ML20247D599
| ML20247D599 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 05/02/1989 |
| From: | Rosenthal A NRC |
| To: | |
| References | |
| 89-02, 89-2, NUDOCS 8905250499 | |
| Download: ML20247D599 (37) | |
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4 4 y 4 REPORT OF INVESTIGATION (89-02)
Introduction This investigation was instituted by the Office of i
Inspector and Auditor (OIA) in August 1988 to inquire into a complaint by Douglas S. Ellison directed to the conduct of employees of the Office of Investigation (OI) and, most particularly, its Deputy Director, Roger A. Fortuna. The investigation was pursued by OIA until February 28, 1989.
By Chairman Zech's letter of that date, the. Commission transferred responsibility for the investigation to me. The OIA files pertaining to the investigation were delivered to me over a period of several weeks tnrough Congressional Affairs (which was called upon to make copies of each document in those files for, among other purposes, transmission to a Senate committee concerned with the manner in which OIA had conducted the investigation prior to being relieved of the assignment).
Karen D. Cyr and Susan S. Chidakel, attorneys in the Office of the General Counsel, were detailed to assist me in the further conduct of the investigation.1 Our preliminary 1
Because of a previous commitment, Ms. Cyr's involvement in.the investigation terminated on March 23.
Ms. Chidakel has assisted me throughout the investigation.
(Footnote Continued)
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examination of the OIA files, including an extensive. !
interview of Mr. Ellison conducted by Ms. Connelly and other OIA officials on September 12, 1988, led us to the u ;- conclusion that the Ellison complaint had two basic elements.
The first of these elemen'a related to the manner in which OI dealt with certain allegations that had been presented to the NRC by Mr. Ellison in 1986. Those allegations were addressed to asserted misconduct at the Niagara Mohawk Power Corporation's Nine Mile Point facility,
,,, at which facility Mr. Ellison was then employed. The second
' element of the Ellison complaint to OIA focussed principally upon two January 14, 1987 telephone conversations between Mr. Fortuna and Stephen B. Comley, which were recorded on tape by either Mr. Comley or Mr. Ellison without the knowledge of Mr. Fortuna. Irrespective of who did the recording (.r.
M Ellison claims it was Mr. Comley and vice versa), Mr. Ellison turned a copy of the tape of the conversations over to OIA at the September 12, 1988 interview (along with certain other cassette tape recordings that Mr. Ellison had made of telephone conversations in which he was a participant). According to Mr. Ellison, in (Footnote Continued)
The invaluable contribution of both is gratefully acknowledged.
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i the January 14, 1987, telephone conversations Mr. Fortuna had.
inappropriately disclosed to Mr. Comley information pertaining to Mr. Ellison and, additionally, had discussed a '
with Mr. Comley sensitive and confidential NRC matters.
Our examination of the material already acquired by OIA on these two elements.of the.Ellison complaint led us to conduct a number of interviews of NRC employees, in some instances supplementing prior interviews undertaken by OIA..
Specifically, the following individuals were interviewed by 1
'l us:
- a. Ben B. Hayes, Director, OI-6.
Roger A. Fortuna, Deputy Director, OI William D. Hutchison, Assistant to the Director, OI Chester W. White, Director, Region I Field Office, OI-Richard A. Matakas, Senior Investigator, Region I Field Office, OI Samuel J. Collins, Deputy Director, Division of-Reactor Projects, Region I Daniel J. Holody, Enforcement Officer, Region I The interviews of Messru Hayes, Fortuna, Hutchison and White were stenographically transcribed. Those of the other dividu ds were of the note-taking-variety, with interview summaries prepared (in the case of Messrs. Collins and Holody the interview was by telephone).
On the basis of the information now in hand, we are in a position to report our conclusions respecting the first
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element of the Ellison complaint: the manner in which OI dealt with Mr. Ellison's allegations in 1986 of licensee misconduct at Nine Mile Point. Our conclusions respecting possible improprieties on Mr. Fortuna's part in his relationship with Mr. Comley will be the subject of a-subsequent report.
Statement Of Facts
.s . On the afternoon of Friday, July 11, 1986, as he was L
preparing to enter containment at Nine Mile Point Unit 1 during an outage, NRC Resident Inspector' Charles Marschall was approached by Ellison, an Instrument and Control (I&C)
Technician. Ellison alleged that non-qualified personnel had installed Local Power Range Monitor (LPRM) connectors and that he had so informed his supervisor. As a result, Ellison asserted, he had been subjected to harassment by the supervisor. He also informed Marschall that non-class 1 connectors had been installed in Average Power Range Monitor circuits (APRM) at his supervisor's direction.
Marschall entered the containment,-verified that non-safety grade (uncertified) connectors had been installed, and brought this fact to the attention of the licensee. On Monday July 14, Ellison again met with Marschall and raised additional concerns. These concerns
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- 5 included problems with surveillance and an assertion of a coverup by the licensee of the lack of documentation for outage LPM 4 work.
