ML20212J071
| ML20212J071 | |
| Person / Time | |
|---|---|
| Issue date: | 09/20/1999 |
| From: | Borchardt R NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Dyer J, Miller H, Reyes L NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| References | |
| EGM-99-007, NUDOCS 9910050023 | |
| Download: ML20212J071 (8) | |
Text
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WASHINGTON, D.C. *= "1 September 20, 1999 EGM 99-007 MEMORANDUM TO: Hubert J. Miller, Regional Administrator Region i Luis A. Reyes, Regional Administrator Region 11 James Dyer, Regional Administrator Region lli Ellis W. Merschoff, Regional Administrator Region IV William Kane, Associate Director for Inspection and Programs, NRR Brian W. Sheron, Associate Director for Technical Review, NRR Elizabeth O. Ten Eyck, Director, Division of Fuel Cycle Safety and Safeguards, NMSS Donald A. Cool, Director, Division of Industrial and Medical Nuclear Safety, NMSS John T. Greeves, Director, Division of Waste Management, NMSS E. William Brach, Director Spent Fuel Project Office, NMSS y]
FROM:
R.W. Borchardt, Directo Office of Enforcement
SUBJECT:
ENFORCEMENT GUIDANCE MEMORANDUM - RELEASE OF INVESTIGATIVE INFORMATION FROM OFFICE OF INVESTIGATIONS REPORTS TO LICENSEES AND SUBJECTS OF INVESTIGATIONS FOR PURPOSES OF PREDECISIONAL ENFORCEMENT CONFERENCES; PREPARATION OF A WRITTEN ANALYSIS IN EACH DISCRIMINATION MATTER CONSIDERED FOR ENFORCEMENT ACTION The purpose of this Enforcement Guidance Memorandum is to provide guidance regarding implementation of the Commission's Staff Requirements Memorandum (SRM), dated May 27, 1999, concerning the release of investigative information to licensees and subjects of investigations for purposes of predecisional enforcement conferences (PECs) invoking Office of Investigations (01) findings of wrongdoing, in its SRM, The Commission approved the staff's recommendation contained in SECY-99-019 to provide participants at predecisional enforcement conferences detailed summaries of the factualinformation that forms the basis for the staff's preliminary conclusion that an apparent violation of NRC requirements occurred. In addition, this memorandum explains the staff's commitment to the Commission, in response to the Millstone Independent Review Team Recommendations, to document its analysis of discrimination matters considered for enforcement action.
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l As a result of those decisions, a factual summary will be prepared for all cases in which Ol finds l
wrongdoing and in which a choice letter is being sent or a PEC is being scheduled. A written l
analysis will be prepared for all discrimination cases considered for enforcement action and l
other wrongdoing cases as warranted and as agreed on by OE and the Region.
i The purpose of the factual summary is to provide notice to PEC participants of the factual basis i
fcr the staff's preliminary conclusion that NRC regulatory violations occurred. This summary is intended to assist the participants in preparing for the PEC. Accordingly, it should contain sufficient factual detail to fully apprise PEC participants of the operative facts involved in the apparent violation. It is not intended to provide a full discussion of the evidence gathered in the l
course of the NRC's investigation. The summary should not normally include the names of individuals involved in the potential enforcement matter. Rather, titles or other generic J
descriptions should be utilized. Other personal or proprietary information should not be included. While the length of the summary in each case depends on the facts, it should not ordinarily exceed two single-spaced pages.
in SECY-99-019, the staff recommended that factual summaries be provided to PEC l
participants at their request. While the Commission approved that recommendation, it also I
advised that the staff may provide summaries without waiting for a request following issuance of a choice letter or notification that a PEC has been scheduled. To expedite the enforcement process, OE has concluded that the staff should not await a request from a PEC participant l
before a factual summary is prepared. Rather, the staff should normally prepare a factual summary in every OI-related matter in which a PEC may take place. Since the summary will also assist licensees in deciding whether to request a PEC, if possible, the summary should be forwarded to the licensee or individual with the choice letter. If no choice letter is being sent, the summary should be sent with the PEC notification letter. In most cases, sending the summary will provide the same information that is contained in the 01 Report Synopsis and, therefore, eliminate the need to send the Synopsis. However, the summary is not intended to be a substitute for the Synopsis, and both may be sent.
If, however, the proposed enforcement action is based upon a decision by an Administrative Law Judge of the Department of Labor, then no factual summary should be necessary, since l
the participants will be fully conversant with the facts to be discussed at the PEC. In addition, there may be other matters in which the parties have investigated or adjudicated the issues and, thus, the staff need not automatically prepare a summary when it proposes an enforcement conference. At each enforcement panelin which a decision is made to conduct an I
enforcement conference, OE and the region will discuss whether a factual summary should be prepared, and if so, the assignment of that responsibility.
l As a result of the Commission's April 6,1999 SRM to the staff dealing with the Millstone i
Independent Review Team Recommendations, OE committed to preparing a written analysis of the evidence in every potential discrimination case for purposes of the enforcement panel discussion. OE is adding a section to the Enforcement Manual that explains this new staff requirement. (See Attachment 1). OE has also prepared a sample written analysis of a discrimination case that can be used as a guide (See Attachment 2).
