ML20215J755
| ML20215J755 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/15/1987 |
| From: | Jim Hickey GENERAL PUBLIC UTILITIES CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3805 CIV-PEN, EA-84-137, NUDOCS 8706250099 | |
| Download: ML20215J755 (14) | |
Text
t j 3gos DOME TE.
UARc June 15, 1987
~87 am 17 P4 30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION grrt,.,
u0cm Ta3,.,,,L, Before the Administrative Law Judge WMN In the Matter of
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PE M GPU Nuclear Corporation Docket No. 50-320- ces
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EA-84-137 (Three Mile Island Nuclear
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Station, Unit No. 2)
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GPU. NUCLEAR CORPORATION'S RESPONSE TO " MOTION TO QUASH SUBPOENA" On May 29, 1987, the Presiding Officer in this proceeding issued a subpoena for the depositon of Mr. David Feinberg.
On June 9, 1987, the DOL, on behalf of Mr. Feinberg, moved to quash the subpoena.
GPUN opposes the DOL's motion, which was improp-erly. served and is1vithout merit.
The subpoena stated that motions to quash or modify the sub-poena "must be delivered to and in the possession of the Presid-ing Officer, counsel for GPU Nuclear Corporation and counsel for the NRC staff by June 9, 1987."
The certificate of Service attached to the motion to quash states that the motion was on June 9 " caused.
to be served by postage prepaid mailing."
Such service failed to satisfy the conditions set forth in the subpoena and was therefore untimely.1!
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GPUN obtained a copy by sending a messenger to DOL on June 10 when no pleading was received on June 9.
))$0) 8706250099 870615 PDR 'ADOCK 05000320 0-PDR
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In addition, the DOL motion ~does little more than repeat ar-guments 'made.by~ DOL at the May_8 Prehearing Conference._
These-arguuments were considered and rejected by the Presiding. Officer prior to issuance of the subpoenas..There is no basis for recon-sideration.-
I DOL claims that~it-is-not'necessary to depose Mr. Feinberg because, as.it did at the Prehearing Conference, he has no factu-d al information to offer.
That is no basis to deny the deposi-tion. 'If:true, it merely means that the deposition will be quickly completed.
GPUN, however, is entitled to probe Mr. Feinberg's recollection.
Further, Mr. Feinberg's sponsorship j
J of his notes as complete _and accurate may be necessary'at the hearing.. While Mr. Parks was being deposed in a civil case in
. California, he challeged the accuracy of Mr. Feinberg's notes-l (See, Attachment 1).
GPUN may need Mr. Feinberg's desposition to refute Parks' claim.
In the same vein, the legal authority the DOL cites in its motion'to quash does not provide a basis for granting the motion.
The DOL recites ~the same regulations, cases, and arguments which-it presented in its original letter opposing the motion for issu-ance_of subpoenas.
(See letter from Gail V. Coleman, Deputy Associate Solicitor for Fair Labor Standards to Honorable Ivan W.
Smith, Administrative Law Judge, March 2, 1987.)
As stated more fully in GPUN's' Memorandum Concerning Pending Discovery Motions, April 6, 1987, at pages 46-51, the DOL argument that its i
f lI departmental regulations shield its files, employees, and former employees from discvovery is without merit., The DOL's assertions were rejected by the ALJ at the Prehearing Conference and should be once again summarily dismissed.
Finally, the DOL has failed to show that a deposition of Mr. Feinberg would be unreasonable.
DOL now alleges for the first time that Mr. Feinberg is approaching seventy years of age and has some health problems which would make it difficult for him to submit to a deposition.
(See Affidavit in Support of Mo-tion to Quash Subpoenas.)
However, Mr. Feinberg fails to give
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the court specific information upon which the sufficiency of his claim can be judged.
Further, in repsonse to an earlier request by Bechtel to take the deposition of Mr. Feinberg, the DOL as-1 serted that Mr. Feinberg could not attend because he was sched-uled to testify in federal district court the same day as called for in the subpoena.
(See Attachment 2).
It seems inconsistent that Mr. Feinberg was able to testify in federal district court a few weeks ago but is unable to attend a short depositon near his home.
