DD-89-01, Forwards Director'S Decision DD-89-01 Denying 870406 Request for Imposition of Civil Penalty as Stated & License Condition Requiring Licensee to Fully Compensate V English for Stated Expenses,Except for $20,000 Civil Penalty
| ML20246L171 | |
| Person / Time | |
|---|---|
| Site: | 07001113 |
| Issue date: | 03/13/1989 |
| From: | Thompson H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Roisman A ROISMAN, A.Z. |
| Shared Package | |
| ML20236D632 | List: |
| References | |
| CON-#189-8265 2.206, DD-89-01, NUDOCS 8903230198 | |
| Download: ML20246L171 (2) | |
Text
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MAR 131989 '89 MM 13 P4 :19 Mr. Anth Z. Roisman cu c. a Suite 600 DOCE i m .. .m 1401 New York Ave. , NW BRANv1 Washington, D.C. 20005
Dear Mr. Rotsman:
This letter responds to your April 6, 1987 petition, as amended on April 8, 1987, concerning discrimination by General Electric Company (Licensee) against Mrs. Vera English by removing her from the Chemet Lab at the GE facility in Wilmington, North Carolina.
Your petition requests (1) the imposition of a civil penalty on GE in the amount of $40,635,000 plus $37,500 per day for each day after April 6, 1987 that GE does not take corrective action, and (2) the imposition of a license .
condition on GE requiring the licensee to fully compensate Mrs. English for her economic losses in the past and future resulting from GE's alleged discrimination, for medical expenses entailed as a result of the alleged discrimination, for expenses incurred in " fighting GE", and for " physical and mental pain she has endured" as a result of GE's actions. For the reasons stated in the enclosed " Director's Decision under 10 CFR 2.206", your reouest, with the exception of the imposition of a civil penalty of $20,000, has been denied. A Notice of Violation and Proposed Imposition of Civil Penalty is also being issued today to General Electric. A copy of this Notice is enclosed.
A copy of this decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206(c) of the Commission's regulations. As provided by this regulation, the decision will constitute the final action of the Commission 25 oays after the date of 1ssuance of the decision unless the Commission, on its own motion, institutes a review of the decision within that time.
A copy of the Notice of Decision that is being filed with the Office of the Federal Register for publication is also enclosed.
Sincerely, Hyg Ld / - J.
L. Thompson Dep ty Exeuctive D r or for Nuclear Materials Safety, Safeguards, and Operations Support
Enclosures:
As Stated j cc: General Electric Compa,ny P
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- . ig. c DD-89-01 UNITED STATES OF AMERICA 89 MAR 13 P4 :19 NUCLEAR REGULATORY COMMISSION Hugh L. Thompson, Jr., Deputy Executive Director ..
for Nuclear Materials Safety, Safeguards, and Operations Sup,goj,{g.,, 4' Du.s In the Matter of )
GENERAL ELECTRIC COMPANY Docket No. 70-1113 (Wilmington, North Carolina facility) l DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 INTRODUCTION l
On April 6, 1987, Anthony Z. Roisman and Mozart G. Ratner, as counsel for Vera M. English (Petitioner), 111eo a " Petition for Enforcement Action" pursuant to 10 C.F.R. 6 2.206. The Petitioner requests that the Nuclear Regulatory Commission (NRC) act to take appropriate action against the General Electric Company (GE or Licensee) fur its celiberate retaliatory discharge of Mrs. English. The Petition seeks two separate and distinct NRC actions: (1) imposition of a civil penalty in the amount of
$40,635,000 upon GE, plus $37,500 per day for every day after April 6, 1987, that GE does not take corrective action, ard (2) imposition of a license condition upon EE requiring the Licensee to fully compensate Mrs. English for her economic losses in the past and future resulting f rom GE's alleged discrimination, for medical expenses entailed as a result of the alleged discrimination, for expenses incurreo in "fignting GE,' ano for " physical and mental pain she has endured" as a result of GE's actions.
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The Petitioner states that the April 6, 1987, Petition is neither a renewal of nor an attempt to reittigate a December 13, 1984, Petition filed by Petitioner. That Petition also sought the finding of violations and assessment of civil penalties against GE for having discriminated againstMrs.English.1/ In addition, that Petition raised certain other allegations of wrongdoing by the Licensee. Reg 4rding the December 1984 Petition, the Director, Office of Inspection and Enforcement, issued a Partial Director's Decision pursuant to 10 C.F.R. 5 2.206 which, anicng unei things, stated that action with respect to the discrimination allegations reised by the Petitioner was being deferred pending further determination by the Department of Labor (DOL) pursuant to Section 210 of the Energy Reorganization Act of 1974, es amended, (ERA), 42 U.S.C. 5851, regarding the allegations. General Electric Co. (Wilmington, North Carolina Facility), DD-86-11, 24 NRC 325, 331-32 (1986) 2/ With regard to the other issues of wrongduing, the Director noted that certain of these issues were being addressed within the Office of Investigations (01) ar.c that 4 supplement to the Decision would be issued when that effort and the DOL proceedings were complete. h.
