdcials ever advised Stone &

Webster that it had not complied with the Fire Protection Plan or fire watch procedures regardng the number oflaborers or failure to sign-on to hot work permits. (Tr. 414).

109. As well, Butts testified that no one from the NRC ever contacted him or any of his supervisors concermng any potential violation of fire watch procedures. (Tr. 415). Butts said that he learned that Compl*Mam had gone to the NRC site inspector about fire watch concerns only a few weeks before the hearing in this case. (Tr. 426).

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13 110. The ironworkers made statements indicating that their objection to the fire protection program ofOctober 1992,was w.nyjunsdictional. Gene Franks, a welder in the Unit 3 drywell in late 1992 and early 1993, explamed that he had to retake his fire watch school trammg because he delibetely failed it. (Tr. 266). Franks knew that he could be terminated for intentionally failing the fire watch test. (Tr. 283) He failed the test because he felt that it was not his job as an ironworker to do a laborer's job of Ere watch. (Tr. 283). Franks was concerned about taking away work from j the laborers, and as an ironworker he feh he was not at Browns Ferry to perform the work of a laborer, includmg fire we sches. (Tr. 283).

]

i 111. Though Larry Morrow did not attend classes for fire watch training, and had no personal knowtadge of any problem with the fire watch procedures, he knew that the problem expressed at the safety meetmgs was eneentiaHy a labor dispute between the ironworkers and the laborers about who should have fire watch responsibility. (Tr. 292-94). Morrow stated.

(the fire watch) had always5een laborers' work, and now it was being turned over to the craft assigned to that area, and the irom Ais didn't want that. The laborers didn't want them to have it because they had Gways done it in the past at Brown's Ferry. So it just every day, eve;y week rather, it just got to kind of building up and Hi%

up untilit came to a head.

(Tr. 294). 1

. . . [T] hey had sent some ironworkers up (to fire watch school], and J

they failed the test because they said they didn't want to do another trade's work And they come and told me, two of them in particularly, that they failed the test and they wasn't going to do it. They didn't ,

was to do their (i.e., the laborers') job. That was their work. j i

(Tr.295).

112. Mormw confirmed that the laborers were willing to work overtune for fire watches, but the ironworkers did not want the overtune. (Tr. 320). Morrow also confirmed that, at least for some ironworkers who carpooled together, having to work overtime for fire watches wordd be >

problem. (Tr. 321).

113. According to Morrow, at the safety meenng on February 1,1993, the ironworkers were U+4' i * ; that they did not want to perform fire watches, that they did not think that it was right that they should have to p-funn fire wechas, and that theyjust did not was to do it. (Tr. 300). j 114. Complainant admitted stating in his deposition: "I told them (supervisors Tennyson and Fonte) numerous umes the way to get rid of all this head-he is to give all this fire watch back

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i 19 to the laborers . . that would have been the way to get rid of the whole problem, give it every bit I

back to the laborers." (Tr.140).

Stone & Webster Mananement Ulti==talv Raealved The Ironworkers' Fire Watch Cr.r=Ta lif. After Ehele negotiated with the ironworkers on February 3,1993, and encouraged them to reemer the drywell, Ehele met with Mr. Sparks, the lead foreman over the laborers for fire waches. In this mesang, Fhele lemmed that the ironworkers' concern was that the laborers allegedly

) were not signing on to the hot work permits. (Tr. 633). Ehele told Sparks that, if the only problent l was laborers not signmg on to the hot work pernuts, "that's very easdy resolved. Why cant the laborers go ahead and sign on to the hot work permits?" (Tr. 633). Sparks said that would not be

, a problem, and that "[wje'll take care ofit." (Tr. 633).

116. Thus, Mr. Ehele did not learn, until February 3,1993, of the ironworkers' concern that laborers who were performmg fire watch during the cool-down period were not sigung on to hot work permits. (Tr. 632). Prior to February 3,1993, Ehele did not understand their fire watch concerns were about laborers not signing on to the hot work pernuts. (Tr. 632).

117. At the supervisors' meetmg in the afternoon of February 3,1993, Mr. Sparks maggested a fire watch progmm used at Browns Feriy Unit 2. He told Ehele that, with this program, "he could effecarvely cover the fire watch in the drywell strusly with laborers and probably using less

. people than we were using at that time." (Tr. 642). Sparks explained to Ehele that the program would provide adequate coverage and would not affect safety or the number of personnel in the drywell. (Tr. 642).

118. The imnworkers' fire watch concem was ultimately resolved by turning over both the primary and ===4='y fire watch to the laborers, and allowing them to do it. (Tr. 642). On February 8,1993, the first Monday following the sug.ix,rs' meetmg, the laborers agam =====ari fbil r Afty for fire watches in the Unit 3 drywell. (Tr. 442).

119. Butts explained that reassigning fire watch responsibility to the laborers improved safety in the drywell because ofer=&sian and controversy over li , isrs and laborers signing on to different hot work permrts. (Tr. 443). At that time, Butts saw that the best solution would be to prtmde fire watch around the clock with a permanent assignment for each elevation of the drywell.

(Tr. 443). This would avond the problem of fire watch personnel havmg to maneuver back and forth.

(Tr.443).

120. C@b= and l.arry Morrow acknowledged that the fire watch issue was eventanBy resolved by giving fire watch respor.sibilities completely back to the laborers. (Tr.184,315-16).

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1 20 Timothy Bradford 121. Timothy Bradford was employed at Browns Ferry from April 1992 to February 1993, and for another three weeks somenme after that. Bradford was hired as an ironworker and was later designated foreman and then a lead foreman in June 1992. (Tr. 220). Bradford testified that he was in "a big building where (Stone & Webster) had all their of5ce personnel," and he overheard Mr.

Ehele say, to an unidenti6ed hstener, "We've got to get rid of that damn Hamson He's already been to the NRC.* (Tr. 227). Bradford was uncertain that those were the exact words, but he said Ehele's statement was to that effect. (Tr. 234). Bradford could not see the individual to whom Ehele was speaking. (Tr. 228).

122. Bradford told no one about this alleged conversation before he was laid off from the Browns Ferry Plant site. Bradford was laid offin ' ate February or early Mach,1993. (Tr. 231). He forgot Ehele's statement until he was processmg his layoff and he ran into Compin:nnm (Tr. 233).

