DATE: October 20, 1995
CASE NO. 93-ERA-35
In the Matter of:
ROBERT TALBERT,
Complainant,
v.
WASHINGTON PUBLIC POWER SUPPLY SYSTEM,
Respondent.
Appearances:
Scott Naccarato, Esquire
Critchlow, Williams, Schuster, Malone
and Skalbania
1177 Jadwin Avenue
P.O. Box 1487
Richland, Washington 99352
For the Claimant
Melvin N. Hatcher, Esquire
Washington Public Power Supply System
P.O. Box 968
3000 George Washington Way, Mail Drop 396
Richland, Washington 99352-0968
For the Respondents
Before: ALEXANDER KARST, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
Robert Talbert brings this action against his former
employer, Washington Public Power Supply System (Supply System)
under the whistleblower protection provisions of the Energy
Reorganization Act of 1974, 42 U.S.C. §5851 (ERA). He
alleges that his employment was constructively terminated in
retaliation for his raising a nuclear safety issue on May 16,
1991, and for pressing his concerns thereafter. He calculates
his damages to be in excess of one and a half million dollars.
The Supply System is an electrical utility which operates a
boiling water nuclear reactor known as WNP-2 at the so called
[PAGE 2]
Hanford site in southeastern Washington. At times pertinent
here, Don Mazur was the company's Managing Director, or chief
executive officer, and A.L. Oxsen was its Deputy Managing
Director, or chief operating officer. TR 208. Oxsen filled both
top posts for about eight months beginning in September 1992. RX
ALO-1, p. 1. Heads of departments, among them C. M. Powers, the
Director of Engineering, and J.V. Parish, the Director of
Operations, reported to Oxsen or Mazur.
Talbert came to the Supply System in April of 1981 as a
Senior Nuclear Engineer in the Reactor Engineering Group.
Several years later he became the,Group's supervisor. His
immediate superior was R. L. Webring, the Technical Services
Manager, who in turn reported to the power plant manager, J. W.
Baker. Baker reported at various times either to Oxsen directly,
or through Parish.
An international consortium of nuclear utilities known as
Boiling Water Reactor Owners Group or BWORG, of which Supply
System is a member, promulgates Emergency Operating Procedures
(EOPs) for the industry. The U.S. Nuclear Regulatory Commission
(NRC), which licenses and regulates U.S. nuclear power plants,
requires that in emergencies EOPs must be followed unless the
operator has prior written NRC dispensation. TR 234.
In early 1991, shortly before a routine annual shutdown or
"outage" for maintenance and refueling of the reactor, some
reactor operating crews were required to take NRC requalification
examinations, which presented a simulated operational emergency
called ATWS.[1] TR 203. EOPs directed that in an ATWS
emergency, if a turbine is available, both re-circulation pumps
be tripped. Several operators flunked the test because they
offered other solutions and told the NRC examiners that they
considered EOPs mere recommendations. TR 203; 217, 277. Mr.
Oxsen testified that to the NRC the notion that EOPs are merely
advisory is "blasphemy" which made NRC "very angry" and led it to
threaten "to wreak havoc on our company and keep it [shut] down
indefinitely while we beat the operators into submission over
this issue of procedure compliance." TR 216. The NRC apparently
concluded that the Supply System operators' heretical view of
EOPs represented a " cultural" attitude which pervaded the entire
company, and it proceeded to conduct a general evaluation of its
operations. As a result, the NRC flunked so many operators that
the Supply System had to obtain special dispensation to continue
operations until the outage. The company was at risk of not
having enough licensed personnel to restart the reactor on
schedule in June 1991. TR 203; Exh. JWB-1, p.2.
[PAGE 3]
Some of the employer's executives think that Talbert was one
of the people who fostered this "cultural" problem. Powers put
it thus: "Mr. Talbert had always felt that he had the flexibility
to consider [EOPS] procedures as guidelines and not requirements,
since he had authored many of them and felt he had the technical
ability to deviate from them.... Mr. Talbert had advised the
operator crew to deviate from an [EOPs] during a licensing
examination...... RX CMP-l P.2.[2]
With this as background, Oxsen called two meetings to
discuss compliance with EOPs. RX ALO-1, p. 2; TR 202, 203. The
first meeting, held on May 16, 1991 and attended by about 80
people, was video taped. Oxsen gave a speech in which he
explained "what the corporate policy was, and why, and...
emphasize[d] how important it was that everybody rigidly follow
[the EON], or change them if appropriate." TR 203. He called the
EOPs "the Bible" which had to be "considered the law," and
alluded to the way EOPs could be changed when necessary. Exh.
ALO-3, p. 1. Oxsen was followed by Baker who solicited questions.
Baker ended his answer to one of the questions by saying
"...Quite frankly, I can't think of anytime that we would deviate
from our EON." At that point Talbert said: "I can think of one,"
and the following colloquy ensued:
Baker: When's that?
Talbert: It's a trip into Region A with a turbine
available ATWS. It's not only wrong, it is very
dangerous and germane to reactor safety.
Baker: Then we would need to change that in our EOPs
and exercise that in the form of EOP revision and not
exercise that in the form of, you know, simulator
performance.
Talbert: I am in complete agreement and clearly we will
follow the EOPs verbatim. We have a hook in the EOPs
currently that is dangerous and germane to safety.
Baker: But that's an issue that is being pursued by the
owner's group [BWORG] and the product of that will come
out of that.
Talbert: That's true.
Baker: And I'm not sure that we have all of the facts
on that, but certainly that's an issue worth pursuing.
[PAGE 4]
But, you know, if you are operating over in the plant and this
came up, we would want to follow the EOPs.
RX ALO-3.
Oxsen admittedly resented Talbert's comments. He said:
I was personally disappointed that, given the
situation the company was in and the tone we
were trying to set in that meeting and the
mood of the meeting, that someone would stand
up and say, but yet I know a situation where
you don't have to.... TR 213
* * *
I was not so much concerned about the
technical merit of what [Talbert] raised,
because there were plenty of people to deal
with that below me. I was concerned with the
fact that, after delivering a rather long
message, reinforced by the plant manager, on
the need to comply, and there won't be any
exceptions, and all that, that a member of
the technical community that was involved in
that process would immediately stand up and
say, well, I know of an example when you
don't have to follow the procedures. That's
what I was concerned about.
TR 211-212.
Oxsen allowed that he may have conveyed his irritation with
Talbert to his subordinates, but he denied that he ever
Instructed anyone to discipline Talbert. TR 221, 222. And there
is no allegation of any adverse action against Talbert during the
rest of 1991.
Talbert's diary recorded that nearly a year a half later
Webring told him that his remarks were resented because the
reactor operators thought Talbert "was the smartest guy in the
world.... and if [Talbert] thought the EOPs were inadequate, it
would make them feel the same." CX 3. Webring told Talbert that
he should have raised the ATWS issue not at the meeting called to
demand compliance, but do it at an opportune time, quietly and
privately. CX 3.
[PAGE 5]
The Supply System's position in this case appears to be that
Talbert's comments on May 16 were not resented because they
raised a safety issue which management wanted to ignore,[3] but
because Talbert's comments, coming from a man with a reputation
as a brilliant engineer who was the titular or former head of the
key Reactor Group, undercut Oxsen's and Baker's efforts at the
meeting to change the company "culture" and "beat the operators
into submission over this issue of procedure compliance." TR 216.
