ML20096H343

Responds to NRC 951212 & s to Suppl Util Re DOL Decision & Remand Order of 951120,addressing Concern Re Potential Chilling Effect Associated W/ Termination of a Mosbaugh & Issuance of DOL Findings

ML20096H343
Person / Time
Site:	Vogtle
Issue date:	01/19/1996
From:	Hairston W GEORGIA POWER CO.
To:	Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
Shared Package
ML20096H346	List: ML20096H343 ML20097F324
References
LCV-0725-A, LCV-725-A, NUDOCS 9601260372
Download: ML20096H343 (97)

Text

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Gzorg a Power C,v :a f

• 333 P>sement Avse e Atlanta. Gsorgia 3C308 ,

Teleonore 404 526 3195

. -Vailing Address:

40 inverness Center Parkway Post Office Box 1295 Sirmingham. Alabarna 35201 Telephone 205 868 55s1 January 19, 1996 ..,,,s.....y.. ..,,,,  ;

W. G. Hairston, til LCV 0725-A .

0"cf."E'Ma*tfo'n*[*"' I

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1 Docket No. 50-424 and 50-425 Mr. Stewart D. Ebneter Regional Administrator U. S. Nuclear Regulatory Co==ianian, Region II 101 Marietta Faeet, N. W., Suite 2900 Atlanta, Gewgia 30323-0199 Re: Department ofLabor Case No. 91-ERA 01 and 91-ERA-11 Mosbaugh v. Georgia Power Company (EA 95-277) ,

Dear Mr. Ebneter:

This letter is in ihrther response to your letters of Dan ==har 12,1995 and January 12,1996 and suppla==wn our December 21,1995 letter concerning the U. S. Deparansat of Labor Secretary's Decision and Romand Order ofNovember 20,1995. This letter addressesin detad your concern about the potential " chilling effect" associated with the ter=iaseiam ofMr. Allen Mosbaugh and the issuance of the Secretary of Labor's findings. Our views of the apparent violation and a root cause evaluation are also pr===nead. Based on the discussion below, Georgia Power Company denies this apparent vial =*iaa l

The Secretarv's Decision l Georgia Power believes that the Secretary of tabor's daciaiaa holding that Mr. Moebeugh's surreptitious tape recording was lawfbl and anaatiented evidence gathering in support of a  ;

nuclear safety complaint is legaDy and fhetuaDy incorrect. Thersibre, Georgia Powir wiB appeal the Secretary's Anal decision (after the required remand (s) for ihrther deternuations),

ific is unsivorable to Georgia Power. Moreover, Georgis Power has moved to reope the Department ofLabor record on the basis of new and material infonnatice which was ac.t available prior to the class of the hearing record in 1992. De new infonnation includes portions of tape recordings withheld ikom diaela==e by the NRC in the nonnel coures ofie investigative efforts and daa==*atia= provided to the NRC by Mr. Mosbaugh. As more funy explained in its Motion to Reopen the Record (Attach ===* 1), Georgia Power aa=*=da that Mr. Mosbaugh willfhuy caused violations ofNRC regulations and the Atomic Energy

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January 19,1996

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i Act, that he falsely testi6ed at the Department of Labor kdo.gs, and that his taping was

, indisd..s..ete, unreasonable and, in some inwnama, unlawful.

It is ironic that the Secretary ofLabor has deemed Mr. Mosbaugh's extensive taping over.

j approximately eight months, including his conversations with NRC investigators and

! inspectors, as " protected activity that constituted evids.s gathering in support of a nuclear i

safety complaint." (Decision and Remand Order at 13.) As further explained in this letter, the j

validity of this decision is, in fact, the crux ofour legal dispute with the Secretary ofLabor's order. Our evidence clearly demonstrates that during this 1990 time frame Georgia Power was emphasizing'its policy of open, honest communication with the NRC and encouraging its employees to cooperate fully with NRC's investigations, while recognizing their personal I

rights in the investigative process. In fact, Vogtle Project personnel were informed that they may request that the NRC tape record investigative interviews. (April 5,1990 "OI Interview Guidelines," pg. 2, (Attachment 2)). Mr. Mosbaugh, on the other hand, decided to make his own tape (Tape 251) ofhis O! interview o August 15,1990, without informing the NRC.

Similarly, he tape recorded NRC Resident faaaac+ars (Tape 107; Tape 172) and NRC

] Regional Inspectors (Tape 87). Funthermore, Mr. Mosbaugh did not limit his taping to j

d~~aaating evidence ofsafety violations. Rather, when his tape recorder was "on", it captured those conversations within its range; even those in which Mr. Mosbaugh was not an active participant. This is not the kind of tape recording that can be reasonably characterized l as evidence gathering in support of a nuclear safety complaint. It also cleady is not the kind i of taping which the NRC would have contemplated or asked Mr. Mosbaugh to do, as j

suggested by the Secretary (Decision and Ramand Order at 14, footnote 4). To the contrary, j it is the type of taping which breeds distrust and chills open comamniatinas 1 i

" The narrow issue of secret tape recording of conversations in the nuclear work place and when such tape recording is " protected activity" was addressed by former Chairman Selin in j

his July 14,1993 letters to the members of the U.S. Senate Subcommittee on Clean Air and i Nuclear Regulation. Chairman Selin observed that "lawAd taping ofconversations to which  !

i the --M is a party to obtain safety information, carried out in a limited and reasonable i rnmaner, for the purpose ofpromptly bringing such material to the attention of the limanaa or

the NRC, should not be a valid basis for terminating an employee." As the NRC knows firom j its own review of the tape recordings, Mr. Mosbaugh simply taped daily events over the

! course of many months as they unfolded. The tape recording was not limited in either l

! duration or scope, nor was h selective Mr. Mosbaugh did not promptly disclose the existence i

of the tapes to the NRC; only when ordered to compel the release of the tapes to Georgia i Power did he inform the NRC of their relevance to ongoing r=raldary reviews.

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1 Georgia Power A

< Stewart D. Ebneter l

January 19,1996 l J Page 3 l

1 l l In our view, the Secretary had an inadequate and incomplete factual basis for evaluating Mr. l j Mosbaugh's tape m-C.g, even against the standards set out in Chairman Selin's guidance.

l With the beneSt of the whole story, includmg the facts set forth in our Motion to Reopen, the j i Secretary should find that Mr. Mosbaugh's taping did not meet the criteria set forth by )

j Chairman Sehn; it was not canied out in a limited acd ramaanahle manner, nor did he promptly l j advise the NRC of his taping or the information on his tapes. Furthermore, the tape 1

recordings do not support Mr. Mosbaugh's Department of Labor claims and demonstrate his

! own significant contnbution to the violation ofNRC regulations, which was the subject ofone i of his major allegations, i.e. the April 19,1990 I haema Event Report. nose facts, Georgia l Power Ma. are reasons why Mr. Mosbaugh did not promptly disclose the =iataaaa of his j tape recordings to either the licensee or the NRC, and why his actions were not " protected."

i A copy of former Chairman Selin's letter is enclosed (Attachmant 3). Georgia Power notes that Chairman's Selin letter does not rise to the standard of a rule, r-% or order as contemplated by Section 161b of the Atomic Energy Act. Further, Georgia Power questions 4

whether the criteria set forth in Chairman Selin's letter would behas.ny upheld as adequately protecting the rights of employers in sindar situatiaan 1

J Root Cause Evaluation j If there is a violation, then its apparent root cause is the difference between the legal positions

of Georgia Power (with which the Department ofLabor Administrative L.aw Judge agreed in l

1992) and of the Secretary of Labor in 1995 regarding " protected activity" under the Energy Reorganization Act. A contributor to this difference of positions is the lack of a complete and accurate record before the Secretary of Labor resulting, to a significant degree, from the lack of relevant evidence avadable to Georgia Power prior to the close of the Department of Labor record.

Potantial "Chinian F# " on Saratv Cannaens From the outset, Georgia Power has been careful to separate Mr. Mosbaugh's taping actions from various courses of action available to Vogtle employees who may want to raise safety-related concerna Georgia Power contends that Mr. Mosbaugh's taping, under the circumstances, was inappropriate. However, Georgia Power also recognizes that the voicing of concerns is not only appropriate, but should be encouraged. Georgia Power has encouraged its employees to maintain open and frank communications within its organization and with the NRC and to promptly report safety or operationalissues. As fbrther explained in our letter of January 10,1991, Georgia Power ranaeaiH that its employees might associate Mr. Mosbaugh's administrative leave and termination of employment with his idaatinaatiaa of safety concerns Early Georgia Power initiatives were designed to preclude possible misur.bs.wiings and to make clear that Mr. Mosbaugh's discipline was associated with surreptitious taping of conversations and was not the result of his raising concerns. A copy of

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GeorgiaPower A Stewart D. Ebneter January 19,1996 Page 4 Georgia Power's January 10,1991 letter is attached hereto as A*M=aat 4 for your convenience.

Georgia Power has repeatedly stressed that no adverse action was taken against Mr. .

Mosbaugh as a result of submission of his concerns to his employer or to the NRC. l Significantly, the Secretary of Labor did not find any retaliation for raising of concerns and i speci6cally concluded Mr. Mosbaugh's average interim performance rating in August 1990 l and removal ofhis company car when assigned to SRO school were not retaliatory for raising l concerns (Decision and Romand Order at 15-16.) In our prior January 1991 letter to you we pointed out that at the time Mr. Mosbaugh was placed on administrative leave, he had been previously selected and assigned to SRO trid.-J..g and the Manager-in-Training program. The i training had been listed as his first choice on his list of career options dmac,i,i,4 on April 30, l 1990. These facts were "-?=41 to our employees in a January 2,1991, letter Rom Mr. l Bill Shipman. (Attachment E to Georgia Power's January 10,1991 letter). l

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Georgia Power disclosed the existence of Mr. Mosbaugh's massive tape recordings to its l employees on September 19,1990, shortly aAer learning of the taping (see Atte c1=nant A to l Georgia Power's January 10,1991 letter). This was consistent with Georgia Posver's attempts i to foster better internal communications during this time frame. In a nimilar mener, Georgia Power's Plant General Manager issued a memorandum to ,k,a in August 1990 (prior to knowledge of Mr. Mosbaugh's taping activity) which informed them that all allegations cf 1 wrongdoing reviewed by a special NRC inspection team had been found to be unsubstantiatad The General Manager also emphasized Georgia Power's policy of cooperation and opannaam with the NRC:

The NRC appropriately investigates allegations of wi-- ;+'; which bear on

==ttars of safety or }mblic heakh in a thorough and deliberate mannar. While a formal interview [of an employee) may be diarnarerting or stressibl, these reviews are mamarimaa necessary. Georgia Power encourages cooperation in these investigations and views it as essential that the NRC obtain the relevant and material facts.

(Attachmaat 5, August 21,1990 letter from G. BA Jr. to plant employees). Such factual disclosures to employees, we believe, foster a more trusting work enviroammat Indeed, the Southern System's nuclear plants have common principles for nuclear operations, including the principle that we maintain open and candid i '-t *-b with each other, regulatory agencies and others with which we interact'(Attac1=amat 6).

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, Stewart D. Ebneter January 19,.1996 Page 5 -

On a more general level, Georgia Power has taken several measures over the years which assure that safety and compliance-related issues are raised and addressed by our - fg:::.

Foremost, Georgia Power has a well-pMA8 and g.cticM management C:+:py of openly and firanidy L.GT/s.g and communicating potential problems in order to mari=i=

awareness and to facilitate resolutions at the earliest possible stage. The internal procedures for soliciting, addressing, and resolving concerns over nuclear safety and compHance, as well as other work place concerns, are found at both the plant and wyerete office. We described these procedures in a September 30,1993 letter from the Vice President-Vogtle, Mr. C. Ken McCoy, to the NRC (AM=ad 7).

Plant Vogtle maintains a " Deficiency Card" system through which Vogtle =f:;;; or managers can document and notify their supervision of a potential quality or safmy concern, which requires that the concern be formally addressed and, if necessary, resolved by appropriate management. Literally hundreds ofDeficiency Cards are developed and resolved each year. The identification of these potential issues also is reinforced by Vogtlefs " Major Problems List" which sgs!!ically identifies the most significant problems which the Plant faces and the steps designed to resolve the problems. In other words, management sets an example by self-identifying matters of concern Vogtle also maintains a Quahty Concerns program; a very similar program is available to nuclear employees in the wyvide office in Birmingham. These programs are designed to allow any employee to raise any concern, including anonymous concerns. De program at Vogtle provides for employees to take safety concerns to the Birmingham program if they are uncomfortable using VogtWs program. In Atlanta, Georgia Power ==inemian a " Corporate Concerns" program, which aHows any employee to file a concern at a level reporting directly to the Company's executive officers. This is yet another avenue available to f:;_xin 1990 and today to express opinions, id#ag non-nuclear matters, to upper management and demonstrates a management philosophy ofopannana and receptivity. At Vogtle, fiBed out l concern forms including anonymous ones, can be placed in any of several " drop boxes" I located in the Plant. With respect to those quality-related concerns that are not submitted i anonymously, there is an acknowl-8 3=aae section on the form which seeks feedback on the

==*iab*iaa of the submitter as to the resolution of the concern. A high percentage of those individuals returning this acknowledgment resect such ==tinkviaa We are confident that Vogtle's Quality Concerns program is effective and viewed as a legitimate vehicle for raising concerns by our employees. The NRC staff shares our view. In May 1995 the NRC reviewed Vogtle's Quality Concern program (Inspection Report No. 50-424/425 95-14, dated June 22,1995). The NRC Inspectors coachulari that Vogtle's Quality Concerns program was effective in handling and resolving employee safety concerns. He Inspectors found the Vogtle Concerns program files to be notably well organized and

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GeorgiaPower A Stewart D. Ebneter January 19,.1996 Page 6 information related to the concerns was very thoroughly dan == tad. Concerns were clearly identi6ed and addressed. Closeout letters to the concerned individuals were well written and timely. The Inspectors also interviewed approximately 20 employees from various levels at Vogtle. The NRC Inspectors observed:

I The . . . employees interviewed d stated that they would report safety concerns M l said they would report such concerns first to their supervisor / management, and l would have confidence that the supervisor / manager would adequately resolve the concerns. Most said that d such concerns in the past have been adequately resolved by the supervisor / management. M said that they had not been~ intimidated or harassed by management for raising safety concerns. Most said that management was very receptive to safety concerns.

(Insa=*iaa Report 95-14, Report Detaila, page 6 (emphasis supplied)).

In addition, Vogtle employees are trained as part of their orientation on their right to raise concerns with the NRC. The NRC-prescribed forms are posted around the plant as are notices signed by the General Manager of Vogtle providing information concerning the reporting ofquality concerns.

Georgia Power has responded to matters ===acintad with Mr. Mosbaugh's concerns and allegations in a manner designed to avoid any " chilling effect." For ===ala, in May 1994 the

' NRC issued a Notice of Violation ==aariatad with one ofMr. Mosbaugh's principal allegations. I issued a mamarandum to nuclear employees which reinfbreed Georgia Power's policy ofopenly ra=r==irating their concerns to supervisors or through the Quality Concerns program. Employees were ramindad that the Nuclear Regulatory Camminaian. is an alternate avenue, and annarous bulletin boards throughout the wont areas provide information about that avenue. The memorandum assures employees that they may raise concerns "without any fear of penalty or realiatian." The Senior Vice President, Mr. Jack Woodard, made a pramanratian to nuclear employees at Vogtle (and Plants Hatch and Farley) to underscore my message. Similarly, in October 1995 the Secretary ofLabor issued a Decision in the Hobby v. Georgia Power matter. Shortly thereafter, in order to assure the Decision was not misconstrued, the President and Chief hannive OfBeer of Georgia Power, Mr. H. Allen Franidin, issued a memorandum re-a-yksizing our policies on raising safety and regulatory compliance concerns. Mr. Franklin's letter included the following statamane:

No retaliation for raising a compliance concern willbe tolerated. Any y'qcc, including a supervisor, manager or officer, who retaliates or paa=ha= an individual for submission or voicing of a concern will be subject to appropriate disciplinary action.

GeorgiaPower d Stewart D. Ebneter January 19,1996 Page 7 Copies of my May 11,1994 memorandum and Mr. Franklin's October 3,1995 memorandum are includedin Attachment 8. 1 We have continued to keep our employees informed of decW in the Department of Labor pr-=adia= Enclosed is a general News Update made available to Birmingham and

. Plant Vogtle employees shortly aAer the Secretary oflabor's November 20,1995 decision (Awh=aa' 9).

Conclusion In nummary, Georgia Power disagrees that Mr. Mosbaugh's taping was protected activity I based, in part, on evidence not in the Department of Labor record and currently known to the l NRC, and based in part on the NRC Chairman's letter of July 14,1993. No fmding was made i by the Secretary that Georgia Power illegally discriminatad against Mr. Mosbaugh because he raised safety concerns; instead, this matter is g'- wny a legal dispute about the meaning of the law and its application to controverted facts. Consequently, Georgia Power respectAdly disagrees that it violated ERA Section 211 or NRC regulations. Even if ultimataly proven wrong, history reveals that Georgia Power acted reseanahiy and in good faith in 1990 without the bene 6t of any clear NRC g=="r = In 1992, the Administrative Law Judge agreed,  !

thereby couGcwdrg the reasonableness of Georgia Power's position.

As discussed above, the Secretary had an inadequate reconi to detennine the nature ofMr. i Mosbaugh's taping activities or, as addressed in the Motion to Roopen, to detennine whether l Mr. Mosbaugh willfully violated NRC regulations. Georgia Power has repeatedly stressed that it never discriminated against Mr. Mosbaugh for raising or pursuing safety or compliance concerns, and coneianan to emphasize the need to raise such concerns through its amenhainhad poikies and procedures As diamasad above, Georgia Power believes the Secretmy ofLabor's November 20,1995 decision is in error and will appeal the final order of the Secretary ifit is unfavorable to Georgia Power. Georgia Power also has moved to reopen the record to admit evidence which ,

was not available to it at the close of the 1992 Department oflabor hearing. Georgia Power prohibits rwaliatian for the submission or voicing of concerns, and has attempted to keep its employees informed of developmanen in these matters. We believe that these efforts have avoided, or wJid.cJud to the extent practical, any . ,Jcy:: perception that Mr. Mosbaugh was retaliated against for voicing concerns.

This letter was reviewed by me and others familiar with these historical events. While I do not have personal knowledge of all the matters address d, the foregoing information and opinions

' are true and correct to the best of my knowledge and belief We are available to provide any

GeorgiaPower d Stewart D. Ebneter January 19,1996 l Page 8 l clarification, expansion, or veri 6 cation which you should desire As the Executive Vice President - Nuclear of Georgia Power, I am authorized t.o execute this letter on behalf of Georgia Power. .

Youm very truly, I

g. ,h: q s ,k :- N l

w. George Hainton, M

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Sworn to and subscribed before me this Mday ofJanuary,1996.

l l

-NotaryYAnh_$$bh Ptd Ec '

My Commission Expires:

/SllEl9 &

xc: Georgia Power Company Mr. J. Beasley, Jr.

l Mr. M. Sheibani NORMS.

l U.S. NuclearRegulatory Commission Mr. J. Lieberman, Director, Of5ce of Enforc==am Mr. L. L. Wheeler, Licensing Project Manager Mr. C. R. Ogle, Senior Resident Inspector, Vogtle

! Document Control Desk i

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GeorgiaPower interoillco Correspond:nos ATTACHMDfr 2 l I

Date: April 5,1990 Re; Ventle Electric Generatina Plant '

01 interview sutee)tnos Log: GlW-00065 Security Code: NC from: C. K. McCoy To: Vogtle Project Personnel Wher. investigations are being conducted by the Nuclear Regelnery Consission's Office of Investigations (01), 01 investigators may contact There will be no you at home or at work to set up an interview. restrictions placed by l NRC personnel. The purpose of the following guidelines is to advise I Georgia Power Company employees of their rights and obligatierts in dealing with NRC investigations.

NRC Interview Rannant You du have tim right to der.11ne to be interviewed, oeergia Power discourages this action and encourages individuals to cooperate fully with the NRC.

If contacted off the job site or during off duty hours, The company individuals may will pay you postpone any interview until the next work day. .

for your time when the interview is onsite.

Manaamment Natification l

If contacted by NRC investigators at work, notify your supervisor to arrange an interview. If contacted off the jobsite, Georgia Power Company suggests that you notify your supervisor to arrange an interview, however supervisory notification is strictly on a voluntary basis, Renrenentation Georgia Power Company strongly recommends that you have representation any interview with NRC investigators.

You may demand to have a lawyer, coworker, or friend of your choice at any onsite or offsite interview.

You may request management to arrange for a company lawyer Thisto confer _

you befon an interview and to represent you during the interview.

will be at no cost to you.

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Recordina the interview You may request to have the NRC tape-record the interview. Georgia Power Company recommends that you request a copy of the transcript from the NRC. ,

l Sworn Statamar,t1  :

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- You may be asked by the NRC for a signed, sworn statement. If you provide '

such a statement, it should be reviewed very carefully and you should make any chantes you wish so that the statement is correct and fully reflects your pos' tion. If you sign, you are entitled to a copy for your records.

You may have a lawyer review or prepare your statement with you for -

accuracy and legal effect.

Rememoer, our policy is to be open, honest and to cooperate fully with the Nuclear Regulatory Commission, e

CKM:W85:mjc cc: NORMS O

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The Honorable Joseph I. Lieberman, Chairman  !

Subcommittee on Clean Air and Nuclear Regulatio,n/

Committee United on Environment statae Senate and Public Werks Weehington, D.C. 20510 Daar Mr. Chairman: i This responds to your letter of 3bne 11,1993, in which yee requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations by employees of NBC Han==-

could constitute, section 211 of the Energy Reorganization Act of 1974.in some circu You alsea suggested that it would be appropriate for the NRC to communicate its views on this issue to the Department of Labor.

In general, the NRC believes that attempts by employees of NBC licanaees, contractors, or subcontractors (" employee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related to the reporting of satsty issues for purposes covered by section 211 of the Energy Reorganization Act, 42 U.S.C. Sec. 5851, are activities subject to protection nadme that section. In the context of the consittee's letter, the NRC believes that legal surreptitious taping by an employee of personal conversations, to which the say1oyee is a party, with the intent of providing the information subject obtainedunder to protection to thesection licensee or the NRC, is an activity 211.