In any event, to the extent that Mr. Feinberg's health makes 1
a deposition difficult, counsel for GPUN would agree to any rea-sonable structuring of the deposition to avoid any excessive bur-I den on Mr. Feinberg.
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conclusion-J l
l For the foregoing reasons, the DOL's motion to quash the subpoena served on Mr. Feinberg on June 1, 1987, should be de-nied.
Respectfully submitted, l
JRML yw J. Patrick Hickey Counsel for GPUN Dated: June 15, 1987 l
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UNITED STATES OF 'MERICA g g ((:P450
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NUCLEAR REGULATORY COMMISSION Before the Administrative Law Judoe OFT -
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In the Matter of
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t GPU Nuclear Corporation Docket No. 50-320-W
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'(Three Mile Island Nuclear
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L Station, Unit No. 2)
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l CERTIFICATE OF SERVICE I hereby' certify that copies of the foregoing GPU Nuclear Corporation's Response To " Motion to Quash Subpoena" were served by deposit'in the-United States Mail, First Class, postage pre-paid,- or'where indicated by an asterisk by hand delivery, this 15th day'of June,~1987, to-the following persons:-
- Ivan. Smith, Esquire AdministrativeLLaw Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission
- Washington, D.C.
20555 l
Docketing.and Service Branch Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- George E. Johnson, Esquire Office of the General' Counsel 9604 MNBB U.S. Nuclear Regulatory Commission Washington, D.C.
20555 k
J. P6 trick Hickey g (/
Dated:
June 15, 1987
f KENNEDY RICHARDSON, ESQ.
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1 IN THE SUPER OR COURT OF THE STATE OF CALIFORNIA 2
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IN AND FOR THE COUNTY OF SAN FRANCISCO 3
___ooo___
4 5'
6 7
8 RICHARD D.
PARKS.
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COPY 9
Plaintiff,
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No. 831-846 10 vs.
11 BECHTEL POWER CORPORATION,
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et al.d 12
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....D.e..f end. a...n.t..s
,3 14 15 16 D. _E. P.. O.S.I..T.IO. N... O_F. _..R. _I.CH_.A. RD. D. PARK.S..
37 18 In and for the County of Contra Costa g
State of California 20 January 31, 1987 21
___ooo___
22 YoLUME..xv.. Pages,,.,1J48,_tArough 1337 23
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24 25 26 27 i
i 28 ANNEM ARIE oLDING, C.S.R. #3442 CERTIFIED SHORTHAND REPORTER 9 LOM A VISTA. BUITE 3 ORINDA. CALIFORNIA 94S63 254 470S
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1331l 1
1 with him or not.
2 Q.
I'm showing you my, copy of Exhibit Delta 3
I.
Perhaps Ms. Zuras has her copy.
On Page 6, above 4
the final note on that page, it says, 5
"In effect, was telling himself he'd say 6
nothing without talking.to his. attorney".
7 I believe it then says, "Did call Mr. Devine-8 that day."
Maybe that's wrong.
9 MS. ZURAS:
- Well, 10 MR. RICHARDSON:
Q.
Looking at that 11 handwriting, does that refresh your recollection as 12 to whether you spoke with Mr. Devine later in the day 13 of March 17, after your meeting with Chwastyk and 14
.Kanga?
15 A.
I would have to say, as near as I can 16 decipher what it.says there, it brings nothing to 17 mind at the moment that would make me change the 18 statement.
I mean, this statement here (indicating) 19 says that I did.
I can't recall anything at the l
20 moment to make me dispute that or agree with it.
21 Q.
On Page 5, of Exhibit Delta I,
in 22 reference to the discussion you had with Kanga and 23 Chwastyk in Kanga's office during the afternoon of 24 March 17, it says, beginning in the middle of the 25
- page, 26 "Kanga read the memo to Parks and asked if he 27 agreed he was not being harassed."
28 MS. ZURAS:
Where is this?
ANNEMARIE OLDING, C.S.R.
NO. 3442 u___----_-._.-_____-_-._____-.
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1332 i
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(Witness indicating.)
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'M R. RICHARDSON:
" Asked twice.
Parks didn't 3'
want'to answer, as had just agreed to file DOL 4
complaint ~ and.did not know what was; proper'to say."
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Q.