In the fall of 1991 Talbert wanted more free time to study
for an upcoming professional engineer examination in another
field of engineering, and he asked Webring to be temporarily
relieved from his supervisory duties. TR 116-17. On October 11,
1991, Webring agreed that for one year Talbert could switch jobs
with Dale Atkinson, a staff engineer in his Group. RX RWL-5.
However, when the so called "sabbatical" year ended, Webring
informed Talbert that he could not have his old job back.
Ostensibly because of a concern that Talbert's continued
employment in his group in a demoted status might prove awkward,
his superiors decided that Talbert should leave the Reactor Group
altogether, but be retained by the company. RX RWL 10, p. 1.
However, Talbert appears to have concluded that no reasonable
position would be offered to him, and that any future promotions
within the company were out of the question. He resigned on
November 30, 1992, the day he learned that Mazur left the company
and that Oxsen, whom Talbert perceived to be his nemesis, took
over. Talbert alleges that his resignation under these
circumstances was a constructive termination of employment. He
testified that although he was given other reasons for his
termination, when explaining their action, his superiors made
repeated references to the May 16 meeting. Thus, he believes
that his comments on May 16, 1991, and his subsequent pressing of
the same ATWS safety issue, were the real reasons for his
termination. Talbert also charges that the employer engaged in
other conduct which amounted to harassment of him, and which, he
says, confirms the employer's malevolent and discriminatory
attitude towards him. Specific allegations will be discussed
below.
The law applicable to this case is summarized in Dartey
v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1993)
slip op. at 7-9:
[T]he employee must initially present a prima facie
case consisting of a showing that he engaged in
protected conduct, that the employer was aware of that
conduct and that the employer took some adverse action
[PAGE 6]
against him.[4] In addition, as part of his prima facie case,
"the plaintiff must present evidence sufficient to raise the
inference that . . . protected activity was the likely reason for
the adverse action." Cohen v.Fred Mayer, Inc., 686
F.2d 793 (9th Cir. 1982). . . . If the employee establishes a
prima facie case, the employer has the burden of producing
evidence to rebut the presumption of disparate treatment by
presenting evidence that the alleged disparate treatment was
motivated by legitimate, nondiscriminatory reasons.
Significantly, the employer bears only a burden of producing
evidence at this point; the ultimate burden of persuasion of the
existence of intentional discrimination rests with the employee.
. . . If the employer successfully rebuts the employee's prima
facie case, the employee still has 'the opportunity to
demonstrate that the proffered reason was not the true reason for
the employment decision. . . . [The employee] may succeed in this
either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of
credence.' . . . Texas Department of Community Affairs v.Burdine, 450 U.S. 248 (1981) at 256. The trier of fact
may then conclude that the employer's proffered reason for its
conduct is a pretext and rule that the employee has proved
actionable retaliation for protected activity. Conversely, the
trier of fact may conclude that the employer was not motivated,
in whole or in part, by the employee's protected conduct and rule
that the employee has failed to establish his case by a
preponderance of' the evidence. Id. at 254-265. Finally, the
trier of fact may decide that the employer was motivated by both
prohibited and legitimate reasons, i . e., that the employer had
'dual motives.'
... [I]f the trier of fact reaches the latter
conclusion, that the employee has proven by a
preponderance of the evidence that the protected
conduct was a motivating factor in the employer's
action, the employer in order to avoid liability, has
the burden of proof or persuasion to show by a
preponderance of the evidence that it would have
reached the same decision even in the absence of the
protected conduct. (Citations omitted.)
A recent decision raised the employer's burden from a
preponderance to "clear and convincing" evidence. Yule v.
Burns International Security Service, 93-ERA-12 (Sec'y May
24, 1995).
Two preliminary observations about this case are in order.
First, it should be noted that the admitted termination of
[PAGE 7]
Talbert's employment in the Reactor Group without his consent,
even in contemplation of a reassignment, was an adverse action
affecting the terms and conditions of his employment. Such a
termination, if done in retaliation for protected conduct, would
appear to be sufficient to support a charge of discrimination.
Second, the unusual situation presented in this case deserves
noting. In a typical whistleblower case the employee complains
to the authorities or his superiors about his employer's improper
or illegal conduct, the employer takes umbrage and retaliates.
However, in this case the employee has not blown the whistle on
his employer's improper conduct. The protected conduct on May
16, 1991 asserted here, was a bona fide discussion about what was
the safest course in a hypothetical emergency. Underlying it is
a broader issue which plagued the Supply System and its relations
with the NRC, i.e., whether the reactor operators on duty should
have discretion how to handle emergencies, or must follow EOPs.
The Supply System concedes that Mr. Talbert's conduct on May 16
was protected, presumably because it feels that any discussion of
safety or a challenge of an employer in the name of safety is
protected. And since the admittedly protected discussion of May
16 and Talbert's later efforts to press the same point were
obviously known to the Supply, System, the case turns on whether
the resentment of Mr. Talbert's admittedly protected conduct was
the real reason why his employer took the alleged adverse actions
against him.
Time of decision to terminate Talbert's employment in the
Reactor Group
Mr. Talbert avers that the decision to terminate him as the
Reactor Group supervisor was made in the early months of 1992 and
not in the fall of 1992 as respondents say. Talbert testified
that when he missed the deadline for the planned examination, he
asked Webring for his job back first in January and again in
April of 1992. He says Webring gave evasive responses or stalled
until October 1992. But, Talbert says, after he left the company
he learned from unnamed sources that Webring told Atkinson in
January of 1992 that Atkinson would be the permanent Supervisor
of the Reactor Group. TR 120.
Webring maintains that when Talbert initially asked him to
abort the "sabbatical," he could not do it because the job was
promised to Atkinson for an entire year, and that he decided that
Talbert should leave the Reactor Group in October 1992.
There is circumstantial evidence corroborating Webring. He
gave Talbert two good performance appraisals after the May 16
[PAGE 8]
meeting. In the second appraisal, dated September 17, 1992,
Webring wrote that Talbert "needs to consider [some self-
improvement suggestions] as he re-enters the management process."
RX RWL-3a. I take that phrase to indicate that as of September
17, 1992, Webring expected Talbert to return to his supervisory
post shortly thereafter. Also, in September of 1992 Talbert
received a 4.2% merit salary increase ($2,773.00) presumably with
Webring's blessings. These acts are inconsistent with the notion
that Webring decided to demote Talbert in early 1991 and was
waiting for an opportunity or an excuse. Webring's explanation
of why he could not switch Talbert back when first asked strikes
me as inherently credible, and Webring struck me as a generally
credible witness.
Having weighed Talbert's hearsay from an uncorroborated
source on the one hand, and the credible countervailing evidence
on the other, I find that Webring's decision to terminate Talbert
was not made until the fall of 1992.
Employer's reasons for Talbert's termination from the Reactor
Group
The controlling question posed by this case is whether the
decision to terminate Talbert was motivated, in whole or in part,
by his protected conduct. I accept Talbert's testimony that the
May 16 episode was repeatedly mentioned by his superiors when
explaining his demotion. I also find that some of his superiors,
notably Oxsen, concluded, partly on account of Talbert's comments
at the May 16 meeting, that he lacked some qualities they thought
a good manager should have. But that does not end the inquiry.