Although the activity may be within the scope of activities protected under section 211, employment may still be terminated  !

l (or other employment action taken), if the employer can demonstrate by clear and convincing evidence that it would have taken the some behavior, i.e., unfavorable action in the absence of such for legitimate, non-discriminatory reasons, including whether the activity was carried out in an unraamaaahle manner or in violation of law. Thus, while the em==4=* ion recognizes that attempts by an employee to gather evidence of satsty violations or related discrimination in some respects could have a disruptive offact on the workplace, the mere potential for interruption of routine conduct of operations that may be caused by reasonable whistleblower activities should not be a basis for disciplinary action against an employee. For this reason, determination of whether an employer may terminate or take other employment action against an employee who has engaged in an activity subject to protection under section 211 will

2 depend on the specific facts and circumstances of the particular case. Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee.

Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions. Prompt notification is in the public's interest because it enables the NRC and/or the licenses to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.

surreptitious taping properly carried out under the direction of the NRC should afford the employee ,7rotection under section 211 of the ERA for such action.

By copy of this letter, we are communicating our views on these.

issues to the Department of Labor and are also serving it upon the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.

Sincerely, Ivan Selin cc: The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)

(Georgia Power Company)

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ELV-02428

. 0792 Docket Nos. 50-424 50-425 U. 5. Nuclear Regulatory Commission Document Control Desk Washington, D. C. 20555 Gentlemen:

V0GTLE ELECTRIC GENERATING PUWT ALLEGED EMPLOYEE DISCRIMINATION This letter is in response to your letter, dated December 11, 1990, concerning the U. S. Department of Labor's Wage and Hour Division, November 16, 1990 letter regarding a complaint filed by a former employee of Georgia Power Company's

. (GPC) Vogtle Electric Generating Plant (VEGP). The Wage and Hour Division found that "the weight nf the evidence to date" indicated that the former employee was

." engaged in protected activity within the scope of the Energy Reorganization Act and that discrimination as defined and prohibited by the statute was a factor in the actions which comprise his complaint." The basis for the Wage and Hour Division's conclusion was that the former employee filed a petition with the Nuclear Regulatory Cossission on September 11, 1990, and providad tape recordings of conversations to the NRC on September 13. 1990, and that on September 15, 1990 the employee was placed on administrative leave and subsequently terminated from VEGP employment on October 11, 1990.

Georgia Power Company has requested a full, di B2Xg, evidentiary hearing on this complaint. Counsel for GPC has kept NRC General Counsel representatives informed of all stages of the investigation and proceedings in this matter. In addition, the NRC has been kept informed by GPC concerning two prior complaints filed with the Department of Labor (DDL) under the Energy Reorganization Act by this former employee. These prior complaints were filed June 7, 1990, and August 23, 1990. In both instances, the Wage and Hour Division found that al.egations of impermissible adverse employment action were without merit. The esployee has appealed those findings.

Your letter requests an explanation of the. basis for the employment action regarding the former employee and copies of any investigative reports regarding the circumstances of the action.

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GeorgiaPower1 i

U. 3. Nuclear Regelatory Commission -

f ELV-02428 ,

Page 2 Georgia PowerCeapany, although natntaining various documents pdrtaining to the employment action, has no specific ' investigative report

• assectated with the j

employment action. The available documents include, for exemple, copies of the request for proceeding, documentation associated with allegations contained in j

the request, and the partial deposition of the employee taken on September 11.

j 1990. Other relevant and matertal documentation is anticipated to be entered i into the record of the evidentiary hearing. In the meantime, should you desire

! to review any of this information, please feel free to contact me.

4 With respect to the employment action taken, the former employee's. surreptitious (

j taping of co-workers and employees of your agency, its negative effect upon open consonications, and the tagitcations of the tape recording relative to the trustworthiness of the employee constitute the basis for the fosser employee's discharge. The NRC is now well aware of the nature and extent of the tape l l i recording. However, up until September it.1990, the NRC apparently was I unaware of the taping even though the former employee had access to and was l

i taterviewed by the MK concerning his allegations os several prior occasions.

i Georgta Power Company notified the Mac of the tapes existence early on September i 12, 1990, after learning of their existence on September 11,1990. The former espicyee and his counsel notified the NRC of the tapes existence late on 5eptember 12, 1990, only after the OE administrative judge ordered the tapes to l be provided to GpC.

'1 The former employee's conduct in indiscriminately tape recording conversations l over a period of approximately eight (8) sonths placed him in a pe'sition where j

he could no longer effectively manage employees, rendering him incapable of effectively performing his assigned duties in the werk place. This is because j employees at a nuclear power plant umst be able to share facts, ideas, problems, j

and opinions of both a business and interpersonal as well as personal nature.

j Effective working relationships depend upon autual trust and cander with aa expectation of privacy on those matters of an interpersonal or personal nature

The actions of the former employee violated these i and certain business matters. In this regard, it is important to note that the former

' cardinal principles.

employee had ample opportunities on numerous occasions to provide the tapes to i the NRC. Mersever, the former employee tape recorded representatives of your

! agency who were investigating allegations submitted by himself and taped '

subordinate employees who reported to, and were subject to his instructions.

i our discovery of these activities on September 11,1990, was the sole reason for his terminatten of esployment. In fact, at the time the former employee was 15, 1990, he had been selected and placed on administrative 12 ave on September assigned to Senior Reactor Operator training and the ' Manager-in-Training" program as of July,1990. The training had been itsted as his first choice on j his 11st of career options developed on April 30, 1990.

i Regarding the other alleged " protected activity' of requesting the NRC to i initiate a proceeding based upon allegations, as early as June,1990, the .More sp 4 employee had provided the NRC with his concerns.

Manager (YtGP) asked the NRC Resident inspector to meet with him and the former ,

employee so that the former employee could articulate all potential concerns.

j

• J l -

U. S. Nuclear Regulatory Coemission -

ELV-02428 Page 3 That meeting was held on June 19, 1990 and the employee was requested to air all his concerns in the presence of the Resident Inspector. The employee provided ne specific issues at that time but stated that he had some technical and managerial concerns which he had not fully formulated in his own mind. Georgia Power Company tasked the corporate concerns manager to meet with the former employee to obtain and investigate all concerns. During that effort, on July 3, 1990, it became clear that the former egloyee was withholding concerns.

Therefore, the General Manager, on July 6,1990, directed the former employee in writing to provide his concerns to the NRC. By the time the request for proceeding was filed with the NRC on September 11, 1990, the NRC, as the fomer employee know, had already conducted an extensive review of his allegations.

Your letter also requested the licensee to describe actions, if any, taken or planned to assure that the employment action regarding the former employee does not have a " chilling effect" on the raising of perceived safety concerns by other licensee or contractor employees. Several actions have been taken, and others are anticipated. All are designed to inform our employees of the reason for the employment action taken and to inform them of their right and responsibility to raise any safety concerns which they may have. This infomation dissemination was intended to foster open, honest communication and minimize or preclude any " chilling effect." At the time the employment action was taken, GPC recognized that employees might attribute the administrative leave and termination of employment as being associated with the former employee's identification of safety concerns. Employees who were involved with these historic concerns readily understood the legitimate basis for the employment action. In contrast, many workers without first-hand knowledge of these details might misconstrue the employment action. Accordingly, informal oral presentations were made to both W.GP site employees and VEGP corporate employees which explained the bash for the administrative leave. The primary points made in these presentations are contained in Attachment A, which was used by the General Manager and Vice President - Vogtle in their statements.

Questions from employees were solicited and answered. These early initiatives were designed to preclude misinformation, were concurrent with the employment action taken, and were effective. More specifically, employees are believed to understand the distinction between discipline associated with the former employee's surreptitious taping of conversations and improper employment action.

Information GPC had placed in the public domain also established the basis for GPC employment action and differentiated between furtive tape recordin6 by the former employee and the raising of legitimate safety concerns. Prior to the former employee's discharge on October 11, 1990, GPC, by letter dated September 28, 1990, provided the NRC with preliminary comments on the former employee's September 11, 1990 request to initiate an administrative action agairst GPC.

Georgia Power Company specifically addressed its view of the surreptitious taping as "a blatant disregard for the legitimate norms and expectations of co-workers and employees of your agency". Moreover, this September 28, 1990, letter included a July 6,1990, memorandum from the General Manager (VEEP) to the former esployee tasking him with providing safety-related concerns to the NRC which he was withholding from GPC management.

U. S. Nuclear Regulatory Commission

. ELV-02428 Page 4 Subsequent to the former employee's termination from employment, GPC refrained from responding fully to press inquiries. GPC's position in the matter was provided to the press, but detailed interviews were not granted. This approach was designed to minimize any residual chilling effect and the potential appearance of retribution.

Later, however, (during November,1990) the fomer esployee pursuadr media coverage of his safety concerns. In light of the inquiries from the media, the former employee apparently was attempting to portray his concerns as substantial and his motives as altruistic. Detailed interviews, therefore, were provided by the Vice President - Vogtle to the major newspapers. In these interviews, the Vice President continued to differentiate between the basis for the former employee's discharge and impemissible discipline based upon the raising of safety concerns. Also, the Vice President distinguished between the raising of bona fide concerns and the concens raised by the fomer employee by disclosing for the first time the fact that in early June,1990, the fomer employee's counsel had proposed a large financial settlement in exchange for his forbearance in pursuing a DOL claim and in submitting concerns to the NRC. News articles in the Augusta and Atlanta newspapers, and other associated media coverage, raised the issue of motive. Editorials in the Augusta newspapers which followed these articles focused on the distinction between bona fide concerns and concerns submitted for financial gain (Attachment 8). Georgia Power Company believes, based upon information provided by the media and the Company, that our employees distinguish between the raising of bona fide safety l concerns and the motives and actions of the former employee. l In addition to the manner in which GPC publicized the basis fa its employment action, GPC also broadly addressed the merits of the allegations. First, the September 28, 1990 letter deals with the allegations themselves.. Second, the

allegation " hyped" to the media by the former employee and his counsel was addressed directly in intra-company newsletters. Specifically, the allegation of material false statements provided to the NRC regarding the reliability of the emergency diesel generators at VEGP was addressed in a posting for employees on October 31,1990 (Attachment C) and in mid-November 1990 employee news I articles (Attachment D). These articles, among other things, provided details to employees who would not have ready access to the information. The articles acknowledged an error in the original data submitted to the NRC but, specifically avoided a discussion of the degree to which the former eeployee might have precluded the error, how he was tasked personally to resolve the error, and the fact that he proposed a revised Licensee Event Report which would not have materially differed from the original submittal. In other words, the articles purposefully avoided attacks on the former employee and, by doing so, pomitted other employees to view the technical merits of the allegation in a non-adversarial context, which was, less likely to chill open communication.

av-m_- - -- - - - - - - - -- , - - _

.,ahw ahe U. S. Nuclear Regulatory Commission ELV-02428 Page 5 The duration of the NRC's on-going review (including several requests for follow-on employee interviews) and other activities associated with the review might dissuade some employees from raising safety or operational issues.

Attachment E. enclosed, was provided to VEEP employees on January 2,1991 to reinforce open communication and timely identification and resolution of safety and operational issues. The various options for reporting concerns are expressly set forth in the statement. The statement also anticipates Georgia Power Company's vigorous defense of the former employee's 50.7 allegations in the DOL proceeding.

In conclusion, GPC has addressed this matter in a manner designed to mitigate and preclude a " chilling effect" on the raising of bona fide concerns by employees. Removal of the former employee from the plant site by placing him on administrative leave and subsequently terminating his esployment actually served to foster open communications among plant employees. Georgia Power Company firmly believes that it has been successful in differentiating the former employee's inappropriate taping actions from appropriate courses of action available to all those employees who may have concerns. Concomitant with that effort, GPC has encouraged employees to maintain open and frank communications and to promptly report safety or operational issues.

Sincerely, d.). & W a W. G. Hairston, III WGH,III/ JAB /gm xc: Georcia Power Comoany Mr. C. K. McCoy Mr. W. B. Shipman Mr. P. D. Rushton Mr. R. M. Odom NORMS i

U. S. Nuclear Reaulatory Cormaission l Mr. S. D. Ebneter, Regional Administrator Mr. D. S. Hood, Licensing Project Manager, NRR )

Mr. B. R. Bonser, Senior Resident Inspector. Vogtle l

l

ATTACMENT A 9-19-90 Last Saturday, George Bockhold met with Allen L. Mosbaugh and told him that the Company had learned of his actions in taping conversations with a large number of people over an extended period of time. Under these circumstances, Ken McCoy decided it was in the best interest of Allen Mosbaugh and all concerned that he not be on the plant site for the next 30 days.

He is now on administrative leave with pay for that time, and all of his employment benefits will remain unchanged during these 30 days.

As we have said many times before, and as I want to I reemphasize, each one of you has a duty to maintain the safety of this plant. In order to accomplish this paramount goal of safety, it is absolutely essential

• hat all employees feel free

'o communicate, and do communicate with one another openly, t

trustfully and without hesitation.

Any issue related to the safety of the plant needs to be addressed and resolved. We have set up multiple systems for the resolution of concerns. They can be addressed with management, and any of you are free to take issue to higher management if immediate management is not responsive. They can be addressed in .

the Quality Concern Program or the Corporate Concern Program.

You can use the Deficiency Cars system. Certainly, any one is free to and is encouraged to go to the NRC on any issue you feel is appropriate. All of these methods and other methods available here can be used anonymously if you feel that is 1

-_ _ _ _ _ _ _ . _ _ _ _ k

ATTACHMENTA(CONTINUED)

. appropriate. This dedication to safety and open communication.

remains a fundamental commitment on the part of this Company. I want you to take steps to re-affirm this same message with your .

subordinates.

-t-l l

ATTACHMENT B

~ ~

<-

~-9:-: * ; :9; .ve. e.v.v.9. . . .v/.v. .v.9: .ve :  :-! ~ ! : : X XO,*.;

':  ?.

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iii-r.,

SONOPCO Pro 1ect News e 3..

vy

? */.

2. -

Erom The Augusta Chronicle 9 -

c v ,ed , e u e;

.: 1 = oes.ed,e, y. .:.

i::. Wait on NRC report .

8

.:. wen - ag - m .o e,. eda.  :.:

y upset shout a paspie. f.

.: a.o e - o .,s.een oper.

t. rb . e u ,et , - .:.

.. speak est ir they h= /

e.h e d - o.s.sh joke ==au have reisets.t t. taihbusse.n wi , e.e enero

. the inesmal campany chem. emmbw aher the tapang was ..

.: and. rei.d- d - .:.

?.

~

Det done nuclear engineer tien probleens are the last vi A5en Meehaugh of Grevotown needed la a neeleer f v

finB inte such a whistle 4 dower f tyt p.

r. essagery? Suryneingly, U.S. laher *j

?. He wee a Plant Vegde f* - prehere classe v

• . werker who made ne bones Meehaugh was Ared illegally; */l

/, sheet wonemg to move away his eleuth work wee Jussi6a. #.

aAer a saint here - and he wee diesens6ed with his bie.'Dile Yet isthe being a ' ens"meer's #l V

f Y employer's statsde toward a motives med timing raise */* I

• /, pay settlement. So for several quesmene.

e, months he began secretly tape Georgia Peeer under. I". l

• *j

.f recording the comments of meeres that Meehaugh didn't ,.

.* hundreds of co workers. go to the NRC until aner hie .- l

• /. Het surprisingly, he lawyers had faded to nego. #

?, usesvered some dirt. tiene a sisable eneh setdement *

// Membaugh then went to with the esapany. QHe asti. .

.*, the Nuclear Regulatory nasleer asserneye used to #'

?. Commossen with his safety work for the len. wing Govern. '*i .

1. f grtpos and, to be fair. he enema Assuuntability Projest. *i.

y uservered dieterbing things. '1 hey namarally have se as to *l

/

• /,

, However, his employer - the gnnd.) /

e. Georgia Power ca. - readily we alas eenlan't and *

? adimitted seene key problesne where Ma=hangh task grte. .

were due to human er veness through eenspany .

amehameal error, ebennels forredress. Ifhe was .

t. laistally, Meeheugh was einsere, and not sneefvened by *

?/ en adednistrouve leave wiry didn't he esempty .

V in our opinien, this follow money,his take ,'*cM^ to .

• /

eheeld have been amed Vegde's venees sedeby sad .

.j omeright. , ' ' -_--__. yeupsenef  ;

He later was Grod, but Meehaugh's .

f, adbenemme of whistle.hiewing ranke seed newspaper espy. -

e.

to the NRC. 'Ihe power esm. 'But letis wudt for the Saal pony anye it was due to the NRC report to ese if at hie

/ meaner in which he taped cleians esand up to seussay.

.. . -:. . . . . . . .v.v. .v. .v . . . . . . e. . . :. . . . . . :.-:. . . . :. . . . . . . . . . . . .v.-:. . . : ;

j i

j .

ATTACHMENTB(COATINUED) i 1

1

• 1 . ~

FacM THE AcoG$TA tmaALD Monday. December 10. 1990 l .

i i

i i  :

i l

t i

[ Whistle's

=pioyees so.id be _ged t.

sour notes ow the w soe wi,e.

4 compan:r ignores or stades proper rulse. sad procedures, I

lbut weight aas has to be given to oldsde4 towers' mouves l .

wtsch can have a directimpact on their credRdlity. .

' .There's no doubt that nuclear se W Ahem Mosbaugh of j

! lGrovetown has exposed some safety apses at Plant Yostle that

2 readdy admits to and is moving to correct. Other it i  ; denies and their veracity will be deterndnad by a Nuclear j

pCommissioninvestigation.What troubles us is the way work. Upset because Vogtle would not give tdm what be consid.

Iered a generous severance settlement when he wanted to leave, i

! 3Mosbaugh took to seered taping comerkers' conversations and l the inchehnating evidence directly to the i lthen through the company's redress chan-syst a j (NRC nnels.

4 3 Whatever the truth of M 's charges,he surely doesn't l 1Rt the image of the altndstic .He obviously had jhls own fish to f37 - namely to embarrass the company  :

he felt l

i ghedwrongedhtm.

is that he has smooseded, but we thlok the conneny was stui t

! f right to Are him, not for blowing the whistis, tot Lar taping pri.

l tvote conystsauens. Amazingly, the U.S. labor Department dis-

, gagrees and says he was luetally fired. -

i 1

l i

1 i

a

ATTACHMENT C.

EMPLOYEE NOTICE 10-31-90 Statements by Allen Mosbaugh recently reported in the news media are inaccurate. The statements relate to Georgia Power's reports to the NRC regarding diesel generator testing following the March 20 Site Area Emergency. Mosbaugh, a former Georgia Power employee who werked at Plant -

Vogtle, was fired earlier this month for his conduct in secretly taping conversations with other employees and with NRC personnel.

Georgia Power has acknowledged that there was a numerical error in data conveyed to the NRC about the testing of diesel generators at Plant Vogtle. However, as soon as Georgia Power determined a potential error in this data, it verbally notified the NRC of the potential error and subsequently corrected the data with the NRC in writing.

The NRC reviewed and was completely briefed on the diesel generator testing after the March 20 site area emergency and before the restart of the unit.

I At no time has Georgia Power intentionally made false statements or attempted to mislead the NRC about the diesel generator, and Georgia Power promptly identified and rectified the reporting error, keeping the NRC verbally apprised during the process.

Mr. Mosbaugh filed his request for NRC proceedings under a regulation that permits anyone to file such a request, regardless of merit.

ATTAC}fiENT C'(ColfrINUED)

Before he filed his request, Mr. Mosbaugh also brought claims against Georgia Power at the U. S. Department of Labor, seeking monetary compensation. His claims have alleged that adverse employment action was improperly taken against him. Fellowing two independent investigations, the Department of Labor detemined that his claims were without merit. He has appealed those dateminations.

Georgia Power has and will continue to keep the NRC fully and promptly  ;

informed. We will continue to encourage all employees to maintain I

openness in our communications and to promptly report and resolve any concerns about safety or operational issues.

9

T i .

ATTACHMENT Dl 3 -

2. s.- - - ,

t  ;

i i Worm War H plane - - -

la his spus tims. Das likas to so flylas. Fouowins a roush mart la aviation. arashing his uhraushs. he

bousht a umau airplans and marted takins lessoas. la Ansam. Den samed a private pilot's lissman.

3 Cherumtir. Das owns a World War !! Army pisme weddi was bugt la 1 ped. 'this faE. he wsut to "ftp. l ins" Oniormed airplans sovemunes) la Dublin and Casoutos, sissping under the wing of his pines in a

smauaus.

i la Oeober. Den pa his antique pises on "stade display" a the Robias Air Forse Esm airshow. "I bought a leasher Dyles bekast and sossles a less tisms ass. I've always wanted as spea enskpit j bipinas k's the emir way to fly." stated Dan. He has ressady lossed just sash a plans la hEmend and

is pisamma to unde his Army plane for k. O i

l l

i j Georgia Power clarifles recent publicity -

i about Vogtle diesel generators esamt news media reports have samed thm Georgia Power ====rnad to mislead the Numiser i Resuimory t'a====*a. (NRC) enriier this year when providias sista about the relishAky of 4

meersemer dissai sawmors at Plant Yosde. "That is not tres.'" mased Ken McCoy, vise preadsms i of the Vogde Projem.

l "'The onsiaal data submined was in error, be we had so iment to mislead the NRC. As some as Geersa l j Power daarunned that there was a concern about that das the Company verbauy mannadt hem of the  ;

j concern and subsequently provided a writtea correnian " '

This issue concerned the number of thnes two backup diessi generators sussesfuuy operused darias j testas. "The NRC had people there while we were rummas the tests.

! and they reviewed the results. la their review, the NRC had au of the same informa.

i tion we had." McCoy said. -

Problems in satms a seermor started contributed to the March 20. siteeres I ,., esmergency at the plant. But contrary to recent news media reports, the NRC reviewed se e *==n e===== and was t'riefed on the diessi senersuas teams after the March 20. lasidset and

""="""8*""

before the tomart of Unh 1.

j ,,,,',,,'*"*"" Georgia Power had onstanuy subantted informance that said one of the samermers

! sneesssfully staned 18 them, while the seemed generator suoseafauy maned 19 times m s si e....os==m u==o.

eine .

4thout failures or pmblems occurras.

.....................as==< Assunny, it was deternused later the the espioyees wiso sabered and prepared the

• • • • u* **'"

data for the NRC did not asse au avadable infonaation la deternusias sumamsful a gamerator starts.

o.,,,,".""'"""."."

lassed, ther used data from the operators' loss oniy. opermars nomside a tem g a=g .;;;.;;; g "sussenful" If the diesel senormor staru up. Based on that, the opemors lossui i ..............= these start anempts as suossuful for both genermors. Ba, a subsequent rev6ew of an

, a . . . . . . .. . . . w==o ensineer's los shewed that some of the man.up tema did la fem how probine or

{ c. *l'l".::::::::::'/.:L"lllllllll fanura after operauns for a pened of ihme.

