ML20205C474
| ML20205C474 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 10/18/1995 |
| From: | Merschoff E NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | Ehele S AFFILIATION NOT ASSIGNED |
| Shared Package | |
| ML20205B966 | List:
|
| References | |
| FOIA-99-76 EA-95-229, NUDOCS 9904010223 | |
| Download: ML20205C474 (24) | |
Text
4
[sa'm:0b NUCLEAR REGULATORY COMMISSION UNITED STATES
- 3 REGION ll y
o 101 MARIETTA STREET, N.W., SUITE 2900 i
3 j
ATLANTA, GEORGIA 30323-o190 y
October 18, 1995 EA 95-229
~
W Mr. Steve Ehele i
y 7. w.
$ f- / Yl Y
n
SUBJECT:
PREDECISIONAL ENFORCEMENT CONFERENCE
Dear Mr. Ehele:
On August 22, 1995, the Secretary of Labor issued a Decision and Orde which found that Stone & Webster Engineering Group (Stone & Webster) discriminated against Mr. Douglas Harrison (DOL Case 94-ERA-44) when Mr. Harrison was i
demoted because he had raised concerns related to firewatch requirements.
Mr. Harrison was employed as an ironworker general foreman at Tennessee Valley Authority's (TVA) Browns Ferry Nuclear Plant.
In addition, the Secretary of Labor found that the removal of Mr. Harrison to an outside work crew was also discriminatory and that Mr. Harrison's discussion with other ironworkers on i
1 the lack of response to the fire protection concerns was a protected activity.
A copy of the Secretary of Labor's decision is enclosed (Enclosure 1).
The Secretary of Labor's Decision and Order indicated that, while you were employed by Stone & Webster as.a Chief Construction Supervisor at the Browns Ferry Nuclear Plant, you deliberately discriminated against a subordinate supervisor, Mr. Harrison, with respect to the terms, conditions, or privileges of his employment as a direct and proximate result of his engaging in a protected activity. Specifically, you wrongfully demoted Mr. Harrison as a result of his protected activity and reassigned Mr. Harrison to an outside work crew when he discussed his concerns with other workers. This is an apparent violation of 10 CFR 50.5 (Deliberate Misconduct) and 10 CFR 50.7 (Employee Protection) (See Enclosure 2). 10 CFR 50.5 prohibits licensee or contractor employees from engaging in deliberate misconduct that causes the licensee to be in viclation of any rule or regulation, and 10 CFR 50.7 prohibits the licensee from discriminating against any employee for engaging in certain protected activities.. The NRC Office of Investigation (01) conducted an inquiry into this case and based on the preliminary Department of Labor decisions and the TVA Office of Inspector General report concluded that the allegations of discrimination were not substantiated. Our letter to TVA dated May 17, 1995, transmitted the 01 synopsis to TVA and indicated that no further action was planned on the case. However, because of the Secretary of Labor's Decision and Order issued on August 22, 1995, the discrimination against Mr. Harrison is considered an apparent violation.
Based on the Secretary of Labor's decision in this case, the apparent violation is being considered for escalated enforcement action in accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), (60 FR 343J1; June 30,1995/ NUREG-1600).
Accordingly, no Notice of Violation is presently being issued for this finding. Please be advised that the number and characterization of the g
apparent violation described above may change as a result of further NRC k
review.
\\
GUNTER99-76 PDR j
\\
Certified Mail Number: P 291 242 607 0Q&/O(D au3 l$
A; Mr. Ehele 2
You are invited to participate in a joint predecisional enforcement conference with Tennessee Valley Authority and Stone & Webster to discuss the app'p.m aren violation. The conference is scheduled for October 30, 1995, at 1:00 You were advised of the predecisional enforcement conference schedule in a telephone call by Mr. Mark Lesser of this office on October 11, 1995. A proposed conference agenda is enclosed (Enclosure 3). The conference will be held in the Region II office in Atlanta, Georgia. You may also request a separate predecisional enforcement conference. TVA and Stone & Webster representatives will not be allowed to attend your conference unless you specifically request their presence.
In accordance with the Enforcement Policy, you are afforded an opportunity for a predecisional enforcement conference prior to the NRC making a final decision regarding any escalated enforcement action. Therefore, if you are unable to attend the scheduled predecisional enforcement conference, you should promptly contact us to schedule a conference at another date and time.
Encivsed for your information (Enclosure 4) is a copy of the current NRC Enfor rement Policy. Your attention is directed to Section~V, which explains the pu' pose of predecisional enforcement conferences and Section VIII, which explait.s enforcement actions involving individuals. Note that the enforcement sanctions that could be considered include a letter of reprimand, a Notice of Violation and/or an Order prohibiting or restricting involvement in NRC licensed activities. The predecisional enforce:nent conference will be closed to public observation and transcribed.
Additionally, please note that although your.,resence is requested for this meeting, you are not required to attend the conference. Should you choose not to attend the conference, the NRC intends to proceed based on the relevant information available to us. Also, you have the right to bring a personal representative or legal counsel. However, if you desire to bring another person, the individual shou.1 contact the NRC in advance of the conference.
The decision to hold a predec,3 *onal enforcement conference does not mean that the NRC has determined that a violation has occurred or that enforcement
-action will be taken. This conference is being held to obtain information to enable the NRC to make an enforcement decision, such as a common understanding of the facts, root causes, missed opportunities to identify the apparent violation sooner, corrective actions, significance of the issues and the need for lasting and effective corrective action.