Is that correct, that when Kanga' asked 6'
you those questions, you did not'want to answer as 7
you had' j ust agreed to file a Department of Labor
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8 complaint and did not know what was proper to say?
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9 A.
Sir, I refer you to my previous testimony 10 earlier today, when I informed you:
This'i.s one'of.
i 11 my. reasons behind why I told Mr.-Kanga what I told l
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him.
l 13 I,have to'only assume that the DOL person 1 14 that was talking with me during this was writing down i
15 his interpretation of what I was trying to tell the 16 man at the moment.
17 He says I did'not get the opportunity to' l-18 review his notes and make corrections..
Apparently, l
19 he left some things out, or was categorizing the 20 statements as he understood them.
21 Q.
Did you agree _with the interpretation s
i 22 that he made as set forth in the sentence I just 23
' read?
.24 A.
No, sir, I do not agree with his 25 interpretation.
I again refer you to my previous 1
26 testimony as to why I answered as I answered to Mr.
27 Kanga when challenged if I agreed it was intimidation 28 or not.
ANNEMARIE OLDING, C.S.R.
NO. 3442
e 1333 1
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Q.
Later on down.that page, Mr. Feinberg i
2 sayer s ld,_; e 3
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"Thus, a non-committal answer was given."
4 Did you tell Mr. Feinberg that it was your 5
intent to give a non-committal answer to Mr. Kanga's 6
question?
7 A.
Not that I can recall at the moment.
I 8
don't believe I told him that.
I think he may have 9
drawn that interpretation, based on what I told him, 10 my reply was:
The intent was clear, well defined, 11 that type of thing.
12 There again, I think Mr. Feinberg was writing 13 down his interpretation of what I was trying to 14 explain to him, and again, I state:
Since I do not 15 recall being allowed to review his notes and make 16 corrections to ensure the man fully understood, in 17,
-the minutest detail, the information I was trying to 18 impart to him, that he either left some things out or 19 recategorized things in a method that he could 20 understand and make working knowledge of.
21 I think the intent of what he put down there 22 was fairly well defined.
I'm not trying to be 23
' facetious, either.
24 Q.
So, you deny having told Feinberg that 25 you decided to give Kanga a non-committal answer to 26 Kanga's questions about harassments is that correct?
27 A.
No, sir, I don't think that's what I I
28 said.
If I recall what I said I am sure the lady ANNEMARIE OLDING, C.S.R.
NO. 3442
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~1334 1
.would be more than happy to read it back to us.
In 2
facty.would you please, Ma'am?
3 (Record read.)
4 MR. RICHARDSON:
Okay.
5 THE WITNESS:
That is not to imply Mr.
6 Feinberg walked away from.there with the wrong 7
impression, or was wrong with what he understood.
I 8
think that he wrote it very succinctly.
9 MR. RICHARDSON:
Q.
Well, I mean, your point 10 is that when'he writes that, "Thus, a non-committal 11 answer was given", that is inaccurhter isn't that 12 correct?
13 MS. ZURAS:
I think what he's saying is that 14 he can't speculate what the thought process of Mr.
15 Feinberg was when he wrote that.
He said in the 16 beginning of his previous answer that 17 MR. RICHAF9 SON:
I'm not asking for j
l 18 speculation.
4 l
19 Q.
The point is:
When you answered Kanga's 20 questions about harassment, you did not believe that j
21 you were giving a non-committal answer; isn't that s
j 22 correct?
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23 A.
I believe I gave him an answer that was i
24 straightforward:
The intent of that memo was well 25 defined.
- Now, 26 MS. ZURAS:
Excuse me.
You've answered the 1
27 question.
I 28 MR. RICHARDSON:
Q.
By " straightforward",
i ANNEMARIE OLDING, C.S.R.
NO. 3442 a
1335 i
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.you mean you felt you were giving him an answr which 2
told.him where he stoodr isn't that correct?
3 A.
That is correct.
4 Q.
All right.
5 A.
In between a rock and a hard place.
6 Can we break?
Its 5:00 o' clock.
7 Q.
I have,i u s t a couple more questions.
Did 8
you tell Feinberg that you felt you had to be guarded-9 with regard to what you said during the meeting with j
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10 Kanga and Chwastyk during the afternoon of March 177 t
11 A.
I can't recall at the homent if-- I told I
12 him that or not.