Marschall submitted a written report of these conversations and concerns on an Allegation Receipt Report form and forwarded the documentation to the Region I headquarters, which convened a. meeting of an allegation panel on July 15.2 As it had been asserted that the license might be engaging in a coverup of irregularities in the LPRM work, the office of Investigations was to be represented on y the allegation panel. Hence, Richard Alan Matakas, OI
' Senior Investigator, attended the meeting at the direction of Chester W. White, the OI Field Director.
i The allegation panel determined that the issues raised by Ellison were broad enough to warrant interviewing him in 2 There is some discrepancy in the record as to whetner Ellison was ever given a grant of confidentiality. An allegation form in OI's file on which a description of the allegations was recorded has a line for " confidentiality".
A "yes" on this line was crossed out and a handwritten notation appears as follows: "No[.] Licensee investigation in progress as of 7/15", followed by the initials "JL". All of the individuals questioned by us stated that, to their knowledge, no formal promise of confidentiality was ever made to Ellison. .
3 At the time in Collins Report of Interview.
question, Samuel J. Collins was a Branch Chief in Region I's Division of Reactor Projects.
4 Matakas stated that he routinely attends allegation panel meetings. Matakas Report of Interview.
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. order to ascertain all of his concerns. According to Region official Collins, the allegation panel recommended that the licensee also be interviewed and that the issues (as developed by the Region) be confirmed by letter to the licensee. As was customary at the time in instances where there was an indication of possible wrongdoing, OI assistance at the interview was requested. The allegations were assigned a "high priority" rating by the Region.6 The allegation panel also determined that it would reconvene following the interview.
4 Ellison was interviewed on July 22, 1986 in tho NRC Region I offices. The interview was primarily conducted by Matakas, with the assistance of Glen W. Meyer, then Project Engineer, Division of Reactor Projects, Region I. The interview was stenographically transcribed, and a copy of the transcript was sent to the Division of Reactor Projects.
During the interview, Ellison provided some background as to the genesis of his allegations.8 According to Collins Report of Interview.
6 According to White, assignments of priority to allegations are made by the Regional Administrator and staff. White Transcript at 67.
7 There is some indication in the record that the interview of Ellison may have continued on July 23. l 8
Transcript of Ellison July 22, 1986, Interview at 10 ;
- 164.
7 Ellison, during an outage which began in March 1986 he was assigned to perform leah rate testing and, thereafter, was concerned with maintenance pertaining to APRM's and LPRM's.
In this capacity, one of his assigned tasks involved going into the region of the containment under the reactor vessel and helping with the installation of LPRM connectors on coaxial cable.
While engaged in these functions, Ellison identified several problems, including the improper installation of connectors. When his concerns respecting the connectors
.t. appeared to be brushed off by a supervisory employee, Ellison laid them at the doorstep of Quality Control (QC) personnel. Subsequently, Ellison maintained, he was harassed by his fellow employees. He brought this fact to the attention of low-level management. It made no attempt to stop the harassment but, instead, reprimanded him for going to GC and took several actions which Ellison viewed as being in themselves discriminatory. Specifically, among other things, his immediate supervisor, William James, assertedly j denied his request to be allowed to take a particular weekend off and, in addition, threatened disciplinary action if Ellison did not report for work on that weekend.
(Although Ellison took the weekend off, no such action was l
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8 actually instituted.)9 -Ellison told the interviewers that he. began to document incidents in order to substantiate.his claims, to tape record conversations with his fellow employees and' supervisors, and to take photographs of what he perceived were violations by the licensee.
Ellison informed the interviewers that in June 1986, shortly after the plant had started up after the outage, it-was'again shut down. While the plant'was in that status, it was determined that 22 LPRM connectors had failed. Ellison
.was sent by James to " straighten it out". Following 4 conversations with a fellow employee, Ellison approached James with the possibility of using uncertified connectors to solve the problem. With James' approval, he purchased such connectors from a retail store in Syracuse and, on July 10, he and other technicians began replacing the failed connectors with them. The next day, he was informed that Marschall had arrived and wanted to observe the technicians installing connectors. While the other technicians were on a work break, Ellison told Marschall about the use of the uncertified connectors.
9 Id. at 130-35. A tape recording made by Ellison of his meeting with Marschall indicates that Ellison also told Marschall about these actions by James. Ellison Tape No.
14.
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During the July 22 interview, Ellison turned over the documents, photographs and tape recordings which he asserted lent support to his allegations.10 OI's Investigation Status Record indicates that, based on a conversation with the Regional Administrator, OI opened an " inquiry" on the matter on July 25,11 but did not open an investigation pending completion of an evaluation of the transcript of the July 22 interview. According to White, Matakas and the Region staff reviewed the transcript and, as a result of this review, identified 14 allegations 4 presented by Ellison.12 One of those allegations was to the
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10 Ellison's characterization during the July 22 interview of his conversations with his supervisors and fellow employees is not in all instances supported by his tapes of these conversations. For example, during the interview, Ellison indicated that James' refusal to give him a weekend off was intended to harass him. Id. at 130-33.
However, the taped conversation between JameE and Ellison concerning this matter indicates that Ellison's request was denied because Ellison failed to make a timely request for-time off. Ellison Tape No. 18. Ellison further. stated during the interview that James said "the only problem'I got with you is you are squealing on the fellows under the pot, turning them in to Floyd Slye, taking pictures of them under the pot." Transcript of Ellison July 22, 1986, Interview at 125. The tape recording of Ellison's conversation indicates that James stated that Ellison's going to Slye (of QC)
"didn't bother me as much as it did your fellow workers ....
All I got a problem is with you and -me is having you come in and work." Ellison Tape No. 18.