In addition, this is an opportunity for you to point out any disagreement with the facts and findings presented in the Secretary of Labor decistor, and for you to provide any information concerning your perspectives on the severity of the apparent violation, and any other application of the Enforcement Policy to this case, including the exercise of discretion in accordance with Section VII.
In particular, we expect you to address the basis for the adverse employment 4
action taken against Mr. Harrison.
You will be advised by separate correspondence of the results of our deliberations on this matter. No response regarding the apparent violation is required at this time.
j
o Mr. Ehele 3
In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice," a copy of i
this letter and its enclosures will be placed in the NRC Public Document Room.
Should you have any questions concerning this conference, please contact Mr. Bruno Uryc at (404) 3315505 or Mr. Mark Lesser at (404) 331-0342.
Collect calls will be accepted. You may also contact us by calling
'1-800-577-8510.
Sincerely, f
/W Ellis W. Merschoff, Director Division of Reactor Projects Docket Nos. 50-259, -260, and -296 License Nos. DPR-33, -52 *.nd 68
Enclosures:
1.
Secretary of Labor Decision dated August 22, 1995 2.
Copy of 10 CFR.50.5 and 10 CFR 50.7 3.
Proposed Predecisional Erforcement Conference Agenda
'4.
NRC Enforcement Policy cc w/o encls w/home address deleted:
i Tennessee Valley Authority ATTH: Mr. Oliver D. Kingsley, Jr.
President, TVA Nuclear and Chief Nuclear Officer 6A l.ookout Place 1101 Market Street Chattanooga, TN 37402-2801 Stone & Webster Engineering Group ATTN: Mr. R. E. Kelly President 245 Sunner Street Boston, MA 02240 Stonc & Webster Engineering Group ATTN: Mr. Brad Dodson Vice President, Nuclear Operations 245 Summer Street Boston, MA 02240
=
U.S. DEPARTMENT OF LABOR SECRETARY OF LABOR WASHINGTON. o.C.
DATE: August 22, 1995 CASE NO. 93-ERA-44 IN THE MATTER OF DOUGLAS HARRISON, COMPLAINANT, v.
STONE & WEBSTER ENGINEERING GROUP, RESPONDENT.
BEFORE:
THE SECRETARY OF LABOR DECISION AND ORDER Before me for review is the Recommended Decision and Order (R. D. and 0.) issued on November 8, 1994, by the Administrative Law Judge ( AIJ) in this case arising under section 211 (employee protection provision) ci the Energy Reorganization Act, as amended (ERA-), 42 U.S.C. S 5851- (1988 & Supp. V 1993).
The AIJ has recommendad that the complaint be dismistsed because Complainant failed to prove that his protected activity was the likely reason for his demotion and transfer to a less desirable work assignment.
R.
D.,a# O.'at 30.
I disagree.
11:2TUAL BAcwGROUND The AIJ has thoroughly recounted the f acts.
R. D. and O. at 3-21.
Very briefly, Respondent, Stone & Webster Engineering Group, contracted with the Tennessee Valley Authority (TVA) to perform construction and maintenance at the Browns Ferry Project,
2 a three-nnit nuclear f acility located near Huntsville, Alabama.
Complainant, Douglas Harrison, was employed by Respondent.at Browns Ferry from June 1992 until being laid off due to a reduction-in-force in April 1993.
Harrison began work as a journeyman ironworker.
In August 1992, he was promoted to ironworker foreman, and in October 1992 he was promoted to lead
~
foreman.
Due to a reduction-in-force, he again became a foreman in November 1992, but was restored to lead foreman in January 1993.
1 On February 1, 1993, Harrison conducted a weekly safety meeting with his two crews of two foremen and 13 or 14 ironworkers and another lead foreman and his crews of about the same size.
Compara Complainant's Exhibit (CX) 1 with Joint Exhibit (JX) 4.
Management representatives also attended, including Stephen Ehele, the chief construction supervisor, and Wayne Tennyson, a senior construction supervisor.
In January 1993, Ehele had been transferred to the Unit 3 drywell where Harrison and his crews were working.
The ironwork maintenance and modification work at Unit 3 entailed seismic upgrade of platform steel.
At the meeting, "the guys' big beef was firewatch," a safety concern that they had raised previously but that never had been
]
resolved.I' Hearing Transcript (T.) 25.
It similarly was not i
l
During the-30-minute " cool down" period following the conclusion of any welding, grinding, burning, or other " hot" work, the ironworkers involved were responsible for pelicing their work stations watching for fire.
Under Respondent's (continued...)
I 3
resolved during the safety meeting.
The ironworkers were quite vocal in their complaint, and Ehele " caught most of the heat."
As the meeting concluded, Harrison was approached by his T. 26.
foremen who implored him finally to settle the complaint.
Harrison thereafter met with personnel in TVA's firewatch including TVA fire training and' fire protection departments, marshall Jerry Wallace, who advised-him that the existing firewatch procedure violated Respondent's fire protection program.
Respondent's Exhibits (RX) 1, 2.
He then accompanied laborer lead foreman David Sparks to meet with Ehele and advised him that he was out of compliance.
Ehele objected that they were 9
T.