! me o . . . . . . . . . s.w====e "That's the basis of the confusion." MsCoy said. "Our firm report was based on

! an tasomplas review of the loss."

1 7 a "."'."."."/.:'f/

. . . . . === L as **aw

'"* The erroneous amanent is ons isses raised la a paddos fUed wkh the NRC by AEsa

! .................o==== Mashaush, a tonner Coarsia Power employes. The NRC is tremdes Meshmash's fluss s o ...............saan as a pueden pursumma to falaral resmiamens that pensa anyees to fue a resses to the

! a== *== - *'*","* 7, Q NRC resanuses of mark. '!be peddon is based om false and laasserses ==- and i """""""*"*L,,,. . the issues raised in the eethien beve alrende heaa . 2 'PM A 'M---

i .

} N.

l

} ATTACH E!!T U (coittinued) i

/

/*

5 8Estsl4 FtWER NY~

4 I

u t T t it t E i 18.1981 IHISWE l GPC clarifies recent publicity on Vogtle diesel ~ generators

) eorge Power did not m. aedsubensuandypsendedawneten sseeene emagemey at the plant. gemeeners. A subesqueue musw of i tend to mislead the coaccessC However, censory to sosset news ananymeess'lesshamed thatsome I NucisarRasulatoryCom. 11 eseus sensamed the num- medes reports. the NRC mnewed of the samente tasas didin feet hem j massen about the reis. ber of times two backup diesel and was betefed on the diesel penblans erimBusssaiser =r=====

i ability of Plant Wede's esammaanepassedew ayduo summmungassengahertheMaseb20 fera pened ef shun. .

! emergency diesel genera. ing tasang."The NRC had people medent and bodem the sessart of "That's the hemis of the een.

toes.accenhns to Xen McCoy.vice these while we wess namung the Unit 1. fussen." MeCey asse. "Our first

peesedent of the Wgde prosect. teses.and they senswed the resules. Cearpe Pomer had engesBr suport mes huseden en teessupiste i "The ensual dass subenstted in ther senew. the NRC had all subaunediaf=-m== thstamsd ene senswof thelesc 2 wasin error,but we didn't miend to of the sasse udenanoon we had'* oftheesausamesusammiuBynoned Theenemmannsammustisone i nuslead the NRC As soon as we MsCorsays. 18teses,whenthesessedgenosser issue somed in a pseinien fHed wah

! determmedshewwasa concem.the Pushiesnsasetonsa generater nuesessfuRy saaned19 thmaswahaut the NRC by Aben h@ a i Company ornuy notdied the NRC saanedcontrhiedtothe March 20 fatmuserpsebiasmsesamnne.itwas fenmer Ceases FWear employes.

.i lessmed iater that amoispues pauper. TheNRCistusumigMasbeugh' ale.

ingthedassisrtheNRCdidmetme ingas a peanna ymmment es fodssel Vogtle comnletes refuelineS outaSe - * * '"-h6k - = * """""'*'""-""'

! r nasung sueesend gemmesse stans, a sequest to the NRC segudses of

$ 8" '"he Umt 2 refuehng outage at Plant %gde, which bessa at rmdmsht 0" d """"' "" N" on Sept.14.m now complete. The one was sesonnected to tne and Nov.

openters lossenty.Opensorseas. based on false and inaccurate

g ,, Ifdiedemist m middie h M in H. Dunns the mangs.W emagiimed gdme w h generator stans up, Based on that, the pention heee already been l

mamunsnee aconnes and wrmus was and ingeenons. W f

fnna Southern Company h and enem m annated in the openters logged these start renswed and dhemesed by Cesegu l i

enempts as susessehd for both Pseerwith the NRC. A the outase.

4 "Sevevoi maior iobs wem undertsham after the start of the outase, j which added to its onsmal scope"says Ken McCoy.nse pr==d== of the Wgde - -

7 p ' -J ..

prosect.-This mekshouldpaydindendsafunse :

was a success because of the dedicanon and teenswerk of aB plant employees

= Thesuisse .- T T ;~;r m y~:ita G <./mtv-.V rS . -

.-t--

~

1 ,,

% i j and others who suocerted them" A i  !

i 4

t i

. _ - _ . _ _ _ _ _ _ _ _ _ _ _ __ ___ ___ _ _ _ _ _ _ __ __ m- - w -

w-

A1TACHMENT E : I i '

interoffice correspondence GeorgiaPbner A D&TE's January 2, 1991 RE: Open comanaisation FRCIts W. E'. Shipman TO: Vogtle Employees Recent news reports have focused on litigation between Allen L. Mosbaugh, a former employee at this plant, and Georgia Power Company. In a Department of Labor (DOL) proa= Ming, Mr. Mosbaugh contends that he was placed on meninistrative leave and subsequently termirmtad from employment as a result of his engaging in " protected activity," including suh=4 == ion of satsty concerns to the Nuclear Regulatory f*a==4 maion. In that litigation, Georgia Power denies these assertions; Mr. Moshangh was terminated from employment after it was learned that he had surreptitously tape recorded conversations with other plant workers and with NRC personnel over a substantial period of time. Georgia Power j company, therefore, intends to vigorously defend the DOL action  !

brought by Mr. Mosbaugh.

I want to emphasize to all Vogtle employees that Georgia Power's concern about Mr. Mosbaugh's surreptitious conduct is because of its negative effect on open communications at this plant, and DER because of his raising of safety issues. open and frank communications are essential in our 4Mn=try. When Georgia Power learned that Mr. Mosbaugh had concerns that he had not disclosed, he was directed to submit his concerns to the NRC in July, 1990. No adverse action was taken as a result of the submission of these or other concerns. Indeed, Mr. Mosbaugh had been selected and assigned to Senior Reactor operator training and was enrolled in the " Manager in Traininga program at the time that his secret tape recording became known.

Georgia Power is fully cooperating with the NRC's review of Mr. Mosbaugh's concerns and allegations. Interviews of plant personnel and review of documents have been conducted and additional interviews may be requested by the NRC. Employees are j reminded that Georgia Power encourages individuals to cooperate l with the NRC in its investigations, even though individuals have a legal right to decline to be interviewed. Employees also are reminded that they have the right to have a lawyer, co-worker or friend of his/her choice at any on-site or off-site interview with governmental, investigators. If requested, management will arrange  ;

for an attorney to confer with you before an interview and to I represent you during the intarview. This will be at no cost to you. At no time are you restricted from your communications with NRC personnel. .

e -a- ww m we l

. ATTACHMENTE(CONTINUED)

Page Two ,

I encourage and request all of you to maintain openness in your enemim4 nations and to y. ,tly ..y t andIn help resolve any concerns about safsty or operational issues. addition to year

" chain of command" reporting of concerns, the Quality Concekas Program (telephone number 1-800-125-2055) will accept anonymous allegations (nuaarous drop boxes exist i.L. 4out the plant, or the concerns can be suhaitted by telephone or personally by con *=*4M Bill Lyon--Quality Concerns Cimedinator) . The Nuclear Regulatory Commission Resident Inspectores were w .Cly highlighted in the vontle voice and also may be contacted (extension 4116) . The NRC also maintains an off-site celephone number, 301/951-0550 (call collect).

Please r====har, the identification of issues which any adversely affect safety or health is a funda-stal responsibility of each employes. In any complex human endeavor, such as r===4M these plants, technical deficiencias or weaknesses any- be identified. Only by your identification of such problems can they be resolved and help assure our foremost goal - safe operation of

' the Vogtle Electric Generating Plant.

l i

was/tda l

!"'?.C ""T ' C**""") -- --

December, 1990 Vogtle Voice 4

~

MeetyourIhspectors hr Eash h J and ammatars dagmslaandme.

Who as the Nucimer Requistory '. " :.g 1 - ? tats 1===ay====* He has is

- OGIC37 Why sus .~ y .

.p yemas ofexpostenesintheannis.

NRC needents anacts? Inthis -

u.6 ar.tadustry, thelast 5'1/3wak settels,we*S answerthans p theNRC. Betunasasesusedand geestions andintenduesyou to

%u ,.# _ c.s. {g :

1 has two chudrun.

ourrumedssae " D % . ";,. . ~ f ;. Doug hands a haukelWs de.

The rumedsatinspectoriso. 2 - hi ** C grosinbustnessinus Adtestemap-

~f((W gram anganated altartheThree p.D .t.' '

pt CaBass and a cartsbemasin MasIsland tTMD accident. The T nuclamrstudiesAsiaAdenpids

.h uRC --~= ths <synsan um of

/ f.9 s statsunn rser.nism , n nuclearmatertalsinthe United g~ , innindes 81/2yemus artha States to tuntectthe public health and nedsty andthe curs-f* .

b nmener8and,thelast Amurbeing with the NRC. Dougtsanssted ruunnant. This unestonis ac-f,- , . .

and has two chadeen,.

r=nphahad thmusic j -. .g- f Pets holds a hashabert and e the licensing of ==daarfassu- - - Iy 1.g .

zusster's dessus enameiserengn-taas and ths & uns ,,,, w nasang Assa osarsatisk. ns

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ATTACEMDff 5 Intgrotfice Correspondence Geo.giaPoner k DATE: August 21. 1990 ,

RE: (Derational Assessment Inspection FRoli: 6. Rockhold. Jr.

TO Plant Employees As' many of you know. the NRC ncently concluded an Operational Assessment Inspection. The inspection. among other things. included investigation of a nabar of allegations of "wronedoing." Some YEGP employeessuchwere as intentional violations of NRC requirements.

interviewed formally in "on the record" interviews. ,

1 The NRC appropriately investigates allegations of wrongdoing which bear on matters of safety or public health in a thorough and deliberste manner. While a formal interview may be disconcerting er stressful. Georgia Power encoursges these reviews are sonettmas necessary. ,

l cooperation in these investigations and views it as essential that the NRC obtain the relevant and material facts.

ils have been infomed that all allegations of Atwrongdoing the same time, by YEW the employees were found to be unsubstantiated.

operational Assessment team identified several technical items where For example, potential violations of NRC requirements may have occurred.

the NRC observed at least one instance in which a Deficiency Card We must was not issued for equipment repair. contrary to our practices.

remember to use our Deficiency Card systems only by identifying potaatial deficiencies can we achieve our high standards of excellence in all of the areas which support this plant. All of us need to be reminded to pay strict attention to detail - to det all the i's and cross all the t*s = in each of our daily tasks.

I want to thenk all of you who werked diligently to support the Operational Assessment team.

Your cooperation during this difficult time is greatly appreciated. I. personally, am very proud of the professionalism shown by each of you and encourage you to maintain these high standards as we move forwant to fulfill our goal of efficient and, foremost. safe operation of the Vogtle Electric Generating Plant.

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.. M ACBGDfr6 SOUTIDRM COMPANY Patasiples AerNuotsarOperadoms Fe are Aserdos'r heat smelser operadoms. Our sussessikt employees edith me ww w d & h 4de. Our appmesh to nuclear operadoes is guided by es principles oudhead 1

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We are dediensed a the optimum opersoon, malaama- engineering, and support of ensk of our musiser plants, hour by. hour, day /S iri, to ensure as(n, reliabis and ensammsissi perdonmense. We arive a ackisve snaple and standard work W We mammin open and candid .*'" ', _ with ensk other, regulasury apsmains and onhars wink whom we issuost. We build upam our peu asidsvamens and experienses, as we8 as toss of others, as ashieve condemous bepsovasset.

. venstrupocon We isongelas that the =' ':':C= used in the design, comsmedan, "-

and operados of my langs, compism produsden facility, sunk as a amala piser, as a '- ,

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appussaiam of knowledge and sidus. We also resogniar ther we me not inhRible in es appussena of knowledge and sidRs. These imperfisations may evolve fans pmbises that *= must be propend to overcome in order e assouplish our mission. 11 erefore, we are "probism-ortaused." We maimmin our day-t:Hiay - as well as long-esne - focus on deesseing educing and possnelat pmbiens beans emy become sisaissans, we eks sanon to menin esse probiams saady and com.efesadvoly, taking into consideradon the reindve i , _ sad priority of every aspect of our work.

nunownranhv Ann Acceircimum We moogstes est our sessem depends em esah indMdant's parennemen. we est high semis sbr  ;

oursehes. We anoomplish our Seals through teamwork, wink eesh individual bsvias asigned I week and tem amearky, mapeedbilky and m:- 'By the perewsmans of est work. We est whk speed and prohsmonalism, and we dediasse our indMdsal initlettvus and unique capabiuties so tbs mahlavement of our personal, team and campsey ots. coven. Eask of as wel be independeady sosponsible for our professionatina.

• EEIREE We win be maman11y and collectively supportive to maimmin a straag, poskive team spirit la sariving m acidsve our goal u " America's Best Nusinar CA i-+ "

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We kamp our promises. .

We deal fairly with everyone.

Customer First our business is -a-- s Can. We wiu chink like a ==~s.

Shareholder Value . and act like owners. We work to increase the vaine af our in -

Great Place to York We are a Ers name company. We enk our work and celebrass our amossnes. We seek opportunities to learn.

We do not compromise safety and beskh.

Teamwork We - . . . . . . . openly and value honomy. Welissen.

We respect all opinions and expea Ch viewpoints ii as we

, work together toward ea-maa goals. We ==pW coop raion-nocturf. i Superior Perforrnance We continne to set high goah for ourselves. We take personal responsibility for suases. We am with speal, decisiveness, and individual inhistive to solve problems. We use change as a @ ad m asp.

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Post once Box 1295 ATTACHMENT 7 Bemngnem. Atenama 35209 Teesonone 205 877 7122  ;

C. K. McCoy vce Presioen Nucteer =

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. vogue Pro,eca Sepcember 30, 1993 maoimoniemm am 4

Docket Nos. 50-321 50-424 Hl,-3474 1 50-366 50-425 LCV-0165 i The Chief i

Rules Review and Directives Branch -

Mail Stop: P-223 U.S. Nuclear Regulatory Commission

• Washington, DC 20555 .

4 Comments on Whistleblower Protection i (SR Federal Reaister 41108 of Aucunt 2.1993)

Dear Sir:

On August 2, 1993 the Nuclear Regulatory Commission (NRC) requested comments from the public on whether the NRC has taken sufficient steps within its authority to create an atmosphere where whistleblowers feel. free to engage in protected activity without fear of retaliation (58 FR 41108).

The Nuclear Utility Management and Resources Council (NIMARC) has submitted i comments in response to the NRC's request. Georgia Power Company endorses 1 NUMARC's cossents and herein provides supplemental comments based on Georgia Power's experience as a licensee.

1. INTRODUCTION Georgia Power Company supports the NRC's efforts to ensure that employees within the industry who have safety concerns feel free to raise those concerns with their management, without fear of retaliation. These employees are a cfitical element in identifying and resolving potential l unsafe conditions. Georgia Power recognizes that it has a vital stake in '

assuring that its employees feel free to identify issues which, if left unresolved, will have an adverse impact on the safe and reliable operation l of its nuclear plants. For that reason, Georgia Power has made it an  ;

obligation, not just a right, of each employee to raise legitimate safety concerns.

In Georgia Power's opinion there is not sufficient justification for NRC to impose further requirements on licensees. It is apparent the overwhelming majority of industry employees feel free to raise safety concerns without fear of reprimand. Through the numerous concerns programs and opportunities for voicing concerns maintained by licensees, the empirical and anecdotal evidence is conclusive that the process is working and that the individuals who identify potential nuclear safety issues are viewed and treated as important contributors to the achievement of compliance and operational excellence. In an industry populated primarily by hi9hly skilled, well-educated and assertive professionals, the fact that annually only about one tenth of one percent (0.15) of industry employees

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GeorgiaPoWer A U. S. Nuclear Regulatory Commission .

Page Two file Section 211 claims is a remarkable testament to the industry's success in promoting the open and frank exchange of ideas and information. Indeed, NRC's Chairman Selin observed in his testimony on July 15,'1993 before the Senate Subcommittee on Clean Air and Nuclear Regulation of the Committee on ,

the Environment and Public Works (hereinafter "$ enate Subcommittee") that. )

"[m;ost of the employees that submit allegations to the NRC or raise issues to 1

iconsees do so without retaliation... [1]n almost every case [the NRC 1 resident inspectors I spoke with at two-thirds of our plants told me] that the [licenseas] employees seem to feel reasonably free coming to the [NRC resident ] inspector." Tr. at 123, 148.

Among the section 211 cases filed, there is an even smaller percentage of actual cases of harassment, and intimidation. These few instances occur even though the perpetrators are well aware such retaliation is unlawful and contrary to the policies of their employer. Often, at the heart of these instances of retallation are intense personality conflicts unrelated to " protected activity," the nature of which are such that there is little licensees or the NRC can do to completely eliminate the occurrence of these violations.

Moreover, it must also be recognized that on occasion employees within our industry seek to take advantage of the process for illegitimate reasons and will raise unsupported or frivolous claims. Before any changes to the current process are made, the NRC must carefully consider whether such changes will create additional opportunities for abuse of the process, placing additional unnecessary burdens on licensees, the NRC and the United States Department of Labor (DOL), and further exacerbating the frustration caused by these cases of abuse. -

II. DISCUSSION In response to the August 2,1993 Federal Register notice, Georgia Power Company has organized the following specific comments under the general subject headings which appeared in the notice.

A. Responsiveness and Receptiveness of Licensees to Employee Concern So That Employees Will Feel Free to Raise Safety Issues Without Fear of Retaliation Georgia Power Company has a well-publicized and practiced management philosophy of openly and frankly identifying and communicating potential problems in order to maximize awareness and to facilitate resolutions at the earliest possible stage. The internal mechanisms for soliciting, addressing and resolving concerns over nuclear safety, as well as other workplace concerns, are found at both plant and corporate levels.

At the plant level, we operate a Quality Concern Program, dedicated to acceptance and investigation of nuclear safety or quality concerns.

HL-3474 LCV-0165

l GeorgiaPower A U. S. Nuclear Regulatory Commission Page Three Confidentiality is offered and non-retaliation is guaranteed. Each plant also maintains a " Deficiency Card" systeer and a " Major Problems List,"

, throughwhichplantemployeesormanagerscandocumentan(notifytheir supervision of a potential quality or safety concern, and require that the concern be formally addressed and, if necessary, resolved by appropriate management.

! At the corporate level, we maintain the Corporate Concern Program,

a. direct outgrowth of the success of the nuclear plant Quality Concern Program. The Corporate Concern Program allows any employee to by-pass plant management and file a concern at a level reporting directly to the Company's executive officers. Once again, confidentiality and non-retaliation are assured.

Employees may also utilize the company's Internal Auditing and Corporate Security Functions or call or contact management, including the President, directly to have their concerns investigated. Finally, the Company maintains and encourages, at both the plant and corporate levels, open and frequent communication with the NRC and its resident inspectors.

The company has implemented the employee concerns program in a manner that ensures each employee is aware of the company's commitment to provide a work environment where they can feel free to raise safety concerns without fear of retaliation. At each plant, before each employee is badged, he or she received orientation training concerning the Quality Concern Program. Each employee then receives a letter from the plant General manager which explains the program and the employee's obligation to identify quality or safety concerns to their supervisor, or if they feel uncomfortable discussing it with their supervisor, to the next level of management or with the Quality Concern Program. The letter also explains that employees have the right to bring their concerns the attention of MRC Resident Inspectors, and their respective phone numbers are provided. With respect to acts of harassment or intimidation, the letter advises employees to be aware of their rights to report such acts to the NRC or the D0L, as described on NRC's Form 3. Each new employee is required to sign an acknowledgement form indicating that they have reviewed the plant General Manager's letter and that they are aware of the existence of the Quality Concern Program and their obligations to report quality or :afety concerns, as well as their rights to report harassment or intimidation i.e the NRC or D0L. In addition, upon each employee's separation from employment, they attend an exit interview (or are provided an exit acknowledgement form) to provide an opportunity to identify any concerns which they feel have not been addressed or any acts of harassment or intimidation. E A similar ,

E Copies of the Plant Vogtle General Manager's Letter, the Quality Concern -

Program orientation acknowledgement form and the exit interview acknowledgement form are attached for information. Similar forms are used at Plant Hatch. .

HL-3474 LCV-0165

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GeorgiaPower A U. S. Nuclear Regulatory Commission Page Four procedure is in place at the corporate office. Finally, the employee concern programs at the plant and the corporate office are audited annually and, periodically, Company management reviews a summary of concerns which have been submitted.

In conclusion, Georgia Power Company has established sufficient proprams to ensure that any legitimate safety concerns held by its esp,oyees are identified and promptly resolved. Furthermore, Georgia Power Company believes its policies and programs adequately convey its position to employees that those who raise concerns are considered vital to the safe and reliable operation of its nuclear plants. Thus, Georgia Power believes that its employees do feel free to raise concerns without fear of retaliation.

Based on this above, Georgia Power Company does not believe that the NRC should order, or provide prescriptive regulations or policy statements >

requiring licensees to adopt an employee concerns program. First, there is insufficient justification for imposing such requirements on the industry as a whole. Second, imposing such requirements will impose substantial resource burdens on licensees, most of whom already have some kind of concerns program, to conform their programs to such requirements. Third, substantial NRC Staff resources, which the NRC has recently observed are shrinking, will be unnecessarily consumed. Fourth, such requirements are not likehy to make a difference where the licensee already has a similar program. Finally, as Chairman Salin observed in his remarks to the Senate Subcommittee, it is the licens W s corporate culture, rather than any particular program or procedure, that will make the difference in whether employees feel free to raise concerns. If the employees do not receive the day-to-day encouragement from their management to raise safety concerns, the most elaborate concerns program in the world will not allay their fears.

of retaliation. In sum, the issuance of such new regulations would place form over substance, and require a major investment on the part of both licensees and the NRC without any meaningful increase in nuclear safety or employee welfare.

B. Resoonsiveness and Recentheness of the NRC to A11enations e

The Federal Register notice seeks comments on the NRC policy of referring allegations to licensees and actions which NRC can take to minimize compromising the identity of the alleger.

