ML20205C491
| ML20205C491 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 10/18/1995 |
| From: | Merschoff E NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | Kingsley O TENNESSEE VALLEY AUTHORITY |
| Shared Package | |
| ML20205B966 | List:
|
| References | |
| FOIA-99-76 EA-95-220, NUDOCS 9904010227 | |
| Download: ML20205C491 (25) | |
Text
'e
~
~
\\s
/c,#" "'DQ*o,4 UNITED STATES w
NUCLEAR REGULATORY COMMISSION 3
REGloN H "o
101 MARIETTA STRFET. N.W., SU'TE 2900 j
ATLANTA, GEORGIA 3IID m39 v...../
October 18, 1995 EA 95-220 Tennessee Valley Authority ATTN: Mr. Oliver D. Kingsley, Jr.
I President, TVA Nuclear and Chief Nuclear Officer 6A Lookout Place 1101 Market Street Chattanooga, TN 37402-2801
SUBJECT:
PREDECISIONAL ENFORCEMENT CONFERENCE
Dear Mr. Kingsley:
On August 22, 1995, the Secretary of Labor issued a Decision and Order which found that Stone and Webster Engineering Group (Stone & Webster) discriminated against Mr. Douglas Harrison (DOL Case 94-ERA-44) when Mr. Harrison was demoted i
because he had raised concerns related to firewatch requirements. Mr. Harrison was employed as an ironworker general foreman at Tennessee Valley Authority's (TVA's) Browns Ferry Nuclear H ant.
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 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 concluded that Stone & Webster 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. 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 i
General report concluded that the allegations of discrimination were not substantiated. Our letter dated May 17, 1995, which transmitted the OI synopsis to you, 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 an apparent violation of 10 CFR 50.7 which prohibits discrimination against an employee who engages in protected activities such as providing an employer information about alleged violations of NRC requirements.
Based on the Secretary of Labor's decision in this car,e, the apparent violation i
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 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 review.
A joint predecisional enforcement conference to discuss the apparent violation has been scheduled with Stone & Webster, TVA and Mr. Steve Ehele, the Stone &
l Webster supervisor involved in this case, for October 30, 1995, at 1:00 p.m. in the Region II office. The predecisional enforcement conference schedule was discussed in a telephone call between Mr. Mark Medford of your staff and Mr. Mark Lesser of this office on October 6, 1995. A proposed conference agenda V
7 990324
~
99j40 s
jy.
OUNTER99-76 PDR
g TVA 2
is enclosed (Enclosure 2). The predecisional enforcement conference will be closed to public observation and transcribed.
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 disagreament with the facts and findings presented in the Secretary of Labor decision and for you to provide any information concerning your perspectives on 1) the severity of the apparent violation, 2) the application of the factors that the NRC considers when it determines the amount of a civil penalty that may be assessed in accordance with Section VI.B.2 of the Enforcement Policy, and 3) any other ap;1ication 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.
(
We are also concerned with the potential chilling effect that may have resulted j
from Mr. Harrison's demotion and the recent Secretary of Labor decision.
Therefore, notwithstanding the information requested above and whether or not 1
you agree with the Secretary of Labor decision, wo expect you to address the actions taken or planned to assure that this adverse employment action does not have a chilling effect on other licensee or contractor employees raising perceived safety concerns.
In addition, you should address your corrective action to ensure that Stone & Webster managers are aware of their responsibilities to provide a work environment in which all employees may freely identify safety concerns without fear of retaliation or discrimination.
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.
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 letter, please contact us.
t Sincerely, 2
Ellis W. Herschoff, Direcl tor Division of Reactor Projects Docket Nos. 50-259, -260 and -296 License Nos. DPR-33, -52 and -68
Enclosures:
(See page 3) i cc w/encls: (See page 3)
b a,
TVA 3
Enclosures:
1.
Secretary of Labor Decision dated' August 22, 1995 2.