He said that at the time he overheard the conversation he did not see any reason to mannon it to C = '"== or anyone else. (Tr. 235).

123. Bradford could not scall the date of the alleged remark by Mr. Ehele. He only kr.aw that it happened, "as I was being laid off. " (Tr. $7). Bradford said that Ehele's conversation probably occuned a week before Bradford was laid offin late February or early March. (Tr. 232).

i 124. Bradford drafted a degram, at the request of P Went's cW. representing the - l layout ofthe srpervisors' building (the Contractor Facility Complex), and the layout of the cubicles at the time Bradford allegedly overheard Ehele's converntion. (RX-4a, Tr. 228). Bradford **=na*M that he was we--- ==ly 20 feet away from Ehe!e when he heard the conversation, and that the only thing between them was a partnion about four feet high. Bradford said he was looking at Ebele's left profile. (Tr. 229).

125. Bradford explamed that Ehele was m.i41sg in an of5cc where Mr. Desmond and Mr.  !

Butts had desks. (Tr. 237). Across the hallway from that of5ce, Bradford represemed that the  !

Quality Control Department had of5ces. (Tr. 238). According to Bradford, the Quality Control is on the north side of where Mr. Ehele was standing. (Tr. 239). According to Bradfo d. Ehele was standing inside a cubicle that did not open out onto the hallway, where Bradford was Ustenas. l (Tr. 238). j 126. Mr. Ehele explained that in January and February 1993, he had an of5cc in the i Contractor Facility Complex. (RX-6, Tr. 644). As well, Mr. Butts idemified RX-6 as an accurate W_ of the Contractor Faminy Complex joimly shared by Stone & Webster and TVA in February 1993. (Tr. 430).

127. Mr. Ehele testified, comrary to Timothy Bradford, that there was no Quality Control in the area of Desmond's and Butts' desks in the Contractor Facility Complex in February 1993. l

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i (T1. 647). As well, Ehele could not recall any specific occasion in February 1993 when he had any j business in the TVA Quality Control area. (Tr. 645).

128. Bradford was demoted from his lead foreman position to an ironworker journeyman postion in Sap *W 1992. (Tr. 224). Mr. Tennyson evaluated Bradford's performance over time and discussed Bradford's performance with other supervisors. (Tr. 478). The superMs biggest concern was that Bradford was "less than adequate" as a lead foreman because he was not forceful enough about getting work completed on schadule. (Tr. 479).

129. Bradforts employmem at Browns Ferry for Stone & Webster was briefly interrupt 6 d when his secunty clearance was withdrawn because ofhis positive drug test, which he alleged ws false, when he had previously worked at Browns Feny for TVA. (Tr. 221-22).

130. At the heanng, Ehele strongly denied ever having a conversation with any individual in wisch he said, "we have to get rid ofHamson, he's been to the NRC," or any words to that effect.

(Tr.645).

131. Ehele taannadt hat he did not know that Complainant had spoken with anyone at the NRC and did not learn that Complainant had done so until preparation began for thew proceedings.

(Tr.643).

132. At the time that Bradford was reduced from lead foreman to journeyman ironworker, in WW 1992, he was very unhappy with the demotion. (Tr. 249). He stated that he was also diamarian e d with bemg laid offin February or March 1993. (Tr. 249,259).

133. When Bradford was cut back, from lead foreman, Mr. Butts diminnad the cutback with Bmdford. Bradford W=E i hat he t was being pushed too hard and being asked to push the ironworkers too hard. Bradford told Butts that he did not want to push his crews because "he didn't want them med at him." (Tr. 435-36). Mr. Butts desenbed Bradfords reaction to the cutback as "gmuinely tart" and "tr=n-4an=h hurt f . . . he took offense to it (the cut back from the lead forsman position) personally." (Tr. 435-36).

134. Bradford complained to Mr. Butts about his lay-offin February or March 1993.

(Tr. 259). He registwed complaints with the Merit Systems Protecnon Board, his local union business agent and the repr==antative of the international union, and also wrote to his U.S. Senator about thelay off. (Tr. 259).

Dismssion This case arises under Section 210 of the Energy Reorganization Act,42 U.S.C. I 5851.

Douglas Hamson, the Compiminant, formerly an ironworker, foreman, and lead foreman at the Browns Ferry Project outside Huntsvdle, Alabama, alleges that Respondent Stone & Webstar, the

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f 22 contractor for the Tennessee Valley Authority ("TVA") licensed by the Nuclear Rard wy i Co...A ("NRC") to construct and operate the Browns Ferry Project, discriminated agamst him in contravenuon of the employee protection provisions of the Energy Reor==ae Act.

Specifically, Complainant alleges that he engaged in protected activity when he reported what he narceived to be violations of the Fire Pram Plan to TVA officials and to the NRC. Caraplaia==

alleges that because ofhis protected activity Stone & Webster demoted him from the position oflead l

foreman to a less responsible position and transferred him to a less responsible work area.

J I

To establish a primafacie case under the applicable employee protection provisions, a 1 complainam must show.

(a) that he engaged in protected activity;

. (b) that the employer knew that.the employee engaged in the protected actmty; (c) that the unployer took some adverse action against the employee; and (d) t's employw must present evidence sufficient to at least raise an inference that the protected activity was the likely reason for the adverse scuon.

c n-s v. Tu= van.y p,v,rity 90. ERA-14 (Secretary oflabors Final Decision and Order, April 18,1991), Decamons of the OALJ and OAA, Vol. 5, No. 2, March-Apn!,1991, p.165, at 166, citing Dartev v. 7a4 Co. of CM*==a. Case No. 82-ERA-2 (Secretary of Labor's Decision and P' m al Order, April 25,1983) slip op. at 5-9. Examples of employee cW that the Secretary oflabor has held to be protected include: safety related complaints made by employees who perform supervisory or managerial functions,2 nternal complaints to management,' and reporting alleged violations to govemmentr.1 authorities such as the Nuclear Regulatory Commission and the l EnvironmentalProtection Agency. Carter v. Fluor Constructars Int'1. Tae. Case No. 93-ERA-19 l

(As.--u.M Law Judge's Recommended Decision and Order, August 2,1993), Decisions of the OALI and OAA, Vol. 7, No. 4, July-August ,1993, p. 71 at 84, relying on S. Kohn, Ihg Whistleblower LitiMan Headhook 37,43 (1990).