I
" eating him alive on man hours in that drywell" as it was.
t Nothing was resolved, and Harrison finally departed after 39.
advising Ehele that Wallace wanted to discuss the procedure with t
him.
Harrison discovered Upon arriving at work on February 2, that the complaint still had not been resolved and that Ehele had Harrison then complained to i
not even contacted Wallace about it.
Later, after attending the Nuclear Regulatory Commission (NRC).
l a training class which concluded at about 2 p.m., Harrison was i
l'(... continued) scheduling,'however, the ironworkers exited immediate all work stations.
Harrison' testified:
my foremen working in enough different places on one elevation that two rovers could not physically see within their scope of Hearing Transcript (T.)
view everywhere that was being worked."
34.
See T. 208-209, 267-273.
m f'
4 4
informed by supervisor Tennyson that he had been demoted to l
foreman.
On February 3, Harrison elected to work as a journeyman ironworker rather than bump one of his own foremen as the apparent result of his safety activities.I' He went to work for Terry Keeton, whom he previously had supervised, organizing steel ~
pieces near the turbine building.
Later, with the permission of Eugene (Ross E.) Hannah, the remaining lead foreman, Harrison R.
advised the crews that the firewatch complaint had not been addressed and that he had been denoted.
The ironworkers then refused to work without proper fire protection.
In response, l
l Ehele called a meeting with management, the union, the laborers and the ironworkers, at which time the complaint was resolved by assigning firewatch duties exclusively to an increased number of laborers.
Ehele ordered Harrison to an outside crew.I' On February 4, Harrison was,taken outside by Larry (Doc) Morrow, the ironworker job steward, who reinted Ehele's statement that Harrison "was to l
get out of there, that [he) was a troublemaker, and that [he) was like Moses standing at the Red Sea to the ironworkers in that drywell."
T. 66 (Harrison).i' Harrison's exit from the drywell
)
Harrison contacted the NRC a second time to complain about l'his demotion which he attributed to the firewatch complaint.
i i
Hannah's journal entry reflects that the decision to l'
T. 535.
transfer Harrison outside was made on February 3.
I 1'
Morrow's testimony is consistant:
"[Ehele) said [a]s long as Doug Harrison is in the drywell, the drywell ironworrers are (continued...)
9 I
i
4-5 occurred-about 45 minutes after he had related the events of the preceding four days to Brownie Harrison, a TVA construction supervisor.
DISCUSSION The ALJ found (1) that Harrison engaged in protected
~
activity by making internal safety complaints and contacting the NRC and (2) that while Respondent was aware of the internal complaints, it had no knowledge that. Harrison had complained to the NRC.
R. D. and O.'at 23-26.
I agree.
The record fully
- supports these findings.I' With regard to the ALJ's discussion of the applicable legal standard, R. D. and O.
at 22 and n.3, I note that ERA section 211(a) (1) now expressly protects both internal and external safety complaints.
I disagree with the ALJ in his analysis of adverse action.
In deciding whether Respondent took adverse action in demoting Harrison, the ALJ states:
" Complainant cannot show that (Respondentj, discriminated against him by reducing him from his lead foreman position.
Respondent offered him a foreman i'(... continued) going to look'up to him, and he stands up there like Moses at the Red Sea, so go down there and get him.out.
And I said -- it took me.by. surprise.
I said_do you want a man?
Do you want to swap a man?- He said no.
Go down there and get him out.
If he's in the
. dry well, get him out."
T. 331.
Morrow testified that upon locating Harrison, he (Morrow) said:
" Big Boy, what the hell have you done?
And (Harrison) looked up at me kind of funny.
I said you're' going to the outside. 1And I said what have you done.
You've done something.
What were you doing?"
T.
329.
l' While some ironworkers also complained about the division of firewatch duties between ironworkers and laborers, and Respondent initially perceived the complaint as a labor dispute, Harrison's concern was safety.
c 6
position, which Complainant refused to take, opting, instead, to take a job in a crew, as a journeyman ironworker."
R. D, and O.
at 26.
To the contrary, in wrongfully' deciding to. demote an employee to a less responsible, lower-paying position, an employer discriminates against the employee with respect to his l
compensation, terms, conditions, or privileges of employment by
~
depriving him of the more desir Lla paaltion.
The fact that the employee decides to quit, for example, instead of accept the demotion bears solely on.the remedy.
Unlans constructively discharged in such a situation, an employee is not eligible for l
post-resignation damages and back pay or for reinstatement.
Nathaniel V. Westinghouse Hanford Company, Case No. 91-SHD-2, Sec. Dec.,.Feb.
1, 1995, slip op, at 20-21.
Here, Harrison accepted a still lower-paying job than he was offered initially.
That he further damaged himself would not eliminate the discrimination.
It would, however, limit his recovery.
The AL{ also found that Respondent demoted Harrison for a legitimate, nondiscriminatory reason.
R. D. and O.
at 26-27.
The question is close.
On January 27, 1993, James Butts, Respondent's field manager and Ehele's superior, reviewed the craft roster and directed Ehele to examine the ratio of journeyman ironworkers to foremen to determine whether supervision was top heavy.
According to Butts, the ratio should be six to eight ironworkers for each foreman.
T.
421-422, 474.
