ML20207M150
| ML20207M150 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 01/05/1987 |
| From: | Mark Miller COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20207M066 | List: |
| References | |
| OL, NUDOCS 8701130103 | |
| Download: ML20207M150 (110) | |
Text
January 5, 1987 DOLKETED UNITED STATES OF AMERICA C
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'87 JAN -8 P4 :52 CFFICE p tr' Sj e 00C4%i f;,1r In the Matter of
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{Qgl 4 COMMONWEALTH EDISON COMPANY
)
Docket Nos. 50-456
)
50-457 (Braidwood Station Units 1 and 2
)
hhc.3 E3 PROPOSED PARTIAL INITIAL DECISION FC o
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January 5, 1987
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hj Michael I. Miller Isham, Lincoln & Beale 3 First National Plaza Chicago, Ill.
60602 Counsel to the Applicant Commonwealth Edison Company 8701130103 870105 ~
DR ADOCK 05000456 PDR
Table of Contents I.
Introduction.
1 I.
Intervenors' Harassment Contention.
.4 II.
Syllabus
.7 III.
Intervenors' Allegations.
.14 A.
Organizational Independence
.14 B.
Harassment.
.19 1.
Specific allegations of Harassment Involving QC Supervisor Saklak.
.21 2.
Other alleged Incidents of Harassment
.31 3.
Implied Allegations of Harassment
.36 C.
Discrimination.
.52 D.
Conclusion.
.72 V.
Testimony of Experts
.76 VI.
Reinspection Evidence.
.91 Conclusions of Law and Order.
.104 i
I i
January 5, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
COMMONWEALTH EDISON COMPANY
)
Cocket Nos. 50-456
)
50-457 (Braidwood Station Units 1 and 2)
)
Partial Initial Decision I.
INTRODUCTION Commonwealth Edison Company (" Applicant" or " Edison")
is the applicant for operating licenses for Braidwood Station, wi.1-k is located approximately 60 miles southwest of Chicago.
The Station consists of two pressurized water nuclear reactors, each designed to generate a net electrical output of approxi-mately 1120 megawatts.
Permits to construct the Station were issued in 1975.1/
Under the regulatory scheme fashioned by the U.S.
Nuclear Regulatory Commission and its predecessor, the U.S.
Atomic Energy Commission, pursuant to the Atomic Energy Act of 1954, as amended, the technical staff of the Commission is charged with the responsibility for determining that the 1/
Commonwealth Edison Co. (Byron Station, Units 1 and 2, and Braidwood Station, Units 1 and 2), LBP-75-74, 2 N.R.C.
972 (1975).
Braidwood application for operating licenses satisfies the Agency's health and safety, environmental and other require-ments..The NRC Staff as a consequence must make the findings required by 10 C.F.R. 9 50.57(a).
Our role is limited.
We are charged with deciding only contentions actually placed into controversy by parties to an adjudicatory hearing.2/
The Commission published a notice of opportunity for hearing in connection with the application for operating licenses for Braidwood Station in the Federal Register in December 1978.
(43 Fed. Reg. 58,659)
Thereafter, petitions to intervene were filed by Bridget Little Rorem, et. al. and Bob Neiner Farms, Inc.
The petitions and requests for hearing were granted-with respect to certain contentions.E/ The Neiner Farms' contentions were ultimately disposed of in August, 1985; one was settled with the Beard's approval, and the other was dismissed upon Applicant's motion for summary disposition.S/
The contention of Bridget Little Rorem, et. al.
("Intervenors") raised several questions concerning the Braidwood emergency plan.
These issues were heard at hearings held in the summer of 1986.
Intervenors also filed a late-filed contention which alleged, inter alia, that certain 2/
-10 C.F.R. 5 2.104(c).
E/
Commonwealth Edison Co. (Braidwood Station, Units 1 and 2), Order, Slip op. at 203 (March 22, 1979).
S/
Commonwealth Edison Co. (Braidwood Station, Units 1 and 2), slip op. (August 12, 1985).
quality control ("QC") inspectors of L. K. Comstock Engineer-ing, Inc. were harassed and intimidated in the workplace and were the subject of job discrimination because of raising safety concerns, thereby impairing the efficacy of the quality inspections performed by them.E/
The hearings on this contention occupied 96 hearing days, spanning e six month period.
We heard extensive testi-mony from many of the QC inspectors who had complaints about s
their management; from members of Comstock and Edison super-vision and management, such as, Comstock's Mr. Saklak and Mr.
DeWald and Applicant's Mr. Shamblin.
We also heard testimony from the NRC Staff who investigated the incidents of alleged harassment of QC inspectors and two experts offered by Inter-venors to suggest the behavioral patterns to be expected of individuals who may be subject to an environment of harassment and intimidation in the work place.
Based on a careful review of the evidence, we decide Intervenors' emergency planning and harassment contentions in favor of the Applicant.
Our decision on emergency planning is explicated in a separate partial initial decision that is being issued simultaneously with this decision on the harassment contention.
E/
Other quality assurance contentions filed by Intervenors were dismissed by the Commission.
Commonwealth Edison Co.
(Braidwood Station, Units 1 and 2), CLI-86-08, 23 NRC 241 (1986).
_4-II.
INTERVENORS' HARASSMENT CONTENTION The contention 5/ asserts that contrary to 10. C.F.R.
$ 50.7 and Criterion I of Appendix B to 10 C.F.R. Part 50, Applicant and L. K. Comstock Engineering, Inc. ("Comstock") the organization that performed the QC inspections of the electri-cal work at Braidwood, failed to provide QC inspectors with sufficient authority and organizational freedom and indepen-dence from cost and schedule as opposed to safety considera-tions to permit the effective identification and correction of quality and safety-significant deficiencies.
The contention also asserts the existence of systematic and widespread harass-ment, intimidation, retaliation and discrimination by Comstock QC management against inspectors who expressed safety and quality concerns.
Thus, we are concerned here with allegations of harassment of and discrimination against QC inspectors by Comstock's QC management.2/
Acts of harassment by Comstock's construction organization are not within the purview of the contention.
Moreover, the victims of the alleged harassment are limited to the population of Comstock's QC inspectors.
Other categories of Comstock's employees and managers are not involved.
5/
The contention as admitted is set forth in Appendix A.
II See Licensing Board's August 1, 1985 Prehearing Conference Order at 2.
n Three bases for the contention are recited, namely that:
1.
Comstock QC inspectors have been subjected to harassment and intimidation by Comstock QC management, Messrs.
DeWald, Seese, Seltmann and Saklak, from at least as early as August 1984 through the present.
Such harassment, it is as-serted, included widespread pressure to approve deficient works to sacrifice quality for production and cost considerations and to violate knowingly established quality procedures.
2.
QC Inspector John Seeders was subjected to harassment for complaining about production pressure and was the subject of retaliation and discrimination by virtue of an involuntary transfer to Comstock's engineering department some six weeks after he wrote a letter of complaint to Comstock management (with a copy to the NRC resident).
3.
QC Inspector Worley Puckett was subjected to harassment and discrimination and improperly terminated by Comstock management, Messrs. DeWald and Marino, because he raised safety and quality concerns.
The timeframe for determining when alleged occur-rences of harassment are within the scope of the contention was purposely left vague at the time the stipulated contention was j
accepted by the Board.
The early date of interest was charac-terized with the Board's approval as "at various times since at least August 1984."E/
The end date was stipulated as being the "present."E/
Our purpose was to allow Intervenors the oppor-tunity during discovery to identify as many relevant instances of harassment as possible to buttress their allegation that E/
Tr. 254; Appendix A, paragraph 1.
E/
Appendix A, paragraph 1.
_ Comstock's QC inspectors were subject to " systematic and widespread harassment, intimidation, retaliation and other discrimination."1S!
Intervenors have had that opportunity and the scope of the contention is now defined by the evidence received in this record.
The evidence as to whether or not a pattern of harassment existed at Comstock centers on its QC Manager, Mr. DeWald.
Evidence involving Mr. DeWald's predecessor or events occurring prior to the date of Mr. DeWald's arrival at the Braidwood site as QC Manager either was limited to its historical value for purposes of perhaps providing insight as to the motives for actions taken during DeWald's tenure as QC manager.11/
We, therefore, hold that the alleged acts of harassment most relevant to the contention are those that occurred after Mr. DeWald's appointment as QC Manager at Braid-wood in August 1983.
AS/
Tr. 254-259 and 266-268.
11/ This Board made clear during the course of hearings that any evidence admitted regarding events preceding DeWald's arrival as Comstock's QC Manager would be used only for a limited purpose.
That evidence has been entertained only to provide historical background and to place in context the specific incidents mentioned in the Board's Order admitting the harassment contention, all of which purportedly occurred during DeWald's tenure.
Tr. 1314-16, 1250, 1262, 17496-97, 17502, 17487-88.
The remainder of this footnote has been excised since that material is protected from disclosure by the Commission's November 7, 1966 Protective Order in this proceeding.
Copies of the excised portion of these footnotes are being served by separate cover in accordance with the Protective Order on the Secretary of the Commission, Board and counsel for the (Footnote Continued)
The end date is less easy to define.
The evidence adduced indicates that the alleged events of harassment carry on through March 1985.
Thereafter, in 1985, only one alleged act of harassment and discrimination was considered on the record.
We made it clear that the "present" as we approved its use in the contention, was not intended as a continuum.
Rather, it allowed Intervenors to pursue and use alleged new instances of harassment as they were discovered.12/
It was on this basis that we admitted the issues involving QC inspectors Hunter, Martin and Archambeault which arose in March and September 1986 respectively.
No other issues have been identi-fied.
Accordingly, we limit the reach of the contention, in terms of the "present," to these issues.
III. SYLLABUS Interpreting the contention and statements of counsel on the record most favorably to Intervenors, it is apparent that they perceive two violations of Criterion I.
One involves the suggestion that Comstock's QC organization lacks the requisite organizational independence from cost and schedule considerations, an issue prompted by Applicant's Construction Superintendent's involvement with the Comstock QC department in (Footnote Continued)
NRC Staff.
Service is not being made on Intervenors' counsel since we understand, they have not sought to comply with the terms of the Protective Order.
12/
Tr. 268.
1984.
The second issue is whether despite the structuring of the Comstock organization to provide the independence required by Criterion I, actions instigated by the management of the Comstock QC Department constituted a pervasive pattern of harassment, intimidation and production pressure that destroyed the independence of Comstock's QC inspectors.
We can quickly dismiss any suggestion that the Comstock QC Department was not properly structured and or-ganized to provide the requisite independence from cost and schedule considerations.
The evidence is uncontroverted that Comstock's site QC department does not report to Comstock's production department.
Comstock's site QC department and site production department report up through different companies, ultimately to a corporate umbrella organization.
This is all Appendix B requires.
Contrary to Intervenors' view, Criterion I does not proscribe the oversight of Comstock's construction and quality control activities by Dan Shamblin, Applicant's Braidwood Construction Superintendent and administrator of the contract between Edison and Comstock for the electrical work at Braidwood.
Moreover, our examination of the evidence convinces us that Shamblin's actions taken to help eliminate the backlog in the Comstock QC Department were in the interest of promoting quality and in no way constituted a transgression of Criterion I.
.g.
An exhaustive review of the available evidence has elicited very little which supports the contention that the QC inspector workforce was the victim of a pervasive pattern of harassment, intimidation, production pressure and retaliatory acts by Comstock's QC Department management.
The appearance on the stand of many QC inspectors elicited voluminous anecdotal evidence, much of it hearsay, ranging from particular confronta-tions between inspectors and their superiors to the. inspector's interpretations.of management policies and their perceptions of the morale of the inspector workforce.
Much of this is alleged by Intervenors to constitute evidence of a pattern of harass-ment and discrimination at Comstock.
Although initially the sheer bulk of this testimony was troubling, we found that the more these matters were looked into, the less they supported Intervenors' theory.
We find that the record supports only two incidents of harassment, both perpetrated by the same super-visor and attributable more to his dictatorial temperament than to his disregard of quality considerations.
We likewise find no violation of 10 C.F.R. 6 50.7.
The termination of Mr. R. D. Hunter was fully justified as was the transfers of Messrs. Perryman and Bossong and the temporary refunni to grant Mr. Archambeault's request to transfer to the first shift.
We also conclude that Mr. Seeders' transfer was justified in the circumstances.
We regard Mr. Puckett as a conscientious employee who would have been competent as a Level II inspector, but who was unequal to management's expections of him as the site's welding Level III.
Ao the Level III, Puckett
/
I was assigned supervisory responsibility for Comstock's QC welding activities, and was expected to identify and solve any problems in the welding program.
Puckett clearly was able to identify problems.
He was not, however, adept at problem solving.
We believe that his judgment and his familiarity with applicable codes were simply not sufficient to effect solutions in the manner expected of him.
Because we think management's expections were reasonable, we cannot find his termination discriminttory.
Intervenors assert that the QC inspector work force believed itself to be pressured to perform more inspections and the alleged acts of discrimination reinforced this perception.
As we understand it, Intervenors' theory is that rumors and shop talk about the actual incidents, whether legally cogniz-able acts of harassment or not " taught" the other inspectors that they should accelerate their inspections by violating procedures.
According to their theory, this atmosphere must have resulted in a degradation of QC inspector performance.
Inspectors testified almost uniformly that whatever their perceptions regarding harassment and discrimination, it did not affect the quality of their inspections.
We initially were skeptical of such self-serving assertions of refusals to
" knuckle under" to alleged management attempts to circumvent procedures and pressure inspectors to perform increasing number of inspections.
Hownver, in every instance, the QC inspectors' testimony regarding their overall approach to their job was consistent with their denial of any effect on job performance
r from management pressure.
That is, each seemed conscientious, proud of his work and well aware of the corporate and regula-tory mechanisms which protect employees at nuclear power plants from unlawful production pressure or retaliation for raising safety concerns.
On balance, we find this testimony credible.
Building from the opinions of two industrial psy-chologists, Intervenors assert that the testimony of the QC inspectors must be wholly discounted since it is self-serving and exculpatory.1E/
Moreover, Intervenors' experts testified that the QC inspectors may have been subconsciously affected by the asserted harassment and production pressure so that their threshold for accepting non-conforming work was lowered.
- Thus, Intervanors believe that whether or not haraesment of QC inspectors to approve defective work actually took place is immaterial, since even the unjustified perception of harassment by a QC inspector may affect the quality of his work; and that testimony by inspectors who were actually involved in alleged instances of harassment regarding the effect of such harassment on the quality of their inspections is entitled to no credit.
1E/
Conversely, Intervenors would have us give full credit to any statements made by QC inspectors which are critical of Comstock or CECO management, even though the motivation for making such statements was not necessarily grounded in a concern for quality, but rather, attributable to dissatisfaction with pay, working conditions or the progress of a union organizing drive.
(See discussion infra under Section 3.)
S Under this theory, an applicant for a license to operate a nuclear power plant would be required to conduct a reinspection program whenever an allegation of harassment of QC inspectors became common knowledge among the inspectors.
We have considerable doubt concerning the efficacy of this view both as a matter of law and fact.
While countering Intervenors' experts with testimony of another industrial psychologist and an experienced manager i
of naval nuclear projects, Applicant's rebuttal case was chiefly based on an assessment of the work inspected by Comstock QC inspectors through two reinspection and over-1 t
j inspection programs conducted by organizations independent of Comstock management, the BCAP CSR reinspection and the PTL overinspection.1A/ The major thrust of this evidence es-tablished that there was no discernible difference in the L
agreement rates between Comstock inspectors and the rein-i l
spectors during periods when there was no asserted harassment or production pressure (before July 5, 1982 and after April I
1 l
l i
14/
These acronyms became familiar terms during the course of the hearings; they refer to the Construction Sample Reinspection section of the Braidwood Construction Assessment Program and the overinspections performed by Pittsburgh Testing Laboratory for Edison's Quality j
Assurance Department.
I i
i 5
I 1985) and when Intervenors claimed that such harassment existed.1E/
Intervenors presented no contrary evidence.
- Instead, they introduced an exhibit which purports to show that agree-ment rates are an unacceptable technique for measuring QC inspector performance because of other variables (craft error rate and reinspector accuracy rate) which, they claim, could mask variations in QC inspector performance over a period of years.
In addition, the thrust of Intervenors' cross-examination was apparently intended to suggest that sample reinspection activities are by their nature unsatisfactory since a defect may be present in an unsampled component.
Intervenors would have us turn our backs on bona fide sampling techniques for deriving reliable conclusions.
This we decline to do.
We accept the reinspection work performed by PTL and by Edison under the BCAP effort as evidence establishing the adequacy of Comstock QC inspectors and the quality of the construction work inspected by Comstock.
For the foregoing reasons, the Board decides the contention in favor of Applicant.
We hold that no violation of either Criterion I or 10 C.F.R. I 50.7 occurred.
There was neither any lack of the requisite organizational independence IEI The BCAP CSR data also establishes that there were ru) design significant deficiencies overlooked by Comstock QC inspectors, thereby establishing an acceptable overall level of quality for Comstock installed work.
l l
nor any encroachment on that requirement by any pervasive pattern of harassment of or discrimination against Comstock QC inspectors.
Moreover, even if we assume that such illegal conduct occurred, the CSR and PTL data give no sign that it l
l adversely affected the quality of the inspectors' work.