Proposed Predecisional Caforcement Conference Agenda cc w/ enc 1 2:
Mr.'O. J. Zeringue, Senior Vice President Nuclear Operations Tennessee Valley Authority 3B Lookout Place 1101 Market Street Chattanooga, TN 37402-2801 Dr. Mark 0. Medford, Vice President Engineering and Technical Services Tennessee Valley Authority 3B Lookout Place 1101 Market Street Chattanooga, TN 37402-2801 Mr. D. E. Nunn, Vice President New Plant Completion Tennessee Valley Authority 3B Lookout Place 1101 Market Street Chattanooga, TN 37402-2801 Mr. P. P. Carier, Manager Corporate Licensing
. Tennessee Valley Authority 4G Blue Ridge 1101 Market Street Chattanooga, TN 37402-2801 i
]
_3 l
i TVA 4
cc w/ encl 2 cont'd:
Mr. T. D. Shriver, Manager Nuclear Assurance and Licensing Browns Ferry. Nuclear Plant Tennessee Valley Authority P. O. Box 2000 Decatur, AL 35602 Mr. Pedro Salas Site Licensing Manager Browns Ferry Nuclear Plant Tennessee Valley Authority P. O. Box 2000 Decatur, AL 35602 Mr. R. D. Machon, Site Vice President Browns Ferry Nuclear Plant Tennessee Valley Authority P. O. Box 2000 Decatur, AL 35602 TVA Representative Tennessee Valley Authority 11921 Rockville Pike Suite 402 Rockville, MD 20852 Gene al Counsel Tennessee Valley Authority ET 11H 400 West Summit Hill Drive Knoxville, TN 37902 Chairman Limestone County Commission 310 West Washington Street Athens, AL 35611 State Health Officer Alabama Department of Public Health 434 Monroe Street-Montgomery, AL 36130-1701
-?
Stone & Webster Engineering Group i
ATTN: Mr. R. E. Kelly l
President 245 Summer Street Boston, MA 02240 l
r l
U.S. DEPARTMENT OF LABOR SECRETARY OF' t.ASOR WASHINGTON. D.C.
DATE: August 22, 1995 CASE No. 93-ERA-44 Of.2vw 0 REGIO % gg M DAT IN THE MATTER OF i'
'f5EC 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 O.) issued on November 8, 1994, by the Administrative Law Judge (ALJ) in this case arising under section 211 (employee protection provision) of the Energy Reorganization Act, as amended (ERA), 42 U.S.C.
S 5851 (1988 & Supp. V 1993).
The ALJ has recommended that the complaint be dismissed 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.
and O.
at 30.
I disagree.
FACTUAL BACKGROUND The ALJ has thoroughly recounted the facts.
R.
D.
and O. at l
3-21.
Very briefly, Respondent, Stone & Webster Engineering i
Group, contracted with the Tennessee Valley Authority (TVA) to perform construction and maintenance at the Brouns Ferry Project, l
3hi.
l i
f a
l l
~
l 1
1 I
a three-unit nuclear facility located near Huntsville, Alabama.
J 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 j
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 j
j in November 1992, but was restored to lead foreman in January
~.
1993.
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.
Compare 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.!'
Hearing Transcript (T.) 25.
It similarly was not
- 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 policing l
-their work stations watching for fire.
Under Respondent's (continued...)
)
e 3
resolved during the safety meeting.
The ironworkers were quite vocal in their complaint, and Ehele " caught most of the heat."
T.
26.
As the meeting concluded, Harrison was approached by his foremen who implored him finally to settle the complaint.
Harrison thereafter met with personnel in TVA's firewatch j
l training and fire protection departments, including TVA fire 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 i
" eating him alive on man hours in that drywell" as it was..
T.
- 39. 'Nothing was resolved, and Harrison finally departed after advising Ehele that Wallace wanted to discuss the procedure with him.
Upon arriving at work on February 2, Harrison discovered that the complaint still had not been resolved and that Ehele had not even contacted Wallace about it.
Harrison then complained to the Nuclear Regulatory Commission (NRC).
Later', after attending a training class which concluded at about 2 p.m.,
Harrison was l
l' (... continued) scheduling, however, the ironworkers exited immediately upon concluding-their hot work, and only two laborar " rovers" policed all work stations.
Harrison testified:
"I know that I have had my foremen working in enough different places on one elevation that two rovers could not physically see within their scope of view everywhere that was being worked."
Hearing Transcript (T.)
34.
See T.
208-209, 267-273.
b
a r
4 informed by supervisor Tennyson that he had been demoted to 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.U He went to work for Terry Keeton, whom he previously had supervised, organizing steel pieces near the turbine building.
Later, with the permission of R.
Eugene (Ross E.) Hannah, the remaining lead foreman, Harrison advised the crews that the firewatch complaint had not been addressed and that he had been demoted.
The ironworkers then refused to work without proper fire protection.
In response, 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.
