ML20247M873
| ML20247M873 | |
| Person / Time | |
|---|---|
| Site: | 07001113 |
| Issue date: | 05/26/1989 |
| From: | Lees E GENERAL ELECTRIC CO. |
| To: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| References | |
| EA-88-302, NUDOCS 8906050181 | |
| Download: ML20247M873 (11) | |
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GE Nuclear Energy Nudw fuel & Components Manufactunny General Electnc Company
.l PQ Bax 180. Wammgton, NC 2840:
l 919 675 5000
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May 26, 1989 Mr. James Lieberman, Director xOffice of Enforcement.
.U.S.
Nuclear Regulatory Commission.
. Attn:
' Document Control Desk Washington,.D.C. -20555
Dear Mr. Lieberman:
. On. March 13, 1989, the Nuclear' Regulatory Commission-(NRC) issued a Notice of Violation and Proposed Imposition of Civil Penalty.- (EA.88-302) to the General Electric. Company (General-
. Electric).
That Notice was based on an initial decision of an A' administrative' Law Judge (ALJ) for the Department of Labor.(DOL).
concerning an allegation of discriminatory discharge by Ms. Vera English.'
The Notice. proposes to impose a civil penalty on General
. Electric in the amount of $20,000.
Attachment A to this letter provides General Electric's reply to the Notice of Violation and Attachment B provides General Electric's-answer to the Civil Penalty.
In Attachment'A, General Electric disputes that the facts are as described in the Notice of Violation and that the layoff of Ms. English constit'utes.a violation of NRC regulations or section 210 of the Energy Reorganization Act.
Ms. English was-placed on probation'for deliberately leaving contamination in the Chemet Laboratory over the weekend of March 9, 1984, and informing her t, g~ <
supervisor-that she had no intention of cleaning.up the radiological contamination.
She was removed from v aking in the laboratory and placed in a temporary assignment in a non-do '
controlled area in order to protect her and her fellow workers
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from the hazards that could be created from future violations ~of 10 0
' safety procedures.
Although Ms. English was ultimately laid off M'
because she was unable to locate a permanent assignment at General
- GO Electric after this incident, she has never been discriminated
- -x against for bringing safety concerns to either General Electric
'3o management or the NRC Staff.
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i Mr. James Lieberman May 26, 1989 Page 2 As noted in the attached response, General Electric has a multi-tiered program in place which provides several avenues for employees to raise safety concerns and ensures that there is no discrimination against an employee who raises safety concerns.
A recent NRC programmatic inspection of thr se activities has concluded that "[e]mployees did not express a fear of reprisal or even hesitation" in raising safety or personnel concerns.
1/
Furthermore, in the recent Director's Decision on a 10 C.F.R.
S 2.206 petition initiated by Ms. English against General Electric, the NRC Staff stated that "the Licensee has taken adequate corrective action" to ensure that there is no chilling effect on employees who might raise safety concerns.
2/
Under these circumstances, General Electric does not believe that any civil penalty should be imposed.
Moreover, we do not believe that Ms. English's temporary assignment and her subsequent layoff constituted either discrete actions subject to section 210 of the Energy Reorganization Act or continuing violations of the Commission's regulations.
3/
Ms. English was not subject to an abusive or hostile work environment while in her temporary assignment at Building J.
She was treated like any other employee on temporary assignment and placed in an alternate position and given continued employment at her current level of salary.
Accordingly, none of the separate and distinct actions that followed her removal from the Chemet Laboratory were discriminatory or in any way constituted either continuing or separate violations of section 210 of the Energy Reorganization Act.
1/
NRC Inspection Report No. 70-1113/88-05 at 2 (Apr. 18, 1988).
2/
General Electric Co.,
(Wilmington, North Carolina facility),
l DD 89-01, slip op. at 14-15, 17 (Mar. 13, 1989).
3/
If we assume Ms. English's removal from the lab violated section 210, her temporary assignment and subsequent lay-off are only the effects of the removal from the lab and were not, as a matter of law, discriminatory actions under section 210.
Goldman v. Sears, Roebuck & Co.,
607 F.2d 1014, 1018 (1st Cir.
1979); see also Deleware State College v. Ricks, 449 U.S.