8 Rieheer. et. al v. BaMwin A==ne.. NO. 84-ERA-9/10/11/12, D&O of remand  !

by SOL, at 11-12 (March 12,1986).

8 There is a dispute igi-4 whether purely internal complaints to management consutute protected acuvity, however, the Secretary of Labor has issued decasions which find that an employee is protected when engagmg in this particular acuvity. Sag Kansas Gas &

Elec. Co v. Brock 780 F.2d 1505 (loth Cir.1905), smL denied,478 U.S.1011 (1986)

(upholding the Secretary oflabors position that the employee protection provision of the Energy RwiMon Act protects purely intemal complaints); but agg Brown & Root. Inc.

v. Donovart 747 F.2d 1029 (5th Cir.1984) (holding that a quahty contro! inspectars' internal filing ofintracorporate complaint wr.s not protected actmty).

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23 If the employee establishes a pnmafacie case, the employer has the burden of pr~Na6-evidence to rebut the presumption of disparate treatment by showing that the alleged disparate ]

treatment was motivated by legitimate nondiscrinunatory reasons. Dartev v 7=ek Co. of f%=ma l id. at 5-9. If the employer successfully rebuts the pnmafacie case, the employee still has an opportunity to demonstrate that the reasons proffered by the employer were a pretext. EBR1 Wrimht Iin. A Div. ofWrioht I ina 251 N.L.R.B.1083 (1980, afd, 662 F.2d 899 (1st Cir.1981),

sagt deniad, 455 U.S. 989 (1982). Sam alEt Munav v Henry 1 K 6 Co_ No. 84-ERA-4,

.mnrr-dad D&O ofAIJ, at 7 (June. 22,1984) ("A ' pretext' in the 6 eld ofiabor relations is a woni of art that generally means that 'the purponed rule or circumstances advanced by the r==paadaar did act exist, or was not, in fact, relied upon."').

Festly, if the trier of fact decides that the employer's disciplinary actions were motivated by both illegal and legaimate reasons, then the dual motive test comes into play. Under the dual motive test, the yky bears the burden of proving that it would have discharged or dielpliaad the anpioyes even in the absence ofthe emploype's protected conduct. Maskcwiak v. Univerany Nucinar Sva_ fae 735 F.2d 1159,1163 64 (9th Cir.1984).

Complain =at mairnains that only Supervifors Butts and Ehele had an improper, retalistory motive when they mitiated deliberations regar. ling his demonan. As for Complainant's other supervisors, CW-' admits that the determiration to reduce him from his lead foreman position was genuine. (Complainam's Brief, p. 8). Rapondent argues that Complainant is unable to prove even apronsfase case, bemuse his ervan=mie=rinns regarding the fire watch program did not ruimte to nuclear safety, and therefore t.cs not protected by Section 210 of the ERA. As well, Pa=pandan*

contends that C46== cannot show that Stone & Webster knew he had engaged in any protected conduct or that any adverse action was taken against him as a result.

L COMPLAINANT'S PJtDfA FACE CASE A. Complainant's Protected Conduct Stone & Webster F=R;.4 Corp. is a contractor for the Taan===* Valley Authority, licensed by the NucisarRegulatory Comunasion to construct and operate the Browns Ferry Project.

The Browns Ferry Project, located outside Huntsville, Al=h=== is a three4mit nuclear plant that produces electric power. Stone & Webster performs construction and t- ~ - work forthe Project. At the time Complainart was employed in Unit 3 of the Project, Stone & Webster was paforming a seismic upgrade of platform steel on several elevarinas inside the drywell of the Unit 3 reactor. (Fedings 1,3).

As one of two lead foremen in the Unit 3 drywell in January and enriy February 1993, C;_f m caadead weeldy safety meetings ="andad by iiW- crews under his supervision and by Stone & Webster supervisors. At a safety meeting conducted by CW-6== on February 1,1993, several ironworkers expressed concerns, raised in several previous meetings, about the are watch procabres. (Fauling 19). The iro-workers were concerned that the fire watch was not being

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I 24 handled aw.4 g to the procedure, set forth in At*=eh=a* I of the Fire Protection Program Plan, during the mantiarary 30-minute cool-down period. (Finding 33). According to At*=ehmaa'I, the ironworkers siped on to the hot work pernut were responsible for fires in their work arena, even i when the irosmarkers were outade the drywell. (Finding 29). The ironworkers did not want to sip offon Annah=== I -.0/., that they were ra aa==ihle for fire watch in their work area during the cool-down because they feared that the rovmg fire watch performed by two laborers was not i

sufEcient protection against the possibility of fires in their work areas. (Fmding 34).

. Ca-d ~~~ claims that he engaged in protected activity when he reported the ironworkers' complaints about the fire watch procedures to TVA officials, to Steve Ebele, and to the Nuclear Regulatory Camnunaian Until the February 1,1993 safety meeting, Ca=a-6~ had never expressed any fire watch objections to supervisors or anyone else. Complainam only got actively i=4ved h trying to resolve the fire watch matter after listening to ironworkers complain at safety

~

mesungs for six weeks. (Fmdag 41). When Complainant's two foremen came to him after that safety meeting and said they needed some relieffrom the fire watch issue, Complainant went on a fact finding mission to see where the problem lay. (Findmg 40).

First, Complainant went to the fire watch traming facility maineminad by TVA, then to fire protection, where Complamant expressed concerns about fire watch procedures to Gary Wallace, a TVA fire protection of5cial (Fmrkng 42). cimimmar then went with David Sparks, the lead foreman for se laborers, to explain to Steve Ehele, that they were trying to work out the problem so that the men ocuid comply with the procedures. (Fedag 43). Complamant told Mr. Ebele that he had been to fire protection and training to discuss the problem and that Mr. Wallace in fire protecnon weised Steve Ehele to call him. (Fuuhng 45). Ahh=gh Ehele did not say that he would do so, Complainant thought that after this meeting Eheir would assip more laborers to the rovmg fire watch. (Fmding 45).