On February 4, Ehele ordered Harrisen to an outside crew.l' Harrison was taken outside by Larry (Doc) Morrow, the ironworker job steward, who related Ehele's statement that Harrison "was to 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
)
2' Harrison contacted the NRC a second time to complain about his demotion which he attributed to the firewatch complaint.
l' Hannah's journal entry reflects that the decision to transfer Harrison outside was made on February 3.
T.
535.
i' Morrow's testimony is consistent:
"[Ehele) said [a)s long as Doug Harrison is in the drywell, the drywell ironworkers are (continued...)
r-f f
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 (Respondent) 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 itind of funny.
I j
said you're going to the outside.
And I said what have you done.
You've done something.
What were you doing?"
T.
329.
i l'
While some ironworkers also complained about the division of
-firewatch duties between ironworkers and laborers, and Respondent initia'iy perceived the complaint as a labor dispute, Harrison's concern.was safety.
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 compensation, terms, conditions, or privileges of employment by depriving him of the more desirable position.
The fact that the employee decides to quit, for example, instead of accept the demotion bears solely on the remedy.
Unless constructively discharged in such a situation, an employee is not eligible for i
post-resignation damages and back pay or for reinstatement.
Nathaniel v. Westinghouse Hanford Company, Case No. 91-SHD-2, 4
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 ALJ also found that Respondent demoted Harrison for %
/'
a legitimate, nondiscriminatory reason.
R.
D. and O.
at 26-27.
The question is close.
l
-~~~~
On January 27, 1993, James Butts, Respondent's field manager j
and Ehele's superior, reviewed the craft roster and directed Ehele to examine the ratio of journeymen 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,
r i!
t 7
there'was 38 ironworkers and there was nine foremen on the roster, or there was nine people out of that 38 that was designated foremen.
Just. simple division-told me that was only three people per foreman, so 1 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 journeyman,-seven foremen, and two lead foremen.
Harrison supervised two. crews, each consisting of a foreman 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 thess 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 foreman, 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 journeyman.for each foreman (30 journeyman and six foremen),
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.
S44-545, 648.
L
s!
8 A further difficulty with Ehele's decision is its timing.I' Butts directed Ehele to review the roster on January 27, and i
Ehele responded with his decision "eit.her that afternoon or the next morning."
T. 423.
Yet, Respondent waited six days, until February 2, to advise Harrison of his demotion, coinciding with l
l 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 Sac to
. the ironworkers in the drywell."
He also exhibited animus by removing Harrison from the drywell end transferring him to an 1
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 time.
Ehele was not then i
l' The ALL is incorrect when he states that "no inference of discriminatory motive can be drawn from the faut that Complainant 6s demotion closely followed his internal report of fire watch concerns."
,R. D.
and O.
at 28.
Rather, a causal
{
connection may be established by showing that the employer was l
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, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982).
L
4' t1 9
di.sposed'to. address the firewatch complaint, responding instead that they were " eating him alive on man hours in that drywell" as it was, and he did not consult Wallace, TVA's fire marshall, as Harrison. requested.
Additionally, the circumstances in.which Harrison was 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 forem.an wage, however.
Of the remaining options available to correct the perceived disparity, only Harrison was demoted.
The demotion occurred 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, Harriron'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.
i responsibilities which Harrison testified he would have felt j
I
- uncomfortable assuming had he been offered the position.
T.
121-l l
122.
Morrow also testified that Hannah was " overloaded" in l-comparison to the other crafts on the project.
T.
314.
While a supervisory reorganization, even of such miniscule proportion, offered a legitimate reason for demoting Harrison, I find that Harrison's participation in the firewatch complaint j
i also-entered into the dacision.
Respondent was presented with an I:
cu
\\
r:
1
{
4 l'
10 l
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 I
}
'the' influence of legal and illegal motives cannot be separated.
Mackowiak v. University Nuclear Sys., Inc.,
t 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 denoted 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 Ehele's decision to transfer Harrison to a less desirable position on the outside crew was not retaliatory.
I disagrce.
In making this finding, the ALJ focused exclusively on Harrison'.s initial protected complaint, i
rather than_considering the manner in which events escalated.
R. D.-and O.
at 30.
Indeed, Harrison's communication to the craws, which resulted in their refusal to work without mandated fire protection,-constituted separate protected activity.
l In speaking to the crews on February 3, Harrison was in i
.effect complaining that the firewatch complaint had not been i
addressed and that he had been demoted after having complained.