More importantly, the rebuttal evidence submitted by Applicant on l
l work quality establishes with reasonable assurance that the l
construction work completed and QC inspected by Comstock is l
adequate.
We therefore authorize the Director of Nuclear Reactor Regulation, upon making all findings required by 10 C.F.R. 5 50.57(a), to issue operating licenses for Braidwood l
Station.
IV.
INTERVENORS' ALLEGATIONS A.
Organizational Independence i
Intervenors suggest that Comstock's QC organization as a whole does not have sufficient independence from produc-tion organizations to satisfy Criterion I of 10 C.F.R.,
Appen-dix B.
We do not agree.
The uncontroverted testimony of Daniel Shamblin, Applicant's Construction Superintendent, and Constock's management explained the internal reporting rela-tionships of the Comstock QC and QA organizations and their L
relationship to Edison.
(Findings 1-7, (hereinafter "F" or "FF".))
We think there is no serious question but that this organizational structure comports with the dictates of i,
Appendix B.
l l
The independence of Comstock's QC department is
~
assured primarily by providing that it does not report to l
Comstock's production department.
(FF-2-3.)
Comstock's site QC department reports off-site through channels to the head of L. K. Comstock Engineering, Inc., whereas Comstock's production department functions as part of a separate entity, L. K.
Comstock & Co.,
Inc.
Both organizations are a part of the L.
l l
K. Comstock Group.
(F-2.)
Comstock's QA department performs l
4 l
audits and surveillances of both the QC and production organi-zations.
Finally, Applicant's site QA and corporate QA depart-f ments conduct audits and surveillances of Comstock's QC depart-ment.
(F-4.)
We think that this structure supplies the organizational checks and balances that assure sufficient l
independence to a contractor QC department like Comstock's.15/
The Applicant's Construction Superintendent, Dan Shamblin, administers the Comstock contract, as well as those l
of the other major on-site contractors.
As such, he oversees
- the production, engineering and quality departments in Comstock and the other contractor organizations.
(FF-5-6.)
Intervenors i
have suggested that the oversight by Shamblin contravenes the f
1 i
l 16/
The organizational structure of Comstock's QA and QC Departments comport with the case law that bars i
individuals performing quality control functions from l
reporting to an on-site official in the construction group i
who has cost and scheduling responsibilities.
See Commonwealth Edison Co. (LaSalle County Nuclear Power
{
Station, Units 1 and 2), ALAB-153, 6 AEC 821 (1973); and i
Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-147, 6 AEC 636, 639 (1973).
t
_ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ organizational independence requirements of Criterion I.
We see no reason why it is improper for Applicant's Construction Superintendent to oversee the contractor's QC function.
Although the quality control function must fit in an organiza-tion such that it is free of organizational ties with super-vision that has cost and schedule responsibility, quality control groups must also function as a team with the production and engineering areas for successful completion of a project.
(F-7.)
We view Shamblin's oversight of Comstock's QC Depart-ment as well as the organizations of other site contractors as furthering this objective.
Indeed, a similar organizational structure was approved in Georgia Power Company (Alvin W.
Vogtle Nuclear Plant, Units 1, 2, 3 and 4), LBP-74-48, 7 AEC 1166, 1177-78 (1974).12/
Intervenors assert, however, that even if this organizational structure complies with Appendix B, the actions 12/
At Vogtle, as here, the applicant did not perform construction work with its own forces, but let the work to independent construction contractors.
Applicant employed a site project Superintendent responsible for coordinating the work of the contractors and for developing and implementing, with the approval of the QA engineer, a field quality control program to assure quality compliance by the contractors.
The licensing board concluded that this organization supplied the requisite independence.
7 AEC at 1177-78.
An Atomic Safety and Licensing Appeal Board affirmed the Licensing Board's reasoning without discussion in Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-375, 5 N.R.C. 423 (1977).
See a_1_so Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1150-51 n. 280 (1984).
1 taken in 1984 by Shamblin made the apparent independence of the Comstock QC department a sham.
They claim that Shamblin improperly pressured Comstock's QC management, principally Irv DeWald, the QC Manager, to emphasize quantity of inspections over thoroughness and quality of inspections in their super-vision of the QC inspectors.
Shamblin's motive would have been to forestall a slippage in the construction schedule.
We conclude that the evidence does not support these allegations.
A review of the problems facing Comstock in 1983 and 1984 and the steps taken to resolve them will help make our reasoning plain.
Irv DeWald became Comstock's QC Manager in August 1983.
(F-8.)
He discovered that a backlog of inspections existed with respect to uninspected installed work and that the review of QC documents under Comstock's Document Review Program was behind schedule.
DeWald determined that these backlogs were sizeable and that his manpower resources were insufficient to cope with them and keep current with ongoing installations.
(FF-9-ll.)
He immediately initiated efforts to improve matters, mainly by hiring additional inspectors and working longer hours.
(FF-12-lS.)
When Shamblin became Construction Superintendent in May 1984, he found that despits DeWald's efforts Comstock QC had not been able to eliminatti the backlog and catch up with current installation work.
(F-16.)
This concerned Shamblin because an expanding volume cf installed work of indeterminate
_ _ _ _, quality was being created and because adverse quality trends in the ongoing work might not be identified soon enough to be corrected in a timely fashion.
(F-17.)
Shamblin immediately I
took steps to help Comstock management develop solutions for these problems.
(FF-18-21.)
He set a series of priorities on the basis of which DeWald developed a master plan and schedule for eliminating the backlog.
(F-18.)
He also took measures to reduce the pressure on Comstock's QC department by reallocating and reducing its workload.
(F-19.)
Shamblin monitored pro-gress at a series of weekly meetings with DeWald and Edison's QA Department, at which DeWald reported on the status of the effort, and he agreed to extensions in the schedule requested by DeWald.
(FF-20-22.)
Shamblin also monitored quality by reviewing audits, surveillances and PTL overinspections and by consulting with Ceco QA, to ensure that the quality of inspec-tions remained high during the backlog reduction effort.
(F-23.)
As a result of the Comstock initiative, and with Shamblin's cooperation, the inspection backlog was eliminated in September 1984.
(F-24.)
Intervenors would have us infer, from the mere fact that Shamblin held periodic meetings with Comstock management and received status reports from DeWald, that Shamblin im-properly pressured Comstock to speed up QC inspections, regard-less of whether they were properly performed, thereby usurping the organizational freedom of the QC Department.
This we cannot do.
We found Shamblin a highly credible witness, and his testimony is consistent with contemporary documents received in evidence.1 /
(Int. Ex. 8; Shams 11n, Prep. Test.,
Attch, 4 ff. Tr. 16274.)
We think the evidence shows that, far from creating incentives adverse to quality at Comstock, Shamblin reinforced the Applicant's insistence on a quality product and that in helping eliminate the backlog he in fact resolved a potentially seriou s quality problem.
We thus reject the notion that Edison through Shamblin co-opted the Comstock QC Department such that it lacked the requisite independence from production organizations to satisfy Criterion I of Appendix E.
B.
Harassment Central to Intervenors' contention is the allegation that there has been widespread harassment and intimidation by Comstock management directed at QC inspectors to make them sacrifice quality for cost and schedule considerations.
In particular, Intervenors suggest that when DeWald recognized the extent of the inspection backlog in late 1983, and especially when he was faced with Shamblin's insistence on its speedy elimination in May 1984, DeWald and others in Comr,tock manage-ment were determined to turn out large numbers of inspections, whether or not they were properly performed.
To this end 18/
See Shamblin's June 9, 1984 letter to Comstock and his October 4, 1984 memorandum to Edison's Project Manager (Shamblin, Prep. Test., Attchs. 2, 4 ff. Tr. 16274.)
various managers harassed and intimidated inspectors to make them accept deficient work.
We think it well to begin by specifying what we believe constitutes illegal harassment, violative of Cri-terion I.
We are mindful of the fact that on occasion feelings run high in construction projects.
Many interpersonal inci-dents could loosely be called " harassing" in a layman's sense.
Moreover, management invariably commands and cajoles its work force.
We find very useful in this context the definition of QC inspector harassment articulated by the Catawba licensing board:
The inspector's job consists of identifi-cation and documentation of compliance or deviation from construction procedure according to prescribed procedures.
Any action taken by another employee or super-ior intended to modify the actions of the inspector for the purpose of impeding the proper performance of the inspector's task is considered to be harassment.
The use of or threat to use physical force or other violence is obviously the most overt form of harassment, but harassment can be more subtle, taking the form of oral invectives or behavior designed to intimidate, embar-rass or ridicule the inspector.
Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
LBP-84-24, 19 NRC 1418, 1520-21 (1984), aff'd, ALAB-813, 22 NRC 59 (1985) (emphasis added).
This definition combines overt behavior with an intent to degrade the inspector's performance.
on the part of a superior, such conduct would amount to at 1
least an implicit direction to violate procedures.
See also Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-60, 18 NRC 672, 682 (1983).
We' presume that the presence of an intent to degrade inspector performance could be implied from the circumstances surrounding the conduct alleged to constitute harassment.1E/
1.
Soecific Allegations of Harassment Involving QC Supervisor Saklak We heard extensive testimony from many QC inspectors which included multiple versions of more than a dozen incidents that some considered to be harassment.
The majority of these incidents, covering a period of 2h years, involved QC Supervisor Rick Saklak.
If Intervenors' theory is correct that under DeWald's regime management systematically harassed inspectors in order to preserve the work schedule, then Saklak would have to be DeWald's hatchet man, chiefly responsible for the campaign of intimidation.
We must examine these incidents.
In July of 1984 Saklak lost his temper at QC inspector Mike Mustered because Mustered refused to retract three ICRs.
Mustered had written the ICRs because three installation details deviated from a requirement of the design IE/
We agree with the Catawba licensing board that the overt behavior manifesting illegal harassment can range from threats of violence to tongue-lashings to ridicule.
In the interest of brevity we generally designate this prohibited spectrum of activities as " harassment."
We see no functional or legal distinctions between harassment and intimidation.
drawings.
(F-25.)
Saklak had attended a' meeting with Sargent
& Lundy personnel and learned that the requirement was to be deleted from the drawings.
(F-26.)
Mustered told Saklak that he would not withdraw the ICRs; and until the drawings were revised, he would continue issuing such ICRs.
Saklak became abusive, but did not threaten Mustered, nor did Mustered feel intimidated.
Indeed, Mustered ignored Saklak's directive.
(F-27.)
Mustered did not report the incident to Comstock or CECO management.
(F-28.)
We find that on this occasion Saklak engaged in harassment.
He was abusive to Mustered with the intent of making him violate then existing procedures.
He did not succeed in this attempt and even if he had succeeded in causing Mustered not to issue the ICR, there would have been no adverse quality or safety consequences.
Saklak had some involvement with QC inspector John Seeders, whose allegations are discussed more fully below.
On August 17, 1984, Seeders wrote a letter to DeWald, with copies to Edison and the NRC complaining of harassment and intimidation.
Among other things, he complained of an incident earlier that day when he and Saklak had exchanged loud and harsh words.
(F-35.)
The incident was precipitated by Seeders' failure to turn in his status reports of completed inspections in a timely fashion.
(FF-30-34.)
Six witnesses to the incident were interviewed by DeWald; in general they felt there was simply a personality clash between the two men.
(F-36.)
We conclude that the conduct of both men was in-temperate, and in any case, no question affecting the integrity of inspection duties was involved.
Seeders' letter also complained that earlier that month, the lead inspector in material receiving was on leave from work and Seeders was asked to assume duties tem-porarily in that area as well as handling his normal cali-brations area.
(FF-37-38.)
Seeders apparently had complained about the additional work, and the letter claimed Sak'. k had responded that other people would do his " legwork" and make out the checklists and Seeders would sign the paperwork.
Seeders interpreted this as an inducement to falsify documentation, something which he would not do.
The extra work in material receiving that Seeders undertook appears to have been quite light.
(F-39.)
Nor was he the only inspector certified, and therefore able to sign inspection reports, in the material receiving area.
(F-29.)
Moreover, as Seeders agreed on cross-examination, there were various types of assistance that it would have been perfectly proper for others to give him.
(F-40.)
Although Saklak's explanation of this matter is not fully understand-able, we think Seeders misinterpreted Saklak's statement as requiring him to sign documentation for inspections which he had not performed. S/
Such an instruction does not square with Saklak's character as we find below.
29/
We also give some weight in this connection to our overall (Footnote Continued)
- - ~. -
i 4
On November 5, 1984, Saklak threatened to fire i
L QC inspector Franco Rolan.
Rolan had written an NCR on an f'
unacceptable electrical installation, but had not named the j-electrician, because the underlying drawing, rather than he, I
was in error.
'(FF-42-43.)
Saklak insisted that the electri-cian be added to the NCR, as was the usual practice, so the NCR l'
~could be tracked properly.
(FF-43-44.)- When Rolan refused, Saklak threatened him with words to the effect that when the 4
h NRC was through with him, he wouldn't have.any certifications left.
Rolan understood these words to mean that he would be 4
1 l
fired.
Rolan reluctantly added the electrician to the NCR.
1 (F-45.)
Rolan complained to DeWald. who issued Saklak a j
written reprimand for his threatening behavior.
(F-46.)
We f
j find this behavior unjustifiable, but cannot say that it 1
j constituted harassment.
The incident reflected a heated i
difference of professional opinion over how, not whether, a
d I
l (Footnote Continued)
)
judgment, based on our observation of Mr. Seeders, that he l
was not always the most credible of witnesses.
For i
i example, he denied that his signature on a document was i
l genuine, although he had acknowledged it at his l
deposition.
(App. Ex. 82; Seeders, Tr. 7308-10.)
He also
[
denied that when DeWald gave him the option of being transferred or fired, DeWald told him he had been in l
contact with Edison and NRC;.in his deposition, however, he had volunteered this information.
(Tr. 7829-31.)
In i
addition, Seeders denied that he had been aware of his l
right to pursue a Department of Labor complaint if he felt j
his transfer was retaliatory.
In his deposition, however, i
he testified quite circumstantially that he had been aware l
of this right and that several other inspectors had advised him to pursue it.
(Tr. 7877-79.)
i
\\ discrepancy should be documented.
Far from.wanting Rolan to short-cut procedures, Saklak wanted him to document the dis-crepancy more fully.
We heard testimony about two incidents between Saklak and QC inspectors that predated DeWald's tenure as QC manager and are thus marginally material at best to Interve-nors' contention.
We nonetheless discuss them because they illustrate a pattern of behavior on Saklak's part.
The earliest incident took place in September 1982 between Saklak and QC inspector Rick Martin.
Martin had apparently lost his own tape measure and Saklak lost his temper about it.
(FF 50.)
Martin himself testified that no quality or safety concern was at issue in this incident, and we agree.
The next incident occurred between Saklak and QC inspector Danny Holley in early 1983.
Holley had apparently gone to an Edison office to inquire about job opportunities elsewhere.
Saklak found out and told Holley he would fire him on the spot if he went to CECO again without permission.
(F-52.)
We find Saklak's threat unwarranted and inexcusable.
It appears to have had no effect on Holley, because he knew that Saklak had no authority to execute it.
(F-53.)
More l
l importantly from our point of view, we cannot find on the evidence that Saklak made the threat with the intent of com-promising the integrity of Holley's inspection work.
The next several incidents about which we have heard have not been pinpointed in time.
The record clearly reflects long-standing ill-feeling between Saklak and Rick i
l
. Martin.
Sometime between October 1983 and March 1985, Saklak belittled Martin in from of others when Martin objected to Saklak's use of a checklist.
(FF 54-57.)
In the same period, Saklak and DeWald berated Martin for visiting S&L.
(Martin had bypassed his lead, his supervisor, and his QC management by going directly to an upper-level S&L person, apparently to ask him a question about a detail on a drawing.)
(FF-58-59.)
Another time Saklak crumpled a piece of paper and threw it on Martin's desk to illustrate the kind of debris Martin was to inspect for in cable trays.
(F-60.)
Martin did not consider any of these incidents to constitute harassment or intimida-tion.
He regarded them as examples of poor management, but agreed that they were unrelated to quality concerns.
(FF-61.)
We agree.
Sometime in 1982 or 1983 Saklak lost his temper with inspector Joe Hii.E1/ Hii could recall only that Saklak yelled at him because he had not finished a project.
Hii could not recall the nature of the project.
(F-62.)
He testified that he was not intimidated by the incident.
(F-63.)
The next day he pulled Saklak aside and discussed both the incident and 1
the project and resolved them.
(FF. 64.)
We draw no conclu-sions from this incident, which appears to have been nothing more than an outburst of temper.
EE/
This incident could have occurred prior to the time DeWald l
was made QC manager, but we consider it since the event l
could have happened in the latter part of 1983 after DeWald became QC manager.
t The final and most significant incident involved Saklak and QC inspector Rick Snyder.
On March 28, 1985 Snyder wrote an ICR on a welding machine that exceeded calibration tolerances.
That afternoon, Saklak told Snyder and his lead inspector, Ray Nemeth, that Snyder should close out the ICR without obtaining an engineering disposition.
(F-68.)
Saklak apparently regarded the ICR as unnecessary because under a procedure revision not yet fir.alized, calibration QC inspec-tions would no longer be performed on welding machines.
(FF-65-67.)
Snyder and Nemeth disagreed with Saklak because the current procedure still required that the ICR be issued and that it be closed only after an engineering evaluation.
