ML20211C664

Forwards Little Harbor Consultants Investigation Rept Re Alleged Retaliation in MOV Program at Millstone Station of Nneco.Attachment 1 to Ltr Is Withheld,Per 10CFR2.790(a)(6). Affidavit,Encl

ML20211C664
Person / Time
Site:	Millstone
Issue date:	09/12/1997
From:	Beck J AFFILIATION NOT ASSIGNED
To:	Travers W NRC (Affiliation Not Assigned)
References
ITPOP-97-0030, ITPOP-97-30, NUDOCS 9709260267
Download: ML20211C664 (43)

Text

. .-

Little Harbor Consultants,Inc.

Millstone-ITPOP Project Office P.O. Box 0630 Niantic, Connecticut 06357-0630 Telephone 860 447-1791, est 5966 Faz 860-444-5758 September 12,1997 Docket Not 50-245 50-336 50-423 ITPOP 97-0030 Dr. William D. Travers, Director Special Projects Office Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Millstone Nuclear Power Station, Unit Nos.1,2, and 3 Little Harbor Consultants, Inc. (LHC) Report on Alleged Retaliation in the Motor Operated Valve Program

Dear Dr. Travers:

Transmitted herewith is the LHC investigation report dealing with alleged retaliation in the Motor Operated Valve Program at the Millstone Station of Northeast Nuclear Energy Company (NNTCo).

Please note that Attachment I has been marked to indicate its confidential nature. The nature of Attachment 1 is such that it reveals personnel information the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Accordingly, pursuant to 10 CFR 2.790(a)(6), LHC requests that Attachment I be withheld from public disclosure in its entirety.

An affidavit supporting LHC's request that Attachment I be withheld from public disclosure is enclosed. (Enclosure 1.) LHC, however, has no objection to the placement oithis cover letter or

~ Attachment 2 in the NRC Public Document Room.

- V)C, 9709260267 970912  ? --

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U.S. Nuclear Regulatory Commission ITPOP 97-0030/ Page 2 Please do not hesitate to contact me at 860-444-5626 should you have any questions or need additionalinformation.

Very truly yours,

. 2 d6hn W. Beck Team Leader,ITPOP President, Little Harbor Consultants, Inc.

Attachment 1 Attachment 2 -

Enclosure 1 (Affidavit) cc: Bruce D. Kenyon (w/o Attachment 1)

Distribution

c U.S. Nuclear Regulatory Commission ITPOP 97-0030/ Page 3 Distribution:

' D.M. Goebel, NNECo Charles Brinkman, Manager i

Washington Nuclear Operations .

Dds475/5 ABB Combustica Engineenng Nuclear Power ,

P. Idus, NNECo ' 12300 Twinbrook Pkwy, Suite 330  :

Bidg 4',5/5 Rocimile, MD 20852 - ,

K. M. McBrien, NNECo Mr. John B@

• Department of Public Utility Control Bids 475/5

• Electric Unit

' W. J. Temple, NNECo - 10 Liberty Square Bidg 475/2 New Britain, CT 06051 -

U.S. Nuclear Regulatory C won Citizens Regulatory Commission Atta Document ControlDesk A'ITN: Ms. Susan Perry Luxton

Washington,DC 20555 180 Great Neck Road Waterford, CT 06385 U.S Nuclear Regulatory Commission Atta

P.F. McKee Citizens Awareness Network '

Mail Stop: 014D4 54 Old Turnpike Road Washington,DC 20$55 0001 Haddam, CT 06438 U.S. Nuclear Regulatory Commission The Honorable Teny Concannon Atta: H.N. Pastis Nuclear Energy Advisory Council

- Mail Stop: 014D4 Legislative Office Building Washington, DC 20555-0001 Hartford, CT 06106 Mr. Wayne D. Lanning Mr. Evan W. Woollacott Deputy Director ofInspections Co-Chair SpecialProjects Office Nuclear Energy Adsisory Council

.475 Allendale Road 128 Terry's Plain Road King of Prussia, PA 19406-1415 Simsbury, CT 06070

. Kevin T. A. McCarthy, Director . Ernest C. Hadley, Esquire Monitoring and Radiation Division 1040 B Main Street Department of Environmental Protection P.O. Box 549 79 Elm Street West Wareham, MA 02576 Hartford, CT 06106-5127 Mr. Paul Choiniere

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~

Allan Johanson, Aenennt Director.

Office of Policy and Mc=y-ment 47 Eugene O'NeillDrive Policy Development and Planning Division - New London, CT 06320 450 Capitol Avenue-MS 52ERN

P.O. Box 341441 Hartford, CT 061341441-Pirst Selectmen Town of Waterford -

. Hallof Records 200 Boston Post Road Waterford, CT 06385 -

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ENCLOSURE 1 AFFIDAVIT IN SUPPORT OF REQUEST THAT INFORMATION BE WITHHELD FROM PUBLIC DISCLOSURE I, John W. Beck, being duly sworn, depose and state:

1. I am the President of Little Harbor Consultants, Inc. and Team Leader of the Independent Third Party Oversight Program at the Millstone Site of Northeast Nuclear Energy Company. I make this affidavit in support of LHC's request that utachment I to LHC's letter of September 12,1997, be withheld from public disclosure pursuant to the provisions of 10 CFR 2.790(a)(6).

2. Attachment I contains information related to the circumstances of actions taken against individuals by NNECo that may be used in making personnel decisions, the public disclosure of which would constitute a clearly unwarranted invasion of personnel privacy.

3. The circumstances of personnel actions taken against individuals is customarily treated in strict confidence by NNECo.

4. For the reasons stated in paragraphs 2 and 3 above, it is appropriate to withhold Attachment I to LHC's September 12,1997, letter from public disclosure pursuant to the prosisions of10 CFR 2.790(a)(6).

.l (ptin W. Beck Sworn to and subscribed before me this /d2. , day of Suk4<19 7 Notary Public' kW fMy Commission expiresIIw f 6 So #

i.G R F.GOODSON NOTARY PUBUC Commasen Espires November 30,2001 l

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I Attachment 2

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I i

u INDEPENDENT INVESTIGATION OF THE TERMINATIONS OF CONTRACTOR "A" AND i

CONTRACTOR "B" AND THE DEMOTION OF EMPLOYEE "C" The events surrounding the allegations of retaliation in the Motor Operated Valve ("MOV")

Design Engineering Organization principally involve five individuals, the Department Manager, Department Supervisor, Contractor "A", Contractor "B" and Employee "C". The principal issues developed over the late spring and summer and culminate with the terminations ofContractor "A" and Contractor "B" in early August,1997. Little Harbor Consultants ("LHC") has conducted an independent investigation into the facts rd circumstances leading to the terminations in order to reach a specific conclusion on whether retaliation was a fhotor. In conducting the investigation, LHC has interviewed thirty-two' people, and reviewed numerous documents. Throughout the course of the investigation the information was discussed and reviewed by the Independent Team members. The conclusions contained in this report are the consensus agreement of the LHC Team.'

EXECUTIVE

SUMMARY

It is the consensus of Little Harbor Consultants, Inc., that the August 8 and 11,1997, terminations of Contractor "B" and Contractor "A", Northeast Utilities ("NU") contract engineers, by the Department Supervisor and the Department Manager, also contractors to NU, were motivated by retaliation against Contractor "B" and Contractor "A" for engaging in legally protected activities, i.e., raising concerns about specific issues in the MOV Department. It is also the consensus of Little Harbor that the July 21, 1997, removal of Employee "C", a NU Design Engineer, from her assignments in the MOV Department was the result of the same retaliatory motive.

L FINDINGS OF INVESTIGATION:

l. Contractor "B" and Contractor "A" were both contractors for NU at the Millstone nuclear power plant until their terminations, August 8 and 11,1997 respectively.' Both were Design i Engineers assigned to the Millstone site MOV Design Engineering organization. Contractor "B" had been a contractor at Millstone for approximately four (4) years through ABB/ Combustion Engineering ("ABB/CE"), working on a contract that was to expire on

'LHC interviewed additional personnel in the Design Enginecing organization in connection with the " chilling effect" evaluation conducted earlier. LHC bas, where appropriate, relied upon information gathered during that effort to support this investigation.

'The team members working on this investigation were John Beck, John Griffin, Billie Garde and Don Invin.

l 'Both termination letters are dated August 7,1997; however, since Contractor "A" was i not on site on August 7, he did not receive notice of his termination until August 11,1997.

Page 1 of 38 l

1 d \s 12/31/97. Contractor "A" had been hired on a contract running from h1ay,1997 until August 31,1997, through his own company, Contractor "A" & Associates, by Employee "D", Unit 3 Supervisor Mechanical /Civu Design Engineering, based on Contractor "A"'s reputation in the industry. Employee "C", is a NU Engineer She was assigned to Unit 3 Engineering with specific responsibility for MOV-related issues, then transferred to the MOV site organization.'

(Contract Nos. 02013822(Contractor "B") and 02025066 (Contractor "A").)

2. The Program Manager for the MOV Department at all times relevant to this investigation was the Department Manager, an Arizona Public Senice ("APS") employee on loan to NU for the recovery efforts. The Supenisor of the Design Engine-ring Department at all times relevant to this investigation was the Department Supenisoi, contractor from TDS.

3. Department Manager began his contract of employment with NU on or about March 15, 1997 In his new position he was the Program Manager for the MOV program. He was also responsible for the rewrite of the MOV Manual, resolution of NRC-identified issues, closure ofGeneric Letter 89-10, and bringing Millstone's program in compliance with current industry practices and standards'. (Inteniew of Department Manager, August 20,1997; Department Manager Contract.)

4. The decision to hire Department Manager was made jointly by Employee "E", Employee "F",

Employee "G", and Employee "H". Employee "H" also approved retaining a number of engineers to work or. (he MOV effort through TDS, a " job t, hopper" out of Arlington, Texas.

(TDS Contracting documents.) NU did not follow its usual hiring policies regarding the hiring and contracting arrangements with Department Manager because of the rush to make progress with the MOV program which needed leadership. (Inteniews of NU Contracting representatives, August 19,1997; Inteniew of Employee "H", August 27,1997.)

5. During April and early May,1997, Department Manager, along with Employee "G",

undertook the organization of a site-wide MOV Department in an attempt to develop an approach that would resolve MOV-related issues in accordance with the projected schedule for completion and restart of the Units. (Inteniews of Department Manager, Employee "C",

and Employee "G." (September 10, 1997.)

6. On April 7,1997, Employee "G" sent a memo to the Unit Engineering Directors, providing certe.in Design Setpoint Calculation Factors to be used in actuator design for purposes of closing GL 89-10. He received these calculation factors from Department Manager and relied

' Employee "C" was assignc.! tc the site group by Employee "D", as a growtMearning experience and to insure that Unit 3 requiremenu ,ommitments were met. (Employee "D" interview of August 26,1997.)

' Department Manager had assisted with the INPO Assistance Visit conducted December 17-20,1996, and prepared the January 22,1997, trip report covering that visit.

Page 2 of 38

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on Department hianager to insure that it was consistent with the existing hiOV Program hianual and industry best practices. (Inteniew of Employee "G", September 10,1997; April 7,1997 memo.)

7. This memo initiated a series of questions regarding the sufficiency of the guidance and adequacy of the calculations and other information being provided within the Design Engineering organization. Several members of the Design Engineering Department, including Contractor"B" and Employee "C", believed that the memo did not provide sufficient guidance for implementation by Design Engineering. Between April 7 and April 18,1997, the Units sought clarification from Department hianager or Department Supenisor on how to use the design calculation values specified by the Programs Group in addressing the hiOV issues presented to NU. ( Interview of Employee "C"', Employee "C"'s notes; Inteniew of Contractor"B", August 14, 1997.)