1/ " Motion to Institute Proceeding Pursuant to 10 C.F.I<. 5 2.202 for Imposition of Civil Penalties and tu Vacate and Reverse Inspection Reports and to Schedule Hearings Thereon" filed on December 13, 1984, and supplemented by letter s dated February 28, March 12, April 11, and June 20, 1985.
2/ On September 29,;1986, the Commission declined to review this Deci-
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sion. On December EE,1906, f etitter.er filed o petition for review of the Director's Decision in the U.S. Court of Appeals for the District of Columble Circuit. This proceecing was dismissed on March 31, 1987. English v. U.S. Nuclear Regulatory Commission, (FOOTNOTE CONTINUED ON NEXT PACE)
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The present Petition is a new request for action to be taken by the NRC on the previously raiseo discrimination issues now that, in the Pet 1tioner's view, the reasori given for deferring action on the discrimination issues no longer exists.
On April 8, 1987, Petitioner submitted a correction regarding Petitioner's assessment of the costs eiid damages incurred as a result of the discharge of Mrs. English. By letter dated May 13, 1987, I, as the Director, Office of Nuclear Materid Sotety erd Safeguards (t; MSS), informed the Petitioner that her Petition had been referred to f4!4SS for action. A notice was published in the Federal Register indicat1 rig that the Petitioner's request was under consideration. 52 Fed. Reg. 18764 (May 19, 1987). On Jur,e 10, 1987, the Licensee filed a response to the Petition entitled " Response of General Electric Company to Vera English's Section 2.206 Petition for Enforcernent Action." On June 15, 1987, the Director, NHSS, met with fir. Roisman, at the latter's request, to discuss the status of Peti-tioner's request. E At that meeting and in a subsequent letter dated July 7,1987, Mr. Roisman noted his intention to file, on behalf of (F0OTNOTE CONTINUED FROM PREVIOUS PAGE No. 86-1714 (D.C. Cir., March 31,1987). Petitioner also fileo 1ive other actions in the D.C. Circuit. All of these actions were dismissed on Mar'h c 31, 1987.
3/ The meeting is documented in a letter to fli . Rotsman erd an enclosed
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memorandum to file, both from the Director, liMSS, and dated July 23, 1987. The letter and memorandum are available in the NRC Public Document Room.
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- l Petitioner, a reply to GE's Response. In a letter dated October 5, 1987, the Director, NMSS, advised Mr. Roisu.an of the Lirector's intention to' act on the Petition and the need to submit any additional input within the week if it were to be considered. On October 9, 1987, Mr.' Ratner submitted a document which he indicated was the first portion of !
Mrs. English's reply to GE's Response. On October 14, 1987, Mr. Ratner submitted a document entitled " Reply of Vera English to General Electric's 0ppositicn to Petition for Enforcement Action" aavising that the October 9,1987, partial reply coulo be disregarded. On March 21, 1988, GE filed its response to this document entitled " Response of General Electric Company to Vera English's Reply in Support of Section 2.206 Fetition."
Because the Petition seeks both escalated enforceinent and license modification, it will be cecloed by me as the Deputy Executive Director responsible for those matters. For thn tresons stated in this Decision, I have determined that , to the e:u. enc that t!.e Petitioner requests that the NRC take enforcement acuun osainst CE 1c' tisu 1:alnuting ascir st Mrs. Er.glish, t!'e Petition is granted, liowever, to the extent that the i
Petitioner requests that the NRC in. pose a civil penalty in the amount of
$40,635,000 plus $27,500 per day for each day after April 6, 1987, the )
Petition is denied. Furthermore, to the extent that the Petitioner requests that the NRC. impose a license condition upon GE requiring it to fully ccmpensate Mrs. English, the Petition is also cenied. Tnis Decisicn constitutes a final Director's Decision with respect to both the April 6
1987 Petition anu the uutters ruiseo in the Cecenber 13, 1984 Petition on which a decision was deferred.
BACKGROUND By way cf Lackground, Petitioner was employed by GE as a laboratory technician in the Chemet Laboratory. For some time prior to and continuing into 1984, she reporteo safety concerns to GE management and the NRC. On March 15, 1984, she was removed from her job in the Chemet Lab, barred from further work in controlleo areas, ano placed on indefinite temporary assignment in a warehouse at the Wilmington facility.
The ultimate reason given for her removal by GE management was her ceilttrate failure to clean up contamination. Subsequently, she was adviseo that she woulo have to bid for an open position. A time limit was set and, there apparently existing no such position, she was invoier,tarily placed on a " lack of stitable work" status and subsequently terminated on July 30, 1984 Petitioner initially f ileo her conplaint with DOL under Section 210 of the ERA on August 24, 1984. On October 2, 1984, following en investigation, the Administrator of ite Wage and Hour Division, Employment Standards Administration, DOL, concluded that GE had discriminated against Petitioner. The Administrator's decision was appealed by Lcth Petitioner and GE. A formal DOL hearing was held, and on August 1, 1985, a DOL Administrative Law Juoge (ALJ) issuec a Recommenoco Lecision trt. Crder l
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- finding that GE had discriminated against Petitioner, and ordering reinstatement and compensation of Petitioner.