11 01-86-012.
12 White Transcript at 57. A copy of the staff's summary of Ellison's allegations was provided to Ellison (Footnote Continued) l
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10 effect that Ellison had been harassed.and intimidated by fellow employees and management for raising safety concerns.
As described by the Region:
During the outage the alleger was harassed by fellow workers and discriminated against by his supervision due to his raising concerns about the LPRM connector work..
The supervisors did little or nothing to correct his harassment.
On July 31, the Region staff informed Ellison that the Department of Labor (DOL) was responsible for handling complaints such as his complaint that he had been harassed l by his supervisor. Subsequently, Ellison received a letter
. - from the Region that read in part:
With respect to the matter of your harassment by your supervisor, the' United States Department of Labor (DOL) is responsible for handling such complaints, as we informed you when we provided you with a copy of NRC Form 3 on July'31, 1986.
Therefore, we suggest you contact DOL for resolution of your complaint. A copy of DOL's " Procedures for Handling of Discrimination Complaints Under Federal Empiggee Protection Statutes" is enclosed A second allegation panel meeting was convened on August 8. At that meeting, according to Matakas, Collins MW.
.(Footnote Continued) -
along with a copy of the transcript of the interview. With Ellison's knowledge, a copy of this summary was sent to the licensee. )
Letter'to Ellison dated August 18, 1986, from J.C.
Linville, Jr., Chief, Reactor Projects Section 2C, Division of Reactor Projects.
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-announced that the Region would not call upon OI to undertake an investigation of the Ellison concerns pending the completion of the licensee's own investigation of those 14 concerns. (That investigation apparently had been initiated by the licensee as a result of Ellison's discussion with a Niagara Mohawk vice-president (Thomas Lempges) that had taken place before the July 22 interview.)15 Matakas stated that, as a result of this decision by the Region, he conceived of his role at that time as being 4 that of " monitoring" the investigation by the licensee's A
security organization. In such capacity, he would not control the progress of the investigation, but rather simply i 14 Matakas Report of Interview. According to Collins, the licensee had essentially begun two reviews: a review of technical issues, and a separate review by its security organization of " people and performance" issues. By letter to the licensee dated August 11, the Region forwarded to the licensee a list of the 14 allegations identified by the Region as a result of its July 22 interview of Ellison.
15 There was some confusion on the part of the witnesses we interviewed as to how the. licensee learned of Ellison's allegations. The record indicates, however, that Marschall told Ellison to go to the Niagara Mohawk vice-president with his concerns. See e.g., Inspection Report for Combined Inspection Nos.- 50-220/86-17; 50-410/86-61 dated January 22, 1987 at 3; Ellison Tape No.
14.
The tape recording provided by Ellison of his discussion with Niagara Mohawk vice-president indicates that l
Ellison raised the .4 3 sue of harassment and intimidation at that time. Ellison Tape No. 19.
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12 review the adequacy of.the licensee's investigation when it was completed and provide the Region with his views in that I
regard. It would then be the Region's responsibility to advise the licensee of any further steps that need be taken by it in connection with the investigation. In Matakas' view, following what he deemed to be generally the case in instances in which OI has not opened an investigation, the staff (i.e., the EDO and the Region) had control over whether OI should actively investigate or, instead, simply i review the licensee's investigation. Matakas noted in this 4 regard that OI rarely self-initiates an investigation.
Instead, the Region staff usually determines whether there will be an investigation and sets the priority of that investigation.16 Collins confirmed that, insofar as the Region was concerned, the extent of OI's role was to participate in the review of the licensee's investigation and to provide such assistance in other matters as might be requested by the Region staff. According to Collins, this level of responsibility applied to any issues raised by Ellison of harassment and intimidation; i.e., OI was to look at the o
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l 16 Matakas Report of Interview.
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i 13 licensee's investigation of these issues but was not being asked to do an independent investigation of them.17 White indicated that he considered self-initiating an investigation but ultimately decided not to do so.18 That I decision was based upon his belief that the licensee's-investigators were very competent and would conduct a thorough investigation and that his resources could be better employed elsewhere.19 This' decision was discussed in telephone conversations between White, Fortuna and his deputy William D. Hutchison.
,,,, According to White, Fortuna and Hutchison initially
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disagreed with it because they believed that the licensee's investigators would exhibit some bias. Fortuna eventually
" reluctantly" agreed with the decision.20 By letter dated August 15, the licensee forwarded to the staff a summary report of the investigation conducted by its security organization (hereinafter " Interim Report").
17 Collins Report of Interview.
8 l White Transcript at 61.
19 d
I_d. at 61-63.
O l Id. at 62-63.
21 Letter to William Kane, Director, Division of Reactor Projects, from C. V. Mangan, Senior Vice President, Niagara Mohawkr dated August 15, 1986, forwarding " Summary Report of Niagara Mohawk Power Corporation's Investigation (Footnote Continued) i 1
(
14 The report stated that, although some specific allegations had been substantiated, Niagara Mohawk's conclusion was that at no time was Nine Mile Point Unit 1 operating'in an unsafe l
condition.