8. Employee "C", and others, including the Acting Design Engineer hianager, did not feel that the answers they received from Department Supenisor and Department Manager revealed either technical competence or an understanding of the h10V issues at hiillstone. Between April and mid-hfay there were many iterations and modifications to the methods for performing the h10V design calculations to be used on the project. Each change had a ripple effect on the work being done throughout the department. The hiOV Department had strong internal disagreements over the approach to be taken to address hiOV issues. (Inteniew of Employee "C"; Inteniew with Contractor "C", August,1997.)

9. Along with the continual changes being made in the basic calculations and engineering approaches, the hiOV Department also underwent continual department reorganization throughout the Spring of 1997. This included a Root Cause Evaluation, February 10,1997.

The resolution of Unit 3 hiOV issues necessary for restart was originally a responsibility separate from the Programs Group. In that context, Unit 3 hired their own industry expert, Contractor "A", to assist and support the Unit 3 GL 89-10 closure. (Inteniew of Employee "C"; Inteniew of Employee "I", August 26, 1997.)

10. Contractor "A"'s contract designated that he was responsible to Employee "C", an NU engineer assigned to the Unit 3 hiOV group. (Inteniews with Contractor"A"; Employee"C";

and Employee "D", August 26,1997; Contractor "A" contract, hiay 19,1997.)

! 11. The Unit 3 hiOV effort was folded into a new site h10V Department in early June,1997. In that reorganization Contractor "A" was placed as head of the Setpoints Calculation group.

(Organizational Chart; Inteniews with Contractor "A" and Employee "C".)

12. Employee "C", who had been the lead for the hiOV Department for Unit 3, was placed under

' Employee "C" and Contractor "A" were inteniewed on several occasions, and therefore, l no specific date is referenced.

Page 3 of 38

4 1 Contractor "A" on the new MOV organizational chart. Contractor "A" understood that he was to mentor Employee "C"in this position, not function as her supenisor. Employee "C" still had responsibility to insure the technical adequacy and compliance with NU procedures of the MOV program as it applied to Unit 3. (Inteniew with Employee "C"; Inteniew with Employee "D", August 26,1997; Inteniew with Contractor "A".)

13. Additionally, the contract arranrement for Employee "C" to supenise Contractor "A" as set forth in Contractor "A"'s contiset did not change. (Inteniew with Employee "C", and Contractor "A"'s contract.)

14. In early June,1997, Employea "C", had a conversation with Department Manager regarding her concerns about the MOV program direction and specific issues. Employee "C"'s recollection and notes indicate that she advised Department Manager that she was very concerned that he would change the design configuration of the plant, and explained uer objections to the method he was employing in the program and its impact on schedule completion and technical soundness. She also explained her concerns, on the basis of her observations and interaction, that Department Supenisor did not have the experience to manage the department. According to Employee "C", Department Manager did not respond to her concerns. Instead, Department Manager advised her that she was a good " technical person" and that he could "put in a good word for her to manage the program [nfler he left)."

Employee "C" told Department Manager that she was a " design engineer" and did not have any interest in becoming a program engineer generally or the MOV Program Manager specifically. Department Manager replied, "she should think it over carefully." Department Manager advised Employee "C", "if you do not believe in the success of this group, then Employee "J" and I will just to have to find you a job some place else."(Inteniew with Employee "C".)

15. According to Department Manager's recollection of the same meeting Employee "C" told him that she did not trust him and "didn't want to be part of the group." (Department Manager's rebuttal notes.) Employee "C" has denied that she made the statement that she "didn't want to be part of the group," but confirmed that she told Department Manager she did not trust him and that she did not want to become the program engineer. (Inteniew with Employee "C".)

16. On June 5, Department Supenisor held a meeting with all MOV Lesign engineers. According to Employee "C" and Contractor "A", Department Supenisor advised the engineers that he did not have an alternative method for valves that were not addressed by the common methodology, that he wasn't going to take two weeks to develop alternative methodologies, and that the unit would deal with these problems on a valve-by-valve basis. (Inteniews with Employee "C" and Contractor "A".)

17. Employee "C" then took her concerns about Department Supenisor's attitude and lack of alternative methods of resolutions to Employee "K" and Employee "J", Unit 3 Design Page4 of 38

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

.. i Engineering Manager. According to Employee "C", Employee"J" advised her to"give them

_ [ Department Manager and Department Supervisor) a chance to work things out." Later that day Employee "C" discovered that the Field Organization was using bolt torque values that --

were not supported by adequate technicaljustification. The issue of the improper bolt torque values became the subject of a series of confrontations between Employee "C", Department Manager and Department Supervisor. (Interview with Employee "C".)

18. - According to Employee "C", on June 10,1997, she spoke to Employee "L", Unit 3 Design Engineering Supervisor, about losing design control of the MOV issues. Contractor "A" and Department Supervisor also went to Employee "L" to discuss the problems of how to route _

DCNs. Employee _"L" did not grant blank signature authority to the MOV Department, t (Interviews of Empicyee "C" and Contractor "A".)

' 19. Because of the inability to get things through Design Engineering fast enough, Departsaent Manager sent out an e-mail in which he established signature authority for himself an'd

- Department Supervisor for DCNs. Employee "C" brought this e-mail to the attention of Employee "J" and Employee "D" and explained the concerns about the actions being taken by Department Manager and Department Supervisor in regards to the integrity of the MOV program. No action was taken about the bolt torque issue or Department Manager's ,

assumption of DCN signature authority. (Employee "C"'s typewritten notes; Department Manager's e-mail rega-ding signature authcrity.)

1

20. On June 12,199_7, a meeting was held with Employee "D", Employee "J" and Employee "M",

to discuss the MOV situation. Employee "N" decided that Design Engineering should be responsible for the design configuration of the plant. Employee "C" was' advised of these

- decisions. (Employee"C" notes.)

21. Employee "D" generated a CR on the bolt torque concern on June 13,1997. On June 17, 1997, Employee "C" discovered that the bolt torque issue was continuing. On June 20,1997, Employee "C" met with Employee "O" about the AWO errors and bolt torque problems.

Employee "C"'s e-mail specifically attacked the technicaljustification for using bolt torque values at Millstone based on Palo Verde bolt torque values. Employee "C" asked Employee "O" if she was going to "be fired for writing too many CRs." Employee "O" assured her that was not going to happen as long as he was her boss. (Interview with Employee "O", August 24,1997, and September 11,1997; Employee "C"'s typewrit:en notes; Employee "C'"s e-mail to Employee "O", June 20,1997. )

22. The MOV Program Manual rewrite process had begun on or about May-20,:1997 by Department Manager and Department Supenisor. During the week of June 23,1997, _

-. Contractor "A" reviewed the MOV Program Manual to determine ifhis earlier comments had been incorporated.1 Contractor "A" met briefly with Department Manager and encouraged Department Manager that the revised MOV Manual should be issued as soon as possible.

(Interview with Contractor "A"; Contractor "A"'s diary entry.)

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- 23.  : During this time period Contractor "A" was advised by both Employee "C" and Dep.du.est Manager to start keeping a diary.{ According to Contractor "A", Employee "C" advised him to keep a log because Department Manager "might turn on him." Department Manager:

advised Contractor "A" to keep a log because Employee "C" was a " troublemaker," who had l caused trouble in Unit I which resulted in ECP concerns and investigations. (Interview of. .

Contractor "A", August 29,1997; Contractor "A" log entry of June 23,1997.) l 24; On June 26,1997, Contractor"A" sent a memo to Department Manager detailing his concerns i about doing MOV dynamometer testing in order to verify motor conditions, and urging that such testing be conducted. (Contractor"A"'s June 26,1997 memo.)

25; . On June 27,1997, Depanment Manager wrote a memo for Employee "G" to release to his distribution list on that memo. Employee "G" provided all comments / resolutions to the MOV Manual.for review. .The memo also requested that Unit Managers and various other organization leads approve the issuance of the manual by June 30,1997. (Depanment Manager's notes; Employee "G" June 27, 1997 memo; Inteniew with Employee "G",

September 10,1997.)

26. _ On June 30,1997 Employee "C" learned that the MOV Manual being circulated for review was actually not the manual at all, but simply a stack of changes. (Interview with Employee "C"; Employee "C"'s notes.)

27. On July 2,1997, Contractor "A" sent a memo to Department Manager discussing the NRC

- S2fety Evaluation Report on EPRI MOV Performance. (Contractor "A", July 2,1997, Memo on EPRI PPM Unseating Thrust Calculation Limitations.)

28. On July 7,1997, Employee "C" was told by another Design Engineer that Department Supenisor had told him that the " field (implementation staff] needs a bolt number," and that it should be provided even it is wasn't a solid number lacause it was just "an interim value,"

and that "they can always go back to re-t_orque the bolts later." (Inteniews with Employee "C" and Contractor "A"; Employee "C"'s notes.)

29. Also on July 7,1997, Department Supervisor, Contractor "A", and Contractor "H" engaged

. in a conversation at Contractor"H"'s desk. According to Department Supervisor, Contractor "A" made the comment several times during that conversation, that "maybe we can find other

. . things and hold up things longer." Contractor "A" states that he never made these comments.

(Interview with Contractor "A".) Department Supenisor never discussed this incident with Contractor "A", and made no record of the incident. Contractor "H" denies participating in a conversation in which he recalls Contractor "A" making such a statement. (ECP inteniew ofContractor"H", August 27,1997.)

. 30. . Employee "J" was preparing to leave on a two week vacation.- He was aware that the MOV 4

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- Program Manual was in the approval cycle and that there was some dissension within the  ;

department regarding the approach being adopted by Depanment Manager. He put Employee ,

"I" in charge of Unit 3 Engineering during his vacation' Employee "J" directed him not to

" sign'off" on the manual until Employee "C"'s concerns had been addressed. (Employee "J".

Interview, August 26,1997 and September 10,1997.) 3

' 31. Shortly before Employee "J" len for a two week vacation, Employee "D" was presented a blank signature page for the approval ofthe MOV Program Manual by Depanment Supervisor ,

for signature, but no manual. ' Depanment Supenisor explained to Employee "D" that -

• Department Manager had reviewed the manual, and therefore it was acceptable for Employee O "D" to sign off the manual for Unit 3. Employee "D" refused to sign it and sent Department Supenisor to Employee "I". (Inteniew with Employee "D", August 26,1997.)

32. Department Supervisor then presented the blank signature page to Employee "I". Employee "I" told Department Supervisor that he was not going to sign a blank signature page and asked

- for a copy of the manual. Several hours later Department Supervisor returned with a copy of the manual for Employee "I"'s review. Depanment Supervisor complained that making a copy

- had been very difficult since there was only one master, working drafL Employee "I" provided a copy of the manual to Employee "C". (Inteniew with Employee "I", S.ptember 11,1997.)

i

33. .On July 10,-1997, Contractor "A" met with Employee "C" who requested him to do a complete review of the MOV Program Manual for the Unit 3 Design Manager. She provided him a copy of the manual for his review. (Contractor"A'"s notes; Inteniew with Contractor

- "A".)

34. On Friday, July 11,1997, Employee "C" returned with Contractor "A". Employee "I" recalls

< that Contractor "A" had three types ofissues. First, he had identified a number of technical issues raising serious questions about the calculations included in the manual. Second, t Contractor "A" identified concerns about the techniques for doing calculations included in the manual. Third, Contractor "A" identified administrative edits. Employee "I" was aware that Contractor "A" had a serious technical concern about the calculations set fonh in the manual.