The next day, February 2,1993, Complainars checked the A"=eh=== I sign off sheet poster' outside the drywell to find out whether supervision had assigned more rovmg fire watch to relieve the ironwonters dunng the cool-dcen penod, Complainam saw that there had been no change in the number of rovmg fire watches. (Fmdag 46). Ca=alaia== went back to Mr. Wallace in fire protection and discovered that Steve Ehele had not contacted Mr. Wallace about Complainant's concerns raised the previous day. (Findmg 47). Therefore, Complainant want to the Nuclear Regulatory Camunasian site office across the street. He claims he wanted te put his men in comphance with TVA regulations by any means panniht (Fmdmg 48). Complainant told Joe Mundy, I the NRC site repr*amaranve, that the fire watch was being unproperly administered durmg the mandatory cool-down because there not enough people to watch all the hot places that were in operation. (Fedag 49). To confirm his description of noncompliance, Complainant showed Mr.

Mundy the A*d=st I signoff sheet which allegedly revealed the elevanons that were being worked and the numher of fire watches for each elevation. (Fmdmg 49). i Complainant believed that safety provisions of Attachment I were bemg violated when he l reported the fire watch concerns to TVA, Stone & Webster, and to the NRC. (Fmdag 39). The  ;

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1 25 ironworkers were afraid that the roving fire watch was not sufficient to watch all the areas on the elevation where hot work war. performed. The ironworkers did not want to sign off on Atasch===

I M/c4 that they were liable for fires that might break out in the work areas during the cool <kywa penod when the ironworkers were not in the drywell. During these cool-downs, the sole fire watch was performed by two laborers per elevation. The ironworkers worried that the roving fire watch could not possibly see all of the hot work areas. (Fm' ding 34).

C~aa3 3== attempted to artuadate these manarns about the fire watch to TVA officials and to Mr. Fhale on February 1,1993, and to the NRC, and TVA again, on February 2,1993. I find that Compiminam had a good faith belief that the concerns he expressed substamially affected safety conditions in the drywell. Based on Compiamam's good faith belief that the fire watch was being performed in violation of nuclear safety standards, Complainant's reports to WA officials, Steve Ehele, and to the NRC constituted protected acavity B. Respondent's Knowledge Without prior knowledge that an employee engaged in protected activity, there can be no disst =~y motivation. Crid- v. W11=== ? ower Prade Com. 82-ERA-7, slip. op. of AU at 2 (Oct. 5,1982). An employee must prove such employer knowledge through either diress or circu===*i=1 evidence. NLRB v. Tac..- = Corn. of Amaden 714 F.2d 324,328-29 (4th Cir.

1983);1.arry v. Detrtxt Edison Co.. No. 86-ERA-32, slip op. of AU at 6 (Oct.17,1986). Stone &

Webster clearly had knowledge of C~'=3-;a=== internal contacts with TVA officials and with Steve Ehele, Stone & Webster's Chief Construction Supervisor on February 1 and 2,1993. When Complainant, accom+=9 by David Sparka, the foreman fnr the laborers, met with Mr. Ehsis on February 1,1993, Complainant explained to Mr. Ehele that he had been to TVA fire protection and fire traming, trying to work out the fire watch problem so that his men could comply wkh the procedures. 7mdag 38). At the end of the meeting, Compiminant told Mr. Ehele that Mr. Wallaca, the TVA fire protection official wanted Ehele to contact him ie Meg Ca=plaian=t's conesens.

(Findmg 40). Thus, Complainant made Mr. Ebene aware that he was in contact with TVA of5cials and that he had raised concerns to be addressed by Stone & Webster supervision.

The E.ny'c,A

. argues that it did not have knowledge that Complainant en8sged in protected l activity because Ca== -:==='s commente to Mr. Ehele did not pertain to " sip = " safety concerns. Arguably, the Employer reasonably believed that safiety in the drywell was not comprormand during the 30-munne cool < lown, when only the laborers were performmg a roving firs l watch. 7suhngs 30,108). Aswell, the Ea+1oy. thought that the Lo ga dinama**ia= with )

the fire protecnon plan armamad than the additional responsibility imposed on thesa to perform their l own fire watches. (Findags104-06,110,113).  !

Neverthalene, the burden is not on the Complainam to prove that his allegations are true. ,

Ca==laia== has shown that he expressed concerns, regardless of their veracity, that affected safety l in the drywell. Complainant attempted to explain that the iusw#sers did not want to be liabis for i

fires in the drywell durms the cool-down penod when they were signed on to the hot work pennit wQ. , - .

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26 but were not in the drywell The ironworkers felt that the rovmg fire watch could not physically watch all ofthe acave hot work areas. Suggs at 26. The Respondent's knowledge that Complainant

. was making w ../.eh.ts to TVA officials and to Stone & Webster supervision regardag these concerns of the ironworkers is suf5cient to sausfy the Complainant's pnmafacie case.

Gn the other hand, I find that the Employer did not have knowledge of Complainant's repons to the NRC. C==a8 : == admitted that he did not tell Mr. Wallace, the TVA fire protection officer, that he was going to the NRC when he left Wallace's of5ce on February 2,1993. (Findag 43).

Complainant also tesafied that he knew it was the policy of NRC r.y. me=+ives to keep aanummini any safety concerns brought to them by employees. Ca==3=ia== did not believe that the NRC inspectors ever revealed his idessity to Stans & Webster. (Findag 45). Mr. Butts and Mr. Ehele both confirmed that they did not learn of Complainant's report to the NRC until a few weeks before the heanng in this case. 7mdmgs 103,122). This evidence supports a findmg that the Employer had no knowledge of Cr = != =='s reports to the NRC.

C. Respondent's Adverse Actions Against Complainant One of the requirements for a complainant to *=hliah aprrmafacie case of disenmination under the statute, is that the e discharged or otherwise disenminated agenst the complainant with respect to his compensation, terms, raadi+iaan. or privileges of employment. Sea We+_k v. UA .;a Ni--!-= Svs.. Inc . 735 F.2d 1159,1162 (9th Cir.1984). Under the statute, various employer pracaces have been held to be illegal h !=F=_. includag termination, alenin=rian of a position, transfers and d~aa*=aa_= etc. Sag DeFord v. Secretary ofIdor. 700 F.2d 281,283 (6th Cir.1983); Ellis Fischel State Cancer Hosp y Marshall 629 F.2d 563, 566 (9th Cir.