Webring testified that Talbert's conduct at the May 16
meeting was an example of his "poor selection of timing when he
brings tip issues, how he addresses issues, and how he relates to
people," but was not a "major consideration" which led to his
termination. TR 261. The employer contends that on May 16
Talbert raised a proper question, but before the wrong audience,
at the wrong time, and in a wrong way. It argues that if Talbert
was really concerned about the AWTS problem, he should have asked
for an EOPs amendment by filing a so called PER (Problem
Evaluation Report) which every employee had a right to initiate.
TR 71, RX RLW-2. As Talbert's superiors saw it, Talbert's
raising of the ATWS issue on May 16th showed poor judgment
because it was obviously at cross Purposes with the management's
attempt to persuade the crews to follow EOPs. The executives
concede that it was one of the incidents which led them to
conclude that Talbert had neither the broad vision nor the
[PAGE 9]
temperament for the subtleties of management, that he did not
know when to talk and when to keep quiet, and that he lacked
tact, prudence and diplomacy when dealing with regulators and
other managers. Talbert's superiors testified, in effect, that
their judgment about his fitness for managerial positions was
based on their long term evaluation of him, and was not formed
merely on the basis of the May 16 meeting. Respondent argues
that the company top echelon's view of Talbert, although in part
based on the May 16 incident, does not raise an inference that he
was terminated because of his protected conduct on May 16.
Respondent avers that Talbert was terminated Long after May 16,
1991, when, due to other events, it became imperative that the
supervisor of the Reactor Group have a fundamentally different
attitude to EOPs from Talbert's, and be more deft in dealing with
other groups in the company than Talbert had been.
There is credible evidence tending to corroborate that
events apparently unrelated to the May 16 episode played a role
in leading Talbert's superiors to the conclusion that he lacked
good managerial judgment and was unskillful in dealing with other
groups. For example, Talbert's 1991 and 1992 performance
appraisals indicate that Webring and Baker felt that Talbert did
not know how to delegate work to his subordinates, "maintain a
broad perspective," or "communicate effectively."[5] RX RLW-3,
RLW-3a. Talbert's prudence was criticized in the fall of 1991 by
Oxsen himself when Talbert hired one of two competing in-house
applicants for a job within his department, but wrote the
following comment in the company personnel files:
Bill [the rejected applicant] is the clear candidate of
choice. Due to current staffing in the Operations
Department, Bill is precluded from changing positions.
Bill has all the attributes necessary to be a SUPERB
STA. He has a surfeit of attributes beyond the minimum
required. I lament the fact that he is precluded from
joining the Reactor Engineering Group. He would have,
assuredly, distinguished himself!
CX 14. Oxsen commented: "This is vintage Talbert. [sic] One
document selecting George followed by another editorial stating
Bill was the preferred choice. Not a good package for the file."
The phrase "vintage Talbert" implies that Oxsen thought that
Talbert's gaffe was not singular. Baker echoed Oxsen in a note
to Talbert: "Even though you mean well - your words do have an
impact - poor 'supervisory' judgment on your part...... CX 14.
Webring also testified that Talbert lacked the skill to point out
mistakes made by the Fuels group without creating resentment.
[PAGE 10]
The Supply System's basic contention is that the decision to
remove Talbert from the Reactor Group was made after, and as a
result of, a very dramatic event, viz., a reactor core
oscillation which occurred on August 15, 1992. While the reactor
was successfully shut down and a physical catastrophe averted on
that day, the event (which incidentally was not due to an ATWS)
"shook up" the whole nuclear power industry, and was a business
disaster for the Supply System. TR 43. It multiplied the
company's previous troubles with NRC, created serious internal
turmoil, and indeed put the very existence of the company at
risk. TR 43, 288-89. Powers described it as the central episode
in the recent history of the Supply System, which "dominated much
of management's attention..., characterized the tone with which
[the Supply System] dealt with [NRC] for a long period of time...
and [which]...ha[d] not yet completely been resolved" at the time
of trial two years later. TR 288. Sam McKay, a witness called
by Talbert, testified that after the event the situation in the
company became very "volatile," the whole approach to management
changed, and changes were promulgated by the company's "Executive
Board." CX 17, pp. 16, 17, 20. It is clear that the company came
under severe pressure from NRC. Its executives struggled to find
the root of the problem which led to the oscillation; to find out
who was responsible; how to discipline them; and how to prevent a
repeat. The record documents or hints at profound corporate soul
searching,, collective self-criticism, even self-imposed fines
among the executives. There was testimony that various managers
were disciplined in unspecified ways, and respondent's closing
brief says that some executives were fired.[6] Mazur's departure
came shortly after the core oscillation. RX ALO-1. And by the
time of trial, neither Oxsen nor Powers were with the company any
longer, and Baker and Webring held different jobs. While there
is no evidence about the circumstances of Mazur's or Oxsen's
departures, or the reassignment of Baker and Webring, Powers
admitted that he was forced to resign on account of the
oscillation. TR 287, 288. The event also brought to a head the
issue of compliance with EOPs, for the NRC decided that the
company's casual view of EOPs was one of the causes of the
oscillation.
The most compelling explanation of the reasons for Talbert's
termination came from the man who actually made the decision, Rod
Webring. He testified that the decision was his alone; that he
was not at the May 16, 1991 meeting; that Talbert's statements
that day did not influence his decision; and that neither Baker
nor Oxsen directed his decision. TR 255-56. Because Webring's
testimony about the events which led to Talbert's termination
[PAGE 11]
lies at the crux of the respondent's explanation of the company's
action, it is recited at length:
... Bob [Talbert] was the Shift Nuclear Engineer on
duty during the [reactor oscillation] event.... The
event had a profound impact on Bob. Immediately
following the event I was called from my home to the
Plant. When I entered the Control Room I could tell
that Bob was visibly shaken. He mentioned several
times that he had made a mistake and that it was all
his fault. At that time we did not know why the event
had occurred. Bob was in no position to render
assistance and, after obtaining a relief, Bob was sent
home.... A root cause analysis was conducted... [and]
provided to the NRC.... The report identified that
Bob's actions contributed to the event. There were
multiple factors which caused the event, and no one
individual was solely responsible....
The Supply System was criticized for having a
procedural environment which permitted Bob's action-s
during the oscillation event. Basically, our
procedures permitted an amount of discretion in
determining operational parameters. The NRC felt that
discretion should be curtailed, and more specific
operational guidance provided. Generally speaking, the
NRC was of the opinion that the event would have been
avoided had our procedures required more specific
operational parameters.
Bob was not a strong proponent of placing procedural
restrictions on core management decisions made by
operators. Bob operated well when given general
boundaries and guidelines. The core oscillation event
emphasized the need to rely on procedures as strict
controls.
In order... to address the regulatory and operational
concerns, the Supply System needed to shift its
emphasis away from reliance on individual contributor
expertise and on to procedures that could be uniformly
interpreted and applied by all staff ....
It is important to understand that the core oscillation
event was extremely significant in terms of its
potential to adversely affect the viability of the
Supply System ....
[PAGE 12]
[T]he core oscillation event prompted a re-examination
of the manner in which Fuels Engineering and Reactor
Engineering discharged their independent responsibility
for the reactor core. Fuels Engineering designs the
reactor core. Reactor Engineering then operates the
reactor within the operating margins of the core
design. There is an inherent tension between the two
functions, as economical core designs reduce operating
margins. The core oscillation event demonstrated a
need for closer cooperation between the core design and
operation functions in order to strike a balance
between design and operation issues.