The case was remanded to the ALJ on May 9, IEE6, at the request of Pet 1-tiener, to give her an opportunity to complete the presentation of her Ldse, because the ALJ had refused to permit f.et to present the testimony of several witnesses. The ALJ returned the case to the Under Secretary of Labor without any additions to the record on the n.erits on July 13, 1986. M On review, the Under Secretary of Labor issued a Final Decision and Order on January 13, 1987, which did not address the merits of Petitioner's complaint, but founc that Petitioner's complaint was untimely filed and dismissed the complaint. That dotisten was appeeleo to the United States Court of Appeals for the Fourth Circuit. N The two issues raisec by the Petitioner on appeal were: (1) whether the Unoer Seu etary erred in finding Mrs. English's complaint for u nscriminatcry discharge barred as untimely, and (2) whether I;ra. English in.c estab lidec 6 " continuing violation", in the form of retaliatory 4/ The ALJ had ordered the parties to put additional testimony in the record by way of deposition. Petitioner's counsel objected to that procedure and to lir.titations the ALJ placed on the scope of the witnesses' testimony. After failir.g to obtain clarification of the {
Under Secretary's remand order, fttitioner's counsel refused to j participate in depositions. !
5/ Petiuuntr riso filed an action in District Court for the E4 stern District of North Carolina for wrongful termination. The Court distalssed this action on February 10, 1988. English v.
General Electric Co., 683 F. Supp. 1006 (E.D.h.c. 1988). This action has been appealed. l
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harassment, thus allowing her to seek relief for a series of related acts of workplace harassment that might be time-barred it considered !
Independently. This claim was based upon her assertion that she had been subjected to a continuing course of harassment while on temporary assignment in the warehouse. On October 6, 1988, the Court issued a decision 6_/ in which it affirmed the dismissal by the Under Secretary of the Petitioner's claim for retaliatory 61scharge as untimely. However, the Court found that Petitioner's claim of workplace harassment relating to harassment suffered while on temporary assignment in the warehouse nay I constitute a continuing violation for statute of limitations purposes, and remanded that c1him for first instance consideration by the Secretary. As the court upheld the Under Secretary's decision that the complaint for retaliatory discharge was untimely, it did not address the merits of Petitioner's claim that this discharge was discriminatory. The Secretary remanded, by order dated February 13, 1989, the harassment claim to an ALJ.
Petitioner first raised the issue of discriminatico before the NRC in her Petition of December 13, 1984, as supplemented by letters dated February 28, March 12, April 11, and June 20, 1985. In his Decision regarding that Petition, 00-86-11, the Director, Office of Inspection and Enforcement, noted that he did not reach the discr1mination issues because thematterwasstillpendingbeforeD0L. The Director explained that generally, when a complaint has been filed with D0L alleging discri- j I
- 6) English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).
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l mination by an NRC licensee, the NRC defers consideration of alleged discrimination until DOL has acted. This policy avoids duplication of effort and needless expense of resources by deferring NRC actions until DOL has fully considered the issues. Further, the Director ricted that deferral of NRC consideration of any potential discrimination issues at the GE Wilmington facility was appropriate in light of the extensive inspection activities which had been conducted at the facility with acceptable results. General Electric Co., supra, 24 NRC at 331-32.
DISCUSSION In her preser.t Petition, Petitioner lists three bases for her request that i
the NRC act to in. pose the "n.axiniurn olvil per ulty upon GE allowed by law,"
and to impose as a license condition a requiteinent that GE conpensate Mrs. English for alleg d discrimination. Pet 1tioner argues first that the reason given in D0-66-11 for deterring action pending the alleged discrimination, i.e., Ut.cchey vy che sciacter before DOL, is no longer valid. Secona, Petitioner orgues that a recommended decision by a DOL ALJ finding that GE had discriminated against Mrs. English is dispositive of the matter, and GE has not paid any fine for its conduct, ncr has Mrs. English been compensated. Third, Petitioner argues that the effectiveness of the NRC's program to protect und encourage workers to report safety violations will be severely nampered by any further delay, )
in that there will be a " chilling effect" upon other workers who may wish to ruise safety concerns. In this regard, Petitioner arcues that the 1 consequence of futther delay on the part of the NRC will be to leave the ,
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I impression not only on GE and its employees but on other licensees and all workers in the nuclear industry that employees who suffer retaliation for reporting safety violations cannot rely on the NRC to redress this wrong, j i
and, as a result, safety problems will be less likely te be discovered and corrected.