Butts testified:
"When I picked [the roster) up and looked at it specifically for the ironworkers,
7 there was 38 ironworkers and there was nine foremen on the roster, or there was nine peopia out of that 38 that was designated foremen.
Just simplo division told me that was only three people per foreman, so I questioned it."
T.
421.
An examination of the roster for February 1, see JX 4, which was identical to that for the preceding week, shows a breakdown of 29 journeymen, seven foremen, and two lead foremen.
Harrison supervised two crews, each consisting of a foremsn and six to seven journeymen which is a ratio of four people for each
- foreman, More of a problem, however, lay with one of Hannah's foremen who supervised only two journeymen and with two employees (Thomas Willis and Willie Fulks) who were classified as foremen and who received foreman wages, but who supervised no employees.
In the final analysis, Butts decided to retain these employees at
.the foreman wage.
No adjustment was made for the two-man crew.i' Harrison's demotion is consistent with Butts' purported " rule of thumb" of three to five crews for each lead foremen, but is inconsistent with Harrison's January 1993 promotion to supervise fewer than three crews.
T. 474, 525-526.
I also note that the total number of ironworkers did not decrease coincidentally with Harrison's demotion,.
T.
527.
2' By demoting Harrison to foreman and concomitantly demoting the previous foreman to journeyman, the supervisory ratio becomes
-five journeymen for each foreman (30 journeymen and six foremen),
i rather than the six to eight journeymen per foreman envisioned by Butts.
This figure does not include Willis and Fulks who performed paperwork and were supervised directly by a senior construction supervisor.
T. 544-545, 648.
l l
L
o 4
8 A further difficulty with Ehele's decision is its timing.I' Butts directed Ehele f3 review the roster on January 27, and Ehele responded with his decision "either that afternoon or the next morning."
T.
423.
Yet, Respondent waited six days, until February 2, to advise Harrison of his demotion, coinciding with the second day of his safety activities.
The timing then is somewhat irregular.
Timing notwithstanding, without the additional evidence of Ehele's animus, I might have agreed with the ALJ's finding that Harrison was demoted solely because Respondent reassessed its need for foremen.
Ehele expressed animus against Harrison for his leadership role in the firewatch complaint when, on February 4, he referred,
to him as a " troublemaker" and as " Moses parting the Red Sea to the ironworkers in the drywell."
He also exhibited animus by removing Harrison from the drywell and transferring him to an outside crew.
Morrow's account shows that Ehele was agitated when he ordered Harrison outside.
T.
307-308, 329, 331.
See
- n.4, supra.
In retrospect, the tenor of Ehele's response to Harrison concerning the February 1 confrontation suggests that animus was also Present at that timu.
Ehele was not then l'
The ALL is incorrect when he states that "no inference of discriminatory motive can be drawn from the fact that complainant's demotion closely followed his internal report of fire natch concerns."
R. D. and O.
dt 28.
Rather, a causal
. connection may be established by showing that the employer was aware of the protected activity and that adverse action followed closely thereafter.
See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldrige, 759 F.2d 80, 86 and n.6 (D.C.
Cir. 1985); Burrus v. United Telephone Co. of Kansas, In c., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982).
5 9
disposed to address the firewatch complaint, responding instead
~
that they were " eating him alive on man hours in that drywell" as l
it was, and he did not consult Wallace, TVA's fire marshall, as Harrison requested.
Additionally, the circumstances'in which-Harrison was 1
denoted were circumspect.
Respondent initially had perceived a
~
supervisory. imbalance, but discovered that two employees classified as foremen were not supervisors and thus not part of the equation.
They were retained at the foreman wage, however.
Of the remaining options available to correct the perceived disparity, only Harrison was demoted.
The demotion occurred
{
i immediately following his confrontation with Ehele and a mere month after he had been promoted to supervise the same number of crews that Respondent now deems too few.
In fact, Harrison's demotion was the only step taken by Respondent to reorganize, which -did not achieve the professed result.
Rather, Butts' ratio required elimination of additional foremen.
See n.6, supra.
The demotion left Hannah, the remaining lead foreman, with widespread responsibliities which Harrison testified h.e would have felt uncomfortable assuming had he been offered the position.
T.
121-122.
Morrow also testified that Hannah war " overloaded" in comparison to the other crafts on the project.
T.
314.
1 While a supervisory reorganization, even of such miniscule j
proportion, offered a legitimate reason for demoting Harrison, I find that Harrison's participation in the firewatch complaint also entered into the decision.
Respondent was presented with an
r o
10 opportunity to reorganize, and did so only as to Harrison, in part, because.of the complaint.
Accordingly,.this case requires a dual motive analysis, where a respondent " bears the risk that
'the influence of legal and illegal motives cannot be separated.
Mackowiak v. University Nuclear sys., Inc.,
735 F.2d 1159, 1164 (9th Cir. 1984), quoting NLRB v.
Transportation Management corp., 462 U.S.
393, 403 (1983).
Respondent has not. demonstrated on'this record that it would have demoted Harrison, even if he had not engaged in protected activity.
The record contains no evidence that Respondent acted similarly during other reorganizations, or that procedures in place for reorganizing its work force dictated this result.
Harrison thus prevails on this aspect of the complaint.
The ALJ also found that Shela's decision to transfer Harrison to a less desirable position on the outside crew was not retaliatory.
I disagree.