- 250, 258 (1980); Velazquez v. Chardon, 736 F.2d 831 (1st Cir.
1984).
Mr. James Lieberman May 26, 1989 Page 3 I
Consequently, General Electric does not believe that imposition of a civil penalty is warranted (see Attachment B).
Nonetheless, in order to avoid further protracted proceedings, we are enclosing a check for $20,000 in payment of the proposed Civil i
Penalty.
Should you have any questions concerning this response, please contact me.
Sincerely, GE NUCLEAR ENERGY fw G Arv Eugene A.
Lees, Manager Nuclear Fuel and Components Manufacturing General Electric Company.
Post Office Box 780, M/C A-20 Wilmington, N.C.
28402 l
/sbm Enclosure cc:
Regional Administrator, Region II
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- State of North Carolina ~
County of-New Hanover-l Eugene A.
Lees, being first' duly sworn,. deposes and says:
- I am the Manager, Nuclear Fuel and Components Manufacturing,.for.
the General Electric Company.
The foregoing Response to-Notice of Violation and Proposed Imposition of' Civil. Penalty (General
- Electric letter designation) and the attached Reply to Notice of_
l Violation (Attachment A)and Answer to Proposed ImpositionLof Civil Penalty (Attachment B), were prepared under my supervision and direc' tion.
I know'the contents thereof, and tothe'best of my knowledge and belief the facts contained therein are.true and
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correct.
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Eugene A.
Lees l
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i Dated May 26, 1989 Subscribed and sworn to before me this 26th day.of May 1989
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'Mr. James Lieberman May 26, 1989 Page 1 of 6 ATTACHMENT A GENERAL ELECTRIC COMPANY'S REPLY TO NOTICE OF VIOLATION (EA 88-302)
The.NRC issued a Notice of Violation (EA 88-302) on March 13, 1989, premised solely on a 1985 Decision and Order issued by an Administrative Law Judge (ALJ) of the Department of Labor (DOL)
I (Case No. 85-ERA-002), finding that GE had violated 10 C.F.R. 6 70.7 in its treatment of its employee, Ms. Vera English.
General' Electric's reply to the Notice of Violation is pursuant to 10 C.F.R.
S 2.201 and organized into five parts corresponding to each of the specific issues which is required to be addressed under that regulation.
I.
Admission or Denial'of the Violation General Electric does not believe that its action constitutes a violation of the NRC regulations or federal law.
Therefore, the violation is denied.
On Friday night, March 9, 1984, while employed as a technician for General Electric, Ms. English found radioactive contamination on a table in the Chemet Laboratory at General Electric's Wilmington, North Carolina, fuel manufacturing facility.
Although Ms. English knew that no supervisor.would be present until Sunday night and that her actions would result in a violation of laboratory safety procedures, she deliberately left the contamination in place.
Ms. English claims to have taken these actions in an attempt to prove that General Electric management as well as other workers in the lab were lax about safety matters.
However, her deliberate violation of laboratory safety procedures endangered her own health and safety and the health and safety of other employees.
On Sunday night, March 11, she disclosed the radioactive contamination that she had left in the laboratory to her supervisor and advised him that she did not intend to clean it up.
The supervisor reported her to company officials who met with Ms.
English on March 16, 1984.
During the meeting she admitted (and has not denied during subsequent questioning before the DOL and the NRC) that she deliberately left the contaminated spill in the
4 e
Mr. James Lieberman May 26, 1989 Attachment A Page 2 of 6 laboratory.
As a result of the meeting, she was placed on probation 1/ and received a five day disciplinary suspension 2/
for willful disregard of radiological safety standards.
Ms.
English was removed from the laboratory and prevented from working in other controlled areas in order to protect Ms. English and fellow employees-from further safety violations.
She was also placed in a temporary assignment at Building J.
Pursuant to established General Electric procedures, Ms.
English appealed that decision to the General Manager of the Wilmington facility.
On May 15, 1984, the General Manager decided that Ms. English's admitted knowing and intentional failure to clean up a spill of radioactive material was a violation of the Wilmington facility's health and safety standards.
Ms. Englich's temporary assignment was established as a 90-day period, during which time she was given the opportunity to locate a permanent position at General Electric's Wilmington facility.
Ms.