The Interim Report essentially repeated Ellicon's allegation of harassment as set forth in the list of allegations previously prepared by Region. The investigative findings with regard to it were these:
During the course of the investigation-of the matters brought to Niagara Mohawk's attention A by the alleger, the alleger has never alleged
$. that he was harassed or discriminated [ sic) against because he' raised concerns about the LPRM connector or because of his participation in any protected activities. While the alleger has indicated that he has had some problems in his personal relationships with some of his co-workers, the Security Department found no evidence to indicate that the alleger was harassed or discriminated against-as a result of his participation in protected activity. Rather, the investigation concluded that the alleger was subjected to occasional teasing and ridicule by his peers as a result of his personal habits and unusual conduct ....
When supervision was made aware of the actions of the alleger's peers, steps were taken, including counseling and involvement ,
of the union, to improve the relationsh4 between the alleger and his co-workers.'g (Footnote Continued) of Allegations by Nine Mile Point Unit 1 Instrument and control Technician." ,
a Interim Report at 3.
Id. at 36.
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Matakas reviewed the Interim Report and determined ihat, although the investigators appeared to be competent, they had been working under the pressure of severe time constraints and that the investigation was incomplete.'
Matakas conveyed'this conclusion to the. Region staff, and the licensee.was requested to do additional work. .With regard to Ellison's allegation of intimidation'and harassment, during his interview withL us Matakas stated' that Niagara Mohawk told him that it did not pursue this allegation in conformity with Ellison's wishes (as 4, communicated:to.the licensee). Matakas did not recall,
however, whether he had endeavored to obtain confirmation from Ellison in this regard.24 The licensee also forwarded to the Region in early August a copy of its technical report. During the period between August 25-29,-a special NRC team inspection was conducted on the licensee's premises. According to Collins, its objective was to look at the manner in which the licensee had completed its technical investigation, and to conduct reviews onsite to ascertain the accuracy of the results of that investigation.25 In the words of the report thereafter issued by the inspection-team, "[t]he primary 24 Matakas Report of Interview. ,
25 Collins Report of Interview.
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L 16 purpose of the inspection was to assess the impact of the allegations on the safe operation of (Nine Mile Point-1].
Further, the inspection assessed the effect of the allegations on the pending Region I recommendation on the licensing of [Nine Mile Point-2]. To achieve these purposes, the inspection reviewed the validity of some parts of the allegations, reviewed the (licensee'e] evaluation of the allegations, and assessed the technical significance of the allegations".26 Matakas participated in this special inspection.
^- The inspection report concluded that most of the s.
allegations were factually correct, but their safety implications were minor and were addressed by the licensee's corrective actions. That report also stated that there were shortcomings in the general effectiveness of the licensee's quality assurance program and in its ability to identify and correct potential problems. Regarding the alleged harassment of Ellison by his peers and supervision, the inspection report referred to the fact that the NRC had recommended that these issues be presepted to DOL by Ellison, and indicated that, therefore, further NRC action !
26 Combined Inspection Nos. 50-220/86-17; 50-410/86-61 Inspection Report (issued on January 22, 1987) at 1.
17 would be dependent upon DOL action and NRC review of the licensee's-final investigation report.27 OI's Investigation Status Record indicates that, over the course of the next few months, OI was awaiting completion of the investigation by the licensee's security organization, and that the expected completion date of this investigation was extended several times.28 Collins stated that, during this time, Ellison continued to keep the Region informed as.to his situation, and, in so doing, raised issues regarding his treatment by his management. Primarily,
=. according to Collins, these involved allegations that 6.
Ellison had been reassigned to another position and had been denied access to the site. Collins stated that, in his view, none of these additional complaints amounted to Id. at 47-48.
28 During this period, several events occurred. On February 5, 1987, Matakas and White met with the licensee's investigators to obtain an update on the status of the investigation. In addition, on February 19, 1987, an enforcement conference was held by the Region staff with the licensee to discuss the apparent violations which were identified during inspections which included the August special inspection. A Notice of Violation and Proposed Imposition of Civil Penalty assessing a civil penalty of
$50,000 was issued to Niagara Mohawk on April 29, 1987.
(Ellison was sent a copy of this enforcement action by letter dated August 9, 1988.)
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18 allegations of intimidation and harassment, and OI was not asked to do anything on that score.
On March 18, 1987, Ellison filed a complaint with DOL.
It made reference to the original concerns that he had presented to the NRC and, additionally, recited various !
other alleged instances of harassment on the part of both fellow workers and supervisors following his reassignment to the Meter and Test Department in August 1986. These actions included his reassignment and denial of access to the nuclear site. On April 21, Ellison signed a settlement ,
,, agreement whereby he received $25,000 from Niagara Mohawk and agreed to deliver to Niagara Mohawk his letter of resignation and a release relieving Niagara Mohawk and its employees from any further liability.
29 Collins Report of Interview. As alleged in a complaint filed with DOL in March of 1987, Ellison had been put on a paid leave of absence by the licensee on July 17, 1986, pending completion of the licensee's investigation into his allegations. On August 15, he was informed that he could return to the site as an I&C Technician, or take a new position. Ellison chose to take a new position in the Meter and Test Department offsite. Accordingly, he was assigned to this position. Subsequently, in January of 1987, he was denied access to the nuclear site by company security investigators. According to Collins, Ellison's complaints involved his reassignment and the denial of access to the site, but Collins felt that as Ellison had chosen to be reassigned to an offsite position, and because he had been informed of his DOL rights, these actions did not amount to harassment and intimidation.