In making this finding, the ALJ
)
focused exclusively on Harrison's initial protected complaint, rather than considering the manner in which events escalatad, R. D. and O.
a*. 3 0.
Indeed, Harrison's communication to the crews, which resulted in their refusal to work without mandated fire protection, constituted separate protected activity.
In speaking to the crews on February 3, Harrison was in effect complaining that the firewatch complaint had not been addressed and that he had been demoted after having complained.
This communication, then, constituted an early version of which is Harrison's section 211(b) discrimination complaint,
11'
, protected under section 211(a) (1) (D) as a proceeding commenced or about to be commenced under the ERA.
42 U.S.C.
S 5851(a). (1) (D)
("[njo employer may.
. discriminate against any employee.
because the employee.
commenced, caused to be commenced, or
~is about to commence or cause to be commenced a proceeding under this chapter")-
~
That the complaint was communicated to co-workers does not defeat protection.
Section 211(a) (1) (D) prohibits discrimination because an employee has mada a complaint.
Cf. Marshall v.
Whirlpool Corp., 593 F.2d 715, 724-725 (6th C;r. 1979), aff8d, 445 U.S.-1 (1980) (making a complaint.is an implied initial step in commencing a formal proceeding and deserves protection under remedial safety'and health legislation).
It does not specify to q
whom the complaint must be made.
In a case brought under the analogous employee protection provision of the Surface Transportation Assistance Act, the Secretary held protected a truck driver's safety complaint made to a co-worker over a citizens
- band radio.
Assistant Secretary for Occupational Safety and Health and Moravec v. HC & M Transportation, Inc.,
Case No. 90-STA-44, Sec. Rem. Dec., July 11, 1991.
]
Federal courts similarly have held under the occupational Safety and Health Act (OSH Act) that complaints to private parties other than employers are protected.
Donovan v. Diplomat Invelope Corp., 587 F. Supp. 1417, 1424 (E.D.N.Y.
1984), aff'd on other grounds, 760 F.2d 253 (2d Cir. 1985) (report of OSH Act violations to collective bargaining representative); Donovan v.
J
r 12 3
R.D. Andersen Constr. Co.,
552 F. Supp. 249, 252 (D. Kan. 1982)
(published interview by newrpaper reporter concerning safety and health hazards at worksite); Dunlop v. Hanover Shoe Farms, 441 F.
Supp. 385 (M.D. Pa. 1976) (complaint-to attorney about worksite canditions).
The Diplomat court stated expressly that complaints to co-workers are protected:
The purpose of the statute is to encourage employees to come forward with complaints of health hazards so that remedial action may be taken.
In the ordinary course of events, an employee who notices a health hazard will begin by bringing the matter to the attention of those with whom he deals directly in his daily worklife such as the employer, supervisors, co-workers, or union officials.
This is simple common sense.
These persons are the ones most likely to be in a position to obtain information regarding the alleged hazard and to take appropriate action.
587 F. Supp. at 1424.
A complaint to a co-worker may be the first step in the complaint process and thus specifically comes within the "about to commence or cause to be commenced" language of many employee protection provisions including the ERA.
42 U.S.C.
~
5 5851(a) (1) (D).
This rationale underlies Hanover Shos Farms, 441 F. Supp. at 388 (complaint to attorney covered because retention of counsel to represent complainant constitutes first step in exercise of employee rights) and Andersen, 552 F.
Supp.
at 253 (comments to newspaper reporter protected because'"[ilt is clear that proceedings could be instituted after an employee's
~
communication with the media").
Discrimination against Harrison because of his role in the j
crews' work refusal also is prohibited.
The ERA accords i
5
13 employees the right to refuse "to engage in any practice made unlawful by (the Act)."
42 U.S.C. S 5851(a) (1) (B).
It is uncontrovarted that the crews refused to work without mandated fire protection and that inadaquate firewatch coverage exposed workers to.the hazard that a fire would not readily be detected.
TVA's firewatch training and fire protection departments
~
confirmed that the procedure being implemented violated the Fire Protection Program Plan.
JX 1 at 94.
Indeed, a basis for the crews' complaint was that the procedure was contrary to that being taught in TVA's training sessions.
ERA'section 211(a) provides in relevant part:
(1) No employer may.
. discriminate against any employee.
. because the employee (or any person acting pursuant to a request of the employes)
(B) refused to engage in any practice made unlawful by this Act.
(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter..
or a proceeding for the administration or enforcement of any requirement imposed under this chapter.
(E) testified or is about to testify in any such proceeding or.
(F) assisted or participated.
in any manner in such a proceeding.
or in any other action to carry out the purposes of this chapter.
42 U.S.C. S 5851(a) (1).
There is no record evidence that l
Harrison requested the crews to refuse work, section 211(a) (1) (B), only that upon leaving the meeting, "he heard someone say that the men should not go back to work until the fire watch problem was straightened out."
R.
D.
and O.
at 10.
.At the very least, however, in communicating the status of the
)
firewatch complaint to the crews, Harrison " assisted or participated" in its resolution which came about because of the a
i i
r 14 crews' response to the communication.
He thus would be protected under section 211(a) (1) (F).
I agree with the ALJ, R. D.
and O.
at 28, that transfer to the outside crew adversely affected Harrison's terms, conditions or privileges of amployment although no wage rate differential apparently was involved.