In reaching a decision regarding this matter, I realize that I must do so without benefit of a final decision on tPe nerits of the case by the agency recognized as the expert in employee-employer relations. I am aware of the hundreds of pages of doct.r encary ev io-nce and many hours ut testimony that have taken place regarding this case. Making an !
independent NRC determination regarding the riie9ed ciscriniination against Mrs. English would involve an enormous expenditure of NRC ogency resources, The obvious redundancy in having two government tgencies review the same set of facts to draw a conclusion regarcing the sola. issue is unacceptable .1/
Under the Administrative Procedure Act, the initial oecision of an Administrative Law Judge has no bincir.9 ettect on either the agency or on the parties to the pros.eedir.c. See 5 U.S.C. 557 (b). However, as long as be does not abuse his discretion, a Director, in making a decision I
7/ It was this very' avoidance of duplication of effort ana needless l'
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expense of resources which prompted the Directer, Cilice of inspec-ticr. ei.o Entorsemen'., .o deier hhL cuna iur etion of any potential discriminatier. .ssues an his Det.ision regarding Mrs. English's December 13, 1984, Petition. See General Electric Co., supta, 24 NRC at 332.
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' regarding a.10 CFR 2.206 petition, is free to rely on' a variety of sources -
l of information, t. eluding documents issued by other agencies. See Northern Indiana-Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432-33 (1978). In the present case, the staff-
'has reviewed the DOL ALJ'.s Recommended Decision and Order. The decision ,
1 i 1 is well-reasoned and was based epon the ALJ's evaluation of the credibi-ilty of the witnesses who testified at the hearing, an analysis of.the atire record, arguments of the parties (both oral arid written), o applicable regulations, statutes, and case law precedent. E I therefcre acept the finoings of the DOL ALJ that GE discrimiriated against Petitioner l
by removing her from the Chenet Lab and cischargir;g her from employment j with GE and.that this discrimination was motivated by Pet 1tioner's initiation of ano participation in the NRC proceedings investigating GE's j facility, specifically, the Chemet Laboratory. U In light of this L
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The ALJ's credibility deterraination in this case is especially significant becausi: ut tne contradictory evidence in the transcript of the hearing.
9/ A pertinent issue which was raised before the ALJ and in subsequent '
filings by the Petitioner and the Licensee was whether Mrs. English lost her protection under Section 210(g) of the ERA because she deliberately caused a violation by willfully failing to clean up J contamination. Mrs. English claimed that she left the contamination in order to bring it to the ettention of the GE management. In this regard, we emphasize that it is clearly unacceptable for an employee to cause a safety problem in order to raise an issue. However, the .
J ALJ determined that Mrs. English did not deliberately cause a viola-tir'r under the circumstances of this case. ALJ Decision and Order at
- 11. we also note.that the District Court for the Eastern District of North Carolina cbnsicered the issue of Section 210(g) in a different context (i.e., regarding whether Congress intended by subsection (g) to preempt state cetions for wrongful discharge and other discrimination with respect to whistleblowers).
(F0OTNOTE CONTINUED ON NEXT PAGE)
' decision of the DOL ALJ, I have determined that a violation of 10 C.F.R. 6 70.7 has been established and that enforcement action shuuld be taken at this time. E l Proposed Imposition of a Civ_1_1 Penalty Petitioner states that "the maximum fine permitted by the statute" should be impcsed upon GE for its discrimination against Mrs. English. The sum which Petitioner requests be imposed is $40,635,000, plus $37,500 for each day after April 6,1987, that GE does not take corrective action.
In deciding the appropriate enforcement sanction to propose in this case, the guidance in the Commission's General Statement of Policy and Procedure for Enforcement Actions which was applicable et the time of the violation and which is set out in l'0 C.F.R. Part 2, Appendix C, 49 Fed. Rel.,8583 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE 1 English v. General Electric Co., supra, 683 F. Supp. at 1013-14.
However, the court mode no finding specifically with regard to whether Mrs. English had lost her protection. For tbt t eaans stated above, the NRC declines to make an independent determination on this issue.
10/ Petitioner alleges that Mrs. English was discharged because of her repeated reporting of GE's failures to cotply with NRC safety requirements and that the validity of a 1. umber of complaints was confirmed by GE's internal inspection and the NRC's inspection. The ALJ, in determin'ing that GE discriminated against Mrs. English, noted that it was irrelevant whether her complaints had merit, and did not make a conclusive finding on this issue. ALJ Decision and Order at 8-9. In adopting the ALJ's Decision, I aoopt only his finding that GE discriminated against Mrs. English, and do not reach the issue of whether her complaints had merit.
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(March 8,1984)(hereinafterreferredtoasEnforcementPolicy)hasbeen considered by the staff. In this case, the decisions impacting Mrs. English were macc by persons above first line supervision, but the NRC has no information suggesting involvenient by senior corporate management. Therefore, the statt has ceternined this vio16 tion to be a Severity Level II. The base civil monetary penalty for a Severity Level II violation involving a facility such as the Licensee's, at the time the discrimination occurrec, is $20,000. Tne esc 61stion and mitigation factors in the Enforcement Policy were considered. As part of this ,
assessment process, the Petitioner's views on the amount of the penalty were considered. Based on the staff's review, no aojustrent has been deemed appropriate.
l The Petitioner's logic at arriving at the sum which she requests be imposed, and the staff's assessment of the Petitioner's arguments, are set !