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19 According to OI's Investigation Status Record, on May.
15, 1987, the licensee's investigators advised Niagara Mohawk that the investigation was complete and ready for NRC L review. From June until November, Matakas reviewed the licensee's final investigative report (hereinafter
" Supplemental Report").30 Initially, the licensee sent a.
" sanitized" version of this report, in which some names had been blotted out because of the licensee's concern with-privacy. White stated that he forwarded this report to Headquarters and that Fortuna examined it.
4 By' letter dated August 17, the licensee sent Matakas an
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unexpurgated copy of the Supplemental Report.32 Both the Interim Report and Supplemental Report were sent to an Assistant United States Attorney in Syracuse. This was done at the direction of Fortuna, who discussed the matter with the Assistant United States Attorney. According to 30 Collins stated that Meyer also reviewed the report.
Collins Report of Interview.
31 White Transcript at 74-75.
2 Letter from Joseph P. Beratta, Supervisor, Nuclear Security, to Richard A. Matakas, forwarding " Supplemental Report to ' Confidential Investigation Douglas S. Ellison Nine Mile Point Unit #1.'"
33 OI's files do not indicate whether the unexpurgated or original redacted version of the Supplemental Report was sent to the Assistant United States Attorney's Office, or exactly when this report was sent. According to Collins, the redacted version was sent. Collins Report of Interview.
20 Fortuna, this was not a formal " referral". Rather, OI occasionally would send a report that was not OI's work product to the local United States Attorney if, in its view, this was warranted in the circumstances.34 White indicated that Fortuna suggested that the report should be sent to the particular Assistant United States Attorney in Syracuse because Fortuna knew that person, and because there were no established procedures for referring a licensee's report directly to the Department of Justice.35 The licensee's Supplemental Report concluded anew that 4 some of Ellison's specific allegations were substantiated, 4.
but that at no time did Nine~ Mile Point Unit 1 ever operate in an unsafe condition. It further concluded that, although some procedures were not strictly followed, the overall safe operation of the plant was not affected as a result.36 Ellison's allegation of harassment was set forth in the Supplemental Report essentially as it had appeared in the Region's list of allegations. The report's findings with i
regard to this allegation were as follows: I I
As related in the original NMPC Security I Report, Douglas Ellison has never alleged harassment to the NMPC Security Department and has consistently refused to discuss it 34 Fortuna Transcript at 64-67.
35 White Transcript at 78.
6 Supplemental Report at IV.
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21 with NMPC. Mr. Ellison also denied th L
ever alleged harassment to the NRC....gy he i
Matakas stated that, as a result of his review, the investigation appeared to be satisfactory and that he had so advised'the Region staff. -He indicated to us in his interview, however, that he would have expected more effort on the part of the licensee.38 OI's Investigation Status report indicates that the priority of the case was subsequently changed to." low" byL the Region staff. That report'also indicates that, each month between January and June 1988, Matakas contacted
, Assistant United States Attorney Joseph Pavone in Syracuse to determine his disposition of the matter, and was told repeatedly by Pavone that he had not completed his review of the licensee's investigation. According to OI's records, when contacted on June 29 Pavone stated that his office would contact OI when a prosecutorial decision was made.
Accordingly, Matakas administratively closed the case 37 The report also included the fact that Id. at 47.
the licensee had received notification from DOL that Ellison had filed harassment charges, and that the licensee had entered into a settlement agreement with Ellison resolving his accusation'of harassment.
38 Matakas Report of Interview.
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22 on July 14, 1988. By memorandum dated July 14, 1988,_ White forwarded OI's Investigations Report of Inquiry on this matter to the Regional Administrator.39 c
- - 39 During our investigation, we made a deliberate d< cision not to interview Ellison further. This decision was prompted by the fact there is sufficient doubt as to Ellison's credibility as a witness. This was borne out through our comparison of Ellison's perceptions of conversations which he had taped and the actual conversations on several of these tapes. See footnote 10, supra. See also, e.g., (1) Ellisons interpretation of a phone conversation between Collins and Ellison which in Ellison's view was intended to " intimidate" him. Transcript of Ellison interview by OIA on September 2, 1988, at 26 (our review of this tape (Ellison Tape No. 22) disclosed that Collins was courteous and professional during this conversation, and did not exhibit any behavior which could be construed as being intimidating); (2) Ellison's perception arising out of a phone conversation with White that White was instructed by Hayes to call him in response to a letter Ellison wrote to Hayes because Hayes " felt apparently uncomfortable and was unwilling to answer my letter. And footballed it over to the Office of Inspector and Auditor to get rid of it, and directed Chester to call me...." Transcript of Ellison interview by OIA on September 2, 1988, at 14 ( cf. White's explanation during the conversation to Elfison that Hayes probably told White to call Ellison because the matter fell in White's jurisdiction as Director of' Investigations in Region I, and Hayes probably felt that White knew more about the situation than Hayes knew. Ellison Tape No. 10),
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23 Analysis
- 1. Fortuna. As the Statement of Facts discloses, Fortuna played a very limited role in the consideration of Ellison's allegations respecting misconduct on the part of Niagara Mohawk employees at Nine Mile Point. More specifically, Fortuna's involvement was confined to (1) his
" reluctant" ao'eement with the decision of OI Region I Field Director White not to initiate an investigation of those allegations; and (2) his taking steps to place the 4 licensee's reports of its own investigation in the hands of A
an Assistant United States Attorney in Syracuse (having orally discussed the matter with that individual).