I' l
This communication, then, constituted an early version of
~
Harrison's section 211(b) discrimination complaint, which is
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)
("[n)o 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 made a complaint.
Cf. Marshall v.
Whirlpool Corp., 593 F.2d 715, 724-725 ( 6th ir.
1979), aff*d, 445 U.S. 1 (1980) (making a complaint is en implied initial step in commencing a formal proceeding and deserves protection under remedial safety and health legislation).
It does not specify te 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 Envelope 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.
l 12 R.D. Andersen Constr. Co.,
552 F.
Supp. 249, 252 (D. Kan. 1982)
(published interview by newspaper reporter concerning safety and i
health hazards at worksite); Dunlop v. Hanover Shoe Farms, 441 F.
i Supp. 385 (M.D. Pa. 1976) (complaint to attorney about worksite conditions).
The Diplomat court stated expressly that complaints 1
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 i
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.
56-
. 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.
S 5851(a) (1) (D).
This rationale underlies Hanover Shoe Farms, 441 F.
Supp at 388 (complaint to attorney covered because 4
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 "[ijt is clear that proceedings could be instituted after an employee's communication with the media").
Discrimination against Harrison because of his role in the crews' work refusal also is prohibited.
The ERA accords
13 employees the right Lt-refuse "to engage in any practice mais unlawful by [the Act)."
42 U.S.C. S 5851(a) (1) (B).
It is uncontroverted that the crews refused to work witi.out mandated fire protection and that inadequate firewatch coverage exposed workers to the hazard that a' fire vould not readily bo detected.
TVIS'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 employee)
(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 enforcament 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 svidence that 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 to 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,.9arrison " assisted or participated" in its resolution which came about because of the
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 i
or privileges of employment 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 by no means secure")..See Jenkins v. U.S. Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec., May 18, 1994, I
slip op. at 14-16 (employee transferred from challenging,
)
technica) position that utilized her qualifications fully and i
required community interaction to isolated, administrative 1
position).
The instant record shows that crews working "outside the containment vessel around the reactor.
. did jobs like putting up chain link fences or fabbing stuff in the fab i
shop.
T.
12 6. !'
Inside work, on the other hand, was more involved and received more " emphasis [and) attention.6 j
1' Harrison initially worked " odd jobs" on the outside crew.
T. 71.
He testifiedt
"[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.
4 l
15 T. 71-72. 'It was considered "on the critical path" in the development of the drywe11.!'
Finally, the dispatch with which Harrison was transferr_d following the protected activity, in conjunction with Ehele's expression of animus in referring to Harrison as a "trounlemsker" and " Moses parting the Red Sea," is sufficient to establish causation.
Respondent's only explanation for transferring Harrison wat. 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:
i Q.
Did you leave the meeting?
A.
Yes, sir.
Mr. Norrow 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 l
assigned to another area other than a dry well.
Q.
Was Mr. Harrison standing alongside of him at 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.
S'
" Critical path is a term used to describe work that is 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 done.before the unit can be restarted."
T.
70.
g 4
16 The ALJ ostensibly declined to find that this event occurred, only that it occurred "according to Mr. Ehele.
R. D. and O.
at 30.
Harrison testified that he neither requested a transfer from Ehele nor mentioned such a request to Morrow.
T.
125.
Morrow testified that he was never present outside a supervisors' meeting Jith'Ehele and Harrison, and that Ehele never told him in Harrison's presence that he would grant a I
?
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 Harriron and Morrow, I find that Harrison did-not request'to be transferred.
I am further
~
persuaded in this regard by the ALJ's f ailt' e to credit Ehela's account of the February 2 hallway meeting.
As. discussed above, l
I
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 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 StoSG e
Webster Engineering Group is directed to compensate Complainant for the two dollar an hour differential between lead foreman and foreman wages from February 2, 1993, unt il the April 14, 1993, layoff.H' Complainant is awarded costs and expenses, including attorney fees, reasonably incurred in bringing i e complaint.
Complainant is granted a period of 20 days from the data of this order to submit any petition for costs and expenses.
Respondent thereafter may respond to any petition within 40 days cf the date j
of this order.
SO ORDERED.
r_
l
$ dA Sedretary'of Labor
~
Washington, D.C.
i 1
l 2'
The extent to which the layoff may have been retaliatory was not at issue in this complaint.