Snyder went to Seltmann's office to verify whether he or Saklak was correct.
Seltmann agreed with Snyder.
(F-69.)
After Snyder returned to his desk, Saklak went over to him and said, " Rick, sometimes -- we are going to go round and round and you make me so pissed off that if beating l
was legal, you would be dead."
Snyder responded, " Rick, whatever you think you have to do."
(F-20.)
Saklak walked away and Snyder wrote a memo to his management about the encounter.EE/
Snyder testified that he was shocked and "in a i
state of disbelief" that Saklak had threatened him.
No QC I
ES/
Snyder testified that he wrote the memo "because I knew my l
rights as an inspector.
I didn't have to put up with
)
that."
Snyder, Tr. 4197.
manager or supervisor had ever threatened Snyder before.
(FF-71-72.)
The next morning, Saklak apologized to him and explained that it had been a bad day.
(F-73.)
Nevertheless, Snyder then went to the resident NRC inspectors, sometime before 9:00 a.m.
on March 29th, and was accompanied by five other inspectors.
He returned at the NRC's request at noon, and was accompanied by 23 Comstock QC Inspectors. (F-74.)
A number of the inspectors at both meetings complained about Saklak's behavior.
They also raised other complaints addressed elsewhere in this opinion.
Applicant concedes that the incident which took place between Snyder and Saklak constituted illegal harassment.
We agree.
Despite the fact that a change in the procedure was imminent, Saklak understood that the then existing procedure was controlling and improperly commanded Snyder to violate it.
While Sahlak's threat came at a time after his direction to Snyder to violate the procedure, it nevertheless reflects Saklak's earlier intent.
Saklak was suspended on the afternoon of March 29, 1985, pending an investigation.
He was then terminated by Comstock's corporate management.
Edison also i
l barred him from working at any of its nuclear sites in any safety-related position.
(F-75.)
We conclude that the action taken against Saklak for the Snyder incident by Comstock and by l
Edison was both swift and appropriate.
Looking back over the series of incidents we i
have described, we do not believe the evidence supports the i
l l
. notion that Saklak acted either as DeWald's hatchet man or alone to carry out a campaign of harassment in.crder to speed the inspection process at the expense of ignoring quality or safety concerns.
We conclude that while a number of incidents resulted from undiplomatic and abrasive employee relations on the part of Comstock management that stirred-resentment in certain inspectors, only two incidents can be characterized as harassment.
Even in those two instances, we have determined that Saklak did not show a disregard for quality or safety concerns.
Rather, the incidents appear to stem from ungovern-able outbursts of temper on his part.
It seems clear that Saklak was, as one inspector put it, a " hothead."SE/
He was irascible, short-tempered and abrasive in his dealings with the QC inspectors he supervised.
There is, however, no requirement that supervisors at nuclear construction sites be molded by finishing schools.
Construc-tion sites are known to be places where profane language is used and where tempers may flare.
We do not think the evidence shows that Saklak was prone to disregard quality principles.
On the contrary, it shows that he was sincerely quality-oriented.ES!
We have concluded that in the Mustered and Snyder EE/
Holley, Tr. 5104.
ES/
The record shows, for example, that Saklak was energetic and effective in improving the practices and procedures of the Comstock QC department and frequently raised with (F sotnote Continued) incidents Saklak did engage in harassment because he became abusive with inspectors when they would not follow his direc-tion to violate procedures.
Although such behavior cannot be excused, we must observe that even here Saklak did not demon-strate a disregard for quality of work or safety.
In both cases he was directing the inspectors to ignore procedural requirements that were soon to be eliminated by amendment He knew that the matters addressed by the inspectors' ICRs had no quality or safety significance.
Likewise, we do not believe the evidence shows that Comstock management is culpable for not firing Saklak earlier.
While DeWald and Seese, for example, were aware that Saklak was volatile and impatient, neither could reasonably have anticipated that Saklak would threaten a QC inspector who refused to abide by his directive to ignore procedures.
DeWald, Seltmann and Seese all testified that they had always found Saklak to be quality conscious.
(FF-78-79.)
The harass-ment of Mustered was not made known to management.
(F-28.)
The corrective action which followed the harassment of Snyder was both swift and effective.
Moreover, we think the uproar this incident caused among the inspectors indicates that it was (Footnote Continued) management various concerns about the quality of inspectors' reports and poor construction practices.
(FF-81-87.)
31 -
exceptional and that Saklak was not routinely engaging in similar conduct.
2.
Other Alleged Incidents of Harassment Although the majority of the alleged incidents of harassment involved Saklak, inspectors claimed that Messrs.
DeWald, Seese and Seltmann had also engaged in harassment.
John Seeders QC inspector John Seeders asserted that he was harassed by several of his superiors at Comstock for a period of several weeks in the summer of 1984.
(F-109.)
As we mentioned earlier, he made these allegations in a memo ad-dressed to DeWald on August 17, 1984.
In the memo Seeders claimed that in connection with a QA audit he was told to perform a complete review of his calibration records by a certain date "no matter how I did it."
He interpreted this as a directive to falsify documentation, which he stated he would never do.
(F-101.)
M review of the extensive testimony on 3
this subject does not pupport this allegation.
s From early 1983 until October 1984 Seeders was a cdlibrations inspector at Comstock; until near the end of this period, he was the only inspector assigned to this area.
(F-88.)
As such, he was responsible for issuing ICRs to document faulty calibration of equipment and for ensuring that such uncalibrated equipment was not released to the field.
(F-89.)
In late May 1984, an Edison QA audit identified numerous
__ deficiencies in Seeders' calibration activities, including failure to issue ICRs for tools out of calibration.
(FF-88, 91.)
CECO QA requested Comstock to assure that no additional deficiencies existed and report by July 20, 1984.
(F-92.)
Between late May and early July Seeders was directed to review all Comstock calibration records to determine if there were other failures to write ICRs for equipment that was out of calibration.
(F-92.)
i On July 20, 1984, Robert Seltmann, at that time Comstock's QA engineer, asked Seeders the status of his review.
Seeders said that he and Rick Snyder were going to work on it the following day, a Saturday.
Seltmann made it clear that a 100% review, not a sample review, was required.
(F-94.)
Three days later Seeders explained that his review was still incom-plete.
Seltmann wrote a memo to CECO indicating that a'com-plete review was underway and that Comstock would submit an updated response by August 13, 1984.
(F-95.)
Seltmann periodically checked with Seeders regarding the status of his review.
(F-96.)
On August 14, Seltmann was shown several handwritten papers which purported to constitute the documentation of Seeders' review.
He was i
dissatisfied this documentation, and later that day met with Seeders about the status of the review.
(FF-96-97.)
At the meeting, tempers flared, and Seltmann ultimately ordered him to leave the room and return to work.
(F-97.)
Later that day, Seltmann wrote a memo to Edison stating that Seeders' review of i
.n.
the calibration records was only partially completed, and that a final report was expected by August 24, 1984.
(F-98.)
Sometime after the meeting of August 14, Seeders was relieved of the records review assignment.
Three other QC inspectors, were assigned to work on the review of calibration records, which was expanded to include a review of the prior contractor's records.
(F-99.)
The recital of this evidence belies Seeders' claim that he was forced to complete his review of records in an unreasonably short time even if it meant falsifying docu-mentation.
It is, of course, somewhat difficult to determine how long it should reasonably have taken Seeders to complete the review.
Nonetheless, Seltmann's behavior is incompatible with Seeders' claim.
When Seeders failed to meet successive deadlines, Seltmann repeatedly extended them.
While the record shows that Seltmann was concerned with responding in a timely fashion to a quality concern raised by CECO about Seeders' QC documentation, it does not show or suggest that Seltmann encouraged or would have tolerated a haphazard review of the documentation on Seeders' part, much less that he would have tolerated Seeders' falsifying documentation.
Seeders felt harassed because Seltmann kept checking with him about the progress of his review.
(F-101.)
We do not regard this as harassment.
We also find that Comstock and Edison responded appropriately to Seeders' August 17 letter alleging harassment and intimidation.
Shamblin received a copy of Seeders' letter.
_ He directed his assistant Jim Gieseker to meet with Seeders in order to better understand his concerns.
He also directed DeWald to investigate the matters relating to Seeders' alle-gations.
(F-102.)
Gieseker met with Seeders, who apparently expressed the concern that his work status would be adversely affected by the August 17 letter.
(FF-103-105.)
At a sub-sequent meeting Gieseker conveyed to Seeders the steps that Edison and Comstock were taking to improve morale, and assured Seeders that his work status would not be affected by the August 17 letter.
Likewise DeWald had also undertaken an investigation of the concerns raised in Seeders' letter.
DeWald concluded that many of the statements made by Seeders were either inaccurate or had been resolved.
(FF-106-109.)
Shamblin was satisfied with Gieseker's reports and DeWald's investigation.
(F-110.)
Therman Bowman QC inspector Therman Bowman, a welding inspec-i tor, testified that he had observed a base metal reduction problem in a structural weld.
When he mentioned this to his lead inspector, Walters, Walters told him he should ignore the condition because it was not within the scope of his inspection task.
Bowman said he then brought the matter up with Dyrl Landers, a welding inspection supervisor, who told him to keep his production up or he would lose his overtime.
(F-111.)
So stated, one might infer that Landers was threatening Bowman with loss of benefits if he did not maintain an inspection
c_.
- " quota" by ignoring a quality problem.
Bowman's testimony, however, makes clear this incident was not harassment.
The statement of Landers was at most equivocal.
Moreover, any implied threat was contradicted by Landers' actions.
Landers was apparently instrumental in advising Bowman to issue an NCR if he saw fit.
(FF-112-113.)
Finally, the initial direction from Walters that the structural steel defect was not within the scope of Bowman's inspection may have been mistaken --
Bowman thought it was -- but we cannot find that it constituted harassment.
Terry Gorman QC inspector Terry Lee Gorman, who was in charge of Comstock's QC document vault, testified that he sometimes felt harassed and intimidated by DeWald, because when DeWald asked him to retrieve a document from the vault, DeWald wanted to have the document by a certain time.
Gorman sometimes found these time limits unreasonable.
(FF-114-115.)
His testimony, however, showed no more than that he objected to having his normal scheduled work interrupted and would have preferred to fit in requests for document retrieval at his own convenience.
(FF-114-167.)
However, as we understand Gorman's testimony, such retrieval of QC documents, which DeWald often needed to give to auditors or to Edison, was a normal part of his job.
We think he was wrong to regard it as an imposition.
In any case, there is no question of Gorman being pressed to violate
.~
..- _ ~. _. - -
.~.
procedures, and'his. testimony raises no quality or safety i
Concerns.
't 3.
Implied Allegations of Harassment Intervenors.also assert a less tangible but broader pattern of behavior on the part of Comstock management, I
one consisting of " historic, tangible,-powerful and pervasive production pressure."SE/
It, too,'is offered as a violation of Criterion I, even though no specific incident is tied to this purported pattern.
We reviewed the record carefully and in detail, and we find that no such pattern emerges on the part of i
Comstock management.
We have found, as described above, that i
when DeWald took over as QC Manager, and when Shamblin took over as Construction Superintendent, a.significant backlog of
.(
work existed at Comstock, and that these men took aggressive 5,
and successful actions to eliminate it.
7 j
There is no question in our minds that the difficult task of eliminating the backlog placed the entire QC l
Department, from DeWald on down to the inspectors, under a good I
deal of pressure.
This in itself, of course, does not equate t
to illegal action on the part of Comstock management.
Dead-lines are a fact of life, whether on a construction site or in any other employment setting.
Their mere presence and efforts 1
SE!
Tr. 7903-04.
l 1
i i
f
_ undertaken to achieve them does not necessarily reflect that quality is being sacrificed.
Comstock QC management had both the prerogative and obligation to take every reasonable step to eliminate the backlog.
It would be improper, however, for Comstock's QC management to establish inflexible quotas and deadlinos with the inspectors who fail to achieve them being punished by adverse job action.
Because the record shows that the time required to perform a given inspection thoroughly may vary widely, arbitrary quotas and deadlines would run a grave risk of causing inspectors to compromise the quality of inspections.
Evidence of this kind of conduct would support Intervenors' assertion of widespread and systematic harassment and intimida-tion.
Intervenors point to weekly meetings between DeWald and the inspectors and the maintenance of status reports as the tools used by management to implement their plan of harassment.
They believe these tools were used to convey to the inspectors the clear message that production of large numbers of inspec-tions was all-important, and that performing those inspections thoroughly was unimportant.
In essence, an environment of harassment and intimidation pervaded the QC inspectors' work place causing them to increase their production of inspections at the expense of quality.
This aura, called " production pressure" is, we are told by the Intervenors, a violation of Criterion I.
Not surprisingly, Applicant characterizes these matters in different terms.
In its view, the meetings and Y
..m._
status reports were legitimate management-tools needed to manage the QC organization effectively.
The meetings were necessary to keep abreast of the~ ongoing activities.
The status reports were essential to monitor progress.
Without 4
these reports, we are told, Comstock QC management would not have been able to determine if any headway was being made towards eliminating the backlog.
It is from these disparate viewpoints that we examine the evidence.
We address first the weekly meetings held by DeWald.
Shortly after he bec me QC manager,.DeWald instituted a practice of meeting with his QC inspectors weekly to discuss matters of interest.
(F-117.)
In particular, these meetings S
were used to answer any of the inspectors' questions concerning l
the work, to issue new instructions, to resolve any problems 5
encountered by the inspectors and to provide current infor-mation concerning the status of completed and uncompleted 1
i inspections.
(F-118, 120.)
DeWald viewed these meetings as important to effective communication with the inspectors.
3 (F-129.)
Some of the inspectors perceived these meetings in quite different terms.
We heard testimony that DeWald used them to promote the production of inspections at the expense of quality.ES/
Inspectors Gorman and Seeders held this view.
l ES/
The NRC resident inspectors at Braidwood reported also that some inspectors made statements to them that were similarly critical of DeWald.
See, Intervenors' Group 4
(Footnote Continued) d i
(F-123.)
It is also suggested by the testimony of six inspec-tors that the inspection production was spurred by the threat of losing the contract for the electrical work at Braidwood because Edison was dissatisfied with Comstock's performance.
(F-131.)
Some inspectors believed that Edison was pressing Comstock to get inspections caught up to eliminate the backlog.
(F-131.)
The inspectors' testimony described above seemed rather persuasive when we first heard it.
It seemed that Comstock's QC management indeed may have engaged in widespread harassment.
However, after reviewing the record carefully we perceived that the testimony is largely based on impressions and intuition formed from either shop talk or fragmentary recollections of DeWald's weekly meetings.
(F-132.)
This conclusion should not be construed as any criticism of the witnesses.
To the contrary, we believe the inspectors were extremely forthcoming with their testimony.
They cooperated (Footnote Continued)
Exhibit #42 -- the March 29, memorandum from NRC's McGregor and Schulz to Messrs. Warnick and Weil and the April 5 memorandum (expurgated version) from NRC's Weil to C.
E. Norelius.
The Group Exhibit also includes a third memorandum dated March 29, 1985 from the NRC residents to Warnick and Williams.
These memoranda were incorporated as a part of the basis for Intervenors' harassment contention.
They were also received into evidence for the limited purpose of showing that the QC inspectors visited the NRC on March 29 and that the documents recorded what the authors understood the inspectors to say.
Since these documents are not themselves evidence of the inspectors' statements, we attach no weight to the reported statements that Comstock was emphasizing quantity over quality.
-- fully and attempted as best they could to provide useful information.
Unfortunately, dimming memories and, in some cases, the lack of first-hand knowledge betrayed their attempts to provide useful information.
Indeed, many inspectors freely acknowledged the fragility of their testimony.
(F-132.)
Snyder stated he supported the notion that Comstock was emphasizing quantity over quality at the March 29 meeting with the NRC even though he knew of no instance where that occurred.
Moreover, Snyder was not aware based on his recollection of the weekly meetings that management favored allowing inspection quality to suffer in order to increase inspection production.
(FF-129, 164.)
Inspector Gorman assumed DeWald was promoting quantity over quality based on his impression of the emphasis placed during the meetings by DeWald with respect to getting more inspectors out of the office and into the field.
(FF-123-124.)
Inspector Wicks could only recall that at the time he went to the NRC on March 29, 1985, he told them that Comstock was stressing quantity over quality.
However when he testified he could not remember the basis for that judgment.
(F-128.)
Inspector Seeders heard inspectors whose names he could not recall complain that DeWald was overemphasizing completion of more inspections.
Seeders believed they meant that DeWald wanted quantity regardless of the consequences.
(F-122.)
Holley inferred that Comstock was in jeopardy of losing the contract for the Braidwood electrical work from a statement made by Mr. Seltmann, Comstock's QA engineer.
l I
_ (F-133.)
Hunter inferred that Comstock might lose the Braidwood contract from statements made by DeWald during the a
weekly meetings.
(F-133, 170.)
Gorman formed a similar judgment on the basis of unexplained shop talk and inferred
~
from DeWald's statements at the meetings that Comstock might lose the contract if they didn't get their work caught up.
'l (FF-131-132, 169.)
DeWald did not believe that it was in jeopardy,-a fact confirmed by Shamblin, who testified that he I
was not dissatisfied with the performance of Comstock's QC Department and never threatened to terminate its contract.
