ML20205M101
| ML20205M101 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 09/22/1995 |
| From: | Linda Watson NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | |
| Shared Package | |
| ML20205M044 | List: |
| References | |
| FOIA-99-76 EA-95-190, NUDOCS 9904150109 | |
| Download: ML20205M101 (5) | |
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BRIEFING PAPER FOR THREE WEEK MULTI-OFFICE MEETING ALLEGED DISCRIMINATION BY STONE AND WEBSTER AGAINST EMPLOYEE WHO RAISED FIRE PROTECTION CONCERNS PREPARED BY: Linda J. Watson DATE: September 22, 1995 EA 95-190 Region II Licensee: Tennessee Valley Authority Contractor: Stone and Webster Engineering Group Facility: Browns Ferry Nuclear Plant Unit (s): N/A Docket Nos: 50-259, -260 and -425 j License Nos.: DPR-33, 58, and 68 Inspection Report No: N/A Inspection Dates: SOL Decirion and Order dated August 22, 1995 Lead Inspector: N/A Summary of Issue:
By Decision and Order dated August 22, 1995 in 00L Case 94-ERA-44, the Secretary of Labor (SOL) reversed lower Department of Labor (DOL) 1 decisions and found that Stone and Webster Engineering Group l discriminated against Mr. Douglas Harrison (Complainant) when Stone and I Webster demoted him because he had raised concerns related to firewatch requirements. (Note that the SOL decision does not name TVA as a i*spondent in this case.)
Complainant was a aeneral foreman working for Stone & Webster, a contractor employed by Tennessee Valley Authority at the Browns Ferry site. Complainant had raised an issue that adequate firewatch coverage was not being provided for work being performed in the Unit 3 drywell.
Complainant spoke to several managers at the site but the issue was not resolved. Complainant then complained to the NRC. The problem was eventually corrected. However, Complainant claims that he was demoted e to a foreman as a result of his raising the concerns. Complainant g
3@ subsequently requested that he be cut back to a laborer because if he took a foreman position, one of the current foremen would be demoted.
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" Stone and Webster indicated that the demotion was part of a routine reassessment of the foremen needed for the ironworker function.
k The Department of Labor, Birmingham, Alabama, received the complaint on May 17, 1993 and initiated an investigation. On June 16, 1993, the DOL omz District Director (DD) found that Stone & Webster demonstrated by clear j / i
$@@ and convincing evidence that Complainant's reassignment was part of a _ /
normal reassignment of personnel due to work load and manpower ,
L_, l requirements and that same action would have taken place in absence of /
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the " protected activity". On November 8, 1994, the Administrative Law L' YOH f(Ol%
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BRIEFING PAPER 2 EA 95-190 Judge (ALJ) found that it was unlikely the action taken was due to the protected activity and recommended that the case be dismissed.
In the Decision and Order of August 22, 1995, the SOL concluded that even though Stone and Webster had offered the Complainant a lower grade foreman position, they discriminated against him by depriving him of the more desirable position. The SOL found no merit in the argument that the need for ironworker foremen was reassessed in that adjustments were not made to other foremen's duties, Complainant was the only foreman affected and the " reorganization" did not achieve the reduction described by Stone and Webster. The 50L also found fault with the timing of the demotion in that Stone and Webster waited six d6ys after they indicated the decision on reducing the number of foremen was made to demote the Complainant. The demotion came two days after the Complainant engaged in protected activities. The 50L concluded that the supervisor showed animus toward the Complainant by remarks made to others and by removing him from the drywell work duties. The 50L found that the removal of the Complainant to an outside work crew was also i discriminatory and that Complainant's discussion with other ironworkers on the lack of response to the fire protection concerns was a protected activity.
Contractor supervisors involved in this case were Steve Ehele, Chief Construction Supervisor; Wayne Tennyson, a Senior Construction Supervisor; Jr' Fonte, a Structural Supervisor, and James Butts, Stone and Webster's field Manager. Per the ALJ decision, page 12, beginning at item 69, Butts was responsible for all field activities of Stone and Webster at Browns Ferry. Under Butts were Ehele, Sertway, Fonte, and Tennyson. Although not specific, it appears that Tennyson, who was ;
Complainant's direct supervisor, reported to Ehele and Ehele reported to Butts. The SOL decision identifies Mr. Ehele as the supervisor who took discriminatory action and had animus toward the Complainant. Review of the remainder of the record indicates that although Mr. Tennyson informed Complainant that he was demoted, the discriminatory actions were probably prompted principally by Ehele.
The NRC Office of Investigations opened an 01 Case No. 2-93-030 on the discrimination issue on May 27, 1993. On September 13, 1993, 01 coordinated with TVA/IG and determined that TVA/IG was investigating the matter. 01 requested a summary of TVA/IG investigation when completed.
The TVA/IG report dated June 22, 1994, concluded that there was insufficient evidence of wrongdoing to substantiate the Complainant's allegation of discrimination. OI reviewed the DOL DD and ALJ decisions and the TVA/IG report. On December 15, 1994, 01 closed the case and issued a report which relied on the TVA/IG and D0L findings to conclude that the Complainant's DOL allegations were unsubstantiated.