Georgia Power believes it is appropriate for the NRC to promptly refer allegations to the licensee which affect safety. This is the most expedient way to. ensure that legitimate safety concerns are swiftly resolved. While Georgia Power respects the desires of some employees who -

raise safety concerns to have their identities kept confidential, this HL-3474 LCV-0165

1 GeorgiaPower A i

i U. S. Nuclear Regulatory Commission Page Five l ~

l should not be a critical matter in a corporate atmosphere which encourages t

its employees to bring their concern to management. In those cases where the corporate atmosphere discourages employear from raising concerns, the i

issue should not be how to protect the confidentiality of hilegers, but how to improve the licensee's corporate culture.

J

! NRC resident inspectors are in an excellent position to determine l whether licensee's corporate culture is such that employees feel free to  ;

i raise concerns. Because these inspectors are located at the plants, they j

have daily contact with plant employees at all levels in the organization.  ;

l The residents are able to accurately determine whather special precautions 1 i should be taken to protect the identity of an employee who brings them an

{ allegation. With rare exceptions, we believe that the NRC's current j procedures for protecting the identities of allegers are adequate. The NRC -

i should not permit the exception to swallow the rule here, and undermine the I

! significant achievements of licensees in the voluntary non-retaliatory l resolution of safety concerns.

j C. Potential for Discrimination i

i Georgia Power Company believes that the NRC should always advise a licensee when employees express a reluctance to raise safety concerns for  ;

fear of retaliation. This information is important in assessing the '

licensee's corporate culture as well as the effectiveness of its concerns j programs. Of course, the NRC should also advise the licensee whether it i believes such information is indicative of a widespread problem or is an j exception to the views of most employees.

1 i

With respect to those employees who inform the NRC that they have

! safety concerns, but will not disclose them, the NRC should inform such employees of their obligations under NRC regulations to report significant safety issues to the NRC. The NRC could also offer these employees

!. confidentiality, pursuant to a written agreement, under their current j procedures. At the same time, the licensee, who presumably does not know the identity of the employee, could issue a general notice to all employees urging them to bring forward any safety concerns and assuring them that

, harassment and intimidation will not be tolerated.

t

! These steps should be adequate to ensure the disclosure of any

! legitimate safety concerns and alert licensee management to the potential

for a retaliation situation. On the other hand, the NRC must be cautious l not to create increased opportunities for those who abuse the system. Even i a cursory review of the whistleblower case law and D0L's experience under

! the Energy Reorganization Act establishes that licensees have produced an i exemplary record in the non-retaliatory treatment of legitimate -

! whistleblowers. At the same time, licensees must be free to take those i

i 1.

i HL-3474 i LCV-0165 i

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i GeorgiaPower d l

U. S. Nuclear Regulatory Commission Page Six  !

employment actions which they reasonably deem necessary to ensure that their workforces are competent, trustworthy and willing to abide by l regulatory requirements and that a free flow of infomation in their j workplaces is assured. '

l D. MC Investientions Durins DOL Process ,

l There appears to be little dispute that duplicative NRC and 00L I investigations of retaliation claims will be counterproductive. Net only would it require a substantial commitment of additional NRC resources, but it would likely work to delay the resolution of such claims and, at least up through the hearing stage, D0L has a commendable record for timeliness.

NRC should await the completion of the D0L process through the hearing stage and the NRC should utilize the record, to the extent it is developed, by the D0L Administrative Law Judge (ALJ).

In a 00L case where the ALJ does not reach a finding on the merits, as when the case is settled, the NRC should make its own detemination, based on the facts gathered to that stage of the proceeding and any additional facts it may develop, as to whether enforcement action is appropriate. The NRC should not automatically take enforcement action based on a D0L compliance officer's finding against a licensee. Fairness i and due process require that the NRC afford licensee the opportunity to l demonstrate that a violation of NRC requirements did not occur. Without 4

such an opportunity, licensees will perceive that, with an adverse finding from a D0L compliance' officer, settlement of the case should not be 1

considered because the compliance officer's report will be used by the NRC

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as a basis to take enforcement action. This adversely affects the interests of both licensees and 00L complainants. Duplicative or parallel processes by the NRC would also allow illegitimate whistleblowers the  !

, opportunity to expand and frustrate the adjudicatory process, heaping delay

! and expense upon licensees. The result is that well-meaning licensees are 4

punished without due process.

E. Earlier NRC Enforcement Action .

1 As noted above, the NRC should await the completion of the D0L hearing process before initiating enforcement action. Early enforcement action will require the licensee to defend its actions on two fronts which is inherently unfair, jeopardizing the ability of the licensee to present a full defense, while allowing whistleblowers to impose undue litigation costs upon the licensee. The NRC should not encroach upon the 00L process i

HL-3474 l LCV-0165 0

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l GeorgiaPower A U. S. Nuclear Regulatory Commission Page Seven which, at least through the hearing stage, works as well or better than any whistleblower resolution process under federal law. Moreover, the D0L hearing process allows for a full and independent assessment of the credibility of both the whistleblower and the accused management.

F'. Chilline Effect Letters

• Georgia Power Company's observation is that the so called " chilling effect" letters serve an important function and are adequate. However, NRC's. current practice of issuing those letters at the time of an initial D0L investigation finding of discrimination creates misconceptions concerning the merits of the case as well as the extent to which NRC has been kept informed. Such a " chilling effect" letter can create a perception among employees that the iconsee has already been found guilty of misconduct, and that potential filers of safety concerns should fear for their job security. This is clearly not the message the NRC should be sending, and it punishes licensees without due process and well before any determination of wrongdoing has been rendered. Furthermore, the issuance:

of a formal " chilling effect" letter with respect to a given 00L complaint may give the impression that the NRC and the licensee have not communicated and that the NRC is uninformed of the facts of the case and unaware of the licensee's general corporate culture, which Georgia Power submits is not the case. The NRC should take steps, including the timing and message of such letters, to minimize the potential for these misconceptions.

G. NRC Civil Penalties

, NRC civil penalties for violations do provide deterrence for retaliation. Any violation of NRC regulations carries with it criticism from local public officials and the community at large. A violation for retaliation adds the stigma of an employer mistreating it employees.

Georgia Power Company does not believe there is sufficient justification to increase the Severity Level or the amount of civil penalties for retaliation violations. This will escalate the enforcement processincreasingtheburdensonthelicenseeaswellastheNRCstaff.E l

E A similar conclusion was expressed by Chairman Salin at the July 15, 1993 Senate Subcommittee hearing when he said:

[T]here has been a lot of discussion about heavier penalties at the end and things like that. We'll look at these, but heavier penalties mean higher standards of proof, which mean a longer process and not a shorter process, so there is a real trade-off between hitting people with a bigger stick at the end and moving more quickly at the beginning, and that has to be looked at very carefully...

and more use of criminal (penalties) has the same problems.

Tr. at 139. '

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! GeorgiaPowerA 1

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U. S. Nuclear Regulatory Commission Page Eight

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i It is unlikely that such escalation will have any substantial effect on i'

those few cases of actual harassment and intimidation which will. occur.

i H. Use of Deliberate Misconduct Rule The comments expressed above with respect to increased enforcement sanctions apply with even greater force to the use of the deliberate misconduct rule in cases of retaliation. These actions will be hotly i

contested, and resolution will be more difficult, when the careers of l individuals are at stake. Licensee disciplinary policies are capable of

adequately addressing individual misconduct. The NRC should limit its oversight to whether the licenses has taken appropriate actions to address the problem.

4 III. CONCLUSION

, For the reasons expressed above, Georgia Power Company does not believe there is sufficient . justification for the NRC to impose additional requirements upon licensees to protect licensee employees who would raise, safety concerns. The overwhelming weight of the evidence is that licensees recognize such employees as valuable contributors and only a small percentage of industry employees file retaliation claims each year.

Among the Section 211 cases which are filed, there are few actual cases of retaliation and, because of the nature of those that do cccur, imposition of requirements for employee concerns prograss and procedures is not likely to prevent their occurrence. Additionally, imposition of such requirements on licensees are likely to increase the opportunities for those who seek to abuse the process for illegitimate purposes. An increase in the number of cases of abuse will be a source of frustration for licensees who will be targets of such abuse, and will further burden the limited resources of the D0L and NRC.

Georgia Power Company agrees with the observation of Chairman Selin that it is the licensee's corporate culture, more than anything, which will effect whether employees feel free to raise safety concerns. 'he commitment of substantial NRC and licensee resources to prescriptive requirements for employee concerns programs would do little to ensure an -

appropriate corporate culture, and therefore, would not be fruitful.

Respectfully submitted,

!/

(.)f.,f','/IAw

/

C. K. NcCoy /

CKM/JDK HL-3474 LCV-0165

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C En eu $E, T.esonoao 404 525 3t95 ATTACHMENT 8 uanng Ader.ss.

40 inw.en.es censer Pame.y

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{ um.= o wasas May 11,1994 E

E TO ALL GEORGIA POWEREMPLOYEES -

8 By now each of you have been made aware of the recent Notice of Violados and -

E proposed imposition of a $200,000 civil penahy against Ooorgia Power Company.

'Ibe Company is still evaluating this document, both its facmal r = % ions and the g legal options, and will prepare an appmpriate response. The purpose of this leasr,.

though, is to assure all of our employees that Georgia Power Company remains firmly ca==itted to a full, open, complete and accurate canummientiana policy with the Nuclear Regulatory Cammimmian. any of the Company's E_"^ y E authorities, and with each other. Regardless of the outcome of the Notice of Violation, all ofus should caneidar it our personal responsibility that when caued g upon to communicate with the Nuclear Regulatory Ca==i==ian or its staff, whether orauy or in writing, we will do our best to ensure that the information pmvided is complete and accurate in all material respects. This is our obligation l by law, this is our obligation by the terms ofour licenses, but more importandy, it is the right thing to do.

E. We should all mhar, and take seriously, that the policy of Georgia Power Company is to conduct its business afBdrs in an ha--t ethical manner and to l comply with all laws and regulations =N*ia= the Company. Important to our success as a company is our success at compliance with our legal obligations. ~

Ifyou have a concern which you wish to raise, then you are to do so.

g Georgia Power Company's policy is to encourage its employees, and emp'.oyees of its contractors, to communicate their concems to their supervisors, which they are free to do at any time. If an employee concern cannot be resolved through this g traditional chgemel, or if the employee wishes to pursue the matters through the E concems program, then use of that pmgram is encouraged. In short, the Company wants you to feel free to raise any concem which you may have and has prbvided E ,

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.- - - - - - - . - ~ - - _ _ - _ _- - - - - - _ _ - - - - - _ . ------- __ . --

All Georgia Power Employees May 11,1994 .

multiple ways for you to do so. You will be treated with respect, y'ou will be t

treated with courtesy, and a fair and reasonable response will be provided ~

, promptly and completely. Of course, you may always go 4;.My to the Nuclear Regulatory ca==i== inn if you wish and the way to do this, as well as the relevant phone numbers, is posted on numerous bulletin boards throughout the l work areas. Rest assured that you may raise your concerns without any f'c ar of penalty orretaliation.

Let's all work together as a team, and dadienen ourselves to safe and efficient nuclear plant operations. We all have a ca====ity ofintestst in tbs success ofour g company, we all have a co==tmity ofinterest in fhil, open, complete and accurase

... cation with ourselves and with our regulatory authorities. Let's pursue l these goals to the best of our individual abilities.

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i M. Anon FrenMin i Pres:oen:

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October 3,1995

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TO: GEORGIA POWER OFFfCERS AND NUCLEAR EMPLOYEES i

i j Genrf ai Power Policies on Raining Safiety and Regulatory j compliance Concerns i

i As you may be aware, Georgia Power is cunently involved in several litismend rnauers in which fonner employees allege that Georgia Power retaliated against them in

, 1990 for raising conosens about compliance with Nuclear Rasulatory ch

%.I.== = These prMa== continus, but regentless of their outcome, you should '

j know that it is Georgia Power's longstanding policy to encourage its .- ;, _ z ao idensify and to report earnpliance concerns. No retaliation for raising a campHa=== conmem will be tolerated. Any employee, including a supervisor, manager or of5 car, who :== Alma == or penalizes an individual for submission or voicing of a enanmen will be subject to ayr,ey.-h disciplinary action.

Georgia Power is deeply committed to open and eflinctive ea====aiemian in its business, in particular ej=Mug " upward - /- l " so that personnel freely being issues to the auention of their supervision. In the mid-1930s the Company developed

" Quality Concerns" programs at its nuclear plases to foster an open annosphere where  ;

employee concerns may be raised, reviewed and corrected. A Company-wide " Corporate

. Concems" program was ? ;!=e --4 later, based on the success of the nuclear plant programs, to give .

-!e, _ z who have concess of an ethical nature or conoems otherwiss i related to theirjobs an option, in addition to going through line management, to pursus those concess. Southern Nuclear has also set up an Employee conosms program in Birmingham for nuclear relsend concerns. Conesens may be =d=nin=d =- ,- _2 7 ,if desired, to these pograms. In addition, employees who have nuclear reisted concerns about our nuclear plants may contact the NRC Resident inspectors who have ottices at each of the nuclear plants, or call the NRC's Regional Office at Atlama.

4 i

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1. 1 H. Allen Franklin i

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. . _ _ _ _ _ _ . . _ _ - - - - - - - - - ~ ~ ~ ~ ' ~ ~ ' - ~ ~ ~ ~ ~ ~ ~

~s' ATTACBsENT 9

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x.a.._ ganm. ru...u  % w - ume ~.2 .: = .= - . . . . 1 Reich hands downMosbaugh decision, GeorgiaPowerwillappeal Overruling the 1992 decision of a Depamnent of Labor adminiwrative law judge, Labor Seas f obert R Reich has mled in favor of Allen MWa-h. the fonner Georgia Power employee who was fhed in 1990 for secretly tape recording conversations with his co workers. After he was fired, Mosbaugh had brought a claim against Georgis Power at the Deis. J of Labor. *!he departments administrative lawjudge ruled in 1992 that Georgia Power acted romaanahly when it fired Mosbaugh.

In overnding that decision, Reich remanded the issue to the administrative lawjudge for a variety of remedies to be determined at a subsequent hearing. 'Ihose various remedies would include reinFc==st with back pay, reimbursement for attomey's fees and compensatory damages.

Georgia Power expressed disappointment at Secretary Reich's " rejection of his own admin-istrative law judge - whose conclusions were based on his having presided over the trial of this case three and a half years ago. 'Ibe decision does not appear to be based on the evidence or well marshliched law and policy. We will appeal this order."

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3 February 1, 1996 and the Secretary's finding, and providing GPC's views and a root cause I evaluation. (Because the Motion to Reopen (Attachment I to Enclosure 3) is voluminous and was previously forwarded to the Board by Mr. Lamberski on December 19, 1995, it is not included in this BN).

This information is being brought to the attention of the Licensing Board and All Parties, as it may be relevant and material to issues pending before the Licensing Board.

Docket Nos. 50-424-OLA-3 and 50-425-OLA-3

Enclosures:

1. S. Ebneter letter to W. Hairston,1/12/96

2. W. Hairston letter to S. Ebneter, 12/21/95  !

3. W. Hairston letter to S. Ebneter, 1/19/96 1

cc w/encls:

See next page I

, . ,A I

February 1, 1996 and the Secretary's finding, and providing GPC's views and a root cause evaluation. (Because the Motion to Reopen (Attachment 1 to Enclosure 3) is voluminous and was previously forwarded to the Board by Mr. Lamberski on December 19, 1995, it is not included in this BN).

This information is being brought to the attention of the Licensing Board and All Parties, as it may be relevant and material to issues pending before the Licensing Board.

Docket Nos. 50-424-OLA-3 and 50-425-OLA-3

Enclosures:

1. S. Ebneter letter to W. Hairston,1/12/96 1

2. W. Hairston letter to S. Ebneter, 12/21/95 1

3. W. Hairston letter to S. Ebneter, 1/19/96 .

1 cc w/encls: I See next page l l

l l

l l

DISTRIBUTION Docket File PUBLIC PDII-2 RF DOCUMENT NAME: G:\V0GTLE\ HEARING \DOLEA2.BH , .

OFFICM DRPE/P022/PM DSPE/PD22/bOE/D

• OGC A DRPE/D d RII f NAME h D.H000)h ' O J.LIEBERMAN S r BY E MA '2.

DATE 1/ N /96 1/7//96 1/31/96 1/ 3 I /96 6 1/3/96 COPY M NO NO O NO YES NO ES NO (T3 N0 _

0FFICIAL RECORD COPY

• 01/31/96 e-mail concurrence by J. Gray,0E for J.Lieberman,0E p5(f

r y, 1

February 1, 1996 and the Secretary's finding, and providing GPC's views and a root cause evaluation. (Because the Motion to Reopen (Attachment I to Enclosure 3) is voluminous and was previously forwarded to the Board by Mr. Lamberski on December 19, 1995, it is not included in this BN).

This information is being brought to the attention of the Licensing Board and All Parties, as it may be relevant and material to issues pending before the Licensing Board.

Docket Nos. 50-424-OLA-3 and 50-425-OLA-3

Enclosures:

1. S. Ebneter letter to W. Hairston,1/12/96

2. W. Hairston letter to S. Ebneter, 12/21/95

3. P. Hairston letter to S. Ebneter, 1/19/96 cc w/encls:

See next page i

l 1

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Georgia Power Company Vogtle Electric Generating Plant cc:

Mr. J. A. Bailey Harold Reheis, Director Manager - Licensing Department of Natural Resources Georgia Power Company 205 Butler Street, SE. Suite 1252 P. O. Box 1295 Atlanta, Georgia 30334 Birmingham, Alabama 35201-Attorney General Mr. J. B. Beasley Law Department General Manager, Vogtle Electric 132 Judicial Building Generating Plant Atlanta, Georgia 30334 P. O. Box 1600 Waynesboro, Georgia 30830 Mr. Thomas P. Mozingo Program Manager Regional Administrator, Region II Nuclear Operations U. S. Nuclear Regulatory Commission Oglethorpe Power Corporation 101 Marietta Street, NW., Suite 2900 2100 East Exchange Place Atlanta, Georgia 30323 P. O. Box 1349 Office of Planning and Budget Room 6158 Charles A. Patrizia, Esquire 270 Washington Street, SW. Paul, Hastings, Janofsky & Walker Atlanta, Georgia 30334 12th Floor 1050 Connecticut Avenue, NW.

Office of the County Commissioner Washington, DC 20036 ,

Burke County Commission Waynesboro, Georgia 30830 Arthur H. Domby, Esquire  ;

Troutman Sanders Mr. J. D. Woodard NationsBank Plaza Senior Vice President - 600 Peachtree Street, NE.

Nuclear Operations Suite 5200 Georgia Power Company Atlanta, Georgia 30308-2216 P. O. Box 1295 Birmingham, Alabama 35201 Resident Inspector U. S. Nuclear Regulatory Commission Mr. C. K. McCoy 8805 River Road Vice President - Nuclear Waynesboro, Georgia 30830 Vogtle Project 4 Georgia Power Company l 1 P. O. Box 1295 '

l Birmingham, Alabama 35201 i

, i, i j Board Notification: 96- 01 Dated: February 1, 1996 cc:

J. Taylor, EDO J. Milhoan, DEDR H. Thompson, DEDS G. Tracy, EDO (Region II Plants)

W. Russell, NRR/F. Miraglia, NRR.

R. Zimmerman, NRR -

1 A. Thadani, NRR

< D. Crutchfield, NRR T. Martin, RI  !

S. Ebneter, RII j H. Miller, RIII l J. Callan, RIV  !

K. Perkins, Field Office, RIV l L. Chandler, OGC OGC (3) l C. Cater, SECY (3)

J. Cordes (A), OCAA ACRS R. Ingram, NRR S. Varga, NRR l J. Zwolinski, NRR H. Berkow, NRR D. Matthews, NRR D. Hood, NRR R. Hoefling, OGC M. Young, OGC C. Barth, OGC J. Rutberg, OGC J. Goldberg, OGC ,

L. Robinson, RII R. Crlenjak, RII P. Skinner, RII  !

E. Merschoff, RII l C. Evans, RII i J. Lieberman, OE R. Pedersen, OE J. Gray, OE D. Murphy, OI 1

1

1. . *~

BOARD NOTIFICATION NO. 96-01 I

, GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

Docket Nos. 50-424-OLA-3,50-425-OI.A-3 Peter B. Bloch, Chairman Michael D. Kohn, Esq. l Administrative Judge Stephen M. Kohn, Esq. -

' Atomic Safety and Licensing Board Kohn, Kohn and Calapinto, P.C.

Mail Stop: T-3 F23 517 Florida Avenue, NW ,

U.S. Nuclear Regulatory Commission Washington, DC 20001 ,

Washington, DC 20555 Office of Commission Appellate Thomas D. Murphy Adjudication '

Administrative Judge Mail Stop: 0-16 G15 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Adjudicatory File (2) ,

Atomic Safety and Licensing Board Dr. James H. Carpenter Panel Administrative Judge Mail Stop: T-3 F23 933 Green Point Drive U.S. Nuclear Regulatory Commission ,

Oyster Point Washington, DC 20555 Sunset Beach, NC 28468 Atomic Safety and Licensing Board Dr. James H. Carpenter Panel Administrative Judge Mail Stop: T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, De 20555 Office of the Secretary (2)

Attn: Docketing and Service Branch James E. Joiner Mail Stop: O-16 G15 John Lamberski, Esq. U.S. Nuclear Regulatory Commission Arthur H. Domby, Esq. Washington, DC 20555 Trautman Sanders NationsBank Building, Suite 5200 Director, Environmental Protection 600 Peachtree Street, NE Division Atlanta, GA 30308 Department of Natural Resources 205 Butler St., S.E.

David R. I.ewis, Esq. Suite 1252 Ernest Blake, Esq. Atlanta, GA 30334 Shaw, Pittman, Potts and Trowbridge 2300 N Street, NW Mr. Bruce H. Morris Washington, DC 20037 Finestone, Morris & Wildstein Suite 2540 Tower Place Mr. Steven A. Westby 3340 Peachtree Road, N.E.

Suite 900 Atlanta, GA 30326 191 Peachtree Street, N.E.

Atlanta, GA 30303 l

l

A"*%%, -

UNirID STATE:

NUCLEAR REGULATORY COMMISSION

& nemoN u E tot uanertA sTnerr, N.W., SURI BED

• ATLANTA, oEORo8A MS e.

..... January 12, 1996 EA 95-277 Georgia Power Company ATTN: Mr. W. George Hairston, III Executive V<ce President Post Office Sex 1295 81minghes, Alabama 35201 /

SUBJECT:

DEPARTMENT 0F LABOR CASE NDS. 91-ERA-01 and 91-ERA-11

Dear Mr. Hairston:

By letter dated December 21, 1995, you requested that the Nuclear Regulatory Commission (NRC) defer the response to an apparent violation related to the subject Department of Labor (DOL) case, until your Motion to t- -- tha r==r.:

and for Further Hearinas filed with D0L on December 13, 1995 is finalized.