On neither score is there any room for charging Fortuna with either misconduct or dereliction of duty. Although he may well have had the authority to overrule White's decision and to direct the Field Office to institute its own investigation of the Ellison allegations, he can scarcely be faulted for not exercising that authority. To the contrary, in the totality of circumstances there was a rational basis for acceding -- albeit without enthusiasm --to the White view that OI should confine itself (at least at the outset) to the monitoring of the licensee's investigation. Among other things, the Region staff had elected not to call upon OI to undertake an independent investigation -- a factor I
that Fortuna could appropriately take into consideration in
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24 evaluating the White decision. In addition, there is 4
nothing'to suggest that Fortuna then had reason to question; White's. judgment that the licensee's investigation would be competently conducted and that, therefore, OI resources would be4 better employed elsewhere.
Similarly,-Fortuna's insistence that the. licensee's investigation reports be sent to the Assistant United States Attorney is beyond reproach. Whether or not that step was mandated, it certainly came well within the bounds of Fortuna's discretion and occasioned no harm.
4 The cuestion remains: should Fortuna have assumed a larger part in the OI handling of the Ellison allegations?
The short' answer is that, while in his capacity as Deputy OI Director Fortuna had oversight responsibilities with respect to field operations, there is no evidence here to suggest that those responsibilities necessitated his more extensive
. review of the actions that were being taken by the Pegion I field office. This is particularly so given the fact that OI had not been asked to conduct, and was not conducting, an independent investigation.
- 2. Other OI personnel. I turn now to the matter of whether there is any evidence cf misconduct or dereliction of duty on the part of persons in OI other than Fortuna in the handling of the Ellison allegations pertaining to Niagara Mohawk employees at Nine Mile Point. In addressing that question, I have adopted two premises: First, OI
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25 necessarily must be deemed to have considerable latitude in determining the extent, if any, to which it will inquire into particular allegations of licensee wrongdoing. Second, judgments reached by OI during the course of its-consideration of such allegations should not be open to criticism on this type of investigation unless the judgment
.ias so patently unjustified as to suggest serious deficiencies in OI's understanding of its responsibilities or in the mcaner in which those responsibilities are carried out. Stated otherwise, it is one thing to take issue with 4 OI investigative decisions of relatively ancient vintage on.
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the basis that some other course of action would have been more appropriate; it is quite another thing to elevate that disagreement to a finding of misconduct or dereliction of duty that might possibly warrant the imposition of a significant sanction.
Measured against these standards, the-manner in which OI dealt with the allegations presented by Ellison in 1986 appears to pass muster. The principal OI decision was, of course, the election by White simply to monitor the licensee's investigation of the allegations in lieu of instituting an independent investigation. I have already noted my belief that, in the circumstances, Fortuna cannot be taken to task for not overruling White. It follows that, even though he might well have reached a different conclusion on the independent investigation matter, White is
s, .
26 similarly not subject to criticism for making the choice he did.
In this connection, as previously observed, the White decision accorded with the thinking of the Region staff on the appropriate role for OI in the handling of the Ellison allegations. Although OI was nonetheless free to' disregard that' thinking, OI investigator Matakas pointed out that OI rarely self-initiates an investigation. To the contrary, his experience has left him with the impression that, as a general matter, the Executive Director for Operations and 4 the. Region staff exercise control over whether OI should c
conduct its own investigation or simply review the licensee's investigation. This general perception is shared by the interviewed OI officials (Hayes, Hutchison and White) and, additionally, does not appear to have been unreasonable.
With the possible exception of the disposition of the harassment and intimidation allegation,40 OI seems to have carried out its limited monitoring and review function satisfactorily. Moreover, subject to.the same possible exception, the Region's treatment of Ellison's assertions does not appear flawed. -
40 For convenience, the allegation will henceforth be referred to as the " harassment allegation."
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l Insofar as the harassment allegation is concerned, it is apparent that both OI and the Region became aware of it.
no later than the July 22, 1986, interview of Ellison and that Ellison produced at that meeting some documentation of his claims on that score. It is equally apparent that neither the licensee nor Region staff /OI pursued the matter very vigorously.
As noted in the Statement of Facts, the licensee's Interim Report dismissed Ellison's complaint as reflecting simply problems in his personal relationships with
& co-workers, problems said to stem from his personal habits q 6.
and unusual conduct. Moreover, according to the Report, Ellison had never alleged to the licensee's Security Department that he had been harassed or discriminated against because of his participation in protected activities. In its Supplemental Report, the licensee repeated this statement with the notation that Ellison had consistently refused to discuss the harassment matter with it. . In addition, that report stated that Ellison had denied that he had put a harassment allegation before the NRC.
Matakas was fully aware that, in fact, Ellison had raised harassment concerns at the July 22 interview (in wh4.ch Matakas participated) and was equally aware that those concerns were embodied in one of the 14 Ellison allegations that were subsequently identified by the Region (with the seeming involvement of Matakas). In that circumstance,
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- e-28 Matakas might well have' explored with the licensee the statement that Ellison had not complained to the NRC about harassment. He'also might have inquired into whether
! Ellison had complained of, harassment to instrumentalities of the licensee other than the Security Department. On this score, the file contains a tape of a conversation between Ellison_and licensee Vice-President Lempges, in which Ellison specifically referred to being harassed by peers and supervisors alike.
