U.S. Department of Labor
Office of Administrative Law Judges
Mercedes City Center
200 S Andrews Avenue Suite 605
Ft. Lauderdale FL 33301
Case No.: 89-ERA-6
IN THE MATTER OF:
FREDERICK E. MCCUISTION,
Complainant,
vs.
TENNESSEE VALLEY AUTHORITY,
Respondent,
RECOMMENDED DECISION AND ORDER
STATEMENT
The complainant, Frederick E. McCuistion is proceeding
against the Tennessee Valley Authority (TVA) under Section 210 of
the Energy Reorganization Act of 1974, 42 USC Section 5851 (1982)
(ERA). On August 19, 1988, the complainant was employed by TVA
at its Watts Bar nuclear plant (WBP) as a management-level
employee-an instrumentation quality control unit supervisor-in
TVA's division of nuclear quality assurance. On August 19, 1988
complainant filed a complaint with the Department of Labor under
Section 210 of the Energy Reorganization Act, 42 USC, 5851. Mr.
McCuistion charged that his termination by TVA was caused by
TVA's retaliation against him for his engagement in protected
activity at TVA's Watts Bar nuclear plant.
On January 12, 1989 the Department of Labor (DOL) found in
favor of Mr. McCuistion and concluded that Mr. McCuistion was
discriminated against..."because of mr. McCuistion's refusal to
participate in the violation of a stop work order....the report
filed by a member of his group about the violation of the stop
work order; the expressing of concerns by Mr. McCuistion's
subordinates to the Employee Concerns Program and the Nuclear
Regulatory Commission..." (NRC). (Exhibit C-52, DOL letter to
Oliver Kingsley dated September 18, 1988 from Benny Edwards, Area
Director).
[Page 2]
In its investigation, the DOL partially relied upon the
investigative findings of the TVA's Office of Inspector General
(OIG). The OIG began its investigation December 14, 1987. The
OIG investigative report dated june 29, 1988 found that Mr.
McCuistion was the subject of harassment and intimidation.
(Exhibit C-64, report of administrative inquiry by investigator
Brady Jones; Exhibit C-88, investigative report of Brady Jones).
The DOL ordered TVA to reinstate mr. McCuistion to a
position comparable to the position that he previously held, to
pay him back pay and other benefits of employment, and to pay him
attorney fees and costs (Exhibit C-52).
TVA timely appealed the decision and Mr. McCuistion timely
appealed a portion of the decision. An administrative hearing on
the DOL appeal was held in Knoxville, Tennessee from April 24,
1989 through April 28, 1989 and from June 6, 1989 to June 7,
1989.
SUMMARY OF THE EVIDENCE
STRUCTURE OF TVA OPERATIONS
TVA has two licensed nuclear plants (Browns Ferry and
Sequoyah plant) and two under construction (Bellefonte and Watts
Bar plants). Construction is nearly complete on the Watts Bar
plant but an operating license has not been obtained. (Kazanas
April 28 Tr. at 200-201 212-213; Nixon June 6 Tr. at 7-10).
After reviewing its nuclear program for conformance with
NRC requirements, TVA shut down all of its operating units
(Browns Ferry and Sequoyah) in 1985. At the same time, TVA began
a recovery effort for its nuclear program, and in the last four
years, TVA's nuclear program has undergone a massive review and
restructuring.
TVA's nuclear program is managed by TVA's office of nuclear
power (ONP). ONP's division of nuclear quality assurance (NQA)
provides most of the quality assurance services for ONP. In the
fall of 1987, NQA was managed at the corporate level by Nicholas
C. Kazanas, then director of NQA, who reported directly to the
manager of nuclear power. Hoyt C. Johnson was the Watts Bar site
quality manager reporting directly to Mr. Kazanas. Mr. Johnson
held the lead NQA position at Watts Bar. Watts Bar NQA was
[Page 3]
divided into a number of sections reporting directly to Mr.
Johnson. Among others, these included the quality control
section managed by Leonard Peterson and the quality engineering
section managed by Johnfred Carlton. The quality control section
was further divided into seven units, each headed by a unit
supervisor, and each representing a different discipline such as
electrical, mechanical, and instrumentation and control. The
unit supervisors did not report directly to Mr. Peterson.
Instead, they reported to intermediate supervisors who were
responsible for a group of two or more units. Complainant was a
supervisor of the instrumentation quality control unit, and until
January 19, 1988, his intermediate supervisor was Roy Anderson,
who was the Electrical, Instrumentation, and Control (EIC)
supervisor. Mr. Anderson reported to Mr. Peterson. Mr. Anderson
retired in January 19, 1988; his position was not filled and
thereafter complainant reported directly to Mr. Peterson.