English failed to locate another position and was laid off the active payroll on July 30, 1984.
General Electric did not discriminate against Ms. English for reporting safety problems to General Electric management or the NRC.
Ms. English was placed on probation for a deliberate act which violated General Electric safety procedures, caused a violation of a license condition for the Wilmington facility, and endangered the health and safety of herself and fellow workers.
Ms. English's actions are not protected by section.210 of the Energy Reorganization Act or the Commission's regulations.
In fact, Ms. English's activities have been explicitly exempted from 10 C.F.R. 9 70.7 which states:
This section has no application to any employee alleging discrimination prohibited by this section who, acting without direction from his or her employer (or the employer's agent), deliberately 1/
Ms. English initially received twelve months of probation.
However, her probationary period was later reduced to six months as a result of her appeal to the General Manager of the Wilmington facility.
2/
The actual unpaid time off, but.not the active discipline, was waived, i
Mr. James Lieberman May 26, 1989 Attachment A Page 3 of 6 causes a violation of any requirement of the... Atomic Energy Act of 1954, as amended.
10 C.F.R. 9 70.7 (a) (3) (1988).
Because Ms. English's actions violated a safety standard imposed by the NRC, her acts were not protected by 10 C.F.R. 9 70.7.
Consequently, General Electric does not consider the events described in EA 88-302 to be a violation of 10 C.F.R. 9 70.7.
3/
In imposing the Civi] Penalty, the NRC Staff relied entirely upon an initial decision of an ALJ from the DOL.
This decision was not adopted by the Secretary of Labor, has no legal significance, and should not form the basis of a violation o:
civil penalty against General Electric.
The ALJ's decision Was flawed by a number of erroneous factual and legal conclusions.
Furthermore, the ALJ's decision is narrowly focused on employrant relations with Ms. English.
The ALJ's decision fails to censider concerns about the safety of other employees or the need to protect the public health and safety.
Ms. English was removed in order to protect herself and other workers from radiation hazards.
General Electric's acts were clearly in the interest of %.uclear safety and do not constitute a violation of the Commission's regulations.
II.
Reasons for the Condition Described The removal of Ms. English from the Chemet Laboratory, her probation, her temporary reassignment, and her ultimn.te layoff were all the direct result of Ms. English's admitted intentional violation of radiation safety procedures.
III.
Steps Taken to Correct the Problem and Results Achieved Ms. English was removed from the Chemet Laboratory to ensure her safety and that of fellow workers.
Mr. English was placed on probation to emphasize the need to corply with General Electric safety procedures and to ensure that future violations not occur.
General Electric promptly and thortaghly reviewed and 3/
10 C.F.R. 9 70.7 prohibits discrimination against employees for engaging in activities protected under section 210 of the Energy Reorganization Act of 1974.
Furthermore, the provisions in 9 70.7 (a) mirror section 210(g) of the Energy Reorganization Act and remove protection for whistleblowers who deliberately cause a violation of the requirements of the Atomic Energy Act.
See 42 U.S.C.
9 5951(g) (1982).
i 4
Mr. James Lieberman May 26, 1989 Attachment A Page 4 of 6 addressed all of Ms. English's safety allegations.
On August 29, 1986, the Director of the Office of Inspection and Enforcement issued a " Partial Director's Decision Pursuant To 10 C.F.R. 6 2.206" denying in part a petition by Ms. English questioning the accuracy of NRC inspection reports and alleging violations by General Electric of NRC regulations at the Wilmington facility. 4/
Most of the allegations that Ms. English raised were found to be without any factual substance whatsoever and those that could be substantiated were found not to present any health and safety concerns.
This mirrors the conclusions reached by General Electric's earlier safety investigation.
IV.
Corrective Steps to Avoid Future Violations General Electric has in place a multi-tiered program which provides several avenues for employees to raise safety concerns and ensures that there is no discrimination against employees who raise safety concerns.
A recent NRC programmatic inspection of these activities was conducted on March 28-30, 1988, and concluded that "[e]mployees did not express a fear of reprisal or even hesitation" in raising safety or personnel concerns.
5/
Furthermore, in the recent Director's Decision on a 10 C.F.R. 9 2.206 petition initiated by Ms. English against General Electric, the Deputy Executive Director for Nuclear Materials Safety, Safeguards and Operations Support stated "the Licensee has taken adequate corrective action" to ensure that there is no chilling effect on employees that might raise safety concerns.