The written analysis the staff prepares for the panel discussion can be modified into an i
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... Information summary to provide PEC participants. Attachment 3 is a sample factual summary that is based upon the facts outlined in the sample analysis contained in Attachment 2. The sample factual summary draws upon the operative facts set forth in the written description, but does not include the staff's analysis of the facts or any conclusions drawn therefrom. The factual summary provided to PEC participants should be limited to the operative facts involved in the apparent violation. The analysis is a separate document prepared subsequent to the enforcement panel briefing package.
~ This guidance is effective immediately and will be reflected in the next change to the Enforcement Manual.
Attachments: as stated cc:
F. Miraglia, DEDR C. Paperiello, DEDMRS D. Dambly, OGC G. Caputo, Ol SECY The Chairman The Commissioners
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4 ATTACHMENT 1 Documented Analytical Process in Discrimination Matters in every discrimination matter the staff considers for enforcement action, it will prepare, prior to and for purposes of the enforcement panel discussion, a written summary of the evidence that may support each element of a discrimination case. Those elements are as follows:
Did the employee engage in " protected activity" as that term is defined in Section 211 of the Energy Reorganization Act of 1974, and the Commission's discrimination requirements, e.g.,10 CFR @ 50.7(a)(1), and interpreted by the Department of Labor and the courts?
Was the employer (an NRC licensee, applicant for an NRC license, contractor or subcontractor of a licensee or applicant) aware of the protected activity at the time of the adverse action?
Was an adverse action taken by the employer against the employee, which affected the employee's terms, conditions or privileges of employment?
Was the adverse action taken, at least in part, because of the protected activity?
The purpose of the written analysis is to reach a determination in each discrimination matter as to whether, based on all the available evidence, there is information sufficient to provide a reasonable expectation that a violation of the Commission's discrimination requirements, e.g., Section 50.7, can be shown by a preponderance of the evidence.
The written analysis should include a statement of OGC's position, if available, as to whether the evidentiary standard is satisfied. The written analysis for each matter should be utilized as a basis for the enforcement panel discussion and will be placed in the enforcement file.
The analysis may well be revised during the deliberative process, as the matter is further considered by all NRC components involved in the enforcement process. Revised analyses should be distributed to the principal participants in the deliberative process.
The length of the analysis should normally be limited to one or two pages. Its purpose is to summarize the basic facts of the case as it relates to the required elements. It is not intended to serve as a full analysis cf all of the evidence reviewed by the staff. OGC should work with the staff in preparing and revising the analysis. is a sample written analysis of a discrimination matter that the staff may use as a guide in preparing summaries.
OE will coordinate with the region to determine who will prepare the analysis on a case-by-case basis. The staff's and OGC's conclusion may be added after the panel.
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- a ATTACHMENT 2 SAMPLE WRITTEN ANALYSIS OF DISCRIMINATION CASE PREDECISIONAL INFORMATION - NOT FOR RELEASE WITHOUT APPROVAL OF DIRECTOR, OE
SUMMARY
OF OFFICE OF INVESTIGATIONS (01) REPORT NO. 5-1999-001 Ol Report No. 5-1999-001 involves a Supervisor of Quality Systems (Supervisor) at the Alpha Nuclear Plant, who was transferred to a less-desirable, non-managerial position by licensee management for allegedly raising safety concerns. Pursuant to 10 CFR 50.7, discrimination by the licensee against an employee for raising safety concerns is prohibited.
Element 1: Did the Employee Engage in Protected Activity?
[ Describe the specific evidence supporting a conclusion that the employee engaged in protected activities.)
The Supervisor testified that he raised numerous nuclear safety concerns to the Manager of Safety and Quality Assurance, as well as other managers at the Alpha Nuclear Plant. His testimony is corroborated by plant documents which establish that the concerns were formally raised. The managers admitted to Of that the Supervisor raised concerns. The concerns involved safety-related functions performed by quality systems engineers, including (be as specific as possible).
Element 2: Was the Employer Aware of the Protected Activity at the Time of the Adverse Action?
[ Describe the evidence supporting a conclusion that specific Licensee personnel who served in a supervisory or managerial capacity were aware that the employee engaged la protected activities)
The Supervisor created documentation of his safety concerns to management in early December,1998, and testified that he verbally related his concerns to management at the same time. During Ol's investigation, the Manager of Safety and Quality Assurance and other managers at the Alpha Nuclear Plant testified that as of December 15,1998, they were aware that the Supervisor had raised nuclear safety concerns.
Element 3: Was an Adverse Action Taken Against the Employee?