Transfer to a less desirable job may constitute adverse action.
DeFord v. Secretary of Labor, 700 F.2d 2281, 283, 287 (6th Cir. 1983) (although rate of compensation not changed, transferred employee "found he was not welcome, that he was no longer a supervisor, and that his job was i
by no means secure").
See Jenkins v. U.S. Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec., May 18, 1994, slip op. at 14-16 (employee transferred from challenging,
- technical position that utilized her qualifications fully and required community interaction to isolated, administrative position).
The instant record shows that crews working "outside the containment vessel around the reactor.
, did jobs y
- like putting up chain link fences or fabbing stuff in the fab T.
12 6. !'
Inside work, on the other hand, was shop.
more involved and received more " emphasis (and] attention."
f' Harrison initially worked " odd jobs" on the outside crew.
T. 71.
He testified:
d(T]here was an oil yard out by a well test shop'that had some re-bar sticking up in it, and they wanted somebody to go out and weld them down.
So I went out and welded
.that down."-
Id.
1
15 T. 71-72.
It was considered "on the critical path" in the development of the " /well. l' Finally, the dispatch with which Harrison was transferred following the protected activity, in conjunction with Ehele's expression of animus in referring to Harrison'as a " troublemaker" and " Moses parting the Red Sea," is sufficient to establish causation.
Rsspondent's only explanation for transferring Harrison was that he requested it.
Ehele testified that on February 2 he was called away from a meeting to speak to Harrison and Morrow, as follows:
Q.
Did you leave the meeting?
l A.
Yes, si.
Mr. Morrow motioned and asked if I would come-out in the hallway, sir.
Q.
What did he ask you?
A.
He asked if I have a problem with Mr. Harrison being assigned to another area other than a dry well.
Q.
Was Mr. Harrison standing alongside of him ut that time?
A.
Yes, sir, he was.
Q.
And what was your response?
A.
Under the circumstances I have no problem.
T.
627.
Ehele does not recall anyone else leaving the meeting to speak to Harrison and Morrow.
T. 626-627.
i l
l'
" Critical path is a term used to describe work that is j
directly in the path of things that have to be done to get that
]
reactor back on line and producing power.
It means it has.to be j
done before the unit can be restarted."
T.
70.
1 L'
_l
16 The ALJ ostensibly declined to find that this event occurred, only that it occurred "according to Mr. Ehele.
R.
U. and O.
at 30.
Harrison testified-that he neither requested a transfer from Ehele nor mentioned auch a request to Morrow.
T.
125.
Morrow testified that he was never present outside a supervisors' meeting with Ehele and Harrison, and that Ehele never told him in Harrison's presence that he would grant a request to transfer Harrison outside.
T.
307-308..
As to the ALJ's statement that Harrison " admitted that he did not remember where his supervisors assigned him," R.
D.
and O.
at 29, an examination of the remainder of his testimony reveals a very specific account of who was supervising him and what he was doing in the interlude between demotion and transfer.
T.
60-61, 64-65, 124-125, 128.
The ALJ also states that Harrison's communication to the crews occurred at an " unauthorized meeting" and that the transfer "if not made at (Harrison's) request, was motivated by (his) unprotected activity in assembling the ironworkers which resulted in a work stoppage."
R. D. and O. at 30.
This characterization is less than accurate.
Harrison spoke briefly to crews already assembled by Hannah, the remaining lead foreman, with Hannah's full permission.
Based on the testimony of Harriscn and Morrow, I find that Harrison did not request to be transferred.
I am further persuaded in this regard by the ALJ's failure to credit Ehele's account of the February 2 hallway meeting.
As discussed above,
i l
l L
17 Harrison's communication was protected activity, and Respondent's decision to transfer him because of that activity was unlawful.
CONCLUSION I find that Complainant Douglas Harrison was demoted, in i
part, because of his participation in the firewatch complaint and that Respondent has failed to demonstrate that it would have denoted him even if he had not engaged in that protected activity.
I also find that the subsequent transfer to the outside crew was retaliatory.
Accordingly, Respondent Stone &
Webster Engineering Group is directed to compensate Complainant for the two dollar an hour differential between lead foreman and i
foreman wages from February 2, 1993, until the April 14, 1993, layoff.H' complainant is awarded costs and expenses, including attorney fees, reasonably incurred in bringing the complaint.
Complainant is granted a period of 20 days from the date of this I
order to submit any petition for costs and expenses.
Respondent thereafter may respond to any petition within 40 days of the date of this order.
f SO ORD8 RED.
- e. ##
Ohwm/
d$.
SedretaYY'of Labor Washington, D.C.
1 i
B' The extent to which the layoff may have been retaliatory-was i
not at issue in this complaint.
I
e C_ERTIFICATE OF SERVICE
~
Case Name:
Douglas Harrison v. Stone & Webster Eagineering Group Case No.:
93-ERA-44 00cument:
Decision and Order i
A copy of the abcre-referenced document was seit to the following 6 22 2 persons on M
e CERTIFIED MAIL Jim Stansell, Esq.
1700 Wilson Dam Road Suite 3 Muscle Shoals, AL 35662 I
Robert M. Radere Esq.
Jean B. Tucker Fife, Esq.
Winston & Strawn 1440 L Street, l'.W.