CERTIFICATE OF SERVICE Case Name:
Douglas Harrison v. ~ Stone & Webster Engineering Group Case No.:
93-ERA-44 Document:
Decision and Order A copy of the above-referenced document was sent to the following pers'ns on AUS 2 2 595 o
'W CERTIFIED MAIL Jim Stanse11, Esq.
1700 Wilson Dam Road Suite 3 Muscle Shoals, AL 35662 Robert M. Rader, Esq.
Joan B. Tucker Fife, Esq.
Winston & Strawn 1440 L Street, N.W.
Washington, DC 20005-3502 Douglas Hairisol.
Route 4, P.O. Box 387 Russellville, AL 35653 REGULAR MAIL Associate Solicitor for Fair Labor Standards U.S. Department of Labor Room N-2716 200 Constitution Avenue, N.W.
Washington, DC 20210 Maria Echaveste Administrator Wage and Hour-Division
-Employment Standards Administration U.S. Department of Labor 200 Constitution Avenue, N.W.
Washington, DC 20210 i
j i
I L
g-t 2
William H. Berger Deputy Solic'*
U.S. Departmu Labor 1371 Peachtree
- et, NE Room 339 Atlanta, GA 303o7 Kenneth R. Gilbert Acting District Director Wage and Hour Division Berry Building,. Suite 301 2015 Second Avenue North Birmingham, AL 35203 Director Office of Enforcement Nuclear Regulatory Commission Washington, DC 20555 Deputy Assistant General Counsel for Enforcement Office of the General Counsel Nuclear Regulatory Commission Washington, DC 20555 NRC Enforcement Coordinator 101 Marietta Street, NW Suite 2900 Atlanta, GA 30323-0199 Hon. John M. Vittone Acting Chief Administrative Law Judge Office of Administrative Law Judges 800 K Street, N.W.
i Suite 400 Washington, DC 20001-8002 Hon. Richard K. Malamphy I
Administrative Law Judge
}
Office of Administrative Law Judges l
Suite 300, Commerce Plaza l
603 Pilot House Drive
! Newport News, VA 23606 1
t
I i
m
,k l
EICS STAFF MOTES FMTT ITY:
h bh
/o[h4C ATTEEDEES
[] ENF PalmL DATE:
'[ ] ENF CWF CASE NO:
p (/-Mi A#4
[ ],#""
II E0:
Nxde
[64 Other DUE TO OE:
h" D/A bid En nO:
ww l
L&ST DATE'OF IESPECTI N:
Oh l
INSPECTOR:
Sw STERT:
TERK:
U RESP M IBLE DIVISIW:
l RESP MSIBLE SECTIW:
Nd l
sanaECri l
i i
I l
l h
$4ent mares:
C : zilim a w Jwt d
! d.nwM,.
l Y U lJ' S $U.
iff E w k JS y ;q,,
i a
Disa d 7Vni /Aie & -
7v4/rc AM M La ad/~
& J A o S w.'
dE cdu sheA.
W cf pK M - 77M SN).
~
su Dir a s/ d w e-t s A u.
W V
e_
,4
=C SCEE==:
w:arI=
'\\
u
0,,
1.
IDENTIFICATION: (50% t 4)
{
}
2.
CORRECTIVE ACTION: (50% t 4)
{
}
3.
LICENSEE PERFORMANCE: (100% t 4)
{
}
4.
PRIOR OPPORTUNITY TO IDENTIFY: (100% t)
{
}
~
5.
MULTIPLE OCCURRENCES: (100% t)
{_
}
l 6.
DURATION: (100% f)
{
}
I i
BASE CP:
SEVERITY LEVEL:
' PROPOSED CP: $
[-
p
r
^
[n Recoq'o a
UNrrED STATES NUCLEAR REGULATORY COMMISSION 1
" k" REGION li o
101 MARIETTA STREET. N.W., SUITE 2900 k.....*o#[
ATLANTA, GEORGIA 3032&o190 October 18, 1995 EA 95-220 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
SUBJECT:
PREDECISIONAL ENFORCEMENT CONFERENCE
Dear Mr. Kingsley:
j On August 22, 1995, the Secretary of Labor issued a Decision and Order which found that Stone and Webster Engineering Group (Stone & Webster) discriminated against Mr. Douglas Harrison (DOL Case 94-ERA-44) when Mr. Harrison was 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's) 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 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).