(Interview with Employee "I" on September 11,1997.) ,

35. During the July 11,1997 meeting, Employee "I" told Contractor "A" that because Employee "I" agreed that some of the issues were significant that he could not " sign off" on the manual.

Employee "I" asked Contractor "A" to finish his review of the rest of the manual by the next day, Saturday, July 12,1997. - Contractor "A" finished his comments by late Saturday, except

- for PI-13. He left his only copy of the marked-up manual on Employee "I"'s chair. On

~

Sunday, July 13,1997, Contractor "A" sent an e-mail with those comments on PI-13 he had c finished up to that time to Employee"I". Although Employee "I" does not have a recollection of the specific dates, he agrees with the sequence of these events. (Inteniew of Contractor 4

"A"; Contractor "A"'s diary entry; Inteniew of Employee "I", August 26,1997.)

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36. Also on July 11,1997, Contractor "A", who had not heard from Department Manager about the dynamometer testing sent a second memo. He sent copies of this memo to Employee"O".

(Contractor "A"'s July 11,1997 e-mail to Department Manager.)

37. On Sunday, July 13,1997, Contractor"A" provided Department Supenisor an electronic copy of his comments and memo to Employee"I" and Employee"C". (July 13,1997,12:18 PM e-mail to Employee "I" from Contractor "A", copied to Department Supenisor and Employee "C".)

38. Also on July 13,1997, Contractor "A" sent a memo to Department Manager advocating the dynamic testing of all gate valves, in parallel with on-going efforts to collect EPRI PPM and weak link analyses. (Contractor "A"'s July 13,1997 memo to Department Manager.)

39. On July 14,1997, Employee "C" and Contractor "A" attended an EPRI meeting in Maine.

During that conference Employee "C" and Contractor "A" discussed approaches to MOV issues with representatives of the NRC. (See Employee "C"'s trip report on the EPRI conference, July 18, 1997.)

40. According to Department Manager on or about July 15, two design engineers identified a problem in a Unit 2 valve. Department Manager claims that Contractor "A" failed to write a CR on a critical valve internal spare part component for Unit 2 MOV that resulted in non-conservative valve thrust capability limit /value. Contractor "A" and Department Supervisor discussed the proper procedure to address the issue. Contra. tor "A" acknowledged that he was unfamiliar with the CR procedure when the issue was identified, and discussed it with Department Supenisor. According to Contractor"A", Department Supervisor did not identify the need to write a CR either. After consultation with another engineer with more experience on the site, a CR was written on the non-conformance. Contractor "A" was never criticized by Department Supenisor or Department Manager with respect to the incident. (Inteniew with Contractor "A"; Contractor "A"'s notes; Inteniew with Department Supenisor; Department Supenisor's notes.)

41. On July 15,1997, Department Manager asked Contractor"A" why he reviewed the program manual. Contractor "A" explained that Employee "C" had asked him to do so in order that she could provide input and guidance to Unit 3 management. Department Manager told Contractor "A" he did not " work for Employee "C"" and that he should not do what she asked him to do. (Inteniew with Department Manager; Inteniew with Contractor "A"; Contractor "A"'s diary entry.)

42. Within that time frame, Department Manager went to Employee "I" to find out why he had not signed the manual. Employee "I" told him he had received additional comments to the manual, which he had condensed down to a limited number of technical concerns. Employee "I" confirmed that he told Department Manager that he could not sign off on the manual because he had two employees who had concerns. Employee "I" told Department Manager Page 8 of 38

O 4 that these were serious technicalissues that had to be addressed. He told Department hianager that he was su,e that the employees would "go wherever they had to go to address their concerns." Depanment hianager's recollection was that Employee "I" advised him that the employees would "go to the NRC about their concerns." Employee "I" doesn't recall that he used the words "go to the NRC," but certainly inferred it. (Inteniew with Department hianager; Inteniew with Employee "I", September 11,1997.)

43. Department hianager also asked Employee "I" for all of the comments in order to insure that all the comments were given proper review for incorporation into the manual. Employee "I" provided all the comments to Department hianager. Department hianager identified the concerns as being from Contractor "A", and Employee "I" confirmed that the two employees were Contractor"A" and Employee"C". (Inteniew with Employee"I", September 11,1997; Notes of Department hianager.)

44. Department Supenisor reviewed Contractor "A"'s July 13 comments to Employee "I" and confirmed that, in fact, Contractor "A" had identified concerns that Department Supenisor had not captured in the iterative manual review process. (Department Supenisor's Notes; Inteniew with Depanment Supervisor, August 21,1997.)

45. It is not clear whether Department Supenisor forgot that Contractor "A" had sent a copy of his PI-13 comments to Employee "1" on July 13,1997, whether Department Supenisor didn't receive or review the July 13,1997, e-mail from Contractor "A", or simply had failed to advise Department Manager of the comments that Contractor "A" had given to Employee "1".

46. Department Supenisor and Department Manager stated that they both believed that the actions of Contractor "A" in providing manual comments to Employee "I" was embarrassing to the department, and demonstrated poor judgment by Contractor "A" Neither felt that Contractor "A" had a "right" to provide the comments to Employee "1" if he was concerned aboat something, without first having brought the issue to Department Manager or Department Supervisor' (Notes of Department Supenisor; Interviews of Department Supervisor and Department Manager.)

47. Contractor "A" explains that he was simply doing what Employee"C" and Employee "I" asked him to do over a very short time period (over a weekend), and that by Sunday, July 13,1997, Department Supenisor had his significant comments on PI-13 anyway. (Interview of Contractor "A".)

48. On or about July 18, Employee "1" had a lengthy discussion with Department Manager about

'Since LHC had not received the July 13 memo from Contractor "A" to Employee "I" transmitting the PI-13 comments to Department Supenisor before the interviews of Department Supenisor or Department Manager, neither were asked about their knowledge or recollection of the Contractor "A" memo.

Page 9 of 38

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the problems within the MOV Department.' Employee "I" told Department Manager that it was Department Manager's responsibility to " clean up his house," and to insure that concerns being raised by his employees were addressed. (Inteniew with Employee "I", September 11, 1997.)_. ,

49. . Employee "J" returned from vacation on or about July 25,1997. Upon Employee"J'"s return he was informed by Employee "I" that there were 8 10 issues regarding the MOV Manual that

' had to be addressed before Unit 3 would approve the manual. Employee ".I"_ also advised Employee "J" that there were additional issues that should be addressed, but those issues

- would not have to be done prior to approval. Employee "J" states that he was insistent that he would not " sign off" on the manual until the Unit 3 issues had been addressed. (Interviews ofEmployee "J" and Employee "I", August 26,1997; Interview of Employee "J", September 10,1997.).

50. On July 20,1957, Contractor "A" asked Contractor "F" and Contractor "G", both Design Engineers, to check and reverify Contractor "B"'s calculation. Both engineers advised Contractor."A" that in order to do so they would need to have a copy of the manual to make sure the calculation was correct and consistent with the methodology and SMARTBOOK L calculation. However, the manual was not available for their review. (Contractor "A" notes.)

51. Employee "J" signed the manual on July 25,1997, when he was assured that the serious .

technical concerns were resolved, and that there was a plan to address the remaining issues.

(Interview of Employee "J", September 10, 1997, and ENGINEERING PROGRAM MANUAL CONCURRENCE AND SIGN- OFF SHEET.)

52. On July 21,1997, a department meeting was held. During the meeting Department Supervisor

- stated that the final version of the manual would be issued by July 24,1997. Department Supenisor advised the group that there were no plans for the manual to be reviewed again by the department. However, since objections had been raised by a number of department engineers, the manual would be provided to any engineer who wanted to review it prior to release. .At the July 21" meeting a new department organizational chart wns handed out.

Contractor "A" was removed from his position as Setpoints Group Supervisor and Employee "C" was removed from oversight responsibilities in the department. (Inteniews ofDepartment Supervisor, Contractor "B", Contractor "A" and Employee "C".)

53. . During the meeting Employee "C" was criticized severely by Department Supervisor for the

questions she was raising about the reorganization and manual. Contractor "B" came to her defense about the legitimacy of her concerns. (Inteniews ofContractor "A", Contractor "B",

and Employee "C".)

54. After the meeting, Employee "C" spoke to Employee "J" and Employee "D" about the '

+ function changes and the demotion of herself and Contractor "A" She asked them if they had -

agreed with the actions. Employee "J" advised Employee "C" that she should continue to Page 10 of 38 i.

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" watch" what was going on in the department and do the work assigned. (Inteniew with Employee "C".)

55. On the morning of July 22,1997, at 6:54 a.m., Department Supenisor sent an e-mail to the entire h10V Design Group. In the memo, Department Supenisor stated:

An issue was raised in yesterday's group meeting that some people might feel they did not get an opportunity to review the MOV manual when all of the comments were incorporated. As I stated in the meeting, the manual has been and is available for your review anytime, and I encourage you to review it if you feel it is necessary. I am incorporating some comments presently, and can give you a copy of the existing manual and the comments I have for your review. Please contact me today so I can let you know where the manualis so you can review it. I encourage you to expedite any reviews to support the Thursday issuance.

(July 22,1997 e-mail.)

56. Later that morning, Contractor"A" delivered about 50 comments by e-mail on PI-13, Revision 5, to Depanment Supenisor for incorporation. He also e mailed copies of those comments later that day to Department hianager, Employee "J" and Employee "1" (Interview with Contractor "A"; Contractor "A"'s notes.)

57. Aner lunch Contractor "A" asked the hiOV engineers in the department if they needed to review the manual further. Four engineers indicated that thefbelieved such a fmal review was necessary. Therefore, Contractor"A" asked Employee"Q", the Unit Secretary, to get a copy of the manual for their review. Contractor "A" stated to LHC, that he asked for the copy because 1) he had no idea whether his earlier comments, and those of others, had been incorporated at all, and 2) he and other engineers were concerned about the status of the manual after all of the comments had been incorporated and/or modified. (Inteniew with Contractor "A"; Contractor "A"'s notes.)

58. Employee "Q" asked Dep:.-tment Supenisor for the manual, and Department Supenisor asked her who it was for. Employee "Q" told him it was for Contractor "A". According to Employee "Q", but denied by Department Supervisor, Department Supenisor then referred to "them" as " snakes" to Employee "Q", but permitted Employee "Q" to copy the manual.

Employee "Q" then copied the manual, and Department Supenisor took both the original and the copy back to his office, telling Employee "Q" that he had a meeting with Contractor "A" at 4:00 Phi and he would provide it to him then. Employee "Q" then told Contractor "A" that Department Supenisor would not let her take a copy back to the group. She also told Contractor "A" that Department Supervisor had referred to the engineers seeking a copy of the manual as "those snakes." (Interviews with Department Supervisor, Contractor "A", and Employee "Q".)

Page 11 of 38

i .

59. The version of the manual that was copied for Contractor "A" was the " working draft" of Revision 9, without the latest comments from Contractor "A" incorporated into it.

Department Supenisor explained that the reason he did not give the manual to Contractor "A" at the time it was copied by Employee "Q" was because it was still incomplete. He was concerned that if Contractor "A" intended to "use it" the version would be inaccurate, and since the comments were not yet incorporated it would be useless for Contractor "A" to review it. (Interview with Department Supenisor.)