The apparent violation of 10 CFR 50.7, Employee Protection, which was identified in our letter to you dated December 12, 1995, involved GPC's termination of Mr. Allen Mosbaugh. The Secretary of Labor, in his Daciniaqr and Ramand order dated November 20, 1995, concluded that Georgia Power terminated Mr. Mosbaugh for engaging in protected activities. We have reviewed your request and the Motion to P----- that you filed with the Secretary of Labor and we have concluded that deferral of the response to the apparent violation is not warranted. Therefore, we request you to comply with our letter of December 12, 1995 which required a response to the apparent violation.

In your letter of December 21, 1995, you stated'that although you agreed that a predecisional enforcement conference was not needed in tk s case, Georgia Power would like an opportunity to address the NRC with regard to the Secretary of Labor's w inton " e-- " Crir and point out other relevant infomation that the NRC should reconsider prior to an enforcement decision.

Therefore, as discussed in a January 11, 1996 telephone call between Mr. C. K. McCoy, Vice President, Vogtle Project, and Mr. Pierce Skinner of the NRC, your response to the apparent violation should be submitted by January 19, 1996. Your response should explain your views on the apparent violation, its root causes, and a description of planned corrective actions.

In addition, you may point out any disagreement with the facts and findings presented is.the Secretary of Labor's decision and any other information you consider relevant to the NRC's enforcement decision. We also understand that 4

you will address the NRC's concern with regard to the potential chilling effect associated with the Secretary of Labor's decision by January 19, 1996.

Your response should be submitted under oath or affirmation and may reference or include previously docketed correspendence, if the correspondence adequately addresses the required response. If an adequate response is not received within the time specified or an extension of time has not been sought and granted by the NRC, the NRC will proceed with its enforcement decision or schedule a predecisional enforcement conference. You will be advised by separate correspondence of the results of our deliberations on this matter. l l

Enclosure 1 l

l I

1

. GK 2 In accordance with 10 CFR 2.790 of tha NRC's " Rules of Practice," a copy of this letter and your response will be placed in the NRC Public Document Room (POR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in I the POR without redaction.  !

The response to the apparent violation is not subject to the clearance

>rocedures of the Office of Management and Budget as required by the Papemerk

,teduction Act of 1900, Pub. L. No. 96.511. .

Should you have any questions concerning this letter, please contact Mr. Pierce Skinner at (404) 331-6299 as soon as possible.

Sincerely, Stewart D. Ebneter Regional Administrator Docket Nos. 50-424, 50-425 License Nos. NPF-68, NPF-81 cc:

J. D. Woodard Senior Vice President Georgia Power Company P. 0. Box 1295 Bimingham, AL 35201 J. B. Beasley Gueral Manager, Plant Vogtle Georgia Power Company P. O. Box 1600 Waynesboro, GA 30830 J. A. Bailey Manager-Licensing Georgia Power Company P. O. Box 1295 Birmingham, AL 35201 Nancy G. Cowles, Counsel Office of the Consumer's Utility Council 84 Peachtree Street, NW, Suite 201 Atlanta, GA 30303-2318 cc cont'd: (See next page)

- GK 3 cc cont'd:

Office of Planning and Budget Room 6158 270 Washington Street, SW Atlanta, GA 30334 Office of the County Commissioner Burke County Commission Waynesboro, GA 30830 Harold Rehets, Director Department of Natural Resources 205 Butler Street, SE, Suite 1252 Atlanta, GA 30334 Thomas Hill, Manager Radioactive Materials Program Department of Natural Resources 4244 International Parkway Suite 114 Atlanta, GA 30354 Attorney General Law Department 132 Judicial Building Atlanta, GA 30334 Thomas P. Mozingo Manager of Nuclear Operations 1 Oglethorpe Power Corporation 2100 E. Exchange Place Tucker, GA 30085-1349 Charles A. Patrizia. Esq.

Paul, Hastings, Janofsky & Walker 10th Floor 1299 Pennsylvania Avenue Washington, D. C. 20004-9500

• l .* ym **V e

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• 3lhooment Avenue I Apene Gwome JGL*8 To:cerone esa $28 3115

. vae,w oc kvemees Comer 4m a moncesesins smween.meesms?,a.T toteenene ase ses als'

,rew w eraremmem I w.a no., m 14V 0723 sa**"

• Daoumber 21.1995

• *8ueleaf C40 semens i Doeks:No. 50424 and 50 425 l

w. sesant D. mew l RegionalAsheimisensor U. 5.NusiserRapissory Coasmosion .

Region H 101 Mariana stress. N. W.

Sules 2900 Asiassa, Georgia 30323 0199 RE: Deperunner of Labor Cass Nos. 91 ERA 01 and 91 ERA 11 (EA 95-277)

DentMr.Elmsser:

This neuer responds to your tener of December 12,1995, rossived on December 18,  !

1995. . Georgia Power cendrms that a predenisional entnessmas osedusass ruindve as the above.rudhrensed Doomon sad Rammad Order of the Secretary of Labor is not nanded.

Beaume Georgis Power disagress with the Seeresary oftabor's demisina, it ressuely fred a Motion to Roopes the Record and tr Funbar Hannmes wick the Deparument of Labor and based this monom tapoa labrandon which was not avaihbie to Osorsis Firmer at the ties of tbs DOL hamnas in 1992. Copies of 0eorgia Power's Modos have been pnyvided to tbs NRC. i:miuding your otles, boosuus of the eslovesey that this evidemos hes to both the DOL decimos and any poestdo entuosman W of esurse, Georgia rome would me the opportenby to address the NRC consumius the Seanmary of Labor's Desimism and Rammed Order, however, to avoid a piessemel reviser ofthe DCL record andder adminissenve edBeismsy, we respenhly request ties assh a response he dehned amB aur Adades to Asopen is SanEsed. Undoubsesy, there wE he adedessi evidenes mina a abs romand headas on the issue of the appropdses somedy sad tide, tea, may be peninsa to ear easweemmer m in adeden. Georgia Power amisipmus .

requeming slus the NRC camsider other relevant indumados already la ks posesseios, peer a maides sur esanomment deelsion. .

wesweemmmmes this demnai regnest, ans ia ennennense wbh your senespondsmse, Georgia Power wit address your seesma abma the possuid elmus sen" emessistiad whk the asser en er behes Jesumy 11,1996.

Enclosure 2 b . . _ _ _ . __ . __ __ _-___ . _ _

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actt:3.'; W.'.t:T .Sr.

Mr. Stewust D. Ebasser Desseber21,1995

. Pass 2 Should you have am!r quesness conoorning our request ihr a deteral of our responsa, pleans est Aus to causas abber me or C. K. McCoy, Vine Presidset, Vogde Project (205) 377 7122. Theek you fbr your commidermion of our rupest.

Ifyou osammar wiek our reques, pleans nosi$ us as your earliest convenismos ao that we sney avoid shaplicasive and um samvity.

Sionsruly yours, W.k. d& .

W. G. Heirman, E Ensionou as: daarniaPasent Commany ner. J. B. Benoisy, Jr.

2.M. Shakeni NORMS t{ E. NueimarRandatory Casassian I

w. 5. D. Ebomer, Regional Adminiursor l@. L. L Wheeler, Llosesing Freien Manager, NWR.

Mr. C, L ogle, senior h Inspanor, Vogde l

1 3

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) Gzorg.a Poesr Cr-:a f

. < 333 p.soment Avse o 4

• Atlanta. Gsorgis 3C308 i Tsieonore 404 526 3195 i

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Mailing Address:

40 inverness Center Parkway j Post Office som 1295

Birmingham. Alabarma 35201

Tei ohone 2cs sas.5ssi 1

l January 19, 1996 ..g3,.....,.,.. .,.

k W. G. Hairston til

Executive V

ce Pres. cent LCV 0725-A j Nuclear Operations b

]

Docket No. 50-424 and 50-425 4

i Mr. Stewart D. Ebneter

+

l Regional Adsniaistrator l U. S. Nuclear Regulatory Conwnimalan, Region II i 101 Marietta Street, N. W., Suite 2900 ,

Atlanta, Georgia 30323-0199 l Re: Department ofLabor Case No. 91-ERA-01 and 91-ERA-11 l Mosbaugh v. Georgia Power Company (EA 95-277) ,

i j

Dear Mr. Ebneter:

1 i

i This letter is in fbrther response to your letters of Deceanbar 12,1995 and January 12,1996 j and supplements our December 21,1995 letter concerning the U. S. Department of Labor Secretary's Decision and Romand Order ofNovember 20,1995. Thisletter addressesin detail i your concern about the potential ' chilling effect" aaaari=* art with the terminatina ofMr. Allen l Mosbaugh and the issuance of the Secretary of Labor's findings. Our views of the apparent i violation and a root cause evaluation are also pra===* ant. Based on the discussion below,

! Georgia Power Company denies this apparent violation.

l The Secretarv's Decision t

Georgia Power believes that the Secretary of Labor's decision holding that Mr. Mosbaugh's

! surrepentious tape recording was lawthi and aaaneinwari evidence gathering in support of a j nuclear safety complaint is legaDy and fhetuaDy incorrect. 'Iberefore, Georgia Power wit i appeal abs Secretary's final decision (after the required romand(s) for ihrther determinations),

l ifit is unikvorable ts Georgia Power. Moreover, Georgia Power has omved to reopen the

! Department c(Labor record on the basis of new and material infonnation which was not j available psior to the close of the hearing record in 1992. 'Ihe new indbnnation includes portions of tape recordings withheld flrom disclosure by the NRC in the nonnel course ofits l

investigative efrorts and h--*=*ia provided to the NRC by Mr. Mosbaugh. As more j fuHy explained in its Motion to Roopen the Record (Attacha=* 1), Georgia Power contends that Mr. Mosbaugh winfbily caused violations ofNRC regulations and the Atomic Energy 4

i 4

l Enclosure 3 i

1

i i GeorgiaPower A j Stewart D. Ebneter l

j. January 19,1996 i Page 2 5

i Act, that he falsely testified at the Department of Labor hearings, and that his taping was l

l indisciouirste, unreasonable and, in some iristances, unlawful.

! It is ironic that the Secretary of Labor has deemed Mr. Mosbaugh's extensive taping over. l l approximately eight months, iaelafag his conversations with NRC investigators and i inspectors, as " protected activity that constituted evidence gatbig in support of a nuclear safety complaint." (Decision and Romand Order at 13.) As further explained in this letter, the validity of this decision is, in fact, the crux of our legal dispute with the Secretary of Labor's 4

order. Our evidence clearly demonstrates that during this 1990 time frame Georgia Power l was emphasizing'its policy of open, honest communication with the NRC and encouraging its I employees to cooperate fully with NRC's investigations, while recognizing their personal

' rights in the investigative process. In fact, Vogtle Project personnel were informed that they may request that the NRC tape record investigative interviews (Aptd 5,1990 "OI Interview Guideliams," pg. 2, (Attachment 2)). Mr. Mosbaugh, on the other hand, decided to make his own tape (Tape 251) of his OI interview on August 15,1990, without informing the NRC l

i. Similarly, he tape recorded NRC Resident innaac+ ors (Tape 107; Tape 172) and NRC i j '

Regional Inspectors (Tape 87). Furthermore, Mr. Mosbaugh did not limit his taping to documenting evidence of safety violations. Rather, when his tape recorder was "on", it captured those conversations within its range; even those in which Mr. Mosbeugh was not an

! active participant. This is not the kind of tape tsvid:.4 that can be reasonably characterized j as evidence gathering in support of a nuclear safety complaint. It also clearly is not the kind

of taping which the NRC would have contemplated or asked Mr. Mosbaugh to do, u

! suggested by the Secretary (Decision and It*1nand Order at 14, footnote 4). To the contrary, j it is the type of taping which breeds distrust and chills open comnuniications.

1 The narrow issae of secret tape secc,id!.4 of conversations in the nuclear work place and

when such tape recording is " protected activity" was addressed by former Chairman Selin in j his July 14,1993 letters to the members of the U.S. Senate Subcommittee on Clean Air and

l Nuclear Regulation. Chairman Selin observed that "lawAd taping of conversations to which  !

I the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of theraineae or the NRC, should not be a valid basis for terminating an employee." As the NRC knows from its own review of the tape swerd:.gs, Mr. Mosbaugh simply taped daily events over the I course of many months as they unfolded. The tape recording was not limited in either duration or scope, nor was h selective. Mr. Mosbaugh did not promptly disclose the existence i of the tapes to the NRC; only when ordered to compel the release of the tapes to Georgia Power did he inform the NRC of their relevance to ongoing regulatory reviews.

4 I

L i

. e, .

Georgia Power A Stewart D. Ebneter January 19,1996 Page 3 In our view, the Secretary had an inadequate and incomplete factual basis for evaluating Mr.

Mosbaugh's tape recording, even against the e=ndards set out in Chairman Selin's guidance.

With the benefit of the whole story, iaakidia: the facts set forth in our Motion to Roopen, the Secretary should find that Mr. Mosbaugh's taping did not meet the criteria set forth by Chairman Selin; it was not carried out in a limited and reasonable ==nn , nor did be promptly advise the NRC of his taping or the information on his tapes Furthennore, the tape recordings do not support Mr. Mosbaugh's Department of Labor claims and demonstrate his own significant contribution to the violation ofNRC regulations, which was the subject of one of his major allegations, i.e. the April 19,1990 f ican=aa Event Report. These facta, Georgia Power submits, are reasons why Mr. Mosbaugh did not promptly disclose the avistanan of his tape recordings to either the licensee or the NRC, and why his actions were not " protected."

A copy of former Chairman Selin's letter is enclosed (Atrac.hment 3). Georgia Power notes that Chairman's Selin letter does not rise to the standard of a rule, r-I +iaa or order as contemplated by Section 161b of the Atomic Energy Act. Further, Georgia Power questions whether the criteria set forth in Chairman Selin's letter would be Pdia3=Hy upheld u adequately protecting the rights of employers in similar situations.

Root Cause Evaluation If there is a violation, then its apparent root cause is the difference between the legal positions of Georgia Power (with which the Department of Labor Ad...:..:- dhe Law Judge agreed in 1992) and of the Secretary of Labor in 1995 regarding " protected activity" under the Energy Reorganization Act. A contributor to this difference of positions is the lack of a complete and accurate record before the Secretary of Labor r==>l'iag. to a significant degree, from the lack of relevant evidence available to Georgia Power prior to the close of the Departmanr oflabor record.

Potential "Chillino Mant" on gara*v Canearns From the outset, Georgia Power has been careful to separate Mr. Mosbaugh's taping actions from various courses of action available to Vogtle employees who may want to raise safety-related concerns. Georgia Power contends that Mr. Mosbaugh's taping, under the circenstances, was inappropriate. However, Georgia Power also recognizes that the voicing of concerns is not only appropriate, but should be encouraged. Georgia Power has encou raged its employees to maintain open and frank communications within its organization and with the NRC and to promptly report safety or operational issues. As further explained in our lett w of January 10,1991, Georgia Power recognized that its employees might associate Mr. Moebaugh's administrative leave and termination of employment with his identi6 cation of safety corcerns Early Georgia Power initiatives were desigDed to preclude possible mi=>adarstwiings and to make clear that Mr. Mosbaugh's discipline was ===acintad with surreptitious ! aping of conversations and was not the result of his raising concerns. A copy of rem

3 . ,

l GeorgiaPower d

! Stewart D. Ebneter

January 19,1996 l Page 4 l i i 8

i Georgia Power's January 10,1991 letter is attached hereto u Attachment 4 for your convenience.

Georgia Power has repeatedly stressed that no adverse action was taken against Mr. .

Mosbaugh as a result of submission of his concerns to his ernployer or to the NRC.

Signifi dy, the Secretary ofLabor did not Snd any retaliatian for raising ofconcerns and speciScaDy concluded Mr. Mosbaugh's average interim performanca rating in August 1990 and removal ofhis company car when assigned to SRO school were not retaliatoiy for raising concerns. (Decision and Ramand Order at 15-16.) In our prior January 1991 letter to you we pointed out that at the time Mr. Mosbaugh was placed on administrative leave, he had been previously selected and assigned to SRO training and the Managerm* -Training program. The tr.:..:.4 had been listed u his Srst choice on his list of career options developed on April 30, 1990. These facts were emphasized to our employees in a January 2,1991, letter firom Mr.

Bill Shipman. (Attachment E to Georgia Power's January 10,1991 letter).

Georgia Power disclosed the existence of Mr. Mosbaugh's massive tape recordings to its employees on September 19,1990, shortly after leaming of the taping (see Attac1=nant A to Georgia Power's January 10,1991 letter). This was consistent with Georgia Power's attempts to foster better internal communications difring this time frame. In a nimilar manner, Georgia Power's Plant General Manager issued a mamarandum to employees in August 1990 (prior to knowledge of Mr. Mosbaugh's taping activity) which m ' formed them that all allegations of wrongdoing reviewed by a special NRC inspection team had been found to be unsubstantiatad The General Manager also emphasized Georgia Power's policy of cooperation and openness with the NRC:

The NRC appropriately investigates suegations of wic;'-i; which bear on matters of safety or public heahh in a thorough and deliberate manner. While a i formal interview [of an employee] may be aliacaar= ting or stress 6d, these reviews '

are ana=*imas necessary. Georgia Power encourages cooperation in these investigations and views it as essential that the NRC obtain the relevant and material facts.

(Attac1=nent 5, August 21,1990 letter from G. Bodheid, Jr. to plant employees). Such factual disclosures to employees, we believe, fosta a more trusting work environmane Indeed, the Southern System's nuclear plants have common principles for nuclear operations,  ;

incida= the principle that "we maintain open and candid relationships with each other, 3 regulatory agencies and others with which we interact"(Attac1=nane 6).

r ,

. GeorgiaPower A Stewart D. Ebneter January 19,.1996 Page 5  ;

On a more general level, Georgia Power has taken several measures over the years which assure that safety and compliance-related issues are raised and addressed by our employees.

Foremost, Georgia Power has a well-publicized and practiced management philosophy of openly and frankly identifying and communicating potantial problems in order to =avimim awareness and to facilitate resolutions at the earliest possible stage. The internal procedures for soliciting, addressing, and resolving concerns over nuclear safety and c@~ as well as other work place concerns, are found at both the plant and corporate office. We described these procedures in a September 30,1993 letter from the Vice President-Vogtle, Mr. C. Ken McCoy, to the NRC (AMach=aat 7).

Plant Vogtle maintains a "De6ciency Card" system through which Vogtle employees or managers can h-t and notify their supervision of a potential quality or safety concern, which requires that the concern be formally addressed and, if nar===ary, resolved by appropriate management. Literally hundreds ofDe6ciency Cards are developed and resolved each year. The identi6 cation of these potential issues also is reinforced by VogtWs " Major Problems List" which speci6cally identi6es the most signi6 cant problems which the Plant faces and the steps designed to resolve the problems. In other words, management sets an ===ala by self-identifying matters ofconcern Vogtle also maintains a Quahty Concerns program; a very similar program is available to nuclear employees in the corporate office in Birmingham. These programs are designed to allow any @,= to raise any concern, including anonymous concerns. The program at

. Vogtle provides for employees to take safety concerns to the Birmingham program if they are uncomfortable using Vogtlefs program. In Atlanta, Georgia Power maintains a " Corporate Concerns" program, which aBows any employee to file a concern at a level reporting directly to the ConWs executive ofHcers. This is yet another avenue available to Min 1990 and today to express opinions, including non-nuclear matters, to upper management and demonstrates a management philosophy of op=amma and receptivity. At Vogtle, fiBed<mt concern forms including anonymous ones, can be placed in any of several " drop boxes" located in the Plant. With respect to those quality-related concerns that are not submitted anonymously, there is an acknowledgment section on the form which seeks feedback on the antieranvian of the submitter as to the resolution of the concern. A high percentage of those individuals returning this acknowledgment reflect such natiaracelan, We are confident that Vogtle's Quality Concerns program is effective and viewed as a legitimate vehicle for raising concerns by our employees. The NRC staff shares our view. In May 1995 the NRC reviewed Vogtle's Quality Concern program (Inspection Report No. 50-424/425 95-14, dated June 22,1995). The NRC Inspectors concluded that Vo'gtlefs Quality Concems program was effective in hand!!rg and reidhg ykr,= safety concerns. The fa=a-a*ars found the Vogtle Concerns program Sles to be notably well organized and

. f .

. GeorgiaPower A Stewart D. Ebneter

- January 19,_1996 Page 6 information related to the concerns was very thoroughly daci==arad . Concerns were clearly identi6ed and addressed. Closecut letters to the concerned individuals were well written and  ;

i timely. The Inspectors also interv>wed approximately 20 employees from various levels at Vogtle. The NRC Inspectors observed:

'Ihe . . . employees interviewed all stated that they would report refety concerns. All l said they would report such concerns Srst to their supervisor / management, and would have con 6dence that the supervisor / manager would adequately resolve the l concems Most said that all such concerns in the past have been adequately resolved by the supervisor / management All said that they had not been"mtimidated or harassed by management for raising safety concerns. Most said that management was very receptive to safety concerns.

l (fa"a"*ian Report 95-14, Report Details, page 6 (emphasis supplied)).

In addition, Vogtle employees are trained as part of their orientation on their right to raise concerns with the NRC. The NRC-prescnted forms are posted around the plant as are notices signed by the General Manager of Vogtle providing information concerning the reporting ofquality concerns.

Georgia Power has responded to matters ===acia*ad with Mr. Mosbaugh's concerns and allegations in a mannar designed to avoid any "chillirig effect." For ===ala, in May 1994 the

~ NRC issued a Notice of Violation ==acia*ad with one of Mr. Mosbaugh's principal allegations. I issued a memorandum to nuclear employees which reinforced Georgia Power's I policy of openly comannicadng their concerns to supervisors or through the Quality Concerns program. Employees were remindad that the Nuclear Regulatory Comminaion is an alternate avenue, and anmarous bulletin boards throughout the work areas provide information about that avenue. The memorandum assures employees that they may raise concerns "without any fear of penalty or retaliation." The Senior Vice President, Mr. Jack Woodard, made a pramanentian to nuclear employees at Vogtle (and Plants Hatch and Farley) to underscore my message. Similarly, in October 1995 the Secretary of Labor issued a ,

Decision in the Hobby v. Georgia Power matter. Shortly therenAer, in order to assure the Decision was not misconstrued, the President and ChiefExecutive Officer of Georgia Power, Mr. H. Allen Franklin, issued a memorandum re-emphasizing our policies on raising safety and regulatory compliance concerns. Mr. Franklin's letter inchiad the foBowing statamane:

No retaliation for raising a compliance concern wiR be tolerated. Any @ycc, including a supervisor, manager or officer, who retaliates or paa=H= an individual for submission or voicing of a concern will be subject to appropriate disciplinary action.