l The Secretary of Labor concluded that Stone & Webster wrongfully demoted i
Mr. Harrison as a result of his protected activity and reassigned Mr. Harrison i
to an outside work crew when he discussed his concerns with other workers. The l
NRC Office of Investigation (01) conducted an inquiry into this case and based l
on the preliminary Department of Labor decisions and the TVA Office of Inspector l
General report concluded that the allegations of discrimination were not substantiated. Our letter dated May 17, 1995, which transmitted the 01 synopsis to you, indicated that no further action was planned on the case. However, because of the Secretary of L:.bor's Decision and Order issued on, August 22, 1995, the discrimination against Mr. Harrison is an apparent l
violation of 10 CFR 50.7 which prohibits discrimination against an employee who engages in protected activities such as providing an employer information about 4
alleged violations of NRC regirements.
i Based on the Secretary of Labor's decision in this case, the apparent vic,lation is being considered for escalated enforcement action in accordance with the
" General Statement of Policy and Procedure for NRC Enforcement Actions,"
l (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 review.
A joint predecisional enforcement conference to discuss the apparent violation y
has been scheduled with Stone & Webster, TVA and Mr. Steve Ehele, the Stone &
/.
Webster supervisor involved in this case, for October 30, 1995, at 1:00 p.m. in
\\l the Region II office. The predecisional enforcement conference schedule was
^
discussed in a telephone call between Mr. Mark Medford of your staff and i
i Mr. Mark Lesser of this office on October 6, 1995. A proposed conference agenda g
_n
_ -4 y,
=
m gm 7
g
a
.a.
4 e
TVA 2
is enclosed (Enclosure 2). The predecisional enforcement conference will be closed to public observation and transcribed.
}
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 presented in the Secretary of Labor decision and for you to provide any information concerning
. your perspectives on 1) the severity of the apparent violation, 2) the application of the factors that the NRC considers when it determines the amount of a civil penalty that may be assessed in accordance with Section VI.B.2 of the Enforcement Policy, and 3) 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.
i We are also concerned with the potential chilling effect that may have resulted l
fro. Mr. Harrison's demotion and the recent Secretary of Labor decision.
l T k lore, notwithstanding the information requested above and whether or not l
) O dgree with the Secretary of Labor decision, we expect you to address the actions taken or planned to assure that this adverse employment action does not t
l have a chilling effect on other licensee or contractor employees raising perceived safety concerns.
In addition, you should address your corrective i
l action to ensure that Stone & Webster managers are aware of their l
responsibilities to provide a work environment in which all employees may freely j
identify safety concerns without fear of retaliation or discrimination.
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.
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 letter, please contact us.
Sincerely, W J<r-Ellis W. Herschoff, Direc, tor Division of Reactor Projects Docket Nos. 50-259, -260 and -296 License Nos. DPR-33, -52 and -68
Enclosures:
(See page 3) cc w/encls: (See page 3)
J
l f
s i
a 4
TVA 3
Enclos6res:
1.
Secretary of Labor Decision dated August 22, 1995 2.
Proposed Predecisional Enforcement Conference Agenda cc w/ enc 1 2:
Mr. O. J. Zeringue, Senior Vice President Nuclear Operations Tennessee Valley Authority 3B Lookout Place 1101 Market Street Chattanooga, TN 37402-2801 Dr. Mark 0. Medford, Vice President Engineering and Technical Services Tennessee Valley Authority 38 Lookout Place i