The purpose of quality assurance at a nuclear plant is to
protect the health and safety of the public and to verify
compliance with the specifications for the plant and the
regulations that govern. Nicholas Kazanas was the director and
later became vice president of TVA's quality assurance and he was
Mr. Johnson's direct supervisor. Admiral Stephen White, manager
of nuclear power of TVA, was Mr. Kazanas' direct supervisor.
Mr. McCuistion's background and employment with TVA
Mr. McCuistion attended three years of college. He
studied, among other subjects, business, drafting, math, and
electrical circuits. While at TVA he completed courses in basic
electrical and instrumentation; he had received specific
instrumentation training and took courses which included
electrical circuits and problems. (Tr McCuistion 4/24/89 p 106-
107).
Mr. McCuistion began his employment at TVA in April 1973 at
Watts Bar steam plant as an engineering aide SE-3 level. In
1977, Mr. McCuistion began working with nuclear power at Watts
Bar (WNP). His duties included measuring and testing equipment,
sending it off for calibration, making sure due dates were
correct and that the test equipment used in the field was
properly identified. He was in charge of the drawings, and of
auditing the measuring and test equipment. In 1978, mr.
McCuistion was promoted to an SE-4 in the division of
[Page 4]
construction and instrumentation engineering. This job entailed
assisting the instrumentation engineers in installing
instrumentation systems in the WNP. Instrumentation controls a
nuclear power plant as a light switch controls our lights. (Tr.
McCuistion 4124189 p. 32-35).
Mr. McCuistion was later promoted to an engineering
associate at the SE-5 level in instrument engineering. He
supervised two people and did hydrostatic testing, pneumatic
testing, cleaning lines and installing instruments. He was then
promoted to an engineering associate, SE-6. His duties were
basically the same, however, he now was supervising 5 or 6
people. (Tr McCuistion 4/24/89 pgs 35, 37).
In May 1986 Mr. McCuistion was promoted to
instrumentation/quality control unit supervisor, a management
position (M-5), supervising 20 or more employees. He was
responsible for making sure that employees under him were
certified in the correct procedures and had the correct training.
(Tr. McCuistion 4/24/89 pgs 45-46).
Mr. McCuistion's work performance at TVA had been evaluated
by his supervisors periodically since the beginning of his
employment. In every evaluation prior to the fall of 1987, he
received high ratings (Exhibit C-1, C-2, C-3, C-4, C-5, C-6, C-7,
C-8.) (Tr McCuistion 4/24/89 p 36-40; 42-43; 47-48).
Two of Mr. McCusition most recent supervisors testified on
Mr. McCuistion's behalf and elaborated on the reasons for
evaluating him highly (Tr Morton 4126189 p. 12-13, Mr.
McCuistion's supervisor in 1984-1985; Tr Burke 4125189 p 72-73,
84, Mr. McCuistion's supervisor May - September 1986). Mr.
McCusition's direct supervisor during 1987 to January 1988, Mr.
Anderson, was ill and unable to attend the hearing.
During his employment with TVA Mr. McCuistion received
several commendation letters and recognition for his outstanding
work. (C-9, C11-C12 & C-13). Tr. McCuistion 4/24/89 p 49, 51,
52, 54, 86-87). He was also selected as the outstanding WNP
employee for July 1981 and was in the top six in the selection of
employee of the year. (Exhibit C-10; Tr McCuistion 4/24/89 p 49,
51, 52, 54).
Protected Conduct Engaged In By Fred McCuistion
[Page 5]
A. Violation of the Stop Work Order (SWO) at WNP and the CAQR
Complainant alleges that his involvement with a Stop Work
Order on September 2, 1987 was the reason for TVA having
discriminated or retaliated against him. TVA responds that any
limited involvement which complainant may have had with the Stop
Work Order did not motivate TVA management to discriminate or
retaliate against him and that none of TVA's actions in
connection with the stop work order was discriminatory or in
reprisal as to complainant.
On September 2, 1987, WNP was under several stop work
orders. One of the stop work orders applying to the diesel
generator building prohibited any work on gas and liquid filled
sense lines that had no panel isolation valves. (Exhibit C-16).
An isolation valve allows the valve to be turned off in the event
there is a problem with the line. (Tr. McCuistion 4124189 p 59-
60).
Stop work orders are directives given to prevent work and
avoid excess cost in situations where there may be problems with
drawings or specifications. On January 12, 1987 Mr. Johnson, as
Watts Bar Site Quality Manager, issued a stop work order with
respect to certain work related to, among other things,
instrumentation sensing lines. On February 6, 1987, Mr. Johnson
issued a partial release of the stop work order which allowed
work to commence on "gas and liquid filled sense lines from the
process connections to and including the panel isolation valve"
(CX-16 McCuistion 4/24/89 Tr 59-60).