I did not believe that, in the time available to us,
Bob could work with Fuels Engineering in an effective
fashion to achieve the results necessary for the Supply
System's continued viability.
... There was simply too much history between Bob and
Fuels Engineering. The core oscillation event
exacerbated the already strained relationship between
Bob and Fuels Engineering.... We had to be of one
purpose, and perceived as a company unified in that
purpose.
I recognized that Bob was not solely responsible for
the relationship with Fuels Engineering. However, I
became convinced that with the existing relationship
between Bob and Fuels Engineering, we would not be
capable of moving the Reactor Engineering organization
to our new operational philosophy within the available
time.
I was not in a position to effect a change in Fuels
Engineering and determined that it was appropriate to
take action within my area of responsibility to effect
a necessary change.
... Among other matters, I decided not to return Bob to
the Reactor Engineering supervisor position. Under all
the circumstances, I felt that Dale [Atkinson] was the
best talent available to the company for the task at
hand.
... [M]y decision evolved based on my experience with
Bob, his management style and the challenges facing the
company, most critically in the area of core management
[PAGE 13]
which included Fuels Engineering and Reactor Engineering.
These challenges had become more acute as a result of
the core oscillation event. It was necessary that
changes occur in the methods used to manage this
critical function. There was no room for
organizational differences to affect the outcome. At
that time, the viability of the company was at stake.
Bob's previous relationship with Fuels and his
involvement in the core oscillation event would have
created difficult barriers to overcome in successfully
managing this critical function.
RX RLW-1, pp. 7-9.
Although Powers was not in the chain of command over
Talbert, because he was privy to the decision to move Talbert, I
find his testimony also significant. He said:
... [The] power oscillation event occurred at WNP-2
while Mr. Talbert was still working as a reactor
engineer. In this capacity, Mr. Talbert had made a
decision about the rod pattern distribution and rod
withdrawal sequences which was later determined to have
been the root cause of the power oscillation event.
After the oscillations, the Supply System began
preparing for its meeting, with the [NRC], aware that
an issue the NRC felt strongly about was accountability
for this event. Consequently, as an element of the
Supply System's response, disciplinary actions were
taken with everyone involved, including Mr. Talbert.
Mr. Talbert reacted strongly to the discipline, feeling
that he had been unfairly blamed for the situation. It
was also decided at that time, that Mr. Talbert would
not be returned to the supervisory position in Reactor
Engineering. This decision, however, reflected more
than just his role in the power oscillation event; it
also took into account how he had acted in certain
interactions with the NRC as he supported the operator
licensing examinations. More specifically, Mr. Talbert
had always felt that he had the flexibility to consider
[EOPS) procedures as guidelines and not requirements,
since he had authored many of them and felt he had the
technical ability to deviate from them. This belief
directly contributed not only to power oscillations,
[PAGE 14]
but also to the failure of one operator crew during NRC
requalification exams. Mr. Talbert had advised the operator crew
to deviate from an [EOPs] during a licensing examination. The
NRC then failed the crew on the exam as a result of this action.
Mr. Talbert's portrayal of this type of image became increasingly
more difficult to justify as the NRC's concerns with procedural
compliance escalated.
RX CMP-1, pp. 1-2.
Both Webring and Powers struck me as credible witnesses.
Although Powers put more stress on Talbert's role in the
oscillation event as a factor in his termination, the
discrepancies in Powers' and Webring's narratives appear to be
more due to differences in perceptions or emphasis than
substance. To the extent they are at odds, I give greater weight
to Webring because he actually made the decision.
Talbert himself lends some credibility to Webring's
explanations. Talbert readily admits to longstanding friction
between himself and the management of Fuels which he attributes
to Fuels' mistakes which he caught with some regularity. But
whatever the causes of the friction between the Reactor and Fuels
groups, its admitted existence, and the conclusion that it played
a role in bringing on the oscillation, when viewed against the
background of the festering debate over whether EOPs are
mandatory or advisory, give Webring's explanations a truthful
ring. I find it significant, also, that before the parties were
in the thrall of litigation, Webring wrote Talbert a memorandum
in which he explained his reasons for terminating him much as he
did at trial. He cited Talbert's past problems with the Fuels
group and wrote that "[t)he most compelling reason for change is
that the [Reactor] group needs to develop its programs and
procedures and the reliance on these instead of total reliance on
a few 'wizards'." RX RLW-10, p 1.
The sequence of events reinforces the credibility of
Webring's explanation. Talbert does not allege any adverse
action against him until six or seven months after the May 16
meeting, and I assume there was none. A delay that long appears
unlikely if the irritated Oxsen or his lieutenants were inclined
to retaliate. On the other hand, five months after the May 16
meeting, management treated Talbert with consideration, not to
say kindness, by allowing him to decrease his work load and
responsibilities but keep his previous salary. He was also given
a substantial merit pay raise, and two good performance
evaluations. These are hardly actions of an employer bent on
[PAGE 15]
denoting or getting rid of a troublesome employee. Apart from
Talbert's suspicions, and the hearsay that Atkinson was told in
early 1991 that his promotion was permanent, I find no indication
in this record that the Supply System took or was contemplating
taking any adverse action against Talbert prior to the core
oscillation event.
Talbert's allegation that he was terminated because he
raised the ATWS problem appears to be based on his Surmises and
his interpretations of conversations relating to his termination.
He did not testify that the May 16 episode was explicitly cited
as either the, or a, reason for his removal. While I accept that
May 16 was repeatedly mentioned as Talbert says, I rather think
that Talbert misconstrued what he heard when he pressed his
superiors to explain his termination. Even viewed through the
prism of Talbert's own diary entries, the references to the May
meeting appear to me to have been made to illustrate
diplomatically why management judged him maladroit and unsuited
for jobs requiring broad perspectives or diplomacy. Taken in
context, I infer that the managers' references to the May 16
meeting were offered by way of saying that the company did not
want to get into more trouble with NRC by having as one of its
spokesmen an avowed advocate, indeed perhaps the principal
exponent, of a view that EOPs are advisory. Implicit in their
explanation was management's concern that Talbert, who "had no
political bone in his body," was so frank and outspoken, not to
say indiscreet, and so focused on technical issues at the
exclusion of broader considerations, that he might press his view
of EOPs when dealing with the NRC and thus bring on more troubles
for the company.
While it is a close question, on balance I find that Mr.
Talbert did not present sufficient evidence to raise an inference
that he was constructively terminated on account of his protected
conduct on May 16. But in any event, I am firmly of the opinion
that he did not carry his ultimate burden of persuasion that his
termination was due to his protected conduct. The direct and
circumstantial evidence that the decision to remove Talbert from
the Reactor Group was not related to his May 16 comments, or his
later pursuit of the ATWS problem, outweighs the countervailing
evidence. On balance, I am persuaded that Webring's stated
reasons for removing Talbert from the Reactor Group were his and
the company's real reasons, and that Webring and the company were
motivated by proper, legitimate, nondiscriminatory considerations
vital to the company's future. It need not be decided here
whether the company's perceptions of Talbert were justified, or
that their stated reasons were sufficient to warrant his removal.
[PAGE 16]
Suffice it to say that the company's motives were legitimate,
sincere, and not pretextual.