1101 Market Street Chattanooga, TN 37402-2801 Mr. D. E. Nunn, Vice President New Plant Completion Tennessee Valley Authority 3B Lookout Place 1101 Market Street l
Chattanooga, TN 37402-2801 Mr. P. P. Carier, Manager Corporate Licensing Tennessee Valley Authority At Blue Ridge
. 31 Market Street Chattanooga, TN 37402-2801 I
r._
< - A a
[t TVA' 4
cc w/ encl 2 cont'd:
Mr. T. D. Shriver, Manager Nuclecr Assurance and Licensing Browns Ferry Nuclear Plant Tennessee Valley. Authority P. O. Box 2000 Decatur, AL 35602 l
Mr. Pedro Salas Site' Licensing Manager Browns Ferry Nuclear Plant Tennessee Valley Authority P.-0. Box 2000 Decatur, AL 35602 Mr. R..D. Machon, Site Vice President Browns Ferry Nuclear Plant Tennessee Valley Authority P. 0. Box 2000 Decatur, AL 35602 TVA Representative Tennessee Valley Authority -
11921 Rockville Pike Suite 402 Rockville, MD 20852
' General Counsel Tennessee Valley Authority ET 11H 400 West Summit Hill Drive Knoxville, TN 37902
' Chairman Limestone County Commission 310 West Washington Street Athens, AL. 35611 State Health Officer Alabama Department of Public Health 434 Monroe Street Montgomery,.AL 36130-1701 Stone & Webster Engineering Group ATTN: Mr. R. E. Kelly President 245 Summer Street Boston, MA 02240 I
1 r
r i
b l' u TVA 5
Distribution w/ encl 2:
PUBLIC JTaylor, EDO JMilhoan, DEDR SEbneter, RII LChandler, OGC JGoldberg, OGC EJulian, SECY BKeeling, CA Enforcement Coordinators RI,-RIII, RIV JLieberman, OE JGray, OE OE:EA File (B. Summers, OE) (2)
DRosano, OE EHayden, OPA DDandois, OC LTemper, OC GCaputo, 01 EJordon, AE00 LNorton, 0!G BUyrc, RII WMcNulty, RII KClark, RII RTrojanowski, RII AGibson, RII MLesser, RII JWilliams, NRR FHebdon, NRR JJohnson, RII SShaeffer, RII CEvans, RII LWatson, RII GHallstrom, RII IMS:RII NUDOCS NRC Senior Resident Inspector U.S. Nuclear Regulatory Commission 10833 Shaw Road Athens, AL 35611
- SEE PREVIOUS PAGE FOR CONCURRENCE SEND TO PUBLIC DOCUMENT ROOMt bES ) NO OFFICE RII:DRP Ril;DRP Ril: ORA All:EICS Ril: ORA Ril: ORA SIGNATURE NAMF
' MLes ser
- EMer schott
'CEvane
' Burve
- LReyes S bneter 10/ N /9E DATE 10 /
/95 10 I 195 10/
/95 10 I J95 10 /
/95 r
COPY?
YES NO YES NO YES NO YES NO YES NO Q
,m i
OFFICIAL RECORD COPY DOCUMEN1 NAME: t1\\l950 PEN. EM \\95190 DOL,0!R \\L1RIDIVA.PM
E f.
s w
l TVA 5
Distribution w/ enc 1 2:
PUBLIC JTaylor,EDO(
JMilhoan, DED 0 t D tl SEbneter, RII LChandler, OGC JGoldberg, OGC.
EJulian, SECY BKeeling, CA Enforcement Coordinators RI, RIII, RIV JLieberman, OE JGray, OE l
OE:EA File (B. Eummers, OE) (2)
I DRosano, DE EHayden, OPA DDandois, OC LTemper, DC GCaputo, 01 EJordon, AEOD o,g
- 0"illir;, 0!C BUyrc, RII WMcNulty, RII KClark, RII RTrojanowski, RII l
AGibson, RII MLesser, RII JWilliams, NRR FHebdon, NRR JJohnson, RII SShaeffer, RII CEvans, RII LWatson, RII l
GHallstrom, RII IMS:RII NUDOCS NRC Senior Resident Inspector l
U.S. Nuclear Regulatory Commission 10833 Shaw Road Athens, AL 35611 SEND TO PUBLtc DC.CUMENT ROOMt YES NO OFRCE Rit:DRP Ril:DRP R!!:DR$
Ril: ORA Ril EICS Ril:O R A Ril: ORA SIGNATURE N
NAME MLesser EMerscMoff CEvans '
ryc LR #es SEbneter DATE 10 t FJ 95 10 ilk /95 10 /
f95 10if t/ef
// 31 95 10 t t95 10/
/95 cont friit NO YES NO YES NO YES[NO N NO YES NO y,e
,m 0FFICIAL RLCORD COPY DOCUMLNI NAME: N\\lS$0 PEN.LRTIS$19DDOL.DIR\\Likl0TVA.PLC
f.
t PROPOSED PREDECISIONAL ENFORCEMENT CONFERENCE AGENDA STONE & WEBSTER ENGINEERING GROUP AND TENNtSSEE VALLEY AUTHORITY BROWNS FERRY NUCLEAR PLANT October 30, 1995 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. Merschoff, Director Division of Reactor Projects V.
LICENSEE PRESENTATION VI.
STONE & WEBSTER ENGINEERING GROUP PRESENTATION
- *
- BREAK VII.
NRC FOLLOWUP QUESTIONS Mr. Merschoff VIII.
CLOSING Mr. Ebneter f
l c
,