1erth below:
- 1) Tre Petitioner claims that from March 15 until August 24, 1984, ;
when Mrs. English filed her complaint with D0L, GE was guilty cf 6t least a Severity Level 11 violation, because its plant management above first line supervision was aware of the discrimination. However, from August 24, 1984, GE's senior corporate maiiageraer,t was aware of the violation, which constitutes a Severity Level I violation. The base civil penalty for these violations is $20,000 per violation from March 15 to August 24, and
$25,000 per violation from August 24 to the date of the Petition.,
Moreover, since GE was aware of the existence of the violation and failed
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I to initiate corrective. action, each day that the cundition has been
c.llowsc to' continue may be considered as a separate violation, and as such is subject to an additional civil penalty. Thus, GE's base penalty is '
$3,240,000 for the Severity Level II violaticn and $23,850,000 for the l
Severity Level I viciation, niaking a total base penalty of $27,090,000.
The Petitioner argues, futhermore, that Section 210 violatient, as opposed 1 i
to other violations, warrant the most severe classification for enforcement action.
1 The Enforcement Policy classifies different types of violations by their relative severity, ano acscr1bt the circumstances in which formal sanctions, incluaing orcers, csv11 penalties, and notices of violation, are appropriate. The Enforcement Policy also provides examples of types ut' violatioris and the recommended severity levcis for these examples.
Unoer tne infcreenient Policy, Severity Level I ano 11 violations are of very h1gidficact regulatory concern. According to the [nforcet.ent Policy in eff ect at the time of the violation, er u t it.. Ls ; ici,c tecnustr.o.t dbOve firbt-line supervision in violation of Section 210 aga1rist un employee is classified at a Severity Level II. In the ptesent instance, the NRC has determined that the violation shoulo be classified at a Severity Level II violation because the discriminate involved action by management above first-line supervision. The violation has not been categorized at Severity Level I because the action taken to remove Mrs.
English was apparently taken without the knowledge of senior corg. orate I management. Furthermore, taQ civ i a penchies have no'. No pii.pused.
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Both the Under Secretary of Labor ard Court of Appeals rejected the theory l
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14 _ 1 that Mrs. English's termination represented a continuing violaticn.- Based upon this fact, the NRC has concluded that the violation was not a continuing violation. Accordingly, a daily civil penalty may not be assessed for a violation that is not considered to be a continuing violation. ,
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- 2) The Petitioner claims that the factors identified in the Enforcement Policy to be considered in adjusting a civil penalty merit escalation of the civil penalty in this case. Specifically, the Petitioner alleges that GE never reported the Section 210 violation to the NRC, has taken no corrective-action, has had prior poor performance in that Mrs. English felt pressure to "go along to get along" for several years, had prior notice of similar events in that licensees have been notifice by the NRC of tne impurtance cf compliance with Section 210, and
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i had multiple occurrences of the violation in that each cay that passes without corrective action reinforces the adverse tapact on other workers.
These factors, according to Petitioner,1;orront at least a 50-percent increase in the civil penalty.
The NRC finds these arguments to be w1 nout merit. With regdro to the issue of GE's failure to report the violation, tN ff,C cues not require reports of discrimination. Nevertheless, the NRC was owdre of the potential violation in this case from the time that. Mrs. English filed a coriplaint witn DOL on August 24, 1984. With regard to the Petitioner's argument that GE failed to take corrective action, the NRC's primary concern in this area is ensuring that the 411egec discrimination does not
4 have a chilling effect upon other employees, and that licensee actions do not thwart etployees' reporting of safety concerns. As will be discussed below, an inspection was conducted March 28 through 30, 1988, by NRC RegionalandHeadquarterspersonnel(InspectionReportNo. 70-1113/88-05). ,
1 It is the staff's view, based on this inspection, that the Licensee's program for receiving, evaluating r trocessing employee concerns is multi-tiered and provides various avenues to employees for raising concerns, and that there has been no chilling effect. Therefore, it dppears thdt thf licensee has taken adequdte corrective action. Finally, Fetitioner's arguments that the penalty be escalated due to GE's prior poor performance, prior notice of similar Events, and multiple occurrences ut the violation misconstrue these factors under the Enforcement Policy.
The section in the Enforcement Policy that provides for escclation 1or rr .cr poor performance refers to the Licensee's enforcement history in the area of concern. The evidence documented is; inspection reports anc the recoro couipiled by DOL oc not support the contention that the Licensee hua a history of prior discrimination violations. " Prior notice" under the Enforcement Policy refers to spec 1 Tic notice of particular types of events or potential conditions ettecting licensed operations. The mere notice lhdt the hRC considers Sect 1on 210 to be important coes not constitute such airect and specific notice to GE that such a violation haa occurred or might occur at its facility. " Multiple occurrences" refers to multiple examples of a particular violation. The Petitioner's argument that each day constitutes a multiple occurrence is simply another request that the
NRC impose a separate civil penalty for ea h day which the violation continued, which for the reasons explained above, the NRC hos ceclined to do.