1980); Wells v. Yaa<== G== & mae. Co.. No. 83-ERA-12, slip op. of ALJ at 18, adopted by SOL (June 14,1984). Complamaru ennrands that the P==aaad== took adverse action against him by first, reducmg him from his lead foreman posmon on February 2,1993, and second, transferring him to an outside crew on February 4,1993.

1. Complainant's Reduction From a I. mad Foreman Position First, CorrTi n=== cannot show that Stone & Webster discrmunatad against him by r+iaia:

him from his lead foreman g =W Pa aaad-= off'ered him a foreman position, which Complainant refused to take, optag, instead, to take a job in a crew, as a journeyman ke usrier.

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Fs mapervuor, Wayne Tennyson, informed C~aal ia== on February 2,1993, that C<--t =t=== would be reduced from his lead foreman position in the drywell to a foreman postion in the same area. (Finding 52). At the time Complamant was informed of his cut back, there were 38 ironworkers and nine designated foremen employed in the Unit 3 drywell, a ratio of three '

ironworkers per forenan. (Fmdag 81). Generally, Stone & Webster maintains a ratio of about eight ironworkers per foreman. (Fmding 81). As well, Complumant was set up as second lead foreman in January 1993 under the condition that, in case of a cut back, Complainant would be the first one reduced bemuse of the memorny of the other lead foreman. (Findmg 15). Complainam was promoted M.m , y.: w.--

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27 to lead foreman to aanst in nrJJJig up the " lower steel" on elevation 563. Fmdmg 14). At the time C(- F== was cut back, on February 2,1993, the work on that level was nearmg compledon and Stone & Webster was concentrating more on the higher levels. Fmding 79).

'Ibe evidence does not support a fmding that Respondent took discriminatory action against C+5" = when it reduced Complainant from his lead foreman position. Complainant was set up as lead foranan to accomplish a speci6c function: to finish the " lower steel" on 'evel 563. Fading 14). When that task was nearly completed, Respondent reviewed its rosters and decided that fewer forunen were needed. Rather than firing Complainant or reducing him to a non-supervisory position, i Respondent reduced Complainant from his lead foreman position, so that only one lead foruman l would be responsible for all the work in the Unit 3 drywell. As a foreman, Complainant would have lost approximately two dollars per hour in pay, but he would have retained the same F '*% and he would have retained his supervisory authority over a crew. 7mdag 9). Complainam would have supervised one arew, and been responsible to Gene Hannah, the rernaming lead foreman in the drywell, as his supervisor. ,

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C W -;a- ~ however, rejected the foreman pontion offered to him, and insisted on taking a journeyman k-..wa' er job. 7mdag 60). Complainant said that he did not want to taka a foreman's job and bump one of the foremen that had been working under him for some action cr==plainant had taken He told his supervisor that he would rather go back in the crew. Fading 55).

In spite of his supervisor's repeated requests that he take a foreman job, C=i- insisted.on moving down to a joumsyman ironworker aa idaa I fmd that neither C{=i" "s reduction Aum the lead foreman job, nor his voluntary choice to accept a lesser job than the one offered to him can be construed as discrhninatary e=d - by the Respondent.

2. Complainant's Transfer to an Outside Crew Complainant's transfer to an outside Leewd.er crew on February 4,1993, may have been an adverse acuan. On February 3,1993, aAer Complainant was informed of his reduction and opted to take a position as a journeyman ircewv.w, C~- :- - requested that Gene Hannah, the lead foreman in the drywell, allow him to hold a mesang with his former crews. 7ading 57).

Complainant ap3=iaad ot the men that he had been cut back the previous aAernoon, that the Are watch problem was the same as it had been the day befbre, and that he had refused to take a foruman posnion because he did not want to punish one of his foremen for something he was doing. (Finding 57). As he left the meeting, Complainam admitted that he overheard the men say that they should refuse to reenter the drywell until the fire watch problem was L'~ " out. Fading 58).

CanaaT==ly, the ironworkers refused to einer the dryweil to perform their work. Mr. Ebels bad.to come down to the area te speak with the ironworkers personally to get them bacic to work. (Finding 58).

The following day, Febrr.ary 4,1993, when Complainant came to work, he was in the east access band:a= where the rear, tor is Wad, rather than inside the drywell. That morning Larry Morrow came to emport Complainant out of the area at Mr. Ehele's instruction. Iarry Morrow told

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' C+-j=b= that he had heard Compirdnant was a trouble-maker, and that he was like Moses in the Red Sea to the ironworkers in the drywell. (Fmding 63).

Mr. Ehele explained that when he saw that Complainant was still in the area of the Unit 3 drywell, he asked Mr. Morrow to get Complainant and return Complainant to his normal work area, outside the drywell. (FPuhng 65). Mr. Ehele thought that, by holding meetmas with drywell workers that Complainant coukt undernane the authorny of Gene Hannah, the. lead foreman. He felt that Complainara had a following, and, by mestag with the ironworkers and preventing them from going about their business, Complainan: was "actmg as Moses when he parts the Red Sea." (Fmding 65).

'Ihrough this evidence, Complainant has shown that Stone & Webster took adverse action against him, by transferring him to a work area outside of the drywell.

D. Inference that Complainant's Protected Activity Was the Likely Reason for the Respondent's Adverse Action Frst, it must be noted that no inference of discriminatory tootive can be drawn from the fact  ;

that Complainant's denotion closely followed his internal report of fire watch concerns The RW='s action in th== Complainant from a lead foreman to a foreman was non-punitive, )

j and was therefore not an adverse action Although Complainant has shown that his reporting was  !

protected under the Act, anC that the P W had knowledge of his internal reports, Camplain==t failed to show that the Respondent took any adverse action assunst him by demotag him. Thus, no inference of die 6anatory , tent can be drawn from tha: non-punitive action.

To prove the Respondent's discriminatory motive in transfemng him to an outside crew, Complamant relies on, one, the tesumony of Timothy Bradford, a former lead foreman in the Unit 2 reactor of the Browns Ferry Project, who daime he overheard Mr. Ehele say, "WeVe got to get rid of that damn Hamson. He's already been to the NRC;" and two, Steve Ehele's mmments to Larry Morrow, that he thought Complainant was like Moses in the Red Sea to the irovemiers, when he ordered Complainant out of the drywell area.