Webring's veto of Talbert's transfer to MWIP
Mr. Talbert charges that the earliest discriminatory action
taken against him on account of the May 16 meeting occurred in
late December of 1991 or early 1992. He says he was precluded
from switching to another job within the company in the Megawatt
Improvement Program (MWIP). CX 16, p. 11-12. Webring admitted
that he vetoed the proposal. He said that by company custom, as
Talbert's manager he had a right to veto an intracompany
transfer. He did so because he needed Talbert, who was one of
only a few people qualified to be a Shift Tech Advisor, a vital
24-hour-a-day, seven-day-a-week job. Webring said he did not
"have the freedom...at that point in time to turn [Talbert]
loose." TR 264. 1 find this explanation credible, and Webring's
action consistent with what he did in October of 1991. 1 find
Webring's stated reason for rejecting the transfer to be
legitimate and non-discriminatory.
Refusal to transfer Talbert to the Engineering Department
Talbert started a diary in late 1992 to document events or
conversations which he thought pertained to the company's actions
against him. This diary and his direct testimony show that after
Webring told him on November 3, 1992 that he had to leave the Re-
actor Group, the head of the Engineering Department, Chris
Powers, approached him and tentatively offered him several jobs
in his department, notably one in Severe Accident Management,
which Talbert wanted. TR 132-33. But the next day, according to
Talbert's diary, Baker told him that although he (Talbert) was
technically very strong and "told the truth," he was "Perceived
as a loose cannon by upper management" because "he did not have a
political bone in his body." In addition, after mentioning the
May 16 meeting, Baker told him that upper management would not
allow Talbert to take any of the jobs mentioned by Powers.
Talbert's diary also recorded Baker saying that he would not be
considered for any position in which he would have to deal with
the NRC, NIPO, the executive board, owners' groups, or upper
level management because of a concern that he was indiscreet and
might let something slip that might "harm the Supply System's
image." TR 134-135; CX 3, pp. 3-4.
Approximately two weeks later, Powers told Talbert again
that he wanted Talbert to take the Severe Accident Management
job, but they agreed that he (Powers) would check whether Oxsen
[PAGE 17]
or Baker had any objections. TR 144. Talbert's diary records
that two days later, Webring told Talbert that what Baker told
him on November 4 was true, and that he (Talbert) would never be
placed in a management position. TR 145. Talbert testified that
when he did not hear from Powers when he expected to, and then
learned that Mazur was leaving the company and that Oxsen would
be the sole top executive, it became "pretty clear to [him] at
that time,... that there was not going to be a reprieve from the
interdictions regarding [his] job and job capabilities, and that
the Severe Accident Management EOP job that [Powers] had offered
was probably not in [his] future." TR 146. In this frame of
mind, he wrote a handwritten note of resignation to Webring on
November 30, 1992. TR 146-47; 177-78. Shortly thereafter he was
hired by another employer and started his new job while on
terminal leave with the Supply System.
Webring's testimony about relocating Talbert is as follows:
...I told Bob that I was under no time pressure to
effect his transition out of Reactor Engineering, and
that there would be adequate time for him to find
another position within the Supply System....[7]
Bob had a lot to offer the Supply System. In my mind
it was simply a matter of determining where we could
best utilize his talents and where Bob would feel that
he was able to make a contribution.... Given Bob's
technical abilities and high salary, however, it was
possible that a position would have to be found in
another organizational component. I first contacted
Jack Baker.... Jack contacted Lee Oxsen and Chris
Powers.... I was informed by Jack that several
positions were available to Bob, and that Chris would
be talking with Bob about the positions.... In addition
to meeting with Chris, Bob had requested to meet with
Jack and me to further discuss his removal from the
Reactor Engineering supervisor position.
During this discussion, Jack told Bob that Jack did not
feel that he could support placing Bob in a position
requiring Bob to serve as the company spokesperson. I
believe the context of this conversation was in
relation to alternate positions for Bob that might be
available within the Plant under Jack's control. Jack
indicated that this extended to interfacing with the
NRC as a company representative.
[PAGE 18]
Jack made it clear that Jack was not restricting Bob's
ability to communicate with the NRC with regard to
expressing nuclear safety issues.
.... This was not a new message for Bob. The message
may have been delivered in too frank a fashion for a
person of Bob's prideful nature to accept.... Jack,
Bob, and I were addressing alternate employment only
within the plant. It was Jack's and my goal, to find
suitable alternate employment for Bob within the Supply
System.... The only reason that Bob is not working for
the Supply System now was his decision to quit.... On
December 4, 1992, 1 received a supplemental resignation
letter from Bob.... Bob mischaracterizes the
conversation between he and Jack. [sic] Bob was told
that Jack would not recommend Bob for a position where
Bob would represent the Supply System with the NRC....
Neither Jack or I had veto power over the jobs that
Chris offered Bob. Chris could use Bob in any
capacity, or under any terms Chris deemed
appropriate....
RX RLW-1, pp. 7-12.
Baker confirms that he told Talbert that he (Baker) could
"not support him" for jobs in which he would be a company
spokesman either inside the company or with vendors or
regulators. TR 232-33, 24 1; RX RLW- 1, p. I 1. However, Baker
denied that there was a decision made to never promote Talbert.
He said he knew that Powers wanted Talbert for the Engineering
department and that he had no objections since Powers was willing
to provide special "oversight" of Talbert. TR 246.
Powers' testimony about the attempts to relocate Talbert is
consistent with Webring's and Baker's and is credible. He
testified that after the oscillation event, the executives who
were deemed responsible for it, himself included, were
disciplined. In meetings where discipline was discussed, the
managers concluded that it would be in the company's best
interest to retain Talbert because the company needed his
scientific talent.[8] But Powers, and apparently others, felt
that Talbert's "approach at times made him less effective because
of interface problems with people, and that Talbert "tended to
have a single approach to problem solution and it was all based
on technical arguments, and many times effective decisions are
made in other ways." TR 277-78. Therefore the executives wanted
to move Talbert to a job in which his gifts could be utilized but
[PAGE 19]
where his shortcomings could not hurt the company. Powers
undertook to find Talbert such a job in his department. To this
end, Powers went to the trouble of driving to the plant on the
evening of November 2, 1992 to talk to Talbert, who was on duty.
They discussed three positions, and Talbert appeared to be keen
on the Severe Accident Management Job. When Talbert expressed
concerns about restrictions which might be imposed on his career
by other executives, Powers said he would talk to them. He
testified that in subsequent discussions with Oxsen and Baker, he
learned that neither objected to Talbert's move to Engineering.
Powers said that he got the impression that there was a consensus
that Talbert was a good engineer, that "his interface skills
needed some development work, but that there were no limitations
as far as his success in my organization...." TR 279. However,
according, to Powers, when he tried to tell Talbert that there
were no obstacles to him moving over to Engineering, Talbert had
already submitted a resignation letter, and could not be reached.
Powers did not try to contact Talbert at home. TR 285-86.
Talbert argues, at least by implication, that the fact no
one tried to reach him at home to tell him about his clear path
to Engineering indicates that the discussions were a sham. This
argument has some force, and has given me pause. But on balance,
given the unequivocal tenor of his resignation note, and all the
other circumstances, I am not entirely surprised that Powers did
not try harder to find Talbert by contacting him at home and
press him to change his mind.
Talbert's initial handwritten notice of resignation,
addressed to his immediate superior Webring, said his decision
was final and that he did not want to talk with any one any more.