In sum, a civil penalty in the amount proposed by Petitioner 1s- vastly in excess of any amount conttoiplated by the Enforcement Po ;y for such a violation. Rather, I have determined that a Notice of Violation and Proposed Imposition of Civil Penalty (NOV) in the amount of $20,000 for a Severity Level II violation should be issued to GE for its discrimination against Mrs. English. An NOV is being issued toaay concurrently with this Decision. In taking this enforcement action, however, I note that the U.S. Court of Appeals for the Fourth Circuit has remanded to the Secretary of Labor the Petitioner's claim that she had suffered a contiruing course of harassment while she was en " temporary assignment" status following her removal troni the Cnemet Lab. Following completion of the DOL proceeotngs, the NRL staft will dets.mine whether further enfort(ment action is appropriate With regard to this matter.
1 In this connection, I note that Petitioner argues that tallure to impose a substantial penalty will have a chilling effect on the reporting of safety concerns by workers at the GE Wilmington f acility. I find that such is not the case. hRC inspection activities ut the CE Lilmington facility continue to be ccr.cogtee wito acceptLLle resuits regaroing discrimination issues. The Regional Administrator, Region II, has reviewed and found dCceptable the actions taken by GE to miniraize any potential chilling
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effects on current employees. N I Employees at GE Wilmington cont 1 hue to come forward to the NRC with perceived safety concerns. NI In addition, an NRC inspection (Report No. 70-1113/88-05) was conducted March 28-30, 1988 and did not find evidence of a chilling effect and fcand that employees feel comfortable reporting safety concerns through the variety j of methods available at the GE-Wilmington facility. 1
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1mposition of a License Condition i
The second type of enforcement action that Petitioner requests is that the !
NRC impose a license condition upon GE requiring the Licensee to fully compensate Mrs. English for her losses. The Petitioner argues that the NRC has a " duty to act" since the Department of Labor has acted and has failed to provide any reinedy to Mrs. English.
n In Section 210 of the Energy Reorganization Act, Congress has explicitly given to DOL the authority and responsibility to provide the traditional, 1
g/ GE has implemented a brooo-based program geared to give employees free access for airing all concerns.
12/ Two other individuals employed at the GE-Wilminoton facility, John C.
Lewis and Joy Malpass, filtc complaints witn DOL that they had been subjected to discrimination by GE. In a letter dated August 30, 1985 to Mozart G. Ratner, the 00L Area Director in Roleigh, North Carolina stated that en investigation found that GE had not discriminated against Mr. Lewis or Ms. Malpass. The Area Director's cecision was appealed to an ALJ, who issued a decision on January 14, 1966, 85-ERA-38 and 39, recommending dismissal with prejudice. The ALJ's decision is currently pending before the Secretary of Ldbor.
1 lab'or-related remedies such as compensation for inoivioual losses as l requested by Mrs. English, while reserving to the NRC its authority unoer the Atomic Energy Act to take enforcement action against its licensees for violations of NRC requirements. This statutory system has been implemented through a Memorandum of Understanding between the two agencies. See 47 Fed. Reg. 54585 (December 3, 1982). Thus, the NRC does .
1 not.have the authority to order individual compensation as requested by Mrs. English, E and consequently, this request by the Petitioner is denied.
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Additional Issues of Wrongdoing by GE Alleged by Petitioner in her December 13, 1984, Petition j l
As indicated above, the' Director of the Office of Inspection and Enforce- I ment deferred consideration of certain other issues of alleged wrongdoing Q by the. Licensee pending completion of review of these matters by 01.
General Electric, supra, 24 NRC at 332. 01 has now completed its review of these allegations. NRC did not substantiate any willful, celiberate violations as alleged. Consequently, the Petitioner's request for action a based on these allegations is hereby denied.
I 13/ Even if the NRC 'did have such authority, the ecployee's failure to file a timely complaint with DOL is no reeson to depart f rom the statutcry system. Indeed, for the NRC to provide an individual with a 16bor-related remedy, such as compensation when the employee ialls to file a timely DOL complaint, would largely render meaningless the .
4 statutory time period for filing such coinplain.s with 00L.
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- 19 CONCLUSION For the reasons given above, the Petitioner's request that enforcement action be taken against GE is hereby granted. However, Petitioner's requests that the NRC impose a civil penalty in the amount of $40,635,000 plus $37,500 per day for each day after April 6, 1987 and that the NRC-impose a license condition upon GE requiring the Licensee to compensate Mrs. Engilsh for her expenses ano losss:s are denied. Furthermore, Petitioner's request as set forth in her December 13, 1984 Petition that tne 14RC take enforceront acticn against GE based upon certain other dileged instances of wrongdoing is also defeieo. As provideo in 10 C.F.R. 9 2.206 (c), a copy of this Decision will be filed with the Secrettiy for ?
the Coor.ission's review.