13 Q.
I have got about ten more questions.to 14 complete this line.
It's up to you.
15 A.
I would prefer to go.
16 MR. RICHARDSON:
All right.
17 (Discussion off the record.)
l 18 MR. RICHARDSON:
One quick thing on the i
19 record.
With regard to the exhibits tomorrow the 20 Court Reporter has got to go back and we will have a 1
21 new Court Reporter -- can she take the original 22 exhibits with her?
23 MS. ZURAS:
Yes.
24 MR. RICHARDSON:
With the result that we can 25 use my copies of the exhibits or your copies --
26 MS. ZURAS:
Right.
27 MR. RICHARDSON: - as though they are the 28 originals?
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ANNEMARIE OLDING, C.S.R.
NO. 3442 i
1336 4
1 MS. ZURAS:
That's fine.
2 MR. RICHARDSON:
And simply say " Exhibit" 3
whatever it is?
l 1
4 MS. ZURAS:
That's fine.
5 MR. RICHARDSON:
A11 right.
Thank you.
6 7
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8 (Whereupon, at 5:10 p.m.,
proceedings concluded for the day, to be continued 9
Sunday, February 1, 1987.)
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1 22 23 24 25 26 27 28 ANNEMARIE OLDING, C.S.R.
NO. 3442
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i U.S. Department of Labor
$'{C',"yy"Q 4
MAR 19 587 Renneth Stein, Esq.
I Deputy Regional Solicitor of Labor U.S. Department of Labor 14480 Gateway Building 3535 Market street Philadelphia, Pennsylvania 19104 Ret Richard D. Parke V. Bechtel Power, el al.,
(No. 891-8-1987, Court of Common Plese Ior pauchin County d emnsy%,vania)
Dear Mr. Stein:
This is in reference to the subpoena served upon David Fein-berg, a former employee of the wage and Hour Division, call-ing for the taking of his deposition on March 23, 1987 and the production of certain Wage /Nour investigation records.
As you know, the regulations of the Department of Labor at 29 CFR 2~.2 prohibit an employee or former employee from testifying or producing records in cases in which the Depart-ment is not a party without the authorisation of the Deputy Solicitor, In determining whether there are sufficient rea-sons to lift the prohibition against testimony and release of a record, the Deputy solicitor considers the nature of the testimony or records being sought and the relevancy to the case in chief.
It is for these reasons that the regulations require that the subpoenaing party provide a written state-menta. setting forth the above information.
A written summary. I understand, has just been submitted in this case.
According to that summary, the subpoensing party seeks to elicit information pertaining to interviews by Mr. Feinberg of Mr. Richard Parks in May and July, 1983.
Moreover, the subpoenaing party seeks to elicit any other information generated or compiled by wage / Hour as a result of its investigation of Mr. Parks' complaint against techtel Power.
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The information compiled in connection with interviews of Mr.-
Parks is, of course, protected by the informer's privilege.
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Accordingly, information of that nature cannot be released.
In terms of the remaining information sought, access may be has to th's investigative file, to the extent it is disclos.
able.
I understand Mr. Feinberg has indicated that he pos-sesses no information regarding the Parks-sechtel investiga-tien other than what la~ contained in the investigative file.
Further, there has been no showing why it is necessary to
.take a deposition to elicit the requisite info:mation in this case.
Finally, Mr. Feinberg is scheduled to testify the samt day as called for in the subpoena in federal district court.
This'information has been brought to the attention of the Deputy solicitor and he has instructed me to advise you that he has determined that the prohibition against testimony will not be lif ted in this case.
We has determined, however, that non-privileged portions of the Wage / Hour record any be provided.
This rocord may be certified.
I na enclosing i
i a copy of this letter for Mr. reinberg.
This copy will serve as his instruction from the Deputy Bolicitor not to l
l testify in this case or provide any additional information other than the non-privileged portions of the record..
i sincerely, L
P.onald G. Whiting L
Deputy solicitor of Labor I
for Regional operations
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~W05b L(J) sy Sofia F. Petters Counsel for Administrative l
Legal Services 1
anolosure l'
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