60. At 4:00 PM July 22,1997, Contractor "A", accompanied by Contractor "B", Contractor "F",

and Contractor "G", attended a meeting in a conference room. The meeting was described by attendees as a " showdown" between Department Supenisor and Contractor "B" about getting

1) the raethodology calculation done and 2) a list of everything else that Contractor "B" needed to get done in order to finish the methodology calculation so he could distribute Contractor"B" tasks to other employees. The meeting ended at 4:30 PM. During the meeting Contractor "B" committed to finishing a list of his issues / concerns about the methodology calculation by the next day. (Inteniew with Contractor "B", Department Supenisor, Contractor "A"; Contractor "F" and Contractor "G", August 14, 1997.)

61. One of Department Supenisor's major complaints about Contractor "B" was his refusal to comply with deadlines. Department Supenisor described his approach to setting deadlines as imposing an arbitrary date for projects completion that supported the schedule, and expecting employees to use their "best efforts" to meet that schedule. Contractor "B" believed that such a philosophy was deceptive at best and presented conflicting priorities that created impossible schedule expectations. Contractor"B" openly opposed the"best efforts" approach and resisted Department Supenisor's attempts to continue imposition of that approach. (Inteniews with Department Supenisor and Contractor "B".)

62. At the end of the meeting, Contractor "A" asked Department Supenisor for a copy of the manual for his review. Department Supenisor asked Contractor "A","who wanted to see it and why?" Contractor "A" told Department Supenisor that "[we] need to review the manual to insure consistency between the manual, the methodology calculation, and the SMARTBOOK calculation after all the iterations, changes, deletions, edits that had been received," or words to that effect.

l 63. According to Contractor "A", Department Supenisor told him that Department Supenisor l " appreciated" Contractor "A"'s comments and acknowledged that the program manual had not had a good technical review, except by Contractor "A". Both Contractor ' A" and Department Supenisor agree that Department Supenisor asked, and Contractor "A" agreed,

i.e., that he would distribute the manual the next morning for final review. This review would j provide and insure the technical consistency between the various calculations and that Contractor "A" could ensure his comments had been properly incorporated. (Inteniews of Contractor "A" and Department Supenisor.)

Page 12 of 38

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64. At 9:16 PM July 22, Contractor "A" sent Depanment Supervisor an e-mail confirming that l he had "provided to Contractor "F" and Contractor "G" a copy of my handwritten mark up ,

of PI-13 for use in completing the Methodology calculation, SMARTBOOK calculation, and enuing consistency between these and the Program Manual version that is soon to be issued."

The memo also confirmed Depanment Supenisor's agreement to provide the manual:

1 Department Supenisor said a copy of the latest draft Program Manual will be provided Wednesday 7-23 97 to tha MOV group for use in finishing the M ethodology calculation, and ensuring these comply with the Program Manual j that will soon be issued.

65. Before leaving, Contractor "A" also left his handwritten markup of PI-13 at Department Supenisor's desk. (Inteniew with Contractor "A"; Contractor "A"'s notes.)

66. On the morning of July 23,1997, Depanment Supenisor sent another e-mail to the entire group, this one stating:

I did not hear back from anyone that they require a review of the MOV Manual. Due to the critical path nature of the MOV Program Manual, please page me ...if you feel you need to review the manual.

This e-mail was also copied to Employee "G" (July 23,1997 e-mail.)

67. This e-mail upset Contractor "A" because he felt that Department Supervisor had made a commitment to provide the manual for a final technical review, and the e-mail implied that no one had even asked to review it. (Inteniew with Contractor "A".)

68. Shortly after receiving the e-mail from Department Supenisor, Contractor "A", still upset, called Department Supenisor to discuss his e-mail. Contractor "A" told Depanment Supenisor that he could not understand Department Supenisor's going back on his commitment to provide the manual for review. Contractor "A" again explained the concerns of the engineers about problems with the manual's technical consistency and adequacy.

Department Supenisor told Contractor "A", "We need to talk. Come to (Department Manager's] oflice." Contractor "A" th:n stated to Department Supervisor that, "If you wanted to talk with me, you can come to my desk." They repeated the requests and refusals again, and hung up. (Interviews with Contractor "A", Department Supenisor, and Department Manager.)

69. Contractor "A" does not deny that he refused to go to Department Manager's office and meet with Department Supervisor and Department Manager. His explanation is that he had been lied to by Department Supervisor, who was, in his opinion, in the middle of creating a " cover up" (either with Department Manager or because of him) regarding the opportunity for the Page 13 of 38

e s MOV engineers to do a final review for technical adequacy and consistency. lie believed that if he went to Department hfar.ager's office that Depanment hianager and Depanment Supervisor would ut t pressure on him to meet .he July 24,1997 release date, and did not want to be in that position. lie felt thi he was safe from duress in the open fomm of the oflice, surrounded by other engineers, and that whatever explanation that Department Supenisor had for his representations about the manual he could make in front of the group. Department Supervisor did not come down to the h10V group to discuss the manual. (Inteniew with Contractor "A"; Contractor "A'"s notes.)

70. At 1:56 Phi July 23, Contractor "A" e mailed Department Supenisor back summarizing the events of July 22, 1997, including repeating the discussions and agreements about the availability of the manual for fmal review:

Whereas I and the others in the room understood thet we would be able to review the manual and identify inconsistencies and errors, if any, and get them to you for resolution, you advised me this morning that you understood we only wanted it for reference purposes, to put it into use, and that we would not be doing any son of technical review which may result in commcnts. If there is no need for changes to the manual, that is the outcome I would expect.

Ilowever, since the manual has been in revision for the past several weeks, and your staff, other than myself has not reviewed the manual and since I have not reviewed the draft hiethodology calculation which is supposed to implement the manual, there is a reasonable possibility that there are unacceptable differences between the manual and either the methodology calculation draft or the ShiARTBOOK.

71. A short time later, Department Supervisor appeared in the office with numerous copies of the latest version ot'the manual to hand out for review. Depanment Supenisor apologized to the group for convr.ying the " impression" that he was trying to avoid their review. (Inteniews of Contractor "A and Depanment Supenisor.)

72. Department Supenisor stated that during this time fram,. he had a specific conversation with Contractor "A" at Contractor "A"'s desk, and according to Depanment Supenisor, Contractor "A" told Department Supervisor that he had no additional comments. Contractor "A" denies that statement, and states that he could not have had any final comments because he had not been able to review the final revision. (Inteniews with Contractor "A" and Department Supenisor.)

73. Contractor "A"'s concern was the consistency between the manual, the methodology calculation, and the ShiARTBOOK calculation, as well as ta find out what had happened to the edits he had already provided. Since Contractor "A" was leaving for vacation, he. collected all ofhis previous comments, and provided them to Contractor "B" and Contractor "F", asking them to consider his final comments when they completed their review. (Interview with Page 14 of 38 4

Contractor "A".)

74. Department Supenisor did not respond directly te Contractor "A" in any way about Contractor "A"'s refusal to meet with him July 23,1997. Contractor"A" was not criticized, counseled or reprimanded. Contractor "A" was never warned that his response to the direction to come to Department hianager's ofIlce would be grounds for termination.

(Interview with Contcactor "A" and Department Supenisor.)

75. Also, on the afternoon of July 23,1997, Depanment Supenisor met with Contractor "B" to go over his comments to the methodology calculation. According to Department Supervisor, Contractor "B" provided about 50 comments and agreed that these were minor deficiencies that did not require resolution prior to issuance of the manual. During that meeting, which got heated at times, Contractor "B" is alleged by Department Supenisor to have made the statement that the calculation had to be detailed enough that a technician or a secretary could follow it. This really bothered Department Supervisor, who thought that the statement proved that Contractor"B" was a perfectionist who would never be satisfied. Contractor "B"is also alleged to have said he might not return from his vacation. (Inteniew with Department Supervisor; Department Supervisor's notes.)

76. Axording to Contractor "B", the comments he provided to Department Supenisor on July 23, were all that he was able to pull together that day, and that he had been unable to provide them earlier because he had been trying to fmish the common methodology as well as do the ShiARTBOOK calculations. lie also explained that his comments about the level of detail necessary in the calculation were intended to explain to Department Supenisor that since the manual was not done to quality assurance standt.rds, the calculation would have to be done to those requirements. (Inteniew with Contractor "B".)

77. Department Supenisor stated to LHC that after these two incidents he, essentially, reached the end of his patience with Contractor "A" and Contractor "B". Ile decided that Contractor "A"'s conduct in refusing to meet with him was "the final straw" and that he needed to terminate Contractor "A". lie also concluded that Contractor "B" could have done his comments on the methodology calculation much earlier, and based on Contractor "B"'s statements about the calculation, his threat that he may "not return from vacation," and his general negative attitude that Contractor "B" was not worth the trouble.' Department Supervisor advised Department hianager of his decision, and Department hianager agreed that Contractor "A" and Contractor "B" should be terminated. (Inteniews with Department hianager and Department Supenisor.)

78. On or about July 22 or 23, Depanment hianager called the ABB/CE ofIice in Windsor, CT to

' Department Supenisor has recently provided ECP and LHC several other examples of Contractor "B"'s misconduct as a basis for his decision. Since none of those examples were ever shared with Contractor "B" nor included as a reason for termination the items are not listed here.

i Page 15 of 38

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discuss Contractor"B"'s performance. Contractor"D", the ABB/CE representative on the site responded to the call and met with Department Manager about Contractor "B". During that meeting Department Manager and Department Supervisor described the behavior ofContractor "B" that was unacceptable. At the end of the meeting it had been agreed that a counseling session would be scheduled to discuss these issues with Contractor "B", in order that he could improve his performance. There was no indication at that meeting by Department Manager to Contractor "D" that Contractor "B" was going to be terminated. (Inteniew with Contractor "D", August,1997.)

79. On July 22 or 23, Department Manager went to Employee"O" and sought his agreement and approval for the terminations of Contractor "A" and Contractor "B". Employee "O" recalls that Department Manager told b:m that Contractor "A" refused to do something when asked and that Contractor "B" was dismptive to the group. Employee "O" asked Department Manager if they had substantiating documents to support their decision. Department Manager told him yes. Employee "O" also did not conduct any independent review of the substantiating proof. Employee "O" approved the terminations, and told Department Manager to go to Contracts to finalize them. (Interview with Employee "O", August 21,1997.)

80. Employee "O" also recalled that he had earlier heard from two other employees, one ofwhom was Employee "C", that the department was "in an uproar." Employee "O" talked to Department Manager and Department Supervisor, who assured him that the department reorganization would address Employee "C"'s concerns about the MOV Department.

(Interview of Employee "0", August 21,1997.)

81. After Employee "O"'s approval, Department Manager went to NU Contracts Department and told Employee "S" that there were "two people that are not fitting in with what I am trying to do," and that they were "not a part of the team" he was trying to put together. Department Manager asked for guidance on what actions he needed to take to terminate the contractors.

(Inteniews with Contracting, August 19 and 29,1997.)

82. Employee "R", of NU Contract Administration Department (" Contracts"), attended the same meeting. Ile recalls that Department Manager said he had two employees that "were not working out," and that he wanted to know how to"get rid of them." (Inteniew with Employee "R", August 19 and 29,1997.)

83. Department Manager's description of the initial meeting with Contracts is that he asked contracting whether he was allowed to address performance issues with employees, and that Contracts told him he was not permitted to discuss any performance-based issues with contractors. (Inteniew with Department Manager.)

84. No one in Contracts supports Department Manager's version of the conversation with Department Manager, and all specifically state that Department Manager did not bring up the issue of counseling for performance based problems, but rather only sought advice on how to Page 16 of 38 4

o e terminate two contractors. (Interviews with Employee "S", Employee 'T', and Employee "R".)