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f-I GeorgiaPower A Stewart D. Ebneter i January 19,1996 Page 7 l

l Copies of my May 11,1994 memorandum and Mr. Franklin's October 3,1995 memorandum i are included in AM-6-* 8.

We have continued to keep our employees informed of developments in the Department of j Labor pr~ aading Enclosed is a general News Update made available to Birmingham and l . Plant Vogtle employees shortly aRer the Secretary of Labor's November 20,1995 decidon

! (Attachment 9).

l Conclusion In summary, Georgia Power disagrees that Mr. Mosbaugh's taping was protected activity f

i based, in part, on evidence not in the Department of Labor record and currently known to the i NRC, and based in part on the NRC Chairman's letter of July 14,1993. No fading was made by the Secretary that Georgia Power illegally discriminated against Mr. Mosbeugh because he i raised safety concerns; instead, this matter is primarily a legal dispute about the meaning c(the i law and its application to controverted facts. Consequently, Georgia Power respectfbily

disagrees that it violated ERA Section 211 or NRC regulations Even ifultimately proven wrong, history reveals that Georgia Power acted reasonably and in good faith in 1990 without the benefit of any clear NRC pr-ada-a In 1992, the Administrative Law Judge agreed, thereby coon.sg the reasonableness of Georgia Power's position.

' As discussed above, the Secretary had an H+pa record to determine the nature ofMr. -

Mosbaugh's taping activities or, as addressed in the Motion to Roopen, to determine whether Mr. Mosbaugh willfully violated NRC regulations. Georgia Power has repeatedly stressed that it never discriminat=1 against Mr. Mosbaugh for raising or pursuing safety or compliance concerns, and continues to emphasize the need to raise such concerns through its antahiish=I policies and procedures.

d As dien==ad above, Georgia Power believes the Secretary oflabor s November 20,1995 decision is in error and will appeal the final order of the Secretary ifit is unfavorable to Georgia Power. Georgia Power also has moved to reopen the record to admit evidence which was not available to it at the close of the 1992 Department of Labor hearing. Georgia Power prohibits retaliation for the submission or voicing of concerns, and has attempted to keep its employees informed of developments in these matters. We believe that these efforts have avoided, or - ' '- +1 to the extent practical, any wykg= perception that Mr. Mosbaugh was retaliated against for voicing concerns.

This letter was reviewed by me and others familiar with these historical events. While I do not have personal knowledge of all the matters addressed, the foregoing information and opinions are true and correct to the best of my knowledge and belief. We are available to provide any i

1 t

. GeorgiaPower A Stewart D. Ebneter j January 19,1996 j Page 8 l

1 l clarification, expansion, or veri 6 cation which you should desire As the Executive W e 1 President - Nuclear of Georgia Power, I am authorized ot execute this letter on behalf of j Georgia Power. .

i Yours very truly, I

t/. Ac _ f_ h .as l W. George Hairston,III i

i Sworn to and subscribed before l rne this Mday ofJanuary,1996.

i 4

_ l l Notary PutUc '

i My Commission Expires:

i i ispdn.

xc: Georgia Power Company i Mr. J. B asley, Jr.

Mr. M. SLM NORMS, 4

U.S. NuclearRegulatory Commission Mr. J. Lieberman, Director, OfEce of Enforcement Mr. L. L. Wheder, LMag Project Manager Mr. C. R. Ogle, Senior Resident Inspector, Vogtle i Document Control Desk i

4 4

GeorgiaPower A Interottice Corroepondente t

ATTACHMDrr 2 Date: April 5,1990 Re: Ventle Electric Generatina Plant

• 01 interview Guidelines Log: GNV-00065

- Security Code: NC From: C. K. McCoy To: Vogtle Project Personnel .

Wher. investigations are being conducted by the Nuclear Regulatory Commission's Office of Investigations (01), O! investigators may contact you at home or at work to set up an interview. There will be no restrictions placed by Georgis Power Company on your communications with NRC personnel. The purpose of the following guidelines is to advise Georgia Power Company employees of their rights and obligations in dealing with NRC investigations.

NRC Interview Rannant You du have the right to dwline to be interviewed. Georgia Power discourages this action and encourages individuals to cooperate fully with the NRC.

If contacted off the job sita or during off duty hours, individuals may The company will pay you postpone any interview until the next work day. .

for your time when the interview is onsite.

Manacement Notification If contacted by NRC investigators at work, notify your supervisor to arrange an interview. If contacted off the jobsite, Georgia Power Company suggests that you notify your supervisor to arrange an interview, however supervisory notification is strictly on a voluntary basis.

Renrnnentat$nn Georgia Power Company strongly recommends that you have representation at any interview with NRC investigators.

You may demand to have a lawyer, coworker, or friend of your choice at any easite or offsite interview.

You may request management to arrange for a company lawyer to confer wit you before an interview and to represent you during the intervieu. This will be at no cost to you.

t

,.,c - .,. . . - . - ,

1

. l Recordina the Interview You may request to have the NRC tape-record the interview. Georgia power Company recommends that you request a copy of the transcript from the NRC.

$ worn Statements ,

I You may be asked by the NRC for a signed, sworn statement. If you provide such a statement, it should be reviewed very carefully and you should make any changes you wish so that the statement is correct and fully reflects your posdtion. If you sign, you are entitled to a copy for your records.

You may have a lawyer review or prepare your statement with you for accuracy and legal effect.

Rememoer, our policy is to be open, honest and to cooperate fully with the Nuclear Regulatory Commission.

e

• CKM:W85:mjc cc: NORMS O

se

. 8

'[,o ae:o\

• UNITED STATES ATTACEMENT 3 I w g 5 NUCLEAR REGULATORY COMMIS$10N  :

• wamamoroes, o.c. asses

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\ ....a / July 14, 1993 i anamanaas )

The Honorable Joseph I. Lieberman, Chairman subcouaittee on Clean Air and Nuclear Requiatio,n/  !

i Committee on Environment and Public Works United states senate Washington, D.C. 20510

Dear Mr. Chairaan:

This responds to your letter of Ane 11, 1993, in which yet requested the Nuclear Regulatory er===4 == ion's views on whether one-party taping of conversations by employees of NRC lia======

could constituta, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 1974. You alsea i suggested that it would be appropriate for the NRC to consuaicate its views on this issue to the Department of Labor.

{

In general, the NRC believes that attempts by employees of NBC licensees, contractors, or subcontractors (" employee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination reisted to the reporting of safety issues for purposes covered by section 211 of the Energy Reorganization Act, 42 U.S.C. ses. 5851, are .

activities subject to protection under that section. In the I 4

context of the committee's letter, the NRC believes that level surreptitious taping by an employee of personal conversations, to which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is an activity subject to protection under section 211.

Although the activity any be within the scope of activities protected under section 211, employment any still be terminated (or other employment action taken), if the employer can demonstrate by clear and convincing evidence that it would have taken behavior; the same i.e., unfavorable action in the absence of such for legitimate, non-discriminatory reasons, including whethat the activity was carried out in an unr===aamhle manner or in violation of law. Thus, while the ea==4== ion recognizes that attempts by an employee to gather evidence of safsty violations or related discrimination in some respects could have a disruptive offact on the workplace, the mere potential for interruption of routine conduct of operations that any be caused by reasonable whistleblower activities should not be a basis for disciplinary action against an employee. For this

! reason, determination of whether an employer may terminate or take other employment action against an employee who has engaged in an activity subject to protection under section 211 vill i

,, . - , - - , - . . , , , , , , , - - . - - . , - , , .n,, -

l 2

depend on the specific facts and circumstances of the particular case. Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee.

Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions. Prompt notification is in the public's interest because it enables the NRC and/or the licenses to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.

surreptitious taping properly carried out under the direction of the NRC should afford the employee protection under section 211 of the ERA for such action.

By copy of ':his letter, we are communicating our views on these.

issues to the Department of Labor and are also serving it upon the parties participating in the Department of Labor proceeding, Nosbaugh v. Georgia Power Company. j sincerely, l l

hY Ivan Salin ec: The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)

(Georgia Power Company)

I l

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• 1 222 P e: e :: .ame .

ATTACHMENT 4 a - a. Geog a 3.,3 a 1

} j[, . ewem 444 52e.3165 j  ?.'s  ; eee ssa t so e.r-ses crar ermees ,

i St".*r:s ass $295 l 8.

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semer e:e Prer:re January 10, 1991 1

wamecse

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I ELV-Ot4tB i 0792 Docket Nos. 50-414 j 50-415 i U. 5. Nuclear Regulatory Cosmiission i Document Control Desk l Washington, D. C. 20555 a

Gentlemen:

V0GTLE ELECTRIC GENERATING PLANT ALLEGED EMPLOYEE pl5CRIMINATION 31s letter is in response to your letter, dated December 11, 1990, concerning the U. 5. Department of Labor's Wage and Hour Division, November 16, 1990 letter regarding a complaint filed by a former employee of Georgia Power Company's (GPC) Vogtle Electric Generating Plant (VEEP). The Wage and Hour Division found that "the weight of the evidence to date" indicated that the former employee was

." engaged in protected activity within the scope of the Energy Reorganization Act and that discrimination as defined and prohibited by the statute was a factor in the actions which comprise his complaint." The basis for the Wage and Hour Division's conclusion was that the former employee filed a petition with the Nuclear Regulatory Casalission on September 11, 1990, and provided tape recordings of conversations to the NRC on September 13, 1990, r.nd that on September 15, 1990 the employee was placed on administrative leave and subsequently terminated from VEGP employment on October 11, 1990.

Georgia Power Company has requested a full, da nagg, evidentiary hearing on this comptaint. Counsel for GPC has kept NRC General Counsel representatives informed of all stages of the investigation and proceedings in this matter. In addition, the NRC has been kept informed by GPC concerning two prior complaints filed with the Department of Labor (00L) under the Energy Reorganization Act by this former employee. These prior complaints were filed June 7,1990, and August 23, 1990. In both instances, the Wage and Hour Division found that al ,egations of impermissible adverse esployment action were without merit. He employee has appealed those findings. j Your letter requests an explanation of the. basis for the employment action  !

regarding the former employee and copies of any investigative reports regarding i the circumstances of the action. ,

i

l

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GeorgiaPower A  !

U. 5. Nuclear Regelatory Commission - 1 ELV-024tB Page 2 Georgia Powep'Ceapany, although maintaining various documents pdrtaining to the employment action, has no specifte 'tavastigative report

• associated with the employment action. The available documents include, for example, copies of the request for proceeding, documentation associated with allegations contained la the request, and the partial deposition of the employee takaa on September 11, 1990. Other relevant and material documentation is anticipated to be entered into the record of the evidentiary hearing. In the meantime, should you destre to review any of this information, please feel free to contact me.

With respect to the employment action taken, the former employee's surreptttious taping of co-workers and employees of your agency, its negative effect upon open caemunications, and the implications of the tape recording relative to the trustworthiness of the employee constitute the basis for the former employee's discharge. The NK is now well aware of the nature and extent of the tape recording. However, up until September 12. 1990, the NE apparently was unaware of the taping even though the former employee had access to and was interviewed by the MK concerning his allegations on several prior occastons.

l Georgta Power Company notified the NpC of the tapes existence early on September 12,1990, after learning of their existence on September 11. 1990. The former l

employee and his counsel notified the NRC of the tapes existence late on l

September 12. 1990, only after the 00L administrative judge ordered the tapes to be provided to GpC.

The former employee's conduct in indiscriminately tape recording conversations over a period of approximately eight (8) months placed him in a po'sition where he could no longer effectively manage employees, rendering him incapable of effectively performing his assigned duties in the work place. This is because employees at a nuclear power plant must be able to share facts, ideas, problems, and opinions of both a business and interpersonal as well as personal nature.

Effective working relationships depend upon mutual trust and candor with an expectation of privacy on those matters of an interpersonal or personal nature and certain business matters. The actions of the former employee violated these cardinal primiples. In this regard, it is taportant to note that the former employee had ample opportunities on numerous occasions to provide the tapes to the NRC. Moreover, the former employee tape recorded representatives of your agency who were investigating allegations submitted by himself and taped ~

subordinate employees who reported to, and were subject to his tastructions.

Our discovery of these activities on September 11. 1990, was the sole reason for his terminatica of employment. In fact at the time the former employee was

15. 1990, he had been selected and placed on administrative leave on September assigned to Seator Reactor Operator training and the ' Manager-in-Training

• program as of July,1990. The training had been itsted as his first choice on his 11st of career options developed on April 30. 1990.

Regarding the other allaged

• protected activity

• of requesting the NRC to taittate a proceeding based upon allegations, as early as June,1990, theMore spe employee had provided the NRC with his concerns.

Manager (VEGP) asked the NRC Resident Inspector to meet with him and the former .

employee so that the former employee could articulate all potential concerns.

1 9

i I

I .

U. S. Nuclear Regulatory Commission l

- 1 ELV-02428 l Page 3 That meeting was held on June 19, 1990 and the employee was requested to air all his concerns in the presence of the Resident Inspector. The employee provided ne specific issues at that time but stated that he had some technical and I managerial concerns which he had not fully fomulated in his aun mind. Georgia l Power Company tasked the corporate concerns manager to meet with the fomer employee to obtain and investigate all concerns. During that effort, on July 3, 1990, it became clear that the fomer esployee was withholding concerns.

Therefore, the General Manager, on July 6,1990, directed the fomer employee in writing to provide his concerns to ths NRC. By the time the request for proceeding was filed with the NRC on September 11, 1990, the NRC, as the former employee know, had already conducted an ariansive review of his allegations.

Your letter also requested the licensee to describe actions, if any, taken or planned to assure that the employment action regarding the fomer employee does not have a " chilling effect" on the raising of perceived safety concerns by other licensee or contractor employees. Several actions have been taken, and others are anticipated. All are designed to inform our employees of the reason for the employment action taken and to inform them of their right and responsibility to raise any safety concerns which they may have. This

information dissemination was intended to foster open, honest communication and minimize or preclude any " chilling effect." At the time the employment action was taken, GPC recognized that employees might attribute the administrative leave and termination of employment as being associated with the fomer employee's identification of safety concerns. Employees who were involved with these historic concerns readily understood the legitimate basis for the employment action. In contrast, many workers without first-hac,i knouledge of .

these details might misconstrue the employment action. Accordingly, infomal oral presentations were made to both VEGP site employees and VEGP corporate employees which explained the basis for the administrative leave. The primary points made in these presentations are centained in Attachment A, which was used by the General Manager and Vice President - Vogtle in their statements.

Questions from employees were solicited and answered. These early initiatives were designed to preclude misinformation, were concurrent with the employment action taken, and were effective. More specifically, employees are believed to understand the distinction between discipline associated with the former employee's surreptitious taping of conversations and improper employment action.

Information GPC had placed in the public domain also established the basis for GPC employment action and differentiated between furtive tape recording by the former employee and the raising of legitimate safety concerns. Prior to the former employee's discharge on October 11, 1990, GPC, by letter dated September 28, 1990, provided the NRC with preliminary comments on the former employee's September 11, 1990 request to initiate an administrative action against GPC.

Georgia Power Company specifically addressed its view of the surreptitious taping as "a blatant disregard for the legitimate norms and expectations of co-workers and employees of your agency". Moreover, this September 28, 1990, letter included a July 6,1990, memorandum from the General Manager (VEEP) to the former employee tasking him with providing safety-related concerns to the NRC which he was withholding from GPC management.

U. S. Nuclear Regulatory Commission ELV-02428 Page 4 Subsequent to the former employee's termination from employeent, GPC refrained from responding fully to press inquiries. GPC's position in the matter was provided to the press, but detailed interviews were not granted. This approach was designed to minimize any residual chilling effect and the potential appearance of retribution.

Later, however, (during November, 1990) the former employee pursuedrmedia coverage of his safety concerns. In lighs of the inquiries from the media, the former employee apparently was attempting to portray his concerns as substantial and his motives as altruistic. Detailed interviews, therefore, were provided by the Vice President - Vogtle to the major newspapers. In these interviews, the Vice President continued to differentiate between the basis for the former employee's discharge and impermissible discipline based upon the raising of safety concerns. Also, the Vice President distinguished between the raising of bona fidg concerns and the concerns raised by the former employee by disclosing for the nrst time the fact that in early June,1990, the former employee's counsel had proposed a large financial settlement in exchange for his forbearance in pursuing a 00L claim and in submitting concerns to the NRC. News articles in the Augusta and Atlanta newspapers, and other associated media coverage, raised the issue of motive. Editorials in the Augusta newspapers which followed these articles focused on the distinction between bona fide concerns and concerns submitted for financial gain (Attachment B). Georgia Power Company believes, based upon information provided by the media and the Company, that our employees distinguish between the raising of bona fide safety concerns and the motives and actions of the fonner employee.

In addition to the manner in which GPC publicized the basis for its employment action, GPC also broadly addressed the merits of the allegations. First, the September 28, 1990 letter deals with the allegations themselves. Second, the allegation " hyped" to the media by the former employee and his counsel was addressed directly in intra-company newsletters. Specifically, the allegation of material false statements provided to the NRC regarding the reliability of the emergency diesel generators at VEGP was addressed in a posting for employees on October 31, 1990, (Attachment C) and in mid-November 1990 employee news articles (Attachment D). These articles, among other things, provided details to employees who would not have ready access to the information. The articles acknowledged an error in the original data submitted to the NRC but, specifically avoided a discussion of the degree to which the former employee might have precluded the error, how he was tasked personally to resolve the error, and the fact that he proposed a revised Licensee Event Report which would not have materially differed from the original submittal. In other words, the articles purposefully avoided attacks on the former employee and, by doing so, permitted other employees to view the technical merits of the allegation in a non-adversarial context, which was, less likely to chill open communicatica.

I

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I U. S. Nuclear Regulatory Commission -

ELV-02428 l, Page 5  !

! l The duration of the NRC's on-going review (including several requests for  !

l, follow-on employee interviews and other activities associated with the review )

i might dissuade some employees)from raising safety or operational issues.  :

j Attachment E, enclosed, was provided to VEGp employees on January 2,1991 to i reinforce open communication and timely identification and resolution of safety

! and operational issues. The various options for reporting concerns are expressly set forth in the statement. The statement also anticipates Georgia Power Company's vigorous defense of the former employee's 50.7 allegations in the DOL proceeding.

! In conclusion, GpC has addressed this matter in a manner designed to mitigate j and preclude a " chilling effect" on the raising of bona fide concerns by j employees. Removal of the former employee from the plant site by placing him on o administrative leave and subsequently terminating his employment actually served

! to foster open communications among plant employees. Georgia Power Company i firmly believes that it has been successful in differentiating the former l

! employee's inappropriate taping actions from appropriate courses of action i available to all those employees who say have concerns. Concomitant with that  !

effort, GpC has encouraged employees to maintain open and frank communications

and to promptly report safety or operational issues.

Sincerely, l,

l u/.J.A h w W. G. Hairston, III i

j WGH,III/ JAB /gm t

! xc: Georgia Power Connany e Mr. C. K. McCoy i Mr. W. B. Shipman 4

Mr. P. D. Rushton Mr. R. M. Odom NORMS I

! U. S. Nuclear Reculatory Connaission

! Mr. S. D. Ebneter, Regional Administrator l Mr. D. S. Hood, Licensing Project Manager, NRR Mr. B. R. Bonser, Senior Resident Inspector, Vogtle

]

i i

i i

ATTACHMST A 9-19-90 Last Saturday, George Bockhold met with Allen L. Mosbaugh and told him that the Company had learned of his actions in taping conversations with a large number of peop'le over an extended period of time. Under these circumstances, Ken McCoy decided it was in the best interest of Allen Mosbaugh and all I concerned that he not be on the plant site for the next 30 days.

He is now on administrative leave with pay for that time, and all of his employment benefits will remain unchanged during these 30 days.

As we have said many times before, and as I want to reemphasize, each one of you has a duty to maintain the safety of this plant. In order to accomplish this paramount goal of safety, it is absolutely essential that all employees feel free l t' o casunnicate, and do casunnicate with one another openly, trustfully and without hesitation.

I Any issue related to the safety of the plant needs to be I addressed and resolved. We have set up multiple systems for the resolution of concerns. They can be addressed with management, and any of you are free to take issue to higher management if I

immediate management is not responsive. They can be addressed in .

the Quality Concern Program or the Corporate Concern Program.

You can use the Deficiency Card system. Certainly, any one is free to and is encouraged to go to the NRC on any issue you feel is appropriate. All of these methods and other methods available here can be used anonymously if you feel that is I

ATTACHMENTA(CONTINUED) appropriate. This dedication to safety and open communication remains a fundamental commitment on the part of this Company. I want you to take steps to re-affirm this same message with your subordinates.

O e

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ATTACHMEhT B

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the internal esagemy chena. esseber eAer the taping wee ..

. esennumend. revealed - and asummunism. #.

?. Bot dess nuclear engineer tien prehleme ese the last */

O Amen Meehaugh of Gre=etown needed in a nesleer 't

• / thlt inte eush a whistle.blemer f tyi t.

.. amongery? Soryneingly, U.S. Imber y

?. He wee a Plant Vestle f' , __ -- prehere eleise */

O worker who made no bones Mambaugh wee fired !!1egally; */

'f, shout wena'ng to move away his oiseth work wee juseina. #.*

?. seer a saint here - and he ble.Thie le being :;; - -'d ..

O wee dissans6ed inth his Yet the engineer's '.*

employer's statade toward a menives and tiadag rudse 'e:

, pay settlement. Se for several quascene. *

?. monthe he bogen emerstly tape Georgio Power under. .

O reeerding the esaments of seeres that Meehaugh didn't l.

. hundreds of es.workere. go to the NRC until mAer his e*

/. Net surprisingly, he lawyers had failed to nego. .