Some inspectors believed that the Applicant was pressuring Comstock's QC management to get caught up and elimi-nate the backlog.
Snyder's opinion on this point was intui-L tive.
Gorman's and Seeders' opinions were similarly based.
i We have catalogued this testimony to make plain j
its speculative nature.
No pattern of harassment can be inferred from DeWald's weekly meetings.
The testimony, no matter how well-intentioned, has no probative value.
Such t
meetings could certainly serve as fora to promote a program of harassment but the record before us supports no such conclu-sion.
We also heard testimony about Comstock's use of 4
i status reports.
Comstock used such status reports to keep track of the efforts to reduce the backlog.
(F-136.)
Each inspector filled out a daily report, showing the inspections he i
had performed that day.
The lead inspectors then tabulated the r
individual status reports supplied to them by the inspectors I
whom they supervise.
(F-148.)
Mr. Seese, the Assistant QC Manager, compiled the lead inspectors' status reports into a table to track the backlog reduction efforts.
(F-138.)
On the other hand, a number of inspectors believed that the status reports were in fact used to do more than keep track of the overall progress of the backlog reduc-tion.
These inspectors believed that management was tracking the daily accomplishments of each inspector and measuring these accomplishments against a pre-set quota.
They believed that if their daily inspections fell behind this quota, they would be disciplined.
Others testified regarding more general manage-ment comments regarding low productivity.
We examined the record to determine if there were either inspection quotas established for inspectors or whether comments regarding low productivity indicated that Comstock management was more interested in the quantity rather than the quality of inspections.
Inspector Stout held the strong view that at Comstock, QC inspector productivity overrode the quality of inspections.
(F-142.)
Comstock management had used his status reports to calculate his work productivity.
They determined that for one 7-week period Stout had averaged 1.6 hanger inspections a day.
Based on this and his poor work attendance record, DeWald gave Stout a written reprimand on March 19, 1985 for excessive absenteeism and poor work performance.
(FF-142-144.)
In Stout's opinion, the fact that his productivity had been calculated from his status reports meant that a quota was being imposed.
(FF-145-146.)
Obviously, the statistic was derived from Stout's status report.
The real issue, however, is whether these reports were used to establish quotas against which inspector performance was inflexibly measured.
DeWald and Seese testified that the status reports were not used to set quotas.
(FF-137, 139.)
Inter-venors argue that the testimony of Stout, Klachko and Peterson provide firm evidence of a quota system designed to pressure inspectors to increase the number of inspections performed each day at the expense of quality.
Intervenors buttress their position further by citing the testimony of other inspectors to the effect that they were aware of various quotas established over time by DeWald and other QC managers.
The record, how-ever, does not support Intervenors' interpretation of the testimony.
We conclude that Stout's status reports were used to assess his productivity.
We have some question as to whether the reports could be used effectively for this purpose.
The record is quite clear that the time needed to conduct inspections is varied, depending on the size, location and the amount of document research required.
We have no difficulty,
(
l however, in the circumstances of this case.
It seems to us i
that as explained by inspectors Bowman and Mustered it is possible that an inspector's productivity might be very low for two or three weeks while particularly large and inaccessible hangers or those requiring a great deal of research were being I
inspected.
(FF-135, 176.)
It does seem unlikely, however, l
- ~,.
that this type of assignment for one inspector would persist over as many as seven weeks.
Any doubt on this score is dispelled by the testimony of inspector Bossong.
Mr. Larry Bossong had been one of Stout's leads; he was a union organi-zer, and later became a union steward.
Further, he initially testified that DeWald's warning was unfair.
(F-144.)
IIe changed his testimony during cross-examination when presented the opportunity to review the data underlying the warning.
His view of the daily average of 1.6 inspections performed by Stout over an 8 week period was that Stout's productivity was
" unusually low."
(F-144.)
We find this testimony convincing especially since it is the testimony of a fellow inspector and union representative.E2/
We conclude that in Stout's case, his status reports were used to confirm management's suspicion of his lack of performance.
They were not used to measure his performance against an established quota or for the purpose of setting one.
(F-145.)
We conclude that DeWald's March 19, 1985 reprimand of Stout was justified.
When Klachko was a lead inspector, between August, 1983 and February, 1985, he was approached several times by both DeWald and Saklak who questioned him about the apparent low productivity of inspectors he supervised.
(F-147, E2/
We observed during the course of the hearings that QC inspectors were very reluctant to criticize their brethren.
We have no doubt the inspectors' code does not lightly countenance such conduct.
149.)
Klachko himself was not concerned about the number of inspections performed, but rather their quality.
(F-151.)
He relied on the PTL overinspection reports to disclose any diminution of inspector performance.
(F-151.)
When Saklak or DeWald inquired about a particular inspector productivity, Klachko would warn the inspector that an inquiry had been made and that the status reports were being used to keep a " count" on the inspector but took re other action.
(F-150.)
Klachko was aware that DeWald and Saklak also spoke to some inspector directly concerning their productivity, apparently based on their review of the daily status reports.
(F-150.)
The only inspector who was approached by DeWald and Saklak and whose identity he could recall was Danny Holley.
(F-150.)
Holley testified that DeWald, Saklak and Klachko, among others, had spoken to him about the pace of his inspections.
(F-162.)
Holley never felt that he was being urged to overlook construction defects in order to increase his productivity.
(F-160, 162.)
Although Holley agreed with DeWald that he could probably be more productive, he did not change the manner of his inspections as a result of these conversations.
(F-160.)
We conclude that Klachko's evaluation of the use of the status reports by DeWald and Saklak, while understand-able, seems to impart too sinister a motive.
For the one inspector for whom we were able to trace the inquiry to Klachko and the use of the status reports to its ultimate resolution, the inquiry about apparent low productivity was a gentle one,
3 i with no sanction imposed nor any suggestion that quality concerns be sacrificed.
Nor was there any indication that Holley failed to meet a quota.
QC inspector Dean Peterson testified that he was criticized by his supervisor for very low productivity.
(F-154.)
Peterson was told that unless his work picked up he would not be assigned to work any overtime.
(F-155.)
Peterson explained to the supervisor that he was inspecting welds that had not been cleaned of paint adequately, and he needed to take the time to clean the welds first in order to conduct his inspections.
(F-154.)
The record is not clear that the criticism directed at Peterson was based on an evaluation of his status reports.
Further we are not told what Peterson's statistics were that prompted the criticism; his productivity was simply characterized as very low.
Peterson did not attempt to con-tradict this notion on the witness stand.
Rather he explained the low productivity was due to the fact that his completion of inspection assignments were delayed because of the paint problem.
Peterson and his supervisors disagreed about whether the residual paint left on the welds by the paint cleaning crews impaired inspection.
(F-158.)
Peterson ul-timately declined to perform any inspections until the welds were cleaned to his satisfaction.
(F-157.)
This impasse was resolved when he was transferred to in-process weld inspec-tions.
(F-159.)
Peterson welcomed the transfer and, since these welds were not painted, the issue of his satisfaction with their cleanliness disappeared.
On March 29, 1985, Stout told the NRC resident inspectors at the afternoon meeting that QC inspector prc-ductivity overrode the quality of inspections.
Moreover, at his prompting, the NRC resident inspectors requestol a show-of-hands to determine if there was a consensus among the inspectors on this point.
It appeared to the NRC resident inspectors that all 24 inspectors agreed with Stout's state-ment.
(F-163.)
We have already shown that Stout's assertion had no valid basis.
His reprimand can not be characterized fairly as an example of inspection quality being overridden by QC management's thirst for inspection productivity.
The agreement of the other 23 inspectors with Stout's assessment is another matter.
We are again faced with the vagaries of the evidence.
We have no clear evidence explaining the basis for their support of Stout.
We note that at least one inspector raised his hand even though he was unaware of any support for the proposition.
(F-164.)
Therman Bowman, who also lacked any personal experience on the question, raised his hand on the basis of conversations with two other inspectors.
(FF-175178.)
One of them, Mr. Holley, made it clear that Bowman's perception that Holley had been subjected to pressure to meet an inspection quota was misplaced.
(FF-160-162.)
It is not clear on the record why Holley despite this testimony never-theless raised his hand.
The other inspector upon whom Bowman
based his concurrence, like Stout, had no basis for complaint.
As we explain supra, Mr. Peterson was not subject to pressure to meet a quota.
Others like R. D. Hunter raised their hand
?
because of impressions gained from DeWald's weekly meetings.
(F-170.)
We have already explained the unreliability of such impressions in an earlier section of this opinion.
Finally, Inspector Hii was apparently counted among the major-ity even though he did not raise his hand.
(F-178.)
The record does not disclose the reasons other inspectors may have raised their hands.
For the ones we do l
know, the reasons for the apparent agreement with Stout ranged from misinformation and miscounting to a perceived obligation to provide Stout with loyal support.
Left with this eviden-tiary deadend, we cannot find the " hand raising" incident probative to the harassment issue.
We turn next to the testimony of various inspec-tors on the subject of quotas.
Surprisingly, the inspectors' I
testimony on this point was quite diverse.
The opinions offered ranged from no knowledge of any quota (FF-123, 126, 130, 171-172, 175.) to average productivy of 8 to 10 inspec-i tions a day.
(F-161.)
Between these ranges, it was suggested that averages of 5 to 6 inspections a day were performed; (F-145.) other estimates were 6 or 8 per day (F-145.); or eight a day (F-161.); or as one inspecter described Comstock's expectation, one inspection per hour.
(F-174.)
We think that i
I had Comstock's QC management actually established a quota or otherwise imposed a minimum number of inspections to be per-1 formed, the inspectors would have understood it and they would have been able to describe it in unanimous terms.
Instead, we believe the " quotas" testified to were actually mutated from the legitimate expectations of Comstock.
Despite our analysis, we are troubled by the extensive discontent existing among the inspectors which mani-fested itself as a widespread perception of harassment and pressure to compromise quality.
In trying to understand the genesis of this perception we cannot ignore the fact that QC inspectors routinely perceived Comstock QC management as an adversary, largely because the relations between the inspectors and management had been poisoned by a series of protracted disputes and unfortunate events.
One such dispute was the question of pay.
The hourly rate paid by Comstock to QC inspectors when DeWald became the QC Manager in August 1983 was $7.00 per hour.
This rate was well below the going rate in the industry, and a number of inspectors left for jobs at other nuclear sites for this reason.
(F-180.)
When Comstock attempted to expand its inspector workforce in late 1983 and early 1984 to meet the challenge of the backlog, it began hiring new inspectors at
$12.00 per hour while the hourly rate of the existing cadre remained much lower.
(F-181.)
In April of 1984, Comstock, faced with widespread discontent, finally raised the base salary of inspectors to $12.00 per hour.
Mr. Marino, I
Comstock's corporate QA manager, also instituted a policy whereby an additional fifty cents per hour was paid for each
, new certification acquired.
(F-182.)
However, this incentive program was a labor relations disaster.
The demands for inspector time to address the backlog and newly installed work left little time for the necessary training that had to be accomplished before a new L
certification could be earned.
(F-184.)
Moreover, the need for additional inspectors persisted and Comstock now had to pay new entry inspectors $16.00 an hour.
(F-185.)
Hence, the disparate pay scale between new hires and the veteran inspec-tors that had been eliminated in April 1984 with the esta-blishment of the $12.00 rate was quickly re-established.
Moreover, the already aggravated situation was further exa-cerbated when it became necessary for the $12.00 per hour inspectors to train the $16.00 per hour inspectors on a priority basis so that the new hires could become productive.
(F-185.)
The mere recitation of these events indelibly explain a cause of the inspectors' discontent and hostility towards Comstock's QC management.
At least two other events contributed to this end.
The first was a fire that damaged i
portions of Comstock's QC offices in the spring of 1984, rendering working conditions crowded.
(F-186.)
Comstock was slow to repair and renovate the burnt-out area causing the inspectors to be virtually be sitting in each other's laps.
Resentment over the delay was not the only adverse consequence.
The crowded conditions not only gave rise to frustration but naturally facilitated the venting of gripes about the other e
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. matters we have discussed.
This climate undoubtedly served as a seedbed for shop talk about all matters, including percep-tions of harassment and intimidation.
Second, the inspectors, no doubt motivated by salary and working conditions, sought to form a union.
(F-187.)
Union activity first began in earnest in July 1984.
(F-188.)
Comstock opposed the effort vigorously, and a number of the inspectors were also strongly opposed.
(F-189.)
By November, 1984 the inspectors approved the union by a 43-30 vote.
(F-190.)
However, collective bargaining negotiations were stalled for five months while an appeal of the election was appealed by Comstock and one inspector.
(F-190.)
The pay conditions described above persisted until July 1985 when Edison contracted with a job shop organization that had a union agreement.
(FF-192-193.)
This new company, named BESTCo.,
hired all the Comstock QC inspectors and thereafter acted as their employer.
(FF-193.)
Thus, it becomes apparent that inspector dis-content over pay and working conditions in 1984, and the resentment created by the union embroglio were festering.
This store of anger may well have erupted with the Saklak-Snyder incident in March 1985.
(F-194.)
We cannot conclude that the inspectors purposely biased their testimony for these reasons.
We do believe, however, that the adversarial work-management relations which had developed fostered a climate of suspicion l
which jaundiced inspectors' interpretations of legitimate l
management attempts to accomplish a difficult job.
l l
C.
Discrimination The Commission's regulations prohibit an applicant or its contractor from engaging in discrimination against employ-ees for raising health or safety concerns.
10 C.F.R. $ 50.7.
Such discrimination includes virtually'any adverse job action.
The Commission has made it plain, however, that the raising of safety concerns by an employee followed by adverse job action against him does not by itself make out a case of discrimina-tion.
There must be a demonstrated nexus between the two; the adverse job action must be shown to be retaliatory in na-ture.EE/
We think the terms " discrimination" and " retaliation" are equivalent in this context and we use them interchangeably.
Intervenors here allege that five specific job actions against inspectors were retaliatory.
We review the evidence as to each.
SE/
It is unquestioned that (1) these individuals raised safety concerns, and (2) they thereafter lost their jobs at TMI, either by firing or transfer.
However, in each case there does appear to be a dispute regarding whether the evidence indicates a connection between those two events.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 N.R.C. 282, 327 (1985).
The Commission concluded with respect to one individual:
"[W]hile the timing of the suspension may have given the appearance that it was retaliatory, the evidence does not support such a conclusion.
Appearances alone do not raise significant safety issues Metropolitan Edison Company 21 N.R.C.
at 328.
i John Seeders Intervenors' contention alleges that because Seeders wrote his April 17, 1984 letter to Comstock, Edison and the NRC, complaining that he was being harassed, he was in-voluntarily transferred to the position of engineering clerk.
Intervenors allege he was transferred in retaliation for expressing quality concerns and in order to keep Seeders away from sensitive work areas.
It is undisputed that Seeders has transferred from Comstock's QC department to its engineering department on October 1, 1984.
What we must determine is whether this step was taken in retaliation for his expression.
of quality concerns.
We do not believe that Intervenors' position is meritorious.22/
We think the record amply supports the Appli-cant's position that Seeders was transferred out of the QC department for substandard work performance.
On August 17, 1984, Seese issued a written warning to Seeders about his work performance and his inappropriate attitude to management directives.SS!
The examples included the following:
Seeders 22/
We note preliminarily that Seeders did not identify quality concerns in the sense of deficient hardware or quality documentation.
The extensive problems with the quality documentation in his area of responsibility were largely attributable to him.
We must therefore interpret the contention as alleging that Comstock removed him from the QC department so that he could not claim further that he was being harassed.
ES!
Seeders had previously received a written warning in December 1983.
(F-240.)
failed to give a scheduled training class, and when he con-ducted a make-up' class he used foul language and ridiculed the company; Seeders' lead inspector had stated that Seeders was not following his directives, and was not motivated; Seeders failed to complete the review of the calibraticn records.
(F-241.)
It was this warning that apparently triggered Seeders' letter complaining of harassment, which was written the same day.
The final allegation in the letter is that when Seese presented the warning he told Seeders that regard'
- of how well he performed his duties, if Comstock management did not like him they would get rid of~him and that his family would suffer unless Seeders would " bow down" and do things their way.
Seese denied making any such statements.
(F-242.)
We mentioned earlier the CECO QA audit performed in May 1984, which identified numerous deficiencies in Seeders' calibration work and which initiated the period of strained relations between Seeders and management that he characterized as harassment.
(FF-88, 91-92.)
Following the August 17 warning and letter, Seeders' calibration work continued to be weak.
For example, in September 1984, Seese identified several problems with Seeders' ICR documentation.
(FF-243, 44.)
In the same month, Seltmann and another CECO QA audit identified further problems.
Overall, Seltmann identified at least 11 recent instances in which Seeders had again failed to issue ICRs, despite the refresher training he had received just a few months earlier.
(FF-245-46.)
A survey of calibrations records conducted by
l Edison-QA-showed that the requirement to issue ICRs for out-of-calibration tools had been violated in 40% of the cases sampled.
(F-247.)
On September 25, 1984, Seltmann reported his findings in a memorandum to DeWald, who initially decided to terminate Seeders based upon his substandard work performance as evidenced by the seriousness of the calibration document deficiencies identified by Seltmann, by the current CECO QA audit and by Snyder, who had taken over the review of calibration documents.
(F-248.)