He wrote:
The decision was very brutal to make, enormously hard
and very stressful. Out of respect to my unbridled
dedication, my technical excellence, and years of
contributions far beyond the domain of my job, please
don't ask me to discuss my decision or to talk to me
about my future.
RX RLW-11
The record suggests that when Talbert resigned, most of the
top executives, including Powers who was eventually forced out,
were quite busy trying to protect or salvage their own careers,
and thus might not have pursued Talbert as diligently as they
might have in better times. I note also that about that time, on
[PAGE 20]
December 2, 1992, Talbert threw down the gauntlet to management
by filing this action, charging them with ignoring safety and
discriminating, and threatening other legal actions. RX RLW-13.
This doubtless did not endear Talbert to the company managers who
were already beset with many other troubles, and was not likely
to motivate them to go out of their way to find him and talk him
out of resigning. Given all these circumstances, Powers' failure
to contact Talbert at home does not persuade me that he acted
perfidiously or that the job discussions were a sham.
Lastly, I note that what the company's managers did after
Talbert resigned is not directly relevant in this action. The
issue here is whether Talbert was terminated on account of
protected conduct. The constructive termination occurred on
November 30 when he resigned. The company's actions thereafter
are germaine only to the extent that they may shed light on the
employer's motives for the termination. I do not find that the
lack of zest in pursuing Talbert after he resigned, Under all the
prevailing circumstances, sheds any light on the company's
motives.
On balance, I find that Mr. Talbert has failed to show by a
preponderance of the evidence that the discussions about other
jobs were a sham, that his transfer to the Engineering department
was blocked, or that the company decided he could not move up in
a new post. TR 205-06, 214-15, 232-33, 243, 268, 272, 277. I am
persuaded that because the company believed that Talbert was a
gifted engineer who was valuable to it, it decided to relocate
him to another job in the Engineering Department which appeared
to be acceptable to Talbert.
Refusal to run a computer study on Talbert's hypothetical
cases
Mr. Talbert testified that it became clear to him after the
oscillation event that because of its unstable core, WNP-2's
situation was different from that of other reactors and that WNP-
2 could have a "prompt critical event" in an ATWS situation if
the EOPs were strictly followed. It appears that there was a
consensus that there might be a unique problem with the stability
of WNP-2's core. TR,35, 45-50. Although Talbert did not file a
PER on the subject because he says he did like not PERs, he
pressed his ATWS concern in other ways. TR 121-24, 142. To that
end, he prepared two hypothetical scenarios for computer analysis
by Siemens, the supplier of the nuclear fuel, by what is called a
STAIF code.[9] TR 122. The two hypothetical cases dealt with
the ATWS issue which he raised at the May 16, 1991 meeting. TR
180.
[PAGE 21]
William Burke, Talbert's colleague in the Reactor
Engineering Group, testified at Talbert's behest. He said that
he was responsible for preparing the tapes for analysis at
Siemens, and that at Talbert's request, he added Talbert's two
hypothetical cases to the tape. TR 33-34, 37, 56-59. According
to Burke, the head of the Fuels Group, a Mr. Whitcomb, who had
the final say on which cases were sent to Siemens for analysis,
decided that Talbert's two cases would not be sent to Siemens
because "the Supply System was not interested in the results of
those cases." TR 40. Burke speculated that this may have been
because one possible answer to Talbert's hypotheticals might have
compelled a plant shut down. TR 73-75.
The impact of Burke's testimony was diminished by his
admission that all the cases actually submitted to Siemens dealt
with possible problems during start up, while Talbert's two
hypotheticals dealt with events during normal operations. Burke
also allowed that the answers to the hypotheticals posed by
Talbert were obvious to the engineers, and that the Siemens study
would have merely provided calculations confirming the obvious
answers. TR 88. Moreover he said that Talbert's hypotheticals
were "...something we didn't anticipate really ever happening."
TR 89.
There was much rather technical testimony, as to what is a
"credible" event, which is to say one within the realm of
probabilities, and what is "incredible." The illustration of a
credible event is the mathematical probability of a person being
struck by lightning. Suffice it to say here that the
hypotheticals posed by Talbert were viewed by some as
"incredible," which is to say likely to occur in 1000 years of
reactor operation. Talbert took great pains to show that because
the occurrence would have been cataclysmic, he pursued the ATWS
question even after he left the Supply System. He points out
that the NRC and BWORG devoted much time and money to the
questions he posed, which proves that his hypotheticals were no
mere pipe dreams, or rather nightmares. Regardless of whether
Talbert's hypotheticals were in engineers' parlance "credible" or
"incredible," I have no doubt that Talbert raised serious
questions which the NRC took seriously, and which his superiors
later decided should be addressed. CX 3. However, this
conclusion does not raise an inference that the company's refusal
to have Talbert's hypotheticals run through Siemens' computers
amounts to discrimination against him. Nor does it bespeak
otherwise improper conduct by Supply System. Several
considerations are decisive to my mind.
[PAGE 22]
Burke and a colleague were apparently working day and night
preparing the hypothetical tapes so that the shut down reactor
could be promptly started up. Since the company's immediate
object was to restart the reactor, and since the oscillation
event occurred during startup, I do not find it inherently
unreasonable that the company was not then inclined to run tapes
on problems, however real, which might arise during normal
operations. What's more, Talbert presented no evidence to
indicate that whoever rejected his hypotheticals, presumably
Whitcomb, knew that the-rejected questions were posed by Talbert.
If Whitcomb knew Talbert was the author of the two ATWS
hypotheticals, there is at least a question whether Whitcomb's
act can be charged to the company, rather than be viewed merely
as evidence of the discord between Talbert and Fuels management.
Moreover, in as much as Talbert's hypotheticals posed questions
the basic answers to which were apparently obvious in any case, I
conclude that Whitcomb's veto of running these hypotheticals is
not evidence that the company was discriminating against Talbert,
or trying to hide a safety problem. It is not inconceivable that
Whitcomb or others may have decided that Talbert wanted his
hypotheticals run so that he could make a personal point that he
was right on the ATWS issue he raised on May 16. Lastly, there
is evidence that Talbert's superiors in the end did agree to run
Talbert's hypotheticals. CX 3. See below.
For these reasons I am compelled to find that the company's
initial refusal to run Talbert's hypotheticals was not a
discriminatory act.
Misrepresentation of Safety Discussions with Powers
Talbert alleges that on December 11, 1992, which is to say
after his resignation and after he filed his whistleblower
complaint on December 2, 1992, he had a conference with Parish
wherein they discussed Talbert's safety complaints and
allegations. Talbert's diary entry about that meeting shows
that, even though Parish had a copy of Talbert's discrimination
complaint in his hand, they still spoke about moving Talbert to
another job in the company. Talbert's diary records that he
complained about the removal of his hypotheticals from the
Siemens tape, and that Parish said he would have the hypothetical
studies run. CX 3. Parish's memorandum to the file said:
At a meeting held on December 11, 1992, Mr. Bob
Talbert, Lead Plant Technical Engineer, announced his
final decision to resign from his position at the
Supply System. Based on the discussions at this
[PAGE 23]
meeting, it is the understanding of the Supply System that Mr.
Talbert has no safety concerns with the current operation of WNP-
2. His concerns regarding the long term issues associated with
Reactor Stability are being addressed by the BWR Owners' Group.