.~

?. uneevered some dirt. tiete a meable seek settlement

• U Meehaugh then went *.a with the causpany. GBe same6 .

the Neelear Regulateey neeleer asterneye used to /

.. the with his safety workforthe M O; Govern. l' O gnpes and, to be fair. he seema Aer metahulty Projest. *

• / useovered disturbing things. *! hey nasarally have en as te 't

• /, However, his employer - the gnnd.) .

e.*

Georgia Power Co. - readily We nies semidn't Bad

• em emme key prehlems where m hanagh task grie. *

• / were due se hamna er veness thrensh esmipeny ..

• / imeshenical error. shamnele ferredress. lfhe wee .

e. lattially, Meshcugh wee einsere, and not niesivened by

• O en administraave leave

- in ser opinion, this fellow uneney,hiswhy didn't he siempty  :

.- take ,. p ta .

l* . shemld have been emed vestle's venema esseer and .

Ii' Miseer wee cred, but "

m h ,6f.%  !

/, metb eamosor c 9 m ng seeks sued newspaper espy. .

p.

to the NRC. *Ihe power essa. But let9e weit far the Saal

./ pesy anye it wee due to the NRC report to see if au hie

/ manner in which he taped claine esand up to serusiny.

.,.. . . f f f f f f f f f f f f f f f f f ,* . . f,.,. f ,. .,.,.,.,.,.,.,.,.,.,.,.,.

. f f ,.,. f f ,. ,.,. f f ,.,.f ,.y f ,.,.,.,. . .,.,. .

l

y-mu ATTACHMENTB(C0hTINUED)

- FRoM THE ADoo8TA lEaAla Monday. Desember LO. 1990

[: =ioyees Whistle's sour notes shouid he _ged ia .w w.U. wi,s.

w'e',""m"m.'-

1* g"i!!".arsii."r"eLo i.ca. ve . u.,a. o. h.""*i"e.Tw"a" me . ,. .

Sere's no doubt that nuclear salinser Allen Mosbaugh of

Grovetown has esposed some safety spees at Plant Vogue that 2 readily adadta to and is moving to correct. 0ther esit denies and their veracity wul be delarndnad by a Nucisar itgteryCommissioninvestigation.

[w What troubles us is the way the whisue4 tower went about g erk. Upset because Vogtle would net give tdm what he consid.

eered a generous severanos settlement when he wanted to leave, i 8Mosbaugh took to seered taping comerkers' conversations and lthenbouststhe allag incriminaung evklance directly to the

{NRC without syst through the m's redress chan-

nels.

J Whatever the truth of Mosbeup's charges, he surely doesn't H At ths imass of the shreisde 2^t Cc :. He obviously had jbis own nah to fry- namely to embarrass the company be felt .

hadwrongedtdm.

g la that he has socoeeded, but we think the com may was stDL f fight to Are him net for tdowing the whistle, but for taping pri.

tvote conversauens. gy.the Ared.UAlabor Department dis-gegress sadsayshewasi l

l

. . . ~ - - - - - - _ - - -. -_- - . - - .-- - . _ _

l ,

ATTACHMENT C, EMPLOYEE NOTICE 10-31-90 Statements by Allen Mosbaugh recently reported in the news media are inaccurate. The statements relate to Georgia Power's reports to the NRC regarding diesel generator testing following the March 20 5(to Area Emergency. Mosbaugh, a former Georgia Power employee who worked at Plant -

Vogtle, was fired earlier this month for his conduct in secretly taping conversations with other employees and with NRC personnel.

Georgia Power has acknowledged that t5ere was a numerical error in data conveyed to the NRC about the testing of diesel generators at Ph::t l J

Vogtle. However, as soon as Georgia Power detemined a potential error in this data, it verbally notified the NRC of the potential error and subsequently corrected the data with the NRC in writing.

The NRC reviwed and was completely briefed on the diesel generator testing after the March 20 site area emergency and before the restart of l l

the unit.

At no time has Georgia Power intentionally made false statements or l attempted to mislead the NRC about the diesel generator, and Georgia Power promptly identified and rectified the reporting error, keeping the NRC J verbally apprise 1 during the process.

l Mr. Mosbaugh filed his request for NRC proceedings under a regulation that pemits anyone to file such a request, regardless of merit.

0

, - - - - . - _ _ _ _ _ . _ _ - - _ - - _ _ - _l

, ATTAC}f4ENT C'(CONTINUED)

Before he filed his request, Mr. Mosbaugh also brought claims against Georgia Power at the U. S. Department of Labor, seeking monetary compensation. His claims have alleged that adverse employment action was

. improperly taken against him. Following two independent investigations, the Department of Labor determined that his claims were without merit. He has appealed those determinations.

Georgia Power has and will continue to keep the NRC fully and promptly infomed. We will continue to encourage all employees to maintain openness in our comununications and to promptly report and resolve any concerns about safety or operational issues. i i

l I

i 0

0

ATTACHMENT Dl v s.s.a - . _ u ,s.

i World War H plane - - -

la his spare ihms. Den likes to go flytas. Fouowing a rough start in aviados, crashims his almaught, he bought a sasau akplans and marted taking lessoms. In Aasan. Den eersed a pdvses pGot's lisuuss.

Cumedy Das owns a World War II Anay plass which was bugt in 1944. His fab. he went to " fly, ins" Onformed airplans esventions) la Dublia and Canniken sisspins moder the wins of his eines la a seen temt.

Is Osober. Den pm his antique plane on "stade dispisy" at the Rohims Air Fores Bass airshow. "I bought a lamber flyles hahmot and sessies s %es thus ass. I've always wanted an opa enskak biplans k's the emir way to fly " stated Da He has resundy las.na,8 just susk a pismsla besmond and is phumums to trods his Army plane for it. O Georgia Power clarifles recent publicity about Vogtle diesel generators t o mislead the Hudser R emma Regulatorynews d'a====ianmedia (NRC) earlierreportsthis year when have providing data samed emnersamsy diesel smerators at Plant Vosde. "That is not tres.'" stated Ka McCoy, viss presidset that ofGeorg about the reMahtity i

of the Vosde Prolon. l "He onsiaal dass suh==nant was in error, but we had no intent to suslead the NRC. As smaa as Georgia Power deternumed the there was a concern about that data, the Contpany verhauy notifled them of the concern and subsequently provided a written correndon." ~

His issus commerned the number of times two taskup diesel sensrators successfully opersed during testing. "The NRC had people there while we were runams the tests.

and they reviewed the resuks. la their review, the NRC had an of the saums infonna-M. se== e a.=m e====

tion we had." McCoy said. -

Problems in settms a gaaerator started contributed to the March 20. she eres essersency at the plaat. But contrary to recent news media reports, the NRC reviewed and was t.riefed on the diesel smerstms testing after the March 20 lasMan, and ca""'

"* before the restart of Unit 1.

,,,,,,,',,,",**

• Georsia Power had orismany suhadtted informados that said one of the samerators m w ....a m = , sussessfully started 18 times, whue the seemed semerator sussessfuuy staned 19 times '

nam e=== without icitures or problems occurras.

w ..................... seam Assuauy it was deternmed later the the employees who sabered and prepared the

• • ^"""""'"

data for the NRC did not use au avadable infonamica la detersuming sammusful gamerator starts.

lastead. they used data frees the operators' loss only. Operators enesider a test g eag .;;.;;;- "suomessful" if the daessi samerator mans up. Bened on that. the opermars lessed

.............. = thsee mart anempts as suomesful for both senormers. Sm. a saheequent review of as

=. o . . . . . .. . . . .. .w.-e sosineer's los showed the sesse of the man up tems did la fem have problems or

c. ". U f.*/.'fflllllll f C failures after operauns for a pened of thms.

a - o=== . . . . . . . . 8'e='""=e

" "That's the basis of the confusion." MsCoy said. "Our firm report was hosed on T.  :=o.".*". as h-a=W= revww of the loss."

o == . . . . .f*llllfi6,;',l.*.

. . . a== ea* ne arremeses mamaem is one hans raised la a paddas fund wkk the NRC by Ausa o .................o. - h8aaha'sh si fonmar oeursia Power ungdeyes. The NRC k treadas Moshensh's fluss seen ou m ...............saan as a pedtion pursuant to federal regulanoms that parash anyone to file a requem to the d,=",,8",g""

,  ;-lf,,8%"* *,,",,",,",, NRC resanuass of mera. The pedtion is based as falso and taassurate usammes, and

. -- the issues raised in the eethion beve already he== s 4 J Pad dbwa==8 * ^=~d'

i '

! N.

ATTACICE!!T D (cointinued)

.n MM Stettl A PtWER stytutti 18.1988 GPC clarifles recent publicity on Vogtle diesel' generators eorps Pbest did not in. sudsmbassusadypovuledawnamn mesesse emagensy at the plast. senameses. A -h=q=== unsw of tend to nuslead the coussemC Heusver, sammary to sesamt news an ==g==='ingshound thst assee NuciserResuisieryCos nemeus senesened the num. medis is,ans, the NRC mus==d of thesmeno taasdisemisethow mission about the reti. ber of tismus two backup diesel and was br6efed en the diesel pushimas erisBumssinarapssamms ability of Flame % gain's s====== spanned ammemfuBy dur. sesmanstasonsshorthaMemk20 fora paned of sissa.

emusency diessi sense. ins esmas."ne NRC had paspie mesdent and baisse the meset of "nst's the hemis of the ess.

ters.assmedes se ICanMcCoy.vue these while we wem namuns the Unit 1. fussen. McCoy esps. "Our fast passaient of the %sde panset. tests.and they senswed the results. Gessem FWest had onessBy esport was baseden as heemmpisse 7tm ensmal does submuned la ther snew. the NRC had as subasame sdamessenthmandum asis-of theisse wasin enor.but we didn'tinsemd to of the same sedermanen we had" oftheensamenssussamfuByseemed Desesmusesassementisaus nasiend the NRC. As soon as we MsCer asys. 18 times,whistheesasedesmuseer issue remadin a poemse fund wats desarmmedthemwasa caneern.the Peshismsaseronsa genester =May sanned19timeswahaus the NRC by Aass h+ a Campany ersity nonfied the NRC stansdeenmhusedtetheMarch20 fadienserpsshhesessemas.1:was fenmer Cassus Feuer emotores.

Issmedisserthatempossesspaper. NNRCismessesh+'s 5-insthedoesisttheNRCdidestuse insas a poemenpassant es fedead Vogtle comnletes refuelinaw outage **"="' - " * "*d"="""a==""""'*"'

r numms susoseshd s====== stens, a sequest to the NIIC mendises of s' '"he Unit 2 refusims outsee at Flamt %stle, which bessa at andnight immed.thenmedhhusem nunt. W mys em pennen a on Sept.14.is one esepless.De une oss w to the and Nov. ""*" M *"I'* * *" ""A I"'**"*

H.% die emissinedpina credifummisin, sideratest"sussendsf if thedismal - and theinsmes assedin

,,g, _ _ _ _ semanner sanns up, Based en that, the pention hose elesedy been the opsesters lossed these start innewed and dienamed by Gesses

$srvisesand rimussaammaann usinedin g steampts as suessesful for both Peserwnh the NIIC. A

"$svassi samme inho omm undensham sher the start of the outsee, which added to as snensi asses" asys ICan McGey.nse preadset of the Wstie . , ,

promet. Thisworkshouldpaydivulandsinhame :  :- 1 m ousase T y g r 9 - pm;p , . . _ w.

was a success beesuse of the h and tesswork of sE plant empieynes  :@v n t_u c a .-t-- J.A .'

and othen who sueeerred them." A E

ATTACHMENT E :

interoffice Correspondence GeorgiaPower A DETE': January 2, 1991 RE: Opea namminimation FRON: W. B. Shipman To: Vogtle Esplayees Recent news reports have focused on litigation between Allen L. Mosbaugh, a former employee at this plant, and Georgia Power company. In a Department of Labor (DOL) pror*== ding, Mr. Mosbaugh contends that he was placed on administrative leave and subsequently terminated from employment as a result of his engaging in " protected activity," including submission of safety concerns to the Nuclear Regulatory Commission. In that litigation, Georgia Power denies these assertions; Mr. Mosbaugh was terminated from employment after it was learned that he had surreptitously tape recorded conversations with other plant workers and with NRC personnel over a substantial period of time. Georgia Power 1 company, therefore, intends to vigorously defend the DOL action  !

brought by Mr. Mosbaugh.

I want to emphasize to all vogtle employees that Georgia Power's concern about Mr. Mosbaugh's surreptitious conduct is because of its negative offact on open communications at this plant, and nas because of his raising of safety issues. Open and frank communications are essential in our industry. When Georgia Power learned that Mr. Mosbaugh had concerns that he had not disclosed, he was directed to submit his concerns to the NRC in July, 1990. No adverse action was taken as a result of the submission of these or other concarns. Indeed, Mr. Mosbaugh had been selected and assigned to Senior Reactor Operator training and was enrolled in the " Manager in Training" program at the time that his secret tape recording became known.

Georgia Power is fully cooperating with the NRC's review of Mr. Mosbaugh's concerns and allegations. Interviews of plant personnel and review of documents have been conducted and additional interviews may be requested by the NRC. Employees are reminded that Georgia Power encourages individuals to cooperate with the NRC in its investigations, even though individuals have a legal right to decline to be interviewed. Employees also are reminded that they have the right to have a lawyer, G ^Mer or friend of his/her choice at any on-site or off-site interview with governmental, investigators. If requested, management will arrange for an attorney to confer with you before an interview and to represent you during the interview. This will be at no cost to you. At no time are you restricted from your communications with NRC personnel. .

l

.1

~

ATTACHMENT E (CONTINUED)

Page Two I encourage and request all of you to amintain openness in your consunications and to ggtly 4%i. and help resolve any concerns about safety or operational issuaa. In addition to year

" Wain of command" reporting of concerns, the Quality consekna Program (telephone number 1-800-225-2055) will accept anonymous allegations (numerous drop boxes exist i.h --iiihout the plant, or the concerns can be submitted by telephone or personally by con *=*4M Bill Lyon--Quality concerns coordinator). The Nuclear Regulatory commission Resident Inspectors were recently highlighted in the vocrtle voice and also may be contacted (extension 4116) . The NRC also maintains an off-site telephone number, 301/951-0550 (call collect).

Please remember, the identification of issues which may adversely affact safsty or health is a fundamental responsibility of each employee. In any complex human endeavor, such as r - 4M these plants, technical deficiencias or weaknesses may- be identified. only by your identification of such probleas can they be resolved and help assure our foremost goal - saie operation of the Vogtle Electric Generating Plant.

/'

was/tda

._ l

f."?.0""'"' ! (C"""ED)-- - -- -- -

December, 1990 Vogtle. Voice 4

1

~

MeetyourIhspectors trunst um adamesters degreemindus.

Whois the NuclamrRequistory j h ". "gief .. ..

taalannagnment. Hehas 16 comannaston escri whyare sy ..p yemas ofsaputanasintheannis.

Nucremedentsonaunt hathis -

..r. mM ar.todustry, thelast 5'1/3wah seemis,we*e anseurthans W theNRC. Beanisamenadand questians andinernenosyon to

%w_ jO. - :

1-

~ ~ *

• has two chGdren.

our resident *=p=*== 7 . '; C; Doug holds a bonhetersdo.

na residentinspectorpro. -

a-% .g goesinbummensenmamasemap-gram anganated aftertheThres ' . .D a '( a

~f ptconses and acarnessesin MasIsland ffMD accident. '!he wac resnisten the enmanum e rf m ~h. b{h f mannimar sendtas AussMemqdds s unneraar.nn-r ---

stam nuclearmatsnaisinthe United .

J"~, .e. % tanludes 81/2yuns artha States to protectthe puhac -

V nacisarSeld.thelasthurhang health and saisty and the ann- l

• gg withthe NRC. Dougissummed resunent. nts ===a== ts an-a="phah=I through:

4 ,

, . . andhas two chadten Pets holds abeeinhens and j- .g- , .

G the lleenming of ancies-facW- -

r i .g master's degreeinnumber engl-ties and the F use gg,, g,,,, nasangRunGeorgsDeb. He and espannt of anel-ematen- has spentthepastareyumes ans,

~ wahtheNRC. Patsisamenad

% G the development andimpis- wath aus and fanday character. and agoysjagpasinhisopers

==*=*e= af regumanants gor- tana u pronsdures,and tans.

sameng nasamed asunnen, and Donnnes and enneractarperman. the sanc

• r-=== sus hers 9 theinspection and enferne. nsL , to ensen Vogtleis opensandtaa ment acterstles to assure com- 9 Betag aware dday.to dayans emis mm:mer and thatpendic pliance wsth thses antarteten. health and safetysusnotjeop-requirements. e assponens to sets events to eresad. Ifyouhoenemmeern.

A alta resident's r==pr==*h8k- serve as the tuntia1NRC obsere. please contact eitheryearan-ties include: er. peuvsner ercanthe NM1at M04) e rmenhhnhtng NRC pruance e r*a==nnecenng on a daoy 554 4901 m'auses.4110 4 an nats un a daGy bases. basis with Raglanalmanags-e mangthomastorimamar ment and the nacieurmeneter r negnieman . cous neemmes c. +. -:gi g4;.y

,. W pneentmanager.

e Pufannmg P pm-

= m .: m. m w.

1. a.~. r Afar- -17 grams andwriting monddy i 7%

.- reports.

e Aestag as a votat of eantact &'h'1 WY:#w- , 'T 3@- h>

farincat media. gensnman z

.. a

eactals and the pubac, as *; 5,,h.m *,

. m ., 'M . .:

~-

3

,,,g,g,

, IyH. T 'p 8 _ y .-

m . e Erahmungthe acemmesper.

g f-N ,,

q* Vestis has tinus rundant taspectors onsta. They are y;M,y }&.4q a

,t .-

1.1 i

- ... e., anna Banner,anhert w .'cd . gf, 5 4 T s.

Starksy and Pets Bahnman.

.; , '*% N , 4 t

6 Estanis a graduats ofGeorgia ,,,, 4 , . E 4 .A*

'!1meh andhands a bachelor's

_e_ .

degramin chenaziengineering MN n

c..

ATTACIBGNr 5 interoffice Correspondence Geo.iaPourb 3

DATE: August 21. 1990 ,

RE: Operational Assessment Inspection FROM: 8. Bockhold. Jr.

TO: Plant Employees As' many of you know, the NRC recently concluded an Operational Assessment Inspection. The inspection, among other things, included investigation of a nabar of allegations of " Some wrongdoing." such as VEGP employees were intentional violations of NK requirements.

interviewed formally in "on the record" interviews.

The NRC appropriately investigates allegations of wrongdoing which bear on matters of safety or public health in a thorough and deliberste manner. While a formal interview may be disconcerting or stressful, Power encounges these reviews are sometimes necessary. Georgia cooperation in these investigations and views it as essential that the NRC obtain the relevant and material facts.

We have been informed that all allegations of wrongdoing by YEEP employees were found to be unsubstantiated. At the sameitems time, the where Operational Assessment team identified several technical For esemple, potential violations of NRC requirements may have occurred.

the NRC observed at least one instance in which a Deficiency Card was not issued for equipment repair. contrary to our practices. We must remember to use our Deficiency Card systems only by identifying potential deficiencies can we achieve our high standards of excellence in all of the areas which support this plant. All of us need to be reminded to pay strict attention to detail - to det all the i's and cross all the t*s = in each of our daily tasks.

I want to thenk all of you who werked diligently to support the Operational Assessment team. Your cocoeration during this difficult time is greatly appreciated. I. personally, as very proud of the professionalism shown by each of you and encourage you to maintain those high standards as we move forward to fulfill our goal of efficient and, foremost. safe operation of the Vogtle Electric Generating Plant.

d AS/TY8/88/tdm 1

. f:

~ . . _ . . . . .

-a ATTACEWENT 6 4

BOUTIDEN COMPANY PriasiplesistNeolaar Operations Fe are Ansaries's hear macisar operadoms. Our suessenst employees addbit the behaviers and vainen of De Soishern .9)de. Our appromah to nuoleur &_ - is guided by the principles audined below.

1 o

S&EEIZ i As a man-of personal and morni responsibilky, we uke conservedvs mensmes to sessy the heath and asmy or our employees and me pahiin. nis responsibaky is mover omme laesissamms dpmenction oroost.

m masius et a n. m . a . .. . ,

We are tiedicated to the optimme opersoon, maissansace, engineering, and support of ensk of our nuclear plana, hour-by-hour, day-by-day, to ensure as(e, reliable and eneanudad perfonmanes. We strive to achieve suspie and senadard work prendosa. We amassia open candid relationships wkh each other, reguiasury associos and odnes wkk whom we innsent. We build upaa our pas achievements and experiennes, as wet as esse of ashers, e ashleve camissousimpovesser.

. pannuaw m con We sonognias that ths +M-G used in tbs design, coeuruuden, and operados d any I

lassa, compisa prodmodos facility, such as a nacisar piset, ass a '- ", ' -_ appliesden of l

lusowledge and sidlis. We also recogmar that we me nor inanNa in the appussena of t knowledge and sidRa. %ses imperhotions may evolve isso pmblems that we must be peupose to overcome in order e accomplish our ruission. Derefore, we as "problasa-artemend." We malatain our day.a> day - as well as long.asnu - focus on detecting existing and passadal problems befbre they becosac significant. We take acnon to resolve these probians assdy and com.efessolvoly, taking into consideradon the retadvs importunes sad priority of every aspent of our work.

massowaranirY AND Arr6irirAnnfrv We moognies that our mosses depends on ensk individual's pariannance. We ser high semis abr ourselves. We secomplish our goals through tusework, whk eseh individual having assigned

==k sad the melharhy, .a "u and assomanbility er persumsmos of thee work. We est wie speed and pmssazionalina, and we dedianes on individual inidadves and neigne capabilides to the anklevement of our personal, team and company otsecoves. Eask of us will be trPawly responsible Ibr our professionalima.

+ ggggr,

• We will be mutually and collecevely supportive to mai=n=im a strong, posidve tema spirit la striving to achieve our goal as " America's Best Nuclear Opennicas."

The Southern l 1

Style

~

1 Ethical Behavior We all the rash.

We keep our promises. .

We dealfairly with everyone.

Customer First Ourbusinessise= a==

ad 8 dan. We winthinklike cunomers Shareholder Value . and act like owners. We work to increase the value af our missanent.

Great Place to Work We are a Ers-name company. We enjoy our work and esisbreos our -- We seek --- T Wedonotcompromisek andsid tolearn.

health.

teamwork We --==ir== openly and value homeny. We listen.

We respect all opinions and expect di5ering viewpoina as we

~ work together toward camman goals. We ==phaai+= i cooperanon - notturf.

l Superior Perforinance We connane to set high goals for ourselves. We take personal responsibility for sumsu. We act with speed, decisivensa, and individual inisiesive to solve problems. We um change as a competisive admsay.

