EA-96-137 - Raytheon Engineers and Constructors, Inc.

 September 19, 1996  
EA 96-137
 
David R. Hyster
 Vice President, Nuclear Services
 Raytheon Engineers and Constructors, Inc.
 Post Office Box 8223
 30 South 17th Street
 Philadelphia, Pennsylvania 19101-8223
 
SUBJECT: NOTICE OF VIOLATION – (DOL CASE NO. 95-ERA-OO4)
 
Dear Mr. Hyster: 
 
This refers to the matters discussed at the predecisional enforcement conference conducted on July 19, 1996, in the NRC's Arlington, Texas office. As discussed in the NRC's June 19, 1996 letter to Raytheon, the conference was conducted to discuss two apparent violations of NRC requirements barring discrimination against employees who engage in protected activities, i.e., 10 CFR 50.7. Each apparent violation involved Houston Lighting & Power Company (HL&P) contractors — Ebasco Services, Inc. (Ebasco) or Raytheon Engineers and Constructors, Inc. (Raytheon) — discriminating against employees at HL&P's South Texas Project Electric Generating Station (STP). A letter documenting the conference, including the outline from HL&P and Raytheon's conference presentation, was sent to HL&P and placed in the NRC's Public Document Room (PDR) on July 31, 1996. The transcript of the conference also has been placed in the PDR.
 
Both apparent violations were based on adjudicatory determinations of the U.S. Department of Labor (DOL). As indicated in our June 19 letter, the NRC normally relies on such determinations in deciding whether violations of NRC requirements occurred. Thus, based on the decisions by DOL in these cases, and in the absence of compelling evidence to the contrary, the NRC has determined that violations of 10 CFR 50.7 occurred. As a result, the NRC is issuing to HL&P a Notice of Violation and Proposed Imposition of Civil Penalties (Notice) in the amount of $200,000. That Notice is being distributed to the same distribution list, so you will receive a copy.
 
With regard to the action against Raytheon, the NRC recognizes that Raytheon was a respondent in only one of the two DOL cases discussed at the conference, that involving Earl V. Keene. Nonetheless, it was appropriate for Raytheon to address both issues at the conference because Raytheon purchased the contracts previously held by Ebasco, the respondent in the case involving Mr. Thomas H. Smith, and became the employer of the individuals who were involved in the issues involving Mr. Smith. In that respect, Raytheon assumed a responsibility for corrective actions even in the Smith case. Notwithstanding that responsibility, the NRC has determined not to issue a citation to Raytheon for the violation involving Mr. Smith. Thus, the only violation described in the enclosed Notice of Violation is that associated with Mr. Keene.
 
The violation (EA 96-137) is based on a DOL proceeding (95-ERA-004) in which the presiding ALJ, in a Recommended Decision and Order issued September 29, 1995, found that Mr. Keene was subjected to discriminatory treatment in 1994 after he raised concerns about signing off for electrical maintenance work he did not perform. The discriminatory treatment in Mr. Keene's case consisted of his inclusion in a March 24, 1994 reduction in force, his receiving a lower performance appraisal rating, and his having been subjected to fitness-for-duty testing on May 24, 1994 when he returned to the STP facility with another individual who was completing documentation related to pending employment. At the time of the discriminatory treatment, Mr. Keene was an employee of Raytheon. Raytheon personnel at the conference noted their disagreement with the ALJ's findings and indicated a brief has been filed with the SOL describing their bases for their disagreement. The DOL's Administrative Review Board, which has been authorized to decide these cases for the Secretary of Labor, has not issued a final decision in this case.
 
In addition to the potential for violations of this type to have an effect on safety, this violation is significant from a regulatory perspective as well. In the case involving Mr. Keene, it is significant that the discriminatory treatment of Mr. Keene occurred in 1994, after HL&P had initiated efforts to address the environment at STP for raising concerns, including actions that were specifically addressed to contractors and their supervisors. Thus, this violation has been classified at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. Despite this violation having occurred in 1994, it is important because, absent prompt and decisive corrective action, such violations can have a chilling effect on the willingness of other employees to raise concerns to their employer or to the NRC. 
 
The NRC acknowledges the actions taken by Raytheon to address the environment for raising concerns at STP. These corrective actions were summarized in the documentation of HL&P and Raytheon's conference presentation which, as indicated above, has been placed in the NRC's Public Document Room. In brief, HL&P and Raytheon described numerous actions taken to improve the STP employee concerns program and to assure that all STP employees are encouraged to raise concerns without fear of retaliation. However, despite HL&P and Raytheon's response to these specific instances of discrimination, as of the date of the conference no corrective actions were described that would foster a sense of individual accountability for this objectionable behavior. For example, when asked at the conference whether the supervisors who were involved in these matters were counseled, the answer from Raytheon was that there had been no action to conduct individual counseling. While it is not the NRC's role to ??specify what action would have been appropriate, clearly some action should have been taken to assure that the individuals involved in these matters understand the protections afforded employees by law, the significance of violating such protections, and the possible consequences of doing so. Although the NRC understands that following the conference, steps were taken to ensure that the Raytheon supervisors involved in the discriminatory acts had been counseled, this fundamental corrective action should have been taken much earlier. The delay in counseling the supervisors gains additional regulatory significance because the delay may have created, or perpetuated, the perception among other employees that you were not serious about preventing these types of violations from occurring and may have detracted from your otherwise comprehensive actions to address these matters. This apparent lack of accountability was a factor in assessing the civil penalties against HL&P.
 