There is yet another reason why Matakas might have been expected to probe the representations in the Interim and
+.
Supplemental Reports to the effect that Ellison had not complained to the licensee (or at least its Security Department) about harassment. According to what he told us, Matakas had been informed at some point by the licensee that its choice not to pursue Ellison's harassment allegation was in conformity with Ellison's wishes. This statement by the licensee could hardly be squared with its representations that it had no such allegation in front of it. Further, before giving effect to any claim of the licensee -- written or oral -- with respect to Elliuon's wishes, Matakas should have sought confirmation from Ellison himself.
Despite these shortcomings in confronting the licensee's treatment of the harassment matter, there is good reason why neither the Region nor OI instituted an l
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independent inquiry into the Ellison allegation.- Ellison was orally advised by the Region on July 31, 1986, with'a written confirmation on August.18, 1986, that the Department of Labor was the appropriate. forum for the consideration of the matter of his alleged harassment by his supervisor and that he should present his complaint to it.
For reasons of his own, Ellison did not accept this advice; i.e., within the thirty-day statutory period he did not file a DOL complaint with regard to the instances of alleged harassment that he had presented to the Region and-
,,, OI. Apparently, this fact did not come to the attention of the Region staff. It seems tha'; the Region proceeded on the assumption that Ellison had filed a' complaint with-DOL and therefore awaited a DOL disposition (as well as the licensee's investigation report) before considering any action of its own.
Some seven months later, in March 1987, Ellison did file a complaint with DOL. But that complaint was never adjudicated because the following month he entered into a p
settlement agreement with the licensee.
The OI and Region personnel we interviewed were in agreement that, if a harassment complaint is filed with DOL, it is appropriate for the NRC to await and then be guided (even though not bound) by any conclusions errived at by that Department on the merits of the complaint. I share that belief. But the question remains, of course, as to how
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l' 30 harassment allegations should be addressed within this-agency in circumstances where, as here, DOL does not pass upon those allegations because either no complaint is filed with it or a settlement is reached before the complaint is adjudicated.
No matter how one might answer that question, it does not appear that OI can be faulted for failing to pursue independently Ellison's harassment allegation. It was the Region that called upon Ellison to present his grievance to DOL and, thus, it was the Region that should have undertaken
- s. to ascertain whether Ellison had done so. For its part, in n ..
the absence of contrary word *from the Region, OI could reasonably have assumed that the harassment matter was pending before DOL and that, therefore, it need not take any action itself. To be sure, Matakas presumably learned at some point of Ellison's March 1987 filing of a DOL complaint and the settlement reached the following month. But, given ;
the lead role that the Region had assumed in the processing of the Ellison concerns, he could reasonably have waited for an indication from Region officials that, notwithstanding the settlement, a further inquiry into the harassment matter was warranted.
This is not to imply a belief that the Region was obliged to request OI to investigate the harassment allegation. It may or may not be that Ellison conveyed through words the impression that he did not desire NRC to
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31 pursue that allegation. In any event, h e failure to pursue
'his DOL remedy in August 1986, coupled with his settlement with the licensee the following Spring, gives a hollow ring to any claim by Ellison that the' Region breached'some duty" owed to him personally. The'short of the matter is that, if Ellison did not take his harassment allegation seriously enough to seek DOL relief in August 1986, there is no compelling reason why, for his benefit, the Region would have been obliged to move forward on the allegation had it discove'ed that no complaint was filed. By the same token,
=. the settlement of the DOL complaint that surfaced'in 1987 4.
certainly brought an end to any obligation to Ellison to institute an NRC investigation of the allegation contained in that complair.t.
The fact that the alleger may elect to forego his or her DOL administrative remedy does not necessarily mean, however, that no cause exists for investigation of a harassment allegation in the public interest. It is possible, for example, that the allegation may suggest that the facility management is engaged in,a widespread and ,
concerted effort to discourage employees from bringing safety concerns to the attention of- resident inspectors er other NRC officials. Confronted with a situation of that stripe, with its manifest public health and safety implications, an NRC investigation no doubt would be in order whether or not the employee invoked the DOL remedy.
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But that is not this case. I find nothing in the record to.
suggest that Ellison's harassment allegation had such broad dimensions as would have mandated (ac opposed to having simply permitted) an OI investigation (presumably at the direction of the Region) no matter what Ellison himself did-with regard to DOL.
In sum, the Ellison harassment allegation might have been handled more cleanly by both the Region and OI. The Region should have ascertained whether Ellison had filed a DOL complaint in August 1986; Matakas, the OI investigator, 4 should have questioned the licensee's statement regarding Ellison's desire not to have ithe allegation pursued by it.
I do not believe, however, that these deficiencies produced a mishandling of the allegation of a magnitude justifying I
formal censure (let alone the imposition of a sanction).
It nonetheless might be advisable to direct both the Regional Administrators and the OI Director to review existing procedures with regard to the handling of harassment allegations to insure that (1) the filing and status of DOL complaints are tracked; and (2) there is a full understanding on the part of all concerned respecting the treatment of the allegations should DOL consideration either not be sought or be terminated short of a determination on the merits. There is some indication in the record that procedures designed to achieve these ends !
