[Federal Register Volume 60, Number 182 (Wednesday, September 20, 1995)]
[Notices]
[Pages 48726-48728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23298]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-390, 50-391; License Nos. CPPR-91, CPPR-92]
Tennessee Valley Authority (Watts Bar); Issuance of Director's
Decision Under 10 CFR 2.206
Notice is hereby given that the Director, Office of Enforcement,
has issued a decision concerning the Petition filed by Mr. George M.
Gillilan (Petitioner) dated February 25, 1994 as supplemented by
letters dated June 16, June 28, July 6, 1994, and February 24 and
February 28, 1995. The Petition requested that the Nuclear Regulatory
Commission (NRC or Commission) (1) immediately impose a $25,000 per day
fine on TVA until all reprisal, intimidation, harassment and
discrimination actions involving Gillilan are settled to his
satisfaction, and (2) appoint an independent arbitration board to
review all past DOL suits and EEO complaints filed against TVA
concerning Watts Bar. Since the latter remedy is beyond the scope of
the Commission's authority, it was denied in a letter to Petitioner
dated April 7, 1994, which acknowledged receipt of the Petition. In
that letter, the Petitioner was also informed that the request for
immediate action was denied.
Based on a review of Petitioner's request and supplemental
submissions, the Licensee's response dated May 20, 1994, the report of
NRC's Office of Investigations (OI Report No. 2-94-042), the results of
investigations of the TVA Inspector General and the decisions of the
Department of Labor on Petitioner's complaints, the Director, Office of
Enforcement, has denied this Petition. The reasons for the denial are
explained in the ``Director's Decision under 10 CFR 2.206'' (DD-95-20)
which is available for public inspection in the Commission's Public
Document Room at 2120 L Street, NW, Washington, D.C. 20555.
A copy of this Decision will be filed with the Secretary for the
Commission's review in accordance with 10 CFR 2.206. As provided by
this regulation, the Decision will constitute the final action of the
Commission 25 days after the date of issuance of the Decision unless
the Commission on its own motion institutes a review of the Decision
within that time.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
Dated at Rockville, Maryland this 13th day of September 1995.
Attachment to: Issuance of Director's Decision Under 10 CFR
2.206, Tennessee Valley Authority.
I. Introduction
On February 25, 1994, George M. Gillilan (Petitioner) filed a
request for enforcement action pursuant to 10 CFR 2.206 (Petition).
The Petitioner requested that the Nuclear Regulatory Commission (NRC
or Commission): (1) Immediately impose a $25,000 per day fine on
Tennessee Valley Authority (TVA or Licensee) until all reprisal,
intimidation, harassment and discrimination actions involving
Petitioner are settled to his satisfaction, and (2) appoint an
independent arbitration board to review all past DOL suits and EEO
complaints filed against TVA concerning Watts Bar. Since the latter
remedy is beyond the scope of the Commission's authority, it was
denied in a letter to Petitioner dated April 7, 1994, which
acknowledged receipt of the Petition.1
\1\ The letter also denied Petitioner's request for immediate
action.
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Petitioner supplemented his Petition by letter dated June 16,
1994, rebutting the Licensee's May 20, 1994 letter responding to the
Petition. On June 28 and July 6, 1994, Petitioner reiterated his
allegation that the Licensee was continuing to discriminate against
him and described the Licensee's actions to deny Petitioner his
nuclear plant access security clearance. In a letter dated February
24, 1995, Petitioner stated that TVA's continued pattern of
harassment and intimidation had resulted in Petitioner's being
``blackballed'' in the nuclear industry. In a letter dated February
28, 1995, Petitioner advised the NRC that he had been terminated by
TVA.
II. Background
As the basis for his February 25, 1994 request, Petitioner
asserted that he had reported safety concerns to the Commission and
that, as a result, TVA management had subjected him to continuous
intimidation, harassment, discrimination and reprisal actions, that
his name had been placed on a blackball list that had been
circulated nationwide preventing him from obtaining suitable
employment outside of TVA, and that these actions by TVA had
affected his mental and physical health. In a letter dated February
28, 1995, Petitioner asserted that TVA's pattern of harassment and
intimidation had culminated in the termination of his employment
with TVA.
III. Discussion
Specific Allegations
Petitioner bases his requests for sanctions on his assertion
that he was a victim of unlawful discrimination pursuant to 10 CFR
50.7. Petitioner alleges a general pattern of discrimination, and
mentions several specific acts by TVA: (1) putting his name on TVA's
list of whistleblowers (Petitioner's February 24, 1995 letter), (2)
failure to select Petitioner for a position (Petitioner's June 16,
1994 letter), (3) denying him plant access by withholding his
security clearance (Petitioner's June 28 and July 6, 1994 letters),
and (4) terminating him (Petitioner's February 28, 1995 letter).