Therefore, to emphasize the importance of protecting individuals against discrimination and taking comprehensive corrective action that includes establishing accountability for violations of 10 CFR 50.7, I have been authorized to issue the enclosed Notice of Violation to Raytheon for the Severity Level III violation described above.
 
You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document 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 accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.
           Sincerely, 

            /s/
          L. J. Callan
          Regional Administrator
 
Docket Nos. 50-498; 50-499
 License Nos. NPF-76; NPF-80
 
Enclosure: Notice of Violation to Raytheon
 
cc w/Enclosure:
 Lawrence E. Martin, General Manager 
 Nuclear Assurance & Licensing
 Houston Lighting & Power Company
 P.O. Box 289
 Wadsworth, Texas 77483
 
Mr. J. C. Lanier/Mr. M. B. Lee
 City of Austin
 Electric Utility Department
 721 Barton Springs Road
 Austin, Texas 78704
 
Mr. K. J. Fiedler/Mr. M. T. Hardt
 City Public Service Board
 P.O. Box 1771
 San Antonio, Texas 78296
 
Jack R. Newman, Esq.
 Morgan, Lewis & Bockius
 1800 M. Street, N.W.
 Washington, D.C. 20036-5869
 
Mr. G. E. Vaughn/Mr. C. A. Johnson
 Central Power & Light Company
 P.O. Box 289
 Mail Code: N5012
 Wadsworth, Texas 77483
 
INPO
 Records Center
 700 Galleria Parkway
 Atlanta, Georgia 30339-5957
 
Mr. Joseph M. Hendrie
 50 Bellport Lane
 Bellport, New York 11713
 
Bureau of Radiation Control
 State of Texas
 1100 West 49th Street
 Austin, Texas 78756
 
John L. Howard, Director
 Environmental Policy
 Office of the Governor
 P.O. Box 12428
 Austin, Texas 78711
 
Judge, Matagorda County
 Matagorda County Courthouse
 1700 Seventh Street
 Bay City, Texas 77414
 
Licensing Representative
 Houston Lighting & Power Company
 Suite 610
 Three Metro Center
 Bethesda, Maryland 20814
 
Rufus S. Scott, Associate General Counsel
 Houston Lighting & Power Company
 P.O. Box 61867
 Houston, Texas 77208
 
Joseph R. Egan, Esq.
 Egan & Associates, P.C.
 2300 N Street, N.W.
 Washington, D.C. 20037
 
Mr. J. W. Beck
 Little Harbor Consultants, Inc
 44 Nichols Road
 Cohasset, MA 02025-1166
 
James Remeika
 Assistant Human Resources Counsel
 Raytheon Company
 141 Spring Street
 Lexington, Massachusetts 02173-7899
 
Thomas H. Smith
 1804 Lloyd
 Bay City, Texas 77414
 
Earl V. Keene
 909 Virnham Woods Blvd.
 #1
 Pasadena, Texas 77503
 
Timothy Sloan, Esq.
 P.O. Box 2171
 Bay City, Texas 77404-2172
 
Ms. Billie Garde, Esq.
 Hardy & Johns
 2 Houston Center, Suite 500
 Houston, Texas 77010
 
Edward A. Slavin, Jr., Esq.
 35 S.E. 8th Terrace
 Deerfield Beach, Florida 33441-4340
 
  NOTICE OF VIOLATION
  Raytheon Engineers and Constructors, Inc.          EA 96-137
 
Based on the NRC's review of a September 29, 1995 DOL Administrative Law Judge's Recommended Decision and Order in the case of Earl V. Keene (95-ERA-004), a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below.
 
10 CFR 50.7 states, in part, that discrimination by a Commission licensee or a contractor of a Commission licensee against an employee for engaging in certain protected activities is prohibited. The activities which are protected are defined in Section 211 of the Energy Reorganization Act, as amended, and include, but are not limited to, reporting of safety concerns by an employee to his employer or the NRC.
 
Contrary to this requirement, in March and May 1994, Raytheon Engineers and Constructors, Inc., a contractor of Houston Lighting & Power Company, a Commission licensee, discriminated against an employee who engaged in protected activities. Specifically, a Department of Labor Administrative Law Judge found in a Recommended Decision and Order issued September 29, 1995, that Earl V. Keene was the subject of employment discrimination in 1994 for raising concerns about signing off on electrical maintenance work he did not perform, a protected activity. The discriminatory treatment included being selected for a March 24, 1994 reduction in force, receiving a lower performance appraisal rating, and being subjected to fitness-for-duty testing on May 24, 1994. (01013)
 
 
This is a Severity Level III violation (Supplement VII).
 
Pursuant to the provisions of 10 CFR 2.201, Raytheon Engineers and Constructors, Inc., a contractor to a Commission licensee, is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, and a copy to the NRC Resident Inspector at the facility that is the subject of this Notice, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) the date when full compliance will be achieved. Your response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as to why such other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time.
 
Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.
 
Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.
 
Dated at Arlington, Texas, 
 this 19th day of September 1996