CX 10, p. 3. Talbert protested in writing the accuracy of
Parish's memorandum and explained his ATWS concern again. CX 10.
I do not find the misunderstanding of the import of the meeting
to be an indication of anything sinister. Parish's memorandum
merely said that Talbert's concerns were not about current
operation of the reactor, but about long term issues which were
before BWORG: This brief summary of the conversation which
Talbert's diary describes at length does not strike me as being
so inaccurate as to suggest it was deliberate. That and the fact
that the memorandum lists Talbert among the recipients of copies
persuades me that the apparent miscommunication was innocent. I
have to conclude that Talbert has not carried his burden of
showing that this event had some discriminatory aspect related to
this action. Moreover, since the alleged events occurred after
Talbert's resignation, they are not really germane to this case.
Editing of the video task of the May 16 meeting
Talbert next alleges that Supply System discriminated
against him or otherwise acted improperly in editing out his
colloquy with Baker from the video tape of the May 16, 1991
meeting. The implication is that the company was trying to
conceal safety problems which he pointed out, cover up evidence
helpful to him in this case, or both.
It is undisputed that the "official," which is to say
edited, tape of the May 16 meeting did not have the colloquy in
which Talbert raised his ATWS concern. However, the Supply
System did retain the original tape, gave copies of both the
edited and unedited versions to Talbert when he asked for them
before he resigned, and produced them both in this action. TR
143. It appears to me that if the Supply System had the evil
designs Talbert suspects, it would have destroyed the original.
More importantly, since the "official" version of the tape was
intended for distribution for future training or for people who
missed the meeting, and since the colloquy with Mr. Talbert
either detracted, confused or weakened the message the management
wanted to convey, I find nothing nefarious about the editing.
Moreover, it appears to me that since in their exchange Talbert
and Baker agreed that EOPs had to be strictly followed even,when
they thought the EOPs wrong, Talbert's questioning whether EOPs
had the safest answer to an ATWS emergency was irrelevant to the
[PAGE 24]
training objective of the tape. Considering the purpose of the
meeting and the taping of it, I find that the Supply System had a
legitimate reason for editing out Talbert's exchange with Baker.
It does not, to my mind, raise the inference of impropriety.
Frequent drug testing
Mr. Talbert alleges that Supply System harassed him by
making him submit to two ostensibly random drug tests in eleven
days. TR 140. He contends that his two tests were not random.
His "proof" of this charge is his mathematical calculation that
the probability of this occurring was one chance in a thousand.
TR 141. But it appears that the Supply System tested
approximately 104% of its 1700 employees every year. In the
absence of other evidence, I am not persuaded that the
probability calculation, standing alone, demonstrates that the
two tests were deliberately scheduled to harass Talbert. I
conclude that Mr. Talbert has not carried his burden of
persuasion on this point by a preponderance of evidence.
The Employer's lack of concern about safety
Running through the complainant's case are express and
implicit suggestions that the Supply System was not as safety
conscious as he thought it should have been, and that it ignored
his concerns because it thought that business considerations took
precedence over reactor safety.
It should be noted that this is not an action to enforce
safety. Questions as to whether the Supply System was acting
safely or otherwise are the province of the industry's watchdog
agencies. Safety comes into play in this case only tangentially
because Mr. Talbert's protected conduct raised safety questions.
But it is not germane to this case whether the questions Mr.
Talbert raised had merit or indeed were frivolous. The issue
here is whether Mr. Talbert was discriminated against because he
pursued safety, rightly or wrongly, wisely or foolishly. I have
concluded that he has not carried his burden of proof that there
was a causal nexus between his pursuit of safety issues and his
termination and the other acts of alleged discrimination.
In fairness to Mr. Talbert, it should be noted that he
laudably pursued serious scientific safety questions even after
he left the Supply System. The NRC wrote him that it appreciated
his pointing out the ATWS problem, that it shared his concerns,
and that it was considering a solution similar to what he
proposed. CX 8. But it appears that in the end, the NRC left the
[PAGE 25]
EOPs unchanged on the ATWS point.
On the other hand, in fairness to the Supply System, it
should also be noted that there is no substantial evidence in
this case that the company was lax or unconcerned about safety,
or that it dragged its feet about pursuing the safety issues
raised by Mr. Talbert. There is credible evidence that his
superiors encouraged Mr. Talbert to pursue the questions he
raised. Webring had repeatedly urged Talbert to file a PER; in
the end Talbert's superiors promised to run his hypothetical
cases for Siemens when that was brought to their attention; and
management appeared anxious to promptly investigate the safety
issues he accused them of neglecting in his legal actions."[10]
And there is no showing that the Supply System took any action to
keep Talbert from talking to regulators or other persons outside
the company lest he divulge the company's safety secrets.
* * *
My conclusions about this case, summarized in broadest
strokes, are as follows. In 1991 and before, there was a basic
"cultural" conflict within the company about how strictly it
should follow NRC emergency directives, notably EOPs. The NRC
view, accepted by the top management, was that in the panic that
accompanies emergencies, there is no time to figure what is the
best way to avert a disaster, and thus EOPs must be followed
because they represent the collective wisdom of the entire
industry and are based on the industry's experience and on
unhurried studies and calculations of many experts. The
dissenting view was that the engineers and operators in the
control room should have the discretion to decide on the spot
what is the safest course, and deviate from EOPs if they thought
best. Mr. Talbert was perceived by at least some of the company
executives to be the principal protagonist of this dissenting
approach. When the company's top officials, under pressure from
NRC, called a meeting to make clear that everyone was expected to
accept the NRC position, Talbert made some comments which were
construed as a challenge to the management and NRC view and
something that might undermine their efforts to change the
company "culture." Because these comments came from a man with a
reputation as a brilliant engineer who was either the current or
recent past bead of the key Reactor Group, the perceived
challenge rankled among top managers because of their concern
that it might lead some operators to continue to doubt the wisdom
of following EOPs. But the episode did not immediately lead to
any discipline. The dispute about the force of EOPs came to a
head fifteen months later in the wake of the nearly disastrous
[PAGE 26]
reactor core oscillation event. NRC felt the oscillation might
have been avoided if the company strictly followed the rules.
The fact that Talbert was the duty engineer in the control room
during the oscillation event, and his own initial belief that the
oscillation was caused by his mistakes, placed a spotlight on him
and on the debate about the operators' discretion in emergencies.
To avert an economic disaster to the company, perhaps even its
extinction, and no doubt for the sake of their own careers, top
executives, who expected to be held accountable for the
oscillation, began searching for ways to.satisfy the NRC and
improve the company's future performance by rooting out the lax
approach to EOPs. One of the additional persistent problems
which was identified as a cause of the oscillation was the
longstanding friction between Mr. Talbert and his counterpart in
the Fuels Group. While it was decided that the blame for the
friction was not Mr. Talbert's alone, he was thought to be
partially responsible for it. Moreover, his acting successor was
thought to have enjoyed a smoother relationship with Fuels.[11]
Thus, it was decided that Mr. Talbert had to go from the Reactor
Group. But, because his technical brilliance was a great asset
to the company, an effort was launched to relocate him within the
company in another job where his engineering talents would be put
to use, but where his perceived shortcomings as a manager and a
public relations man, and his identification with the advisory
EOPs position, would not add to the company's woes. However, Mr.