85. Although no written documentt. tion exists of this initial contact between Department hianager d

and the Contracting office, it has been placed at either July 22 or 23'd. (Inteniews with Department Manager, Department Supenisor, Employee"R", and Employee "S", August 19, 1997.)

86. Contracts had a second meeting with Department Manager and Department Supervisor, either later the same day or early the next day. During the second meeting Employee "S" and Employee "R" explained that contractors could not simply be released by name in accordance with the July 3,1997, Kenyon clarification of contractor policies. They further explained that if contractors were to be released by name, it had to be "for cause" in order for NU to process the request. (Interviews with Employee "S" and Employee "R", August 19, 1997.)

87. On July 24,1997, Department Supenisor seat two memos, one at 12:45 PM (Contractor "B")

and another at 1:18 PM (Contractor "A"), entitled " Request for Release" that sought the release of Contractor "A" and Contractor "B". (July 24,1997 memos from Department Supenisor to Ernployee "R".) Copies of the memos were sent to Department Manager, Employee "S", and Employee "J".

88. The memo requesting the release of Contractor "A" stated:

(1) Contractor "A" has not effectively managed the setpoints group activities and available resour ces to ensure tasks will be completed in a timely manner. For example, Contractor "A" failed to recommend the use of available resources, i.e., Altran, to perform weak link / seismic analyses that were explicitly made available to the group and were necessary to meet current Unit 2 and Unit 3 outage schedules.

(2) Contractor"A" has demonstrated unprofessional communication skills. For example, Contractor "A" has refused to follow verbal direction I have personally given him. In addition, Contractor "A" has failed to communicate significant work activities he has been working on that I should have been made aware of since his dedication of time to independent activities could have potentially affected the overall groups' performance and meet outage schedules.

89. The memo requesting the release of Contractor "B" stated:

(1) Contractor "B" is unable / unwilling to effectively manage his assigned tasks and complete them by the assigned due date or within a reasonable period of time.

Page 17 of 38

9 0 (2) Contractor "B" does not demonstrate a professional attitude when working to accomplish assigned tasks. For example, Contractor"B" sets unreasonable expectation for tasks assigned to him and becomes very resistant to alternate expectations that are still acceptable and reasonable. In addition, Contractor "B" has made threats of quitting directly to me when we have been discussing the completion of assigned tasks.

90. On or about July 25, Employee "C" met with Employee "N" and Employee "J", who advised her that Department Supervisor and Department Manager were her supenisors and that they had a "right" to change her assignment, and that she "should not take on the whole MOV program on [her) shoulders." (Interview with Employee "C"; Employee "C"'s' notes.)

91. Also on July 25,1997, Employee "C" advised Little liarbor of the actions within the MOV group, including the demotions of herself and Contractor "A". LHC advised her to go to the ECP office, which she did. (It is clear that Employee "C" was unaware of the decision to terminate Contractor "A" and Contractor "B" at this point.) (Interview with Employee "C".)

92. On July 28 or 29,1997, Employee "W", the ECP Director, went to Employee "P" and Employee "N" in the morning, and Employee "P" and Employee "O" in afternoon regarding significant issues, allegations of retaliation and problems in the MOV Design Engineering Department. The ECP Director was not advised by Employee "O" that Contractor "A" and Contractor "B" were in the process of being terminated. (Inteniew with Employee "W",

August,1997.)

93. In the meantime, Employee "R" was working on drafling the release letters on the basis of

" standard language," previously presided by the NU Legal Department (" Legal") for use when contractors were released for performance based reasons. He reviewed the letter with Employee "S" and Employee "U" Employee "U" directed that Employee "R" get input from Legal.

(Interview with Employee "R", August 19,1997.)

94. On July 31,1997, Employee "R" provided the draft release letters to Employee "V" of the NU Legal Department for review. Employee "V" made minor edits in the proposed letter, and asked a clarifying question about whether the contractors would be replaced. He approved the letter. (Inteniew with Employee "R", August 19, 1997; Employee "R" . Employee "V" memos, July 30 and 31 and August 1,1997.)

95. Due to the fact that Employee "R" and Employee "S" had vacation scheduled, the review and approval process lasted over a week. (Inteniews with Employee "R" and Employee "T",

August 19,1997.)

96. When Department Manager returned to work the beginning of the following week he was surprised that Contractor "A" and Contractor "B" were still employed. He went to Contracts to find out "what was taking so long to get rid of the contractors." He was advised that Legal Page 18 of 38 l

l

o o had to review the letter. Since Employee "R" was leaving on vacation, he directed Department Manager to bring funher questions about the length of the process to Employee "T'.

(Interviews of Employee "T' and Department Manager, August 19 and 20,1997.)

97. Employee"T' undertook to complete the process. lie fmished the termination letters, obtained the signature of Employee "S", and provided the letters to his secretary on Thursday, August 7,1997. (Interview with Employee"T', August 19, 1997.)

98. On August 8,1997, ABB/CE's site representative, Contractor"D", was advised ofContractor "B"'s termination and given a copy of the termination letter. When Contractor "D" saw the reasons given for Contractor "B"'s termination he was visibly upset. He asked for documentation or back up material, and was unhappy with the wording of the letter.

Contractor "D" asked Department Manager for more details, but Deputment Manager told him that Contracts had directed him to not discuss any details. (Inteniews with Department Manager and Contractor "D", August 20 and 15,1997.)

99. Approximately mid morning, Contractor "D" advised Contractor "B" that his contract was terminated, but did not give him any reason. Contractor "D" advised Contractor "B" that he had the right to go to the NU Employee Concerns Department ifhe had any concerns about his termination or the MOV project. (Inteniew with Contractor"D" and Contractor "B", August 15 and 14,1997.)

100, Contractor "B" then packed his belongings from his desk, went to the ECP oflice during his out processing, and then len the site. (Interview with Contractor "B", August 14, 1997.)

101. The MOV Department held a " going away" luncheon for Contractor "B" during the lunch hour at Sunset Ribs, a restaurant in Niantic. Most of the MOV Design Engineering Department attended. (Interviews with Contractor "B", Employee"C", other Design Engineers, August, 1997.)

102. On the morning of August 11, 1997, Contractor "A" returned from vacation. Department Supenisor had leQ a note for him to go to see Employee "R" on the finh floor, and aner that meeting to come to see Department Supervisor. (Inteniew with Contractor "A", August, 1997.)

103. Contractor "A" went to Employee "R"'s oflice, and was provided a copy of his termination letter. Contractor "A" was not provided a copy of Department Supervisor's memo to Employee "R" at that time, and was not provided any additional details. (Contractor "A"'s notes.)

104 Contractor "A" then went back to the MOV Department and found Employee "C" at her desk, She was on the telephone, but indicated that she was aware that he had been terminated. She took Contractor "A" to the Oversight Department where he discussed technical issues with Page 19 of 38

a' Contractor "E". She later took Contractor "A" to the ECP office to file a formal complaint of retaliation and to identify other MOV issues that needed to be addressed. Because of the time spent at the ECP omee, Contractor "A" was not able to finish his out. processing that day.

(Interviews with Employee "C" and Contractor "A".)

105. On August 12,1997, during the completion ofContractor"A"'s out processing, Employee"C" brought Contractor "A" to the Little Harbor Consultants omce for an inteniew, during which both Contractor "A" and Employee "C" alleged retaliation in connection with the terminations of Contractor "A" and Contractor "B". (Inteniews with Contractor "A" and Employee "C".)

106. ECP opened investigations into the potential of retaliatory discharge on August 8,1997, and August 11,1997, respectively.

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II. The Little liarbor Retallation Investigation The principle determination to be made in a retaliation case lies in proving that the discriminatory act or acts, in this case the termination of Contractor "A" and Contractor "B" and the demotion of Employee "C", occurred because the employees engaged in protected activities.

Retaliatory motives can be established by either direct or circumstantial evidence, or by establishing that an action is inherently discriminatory. The most common cases are established through careful analysis of a variety of circumstances which give rise to a reasonable inference of discriminatory motive.

The determination of whether retaliation was a factor in this case begins with a collection and verification of relevant facts. Those facts collected and verified by L11C are set fonh above. Where there is a dispute about an event or incident, Llic has attempted to set forth those disagreements.

While not every detail of the events within the MOV Department in June and July,1997, is included, LliC has set forth the facts relevant to its determination.

LilC has approached its determination using the same analytical structure and guidelines to review the facts as would be used by the United States Department of Labor in reaching a determination under the Employee Protection Provision of the Atomic Energy Act, as amended.

42 USC 3831.

The first determination that LIIC made was to decide whether the terminations and demotion were alleged to be, or appeared to be, inherently discriminatory. That is, were the actions taken so blatantly discriminatory that no funher inquiry was necessary, such as might be the case if an employer directed that all employees who had been in contact with the NRC should be terminated. LliC concluded that the allegations c fwrongful termination ano 6 emotion were not on the basis ofinherently discriminatory conduct by NU or any ofits contractors.

Second, LiiC made a determination on whether there was direct evidence of retaliatory motives by Department Manager or Department Supervisor. While there is strong circumstantial evidence of a retaliatory motive as set forth below, LliC concluded that there is no direct evidence of retaliation.

Direct evidence includes admissions by the party engaging in the retaliatory conduct, or other forms ofindisputable proof that the adverse actions taken, i.e., terminations and demotions, were done because the employee engaged in protected activity. In this case, both Department Manager and Department Supervisor deny that there was a retaliatory motive behind the terminations of Contractor "A" and Contractor "B" and the demotion of Employee "C" Therefore, since the adver se actions were not inherently discriminatory, nor was there any direct evidence of retaliation, the facts must be analyzed to determine whether the presence of a retaliatory motive is provable by circumstantial evidence. It is important to note that proving a case of retaliation through circumstantial evidence usually always requires reaching a determination contrary to witnesses who perceived a lack of such improper motive. Ellis Fische/ State Cancer Hospital v. Marshall, 629 F.2d 563, 566 (8* Cir.1980) cert dcnicd, 450 U.S.1040 (1981).

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/ 4 According to the legal treatise on how to prove retaliation, the following general categories of facts or circumstances are used to establish a reasonable inference of discriminatory motive:

1. Employer's hostile attitude toward the matter underlying the employee's protected conduct;

2. Employer's knowledge of protected conduct;

3. The nature of the protected conduct;

4. Special conditions of employment or disparate treatment, i.e., transfers, demotions, isolation, following protected conduct leading to the discharge;

5. Previous expressions of satisfaction with work record, and/or failure to record dissatisfaction with work record;

6. Termination Procedure; 7, Timing of Discharge in connection with protected activities;

8. Threats of retaliation against other employees for similar conduct.

American Jurisprudence (2), ProofofFacts, " Proof af Retaliatory Termination, Section 7-l .

Numerous other factors have been used to establish, by circumstantial evidence, the existence of a retaliatory motive. The most common form of circumstantial evidence is the teniporal proximity between ivhen an employee engages in protected activities and when he or she is terminated or disciplined. Other relevant factors to an analysis of these circumstances are established in DOL cases under the Energy Reorganization Act, and include:

• manner in which the employee was informed of his or her transfer or termination;

• discipline, transfer, or termination shortly afler the employee engaged in protected activity;

• attitude of supenisors toward protected activity or actions of the employee;

• absence of previous complaints against the employee;

• failure of the employer to prove allegations oflow productivity or to produce documents establishing the problems;

• charges of disloyalty against an employee for engaging in protected activity; Page 22 of 38

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• employer's remarks concerning the employees protected activities;

• absence of warning before termination, demotion, or transfer.