Washington, DC 20005-3503 Douglas Harrison Route 4e P.O. Box 387 Russellville, AL 35653 REGvLAR MAIL i
Associate S611citor for Fair Labor Standards U.S. Department of Labcr Room N-2716 200 Constitution Avenue, N.W.
Washington, DC 20210 Maria Echaveste i
Administrator Wage and Hour Division Employment Standards Administration U.S. Department of Labor i
200 Constitution Avenue, N.W.
Washington, DC 20210
e j
2
~~
William h. Berger Deputy Solicitor U.S. Department 'f Labor 1371 Peachtree Screet, NE Room 339 Atlanta, GA 30367 Kenneth R. Gilbert Acting District Director Wage and Hour Division Berry Building, Suite 301 2015 Seepnd Avenue North yp_
Birmingham, AL 35203 Director Office of Enforcement Nuclear Regulatory Comnission Washington, DC 20555 Deputy Assistant General Counsel for Enforcement Office of the General Counsel i
Nuclear Regulatory Commission Washington, DC 20555
'NRC Enforcement Coordinator 101 Marietta Street, NW Suite 2900 Atlanta, G,t 30323-0199 j
Hon. John M. Vittone 1
Acting Chief Adafinistrative Law Judge
~
Office of Administrative Law Judges 800 K Street, N.W.
Suite 400 Washington, DC. 20001-8902 Hon. Richard K. Malamphy Administrative Law Judge office of Administrative Law Judges Suite 300, Commerce Plaza 603 Pilot House Drive Newport News, VA 23606 l
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!!!!!!!!!do not use in final package -
save in case we go back to individual conferencell!!!!!!
ENCLOSURE 2 PROPOSED PREDECISIONAL ENFORCEMENT CONFERENCE AGENDA PREDECISIONAL ENFORCEMENT CONFERENCE WITH MR. STEVE EHELE immediately following conference with STONE & WEBSTER ENGINEERING GROUP AND TENNESSEE VALLEY AUTHORITY BROWNS FERRY NUCLEAR PLANT October 30, 1994 I:00 p.m.
I.
INTRODUCTION AND OPENING REMARKS S. D. Ebneter, Regional Administrator II.
DISCUSSION OF THE ENFORCEMENT POLICY B. Uryc, Director Enforcement and Investigation Coordination Staff III.
OVERVIEW Mr. Ebneter IV.
APPARENT VIOLATION AND NRC CONCERNS E. Herschoff, Director Division of Reactor Projects V.
INDIVIDUAL'S PRESENTATION
- *
- BREAK * *
- VI.
NRC FOLLOWUP QUESTIONS Mr. Merschoff VII.
CLOSING Mr. Ebneter
l O
j
/ p a% q%,4 UNITED STATES T
NUCLEAR REGULATORY COMMISSION 3
REGloN fl y
o 101 MARIETTA STREET. N.W.. SUITE 2900 f
ATLANTA, GEORGIA 3CI32H199 l
k...../
Ntober 18, 1995 EA 95-229 Mr. Steve Ehele
[HOME ADDRESS DELETED UNDER 10 CFR 2.790)
SUBJECT:
PREDECISIONAL ENFORCEMENT CONFERENCE
Dear Mr. Ehele:
On August 22, 1995, the Secretary of Labor issued a Decision and Order which found that Stone & Webster Engineering Group (Stone & Webster) discriminated j
against Mr. Douglas Harrison (DOL Case 94-ERA-44) when Mr. Harrison was j
demoted because he had raised concerns related to firewatch requirements.
Mr. Harrison was employed as an ironworker general foreman at Tennessee Valley Authority's (TVA) Browns Ferry Nuclear Plant.
In addition, the Secretary of Labor found that the removal of Mr. Harrison to an outside work crew was also discriainatory and that Mr. Harrison's discussion with other ironworkers on the lack of response to the fire protection concerns was a protected activity.
A copy of the Secretary of Labor's decision is enclosed (Enclosure 1).
The Secretary of Labor's Decision and Order indicated that, while you were employed by Stone & Webster as a Chief Construction Supervisor at the Browns Ferry Nuclear Plant, you deliberately discriminated against a subordinate supervisor, Mr. Harrison, with respect to the terms, conditions, or privileges of his employment as a direct and proximate result of his engaging in a protected activity.
Specifically, you wrongfully demoted Mr. Harrison as a result of his protected activity and reassigned Mr. Harrison to an outside work crew when he discussed his concerns with other workers. This is an appaient violation of 10 CFR 50.5 (Deliberate Misconduct) and 10 CFR 50.7 (Employee Protection) (See Enclosure 2).
10 CFR 50.5 prohibits licensee or contractor employees from engaging in deliberate misconduct that causes the licensee to be in violation of any rule or regulation, and 10 CFR 50.7 prohibits the licensee from discriminating against any employee for engaging in certain protected activities. The NRC Office of Investigation (01) conducted an inquiry into this case, and based on the preliminary Department of Labor decisions and the TVA Office of Inspector General report concluded that the allegations of discrimination were not substantiated. Our letter to TVA dated May 17, 1995, transmitted the 01 synopsis to TVA and indicated that no further action was planned on the case. However, because of the Secretary of Labor's Decision and Order issued on August 22, 1995, the discrimination against Mr. Harrison is considered an apparent violation.