Talbert resigned before the process of relocating him had run its
course.
The evidence presented in this case, in my view, falls short
of showing that Mr. Talbert's termination from the Reactor Group
or that the allegedly discriminatory actions by Supply System,
were causally related to his protected condUCt on May 16, 1991.
Moreover, Mr. Talbert has failed to prove the occurrence of at
least one of the discriminatory actions he alleges, i.e., the
refusal of his transfer to the Engineering Department. I am
persuaded that the Supply System's decision to end Mr. Talbert's
employment in the Reactor Group, and its hesitancy to assign him
to positions where he might be a company spokesman, were
motivated by the company's proper, bona fide doubt about his
suitability for some management positions, and a belief that his
temperament made him unsuited to represent the company following
the crisis after the core oscillation event. It is clear to me
that because the decisions about Mr. Talbert's career in the
Supply System were made after the core oscillation event, his
protected conduct some seventeen months earlier played no
significant role in the company's decisions. Although not
forgotten, in the management's collective mind the May 16 episode
[PAGE 27]
was no more than one episode among many which led them to
question Mr. Talbert's suitability for some management positions
where he would be a company spokesman.
It should be noted that I have considered that the Supply
System may have terminated Talbert from multiple motives, one of
which was his protected conduct. However, I have concluded that
even if the Supply System terminated Talbert in part because it
wanted to be rid of his persistence on the ATWS question, it
would be my judgment that the Supply System has shown by clear
and convincing evidence that it would have acted the same way in
the absence of that consideration. I am persuaded that after the
oscillation event, the company's very existence depended on it
making changes in personnel and the attitude of its employees
which would impress and assuage the NRC. Rightly or wrongly, but
I believe sincerely, Talbert was perceived to personify the view
that EOPs were advisory, a view which the NRC wanted to root out.
Talbert was also earnestly perceived to be an, although not the
sole, impediment to making the Fuels and Reactor groups work more
harmoniously. It is my conclusion that in order to save itself
after the oscillation, the company felt it had no choice but to
show NRC that it was radically changing its "culture." This
entailed, among other things, removing Talbert from the Reactor
Group. I have concluded that the company's need to satisfy the
NRC was so compelling that it would have removed Talbert from the
Reactor Group even if he had never raised the ATWS issue on May
16 or later.
Lastly, I find that Mr. Talbert has not shown that the other
actions of the Supply System which he believes were
discriminatory or harassing were caused by his protected conduct.
Moreover, some of the charges of discrimination, i.e. refusal to
run a computer study, misrepresentations about the tenor of
conversations, and editing of a video tape, do not appear to
qualify as discriminatory acts "with respect to [Mr. Talbert's]
compensation, terms, conditions, or privileges of employment" as
required by the ERA to be actionable in this forum. 42 U.S.C.
§5851(a); Delcore v. Northeast Utilities, 90-ERA-37
(ALJ June 11, 1990).
ORDER
For the above reasons, it is recommended that this complaint
be dismissed.
NOTICE
This Recommended Order and the administrative file in this
matter will be forwarded for review by the Secretary of Labor to
the Office of Administrative Appeals, U.S. Department of Labor,
Room S-4309, Frances Perkins Building, 200 Constitution Ave.,
N.W., Washington, D.C. 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
[1]
ATWS stands for Anticipated Transient Without SCRAM. TR 63.
Control rods are withdraw from the reactor core in order to bring
the reactor up to full power and inserted when the reactor is
being shut down. TR 63. A SCRAM is a sudden insertion of all the
control rods in order to quickly shut down the reactor. TR 63.
ATWS is a situation where the nuclear plant has a "transient"
that requires a SCRAM, but the Operators are unable to insert the
control rods into the core because of either a hydraulic or
electric failure and therefore must attempt to shut down the
reactor through other means. TR 63-64, 99.
[2]
Mr. Talbert does not deny that he believes EOPs should he
advisory and that he made his views on this issue known. But he
denies that his crew failed the NRC examination. His diary entry
of December 12, 1992 says that Atkinson's group failed, but the
group Talbert was with got the pumps safely tripped. CX 3.
[3]
The ATWS problem raised by Talbert had been under study, by the
Emergency Procedures Committee of BWORG for some time before the
May 16 meeting.
[4]
An employee's internal safety complaints to superiors are
protected activities under the ERA. Passaic Valley Sewerage
Commissioners v. United States Department of Labor, 992 F.2d
474 (3rd Cir. 1993).
[5]
Mr. Talbert's September 17, 1992 performance appraisals include
the following comments:
Bob sometimes looses sight of the big picture...and is
overcome by the events of the day. Bob needs to consider this as
he reenters the management process.
Bob is further encouraged to work, to further develop his
management skills as the staff moves more to a management mode
that requires accountability to ensure success and not just
continued dogged determination.
Bob will, at times, perform work for others when he does not
feel they have achieved his standards in order to avoid a
confrontation. This is not always in the best long term interest
of the plant and Bob is encouraged to take those issues on when
appropriate.
Bob could spend more energy in listening to others and what
they are not saying. This is a difficult thing for anyone
to develop and it is especially true for Bob as his thought
processes operate faster than most and he often feels he has the
answer before the question is asked. Work in this area may help
Bob in further developing his management skills.
Bob has many natural leadership characteristics and
skills....He needs to channel these abilities in new directions
as he develops his management skills by learning to anticipate
the broader needs of the organization partially as perceived by
the regulator and become a leader in developing our relationship
with the NRC.
At the end of his performance appraisal Mr. Talbert wrote: 'I
felt [Webring's] comments...were insightful and accurate.'
RX RLW-3a.
[6]
Both parties, perhaps to avoid invading people's privacy,
appeared very restrained in presenting evidence on the changes in
the managerial ranks which followed the core oscillation.
[7]
Talbert acknowledged that after he was told he would have to
leave the Reactor Group, Webring offered assistance in finding
another position at the Supply System. Webring admittedly told
Talbert that he could remain at Reactor Group for as long as he
needed to find another job. TR 174-78, 269.
[8]
Witnesses for both sides testified, and I find, that Talbert was
technically exceptionally competent. One witness described
Talbert as "clearly...one of the best nuclear engineers in the
industry." CX 17, p. 8. Baker and Oxsen testified that they were
always interested in hearing, Talbert's scientific views because
they judged him to be technically outstanding. TR 213-14, 235-
36.
[9]
STAIF is a stability domain code that calculates whether the
reactor will remain stable at various points of operation. TR
32.
[10]
Webring testified: "On December 10, 1992, I received a memorandum
from Bob...[which] indicated that he had filed a DOL complaint
and was planning on filing at least three other complaints with
state or federal agencies.... The memorandum itself was silent
on the reason for Bob's filing a complaint. I was concerned to
know the reason so appropriate action could be taken to address
any issue if that issue related to nuclear safety. I mentioned
this concern to my management. It was agreed to have Bob meet
with Vic Parrish...and have Vic discuss with Bob...if the Supply
System needed to take action to address a nuclear safety
issue...I participated in that investigation....The investigation
concluded, and I think appropriately, that Bob's complaint was
without merit." RX RLW-1, pp. 12-13.
[11]
In Talbert's view, the friction between the Reactor and the Fuels
Group was even worse under Atkinson. But because Webring was in
a better position to judge, I feel compelled to credit Webring's
conclusion that things improved under Atkinson.