Because there was confusion in general about the
interpretation of stop work orders and who could approve work
addressed in them, Mr. Johnson directed, in a memorandum dated
August 25, 1987, that the Quality Engineering Section Supervisor
(Johnfred Carlton) would determine whether work was within the
scope of the stop work order. The memorandum also gave Mr.
Carlton the authority to authorize work that he determined was
not prohibited by a stop work order (Johnson 4/27/89 Tr 78-80;
Peterson 4/27/89 Tr 247-49 and 4/28/89 Tr at 98-100; RX 15).
A maintenance request dated August 10, 1987 was prepared
for the repair of bent instrumentation tubing in the diesel
generator building (RX-21, at 4). A notation on the request
indicated that the work was approved by Ron Stamps in a telephone
conversation on September 2, 1987. The note also indicated that
[Page 6]
the work "was not in instrumentation hold." Mr. Stamps was
employed in the quality engineering section under Johnfred
Carlton, and thus was one of the persons responsible for
determining the scope of stop work orders and approving work not
prohibited by a stop work order (McCuistion 4/24/89 Tr 62-63;
Johnson 4/27/89 Tr 82-84).
Complainant was assigned to the power operation training
center in Sequoyah nuclear plant during the month of September
1987, and he reported to work there rather than at Watts Bar.
(McCuistion 4/24/89 Tr-57, 195-197; RX-24; RX-25). On the
evening of September 2, 1987 complainant received a telephone
call at his home requesting him to provide an instrumentation and
control inspector to inspect the work being done at Watts Bar
under the August 10 maintenance request. He was unable to
provide an inspector and decided to go to this plant himself
(McCuistion 4/24/89 Tr 57-58). Complainant reviewed the proposed
work and decided that it was within the scope of the stop work
order and not covered by the partial release because it involved
the repair of instrument lines that did not have panel isolation
valves.
1TVA is governed by a three person
board of directors. Mr.
Dean was chairman of the board at this time. Admiral Stephen
White was head of TVA's Nuclear Power Program.
2Mr. Willoughby was a group
leader instrumentation inspector
who worked for Mr. McCuistion.
3Roy Anderson was the E, I and C
supervisor and was Mr.
McCuistion's immediate supervisor.
4Mr. Huddleston was a manager
supervisor instrumentation
inspector under Mr. McCuistion.
5CAQR'S are routine reports
which document various perceived
deficiencies or violations of TVA procedures at TVA's nuclear
plants (McCuistion 4/24/89 Tr 64, Peterson 4/27/89 Tr at 251).
6Johnfred Carlton, manager in
quality engineering, was Mr.
Peterson's equal in the organizational chart at Watts Bar. They
both reported directly to Mr. Johnson (Tr Peterson 4/27/89 p
249).
7Mr. Jim Moore was training
coordinator for quality control at
WNP (Tr McCuistion 4/24/89 p 76).
8The Employee Concerns Program
was established in February 1986
so that TVA employees could raise safety issues as well as issues
related to management and personnel. Ideally, the employee would
first raise the issue with his or her supervisor and if the
employee was unable to resolve the problem, then the employee
concerns would be available. If the employee were concerned
about reprisal, he/she received confidentiality. (Tr Brantley
4/27/89 p 232-233). Mr. Gerald Brantley was the employee site
representative at Watts Barr.
9The NRC, a federal agency,
regulates the nuclear industry
nationwide, including enforcement of safety regulations
(Willoughby 4/25/89 Tr 114-115).
10A management appraisal
summary or MAS is a written evaluation
of management performance. (Tr Johnson 4/27/89 p 53). (Tr
McCuistion 4/25/89 p 34).
11Paul Cochran, a manager in
quality improvement at TVA's
Sequoyah nuclear plant, has also worked at WNP on the management
level. (Tr Cochran 4/26/89 p 260).
12Mr. Dean was chairman of
the Board of Directors at TVA but is
now a TVA board member.
13Brady Jones (formerly Brady
Williamson) is a special agent
with the inspector general's office at TVA in the department of
nuclear investigations.
14Mr. Nixon was the manager
of quality control at Bellafonte
Nuclear Plant. Mr. Nixon is now the quality control supervisor
at TVA's corporate office in Chattanooga. He has held that
position since approximately December 12, 1988. He has been
employed at TVA since 1970 with an eleven month break in service.
(Tr Nixon 6/6/89 p 7).
15Corporate Commencement
Tracking System required by the NRC.