Before reaching a final decision, DeWald con-ferred with Shamblin, Gieseker, Seltmann, and Robert Schulz' a resident NRC inspector.
Although Shamblin believed that Seeders' termination would have been justified, he recommended that Seeders be transferred to a less challenging position within the Comstock companies.
(F-249.)
After agreeing with Shamblin's recommendation, DeWald met with Seeders later that day and informed him that he had the choice of either accepting a transfer or of being terminated.
Seeders accepted the trans-fer, which became effective, at the same rate of pay and benefits, on October 1, 1984.
(F-250.)
Based on the foregoing, we conclude that Seeders was properly transferred.
Calibrations are an important part of the quality assurance program at Comstock, and although not single handedly, Seeders played a large role in causing the problems identified in a major NCR which ensued from the generic calibration-related problems uncovered during the r
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course of the audits referred to above.E1/
We also conclude that Seeders' transfer was unrelated to and independent of his August 17, 1984 letter, and instead, was precipitated by deficiencies in Seeders' work.
Indeed, the timing of Seeders' letter suggests that it may have been a ploy to avoid adverse job action justificd by his earlier failure to perform.
Worley Puckett Intervenors' contention alleges that QC inspec-tor Worley Puckett was fired by Comstock because he identified too many quality problems in Comstock's welding program and re-commended that all welding be stopped until he could evaluate them.
As we understand the gist of their argument, Intervenors claim that Comstock was afraid that Puckett's conscientious performance of his job would slow the pace of their construc-tion work and fired him for that reason.
It is undisputed that Puckett identified quality problems and recommended that welding be stopped and that he was thereafter fired.
The problem, again, is for us to determine whether there was a nexus between these events, so that Comstock violated 10 C.F.R.
$ 50.7.
Applicant asserts that Puckett was fired not for l
11/
Rick Snyder, who took over the records review testified that the transfer was justified because Seeders had made a mess of the calibrations documentation.
(F-252.)
identifying quality problems but for failing to demonstrate that he was competent to perform the job he was hired for.EE/
We begin by observing it was hardly a surprise that Puckett identified problems in the Comstock welding program.
Comstock knew that such problems existed and in fact hired Puckett expressly to evaluate and resolve them.
(FF-247-258.)
In the spring of 1985 Comstock's Corporate Level III Welding Engineer had identified inconsistencies in Comstock's weld procedures at Braidwood.
(F-257.)
As a result, Comstock realized they needed a site Level III Welding Inspector, who could devote full time to the welding program, identify additional problems and correct them, and interpret procedures, codes and contractual specifications.
(FF-257, 261.)
Puckett was hired for this job on May 15, 1984.
(F-258.)
Puckett never became certified as a Level III inspector at Comstock because he never passed the required practical exam, which consisted of evaluating the quality of actual welds.
(FF-262-264.)
On July 5, 1984, he failed the first such exam he took.
He passed a practical exam later that month, but the exam was invalidated because none of the items l
he inspected were rejectable.
(F-262.)
He took another i
practical exam on August 22, which DeWald graded and found 12/
The contention also alleges that Puckett was harassed, but we know of no record basis for a separate claim of this sort.
unacceptable.
(F-264.)
There has been much testimony about the grading of this exam, which Intervenors appear to regard as a sham by DeWald.
It is undisputed, however, that in order to be certified as a Level III inspector, Puckett had to score 100% on this exam, and Puckett himself. admits that he missed several items.
(FF-264, 266.)
We regard this matter as, at best, of secondary importance.
During his tenure at Braidwood, Puckett identi-fied a number of problems and inconsistencies, or what he regarded as such, in the Comstock welding program.
(F-267.)
Some of these problems he documented and presented to DeWald.
(F-267.)
We discuss most of these below, because it is Applicant's' position that their handling by Puckett underlay DeWald's and Applicant's loss of confidence in'him.
The majority of Puckett's concerns were not documented, but Puckett claims he mentioned them to DeWald as he discovered them.
(F-267.)
We do not discuss these in detail because they do not appear to have played a part in the subsequent imbroglio between Puckett and Comstock management.
Puckett raised all of these concerns with the NRC Staff when, after his termination by Comstock, he complained to the Staff about discrimination.
Staff investigated these concerns, and they were also examined in considerable detail in these hearings.
(FF-267, 309.)
On July 6, 1984, DeWald asked Puckett to review the QC documentation regarding weld rods, in order to determine whether the correct types of weld rods had been used and properly documented.
(F-268.)
On August 15, Puckett
-159 -
documented his review in a memo.
He found that there had been a violation of Comstock procedures by the clerk issuing the weld rods and stated that an NCR should be issued.
He made no attempt to resolve the problem, however, either by causing the NCR to be issued or by revising the relevant procedure to prevent repetit'on.
DeWald regarded such resolution as Puckett's responsibility.
(F-269.)
Both these steps were taken shortly after Puckett's termination.
(F-270.)
on August 10, 1984, Puckett recommended that work be stopped on all stainless steel welding because the weld procedure had not been qualified in one of the positions that could be used in the field.
After pointing out that it was Puckett's responsibility to find solutions, DeWald authorized the work stoppage.
(F-273.)
On. August 9, 1984, Puckett recommended that welding of A-36 steel to A-446 sheet steel be stopped.
- Again, DeWald authorized the work stoppage.
Puckett had NCR 3099 issued to document the discrepancy.
(F-276.)
On August 22, Jim Gieseker, an Edison electrical engineer assigned to work with Comstock, called a meeting to resolve the problem Puckett had identified.
(FF-277-278.)
The meeting included engineers from CECO's QA department and from Sargent & Lundy, as well as Gieseker, Puckett, DeWald and Seltmann.
(F-279.)
One of the engineers explained that the welding of A-36 to A446 steel had l
in fact been properly qualified by Comstock under the applicable welding code, AWS Dl.1-1975, although A-36 steel was erroneously not listed in the procedure attachments.
L
- (FF-277-279.)
All participants, including Puckett, agreed that the appropriate corrective action was to add A-36 to the applicable list of materials under Attachments H and O to the welding procedure.
(These attachments qualified, respectively, welds over and under 3/8".)
(F-280.)1E/
Apparently, however. Puckett then pointed out that there was another problem with Attachment O.
It.had previously been rejected for an independent reason by PTL and Puckett believed that the revised version, which he had submitted on July 5, had not yet been approved.
(F-282.)
Although no other testimony indicated that Puckett raised this concern, the ultimate disposition of NCR 3099, made the following day, appears to have taken account of it, because it lifted the stop-work only as to welds covered by Attachment H.
Puckett testified that this disposition was proper.
(F-283.)
Puckett testified that his true concern when he recommended that welding of A-36 to A-446 be stopped was that the revised Attachment O had not yet been approved by S&L, and therefore welds under 3/8" were not qualified.
(F-285.)
This is somewhat difficult to credit, since in his two memos recommending the stop-work and in NCR 3099, Puckett described the problem as all welding of A-36 to A-446, not just the smaller welds, those covered by Attachment O.
(F-286.)
Nor did those who talked with Puckett about his concern understand EE/
NRC Staff subsequently agreed with this conclusion.
(F-280.)
_ it to be so limited.
(F-286.)
In addition, the record indicates that Attachment O was in fact acceptable for use on the date of the meeting.
Contrary to Puckett's belief PTL had approved the revised procedure on July 6, 1984, the day after he submitted it.
(F-287.)
Moreover, the procedure itself plainly bore an authorization from S&L to use Attachment O while it was being approved by PTL.
(F-287.)
If this was Puckett's real concern, therefore, it was unjustified, and he should have known so.
Puckett apparently also voiced a new basis for the stop-work at the meeting.
He stated that Comstock was using the wrong welding code to qualify the procedure in question.
He believed that Comstock should be using the AWS D1.3 code, not AWD D1.1-1975, for all welding involving sheet metal, such as A-446.
(F-284.
James Louden, a welding expert j
fbom Sargent & Lundy, explained that AWS D1.3 did not exist until 1978, and the S&L specification which governed Comstock procedures was based on AWS D1.1-1975, the only appropriate code when the specification was developed.
Louden explained i
that under the specification Comstock had the option to adopt the D1.3 code, but that it was acceptable to continue using the prior code.
(F-284.)
Puckett appeared to accept this explanation.
(F-284.)
Later that day, DeWald received a memo from Puckett which recommended that all welding, including A-36 to A-446, be stopped because, in Puckett's opinion, Comstock was
" dangerously approaching a complete breakdown" in its QC i
1
_.- -_- ~.
program.
With regard to the A-36 to A-446 issue, Puckett stated that the procedures should never have been qualified to D1.1-1975 criteria, which were never intended for sheet metal, but to D1.3 criteria.
(F-288.)
DeWald concluded that Puckett simply didn't understand what had been discussed at the meeting earlier that day.
(F ^ 9.)
The following day, Puckett raised the A-36 to A-446 issue again at the Procedure Review Board, as if the previous meeting had not taken place.
Gieseker concluded from this that Puckett was not useful as the welding Level III since his understanding of the AWS Code seemed deficient and his behavior appeared erratic.
(F-290.)
Puckett testified on the stand that he never believed it was mandatory for the Comstock procedures to be qualified under AWS Dl.3.
(F-285.)
Rather, he believed that because of various inconsistencies in the welding procedures a number of them would have to be requalified.
His memo of August 22 was meant to convey to DeWald that since the procedures had to be requalified anyway, those dealing with sheet metal should be requalified to AWS D1.3.
(FF-291-292.)
We cannot find this explanation credible in light of the language in Puckett's August 22 memo.
In any case it is plain that DeWald and Gieseker did not perceive thi-subtlety, and we do not think they can be faulted for concluding that Puckett was insufficiently adept at Code interpretation to carry out the procedure evaluations and revisions he had been hired to perform and also that he was simply not capable of resolving
I
! technical concerns with people who were supposed to be his peers.
We return to the August 22 memo from Puckett to DeWald.
Welding had already been stopped on A-36 to A-446 steel, and DeWald regarded Puckett's raising of the AWS Dl.3 issue as evidence that Puckett had failed to understand the meeting earlier that day.
(F-289.)
Other than this, the memo offered as a basis for stopping all welding only the statement that other procedures were to full of inconsistencies Puckett considered them indeterminate.ES/
(F-291.)
Puckett never gave Comstock a list of these inconsistencies, but he testified that he had conveyed them to DeWald orally.
(F-293.)
He was questioned at length about them in the hearing and was unable to offer any very substantive explanations.
(FF-293-295.)
The inconsistencies that he recalled as most important were either trivial or nonexistent.
(FF-294-295.)
All of this makes it as difficult for us as it must have been for DeWald to take the " total breakdown" memo at face value.
And indeed Puckett's testimony teaches us that we would be wrong to do so.
(F-296.)
Puckett in effect testified that the apocalyptic tone of the memo was a deliberate exaggeration to grab DeWald's attention and force him to call ES/
The memo cites the morale of the QC inspectors as Puckett's other basis for believing that Comstock was approaching a " complete break-down" in its QC program, but inspector morale could hardly be a reason for stopping craft from welding.
(App. Ex. 56.)
Puckett in for a comprehensive discussion of welding problems, since Puckett believed DeWald had not been paying sufficient attention to the matters he had been mentioning orally.
(F-296.)
Puckett said he never expected all welding to be stopped on the basis of his memo.
(F-296.)
DeWald did not have the benefit of this explanation and we think it is hardly to be wondered at if he took Puckett's memo as evidence of poor judgment.
(F-296.)
At this point, Puckett's only demonstrated ability to deal with problems was to recommend that work be ctopped while he evaluated matters further.
Intervenors ask us to find that Puckett was terminated in retaliation for discovering such serious problems in the Comstock QC program that it was on the verge of a total breakdown.
We do not think the evidence supports this conclu-sion.
We do think the " total breakdown" memo played a part in management's loss of confidence in Puckett, but not for a sinister reason.
The memo showed a lack of judgment incommen-surate with the ability to manage the welding program.
Our conclusions in this respect are buttressed by the testimony of NRC inspector Jerome Schapker.
When Puckett complained to the NRC Staff that he had been fired for raising quality concerns, Schapker was assigned to investigate these concerns and did so very thoroughly.
(FF-309-319.)
In his testimony, Schapker found fault with Puckett not for raising the concerns but for failing to research the problems adequately to determine whether they were safety-significant and thus warranted stopping work.
Schapker believed it was Puckett's
l
. responsibility to do a more thorough job in investigating his concerns.
(F-320.)
We also give some weight to the fact that DeWald's assessment of Puckett was corroborated by Manfred Goedecke, Puckett's superior at the Zimmer plant, where Puckett worked before coming to Braidwood.
Before cedecke's arrival, Puckett had been Chief Weld Engineer.
(F-260.)
Goedecke came to the conclusion that Puckett lacked sufficient knowledge to be in charge of a weld department because he did not know how to interpret the codes and could not even determine which code to apply to a given problem.
Goedecke found it necessary to replace Puckett as Chief Weld Engineer, and throughout the remaining life of the project he continually reduced Puckett's responsibilities.
(F-260.)
Finally, if we thought Comstock had fired Puckett to sweep his concerns under the rug, we would have to conclude that it was labor lost.
The record shows that all the concerns mentioned by Puckett, whether or not he identified them to Comstock management, have been addressed and resolved.
(F-319.)
Puckett's replacement, Tony Simile, was instructed by DeWald to review the welding program to identify and resolve any problems.
(F-302.)
He was also given documentation reflecting Puckett's concerns.
(F-302.)
Simile found that the welding program was, on the whole, adequate, but that various discrepancies required issuance and resolution of NCR's and procedure revisions.
Simile supervised these improvements.
(FF-303-307.)
After investigating all of Puckett's concerns,
r NRC inspector Schapker concluded that Comstock had addressec every one o.f them and taken adequate corrective action when needed.
(F-319.)
Puckett agreed he knew of no instance where a problem he identified called safety into question.
(F-321.)
Larry Perryman and Larry Bossong Inspectors Perryman and Bossong were dissatisfied with their assignments to a hanger walkdown inspection.
(FF-328-31.)
They were asked to sign hanger configuration inspection checklists, even though they were simply verifying the as-built dimensions of hangers.
They believed the purpose of their signatures on the checklists could be misinterpreted.
(FF-330-31.)
When they complained, they alleged they were transferred in retaliation.
We think not.
Perryman and Bossong understood well the purpose of their signatures on the checklists.
They had no quality concerns on that score.
Their complaints were clearly directed at self-preservation; they were worried that others might misinterpret the intended purpose of their signatures and accuse them of falsifying documents.
(F-331.)
Comstock QC management was slow to clarify matters but they eventually did so; and the clarification satisfied the QC inspectors.
(F-332.)
The transfers were granted at the request of Bossong and Perryman.
The latter was particularly insistent.
Indeed, he implied strongly that if his request was not granted, the quality of his incpections would suffer.
(F-333-34, 337.)
We are unable to find these transfers retaliatory in the face of this evidence.
Simile did improperly relish their transfer to the second shift, an assignment he knew they would not like.
(F-337.)
- However, this act of pique occureed shor tly after Perryman's veiled threat about the quality of his inspections; and was doubtlessly prompted by that act.
Although we disapprove of it, Perryman, was in our view, fortunate.
His threat appears ample basis for discharge.
The Perryman episode was not the only case of inspector misconduct.
All the inspectors assigned to the hanger walkdown inspection refused for some time to turn in their completed inspections until their concerns were clarified.
Indeed, Perryman said that would have discarded their completed checklists had the matter not been reconciled to their satisfaction.
(F-335.)
These circumstances as well as the need for qualified inspectors on the second shift werved as a legitimate reason for the transfers.
(F-338.)
- Indeed, Bossong, on reflection, and after gaining some management insight as a union steward, expressed doubt as to whether or not the transfer was retaliatory.
(F-339.)
R.
D.
Hunter Intervenors allege that QC inspector R. D.
Hunter was terminated at least in part in retaliation for having been deposed in this proceeding.
Mr. Hunter himself makes no such allegation 31/ and the evidence shows it to be without merit.
Hunter was employed by Comstock and later for BESTCo as a Level II QC Inspector from October 1983 until his termination on March 25, 1986.
As one of the 24 QC inspectors who had visited the NRC on March 29, 1985, Hunter had been deposed by the parties in preparation for these hearings.
After his termination Hunter wrote a letter to Applicant's Quality First program in which he asked whether his termination was "a way to get back at people who had given a deposition."
(-340-41.)
The week of March 10, 1986, a few weeks after his deposition, Hunter and another Level II weld inspector, Robert Arndt, were performing inspections of welds on hangers and braces.
(FF-342-46.)
Eight days later, on March 18, 1986, two PTL QC incpectors performing a routine overinspection found that hanger and brace welds had been inspected through paint by two Comstock QC inspectors, later identified as Hunter and Arndt.
(FF-347-48.)
Comstock procedures require that before visual inspection welds be free of paint, dirt or other matter that would impair the inspection.
The inspector must indicate on his checklist that this requirement is complied with.
(FF-342-45.)
E/
Cite to Tr.
F PTL's findings triggered a several-day sequence of reviews by PTL, Comstock and Edison supervisory personnel.
By.our count, at least 13 qualified individuals examined.
Hunter's hangers.
(FF-349-57.)
Five of these individuals were witnesses.