Ci+4 = 44= We are co==3=~l so the myirnament and to ths - .. .... . '.

• i

• • "'m \

l l

Southem Companyb

. - . ~ - . . . - - _ . . ~ - ~ _ _ - - . - . - - . . . - . - - . ~ - . - - . . - . . ~ - _-.-.. -

Arricausur 7 2.,.'e 7

.*.c.':"%

Swivungnam. Atanama 33201

, Tensonone 205 877 7122 c.x. usc., CseorgiaPbwer Vee Prescent. Nutteer vogue Prope: September 30, 1993 mmemme s,sen ,

j Docket Nos. 50-321 50-424 HL,-3474 l 50-366 50-425 LCV-0165 l

The Chief Rules Review and Directives Branch Mail Stop: P-223 U.S. Nuclear Regulatory Commission Washington, DC 20555 Comments on Whistleblower Protection (58 Federal Reaister 41108 of Auaust 2. 1993)

Dear Sir:

On August 2, 1993 the Nuclear Regulatory Commission (NRC) requested comments from the public on whether the NRC has taken sufficient steps within its authority to create an atmosphere where whistleblowers feel free to engage in protected activity without fear of retaliation (58 FR 41108).

The Nuclear Utility Management and Resources Council (IRMARC) has submitted comments in response to the NRC's request. Georgia Power Company endorses NUMARC's comments and herein provides supplemental comments based on Georgia Power's experience as a licensee.

1. INTRODUCTION Georgia Power Company supports the NRC's efforts to ensure that employees within the industry who have safety concerns feel free to raise those concerns with their management, without fear of retaliation. These employees are a critical element in identifying and resolving potential unsafe conditions. Georgia Power recognizes that it has a vital stake in assuring that its employees feel free to identify issues which, if left unresolved, will have an adverse impact on the safe and reliable operation of its nuclear plants. For that reason, Georgia Power has made it an obligation, not just a right, of each employee to raise legitimate safety concerns.

In Georgia Power's opinion there is not sufficient justification for NRC to impose further requirements on licensees. It is apparent the overwhelming majority of industry employees feel free to raise safety concerns without fear of reprimand. Through the numerous concerns programs and opportunities for voicing concerns maintained by licensees, the empirical and anecdotal evidence is conclusive that the process it working and that the individuals who identify potential nuclear safety issues are viewed and treated as important contributors to the achievement of compliance and operational excellence. In an industry populated primarily by highly skilled, well-educated and assertive professionals, the fact that annually only about one tenth of one percent (0.15) of industry employees r eekem i e .M em G w _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ - _ _ - - _ . _ _ . _ _ _ _ _ _ _ .

e l~ .

3 GeorgiaPower A i

U. S. Nuclear Regulatory Commission . Page Two

{ file Section 211 claims is a remarkable testament to the industry's success

, in promoting the open and frank exchange of ideas and information. Indeed, NRC's Chairman Selin observed in his testimony on July 15,'1993 before the Senate Subcomunittee on Clean Air and Nuclear Regulation of the Committee on the Environment and Public Works (hereinafter " Senate Subcommittee") that.

"[miost of the employees that submit allegations to the NRC or raise issues to 'iconsees do so without retaliation... (i]n almost every case (the NRC resident inspectors I spoke with at two-thirds of our plants told me) that the (licensees) employees seem to feel reasonably free coming to the (NRC resident ] inspector." Tr. at 123, 148.

Among the section 211 cases filed, there is an even smaller percentage of actual cases of harassment, and intimidation. These few instances occur even though the perpetrators are well aware such retaliation is unlawful and contrary to the policies of their employer. Often, at the heart of these instances of retaliation are intense personality conflicts unrelated to " protected activity," the nature of which are such that there is little licensees or the NRC can -do to completely eliminate the occurrence of these violations.

Moreover, it must also be recognized that on occasion employees within our industry seek to take advantage of the process for illegitimate reasons and will raise unsupported or frivolous claims. Before any changes to the current process are made, the NRC must carefully consider whether such changes will create additional opportunities for abuse of the process, placing additional unnecessary burdens on licensees, the NRC and the United States Department of Labor (DOL), and further exacerbating the frustration caused by these cases of abuse.

II. DISCU5510N .

In response to the August 2, 1993 Federal Register notice, Georgia Power Company has organized the following specific comments under the general subject headings which appeared in the notice.

A. Responsiveness and Receptiveness of Licensees to Employee concern So That Employees Will Feel Free to Raise Safety Issues Without Fear of Retaliation Georgia Power Company has a well-publicized and practiced management philosophy of openly and frankly identifying and communicating potential problems in order to maximize awareness and to facilitate resolutions at the earliest possible stage. The internal mechanisms for soliciting, addressing and resolving concerns over nuclear safety, as well as other workplace concerns, are found at both plant and corporate levels.

At the plant level, we operate a Quality Concern Program, dedicated to acceptance and investigation of nuclear safety or quality concerns.

HL-3474 LCV-0165

Georgia Power A U. S. Nuclear Regulatory Commission Page Three Confidentiality is offered and non-retaliation is guaranteed. Each plant also maintains a " Deficiency Card" systest and a " Major Problems List "

throughwhichplantemployeesormanagerscandocumentanqnotifytheir supervision of a potential quality or safety concern, and require that the concern be formally addressed and, if necessary, resolved by appropriate management.

At the corporate level, we maintain the Corporate Concern Program, ,

a direct outgrowth of the success of the nuclear plant Quality Concern i Program. The Corporate Concern Program allows any employee to by-pass plant management and file a concern at a level reporting directly to the Company's executive officers. Once again, confidentiality and non-retaliation are assured.

Employees may. also utilize the company's Internal Auditing and Corporate Security Functions or call or contact management, including the President, directly to have their concerns investigated. Finally, the Company maintains and encourages, at both the plant and corporate levels, open and frequent communication with the NRC and its resident inspectors.

The company !.as implemented the employee concerns program in a manner that ensures each employee is aware of the company's commitment to provide a work environment where they can feel free to raise safety concerns uithout fear of rete 11ation. At each plant, before each employee is badged, he or she received orientation training concerning the Quality Concern Program. Each employee then receives a letter from the plant General manager which explains the program and the employee's obligation to identify qua'ity or safety concerns to their supervisor, or if they feel uncomfortable discussing it with their supervisor, to the next level of management or with the Quality Concem Frogram. The letter also explains that employees have the right to bring their concerns the attention of NRC Resident Inspectors, and their respective phone numbers are provided. With respect to acts of harassment or intimidation, the letter advises employees to be aware of their rights to report such acts to the NRC or the 00L, as described on NRC's Form 3. Each new employee is required to sign an acknowledgement form indicating that they have reviewed the plant General Manager's letter and that they are aware of the existence of the Quality Concern Program and their obligations to report quality or safety concerns, as well as their rights to report harassment or intimidation to the NRC or D0L. In addition, upon each employee's separation from employment, they attend an exit interview (or are provided an exit acknowledgement form) to provide an opportunity to identify any concerns which they feel have not been addressed or any acts of harassment or intimidation. f A similar ,

E Copies of the Plant Vogtle General Manager's Letter, the Quality Concern -

Program orientation acknowledgement form and the exit interview acknowledgement form are attached for information. Similar forms are used at Plant Hatch. .

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GeorgiaPower A U. S. Nuclear Regulatory Commission Page Four procedure is in place at the corporate office. Finally, the employee concern programs at the plant and the corporate office are audited annually and, periodically, Company management reviews a summary of, concerns which have been submitted. -

In conclusion, Georgia Power Company has established sufficient programs to ensure that any legitimate safety concerns held by its esp ioyees are identified and promptly resolved. Furthermore, Georgia Power Company believes its policies and programs adequately convey its position to employees that those who raise concerns are considered vital to the safe and reliable operation of its nuclear plants. Thus, Georgia Power believes that its employees do feel free to raise concerns without fear of retallation.

Based on the above, Georgia Power Company does not believe that the NRC should order, or provide prescriptive regulations or policy statements requiring licensees to adopt an employee concerns program. First, there is insufficient justification for imposing such requirements on the industry as a whole. Second, imposing such requirements will impose substantial resource burdens on licensees, most of whom already have some kind of concerns program, to conform their irograms to such requirements. Third, substantial NRC Staff resources, wmich the NRC has recently observed are shrinkin9, will be unnecessarily consumed. Fourth, such requirements are not likely to make a difference where the licensee already has a similar program. Finally, as Chairman Salin observed in his remarks to the Senate Subcosmiittee, it is the licensee's corporate culture, rather than any particular program or procedure, that will make the difference in whether employees feel free to raise concerns. If the employees do not receive the day-to-day encouragement from their management to raise safety concerns, the most elaborate concerns program in the world will not allay their fears.

of retaliation. In sum, the issuance of such new regulations would place form over substance, and require a major investment on the part of both licensees and the NRC without any meaningful increase in nuclear safety or employee welfare.

B. Resoonsiveness and Receotiveness of the NRC to Alleentions The Federal Register notice seeks comments on the NRC policy of referring allegations to licensees and actions which NRC can take to minimize compromising the identity of the alleger.

Georgia Power believes it is appropriate for the NRC to promptly refer allegations to the licensee which affect safety. This is the most expedient way to. ensure that legitimate safety concerns are swiftly resolved. While Georgia Power respects the desires of some employees who -

raise safety concerns to have their identities kept confidential, this HL-3474 LCV-0165

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. GeorgiaPowerb U. S. Nuclear Regulatory Coenission Page Five

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should not be a critical matter in a corporate atmosphere which encourages its employees to bring their concern to management. In those cases where the corporate atmosphere discourages employees from raising concerns, the issue should not be how to protect the confidentiality of hilegers, but how to improve the licensee's corporate culture.

NRC resident inspectors are in an excellent position to determine whether licensee's corporate culture is such that employees feel free to raise concerns. Because these inspectors are located at the plants, they have daily contact with plant employees at all levels in the organization.

'The residents are able to accurately determine whether smeial precautions should be taken to protect the identity of an employee ww brings them an allegation. With rare exceptions, we believe that the NRC's current procedures for protecting the iuentities of allegers are adequate. The NRC l should not permit the exception to swallow the rule here, and undermine the  ;

significant achievements of licensees in the voluntary non-retaliatory resolution of safety concerns.

C. Potential for Discrimination i I

Georgia Power Company believes that the NRC should always advise a  :

licensee when employees express a reluctance to raise safety concerns for l fear of retaliation. This information is important in assessing the licensee's corporate culture as well as the effectiveness of its concerns programs. Of course, the NRC should also advise the licensee whether it believes such information is indicative of a widespread problem or is an exception to the views of most employees.

With respect to those employees who inform the NRC that they have safety concerns, but will not disclose them, the NRC should inform such employees of their obligations under NRC regulations to report significant safety issues to the NRC. The NRC could also offer these employees confidentiality, pursuant to a written agreement, under their current procedures. At the same time, the licensee, who presumably does not know the identity of the employee, could issue a general notice to all employees urging them to bring forward any safety concerns and assuring them that harassment and intimidation will not be tolerated.

These steps should be adequate to ensure the disclosure of any legitimate safety concerns and alert licensee management to the potential for a retaliation situation. On the other hand, the NRC must be cautious not to create increased opportunities for those who abuse the system. Even a cursory review of the whistleblower case law and DOL's experience under the Energy Reorganization Act establishes that licensees have produced an exemplary record in the non-retaliatory treatment of legitimate -

whistleblowers. At the same time, licensees must be free to take those HL-3474 LCV-0165

GeorgiaPower A U. S. Nuclear Regulatory Commission Page Six employment actions which they reasonably deem necessary to ensure that their workforces are competent, trustworthy and willing to abide by regulatory requirements and that a free flow of information in their workplaces is assured.

• D. IEC Investientions Durine 00L Process .

There appears to be little dispute that duplicative NK and D0L investigations of retaliation claims will be counterproductive. Not only i would it require a substantial commitment of additional NE resources, but 1 it would likely work to delay the resolution of such claims and, at least up through the hearing stage, D0L has a commendable record for timeliness.

NRC should await the completion of the 00L process through the hearing stage and the NRC should utilize the record, to the extent it is developed, by the D0L Administrative Law Judge (ALJ).

In a D0L case where the ALJ does not reach a finding on the merits, as when the case is settled, the NRC should make its own determination, based on the facts gathered to that stage of the proceeding and any additional facts it may develop, as to whether enforcement action is appropriate. The NRC should not automatically take enforcement action based on a D0L compliance officer's. finding against a licensee. Fairness and due process require that the NRC afford licensee the opportunity to demonstrate that a violation of NRC requirements did not occur. Without I such an opportunity, licensees will perceive that, with an adverse finding from a D0L compliance' officer, settlement of the case should not be considered because the compliance officer's report will be used by the NRC as a basis to take enforcement action. This adversely affects the interests of both licensees and D0L complainants. Duplicative or parallel processes by the NRC would also allow illegitimate whistleblowers the opportunity to expand and frustrate the adjudicatory process, heaping delay and expense upon licensees. The result is that well-meaning licensees are punished without due process.

E. Earlier NRC Enforcement Action As noted above, the NRC should await the completion of the D0L hearing process before initiating enforcement action. Early enforcement action will require the licensee to defend its actions on two fronts which is inherently unfair, jeopardizing the ability of the licensee to present a full defense, while allowing whistleblowers to impose undue litigation costs upon the licensee. The NRC s.'.;uld not encroach upon the D0L process HL-3474

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U. S. Nuclear Regulatory Commission Page Seven which, at least through the hearing stage, works as well or better than any whistleblower resolution process under federal law. Moreover, the D0L hearing process allows for a full and independent assessment of the l credibility of both the whistleblower and the accused management.

F'. Chil11ne Effect Letters -

Georgia Power Company's observation is that the so called " chilling effect" letters serve an important function and are adequate. However, ,

NRC's current practice of issuing those letters at the time of an initial D0L investigation finding of discrimination creates'aisconceptions concerning the merits of the case as well as the extent to which NRC has been kept informed. Such a " chilling effect" letter can create a perception among employees that the 'iconses has already been found guilty of misconduct, and that potential filers of safety concerns should fear for their job security. This is clearly not the message the NRC should be sending, and it punishes licensees without due process and well before any determination of wrongdoing has been rendered. Furthermore, the issuance:

of a formal " chilling effect" letter with respect to a given D0L complaint may give the impression that the NRC and the licensee have not communicated and that the NRC is uninformed of the facts of the case and unaware of the licensee's general corporate culture, which Georgia Power submits is not the case. The NRC should take steps, including the timing and message of such letters, to minimize the potential for these misconceptions.

G. NRC Civil Penalties NRC civil penalties for violations do provide deterrence for retaliation. Any violation of NRC regulations carries with it criticism from local public officials and the community at large. A violation for retaliation adds the stigma of an employer mistreating it employees.

Georgia Power Company does not believe there is sufficient justification to increase the Severit', .evel or the amount of civil penalties for retaliation violations. This will escalate the enforcement processincreasingtheburdensonthelicenseeaswellastheNRCstaff.E EAsimilarconclusionwasexpressedbyChairmanSelinattheJuly 15, 1993 Senate Subcommittee hearing when he said:

(T]here has been a lot of discussion about heavier penalties at the end and things like that. We'll look at these, but heavier penalties mean higher standards of proof, which mean a longer process and not a shorter process, so there is a real trade-off between hitting people with a bigger stick at the end and moving more quickly at the beginning, and that has to be looked at very carefully...

and more use of criminal [ penalties) has the same problems.

Tr. at 139.

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It is unlikely that such escalation will have any substantial effect on those few cases of actual harassment and intimidation which will occur.

l H. Use of Deliberate Nisconduct Rule The comments expressed above with respect to increased enforcement sanctions apply with even greater force to the use of the deliberate misconduct rule in cases of retaliation. These actions will be hotly j contested, and resolution will be more difficult, when the careers of '

individuals are at stake. Licensee disciplinary policies are capable of adequately addressing individual misconduct. .The NRC should limit its oversight to whether the licensee has taken appropriate actions to address the problem.

III. CONCLUSION For the reasons expressed above, Georgia Power Company does not believe there is sufficient justification for the NRC to impose additional requirements upon licensees to protect licensee employees who would raise.

safety concerns. The overwhelming weight of the evidence is that licensees recognize such employees as valuable contributors and only a small percentage of industry employees file retaliation claims each year.

Among the Section 211 cases which are filed, there are few actual cases of retaliation and, because of the nature of those that do occur, imposition of requirements for employee concerns programs and procedures is not likely to prevent their occurrence. Additionally, imposition of such requirements on licensees are likely to increase the opportunities for those who seek to abuse the process for illegitimate purposes. An increase in the number of cases of abuse will be a source of frustration for licensees who will be targets of such abuse, and will further burden the limited resources of the D0L and NRC.

Georgia Power Company agrees with the observation of Chairman Selin that it is the licensee's corporate culture, more than anything, which will effect whether employees feel free to raise safety concerns. he commitment of substantial NRC and licensee resources to prescriptive requirements for employee concerns programs would do little to ensure an -

appropriate corporate culture, and therefore, would not be fruitful.

Respectfully submitted,

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v. . W C. K. McCoy /

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""*"Ca*""' May 11,1994 E

E TO ALL GEORGIA POWEREMPLOYEES -

E By now each ofyou have been made aware of the recent Notice ofViolation and -

E proposed irnposition of a $200,000 civil penalty against Georgia Power Company.

'Ibe Company is stiu evaluating this document, both its factual conclusions and the g legal options, and will prepare an appropriate response. The purpose of this lesar, though, is to assure an of our employees that Georgia Power Company remains firmly committed to a full, open, complete and accurate ."." ..

• cations poucy with the Nuclear Regulatory Ca==ienian, any of the Cmy's regulatory E authorities, and with each other. Regardless of the outcome of the Notice of Violation, aH of us should ccasider it our pe===8 responsibility thatwhencaued g upon to -. "..o .. 'cate with the Nuclear Regulatory ("a==ienian or its staff, whether orally or in writing, we will do our best to ensure that the information provided is complete and accurate in all material respects. This is our obligation l by law, this is our obligation by the terms of our licenses, but more importaasty, it is the right thing to do.

We should all wher, and take seriously, that the policy ofGeorgia Power  !

Company is to conduct its business amirs in an h-- ethical manner and to 3 .

comply whh au laws and regulations au the Company. Important to our success as a company is our success at compliance with our legal obligations. '

Ifyou have a concern which you wish to raise, then you are encouragoil to do so.

Georgia Power Company's policy is to encourage its employees, and employees of j its contractors, to communicate their concerns to their supervisors, which tbsy ats free to do at any time. If an employee concern cannot be resolved through this 8 traditional channel, or if the employee wishes to pursue the matters through the concerns program, then use of that program is encouraged. In short, the Company wants you to feel free to raise any concem which you may have and has pr6vided 8}

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All Georgia Power Employees May 11,1994 multiple ways for you to do so. You will be treated with respect,h will be tressed with counesy, and a fair and reasonable response will be provided g

• I promptly and completely. Ofcourse, you may always go d*.My to the Nuclear Regulatory Comminnion if you wish and the way to do this, as well as the relevant phone numbers, is posted on numerous bulletin boeris throughout the l work areas. Rest assured that you may raise your rweerns without any f'e ar of penalty or retaliation.

Lets all work together es a team, and dedicate ourselves to safe and ef5cient.

g nuclear plant operations. We all have a mrmmmity ofinterest in the success of our l company, we all have a communiry of *mterest in fhil, open, complete and accumes communication with ourselves and with our ag.d.k.y authorities. Let's pursue l these goals to the best of our individual abilities.

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October 3,1995 TO GEORGfA POWER OFFTCERS ANDNticLEAR EMPLOYEES i Power Policies on Raining Safety and Regulatory Genrf a compliance concems As you may be aware, Georgia Power is --- diinvolvedinseverallitissend maners in which fonner ,,4 allege that Georgia Power retalimend assinst tham in 1990 for raising conomens about compliance with Nucisar Regulatory cas-ai-ian requi.- - = These procasdings raatinue but ressalless of their outcoms, yon should know that it is Georgia Power's longstanding policy to encourage its < ;' ,1 to identify and to report compliance concems. No retaliation for raising a ca-T li

- conomen wiu be tolerated. Any employee, including a supervisor, mensgar or officer, who rendiaans or penalizes an individual for submission or voicing of a concern will be subject to appropriate disciplinary action.

Georgia Power is deeply committed to open and effsetive - . .. .7 - .7 . in its business, in particular 4- '='=g " upward - ... +. 5 I . . " so that personnel freely bring issues to the anention of their supervision. In the mid-1980s the Company developed

" Quality Concerns" programs at its nuclear plants to foster an open atmosphere where '

employee concerns may be raised, reviewed and conoceed. A Company-wids "Corposes Concems" program was implemented later, based on the success of the nucisar plant programs, to give employees who have conosms of an ethical nense or concess otherwiss related to their jobs an option, in addition to going through line management, to pursus those conosms. Southern Nucient has also set up an Employee Concerns progrant in Birmingham for nacisargelsend concems. Concess may be =h=M anonyenously,if desired, to thess pmgrams. In =Mi*iaa  ;'-- , c who have naciserweisted conoses about our nuclear plants may contact the NRC Resident inspectors who have of5ces at each of the nuclear plants, or call the NRC's Regional Office at Atlanco a&g-J A*

H. Allen Franidin

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Reich hands downMosbaugh decision, GeorgiaPowerwillappeal Ovenuling the 1992 decision of a Depamnent of Labor adminierrative lawjudge, Labor

?+2+sf Robert Reich has ruled in favor of Allen Mosbaugh, the fonner Georgia Power

, employee who was fhed in 1990 for secretly tape recording conversations with his co workers. After he was fired, Mosbaugh had brought a claim against Georgia Power at the Dei-w of Labor. 'Ihe ci. w.'s administrative lawjudge ruled in 1992 that Goosgia Power acted r*maannhly when it fired Mosbaugh.

In overruling that decision, Reich remanded the issue to the administrative lawjudge for a variety of temedies to be Camined at a subsequent hearing. "Ihose various remedios would include re!a=== " i with back pay, reimbursement for attomey's fees and compensatory damages.

GeorBi a Power expressed disappoirumant at Secretary Reich's " rejection of his own admin-istrative law judge - whose conclusions were based on his having presided over the trial of this case three and a half years ago. 'Ihe decision does not appear to be based on the evidence or well aemhhhad law and policy. We will appeal this order.

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