Based on the Secretary of Labor'.i decision in this case, the apparent violation is being considered for escalated enforcement action in accordance with the " General Statement of Policy and Procedure for NRC Enforcement l
Actions," (Enforcement Policy), (60 FR 34381; June 30, 1995/ NUREG-1600).
Accordingly, no Notice of Violation is presently being issued for this finding.
Please be advised that the number and characterization of the apparent violation described above may change as a result of further NRC l
review.
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Certified Mail Number: P 291 242 607 v
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You are invited to participate in a joint predecisional enforcement conference with Tennessee Valley Authority and Stone & Webster to discuss the apparent violation.
The conference-is. scheduled for October 30, 1995, at 1:00 p.m..
You were advised of the predecisional. enforcement conference schedule in a
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telephone call by.Mr. Mark Lesser of this office on October'li,1995. A proposed conference agenda is enclosed (Enclosure 3). The conference will be held in the Region II office in Atlanta, Ceorgia.
You may also request a separate predecisional enforcement conference. TVA and Stone & Webster representatives will not be allowed to attend your conference unless you specifically request their presence.
In accordance with the Enforcement Policy, you are afforded an opportunity for a predecisional enforcement conference prior to the NRC making a final decision regarding any escalated enforcement action.
Therefore, if you are unable to attend the scheduled predecisional enforcement conference, you should promptly contact us to schedule a conference at another date and time.
Enclosed for your information (Enclosure 4) is a copy of the current NRC Enforcement Policy.
Your attention is directed to Section V, which explains the purpose of predecisional enforcement conferences and Section VIII, which explains enforcement actions involving individuals. Note that the enforcement sanctions that could be considered include a letter of reprimand, a Notice of Violation and/or an Order prohibiting or restricting involvement in NRC licensed activities.
The predecisional enforcement conference will be closed to public observation z.nd transcribed.
Additionally, please note that although your presence is requested for this i
meeting, you are not required to attend the conference. Should you choose not to attend the conference, the NRC intends to proceed based on the relevant
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information available to us. Also, you have the right to bring a personal i
representative or legal counsel. However, if you desire to bring another person, the individual should contact the NRC in advance of the conference.
The decision to hold a predecisional enforcement conference does not mean that the NRC has determined that a violation has occurred or that enforcement action will be taken. This conference is being held to obtain information to enable-the NRC to make an enforcement decision, such as a common understanding of the facts, root causes, missed opportunities to identify the apparent violation sooner,. corrective actions, significance of the issues and the need for lasting and effective corrective action.
In-addition, this is an opportunity for you to point out any disagreement with the facts and findings pmented in the Secretary of Labor decision and for you to provide any inirmation concerning your perspectives on the severity of the apparent violation, and any other application of the Enforcement Policy to this case, including the exercise of discretion in accordance with Section VII.
In particular, we expect you to address the basis for the adverse employment action-taken against Mr. Harrison.
You will be advised by separate correspondence of the results of our i
deliberations on this matter. No response regarding the apparent violation is required at this time.
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1 Mr. Ehele 3
In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice," a copy of this letter and its enclosures will be placed in the NRC Public Document Room.
Should you have any questions concerning this conference, please contact Mr. Bruno Uryc at (404) 3315505 or Mr. Mark Lesser at (404) 331-0342.
Collect calls will be accepted.
You may also contact us by calling 1-800-577-8510.
Sincerelyr Ellis W. Herschoff, Director Division of Reactor Projects Docket Nos. 50-259, -260, and -296 License Nos. DPR-33, -52 and 68
Enclosures:
1.
Secretary of Labor Decision dated August 22, 1995
~2.
Copy of 10 CFR 50.5 and 10 CFR 50.7 3.
Proposed Predecisional Enforcement Conference Agenda 4.
NRC Enforcement Policy cc w/o encls w/home address deleted:
Tennessee Valley Authority ATTN: Mr. Oliver D. Kingsley, Jr.
President, TVA Nuclear and Chief Nuclear Officer 6A Lookout Place 1101 Market Street Chattanooga, TN 37402-2801 Stone f: Webster Engineering Group ATTN:
Mr. R. E. Kelly President 245 Summer Street Boston, MA 02240
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Stone & Webster Engineering Group ATTN: Mr. Brad Dodson Vice President, Nuclear Operations 245 Summer Street Boston, MA 02240
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V, 1
I PROPOSED PREDECISIONAL ENFORCEMENT CONFERENCE AGENDA STONE & WEBSTER ENGINEERING GROUP TENNESSEE VALLEY AUTHORITY l'
BROWNS FERRY NUCLEAR PLANT October 30, 1995 1:00 p.m.
I.
INTRODUCTION AND OPENING REMARKS S. D. Ebneter, Regional Administrator II.
DISCUSSION OF THE ENFORCEMENT POLICY 1
B. Uryc, Director Enforcemert and Investigation Coordination Staff III.
OVERVIEW Mr. Ebneter IV.
APPARENT VIOLATION AND NRC CONCERNS j
E. Merschoff, Director Division of Reactor Projects V.
LICENSEE PRESENTATION VI.
STONE & WEBSTER ENGINEERING GROUP PRESENTATION i
VII.
STATEMENT OF S. EHELE
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- BREAK * * *
-VIII.
NRC FOLLOWUP QUESTIONS Mr. Merschoff I
IX.
CLOSING Mr. Ebneter i
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