1 In this case, L11C analyzed the facts and circumstances of the terminations of Contractor "A" and Contractor "B" and the demotion of Employee "C", on the premise that Depanment Manager and ,

Department Supenisor denied having taken the actions in retaliation. Thus, the circumstantial esidence had to be carefully analyzed, using the traditional three prong approach to that evidence, in order to reach a determination as to the question of motive. The three prong approach was established by the federal courts in analyzing discrimination cases, and is used by the DOL, in reaching its determinations.

McDormc// Douglas Corp. v. Green,411 US 792 (1973). It sets forth the following three questions, as appropriately described for this case :

1. Can Contractor"B", Contraciter"A" and Employee "C" establish aprimafacle case of retaliatory termination and/or demotion?

2. Can NU identify a legitimate, non discriminatory reason for the terminations and demotions?

3. Can NU demonstrate, by clear and convincing evidence, that the terminations of Contractor "A" and Contractor "B", and demotion of Employee "C", would have occurred but for their engagement in protected activity?

The facts are analyzed below, with careful consideration given to the explanations prosided by Department Manager and Department Supenisor both in their inteniews and through the various rebuttal documents that were provided to LHC.'

A Can Contractor"B", Contractor"A" and Employee"C" establish aprimafacle case cf retallatory termination and/or demotion?

Answer: Yes.

1. Initially, the facts must establish that the Employee Protection Provision of the Energy Reorganization Act applies to both the employee and employer. In this case the employees are both contract employees, contracted to Northeast Utilities in connection with senices provided to the Millstone nuclear plants and thus are covered under the Acts." In addition, since NU is the licensee

'LilC was not able to do a final review of the facts with Department Manager and Department Supervisor because they had left the site and area.- Attempts to locate them were unsuccessful.

" There has been some discussion of the whether NU would be protected from potential liability through a co-employment analysis of the terminations. However, given the facts leading Page 23 of 38

- . - -_ . _ . . . . _v., ,. ., . -

of the hiillstone facility, responsible for maintaining a work emironment free from retaliation it bears the responsibility to the NRC for the acts ofits agents, even if not deemed to be in the decision making role to release the contractors."

2. The facts must support that the employees engaged in legally " protected activities." In this case the protected activities fallinto all three categories of protected actions.

(a) Internal protected activities:

Contractor "A", Employee "C" and Contractor "B" engaged in internal protected activities when they pointed out problems and concerns to others," including NU managers, Unit 3 hiOV supenisors, and their co workers, about the shortcuts being taken to reach compliance with the NRC's Generic Letter 89-10 as well as the ongoing implementation activities in preparation for restart."

to the terminations, i.e., the fact that Department hianager and Department Supenisor were managing the Department as agents of NU, that the recommendation to release the contractors was by name and for cause, that NU Contracts Oflice made the final decision to release the contractors, and that the NU letter stating that the release was because they "did not meet NU expectations," it is unlikely that NU would not be found to be an employer under the Act. H///,

et.al.v.TI'A, No. 87 ERA 23/24, D & O ofRcmand by SOL (hiay 24,1989.)

" See, NRC Enforcement Action 96-136,50 298/499,llouston Lighting & Power (South Texas Nuclear Power Plant) dated September 19,1996 (holding that even if the Licensee was unaware of the retaliatory actions ofits contractors that it was responsible under 10 CFR 50.7 for the consequences of the actions taken on its site):

Therefore, to emphasize the importance of protecting individuals against discrimination and taking comprehensive action that includes establishing accountability for violations of this requirement, I have been authorized, . ..to issue the enclosed Notice of Violation and Proposed imposition of Civil Penalties (Notice)in the amount of $200,000.00.

(See, also, NRC's Policy Statement on a Safety Conscious Work Emironment, February 26,1997 Fed. Reg. V62, Number 38.)

"The technical concerns raised by Contractor "A", Contractor "B" and Employee "C" are not detailed in this report, but are the subject of an ongoing ECP investigation.

" It should be noted that those di agree.'nents founded in a debate about the economics of the approach being taken, would not - by itself- be protected activity. Thus, if the only concerns being raised were about the economics of the approach being proposed, and if Department hianager and Department Supenisor had retaliated against Contractor "A" and Contractor "B",

the Act would not have protected them. Of course, regardless of how thisjurisdictional question Page 24 of 38 1

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d o (b) External protected actisities:

Contractor "A", Employee "C" and Contractor "B" had panicipated in conversations with external sources. Contractor "A" had been in contact with the NRC's expert at the Idaho National Engineering Laboratory, and had explained his contacts to Department Manager in a June 26,1997 memo summarizing Contractor "A"'s position and recommendations regarding dynamometer testing. When Department Manager did not respond, Contractor "A" sent another memo on July 11,1997, summarizing his recommendation and explanation and copied it to other managers -

including Employee "O", the head of the site MOV Department". Contractor "B" had been a source of substantial information in the INPO audit about problems with Millstone MOVs. lie along with another contractor had voiced concerns over the methodology being adopted and the futility of the schedule.

(c) " Assist and participate" in regulatory activities:

On or about July 18,1997, Department Manager talked to Employee "I" regarding the delay in receiving his comments to the Program Manual. During that discussion was resolved, the impact of the tenninations on the employees in the department and the " chilling effect" the terminations caused would remain the same. The NRC has taken enforcement action where a licensee failed to identify and mitigate the " chilling effect" caused by managers, even in the absence oflegally protected activities by an employee.

"The dynamometer testing issue is a significant one. The issue, as understood by Contractor "A" and others, was that the reason Department Manager did not want to do the testing was his concern that if the testing identified motors that needed to be repaired prior to restart that the generic implications of finding a " bad" motor would be that all motors would have to be tested. Contractor "A", on the other hand, wanted to do the testing because as he stated in his July 11,1997 memo:

I do not believe we should with good conscience neglect the verification of motor capability, the very device that is driving the actuators, when industry experience raises a legitimate concern over MOV motor's capabilities.. ..Since MOV motors are now being removed from actuatrs in both of Units 2 and 3 as the actuators are refurbished, now is the time to take advantage of that situation and perform dynamometer testing of the motors. Each day that goes by without issuing the procedure results in fewer motor tests being performed at the opportune time.

....if the motor is degraded, the MOV may be unable to perform its safety function despite all of our good efforts in these other areas."

Page 25 of 38

. s he learned that the reason the comments had not yet been provided was because two employees had contacted Employee "1" and " threatened to go to the NRC" if the comments were not addressed. As explained in the facts, Department hianager then reviewed the comments and discovered that the comments were, in fact, from Contractor "A". Thus, Department hianager knew that it was Contractor "A" and Employee "C" who had ' threatened to go to the NRC' if the issues were not resolved.

Also, all of the activities within the hiOV group were done in accordance with achieving compliance with the NRC GL letter 89 10, which was a regulatory activity.

3. There must be adverse actions taken. In this case, the adverse actions consist of the demotion and termination" of Contractor "A", the termination of Contractor "B", and the demotion ofEmployee "C". (LHC has not investigated tis facts regarding the decision to demote Contractor "A" on July 21,1997 from SetPoint group supenisor to an individual contributor, since most of the facts are contained within the broader investigation.)

4. The facts must establish that the decision makers (Department hianager/ Department Supervisor) had knowledge of the protected activities being engaged in by the subsequently terminated, or demoted, employees. There is undisputed acknowledgment that Department hianager and Department Supenisor were aware of the complaints and concerns ofContractor"A", Contractor"B",

and Employee "C", and that those concerns were being advanced to management outside of the MOV organization.

5. Finally, there must be some evidence ofimproper motive, i.e., that the actual basis for the terminations was, at least in part, motivated by the engagement is protected activities. In the case of the LIIC initial determination, there was extensive evidence of the animus being shown to Contractor "B" snd Contractor "A" by Depanmer t Sopenisor's comments to other employees, i.e., referring to them as " snakes" and/or " troublemakers" making specific reference to their activities in taking issues outside of the group both through anecdotal testimony and e-mail traflic. In addition, there was little support to substantiate the legitimacy of the reasons proffered on the July 24,1997 release documents.

Thus all three individuals are able to establish a primafacic case of retaliation.

"There has been some objection to the phraseology that Department Supervisor / Department hianager actually " terminated" Contractor "A" and Contractor "B".

Department Manager and Department Supenisor both insist that the decision to terminate was made by NU, and that they simply " recommended" the action. In fact, Department Supenisor requested that NU " release" Contractor "A" and Contractor "B" He believed the request would likely result in their terminations, and in fact, it did. In short, their actions in requesting the release 'for cause' were the same as terminating them 'for cause.' NU would not have released Contractor "A" and Contractor "B" without the requests.

Page 26 of 38

e ..

B. Can NU identify a legitimate, non-discriminatory reason for the terminations and demotions? ,

1 Answer: Yes.

l Once a " prima facle" case of retaliation has been established, the employer must be able to articulate legitimate business reason for the action in this case the legitimate business reasons have been asserted by Department Manager and Department Supervisor as follows:

1. Contractor"A":

The omcial reasons given on the July 24,1997 requests for release are set forth above. In addition, during the interviews ofDepartment Manager and Department Supervisor these reasons were ,

further articulated. For Department Manager, there were three incidents that led to his decision that Contractor "A" had to be terminated,1) the failure to manage the setpoint group, 2) the failure to provide timely comments on the manuel and be forthright about the existence of his comments, and 3) the insubordinate action of Contractor "A"in refusing to come to his omce to discuss the status of the manual review with himself and Department Supervisor. Department Supervisor also referred to the manual issue, the setpoint management issue, at d the " insubordination" incident. However, after some discussion on the facts, Department Supervisor agreed that when he placed Contractor "A" in the alternate methodology position on July 21, 1997, he expected Contractor "A" to continue his employment. Department Supervisor stated that "but for" the refusal of Contractor "A" to come to his omce on July 22,1994, Department Supervisor would not have sought his release. Department Manager indicated he was supporting Department Supenisor in his decision, and would not have released Contractor "A" if Department Supervisor had not sought the release.

2. Contractor "B":

- The omcial reasons given on the July 24,1997 request for release are set forth above. During the interviews of Department Supenisor and Department Manager, there was some additional details added to the omcial reasons. According to the inteniew with Department Supervisor, the basis for Department Supenisor's decision to terminate Contractor "B" was made during a private July 22, 1997, meeting between Department Supervisor and Contractor"B" when Contractor "B" stated,1)"he was going on a two week vacation and might not be back," and 2)his view of the level of detail needed to complete the SMARTBOOK calculation would be the level of detail necessary "for a secretary or technician" to perform. In addition, Department Supenisor's decision was influenced by Contractor "B"'s' " failure to ever meet a deadline."

3. Employee "C":

No reason was given for Employee "C'"s demotion at the time; however, when Employee "C" complained about her demotion she was advised that Department Manager had the right to make those decisions.

Page 27 of 38 e a - -

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1 The reasons set forth above for each of the individuals could, of course, provide a legitimate basis for termination of Contractor "A" and/or Contractor "D", and the demotion of Employee "C".

C. Can NU demonstrate, by clear and convincing evidence, that the terminations of Contractor "A" and Contractor "B", and demotion of Employee "C", would have occurred but for their engagement in protected activity?

Answer: No.