The overwhelming conclusion by all witnesses was that Hunter and Arndt had impermissibly inspected welds through rust and paint.
Although lengthy cross-examination developed minor discrepancies in the witnesses' recollection of the condition of some of the welds on the hangers they observed, it did not diminish the credibility of their overall conclusion.
Robert Seltmann, at that time Comstock's QA manager, testified that he decided Comstock would no longer use Hunter because he had not only knowingly violated procedures but also falsified QC documentation by stating on his inspection checklists that the welds were acceptably clean.
(FF-355-56.)
Several of the witnesses testified that when confronted with their observations, Hunter admitted inspecting welds through paint.
(FF-354-55.)
When similarly confronted on the witness stand, he equivocated and offered several explanations that we do not find credible.
Hunter was insistent, for example, that he had never accepted painted
" attachment" welds.
(F-358.)
The procedure, however, prohibited the inspection of any painted welds, and the record reflects that some of the painted welds Hunter accepted were in fact attachment welds as he defined that term.
(F-359.)
Hunter also insisted that he had never accepted a weld when the amount of paint on it would have impaired his inspection, and he took refuge in the notion that this was a matter of judg-ment.
(F-362.)
The evidence was overwhelming, however, that many of the welds Hunter had accepted were completely painted over and that accepting them in this condition was a clear procedural violation, not a matter between the inspector and his conscience.
(FF-361-62.)
Nor do we find any merit to Intervenors' sugges-tion that regardless of Hunter's misfeasance he would not have been fired but for his deposition testimony.
There is simply i
not a shred of evidence to support this position.
All of Applicant's witnesses, including Seltmann, who terminated Hunter's services, testified that they had no knowledge of the i
nature of Hunter's deposition testimony.
Moreover, of the approximately two dozen inspectors who were deposed, none except Hunter was fired, while Arndt, who was not deposed but who shared Hunter's transgression, was fired.
(F-363.)
Gregory Archambeault Intervenors assert that Comstock discriminated against QC inspector Gregory Archambeault by refusing to grant I
him a requested transfer from second to first shift because he had raised quality concerns with the NRC Staff.
The record does not support this assertion.
Archambeault was hired by BESTCo in January 1986 as an electrical inspector for Comstock.
(F-364.)
He was assigned to the second shift to perform in-process cable pull inspections.
(FF-365-66.)
In early June he raised a number of l
l l
.. quality concerns with the NRC Staff.E5/
(F-369.)
Shortly after this, he made a written request for transfer to the first shift.
(F-370.)
Receiving no response to his request, he made it again in early July and again in early August.
(F-376, 378.)
Finally, in late August he was told that the request could not be granted because he was needed to support the cable pulling effort on the second shift.
(F-378.)
Ultimately, in September, he was transferred to first shift.
(F-379.)
While Intervenors seek to raise the inference that Comstock's failure to grant Archambeault's requests during the summer of 1986 was retaliation for his raising concerns with NRC, such an inference is dispelled by the testimony of Tony Simile, at that time Comstock's general QC supervisor and the man responsible for acting on shift transfer requests.
Simile testified that he had no knowledge of the written requests made in June or July, which the record shows were addressed to Archambeault's union steward and the GE/MCIS project manager.
(FF-370, 372, 376.)
The latter individual showed Simile the August request some three weeks after it was sent and Simile responded to it immediately.
(F-378.)
Simile was aware in June that Archambeault had expressed some desire for a transfer, because Simile asked the E5/
The nature of these concerns is not material to this decision.
We note, however, that they were fully aired in these hearings and we conclude on the basis of the evidence that there are no outstanding safety questions that have not been satisfactorily addressed by Comstock.
(FF-380-89.)
second shift supervisor at that time for the names of three inspectors interested in transferring to the first shift.
Archambeault's name was one of the three.
(F-371.)
Intervenors make much of the fact that the other two men were transferred and Archambeault was not.
Simile explained, however, that he decided only two inspectors could be spared from the cable pulling effort and that the other two men had previously spoken with him about such a transfer and he had promised them early consideration when there was an opening.
With regard to Archambeault's preferences, Simile knew only that his was one of the three names given to him.
(F-372.)
Intervenors' desired inference is therefore without foundation.
Simile was initially unaware of Archambeault's written requests and so did not respond to them.
He was aware by report that Archambeault had expressed a pre-ference for first shift work, but at that time Comstock needed Archambeault for the second shift cable pulling effort.
When the crew of cable pull craftsmen whose work he inspected was transferred to the first shift in September, Comstock was able to accommodate his shift preference and granted the requested transfer.
(F-379.)
D.
Conclusion In sum, we have carefully sifted the voluminous record before un for evidence that Comstock management engaged in acts of harassment or intimidation against its inspectors, that management systematically inculcated inspectors with the notion that they would be punished if they did not meet produc-tion quotas at the expense of inspection quality, or that management discriminated against inspectors for raising quality or safety concerns.
We have also considered whether any of the safety concerns raised in the record indicate the existence of identified uncorrected deficiencies in electrical installation work at Braidwood.
After analyzing all this evidence, we have concluded that the record demonstrates the occurrence of only two instances of harassment, both perpetrated by QC supervisor Rick Saklak.
We have been unable to identify any evidence of deficiencies in the electrical work that remain uncorrected.
We must now evaluate the significance of these findings.
In particular, we must determine whether the two incidents of harassment we have identified prevent us from finding reason-able assurance that the plant can operate safely.
The Appeal Board's decision in Union Electric Co.
(Callaway Plant, Unit 1), ALAB-740, 18 NRC 343,346 (1983),
provides guidance on this question.
Callaway teaches that when, as here, the issue is the adequacy of quality assurance, the inquiry focuses on whether all ascertained construction errors have been corrected and whether "there has been a breakdown in quality assurance procedures of sufficient dimen-sions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components.
A demonstration of a pervasive failure to carry out the quality assurance program may well stand in the way of the requisite safety finding."
The callaway decision did not involve a l
harassment contention.
The Appeal Board, however, applied this l
test to a harassment contention in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59 (1985).
Taking Callaway as our standard, we ask ourselves in the present context whether Comstock management has engaged in a pattern of harassment or discrimination that was sufficiently j
widespread to have a pervasive effect on the contractor's QA l
program, and specifically, on the quality of its QC inspec-tions.E2/
To ask this question is almost to answer it.
Our 1
E2/
Other decided cases have employed formulations similar to ours.
The Commission has stated:
Hence, if it were to be established that Licensee's upper management (which oversees l
both TMI-1 and TMI-2) engaged in a pattern l
of discrimination against or condoned discrimination against individuals because they raised safety concerns, this might raise a,significant safety / integrity issue Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 327 (1985).
The Commission would not delay authorization of a full power licence absent a
" widespread pattern of harassment or intimidation sufficient to l
call the quality of the plant into question," or a " pervasive l
pattern of purposeful intimidation."
Pacific Gas and_ Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-84-13, 20 NRC 267, 274 (1984).
In another case, the Commission referred to a " showing of a widespread pattern of j
discrimination against more than one individual" as necessary to create a significant safety issue.
TMI-1, CLI-85-2, 21 NRC at 329.
One licensing board referred to a " directed program of harassment and intimidation."
Houston Lighting and_ Power Company (South Texas Project, Unita 1 and 2), LBP-84-13, 19 NRC l
659, 822.
Another stated:
" Presumably a pattern of (retalia-tory] evaluations
. could preclude the necessary determinations and result in denial of an operating license."
Duke Power Company (Catawba Nuclear Station, Unita 1 and 2),
LBP-84-24, 19 NRC 1418, 1518 n.27 (1984) (emphasis added).
See (Footnote Continued) l
, foregoing analysis indicates that the incidents of harassment we have identified were isolated.
They did not form part of a pattern of harassment at all, let alone one sufficiently wide-spread to cause a pervasive failure of the QA program.
.Under NRC precedent, therefore, we would have no trouble deciding Intervenors' contention as admitted in Applicant's favor.
We may not stop with this traditional analysis of the contention as admitted, however.
Intervenors, parhaps fore-seeing in the shape of the evidence the conclusion we have just articulated, have provided us with a novel gloss on their contention.
Intervenors suggest that it is immaterial whether any harassment or discrimination in fact took place as alleged in their contention.
They point out that in any case many inspectors believed such harassment and discrimination was taking place, as is evidenced by the rumor and shop talk we have referred to above.
Intervenors tell us that this subjec-tive belief on the part of the inspectors, whether or not justified, had the effect of causing them unknowingly to compromise the quality of their inspections in order to achieve (Footnote Continued)
Metropolitan _ Edison Company (Three Miles Island Nuclear Station, Unit No. 1), CLI-85-9, 21 NRC 1118, 1176 (1985) ("[N)o widespread pattern of discrimination, harassment or intimidation was shown.
.") (Additional views of Chairman Palladino); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), DD-84-19, 20 NRC 773, 774 (1984) ("[W]idespread or pervasive intimidation of employees is not a problem at the site.")
The Staff has referred to
" widespread or pervasive intimidtion of employees," Pacif_ic Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), DD-84-19, 20 NRC 773, 774 (1984).
_ _, higher production.
The notion that this subjective phenomenon can occur is supported by the testimony of two psychologists presented by Intervenors.
Intervenors assert that because this phenomenon may have occurred the quality of the electrical installations at Braidwood is indeterminate and a complete reinspection is a necessary predicate for the requisite safety finding.
It is to the evidence bearing on this novel theory that we now turn.
t V.
TESTIMONY OF EXPERTS l
l Our point of departure for assessing the expert testimony in these hearings is Rule 702 of the Federal Rules of i
Evidence, which permits the admission into evidence of such expert testimony as will " assist the trier of fact to under-l stand the evidence or to determine a fact in issue."
We do not find the expert testimony which has been offered in this case by Intervenors to afford us any significant assistance other than to point us to other, confirmatory evidence as determina-tive of the issues raised, a direction we could have discovered
(
l by ourselves.
We therefore decline to reach any conclusions I
based on the proffered expert testimony.
Intervenors sponsored two expert psychologists, both of whom have impressive credentials.
Intervenors' witness i
l Dr. David J. McKirnan holds a Ph.D. in clinical and social l
j psychology from McGill University and is presently an Associate Professor of Psychology at the University of Illinois at Chicago.
(F-802.)
Dr. McKirnan, however, had spent only a total of 5 or 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> preparing for his testimony.
(F-803.)
The basic factual source for his opinions in this case were the l
three memoranda prepared by the NRC Staff as a result of the March 29 visit by 24 Comstock QC inspectors to the NRC resident l
inspector (Int. Ex. 40, 41 and 42).
(F-803.)
Intervenors' other expert, Dr. Richard D. Arvey, holds a Ph.D. in psychology from the University of Minnesota j
and is now a professor of industrial relations at the Indus-trial Relations Center at that institution as well as adjunct 1
l professor of psychology.
(F-801.)' Dr. Arvey's testimony was limited to suggesting techniques for further investigation of the harassment issue.
(F-804.)1E/
Intervenors' position is that inspectors' subjective perceptions of managerial harassment of other inspectors or of inferred management attitudes, namely valuing quantity of inspections over quality, inexorably teach all inspectors to degrade the quality of their individual inspections.
The l
underlying perceptions, indeed, can be based on " rumor" and
" folklore" about harassment and other reported events, even if EE/
Dr. Arvey carefully avoided offering any opinion as to whether QC inspector performance at Braidwood was in fact affected by the rumor mill.
(F-804.)
Rather, his testimony was directed to how one might determine whether such effects had occurred.
(Id.)
Dr. Arvey suggested that longitudinal studies of behavior traces based on archival data and in depth interviews were two useful methods for making such a determination.
(Id.)
Arvey further testified that the best and most conclusive method of making such a determination would be to examine data concerning the work itself.
(Id.)
He asserted that a 10%
(Footnote Continued) l l
L
-_, the reports are not based on fact'or are greatly exaggerated.
(Statement of Counsel, Tr. 7918-19.)1E/
Dr. McKirnan's theoretical basis for analyzing whether subjective perceptions of inspectors might lead to degraded inspections is the theory of observational learning.
(F-805.)
Workers acquire values for work performance from a variety of internal and external sources.
The effects of these stimuli Dr. McKirnan referred to as " anchoring."
(F-805.)
Employees learn values from specific sources which they later use as " anchors" to evaluate a situation which must be judged on a relative scale.
(F-805.)
The relative goodness or badness of work performance, for example, is judged against value " anchors."
(F-805.)
The lowering of inspectors' anchor values due to the perceived importance of quantity over quality may be so subtle that no inspector would pass a piece of work clearly deficient, but the inspectors might understand that the standard of quality for passable work had become lower.
(F-805.)
(Footnote Continued) overinspection of previously inspected work was likely to provide a high degree of reliability.
(Id.)
EE/
For example, there was a persistent rumor among QC inspectors that when DeWald was a QC inspector, he had inspected 1000 welds in a day.
(F-811.)
There is no substance to the rumor and there is no indication that Comstock QC management held up this mythical achievement as a spur to greater inspector productivity.
(FF 811-815.)
Yet Intervenors would have us rely on the rumor and ignore the fact.
Indeed, Dr. McKirnan did so.
(F-811, F-816.)
L The most intense observational learning in the work place takes place from "models" who control resources or otherwise have power.
(F-805.) -Observational learning that quantity of' inspections.was to be achieved at the expense of' quality standards-could have occurred from negative models.
(F-805A.)
Three subissues must be analyzed to determine whether negative learning from "models" took place:
- 1) whether there was in fact a model for valuing quantity over quality;
- 2) whether, if there were such a model, it could be identified as stemming from or representative of the larger organizational-culture; and 3) whether the individuals who embodied the model 4
t were perceived as having real power over the inspectors.
l (F-805.)
i In his general discussion of observational learning i
4 from factors other than models, Dr. McKirnan' agreed that i
certain factors relevant at Braidwood could give rise to
~
positive anchoring effects, i.e.,
the raising of inspector j
performance standards, but did not take those factors into i
account in his evaluation of the harassment allegations.
He i
t agreed that a rigorous training program and QC inspector's l
previous experience in the nuclear industry would provide j
anchors for initial values, but made no effort to determine the existence or content of the Comstock training program, or whether the QC inspectors had previous experience.
(FF
)-
807-808.)
He agreed that a program of 10% PTL overinspection in which PTL rejects would have to be reinspected by Comstock QC inspectors exerts a positive influence on inspectors' I
i f
anchors because of the accountability for errors.
(F-817.)
A QC inspector's testimony that being " gigged" by PTL was not a desirable experience confirmed the efficacy of the PTL program in this regard.
(F-817.)
However, he made no evaluation of the effect of the PTL program on the inspector's anchors.
(F-817.)
He agreed that the existence of a Comstock QA program which conducted periodic audits of quality control by looking at both documentation and hardware and which required closecut by Comstock QC inspectors would have a positive anchoring effect, but again did not take this program into account.
(F-817.)
He agreed that the existence of effective Edison Quality Assurance Department audits and NRC Staff inspections would also have a positive anchoring effect, (F-817.), but did not take either into account in developing his opinion.
In fact, Dr. McKirnan made no effort to obtain a balanced picture of life on the job at Comstock.
(F-818.)
Nor did he attempt to sort out the background of other events which may have affected inspectors' perceptions and affected their thresholds for changes in anchoring due to events such as Mr. Saklak's behavior.
He agreed that it was possible, for example, that a dispute between management and the inspectors over unionization and salary could have contri-buted to their feelings expressed at the March 29 meeting, but he really knew little about the pay and union grievances.
(F-818.)
When Dr. McKirnan evaluated the factors for "model" learning, he was far from unequivocal as to whether any, let alone all, of these conditions for such adverse observational learning had actually occurred at Braidwood.
(E.g.,
FF-817, 819-22.)
Harassment of QC inspectors would create a model for valuing quality over quantity.
However, Dr. McKirnan agreed d
that there was a certain level of adverse interaction between supervisors and inspectors which involves friction but does not constitute harassment.
(F-809.)
He also agreed that the
" anchoring" effect had to be " filtered" through the individual's set of values and through the context of the workplace, so that, for example, profane language on a construction site, which is normal and expected, gets filtered out and does not affect anchoring.
(F-809.)
Nevertheless he made no effort in his analysis of observational learning "models" to distinguish between behavior of purported role models which actually gave rise to subjective perceptions of harassment and behavior which was part of the admittedly coarse background of personal interaction at a construction site.SS/
AS/
Dr. McKirnan originally based his conclusions about models for quantity over quality in part on erroneous, misleading or incomplete allegations made by quality control inspectors to the NRC on March 29, 1985 and hedged his previous testimony when confronted with actual testimony from these hearings.
(FF 803, 805, 810.)
For example, one inspector had alleged that another was " railroaded" out of his job, knowing that the other inspector actually should have been removed for poor work performance.
Similarly, Dr. McKirnan relied on the allegation that three inspectors were to be " weeded out" on the basis of number of inspections performed, but no such removals ever occurred.
(F-816.)
l l
i
., Also, according to Dr. McKirnan, whether there was observational learning by the quality control inspectors based on Rick Saklak's behavior turned in part on whether that behavior was viewed as reflecting larger organizational values or as deviant or aberrational.
(FF 805, 819.)
Dr. McKirnan was not aware of any other supervisors who were alleged to have been verbally abusive or to have physically threatened any inspector.
(F-819.)
