[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]



-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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]
BILLING CODE 7590-01-P