On December 22, 1994, in a memorandum from OE to Region II, DE found that inasmuch as 01 could not substantiate discrimination, enforcement action was inappropriate and considered the matter closed..
PROPOSED ENFORCEMENTACTION NOT FOR PUBLIC DISCLOSURE
, WITHOkE APPRQVALOF TAE'DIREC OR, OE
. r BRIEFING PAPER 3 EA 95-190 The 01 synopsis was transmitted to TVA by the NRC by letter dated May 17, 1995 indicating that the allegations of discrimination were not substantiated and stating no further action was planned on the case.
Two Region II allegations, RII-93-A-0031 and RII-93-A-0096 were opened on the technical concerns and the discrimination issue. By letter dated January 17, 1994, the NRC notified Complainant that his allegation concerning f' e watch practices were not substantiated based on a March 5, 199 inspection of drywell fire watch provisions. (Note: In the review o the ALJ decision, page 19, item 118, it was indicated that the fire watch problem was resolved on February 8,1993 when laborers assumed fire watch duties.)
Based on the 50L Decision and Order, the NRC Enforcement Policy in Supplement VII, Miscellaneous Matters, B.4, indicates that a Severity Level II violation is appropriate for violations involving action by plant management above first line supervision in violation of 10 CFR 50.7 or similar regulations against an employee.
TVA, as an NRC licensee, is responsible for the acts of its contractors.
TVA was fully aware of the alleged discrimination issue and a TVA/IG investigation was conducted; however, the TVA/IG found that the claim of discrimination could not be substantiated. Additional information may be provided by TVA that would support discretion depending on their actions after the discrimination took place. However, a Severity Level II violation appears to be appropriate both Stone and Webster and TVA based on the SOL Decision and Order. A draft violation is provided in Attachment 1.
Basis for Severity Level (Safety Significance):
Severity Level II: Enforcement Policy, Supplement VII, B.4; Action by plant management above first line supervision in violation of 10 CFR 50.7 or similar regulations against an employee.
Previous Escalated Action Within 2 Years.
EA 93-003: Severity Level I and Severity Level II violations issued on !
November 2,1993 for TVA, all sites, for employee discrimination.
$200.000 civil penalty. (Apparent violations identified to TVA in le!! s dated January 20 and 25, 1993.)
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PROPOSED ENFORCEMEN; ACTION - NOT FOR PUBLIC DISCLOSURE
- WITHOUT,THE APPROVAL OF THE DIRECTOR. OE v j -
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! ,t BRIEFING PAPER 4 EA 95-190 Non-Routine Issues / Additional Information:
There remains an issue te be addressed that relates to the memorandum sent to TVA on May 17, 1995, that transmitted the synopsis of the 01 investigation. In that memorandum, TVA was informed that " Based on the results of the investigation and our subsequent review, we plan no further action with regard to this matter." This will have to be addressed. Any correspondence to TVA regardinD 6"rangements for a Predecisional Enforcement Conference will have to address the fact although we planned no action as a result of the conclusions of the 01 investigation, the Decision and Order from the SQL required further review and evaluation of the matter in light of that Decision and Order, e Attachments: 1. Draft NOV
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i PROPOSED ENFORCEMENT- ACTION - NOT FOR PUBLIC. DISCLOSURE WITHOUT THE APPROVAL OF THE DIRECTOR, OE
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Attachment 1 NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY Tennessee Valley Authority Docket Nos. 50-259, -260 and -425 Browns Ferry Nuclear Plant License Nos. DPR-33, 58, and 68 Units 1, 2 and 3 EA 95-190 As a result of review of a Secretary of Labor decision dated August 22, 1995, a violation of NRC requirements was identified. In accordance with the
" General Statement of Policy and Procedure for NRC Enforcement Actions," (60 FR 34381; June 30, 1995/NUREG-1600), the Nuclear Regulatory Commission proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violation and associated civil penalty is set forth below:
10 CFR 50.7 prohibits discrimination by a Commission licensee, permittee, an applicant for a Commission license or permit, or a contractor or subcontractor of a Commission licensee, permittee, or applicant against an employee for engaging.in certain protected activities. Discrimination includes discharge or other actions relating to the compensation, terms, conditions, and privileges of employment.
Contrary to the above, Mr. Douglas Harrison (Complainant) was discriminated against when Stone and Webster, a contractor to the Tennessee Valley Authority at the Browns Ferry Nuclear Plant, demoted him and transferred him to a different position because he raised concerns related to firewatch requirements. The Secretary of Labor issued a Decision and Remand Order (DOL Case 94-ERA-44) on August 22, 1995, which found that Complainant's discharge was an act of retaliation for engaging in protected activities.
This is a Severity Level 11 violation (Supplement VII).
Civil Penalty -
[ REPLACE HEADING WITH " STONE AND WEBSTER ENGINEERING GR0VP" FOR SECOND VIOLATION]
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