McKirnan also testified that if Saklak's behavior was viewed by the inspectors as deviant that it would not be a substantial influence on their behavior.
McKirnan was also unaware of Saklak's firing when he originally formulated his opinion, but agreed that that outcome could influence whether Saklak was a model for poor inspector performance.
w (F-820.)
With respect to the third factor, the formal or informal power of the model, McKirnan in his prepared testimony rendered an opinion on the power of the models he perceived.
However, he later admitted that he lacked sufficient knowledge to be definitive about the power of those models.
(F-821.)
Moreover, he admitted that the evidence of perceived power of Saklak was far from clear.
(F-822.)
In the end, Dr. McKirnan was unable to offer more than hortatory conclusions.
He was unable to say whether the i
Comstock QC inspectors actually shifted their performance standards because of perceived harassment.
(F-823.)
The most he was willing to say was that there is " reason to suspect that there is an issue" with respect to whether inspectors' attitudes had shifted.
(F-823.)
Such testimony is fairly characterized as interesting but abstract analysis coupled with speculation that the analysis might apply to the inspector work force at Comstock.
The only significant advice Dr. McKirnan could give us was to look to onfirmatory data, either of the behavior trace type or of the engineering type to determine whether in fact an adverse shift in inspector performance took place.
(F-823.)S1/
He asserted that such data should show a relationship between specific incidents of harassment or intimidation and numbers of inspection misses such that the number of misses goes up when harassment is occurring and down again when it eases.
(F-823.)
Applicant's expert psychologist, Dr. Charles L.
Hulin, holds an M.S. degree in industrial and labor relations and a Ph.D. in psychology from Cornell University.
(F-828.)
He is presently a professor of psychology both in the school of Liberal Arts and Sciences and in the Aviation Institute at the University of Illinois at Urbana-Champaign.
(F-828.)
Hulin also specializes in industrial and organization psychology and has an extensive publication record.
(F-829.)
Dr. Hulin spent 200 hours0.00231 days <br />0.0556 hours <br />3.306878e-4 weeks <br />7.61e-5 months <br /> reading hearing and deposition transcripts and A1/
Dr. Arvey of course had the same advice to offer and indicated that a 10% reinspection would be probative.
(F-804.)
otherwise preparing for his testimony and in addition interviewed 13 QC inspectors.
(F-831.)
Dr. Hulin observed that, where available, multiple sources of data should be utilized in attempting to evaluate the effect of alleged harassment on QC inspector enforcement and he did so in reaching his conclusions.
(FF 833-34.)
- Thus, he attempted to become familiar with a QC inspector's job, both by personal observation, interviews and a review of written materials.
Rather than just reviewing inaccurate NRC memorializations of inspectors' grievances, as Dr. McKirnan did, Dr. Hulin specifically considered such matters as the Comstock training program, the significance of the PTL overinspections, and the influence of various QA and NRC audit and inspection programs.
(FF-831, 836, 837, 841, 844.)
Dr.
Hulin carefully analyzed background events and considered the effects of such matters as the salary dispute and the union organization drive on the threshold for being aggrieved by perceived harassment.
(F-846.)
Dr. Hulin attempted to determine whether a quota for inspections had ever been established and whether there were organizational contingencies l
L which linked numbers of inspections to either rewards or punishments.
(FF 842-43.)
He found no quota and no link between numbers of inspections and such matters as compensation or discharge.
(F-843.)
Dr. Hulin reviewed Saklak's power over the inspectors and found it to be relatively insignificant.
(FF-839, 840.)
Hulin considered alternative interpretations of l
i k-the Puckett and Seeders incidents in evaluating whether there was-a pattern of management pressure for quantity of inspec-tions.
(F-839.)
Finally,RDr. Hulin took account of the results of the BCAP CSR and PTL data in reaching his ultimate conclusion.
The absence of significant discontinuities associated with any hypotiusized event shoed that it was highly unlikely that the incidents of alleged harassment had an effect on QC inspector performance.
(F-834, 845.)
Applicant's other expert Mr. Robert V. Laney, qualified as an expert by virtue of his many years of practical experience with nuclear construction, both military and civilian.
(F-832.)
After graduating from the Naval Academy and serving in the fleet, Laney worked in the naval reactor program.
(F-832.)
He later managed nuclear ship construction at the Quincy shipyard in Maosachusetts and nuclear reactor research and development at Argonne National Laboratory.
(F-832.)
In these positions he acquired experience related to nuclear quality assurance and quality control.
(F-832.)
Subsequently, in 1982 he served on a group appointed by the NRC to review a report to Congress on improving quality assurance I
in the construction of nuclear power plants.
Mr. Laney analyzed possible inspector reactions to perceived pressure to sacrifice quality of inspections.
He observed that QC inspectors as a class are proud individuals, who will not easily succumb to pressure to compromise the f
quality of their inspections.
He observed that their inspection work in the field was essentially independent and l
that this factor made it unlikely that poor relationship with their management or the abrasive and sometimes abusive dealings with Saklak would adversely affect their performance.
(F-853.)
Mr. Laney also analyzed factors other than quality which might have, at least partially, motivated the QC inspectors' visit '
the NRC.
He testified that labor-management problems brought on by insufficient staff to accommodate an explosion in work load, recruiting problems, heavy overtime, an inadequate pay structure, and a unionization drive would have undermined confidence in management and contributed to more aggressive and open criticism of management in other areas.
(FF 849-850.)
He further testified that a union drive would magnify personal differences between inspectors and supervisors.
(F-851.)
We cannot credit Intervenors' expert testimony as providing a basis for calling into question the work per-formance of the entire Comstock QC inspector force.
Our hesitancy in this regard is based in the first instance on the scant factual investigation performed by Dr. McKirnan as a basis for his opinion and the slanted and incomplete facts which he did review.
Dr. Hulin, who made an effort to obtain a l
more extensive and balanced view of the influences at work on Comstock QC inspectors, applied the same theory as Dr. McKirnan and came to just the opposite conclusion.
There is no doubt that there was a significant QC inspector rumor mill at Comstock.
There is also no doubt that the rumor mill exaggerated the significance of some of the
i I actual events which occurred and altered the nature of others.
I We can even assume that some inspectors subjectively perceived j
harassment which did not objectively exist, although the factual testimony regarding such perceptions is hardly un-equivocal and is in any event fuzzy because of inspector characterization of a wide range of behaviors as " harassment."
However, we are being asked on the basis of inconclusive and contested expert testimony to find that such subjective per-ceptions based on the rumor mill inexorably led QC inspectors to degrade their inspection performance to an extent that we are precluded under Callaway from making a reasonable assurance finding.
Such a finding would require us to go far beyond the literal reading of evidence on analogous situations seen in prior NRC licensing decisions.
Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-84-52, 20 NRC 1484, 1506-07 (1984) (refusal.to find widespread foreman override based on " climate of fear" theory).
We cannot take such a step on the basis of the expert testimony herein.
There is another principle which is central to the Intervenors' approach to the evidence in this case and which is also the subject of testimony by Intervenors' experts.
We have i
before us first hand testimony of nearly one-third of the Comstock QC inspectors who as a class were either directly harassed by Comstock management or were subjectively affected by rumor and folklore of harassment.
These QC inspectors uniformly testified that any such influences did not affect the quality of their inspection work.
We do not, of course, accept
88 -
such testimony uncritically.
Even Applicant's expert Laney testified that he would not simply take such testimony at face value but would look for corroboration.
(F-854.)
On the other hand, we have no reason to suspect that the inspector witnesses lied under oath before us.
Drs. Arvey and McKirnan, however, suggested in prepared testimony that the testimony.of these inspectors as a class was not credible because inspectors would not be likely to self identify past deficiencies in their own work perform-ance.
(FF-825-826.)
Dr. Arvey later retrenched, character-izing his testimony regarding inspector credibility as no more than a " hunch."
(F-825.)
Dr. McKirnan eventually conceded that this Board was better situated than he to judge the veracity of the inspectors' testimony that their work had not been affected.
(F-826.)
Arvey's and McKirnan's testimony is nevertheless offered to impeach the credibility of the inspector witnesses.
It would be reversible error in federal courts to admit testi-mony which amounts to general character evidence that witnesses can or cannot be believed on a particular occasion.
United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985); United States v.
Thomas, 768 F.2d 611, 618 (5th Cir. 1985); United States v. Earley, 505 F.
Supp. 117 (S.D. Iowa), aff'd 657 F.2d 195 (9th Cir. 1981) (exclusion of polygraph expert testimony offered to~ evaluate credibility).
The fact that the best of the testimony amounts to no more than a " hunch" makes it doubly unreliable.
It is our responsibility, and ours alone, as the triers of fact in this case, to assess the credibility of the testimony offered by the fact witnesses.
Such a judgment is many faceted but involves assessing such intangible factors as demeanor and consistency of answers.
Cross-examination is the time-honored crucible for making such judgments, and in addi-tion we have available to us, and have used extensively, the tool of Board examination.
We simply cannot let experts, however well intentioned, and however well schooled in their disciplines, usurp our function of judging credibility.
Other Licensing Boards have frequently found inspec-tors' testimony that their own work was not affected by harassment or intimidation not only credible but dispositive on the question of effect.
See Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-60, 18 NRC 672, 682 (1983) (testimony that an inspector resisted pressure convincing as to effect on work of that individual); Catawba, LBP-84-24, 19 NRC at 1519 (finding that inspector's performance acceptable supported by inspector's testimony that inspection process not compromised).
- Catawba, l
LBP-84-24, 19 NRC at 1530 (harassment did not affect per-formance:
"No inspector said harassment affected job per-formance.")
We consider ourselves like other Licensing Boards, amply able to judge the credibility of the pertinent QC inspector witnesses.
1 i
Intervenors' fall back position is that the existence i
l of adverse effects from subjective perceptions of harassment is l
I
, a truism -- a proposition so self-evident that no evidence, lay or expert, is needed to support it and none can rebut it.
WThus, Intervenors tell us that we should ignore statement of the inspectors that their approach to inspection was not adversely affected by subjective perceptions or any other testimonial version of these events because our own " common sense" and " informed judgment" (Tr. 7913.') tell us that t
subjective perceptions of production pressure and harassment must have had an effect on the quality of inspections performed by Comstock QC inspectors.
However, we are permitted, indeed t'
required, to draw factual inferences from the raw facts as developed in the hearings.
We are not permitted simply to rely on what intervenors characterize as " common sense" as justifi-cation for conjecture that something must have happened.42/
We do not accept Dr. McKirnan's theory that subjec-tive perceptions of harassment, which are basically not measur-able and not recreatable, inevitably had an effect on inspector work performance.
However, neither do we accept uncritically the conclusion of Applicant's experts and inspectors' testimony that work quality was not affected.
We agree with Drs. Arvey, 1
McKirnan, and Hulin and Mr. Laney that corroboration based on i
hard data is helpful.
Accordingly, we turn next to the
{
confirmatory data provided by the BCAP, CSR and PTL programs.
t S/
Indeed, Mr. Laney's testimony, based as it is on his own long experience, suggests that " common sense" and
" informed judgment" lead to the conclusion that the events (Footnote Continued) l VI.
REINSPECTION EVIDENCE The results of two Braidwood reinspection programs contradict Intervenors' claims that alleged harassment, intimi-dation and " historic, tangible, powerful and pervasive produc-tion pressure" had a significant adverse effect on Comstock QC inspector perfor aance.
One set of data was accumulated through the Construction Sample Reinspection (CSR) undertaken in 1984-85 as a part of the Braidwood Construction Assessment Program (BCAP).
This data spans the time period from the start of construction until June 30, 1984.
The other set of data was obtained through the routine overinspections by Pittsburgh Testing Laboratory (PTL) of Comstock QC accepted work from July 1, 1982 to June 30, 1986.
(F-901.)
Both the CSR and the PTL overinspection programs are samples.
The CSR includes visual reinspections of all cate-gories of electrical items within Comstock's scope of work.
A portion of the-item reinspected in the CSR was a " probability sample" selected by statistically random techniques so as to support conclusions with at least 95% confidence and at least 95% reliability about the total population from which the sample was drawn.
The remaining portion of the CSR sample was l
chosen on the basis of engineering judgment.
The PTL overin-spections included only welding prior to June, 1985; thereafter (Footnote Continued)-
alleged in the contention did not have an effect on inspector performance.
fe l
l
. - -. the program was expanded to include other Comstock inspection disciplines.
The welds overinspected by PTL were a 10% sample chosen essentially arbitrarily, but not on a statistically random basis, from the completed Comstock QC inspection checklists.
After June, 1985, 10% of the work of each Comstock QC inspector was overinspected.
(FF-906, 908, 914-15, 940-44.)
Both of these programs have one characteristic which builds confidence in the results.
Neither the CSR nor the PTL overinspection program was conducted for purposes of this hearing.
(FF-905, 939.)
The CSR was carried out by a highly qualified team of Daniel Construction company inspectors and Stone and Webster engineers, none of whom had any prior involvement with Braidwood construction activities.
Their work was subjected to multiple layers of oversight by a special 1
Edison QA group, an independent expert overview group, and by an NRC inspector dedicated to reviewing the program on an on-going, full-time basis.
(FF-909-13.)
The PTL overinspec-tions were not carried out in the same intense spotlight, but the PTL program has its own indicia of reliability in that it was the routine year to year, day to day operation of an organization which was an arm of Applicant's Quality Assurance i
Department, for purposes unrelated to Intervenors' contention.
l There is no evidence in this record which suggests any l
systematic bias in either set of data.
To permit meaningful judgment of inspector perfor-mance and meaningful comparison of inspector performance with l
respect to items of differing complexity, in 1985 as part of
t the BCAF Applicant developed the concept of " inspection points."
Each inspector check to determine the acceptability or rejectability of an item or attribute was termed an "inspec-tion point."
On this basis, the 733 CSR sample items included over 276,000 inspection points.
While some of these inspec-tion points are clearly more difficult to inspect than others, each represented a necessary check of a potentially design significant attribute.
On an inspection point basis, the CSR results show that over 98% of the inspection judgments made by the Comstock QC inspectors were correct.
The 98% reflects an agreement rate between the BCAP reinspectors and the original Corstock QC Inspectors.
(F-929.)
Applicant also presented the CSR welding results using agreement rates calculated on a " weld" basis (i.e.,
welds found nondiscrepant/ total welds reinspected).
While this is a grosser method of analyzing inspector performance (because a weld inspection may require as many as 17 different inspection judgments; it permits comparison between CSR results and the PTL overinspection results, which have historically been maintained on a weld basis.
On this basis, about 85% of the welds accepted by Comstock QC inspectors were also found to be acceptable by the CSR reinspectors.
(F-930.)
The comparable figure for PTL overinspections during the period July 1, 1982 to June 30, 1986 is 92.5%.
For the period in which the two data bases overlap (July 1, 1982 - June 30, 1984) the agreement rates ate 89% and 90%, respectively.
(F-930.)
This near l
identity of agreement rates for data collected by two different efforts adds further confidence in the results.
~
For purposes of this hearing, the CSR and PTL data were specifically analyzed to determine whether there was any relationship between allegations of harassment, intimidation and undue production precuire and the quality of Comstock inspector performance over time.
This relationship was O
measured by CSR and PTL agreement rates presented as a function of the dates Comstock QC inspectors performed their inspec-tions.
For purposes of analysis, Intervenors' claims of harassment, intimidation, and " pervasive" production pressure were accepted as true; so was the " observational learning" theory of Intervenors' expert witnesses that incidents of harassment and intimidation would " lower the performance standards of quality control inspectors generally."
Thus if Intervenors' claims were true, one would expect to see the Comstock inspector performance decline after Saklak assumes a supervisory function in the QC department in July, 1982, or when DeWald became QC Manager in August, 1983.
Similarly, one would expect to find decreased agreement rates following specific incidents of harassment and intimidation, and increased agreement rates after Saklak was terminated in April, 1985.
Applicant presented the testimony of three expert witnesses to analyze the CSR and PTL data:
Dr. Martin Frankel, a professor of statistics and technical director of the l
l
- National Opinion Research Center at the University of Chicago:
George Marcus, Applicant's Assistant to the Manager of Quality Assurance assigned to the Braidwood site; and Louis O. Del George, Applicant's Assistant Vice President responsible for engineering and licensing activities.
Using the portion of the CS; which is a probability sample, Dr. Frankel showed that there was no statistically significant difference in Comstock QC inspector effectiveness before and after July 1, 1982, the date Saklak became a QC supervisor for Comstock.
The calculated overall agreement rates (on an inspection point basis) were 98.893% for the period prior to July 1, 1982 and 98.925% for the period after that date.
He also showed that there was no statistically significant difference before and after August 1, 1983, the date DeWald became Comstock QC Manager.
Because these calculations are based on a probability sample, the conclusions can be projected with high confidence to the entire population of all Comstock QC inspections covered by the CSR.
Dr. Frankel testified that there is a 99% probability that this test would detect differences as small as 1% in the overall agreement rates before and after July 1, 1982 (or before and after August 1, 1983).
(F-937.)
The PTL results are not based on a probability sample and therefore can not be used statistically to express an inference about the unsampled population; however, analyzing
'the PTL sample as if it were the entire population, Dr. Frankel showed by linear regression analysis that there is a very L
w slight improvement in the quality of Comstock inspections over time.
(F-948.)