The allegation that Petitioner was subjected to discrimination
by having his name put on a list of whistleblowers2 by TVA was
investigated by the TVA Inspector General (TVA/IG) which concluded
that the creation of this list was not discriminatory. Furthermore,
the Department of Labor (DOL) investigated a complaint with respect
to the same list filed by another individual and found that creation
of the list of individuals who had filed complaints under Section
210/211 of the Energy Reorganization Act (ERA) with DOL did not
constitute discrimination
[[Page 48727]]
(Case No. 90-ERA-024, Secretary of Labor's Final Decision and Order of
Dismissal, July 3, 1991, slip op. at 4-6). The staff finds that the
inclusion of Petitioner's name on a list of ERA cases did not
constitute discrimination or violate 10 CFR 50.7.
\2\ The list was a status report of complaints filed by TVA
employees with the Department of Labor.
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Petitioner also alleges that he was blacklisted from the
industry because the list discussed above was distributed
nationwide. In Case No. 90-ERA-024 discussed above, the Secretary of
Labor said that ``the record contains no evidence that TVA
disseminated these documents to the newspaper or to other outside
sources,'' concluding that Petitioner did not establish a prima
facie case that the TVA memorandum and accompanying list of ERA
cases was used for a discriminatory purpose (id. at 4-5). Petitioner
has not provided to the NRC evidence that shows that the list was
used to ``blackball'' those on the list. Therefore, we are not able
to find that the creation and alleged distribution of the list was
discrimination against Petitioner or warrants the enforcement action
requested by Petitioner.
With respect to TVA's failure to select Petitioner for a
position for which he had applied, Petitioner's complaint on this
matter (dated October 10, 1991) was dismissed by the Secretary of
Labor as untimely filed (Case Nos. 92-ERA-046 and 50, Final Decision
and Order, April 20, 1995, slip op. at 3-5). The TVA/IG investigated
this complaint and found that Petitioner did not return phone calls
or respond to a registered letter inviting him to schedule an
interview for the position and, thus, the individual was not
selected. The TVA/IG consequently concluded that the failure to
select Petitioner was not discriminatory. Based on a review of the
TVA/IG investigation and the limited information provided by the
Petitioner, the NRC staff concludes that Petitioner has not provided
information that would show that he was discriminated against in
this instance.
With respect to withholding Petitioner's security clearance,
Petitioner filed a complaint with the DOL on September 1, 1994. On
November 4, 1994, the DOL Area Director concluded there was no
discrimination in that case and his ruling was not appealed by
Petitioner. The TVA/IG investigated this issue and determined that
Petitioner's security clearance was suspended following a
psychological evaluation relating to fitness-for-duty issues and the
TVA/IG concluded that the suspension was not discriminatory. After
reviewing the TVA/IG investigation and information provided by the
Petitioner, the staff concludes that Petitioner has not provided
information that would show that TVA's suspension of Petitioner's
security clearance was discriminatory.
With respect to Petitioner's allegation of discriminatory
termination in September 1994, on April 27, 1995 the DOL Area
Director dismissed Petitioner's complaint as untimely filed.
Petitioner appealed this finding and the appeal is pending before
the DOL Administrative Law Judge (ALJ) (Case No. 95-ERA-026). The
issue was investigated by the TVA/IG who concluded that Petitioner's
termination was due to his arrest for carrying a concealed weapon.
The NRC's Office of Investigations (OI) reviewed documentation from
the DOL and TVA/IG on this matter and concluded that there was
insufficient evidence to substantiate Petitioner's allegation that
his termination was discriminatory (OI Case No. 2-94-042, April 24,
1995). Based on a review of documentation by OI, DOL, and TVA/IG,
the NRC staff concludes that there is not sufficient evidence to
establish that TVA's termination of Petitioner's employment was
discriminatory.
General Allegations
In addition to the specific acts of discrimination alleged by
Petitioner, he also referred to a continuing pattern of
discrimination by the licensee against him. While such general
allegations are difficult to investigate, the staff decided to
review all the Department of Labor complaints filed by Petitioner to
assess the likelihood that there is some form of generalized
discriminatory treatment of Petitioner that goes beyond the specific
acts which he alleges in the Petition. This broader review was
undertaken as an attempt to evaluate Petitioner's otherwise
unsupported general claim that he was subject to a continuing
pattern of discrimination and to determine whether some action
against the licensee would be appropriate at this time.
TVA notes, in its May 20, 1994 response to the Petition, that
Mr. Gillilan has filed thirteen complaints with the Department of
Labor (DOL). NRC's records reflect that some of these were filed as
supplements to earlier complaints; only nine are distinct
complaints. Three of these complaints deal directly with the
specific acts of discrimination alleged by Petitioner, as discussed
above. In addition, Petitioner filed several complaints with DOL
dealing with allegations of discrimination not raised in his
Petition. These complaints allege a pattern of behavior purported to
demonstrate that TVA has discriminated against Petitioner. They are
addressed below.