1. Bradford's Testimony Tanothy Bradford was hired as an ironworker at the Browns Ferry Project in April 1992, and worked as an irtsworker, foreman and lead forernan, at differest times until February 1993, and for another three weeks as a journeyman ironworker sometime after that. (Fmdag 121). Bradford claims that he overheard a conversrc m between Steve Ehele and someone whom Bradford could not idemnfy, in which Ehele stated, "We've got to get rid of that damn Harrison. He's already been to the NRC." (Tsuhng 121). Bradford said Eheie's conversation allegedly occurred in a " big building where (Stone & Webster) had all their office pwww cl." (Fmding 121). Ehele was in an area where there were many desks and cubicles. In the 20 feet between Bradford and Ehele, Bradford said there was a partition about four feet hip Jinding 124).

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r 29 Bradford quah6ed his taimany by statmg that he was uncertam those were the exact wonis Ehele used, but Eheie's statement was something to that effect. (Findmg 121). Bradford did not tell anyone about this conversation at the time because he did not see any reason to do so. Fadag 122).

He forgot the matement until the day he was processing his layoff, sometime in the end ofFehmary or the N --- ofMarch, when he ran into Complainant. (Finding 122). Bradford also could not recaR exacdy when Ehele allegedly made this remark. Bradford said it must have been about a week before his layofE sometune in February 1993.'(Findag 123).

i Bradford had been demoted for cause from a lead foremn position to a journeyensa ironworker position in Sgr is 1992. His supervisors' concern was that he was less than adequate as a lead foreman, and that he was not forceful enough abcut gettmg work completed on schedule. ,

(Finding 128). Mr. Butts testi6ed that Bradford was personally offended by the cut back, and was j also dittati=Aart with being laid off somarime in the end of February or the beganing of Marsh.

(Findags 132,133).

l I find that Bradford's +m is not rehable. He could not recall the exact sta+a=== made by Ehele, though he testified that he ===nh-ed the nature ofit. At the time, he did not teu anyone that he overheard Ehele say, "We've got to get rid of that damn Hamson. He's already been to the i NRC," or anything to that effect. He could not idennfy the person to whom Ehele was speeldes or i the name of the building where the conversation took place. Most important, Bradford could not recall when the alleged remark was made. He said it naast have occurred about one week before he  ;

was laid off, but he did not know when he was laid oft except to any that it must have been lese i February or early March. (Finding 123). en-plainam was unnhie to prodde evidence that the alleged statement was made before C+--i "s demotion or transfer ti. < aside crew. For thans reasons, Timothy Bradford's testimony is not credible and will m 4 port an inference this ,

Respondent had a discriminatary motive in transfening Complainant to an outside crew. i

2. Ebele's Comment to Larry Morsww Steve Ehele made the statamant to Larry Morrow that Complainant was " acting as Moses

. when he parts the Red Sea," the day after C{ =i - - held an unecharentari meeting with the iemum crew he had prevmusly supervised. (Fa' uhng 65). Complainant met with his former crews on Febmary 3,1993, to indbrm them that the fire watch problem was unsolved and that FW was refusing to take a foreman's position because he did not want to punish one of his foremen for something he was doing. (Fauling 57). Because of that meenng, the ironworkers refused to esser the drywell to perform their work. (Fauhng 58). Steve Ebde was forced to mediate with the ironworiours and get them backto work. (Fmdag 58).

On February 4,1993, Mr. Ebene sent Lany Morrow to fetch CW-* out of the drywell and take him to a crew outside the drywell, where Complainant had been assigned. (Feding 63).

Though Camplainant testi6ed that he was working in Tony Keeton's crew the day after he was reduced from lead fo. , Complainant admitted that he did not ra==nhar where his supervisa:s assigned him. (Fauling 60). Ehele said that Complainant had requested, through Larry Morrow, a

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transfer to an outade crew. Such a transfer request is not uncommon among lead foremen reduced to work in Geir own crews. (Fmding 64). j I find that Ehele made the maramars that Complainant was " acting as Moses in the Red Sea,"

in direct reference to C1==rlh's action in meenng with the irommrkers on February 3,1993. The statement was unrelated to Complamant's protected reporting of fire watch anfety concerns to TVA ofEcials or Stone & Webster aspervision. Complainmat was not transferred to the outside crew aAer Stone & Webster was made aware of his intemal reporting. His transfer came, either at his own request, accedO, to Mr. Ehele, or after his unauthorized meeting with the i. weder% which resuhed in a work stoppage. In either case, such activity is not protected under the Act. Therefore, the matam== cannot raise an inference that Complainant was transferred to an outside crew because ofhis protected actmty.

~

The weight of the evidence proves that the roster review, which revealed an naan=ptahle ratio ofironworkers per foreman in the dryw' ell, was a W*= norW1. s.etory reason to reduce J

re=nplainant from his lead foreman position. Complamant was aware, at the time he was set up as lead foreman, that he would be the first reduced in case of a e_*k t thus, Complainant's damaeian was not puninve. Had C=i'=?===^ accepted the foreman position offered to him, he would have r===inad supervisory authority over a crew. The Respondent is not raapaa==hl* for Cr =i'=t-- ^'s choice to forego the foreman position and take a position as a journeyman itenworker.

As well, camplainant's transfer to an outside ironworker crew, if not made at C-:---iF-- "s request, was mouvated by Complain =nt's unprotected actmty in assembling the ironworkers which resulted in a work stoppage. Complainant's imernal repornns of fire watch safety concerns was unrelated to the E i.byds determination that C+ ; ' :== should be transferred to an outside crew.

Considering the evidence as a whole, I find that Complainant has failed to prove that his protecsed acovity was the likely reason for his reduction or transfer to an outside crew. Cc-- -g ----

has failed to set forth aprrmafacie case of retaliatory discharge. ,

i RECOMMENDED ORDER l l

On the basis of the foregoing, I recommend that the complaint filed by Douglas Hamson be  !

DISMISSED.

ff w A RICHARD K. MALAMPHY[

Adminierstrve Law Judge l

Newport News, Virginia RKM/Isb dT6.x '_% ?i' . ~ " ' s ***' .