6/
General Electric's program for receiving and evaluating employee concerns includes:
Formal training on nuclear safety for new hires and advanced training courses on nuclear safety requirements for non-routine operations and other specialized activities; 4/
General Electric Co. (Wilmington, North Carolina Facility),
DD-86-11, 24 NRC 325 (1986).
5/
NRC Inspection Report No. 70-1113/88-05 at 2 (Apr. 18, 1988).
6/
General Electric Co.,
(Wilmington, North Carolina facility),
DD-89-01, slip op. at 14-15, 17 (Mar. 13, 1989)
Mr. James Lieberman May 26, 1989 Attachment A Page 5 of 6 Procedures, Process Requirements and Operating Documents (PRODS) that communicate nuclear safety requirements to plant workers; Multiple safety review committees to critique criticality, radiation, industrial and environmental safety practices; Support organizations (such as the Radiation Protection, Nuclear Safety Engineering, Environmental Protection and Industrial Safety groups) that ensure employee protection and compliance with NRC regulations.
The area managers and supervisors in these groups serve as focal points for the collection, evaluation, and communication of employee concerns to upper level managers; Monthly employee "round tables" where employees are allowed to raise safety concerns and periodic
" skip-level" staff meetings where employees meet with the supervisors of their immediate managers; Unusual incident investigation and reports.
These investigations include identification of root causes, trends, and actions to prevent recurrence.
Any employee may identify a situation which is subject to investigation; Monthly status reports initiated by the Regulatory Compliance Group and communicated to the manager, Nuclear Fuel and Components Manufacturing (NF&CM) and his staff.
These reports are used to track the status of identified non-conformances and open items resulting from internal audits, reviews and inspections; A confidential procedure that allows employees to appeal the substantive resolution of their concerns; A " Peer Review Procedure" for reviewing employee concerns.
The process allows an employee to choose to have his or her appeal heard by a five-member panel, including three peer employees selected from a pool of qualified personnel, that is given the responsibility to evaluate employee concerns.
The decision from this process is considered final; and 1
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4 Mr. James Lieberman May 26, 1989 Attachment A Page 6 of 6 An "open door policy" whereby any employee may discuss any issue of concern with any level manager or employee relations personnel.
V.
Date When Full Compliance Will Be Achieved General Electric is in full compliance.
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Mr. James Lieberman May 26, 1989 Page 1 of 1 ATTACHMENT B GENERAL ELECTRIC COMPANY'S ANSWER TO PROPOSED IMPOSITION OF CIVIL PENALTY (EA 88-320)
The Notice of Violation and Proposed Imposition of a Civil Penalty describes a single Severity Level II Violation (Supplement VII) and imposes a $20,000 Civil Penalty.
The transmittal letter for the Notice of Violation and Proposed Civil Penalty stated:
In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions," 10 CFR Part 2, Appendix C, (1984), which was the Policy in effect.at the time'of the violation (Enforcement Policy), the violation has been categorized at a Severity Level II violation.
A civil penalty of
$20,000, the base civil penalty for a Severity Level II violation at the time the discrimination occurred, is being proposed.
The violation is categorized at a Severity Level.II because plant
-management was involved in the discrimination derfalon.
The escalation and mitigation factors in the Enforcement Policy were considered and no adjustment has been deemed appropriate.
General Electric disputes the factual and legal basis supporting the NRC's imposition of a civil penalty.
As was demonstrated by General Electric's reply to the Notice of Violation, there was no discrimination against Ms.
English for raising safety concerns.
She was placed on probation for an admitted deliberate violation of laboratory safety procedures.
Ms. English was removed from the laboratory and prevented ^from working in controlled areas to protect herself and other workers from her further violations of the safety procedures and the hazards that are created by violations.
Ms. English was unable to find a permanent position with General Electric while on temporary assignment.
Ms. English was not disciplined or otherwise discriminated against for raising safety concerns.
General Electric took appropriate actions in response to the safety hazards Ms. English intentionally created.
General Electric denies the violation listed in this notice.
Accordingly, l
General Electric does not believe a civil penalty is warranted.
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