/ /d Hg L. Thomps J.
Et ty Exet.utive D1 ect for Nuclear Materials afety,
' dTe9Lrstb J an'd Operiltions Support Dated at Rockville, Lary'lonc this a/4 day of & #4 , 1989 l
-)
- ~ [pu%*o UNITED STATES
~g 8" n NUCLEAR REGULATORY COMMISSION DONEiEE i
( $ WASHINGTON, D. C. 20555 U ~& v
( ***** ,/
'89 MAR 13 P4 :15 i
g33g Docket No. 70-1113
("[~,d.-
g-License No. SNM-1097 I
EA 88-302 General Electric Company ATTN: Mr. Eugene A. Lees, General Manager .
l Nuclear Fuel and Component Manufacturing Department ,
l Post Office Box 780 Wilmington, North Carolina 28402 Gentlemen: 'I I
SU8 JECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY Vera M. English, a former employee at General Electric Company's Wilmington !
facility, filed a complaint with the Department of Labor on August 24, 1984, and an amended complaint on August 27, 1984, alleging discriminatory discharge under Section 210 of the Energy Reorganization Act of 1974 (ERA). Following an investigation of her allegations, the Administrator of the Wage and Hour Division of the Department of Labor concluded that GE had discriminated against Ms. English in violation of the ERA. The case was referred to an Administrative Law Judge (ALJ) when both Ms. English and GE appealed the Administrator's decision.
Following a hearing, the ALJ issued a Decision and Order on August 1, 1985, (Case 85-ERA-002) finding, among other things, that GE discriminated against Ms. English for engaging in protected activities by dismissing her from the Chemet Lab. Subsequent reviews and decisions by the Secretary of Labor and the U.S. Court of Appeals have addressea questions of timeliness of filing the complaint with DOL and of whether or not a continuing violation of the ERA has been established, but did not address the ALJ finding that discrimination occurred.
Although the Court of Appeals remanded the case to the Secretary of Labor to con;ider Ms. English's claim of discrimination by retaliatory harassment while she was in the warehouse, there will now not be a final decision from the Secretary of Labor on the merits of the ALJ's decision concerning Ms. English's dismissal from the Chemet Lab. Therefore, the issue is now appropriate for NRC to consider. An Enforcement Conference is not being held in this matter in light of the opportunities General Electric has had to respond to a 1987 l Petition submitted on behalf of Vera English pursuant to 10 CFF _.206 and the l information that General Electric has provided to the Department of Labor.
li l After reviewing the ALJ decision, the NRC staff has determined that a violation (
i of the Commission's regulations in 10 CFR 70.7 occurred in that Ms. English was ;
l removed from the Chemet Lab as a result of her initiation of and participation !
l in NRC proceedings under the Atomic Energy Act regarding Chemet Lab safety ;
I concerns. Beginning in 1982 and continuing into 1984, Ms. English reported i 1
1
)
General Electric Company safety concerns to GE management and the NRC. On a number of occasions she raised with her management concerns relating to contamination that she was finding in the Chemet Lab. She reported that this contamination was being left by the workers on previous shifts and that she was having to clean it up for them. On March 16, 1984, Ms. English did not clean up contamination in the lab but instead reported it to her supervisor. As a result of raising concerns with her management and the NRC, Ms. English was removed from her job in the Chemet Lab and barred f rom further work in controlled areas and subsequently terminated on July 30, 1984. The licensee failed to investigate why other employees had not cleaned up the contamination and no other employees were disciplined for the failure to clean up spills reported by Ms. English.
Acts of discrimination against an employee who raises safety concerns or who communicates with the NRC will not be tolerated. To emphasize this, I am issuing the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the amount of Twenty Thousand Dollars ($20,000) for the violation described in the enclosed Notice. In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions," 10 CFR Part 2, Appendix C, (1984), which was the Policy in effect at the time of the violation (Enforcement Policy), the violation has been categorized as a Severity Level II violation.
A civil penalty of $20,000, the base civil penalty for a Severity Level II violation at the time the discrimination occurred, is being proposed. The violation is categorized at a Severity Level II because plant management was involved in the discrimination decision. The escalation and mitigation factors in the Enforcement Policy were considered and no adjustment has been deemed appropriate. This enforcement action does not consider whether Ms. English was subject to discrimination while working in a warehouse following her removal from the Chemet Lab. The DOL still has that issue before it. The staff will consider that matter following D0L's decision.
You are required to re Qond to this letter and the enclosed Notice and should follow the instructions specified in the encloseo Notice when rreparing your response. In your response, you shoujd oocument the specific actions taken and any additional actions you plan to prevent recurrence. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.
In addition, a Director's Decision is being issued today concerning the 1987 Petition submitted on behalf of Vera English. A copy is enclosed.