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SERVICE SHEET CASE NAME: DOUGLAS HARRISON V. STONE & WEBSTER CASE NO.: 93-ERA-44 TITLE OF DOCUMENT: RECOMMENDED DECTMTON AND ORnrn I hereby certify that on May 10, 1993, a copy of the foregoing document was sent to the parties and their representatives at their last known addresses listed below.

tAh .b ,-dhu s Diana L. Hinton * \

Legal Technician FEDERAL EXPRESS MAIL REGULAR MAIL Office of Administrative Appeal Deputy Associate Solicitor U.S. Department of Labor Division of Fair Labor 200 Constitution Avenue, N.W. Standards Room S-4309 U.S. Department of Labor-SOL Washington, DC 20210 t Room N-2716 Constitution Avenue, N.W.

CERTTFTED MATL Washington, DC 20210 Robert M. Rader, Esq. Environmental Protection Agency Joan B. Tucker Fife, Esq. 401 M. Street, S.W.

WINSTON & STRAWN Washington, DC 20460 1440 L Street, N.W.

Washington, DC 20005-3502 Director, Office of Enforcement U.S. Nuclear Regulatory Comm.

Jim Stansell, Esq. Washington, DC 20555 1700 Wilson Dan Road Suite 3 P. O. Box 2433 Office of General Counsel U.S.

Muscle Shoals, AL 35662 Nuclear Regulatory Commission Attn: Deputy Assistant General Counse1 for Enforcement ES~ , 11555 Rockville Pike Rockville, MD 20852

. met.. 4. Gilbert Acting District Director William H. Berger Wage and Hour Division Deputy Solicitor Berry Building, Euite 301 U.S. Department of Labor 2015 Second Avenue North Rn 339, 1371 Peachtree St., NE Birmingham, AL 35203 Atlanta, GA 30367 Administrator Tennessee Valley Authority Employment Standards Admin. Mr. Norman Eigrossi '

Wege & Hour Division-USDOL Office of Inspector General Room S-3502, FPB 400 W. Stummit Hill Drive  !

200 Constitution Avenue, N.W. Knoxville, TN 37902  ;

Washington, DC 20210 Douglas Harrison Rt. 4, Box 387 i Russellville, AL 35653 k >k%Th D Y;

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(sod) 873-309 ,

DATE: November 16,1994 CASE NO. 93-ERA-44

{

IN THE MATTER OF

. DOUGLAS HARRISON, CWai===

v. -

STONE & WEBSTER ENGINEERING GROUP, FWa=

ERRATA OP&FR A recommended decision and order was issued on November 8,1994, in the above case.

The following paragraph concerning the appeal proceu should have been attachM to the order:

l NOTICE: This Recommended Decision and Order and the ad- ' : : .iive file in this matter will be forwarded for review by the Secretary of Labor to the Of5ce of Administranve Appeals. U.S. Dwuss of Labor to the Of5ce of Admimstrauve Appeals, U.S. Dew w of Labor, Room S-4309, Frances Perians Building,200 Consutution Ave., NW, Wa=*=*aa, DC 20210. The Of5ce of AA - -i iive Appeals has the re.Wility to advise and asmst the Secretary in the preparation and issuance of final decisioin in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 arxi 1978. Ssg 55 Fed. Reg.13250 (1990).

4 RICHARD K. MALAMpfY Mminirtratrve Law Judge RKM/DLH/dih Newport News, Virgima 2 ._ _ . . n. .. . _ . . . . _ . -

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SERVICE SHEET D

CASE NAME.

DOUGIAS HARRISON V. STONE & WEBSTER CASE NO.: 93 ERA-44 TITLE OFDOCUMENT: ERRATA ORDER 1 here; certify that on Nowmber 16, 1994, repr==a== aves at their last known addresses luned below.a copy of the foregomg docisnent was sent RM '

Dlims L. Human '

Legal Tar 4==e==n REGULAR MAIL REGULAR MAIL Of5ccof V ' ~_.uv. Appeal Bruno Uryc U.S.Depamnest c(Labor SenerEnfaronnent Speonahst 200 Consotaan Avenue, N.W. "

Ronan S-4309 A- andlavasugnon Coord Stafr Wednarian DC 20210 U.S. Nuclee Fernier=y re=====an-Regan II

. 101 Manetta Street N.W., Suite 2900 Atlanta,GA 30323

, Robet M. Rader,Esq.

Joan B. TuckerFife,Esq.

WINSTON& STRAWN Of5cc of Geners! Counsel U.S. Nuclear Regulatory 1440 L Street, N.W.

c-==an Attn: Depsy Ansistant General Washm62e,DC 20005 3502 cr===-I for "A-11555 Rockvdle Pike Jim Stansell,Esq.

Rockvdle,MD 20852 1700 WilsonDem Road Suite 3 P. O. Box 2433 William H.Berger Momene %=1=. AL 356G Depay %em U.S. Department of taber Kenneth R. Odbat Rm339,1373 Peachtree St.,NE Acang Distnct Danciar Adanta,GA 30367 Wege and HourDivision Besty Buddag. Suite 301 2015 La=d Avenue North T- Valley Authonty Mr. Norman Zigmasi Bin ==?= AL 35203 Of5cc ofinspector Genera!

Al-......-.. 400 W.Sunumt Hill Dnve

. Employment Standards Adnun Knoxydle,TN 37902 Wege & Hour DMaan-USDOL Room S-3502,FF3 Douglas Harnson 200 P- '*** Avaue, N.W. Rt. 4 Box 387 Washaston,DC 20'110 Russellville, AL 35653 Deputy Assocaste Solicitor Divison ofFairlaborStandards U.S.Dv- ;ofLabor SOL Room N.2716 i rs======t Avenue, N.W. l l

Wadunenn DC ?O210

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401 M. Street, S.W.

Washmpan DC 20460 l Duncier,Of5cc c(Enfornament I

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January 4, 1995 FACT SHEET FOR DISCRIMINATION CASES COMPLAINANT [ COMP): Harrisori, Douglas W. ERA NO.: 93-ERA-044 LICENSEE / FACILITY: TVA Browns Ferry Stone & Webster Engineering Corporation NRC REGION: 2 DESCRIPTION OF PROTECTED ACTIVITY: Complained of inadequate coverage of firewatch, following reports to him by subordinates DESCRIPTION OF ALLEGED DISCRIMINATION: " cut back to foreman . . . about a two dollar reduction in pay" (see complaint, p. 2).