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33 are in place. It is less clear whether they are proving adequate in practice.
There is one other matter that bears mention.
According to Mr. Hayes, OI does-not have procedures in place for reporting to an alleger the outcome of an investigation of (or inquiry into) his or her allegations.41 Mr. Hayes went on to observe that, depending on the situation at the conclusion of the investigation or inquiry, OI might or might not provide such information to the alleger upon his or her request.42-1 In these circumstances, it is not surprising that, when 6.
OI closed its inquiry into his allegations in July 1988, Ellison was not informed of that fact. Insofar as the Region's inquiry is concerned, it does not appear that that inquiry has ever been officially closed. (This is possibly because the Assistant United States Attorney in Syracuse has not as yet advised the NRC that he has no further interest in the matter.) The file does indicate, however, that, from time to time, the Region has provided some status information to Ellison. See, for example, the August 9, 1988 letter to him from Jon R. Johnson, a Region official.
I Hayes Transcript at 52-53.
42 If there was the possibility of a Id. at 53.
criminal prosecution or pending enforcement issues, the !
alleger's request would likely be denied. Ibid.
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5-34 I believe that, as a general matter at least, allegers are entitled to be informed of the ultimate disposition of their allegations. If the Commission considers there to be possible merit in that belief, it may wish to call upon the OI Director and the Regional Administrators to supply their own views on the subject. The Commission may also wish to explore with the Regional Administrators the question as to when it is appropriate to bring a long drawn out inquiry (such as that into the Ellison allegations) to an official close. In this connection, it is not my impression that 4 Region I has been actively dealing with the Ellison t.
allegations in recent times.
For the foregoing reasons, I recommend a finding that there was no misconduct or dereliction of duty upon the part of Office of Investigations personnel, including Fortuna, in the treatment of the Ellison allegations presented to the NRC in 1986.
g ,$ YvLMv bk Alan S. Rosenthal May 2, 1989
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35 APPENDIX Material in Investigative Eile Referenced or Otherwise Relied Upon in this Report STENOGRAPHIC TRANSCRIPTS OF INTERVIEW Benny Bill Hayes (March 15, 1989)
Chester W. White (March 20, 1989)
William D. Hutchison (March 22, 1989)
Roger Anthony Fortuna (March 22, 1969)
REPORTS OF INTERVIEW (!!OT STENOGRAPHICALLY TRANSCRIBED) ;
Daniel John Holody, Jr. (March 23, 1989)
Richard Alan Matakas (March 23, 1989)
Samuel J. Collins (March 24, 1989)
DOCUMENTS Allegation Receipt Report (stamped July 14, 1986)
Transcript of Ellison July 22, 1986 Interview.
OI file copy of " Allegation Panel Decisions" with
" Allegation Description" attached (stamped August 15, 1986).
Letter dated August 11, 1986, to Niagara Mohawk from William F. Kane, Director, Divison of Reactor Projects, forwarding Summary of Allegations.
Letter to William Kane, Director, Division of Reactor Projects, from C. V. Mangan, Senior Vice President, Niagara Mohawk, dated August 15, 1986, forwarding " Summary Report of Niagara Mohawk Power Corporation's Investigation cf l
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} A copy of this material is being furnished to the Chairman's office.
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e 36 Allegations by Nine Mile Point Unit 1 Instrument and Control Technician" and Summary (" Interim") Report pp. 3; 36.
Letter to Ellison (alleger's name and address removed) dated August 18, 1986, from J. C. Linville, Jr., Chief, Reactor Projects Section 2C, Division of Reactor Projects.
Inspection Report for Combined Inspection Nos. 50-220/86-17; 50-410/86-61 dated January 22, 1987, pp. 1; 3; 47-48.
Ellison Complaint for Relief filed with Department of Labor March 18, 1987. (with attachments)
Settlement Agreement between Ellison and Niagara Mohawk dated April 21, 1987.
Letter from Joseph P. Beratta, Supervisor, Nuclear Security, ;
to Richard A. Matakas, forwarding " Supplemental Report to
' Confidential Investigation Douglas S. Ellison Nine Mile Point Unit #1'" dated August 17, 1987, and Supplemental Report pp. IV; 47.
Memorandum for William T. Russell, Regional Administrator, i Region I, from White dated July 14, 1988, forwarding OI's Report of Inquiry, with Report (without attached Inspection Report).
1 I
OI's Investigation Status Record (undated)
Letter to Ellison dated August 9, 1988, from Jon R. Johnson, Chief, Reactor Projects Section 2C, with Notice of Violation and Proposed Imposition of Civil Penalty dated April 29, 1987. ;
Transcript of Ellison Interview by OIA on September 2, 1988, pp. 14; 24-26.
I TAPES OF RECORDED CONVERSATIONS (PERTINENT PAGES OF TRANSCRIPTS)
Tape No. 10 - Conversation between Ellison and White (January 2, 1987).
Tape No. 14 - Conversation between Ellison and Marschall '
(July 14, 1986).
Tape No. 18 - Conversation between Ellison and James (June 6, 1986).
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Tape No.'19 - Conversation between Ellison and Lempges (July" 14, 1986).
Tape No. 22 - Conversation between1Ellison and Collins (September 24, 1986) (transcript not provided).
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