[ Describe specifically what action was taken against the employee; indicate whether such action occurred after the employee engaged in protected activities; and describe why the action was adverse to the employee)
On January 10,1999, the Manager of Safety and Quality Assurance notified the Supervisor that he was being reassigned to a non-managerial position in the Licensee's training division, which is outside the Licensee's compliance monitoring organization. This action took place approximately one month after the Supervisor had raised the safety concerns described above.
The evidence indicates that the position to which the Supervisor was transferred had no supervisory responsibilities, and was generally considered a less desirable position than Supervisor of Quality Systems.
(
Element 4: Was the Adverse Action Taken, at Least in Part, Because of the Protected Activities?
[ Describe specifically the evidence supporting a conclusion that there was a causal connection between the protected activities and the adverse action. Include an analysis of reasons proffered by the Licensee, if any, that the adverse action was taken for legitimate, non-prohibited reasons)
The evidence indicates that the Manager of Safety and Quality Assurance told the Supervisor that he was causing a lot of problems for the Licensee, and that if the Supervisor did not stop causing problems by raising safety issues, he would be replaced. One manager teJtified during the investigation that some managers at the Alpha Nuclear Plant viewed the Supervisor as an aggravation and barrier to getting things done. This manager told Ol that it appeared to him that certain managers at the Alpha Nuclear Plant could not dissuade the Supervisor from raising concerns, so they took care of the Supervisor by transferring him to a non-managerial position outside the Licensee's compliance monitoring organization. Accordingly, the evidence supports the conclusion that the Supervisor was transferred from his managerial position within the Licensee's compliance monitoring organization to a less-desirable, non-managerial position in the training division at least in part because the Supervisor had raised safety concerns that were viewed by management as erecting barriers to getting things done at the Alpha Nuclear Plant.
Further, there do not appear to be legitimate business reasons for transferring the Supervisor to the training position. Several managers at the Alpha Nuclear Plant, including the Manager of Safety and Ouality Assurance, testified that the Supervisor was technically very competent.
Therefore, it does not appear that the Supervisor was transferred to a non-managerial position for cause. Based on Ol's interview of the Licensee's Manager of Training, the Supervisor was not transferred to the training division to fill a critical need within that division. Furthermore, the Supervisor had received good performance appraisals during the years prior to his transfer to the training division. While some managers at the Alpha Nuclear Plant stated to Ol that they had heard that the Supervisor was having problems dealing with certain individuals at Alpha Nuclear Plant, many managers stated to Ol that they personally were not having problems with the Supervisor, in addition, there was no documentation of problems the Supervisor may have experienced relating to inter-personal relationships.
Conclusion
[ Indicate whether the staff believes that, based on all available evidence, there is information sufficient to provide a reasonable expectation that a violation of Section 50.7 (or analogous requirement) can be shown by a preponderance of the evidence)
The evidentiary record outlined above supports a conclusion that the Supervisor was retaliated against by management for engaging in protected activities. OGC has advised that there is sufficient information to provide a reasonable expectation that a violation of Section 50.7 can be established by a preponderance of the evidence.
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ATTACHMENT 3 SAMPLE FACTUAL
SUMMARY
01 Report No. 5-1999-001 involves a Supervisor of Quality Systems (Supervisor) at the Alpha Nuclear Plant, who was transferred to a less desirable, non-managerial position by Licensee management for allegedly raising safety concerns. The Supervisor raised numerous safety concerns to the Manager of Safety and Quality Assurance, as well as other managers at the Alpha Nuclear Plant. The concerns involved safety-related functions performed by quality systems engineers.
The Supervisor created documentation of his safety concerns to management in early December,1998, at about the same time he verbally raised the concerns. On January 10, 1999, the Manager of Safety and Quality Assurance notified the Supervisor that he was being reassigned to a non-managerial position in the Licensee's training division, which is outside the Licensee's compliance monitoring organization. This action took place approximately one month after the Supervisor had raised the safety concerns described above. The position to which the Supervisor was transferred had no supervisory responsibilities, and was generally considered a less desirable position than Supervisor of Quality Systems.
The evidence indicates that certain managers at the Alpha Nuclear Plant considered the Supervisor's raising concerns as an aggravation and a barrier to getting things done. One manager told the Supervisor that he would be replaced if he did not stop causing problems for the Licensee by raising safety concerns.
Further, the evidence indicates thrt the Supervisor was technically very competent as Supervisor of Quality Systems. In addition, there is evidence to suggest that the Licensee's training division, to which the Supervisor was transferred, did not have a critical need for additional personnel.
Finally, the Supervisor had received good performance appraisals during the years prior to his transfer to the training division. There is no documentation of any performance-related problems concerning the Supervisor.
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,,3-DISTRIBUTION:
R.W. Borchardt, OE OE Staff Enforcement Coordinators Rl, Ril, Rlli, RIV, NMSS, NRR (Also by E-Mail)
EGM File Day File WEB (2 weeks after issuance)
PUBLIC (2 weeks after issuance) l
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NUDOCS OE
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