The employer first must prove that the reasons articulated actually occurred; and,if so, then the employer must be able to establish by " clear and cornincing" evidence that it would have made the same decision in the absence of the protected activity. 42 USC 5851 (b)(3)(D). As articulated by a recent appellate decision:

For employers, this is a tough standard, and not by accident. Congress appears to have intended that companies in the nuclear industry face a difficult time defending themselves. 'Recent accounts ofwhistle blower harassment at both NRC licensee and

[ Department ofEnergy] nuclear facilities...suggest that whistle blower harassment and retaliation remain all too common in parts of the nuclear industry.' H. Rep No.102-474 (V3), at 79 (1992), reprintedin 1992 U.S.C.C.A.N. 1953,2282, 2297. 'These reforms," the llouse Report continues,"are intended to address those remaining pockets of resistance.' id.

Stone & it'chs/cr Encincer/nc Corit v. #crman,115 F.3rd 1568 (1l' Cir.,1997)

1. Contractor"A"'s termination:

As stated above, since Department Supenisor has already stated that the proverbial ' straw that broke the camel's back' was Contractor "A"'s July 22, 1997, refusal to come to Department Supenisor's office to discuss the Department Engineers' request to review the manual, this is the action analyzed. (It shou!d be noted that both the " insubordinate" action and the manual comments issues are intertwined, and are addressed herein together.)

Unless specified, the following facts are undisputed by Contractor "A", Department Supervisor, and/or other witnesses, or supported by documents:

As noted above, a department meeting had been held on July 21,1997. At the meeting it was announced that Contractor"A" and Employee"C" had been demoted. During the meeting Department Supervisor had stated that the final version of the manual would be issued by July 24,1997. There were no plans for the manual to be reviewed again by the department, and objections to this had been raised because some engineers felt that it had been through so many revisions, they were unsure that it had the necessary consistency among key calculations.

Page 28 of 38

_______m__.__

.. ----..-1 On the morning of July 22,1997, Department Supenisor sent an e-mail to the entire MOV Design Erwineering Group offering the manual for review, in the meantime, Contractor "A" delivered i about 50 comments by e-mail on PI 13, Revision 5, to Department Supenisor ior incorporation. He i also e-mailed copies of those comments later that day to Department Manager, Employee "J", and l Employee "1".)

l i

After lunch that same day, Contractor "A" asked the MOV engineers in the department ifthey needed to review the manual further. Four engineers indicated that they believed such a final review was necessary. Contractor "A" needed a copy of the manual for their review, and sought one from the company clerk. Employee "Q" attempted to get one, but was unable to do so. In the meantime, serioas concerns about the status of the manual were increasing among some of the Design Engineers who feared that the Program Manual would not be made available for review. According to Employee "Q" but disputed by Department Supervisor, Department Supenisor then referred to "them" as

" snakes."

That aflernoon, Contractor "A", accompanied by Contractor "B", Contractor "F", and Contractor "C", attended a meeting in a conference room. The meeting was described as a

" showdown" between Department Supenisor and Contractor "B" about getting 1) the methodology calculation done and 2) a list of everything else that Contractor "B" needed to get done in order to finish the methodology calculation so he could distribute Contractor "B"'s tasks to other employees.

The meeting ended at 4:30 PM.

Ahhough Contractor "A" had completed, to the extent possible, a review of the rest of the manual prior to receipt of final comments by others, Contractor "A" had not finished the review of Pl 13. Both Department Manager and Department Supervisor made a major point of asserting that Contractor "A" had "gone behind their backs" to provide comments to Employee "1" on the manual, and claimed to have been embarrassed at discovering Contractor "A"'s comments in the possession of Employee "1", which they claimed not to have seen. This is a specious argument. First, Contractor "A" was already working on resolving issues raised by the Units. On or about July 10*, Employee "1" reported he was being pressured to sign off on the manual by Department Supenisor Jontractor "A" also had been contacted by Employee "C",

who told him that based on her concerns she had advised the Unit 3 design manager not to sign the manual until Contractor "A" reviewed it. On Sunday, July 13, Contractor "A" sent his preliminary comments on PI 13 (through Word File) to Employee "I". The e-mail to Employee "1", and attached file, was sent to Department Supenisor. Neither Department Manager nor Department Supenisor said anything to Contractor "A" until Tuesday, July 15,1997, when Department Manager came to Contractor "A"'s office and asked him why he teviewed the manual. Contractor "A" explained the facts, as set out herein, and heard nothing further on this matter. Contractor "A" was never criticized, counseled, or reprimanded by Department Manager or Department Supenisor regarding these actions. However, on the basis of Department Manager's questions and tone of voice, as well as asking Contractor "A" "why" he reviewed the manual, this action confirmed that Department Manager did not want the manual reviewed.

Page 29 of 38 l

l l

l At the end of the meeting Contractor "A" asked Department Supervisor for a copy of the manual for his review. Department Supenisor asked Contractor "A" who wanted to see it and why.

Contractor "A" told Department Supenisor that "[We) need to review the manual to insure consistency between the manual, the methodology calculation, and the SMARTBOOK calculation after all the iterations, changes, deletions, edits that had been received." or words to that effect. Both Contractor  !

"A" and Department Supervisor agree that Department Supenisor asked, and Contractor "A" agreed,  ;

to wait until the next morning afler Department Supenisor had incorporated the final edits from i Contractor "A" so that the other engineers could finish the final review and insure the technical l consistency between the various calculations and that Contractor "A" could ensure his comments had been properly incorporated.

The next morning ofJuly 23,1997, Department Supenisor sent another e mail to the entire group, this one stating:

I did not hear back from anyone that they require a review ofthe MOV Manual. Due to the critical path nature of the MOV Program Manual, please page me ...if you feel you need to review the manual.

This e-mail upset Contractor "A" because he felt that Department Supenisor had made a commitment to provide the manual for a final technical review, and the e-mail implied that no one had even asked to review it.

Shortly afler receiving the e mail from Department Supervisor, Contractor "A" called Department Supenisor, still upset, to discuss his e mail. Contractor "A" told Department Supenisor that he could not understand Department Snpervisor's going back on his commitment to provide the manual for review. Contractor "A" again explained the concerns of the engineers about problems with the manuals' technical consistency and aiquacy. Department Supenisor told Contractor"A" that "we need to talk...come to Department Manager's office." Contractor "A" then stated to Department Supenisor that "If[he) wanted to talk with [ Contractor "A"), {he) could come to [ Contractor "A"'s) desk." They repeated the requests and refusals again, and hung up.

Contractor "A" does not deny that he refused to go to Deputment Manager's office and meet with Department Supenisor and Department Manager. His explanation is that he had been lied to by Department Supenisor, who was, in his opinion, in the middle of creating a " cover up" (either with Department Manager or because of him) regarding the opportunity for the MOV engineers to do a final review for technical adequacy and consistency. He believed that if he went to the office that Department Manager and Department Supenisor would put pressure on him to meet the 7/24/97 release date, and did not want to be in that position. He felt that he was safe from duress in the open forum of the office, surrounded by other engineers, and that whatever explanation that Department Supenisor had for his representations about the manual he could make in front of the group, Later that day Contractor"A" e-mailed Department Supenisor back summarizing the events ofJuly 22,1997, including repeating the discussions and agreements about the availability ofthe manual Page 30 of 38

.* s for fmal review; Whereas 1 and the others in the room understood that we would be able to review the manual and identify inconsistencies and errors, if any, and get them to you for resolution, you advised me this morning that you understood we only wanted it for reference purposes, to put it into use, and that we would not be doing any sort of technical review which may result in comments. If there is no need for changa to the manual, that is the outcome I would expect. However, since the manual has been in revision for the past several weeks, and your staff, other than myself has not reviewed the manual and since I have not reviewed the draft Methodology calculation which is supposed to implement the manual, there is a reasonable possibility that there are unacceptable differences between the manual and either the methodology calculation draft or the SMARTBOOK.

A short time later, Department Supervisor appeared in the office with numerous copies of the latest version of the manual to hand out for review. Department Supervisor apologized to the group for conveying the " impression" that he was trying to avoid their review.

It is now known that during that same time frame Department Supenisor advised Department Manager that he had reached the decision to terminate Contractor "A" on the basis of Contractor"A"'s alleged insubordinate activity.

It is well established that protected activity may lose protection under the statues if the conduct is indefensible or unduly disruptive. The Secretary of Labor has recognized that "In general, employees engaged in statutorily protected activities may not be disciplined for insubordination so long as the activity (claimed to be insubordinate) is lawful and the character of the conduct is not indefensible in its context...A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. The issue of whether an employee's actions are indefensible under the circumstances turns on the du,tinctive facts of the case.

Kennedy v. Mat /ack, Inc. No 88-STA-20, D &O of SOL (June 15, 1989)

Under these circumstances, it would be hard to conclude that Contractor "A"'s actions were indefensible or so disruptive as to undermine group discipline. Even though Department Supenisor denies that his motive in terminating Contractor "A" was retaliatory, the circumstantial evidence establishes that retaliation was a factor.

2. Contractor "B":

Contractor "B" was terminated the same day, and in the same way as Contractor "A". As with Contractor"A", Department Supervisor claims that his decision to terminate Contractor "B" came after Page 31 of 38

a confrontation with him in a private meeting on July 21,1997. For the most part the events that occurred during the meeting appear to be undisputed.

Contractor "B" states that during the meeting he provided Department Supenisor with a list of things that were wrong with the Program hianual and things that still needed to be included. He states that he explained to Department Supenisor that since the manual was not a QA product, the instructions in it were not written to QA requirements, and because of that the calculation had to be even more crystal clear and have a basis for QA acceptance, since the MOV program requires that it be a QA product. He agrees that he made the statement that he "might not be back from vacation" as a result of the obvious resistance to his comments, but denies that he was mde or offensive,just frustrated.

Contractor "B"'s conduct or demeanor in connection with the meeting does not appear to be markedly different than any other day or meeting. He was generally described as having an abrupt personality, which at times could be regarded as abrasive. That conduct did not change throughout the relevant time period of Contractor "B'"s employment. Contractor "B" was particularly resistant to Department Supervisor's attempts to impose schedule obligations on him without first checking with Contractor "B" to see if the commitment was realistic. Thus, it is difficult to analyze any reasons given in Department Supervisor's July 24,1997 memo requesting his release outside of the four corners of the document.

A contemporaneous indicator ofDepartment Supenisor's true motives are the representations made by Department Manager and Department Supervisor to Contractor "D" regarding Contractor "B". According to Contractor "D", he became involved when ABB/CE was contacted by Department hianager on July 21" or 22 d, and advised that Contractor "B"'s behaviors in voicing objections to certain decisions had become worse, and that Contractor "B" was going to need counseling. Thereafter a series of meetings were held, either on the telephone or in person, which resulted in an agreement among Contractor "D", Department Supervisor, and Department Manager on the afternoon ofJuly 22dto set up a meeting with Contractor"B" to discuss his" unprofessional" comments and behavior.

The meeting was not set up. Department Manager contacted Contractor"D"later that day to advise him that the meeting had been canceled because NU's contracting officials told Department Manager and Department Supervisor that they could not provide any counseling because "it would violate site procedures". Department Manager told Contractor"D" at the time that he and Department Supenisor wanted to counsel Contractor "B", but that the decision was out of their hands. Contractor "D" found all of this very odd, since he had been involved with counseling of contractors before this incident. However, Contractor "D" did not verify what Department Manager said with the NU Contracts oflice.

NU personnel in the Contracts oflice deny that anyone in the department told Department Manager that he could not counsel an employee in regards to behavior or conduct. Each officer is adamant that the only advice they gave was in response to the request by Department Manager to release the employees as soon as possible, and that they explained to Department Manager that once Page 32 of 38

he had made up his mind to release the employees they should contact Contracts.