Marcus' analysis of the PTL. data showed that there were no adverse trends in the Comstock inspector performance measured on a month to month basis over the four year period.
There were only three months in which inspector performence declined significantly: September, 1982; March, 1983; and Match, 1986.
In September, 1982 the apparent decline in performance was in fact attributable to a difference in the weld acceptance criteria used by Comstock and much later by PTL, for two control panels.
In March, 1983 one Comstock inspector, Holley, made an improper inspection judgment in accepting numerous welds with "stop/ start problems" on three remote shutdown panels.
In March, 1986 two Comstock inspec-tors, Arndt and Hunter, improperly inspected numerous welds through rust and paint.
These three incidents illustrate the sensitivity of the PTL data base in revealing inspector errors.
They also show that Comstock inspector errors were attributable to individual mistakes and isolated technical problems rather than the general decline in Comstock inspector quality standards predicted by Intervenors' experts.
(FF-951-52.)
Del George plotted, as a function of time, the specific allegations of harassment, intimidation and undue production pressure mentioned in the testimony in this case.
He assumed that each incident was 100% effective in that it would produce an effect on the quality of Comstock QC inspec-tions.
He performed a qualitative review of the CSR and PTL t
. results over time, presented on a quarterly and monthly basis, respectively, for all Comstock QC inspectors and for various groups of Comstock QC inspectors.
Del George concluded that to the extent there is sufficient data to draw conclusions, there are no trends in the data which can be correlated with the allegations of harassment, intimidation and undue prod-tion pressure.
Moreover, in the case of the PTL data base, where there is more information with respect to individual inspector performr.nce.
Del George was unable to identify any correla-tion between PTL overinspection results and any specific allegation of harassment or intimidation with respect to an individual Comstock QC inspector.
(FF-938, 949-50.)
The discrepancies identified in the CSR were evaluated by Sargent & Lundy, the architect / engineer for Braidwood.
None of these discrepancies was design significant.
This means that none of the discrepancies would have prevented the affected item from fulfilling its intended safety function.
This result provides additional assurance that the quality of electrical work at Braidwood is adequate.
(F-922-928.)
One of the principle reasons why no design signifi-cant discrepancies were identified in the CSR is that S&L has l
provided large design margins for the Braidwood electrical work, over and above code requirements.
These margins arise due to the standardization of components and due to the engi-neers' recognition that construction work is not always perfect.
For example, there are approximately one dozen standard designs for conduit hangers.
Each is based on i
l assumptions of maximum conduit size, maximum cable weight, maximum hanger length and maximum space between hangers, even though all of these conditions will seldom if ever be present in any field installation.
Similarly, peak seismic accelerations are used for designing conduit, conduit hangers, cable pan, and electrical equipment mountings even tho gh more refined analyses could be performed based on the actual component frequencies which would result in lower seismic design forces.
Manufacturers typically provide materials which exceed minimum strength requirements to avoid the potential expense of scrapping substandard material.
These and other conservatisms overlap and are often cumulative.
(F-925.)
There are other design margins for which no credit was taken in S&L's design significance evaluations.
These are code required margins.
The code writers typically attempt to obtain a margin of two between failure and code allowables.
Moreover the AWS D1.1 Code indirectly provides margin by requiring minimum sizes and lengths for welds.
(F-928.)
Thus, even though the Comstock inspectors ate called upon to make numerous, detailed, precise judgments - for example, measuring weld dimensions to 1/16 inch - conservative design and construction practices' reduce the likelihood that any errors they make will lead to safety problems.
The CSR result that the Comstock QC inspectors did not miss any design significant defects confirms that the overall quality program, which relies on the combination of conservative design, good L
1
' l construction, and adequate QC inspections, was functioning as expected at Braidwood.
Intervenors offered no direct evidence controverting Applicant's case analyzing the CSR and PTL data.
Rather, there C
was extensive cross-examination of all of Applicant's witnesses which ultimately forced on four main points:
(1) the Gargent &
Lundy analysis of discrepancies in the course of the CSR review was so flawed as to cause its conclusion that no design signif-icant discrepancies exist to be suspect; (2) the use of inspection points to describe CSR results makes Comstock QC inspector performance look better than it really was; (3) agreement rates (whether calculated on an inspection point basis or on a weld basis; are an inappropriate measure of inspector accuracy, since two other variables, craft error rate and reinspector accuracy rate enter into the calculated agree-ment rate, and (4) sample evidence is inherently unconvincing since it fails to provide certainty.
None of these issues cast any doubt on our conclusion that the evidence simply compels the finding that there was no observable effect of the alleged harassment on the quality of the inspections performed by Comstock QC inspectors.
The Sargent & Lundy witnesses made a large number of corrections and additions to their testimony in this proceed-ing, but their willingness to point out their own mistakes to Intervenors does not diminish their trustworthiness in our eyes.
The important consideration is that none of these changes and corrections even suggested that a design i
- 100 -
significant discrepancy had been overlooked by S&L or by an Comstock QC inspector.
Moreover, the Licensing Board is convinced that there are extensive design margins, beyond code requirements, for the electrical work at Braidwood, and that Sargent & Lundy's ability to refine its calculations to show that such margins offset construction d'ccrepancies is not mere
" pencil-whipping" (as Intervenors call it) but a demonstration of the underlying reality which contributed to reasonable assurance that nuclear power plants can be built and operated safety.
Intervenors' assertion that inspection points are an inappropriate unit for counting discrepancies misses the mark as well.
Intervenors created an exhibit which counted CSR discrepancies on an item basis.
That is, even though an item may have had thousands of inspection points, one missed inspec-tion point would cause the entire item to be counted as defec-tive.
Not surprisingly, the agreement rates counted on an item basis were markedly lower than the agreement rates calculated on an inspection point basis.
However, the pertinence of a per-item agreement rate is nil.
It can't be used to describe the quality of the work, because it ignores the significance of the identified discrepancies.
It can't be used to assess inspector performance, because it equates the inspector who makes one inspection mistake on a complex item with the inspec-tor who makes numerous mistakes on a much simpler item.
It can't be used to trend reinspection results over time, because most items were inspected for different attributes at different
- 101 -
times by more than one Comstock QC inspector.
Finally, Edison presented both the CSR and PTL data on a per weld basis, a grosser unit of measure than inspection points, again demon-strating no trend which could be correlated to acts of harassment.
Intervenors attack on the use of agreement rates is similarly unavailing.
Again, it is axiomatic that craft error rates and reinspector accuracy rates are variables which can effect the overall agreement rate.
However, the agreement rates for the entire time period are essentially at the same level.
There was no evidence which even suggested that there was a perfect harmony in the three independent variables, so that a decline in inspector accuracy as a result of harassment was matched' by a corresponding decrease in the craft error rate or in the overinspector accuracy rate.
But only a virtually synchronized reciprocal movement of these variables would lead to the essentially unchanged agreement rates over time.
Moreover, the mathematics of such a shift, given the very high agreement rates, are themselves highly improbable.
If one hypothesizes (as Intervenors' expert Dr. Arvey did) a signifi-cant effect on QC inspector accuracy rates from harassment, e.g.
a 30% decline, the craft error rate would have to decline to near zero to maintain the essentially unchanged agreement rates observed in the CSR data.
(F-936.)
- Finally, Intervenors' argument proves too much.
Agreement rates are the only mechanism for evaluating inspector performance after the fact unless we are to simply turn our backs on the original
- 102 -
Comstock inspections as well as the CSR and PTL data, and order a 100% reinspection to demonstrate independently the quality of the work.
There is no basis in this record for such an order.
It is a truism that a sample reinspection does not provide certainty that unreinspected items in the population are free from defects.
However, cert.;nty is not requited.
Even a 100% reinspection does not provide certainty.
The statutory standard for issuance of an operating license is that there be " reasonable assurance" that the facility can be operated with due regard for the public health and safety.
Sample reinspections have, in other cases, provided the requi-site " reasonable assurance" that quality concerns have been alleviated.
- See, e.g.
Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP 84-45, 20 NRC 1203 (1984), aff'd, ALAE-793, 20 NRC 1591 (1984); Pacific Gas &
Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 &
2), ALAB-763, 19 NRC 571 (1984) (nonseismic issues).
We heard testimony from both BCAP and PTL personnel describing the rigor with which these programs were designed and implemented.
NRC Staff and independent overright of the CSR reinspections adds to our confidence in the results.
The CSR and PTL data bases include an enormous amount of informa-tion about Comstock QC inspector performance.
For example, the CSR data base includes reinspections of 75 Comstock inspectors' work, including more than Comstock QC accepted 10,000 welds.
The PTL data base encompasses more than 100 Comstock weld inspectors and 28,000 welds, approximately 10% of the total
- 103 -
number of welds (and 28% of the components; completed and QC accepted by Comstock, during the four year period from July, 1982 to June, 1986.
The CSR data base includes the work of 19 of the 24 Comstock QC inspectors who expressed concerns to the NRC Staff on March 29, 1985; the PTL data base includes 20 of these 24.
(F-902.)
Intervenors' own claims are that the allegations of harassment litigated in this case may be "the tip of a much larger iceberg," that they fit into a "large scheme" of "his-toric, tangible, powerful and pervasive production pressure."
(Tr. 7903-04, 7908, 7917.)
Intervenors and Intervenors' experts endorsed a theory of " observational learning" in which individual events of harassment and intimidation would " anchor" the QC inspectors' criteria for good or bad work, and that the resulting " quantity over quality" values would lower the performance standards of the quality control inspectors generally.
(FF-805-806.)
Based on Intervenors' own claims, and bearing in mind all of the myriad of details concerning the design, scope and execution of the CSR and PTL overinspection program (summarized in the findings of fact) the Licensing Board would expect to see some evidence of harassment, intimidation, or undue production pressure in the CSR and PTL data bases, if Intervenors' theory were correct.
We see no such evidence, and we see no need to call for further reinspections.
- 104 -
CONCLUSIONS OF LAW In reaching this decision, the Board has considered all the evidence submitted by the parties and the entire record of this proceeding.
That record consists of the Commission's Notice of Hearing, the pleadings filed ~by the patties, the transcripts of the hearing, and the exhibits received ir.to evidence.
All issues, arguments, or proposed findings pre-sented by the parties, but not addressed in this decision, have been found to be without merit or unnecessary to this decision.
Based upon our Findings of Fact which are supported by reliable, probative, and substantial evidence as required by the Administrative Procedure Act and the Commission's Rules of Practice, and upon consideration of the entire evidentiary record in this proceeding, the Board, with respect to the issu'es in controversy before us; CONCLUDES that the Applicant, Commonwealth Edison Company, has fully met its burden of proof on each of.the contentions decided in this P.I.D.
As to these issues, there is reasonable assurance that the Braidwood Station, Units 1 and 2, can be operated without endangering the health and safety of the public.
ORDER WHEREFORE, in accordance with the Atomic Energy Act of 1954, as amended, and the rules of the Commission, and based on the foregoing Findings of Fact and Conclusions of Law, IT IS ORDERED THAT:
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.The Director of Nuclear Reactor. Regulation is author-ized, upon_ making the findings on all applicable matters.
specified;in 10 C.F.R..$ 50.57(a;, as to each respective reactor unit, to issue to the Applicant, _ Commonwealth Edison Company, a license or licenses to authorize low power testing
_(up to 5% of rated power of each unit; of the Braidwood Station, Units 1:and 2.
Pursuant to 10 C.F.R. $ 2.760 of the Commission's Rules of Practice, this Partial Initial Decision shall become effective immediately.
It will constitute the final decision of the Commission forty-five (45; days from the'date of issuance, unless an appeal is taken in accordance with 10 C.F.R. $ 2.762 or the Commission directs otherwise.
See also 10 C.F.R.
$$ 2.764, 2.785 and 2.786.-
Any party may take an appeal from this decision by filing a Notice of Appeal within ten (10; days after services of this Partial. Initial Decision.
Each appellant must file a
brief supporting its position on-appeal within thirty (30; days after filing its Notice of Appeal (forty (40; days if the Staff is the appellant;.
Within thirty (30; days after the' period has expired for the filing and service of the briefs of all appellants (forty (40; days in the case of the Staff), a party who is not an appellant may file a brief in support of or in opposition to the appeal of any other party.
A responding
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patty shall file a single, responsive brief only regardless of the number of appellants' briefs filed.
(See 10 C.F.R. 5 2.762;.
THE' ATOMIC SAFETY AND LICENSING BOARD Herbert Grossman, Chairman ADMINISTRATIVE JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDGE i
Dr. A. Dixon Callihan I
ADMINISTRATIVE JUDGE Bethesda, Maryland 1987 l
f
_, ~.
Appendix-A Contrary to Criterion I,
" Organization" of 10 C.F.R. Part 50, Appendix B, and 10 C.F.R. Section 50.7, Commonwealth Edison Company and its electrical contractor, L. K. Comstock Engineering Company have failed to provide sufficient authority and organizational freedom and independence from cost and schedule as opposed to safety considerations to permit the effective identification and correction of quality and safety significant deficiencies.
Systematic and widespread harass-ment, intimidation, retaliation and other discrimination has been directed against Comstock QC inspectors and other employ-ees who express safety and quality concerns by Comstock manage-ment.
Such misconduct discourages the identification and correction of deficiencies in safety-related components and systems at the Braidwood Station.
Instances of harassment and intimidation include [at least the following]:
1.
[At various times since at least August 1984,)
more than twenty five (25) Comstock QC inspectors have 1
complained to the NRC In March 1985 about harassment and 4
intimidation by Comstock supervisors.
Such harassment and i
intimidation has been carried out or participated in by QC Manager Irv DeWald, [ Assistant QC Manager Larry Seese, QA Manager Bob Seltmann) and QC Supervisor R. M. Saklak.
Such harassment included widespread pressure to approve deficient work, to sacrifice quality for production and cost considerations and to knowingly violate established quality procedures.
Harassment and retaliatory treatment included threats of violence,-verbal abuse, termination of i
employment, transfer to undesirable jobs or work in areas where quality deficiencies could not be noted, assignments to perform burdensome or menial "special projects" and other adverse treatment.
Such discriminatory action was taken because of the victim's expression of quality or safety concerns.
Former Level II QC inspector John D.
Seeders has knowledge of these widespread instances of harassment.
By letter of August 17, 1984, Seeders complained to the NRC, Edison and Comstock management regarding instances of harassment directed against him.
Subsequently, Mr. Seeders was involuntarily transferred to the position of Engineering Clerk in retaliation for his expression of quality concerns.
Such assignment was intended by Comstock to keep Mr. Seeders away from sensitive work areas.
Although QC Supervisor R. M. Saklak was finally terminated in 1985 for his mistreatment of QC inspectors and other mis-conduct, the effects of his harassment remain uncorrected [and systematic harassment continues at Comstock to the present].
The existence of widespread harassment inpugns the integrity and effectiveness of on-going corrective action programs designed only to address other widespread QA failures at t
,--.,n-
2-
'Comstock.
[As stated in Mr. Seeders' affidavit, these Comstock QC inspectors are eager to cooperate with the Licensing Board in identifying and correcting the harassment problems at Comstock, but require Board protection from retaliation in c
order to provide testimony and documentation of their harassment.]
f c.
2.
Comatock management, including QC Manager Irv DeWald and Corpora;e QA Manager Bob Marino harassed, discrimi-nated and retaliated against, and ultimately terminated Level III QC Inspector Worley O.
Puckett because Mr. Puckett made numerous complaints about safety and quality deficiencies which he identified in the course of his duties at Braidwood.
Mr..Puckett was hired by Comstock in May 1984 in the newly created position of Level III QC Inspector whose duties included conducting a review of Comstock procedures, tests requirements for the more than 50 Level II QC Inspectors, review of the Level II's inspection work, and the resolution of inspection disputes.
Mr. Puckett was highly qualified with 20 years' nuclear Navy and nine years' nuclear power experience.
See, Resume, Exhibit B.
During the course of his employment with Comstock Mr. Puckett was shocked by the widespread de-ficiencies in procedures, qualifications and workmanship.
He identified numerous instances of improper construction proce-dures, improper qualification of welders, and material trace-ability deficiencies.
He ultimately recommended a complete stop work order for all welding activity to permit effective corrective action.
See, Memos of August 10 and August 17, 1984, Exhibits C and D.
i' Finally, he warned QC Manager Irv DeWald that "we are approaching a complete breakdown in our QC program."
i August 22, 1984 Memo, Exhibit E.
Puckett was subjected to harassment and retaliation because he raised these safety and i
quality concerns and was terminated on August 27, 1984 by DeWald on the pretext that he should have scored higher than his 86% on a qualification test.
He filed a complaint with the U.S.
Department of Labor, alleging violation of the employee protection provisions of the Energy Reorganization Act, 42 USC 5851.
Letter, September 5, 1984, Exhibit F.
The U.S. Depart-ment of Labor Area Director sustained Mr. Puckett's complaint finding unlawful discrimination by Comstock against Puckett and l
ordered relief.
Notes of Decision, November 6, 1984, Exhibit G.
Mr. Puckett presented his case at a hearing before an i
Administrative Law Judge on Comstock's appeal.
See, Com-i plainants' Pre-Hearing Exchange, Exhibit H.
Comstock settled Mr. Puckett's claim before putting on its case.
The terms of settlement are subject to a non-disclosure agreement between Comstock and Mr. Puckett.
l l
\\
J