Petitioner's complaint to DOL filed on March 2, 1989 was
dismissed by the ALJ as settled. The Secretary of Labor disapproved
that settlement because one of the conditions required that the
record be sealed, a condition that is incompatible with the
requirement to make records of discrimination complaints available
to the public. The Secretary remanded the case to the ALJ (Case No.
89-ERA-040, Order to Submit Briefs, May 13, 1994, slip op. at 1) and
a decision is pending. The DOL Area Director found no discrimination
with regard to Petitioner's complaint of November 16, 1990 involving
Petitioner's assignment to evening shift and alleged harassment and
intimidation by a supervisor. The Area Director also found in that
case that the complaint of violation of an earlier settlement
agreement was untimely filed. This decision was appealed, assigned
Case No. 91-ERA-031, and consolidated with Case No. 91-ERA-034.
Ruling in both 91-ERA-031 and 91-ERA-034, the ALJ determined that
certain of Petitioner's allegations did not involve discrimination
and that the remainder were untimely filed. In accordance with a
request by both parties to dismiss 91-ERA-034, the Secretary of
Labor dismissed it but remanded 91-ERA-031 to the ALJ for further
proceedings, including an evidentiary hearing, noting that in
remanding this case, he reached no conclusions regarding the
timeliness or the merits of the allegations.3 (Decision and
Remand Order, August 28, 1995). A decision is pending in that case.
\3\The Secretary directed that the Acting Chief ALJ first review
and decide whether to consolidate Case No. 91-ERA-031 with Case No.
89-ERA-040.
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Petitioner's combined complaints received by DOL on November 17
and 26, 1991 and January 10, 1992 (combined with that received on
October 10, 1991, Case No. 92-ERA-046) were dismissed by the
Secretary of Labor, who found that Petitioner had failed to present
an issue of material fact with respect to these complaints, and
therefore had not demonstrated discrimination.4 In Petitioner's
combined complaints of December 21 and 29, 1993, the DOL Area
Director concluded there was no discrimination and the ruling was
not appealed. Petitioner's combined complaints of June 10 and August
26, 1993 were originally found by the DOL Area Director to involve
discrimination, but after appeal to the ALJ, the hearing was
cancelled because Petitioner was deemed ``not . . . mentally capable
to withstand trial.'' (Case No. 94-ERA-005, Order Transferring the
Record, January 23, 1995, slip op. at 1). A decision is still
pending in this case, pending Petitioner's ability to resume the
case at trial. In Petitioner's complaint of November 6, 1994, the
DOL Area Director concluded that Petitioner's removal was not
motivated by his protected activities, therefore there was no
discrimination. The ruling was appealed and a decision is pending in
that case. See Case No. 95-ERA-009.
\4\Note that while the Secretary combined the four complaints
received October 10, November 17 and 26, 1991, and January 10, 1992,
he addressed the October 10 complaint separately. See Case No. 92-
ERA-046, Final Decision and Order, April 20, 1995.
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Although Petitioner's complaints before DOL are numerous, the
DOL findings thus far do not establish a pattern of continuing
discrimination against Petitioner. After reviewing the status of
Petitioner's DOL complaints, the NRC cannot conclude that
enforcement action is necessary against the licensee at this time.
In accordance with its normal practice, the NRC will monitor those
complaints that remain before DOL and consider the need for
enforcement action based on the results of the DOL proceedings.
IV. Conclusion
Based on a review of the Petition and supplemental submissions,
the Licensee's response dated May 20, 1994, the report of NRC's
Office of Investigations (OI Report No. 2-94-042), the results of
the investigations of the TVA/IG, and the decisions of the
Department of Labor on several of Petitioner's complaints, I have
concluded that Petitioner has provided insufficient information or
evidence to indicate that TVA has engaged in a pattern of
harassment, intimidation, or discrimination against Petitioner in
violation of 10 CFR 50.7, or to warrant additional NRC investigation
of general harassment and intimidation with
[[Page 48728]]
regard to Petitioner. I conclude that Petitioner's claims of
harassment, intimidation, and discrimination have not been
substantiated. Accordingly, the request for daily civil penalties is
denied.
A copy of this Decision will be filed with the Secretary of the
Commission for the Commission to review in accordance with 10 CFR
2.206(c). As provided by that regulation, the decision will
constitute final action of the Commission 25 days after issuance,
unless the Commission, on its own motion, institutes a review of the
Decision within that time.
Dated at Rockville, Maryland this 13th day of September 1995.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 95-23298 Filed 9-19-95; 8:45 am]
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