DATE OF DISCRIMINATION: -2/2/93? (see reference to attending class in comp 1aint)

DATE OF COMPLAINT: March 30, 1993 DATE COMPLAINT RECEIVED BY DOL: May 17, 1993 DID COMPLAINANT ALSO REPORT DISC. TO NRC7: R:II cc'ed on complaint LICENSEE'S EXPLANATION OF ACTION:

DISCUSSION: DWH also said in his complaint that "[a]fter this, all the men knew I had been hung out to dry. If another problem like this arises no one will say anything for fear of retaliation."

ACTIONS TAKEN TO MAKE COMPLAINANT WHOLE:

CULPABLE LICENSEE MANAGER (S) [CLM): (INCLUDE NAxE, TIrLE, AND wHATHER cLn IS STILL wITu LICENSEE AND IN vaAr CAPACITY Ir xNOwN)

ACTIONS TAKEN AGAINST CLM:

SETTLEDs DATE SETTLED:

SETTLEMENT CONDITIONS:

DISTRICT DIREC2DR'S DECISION: June 16, 1993 - no discrimination "your change in position from lead foreman to foreman resulted solely from a reorganiza tion of work crews and supervisors. "

DOL ALJ DECISION November 8, 1994 -

"The Respondent's knowledge that Complainant was making complaints tc TVA THIS DOCUMENT MAY CONTAIN PREDECISIONAL INFOAMATION IT CAN kOT BE RELEASED OUTSIDE THE hRC -'

WITHOUT THE APPROVAL OF THE DIRECTOR, CFFICE OF EhFORCEMEkT j i

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officials and to Stone & Webster supervision regarding these concerns of the ironworkers is sufficient to satisfy the complainant's crima facie case. . . .

On the other hand, I find that the Employer did not have knowledge of complainant *s reports to the NRC." (p. 26)

Complainant argued that discrimination was (1) reduction from lead foreman position (2/2/93) and (2) transferring him to an outside crew on 2/4/93.

" Respondent offered him a foreman position, which Complainant refused to take, opting, instead, to take a job in a crew, as a journeyman ironworker." (p. 26)

"I find that neither complainant's reduction from the lead foreman job, nor his voluntary choice to accept a lesser job than the one offered to him can be construed as discriminatory conduct by the Respondent." (p . 2 7)

"[T]he Complainant has shown that Stone & Webster took adverse action against him, by transferring him to a work area outside of the drywell." (p. 28)

"The weight of the evidence proves that the roster review, which revealed an unacceptable ratio of ironworkers per foreman in the drywell, was a legitimate, non-discriminatory reason to reduce complainant from his lead foreman position. . . . The Respondent is not responsible for Complainant's choice to forego the foreman position and take a position as a journeyman ironworker.* (p. 30)

SECRETART OF LABOR DECISION:

DOL AlJ REVIFBD DECISION (IF kPPLICABLE)

NRC ACTIONS TAKEN DISCUSSED WITE OIT: 2-93-020 - no discrimination CHILLING EFFECT LETTER [CEL] SENTT:

ENFORCENsNT ACTION ISSUED (INCLUDE EA NO.):

CLOSBOUT ACTION (OTHER THAN ENFORCEMENT) 2 RENARKSt I

I TMis DOCUMENT MAY C,4TAIN PREDECISIONAL INFORMATION II CAN NOT BE RELEASED OUTSIDE THE hRC WITHOUT THE APPROVAL OF THE DIRECTOR, OFFICE OF Ehf0RCEMENT

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/  :** NUCLEAR REGULATORY COMMISSION f\ REGION ll J #' I 101 MARtETTA STREET. N.W.. SUITE 2900 3*

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-[e ATLANTA. GEORGIA 303234190 s

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MEMORANDUM T0: E. Merschoff, DRP

  • FROM: B. Uryc, Director. EICS -

SUBJECT:

01 REPORT NO. 2-93-030, BROWNS FERRY NUCLEAR PLANT:

ALLEGED DEMOTION OF STONE AND WEBSTER ENGINEERING CORPORATION (SWEC) GENERAL FOREMAN FOR EXPRESSING FIRE PROTECTION CONCERNS ( ALGTN NO. RII-93-A-0096)

The enclosed OI report is provided for your review. OI closed this case finding that SWEC did not discriminate against a alleger for engaging in protected activity, By memo dated December 22, 1994, the Office of Enforcement (OE) informed the Regional Administrator that a review of the case indicated that enforcement action was not warranted.

It is my view that this case should be closed without further action. I have also enclosed a letter to the licensee that transmits the 01 report synopsis and advises the licensee that we plan no action. If you do not have a different view regarding closure, we will close the case.

Attachment:

01 Report 2-93-030 cc w/o att: 0. DeMiranda M. Lesser n h i

2 (1 (1 sucg;& & \

a

/pa arc ut#' UNITED STATES l

NUCLEAR REGULATORY COMMISSION

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4 REGloN ll I I E 101 MARIETTA STREET. N.W., SUITE 2900 7' ;j ATLANTA, GEORGIA 303234199 l

...../ May 16, 1995 MEMORANDUM TO: E. Merschoff, DRP

  • FROM: B. Uryc, Director, EICS l

SUBJECT:

01 REPORT NO. 2-93-030, BROWNS FERRY NUCLEAR PLANT:

ALLEGED DEMOTION OF STONE AND WEBSTER ENGINEERING CORPORATION (SWEC) GENERAL FOREMAN FOR EXPRESSING FIRE PROTECTION CONCERNS (ALGTN NO. RII-93-A-0096)

The enclosed 01 report is provided for your review. 01 closed this case finding that SWEC did not discriminate against a alleger for engaging in protected activity.

~

By memo dated December 22, 1994, the Office of Enforcement (OE) informed the Regional Administrator that a review of the case indicated that enforcement action was not warranted.

It is my view that this case should be closed without further action. I have also enclosed a letter to the licensee that transmits the OI report synopsis and advises the licensee that we plan no action. If you do not have a different view regarding closure, we will close the case.

I

Attachment:

01 Report 2-93-030 cc w/o att: 0. DeMircnda A. Ignatonis  !

L. Watson

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M. Lesser l l

MAY I 81995 i Hede -k &JM: l 4it- & M " S h diA-.

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