1 On April 17, 1996, the
Secretary of Labor delegated authority to issue final agency decisions under, inter alia,
the Energy
Reorganization Act and the implementing regulations, to the Administrative Review Board.
Secretary's
Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96 contains
a
comprehensive list of the statutes, executive order and regulations under which the
Administrative Review
Board now issues final agency decisions. See 61 Fed. Reg. 19982 for the final
procedural
revisions to the regulations implementing this reorganization.
2 Section 211 of the
ERA formerly was designated section 210, but was redesignated pursuant to section 2902(b) of
the
Comprehensive National Energy Policy Act (CNEPA) of 1992, Pub. L. No. 102-486, 106 Stat.
2776,
which amended the ERA effective October 24, 1992.
3 The ALJ found that
Complainant failed to make a prima facie showing of unlawful discrimination and, even
if he did,
"he did not carry his ultimate burden of persuasion that his termination was due to his
protected
conduct." R. D. and O. at 15. Alternatively, the ALJ found that even if Complainant was
terminated
in part because of protected conduct, Respondent "has shown by clear and convincing
evidence that
it would have acted the same way in the absence of that consideration." Id. at 25.
4 Talbert also served
as a Shift Technical Advisor (STA) responsible for providing guidance to licensed operators in
the reactor
control room.
5 The Boiling Water
Reactor Owners Group (BWROG), an international consortium of nuclear utilities, promulgates
EOPs for
the industry. The Nuclear Regulatory Commission (NRC) requires that EOPs be followed in
emergencies.
6 Respondent
conceded that the May 16 activity was protected. R. D. and O. at 7; Respondent's Post Hearing
Brief at
3, 5 n.5. See 42 U.S.C. § 5851(a)(1)(A)-(F) (protected "participation"
activities
include notifying employer of alleged violation, giving testimony, commencing a proceeding,
assisting or
participating in a proceeding); Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926,
931-932
(11th Cir. 1995) (employee raising concerns about safety procedures protected under ERA).
7 An ATWS can
cause damage to the reactor core and, if unmitigated, can lead to containment failure and
radioactive
release. In the event of core instability, a degree of damage can occur within one or two minutes.
8 Prior to conclusion
of the sabbatical year, WNP-2 experienced a reactor core oscillation. Talbert's participation in
the event
and interaction with managers in the counterpart Fuels Engineering Group provided legitimate,
nondiscriminatory reasons for the transfer decision. The oscillation is discussed infra.
9 In February 1991,
while the plant was still operating, one of Respondent's crews failed NRC licensed operator
requalification
examinations because operators did not trip both recirculation pumps during an ATWS
simulation as
mandated by the applicable EOP. After this failure, the NRC questioned the qualifications of all
crews and
decided to evaluate additional operators in March. Because another crew failed these
examinations,
Respondent was required to obtain special NRC approval to continue in operation until the
scheduled
outage which commenced in April. A third failure occurred in June. As a result, Respondent
lacked
sufficient operators to re-start the reactor following completion of the outage. WNP-2 remained
shut down
for the ensuing three months.
10 Cycles last about
a year. Between cycles, fuel bundles, i.e., groupings of rods filled with uranium, are
removed and
replaced. During this reloading, new fuel bundles are scattered throughout the core and
remaining bundles
are shuffled to produce a design that is economical and provides maximum operating flexibility.
In 1990,
Respondent introduced a new bundle design. The mixed fuel types elevated the likelihood of
core
oscillation. If a plant remains shut down for an extended period, the loaded fuel is not used
correctly. In
this case, the abbreviated length of the preceding cycle (due to operator training difficulties) also
contributed to the instability.
Mr. Talbert related to me that he felt he had been told he would not be allowed to interface
with the NRC in the future and that he would be severely constrained in his activities,
especially as an official representative of Supply System policy. I had never considered
limiting Mr. Talbert's interfaces in this fashion. . . . I felt that Mr. Talbert's image problem
was simply involved with how he delivered his message and I was going to work with him
on that delivery.
RX CMP-1 at 4-5. To that end, Powers intended to establish a contract with Talbert
regarding
acceptable behavior. "This contract, however, would have only addressed proper behavior
and not
have placed any limit on who [Talbert] interfaced with; there would have been no need to restrict
him from
speaking with the NRC." Id. at 4. See CX 3 at 3 (discussion about
contract
documented in Talbert's journal).