Two weeks later, when Contractor "B" was terminated for cause, Department hianager gain told Contractor "D" that he had wanted to try and, in essence, " salvage" Contractor "B", but that NU Contracts had forbidden his having any counseling sessions with Contractor"B". Department hianager denies he said that he wanted to try and " salvage" Contractor 'B", but admits he did not attempt to do so as a result of NU Contracts' instruction. ABB/CE had decided not to advise Contractor "B" of the reasons in the July 24 release memo, and continued his employment in the Windsor office.

hioreover, Department hianager's current explanation is also belied by Department Supervisor's July 24,1997, memo requesting Contractor "B"'s release which states that Contractor "B" had, in fact, been counseled on numerous occasions.

As stated above, extremely disruptive or grossly insubordinate behavior will iose its protection.

Dimham v. Brock,794 F.2d 1037 ($* Cir.1986) However, the courts have cautioned that " mere ,

resistance to change" in response to improperly motivated conduct would not be enough to justify l discipline.

In this case, Contractor "B"'s behavior and resistance to Department Supervisor's actions may have been frustrating to Department Supervisor, and perhaps could have risen to misconduct that was so disruptive as to lose its protection. However, Contractor"B"'s mer Cy making the statement that he may not return from vacation or the comment about the degree of detail needed in the conunon methodology calculation does not rise to the level of misconduct supporting his discharge.

3. Employee "C":

As stated above Employee "C" was effectively demoted from a oversight position in the hiOV Design Engineering Department on July 21,1997. Although there was no explanation provided at the l time of Employee "C"'s demotion, Department hianager has explained that some of the reasons for moving her out of the transition leadership role was because she had not attempted to become a leader in the new hiOV organization. He specifically cites the fact that Employee "C" did not relocate her office to Building 447, did not take an active role in attending staff meetings, and using her position as an NU employee to " attempt to influence the opinion of outside contractors" that were needed to support the site htOV group.

Department hianager does not deny that he wanted to transfer Employee "C" out of the h10V group. Department hianager's explanation for the action in demoting Employee "C" is that he was told by Employee "C"'s Unit supervisors, Employee "J" and Employee "N". that he could not remove her from the h10V group unless she wanted to be removed. Employee "J" and Employee "N" allegedly also told Department hianager that Employee "C" should be assigned sufficient work to keep her busy, and that Human Resources was going to " handle" the situation about Employee "C". Finally, Department hianager claims that Employee "J" and Employee "N" told him that Employee "C" had "similar" problems in Unit 1.

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i

Both Department Manager and Department Supervisor had numerous conversations with Employee "C" about her technical and programmatic concerns. They were both aware that she had raised those concerns to Unit 3 management, and voiced an intention to pursue the issues farther if necessary. Both Department Manager and Department Supenisor evaluated Employee"C"'s conduct in raising these concerns as being " unprofessional" and not being a " team player."

Where, as here, an employer expresses an " unfavorable attitude" about employees who report violations or technical concerns, express anger toward the employee's protected activities, or express a " low regard" for persorinel who raise issues there is a strong infernce that negative persounel actions were taken in retaliation for the protected activities. Larry v. Den nEdison Co., No. 86-ERA 32, slip op. of ALJ at 7 (Oct.17,1986).

Since no other rearon has been offered for the demo inofEmployee"C" LHCconcld

, u esthat the basis for her demotion was retaliation by Department Mar. er and Department Supervisor for her allegedly " disloyal" and " unprofessional" conduct, without regard to the fact that her conduct was not only legally protected, but exactly what Employee "J" had asked her to do, i.e., watch out for the interests of Unit 3.

FINDINGS:

Contractor "A":

The stated reason given by Department Supenisor, and supported by Department Manager, to release Contractor"A" from employment with NU was Contractor"A'"s refusal to comply with Department Supenisor's instructian to come to Department [

Manager's ofTice on July 23,1997, i.e., but for that refusal Contractor "A" would not have been fired. Department Supenisor asserted that this was an insubordinate act whichjustified Contractor "A'_"s termination. While insubordinate acts can obviously provide a legitimate basis for terminations, in this case, Department Supervisor's assertion that th: allegedly insubordinate act was the motivating factor to terminate Contractor "A", is not ciedible for the following reasons:

(1) Department Manager and Department Supenisor had knowledge of Contractor "A'"s protected conduct, including being advised by Employee "I" that Employee "C" and Contractor "A" had serious technical concerns that had to be addressed or they would likely take those concerns to the NRC.

(2) Department Manager and Department Supenisor knew that the technical concerns that Contractor "A" and Employee "C" had raised had not been resolved in the version of the manual that they were proposing to issue on July 24,1997.

(3) Department Manager and Department Supenisor had never expressed dissatisfaction with Contractor "A"'s performance or technical skills to Contractor Page 34 of 38 1

- ----- _ . _ _ .- , . ~ , , - - _ _ _ - - y a _ _ _ . ,_ , , , ,_, ,, , , _ , ,

+o .>

"A" or any other person. Contractor "A" was never counseled, reprimanded, or warned about his conduct.

(4) Department Manager and Department Supervisor had voiced opposition and a l

hostile attitude toward Contractor "A"'s actions in providing comments to Employee "I" about the Program hianual, and to Contractor "A" directly for reviewing the j manual. Department hianager viewed this action as embarrassing to the h10V Department, and Contractor "A" as being disloyal for having provided the comments.

In fact, the second reason given in the request to remove Contractor "A" was confirmed by Depanment Supenisor to refer to Contractor "A" having " spent time,"

on review of the manual as a basis for dischaige.

(S) When Department Manager went to the NU Contracts office to explain that Department Supervisor wanted to terminate Contractor "A", he gave the explanation that Contractor"A""was not fitting into his program" and did not originally provide any performance based deficiencies as the reason for Contractor "A"'s termination until after he was told that he had to have perfonnance based deficiencies.

(6) Contractor "A" was demoted shortly before he was terminated, and almost inunediately after Department Manager had been told he had to " clean up his house,"

and address Contractor "A" and Employee "C"'s serious technical concems.

(7) There was no warning provided before either the demotion or the termination, no eviden;e ofpoor performance or complaints ofspecific instances ofpoor performance contem)oraneous with the events.

(8) Deoartment Manager had expressed his opinions about workers who raised issues and c ncerns. lie had already told Contractor "A" that he viewed Employee "C" as a "tr sublemaker," and advised Contractor "A" to keep a log of activities to protect ni nself.

(9) There is no evidence that Department Manager or Department Supenisor would have terminated Contractor "A" if he had not been raising the issues and concerns he had about the MOV Manual, the schedule constraints, and other technical concerns about the consistency of the MOV process.

Contractor "B":

The stated reason given by Department Supervisor, and supported by Department Manager, to release Contractor "B" from employment with NU was Contractor "B"'s statements to Department Supervisor in a meeting on July 23,1997, in which he stated that he "might not retum from vacation," and his statement that the common methodology had to be straightfonvard "enough for a secretary or technician to Page35 of 38

A .a follow it." While demonstrating a bad attitude through words and actions can obviously provide a legitimate basis fer termination; in this case, Department Supervisor's assertion that Contractor "B"'s statements were the motivating factor to terminate Contractor "B", is not credible for the following reasons:

(1) Contractor "B"'s " threat to quit" and the expression ofhis opinion about the level of detail necessary to support a calculation are not statements so outrageous as to justify termination.

(2) Department Supenisor statements that he didn't even want to terminate Contractor "B",just have his contract supenisor talk with him about his behavior, but that NU Contracts gave him no other option but termination, is not credible since no one at Contracts recalls Department Supenisor or Department hianager wanting to counsel Contractor "B", only terminate him. Aforeover, the facts establish that a meeting was set up between ABB/CE, Department Supervisor, and Department hianager to counsel Contractor "B" for his behavior, but canceled by Department hianager on the basis of advice and direction from Contracts.

(3) Department hianager's explanation that he wanted to simply counsel Contractor "B", but that the NU Contracts Department would not let him is not supported since no one at Contracts recalls Department hianager talking about counseling Contractor "B".

(4) Department hianager and Department Supenisor had knowledge of Contractor "B"'s protected conduct, i.e., raising concerns about the methodology, the ShiARTBOOK calculations, and the program manual openly within the organization to his co-workers.

(5) Department hianager and Department Supervisor knew that the technical concerns that Contractor "B" had about the hiOV Program hianual had not been resolved in the version of the manual that they were proposing to issue on July 25, 1997.

(6) Department hianager and Department Supenisor had never expressed dissatisfaction with Contractor "B"'s performance or technical skills before raising Contractor "B"'s conduct with Contractor "D" of ABB/CE. When Contractor "D" scheduled a meeting on or about July 23,1997, with Contractor "B" to discuss issues of concern about Contractor "B", Department hianager canceled the meeting, asserting that Contracts advised him not to have such a meeting. l (7) When Department hianager went to the NU Contracts office to explain that Department Supenisor wanted to terminate Contractor"B", he gave the explanation that Contractor "A" "was not fitting inte his program" and did not provide any Page 36 of 38

ei ..

l pef.>rmance based deficiencies until after he was told that he had to have performance based deficiencies.

(8) Contractor "B" was terminat ed almost immediat ely after Depanment hianager had been told he had to " clean up his house" by Employee "1".

(9) Department hianager had expressed his opinions about workers who raised issues and concerns. He had already told Contractor "A" that he siewed Employee "C" as a " troublemaker," and advised cor. tractor "A" to keep a log of activities to protect himself.

(10) There is no evidence that Department hianager or Department Supenisor would have terminated Contractor "B" if he had not been resisting the schedule pressures imposed on him by Department Supervisor and Department hianager in connection with completing the various calculations needed to complete the MOV Program hianual.

(11) A key contributing cause to the termination of Contractor "B" appears to be Department Supervisor's inability to manage Contractor "B" according to and under the "best efforts" timeline strategy that he was employing. This "best efTons" philosophy put Comractor "B" in a position of committing to complete projects in accordance with unrealistic time schedules, which Contractor "B" was not willing to do.

l Employee "C":

As an NU employee, Employee "C" was effectively "out of the reach" of Department hianager and Department Supenisor for purposes of personnel actions against her.

No reason was given for Employee "C"'s demotion at the July 21,1997, rnecting.

Ilowever, Department hianager and Department Supenisor agree that the decirion to remove Employee "C" from the responsibilities she was performing was intentional because she was not a " team player." For the reasons set forth below, LilC has concluded that the action was retaliatory:

(1) Department hianager and Department Supenisor were aware of Employee "C"'s actions in going over their heads to NU managers since virtually her first day in the depanment. Department hianager had recently been advised that Employee "C" (along with Contractor "A") would likely go to the NRC to address the serious technical concerns that they had raised.

(2) Department Manager had already referred to Employee "C" as a " troublemaker,"

with specific references to her experience in Unit I which had resulted in an ECP concern and investigation.

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(3) Department Manager had advised Contractor "A" to keep a log regarding his activities because of Employee "C"'s reputation as a " troublemaker."

(4) Department Manager had subtly thrcatened Employee"C" about her concerns and distrust, and advised her that she should "become part of the team," or he and Employee "J" would find somewhere else for her to work.

(5) Department Manager had formed the belief that Employee "C" was attempting to use her NU position to " influence the opinion of outsider contractors" against the MOV efTorts Department Manager was trying to accomplish. He viewed her efforts to raise serious technical concems as disloyal, (6) Prior to Employee "C"'s demotion or removal of responsibilities, no one had complained about Employee "C"'s performance of her present duties, or a defect in her technical skills in the performance of her previous tasks, to the contrary her supervisors in Unit 3 were very satisfied with her performance.

8 J

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