In accordance with Section 2.790 of the NRC's " Rules of Practice," Part 2, Title 10, Code of Federal Regulations, a copy of this letter and its enclosures will be placed in the NRC Public Document Room.
l l
General Electric Con.patiy The responses directed by this letter and the enclosed liotice are not subject to the clearance procedures of the OTTice of I'.ariagement and Budget as required by the Paperwork Reduction Act of 1980, FL 96-5611.
Sincerely, jp Hu h L. Thompson / Jr.
De y Executive Dir. r for Nuclear Materials Safety, Safeguards, and Operations Support 9
Enclosure:
- 1. Notice of Violation and Proposed Imposition of Civil Penalty
- 2. Director's Decision }
l General Electric Company !
cc w/ encl: -
T. Preston Winslow, Manager l Licensing and Nuclear ,
Materials Management j State of florth Carolina ;
General E.lectric Compar.) l Anthony Z. Roismar- i Suite 600 1401 New York Ave., NW Washington, D.C. 20005 l
l l
.[
NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY i
General Electric Company Docket No. 70-1113 Wilmington, North Carolina License No. SNM-1097 EA 88-302 Based on a Decision and Order issued by an Administrative Law Judge of the Department of Labor (DOL) dated August 1, 1985 (DOL case 85-ERA-002), the NRC has determined that a violation of its regulations has occurred. In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions,"
10 CFR Part 2, Appendix C (1984), which was the Enforcement Policy in effect at the time of the violation, the Nucleer Regulatory Commission proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended ("Act"), 42 U.S.C. 2282, PL 96-295, and 10 CFR 2.205. The particular violation and the associated civil penalty are set forth below:
10 CFR 70.7 prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination I
includes discharge and other actions that relate to the compensation, terms, conditions, and privileges of employment. Tha activities protected include but are not limited to providing the NRC or the employee's management information about possible violations of NRC requirements and requests to the NRC to take action against an employer for enforcement of NRC requirements.
Contrary to the above, Vera M. English, a General Electric employee, was discriminated against for engaging in protected activities in reporting safety problems to her management and requesting assistance from the NRC.
Beginning in 1982 and continuing into 1984, Ms. English reported safety concerns to GE management and the NRC. On a number of occasions she raised with her management concerns relating to contamination in the Chemet Lab.
On March 16, 1984, Ms. English did not clean up contamination and instead reported it to her supervisor. As a result of raising the concerns with her management and the NRC, Ms. English was removed from her job in the Chemet Lab and barred from further work in controlled creas and subsequently terminatea on July 30, 1984.
This is a Severity Level II violation (Supplement VII).
Civil Penalty - $20,000 Pursuant to the provisions of 10 CFR 2.201, General Electric Company is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Consnission, within 30 days of the date of this Notice. This reply should be clearly marked as a " Reply to a Notice of Violation" and should include: (1) admission or denial of the violation, (2) the reasons for the violation if admitted, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps which will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an order may be issued to show cause why the license should not be modified, suspended, or revoked or why such other action as may
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5-l
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Notice of Violation be proper should not be taken. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.
l Within the same time as provided for the response required above under 10 CFR 2.201, the licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Comission, with a check, draft, or money crder payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or may protest imposition of the civil penalty in whole or in part by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an " Answer to a Notice of Violation" l and may: (1) deny the violation listed in this Notice in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or i
(4) show other reasons why the penalty should not be imposed. In addition to l protesting the civil penalty, such answer may request remission or mitigation of the penalty.
In requesting mitigation of tae pror,0ced penalty, the five factors addressed in Section V.B of 10 CFR Part 2, Appendix C, should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201 but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the licensee is directed to the other provisions of 10 CFR 2.205 regarding the procedure for imposing a civil penalty.
Upon failure to pay the penalty due, which has been subsequently determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the .
Act, 42 U.S.C. 2262.
The responses to the Director, Office of Enforcement, noted above (Reply to a Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Director, Office of Enforcement, U.S. Nuclear Regulatory Comission, ATTN: Document Control Desk, Washington, DC 20555, with a copy to the Regional Administrator, Region II.
FOR THE NUCLEAR REGULATORY COMMISSION Ht( L. Thomp u.
Deputy Executive rector for Nuclear Materials Safety, Safeguards, and Operations Support Dated at Rockville, Maryland this fy/h day of March 1989 -
l
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^ BACKGROUND INFORf1AT10N-TO-
. DECISION DD-89-01 ON VERA Ef.'GLISH 2.206 PETITION 1 l April-6, 1987. Petition June 10, 1987 Reply by GE to Decision October-14, 1987 Petitioner's Reply to GE March 21, 1966: GE's Reply ;to Petitioner's Reply August 1,.1985 00L - ALJ Decision June 13, 1987 00L , Final Decision and Order October 6.-1988 Court of Appeals Decision English v Whitfield, 858 F.2d 957' (4tn Cir.1988)
_ _ . . _ _ _ . _ _ _ _ _ _ . - _ _ _ . _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ ___J