EA-96-336 - McEnany Roofing, Inc.

 December 5, 1996  
EA 96-336
 
Mr. Michael McEnany, President 
 McEnany Roofing, Inc.
 8803 Industrial Drive
 Tampa, Florida 33637
 SUBJECT:  NOTICE OF VIOLATION
          (Department of Labor Case No. 96-ERA-5)
          (NRC Office of Investigations Case No. 2-95-27) 
 
Dear Mr. McEnany:
 
On August 22, 1996, the presiding Administrative Law Judge (ALJ) issued a finding in U.S. Department of Labor (DOL) proceeding 96-ERA-5, James v. Pritts McEnany Roofing, Inc. The ALJ, in a Recommended Decision and Order (RDO), found that Ms. Tracy A. James was the subject of employment discrimination in October 1995 when your company, formerly known as Pritts-McEnany Roofing, Inc., terminated her for raising concerns about the failure of another employee of McEnany Roofing, Inc., to adhere to NRC security regulations at Florida Power Corporation's (FPC) Crystal River facility. The circumstances surrounding the apparent violation were also investigated by the NRC Office of Investigations (OI). OI found that Pritts McEnany Roofing, Inc., discriminated against Ms. James for engaging in protected activities. 
 
The apparent violation, a copy of the ALJ's Recommended Decision and Order and the synopsis of the OI investigation were transmitted to you by letter dated October 8, 1996. A closed transcribed predecisional enforcement conference was held in the Region II office on October 22, 1996, to discuss the apparent violation, the root causes, and your corrective actions to preclude recurrence. The predecisional enforcement conference was a joint conference involving your company, McEnany Roofing, Inc.; you as the individual responsible for the discriminatory act; and, FPC. The report summarizing the conference was sent to you by letter dated November 8, 1996.
 
Based on the ALJ decision, the OI findings, and the information you provided during the conference, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice). The violation involved discrimination against Ms. James by senior management. Under 10 CFR 50.7, discrimination by a contractor of a Commission licensee against an employee for engaging in protected activities protected by Section 211 of the Energy Reorganization Act (ERA) is prohibited. The activities which are protected include, but are not limited to, reporting of safety concerns by an employee to her employer. 
 
While discrimination against any person for engaging in protected activities is cause for concern to the NRC, this violation is considered to be a very significant regulatory concern because it involved discrimination against an employee by senior contractor management. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level II.
 
During the conference, it was your position that although Ms. James was terminated, you terminated her in the heat of the moment to address a business issue and did not terminate her in retaliation for raising safety concerns. After review of the information provided during the conference, we conclude that but for her engaging in protected activities she would not have been terminated. Therefore, the NRC adopts the ALJ's Recommended Decision and Order, as well as the OI conclusion, in this case and finds that the actions taken against Ms. James were in retaliation for her having raised safety concerns. 
 
Therefore, I have been authorized, after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research, to issue the enclosed Notice of Violation categorized at a Severity Level II to emphasize the importance of ensuring that employees who raise real or perceived safety concerns are not subject to discrimination for raising safety concerns and that every effort is made to provide an environment in which all employees may freely identify safety concerns without fear of retaliation or discrimination. 
 
During the conference, you described those actions taken to address concerns about the implementation of the requirements of ERA Section 211. These included: (1) strengthening your policies with regard to ensuring employee concerns are promptly addressed and resolved; (2) training supervisors and employees with regard to their responsibilities in the area of employee protection; and, (3) discussions of employee rights with individual employees. As a contractor to Commission licensees, it is important that you, your supervisors and your employees fully understand that employees should be free to raise concerns and that discrimination will not be tolerated. Should discrimination be found in the future you may be subject to an Order prohibiting you and your company from engaging in activities at an NRC licensed facility. 
 
You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In particular, your response should describe the basis for our confidence that, in the future, McEnany Roofing, Inc. will abide by the employee protection requirements of Section 211 of the Energy Reorganization Act and in 10 CFR 50.7. In addition, the NRC is concerned that the ongoing DOL proceeding could have a chilling effect on your employees. Therefore, please provide a written response describing the actions taken or planned to assure that the subject employment action will not have a chilling effect in discouraging other McEnany Roofing employees from raising real or perceived safety concerns related to activities at NRC licensed facilities. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with 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).
 
Should you have any questions concerning this Notice of Violation, please contact Mr. Bruno Uryc at (404) 331-5505 or Mr. Kerry Landis at (404) 331-5509. Collect calls will be accepted. You may also contact us by calling 1-800-577-8510. 
           Sincerely,

          Original Signed by
          S. D. Ebneter

          Stewart D. Ebneter
          Regional Administrator
 
Docket No.: 9999
 
Enclosure: Notice of Violation 
 
cc w/encl:
 
Mr. P. M. Beard, Jr. (SA2A)
 Sr. VP, Nuclear Operations
 Florida Power Corporation
 Crystal River Energy Complex
 15760 West Power Line Street
 Crystal River, Florida 34428-6708
 
 Ms. Tracy James 
 7915 West Missy Place 
 Dunellen, Florida 34433 
  NOTICE OF VIOLATION  McEnany Roofing, Inc.         Docket No. 9999
Tampa, Florida                EA 96-336
 
As a result of review of a U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) Recommended Decision and Order, dated August 22, 1996, and an investigation by the NRC's Office of Investigations (OI) completed on September 24, 1996, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, the violation is listed below:
 
 
10 CFR 50.7 prohibits, in part, discrimination by a contractor of a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge or other actions relating to the compensation, terms, conditions, and privileges of employment. The activities which are protected include, but are not limited to, reporting of safety concerns by an employee to her employer. 
 
Contrary to the above, McEnany Roofing, Inc., formerly known as Pritts McEnany Roofing, Inc., a contractor employed by Florida Power Corporation at the Crystal River Nuclear Plant, discriminated against Ms. Tracy A. James, a former security escort and firewatch. Specifically, as found by the DOL ALJ in Case No. 96-ERA-5 (August 22, 1996) and by OI in Case No. 2-95-027 (September 24, 1996), on October 11, 1995, Pritts McEnany Roofing, Inc., terminated the employment of Ms. James as a result of her reporting a violation of security escort requirements imposed at Florida Power Corporation's Crystal River Nuclear Plant pursuant to the Atomic Energy Act. (01011)
 
 
This is a Severity Level II violation (Supplement VII).
 
Pursuant to the provisions of 10 CFR 2.201, McEnany Roofing, Inc., 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 II, and a copy to the NRC Resident Inspector at Crystal River, within 30 days of the date of the letter transmitting this Notice of Violation. 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. 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.
 
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. 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 Atlanta, Georgia
 this 5th day of December 1996