12. A deviation or nonconformance is a situation when equipment does not comply with on site requirements, procedures, specifications, or the required documentation. (Tr 13).

    13. A hold tag is an orange identifying tag indicating that a nonconformance with respect to a cable has been noted and that the deviation is under review. (Tr. 12-13).

    14. The purpose of the hold Tag is to prevent work which might have to be redone if the nonconformance in a deviation report is not first corrected. The hold tag accordingly is not a quality document. Rather is it designed to save the expense of unnecessary or additional work. (Tr. 73, 141-142, 170-171).

    15. The top part of the deviation report identifies the location and nature of the problem which an inspector has found in the field. The inspector date and signs this portion of the deviation report which when goes to Engineering for evaluation. Engineering determines whether or not the observed conditions presents a problem and the solution, for that problem, which is called the disposition. In the field that disposition is then put in effect. The inspector then reviews the crews' work to ensure that the work was performed in accordance with procedures and Engineering's direction or solution. (Tr. 47).

    16. Section 2.2 of the Vogtle Field Procedure Manual provides that the General Manager or his designees may authorize deviations from procedures providing such deviations satisfy the intent of the procedures. (RX 22).

    17. GD-T-01 is the nonconformance procedure for the Vogtle Plant governing matters such as deviation reports or the use of hold tags. (Lunsford Deposition pp. 12, 17-18).

    18. Revision 12 of GD-T-01 provides in pertinent part as follows:

6.3.8 The Q.C. Inspector who removes the hold tag(s), and ensures all tags have been accounted for, signs, states number removed, and dates in the "Hold Tag Removed By/Date/No." block on the DR.

    19. Revision 12 of that procedure took effect on July 19, 1985. (Lunsford Deposition p. 21). It was in effect at the time that Georgia Power disciplined Mr. Durham in October 1985.

    20. The Revision 12 procedures do not cover insurances such as the one under consideration where no hold tags are found. (Tr. 70-71).

    21. In the event that a hold tag was not found on an item, inspectors were trained under the Revision 12 procedures to put down "O" or "none" and sign and dare the "Hold Tag Removed By" block. (Tr. 210; Lunsford Deposition pp. 18-19, 27-28).

    22. The purpose of the procedure was to determine if there was a trend showing unauthorized removal of hold tags. (Lunsford Deposition pp. 19, 30).

    23. Revision 13 of GD-T-01 promulgated after Complainant's suspension reads in relevant part as follows:

6.3.8 The Q.C. Inspector who removes the hold tag(s), and ensures all [13]available tags have been accounted for, signs, states number removed, and dates in the "Hold Tag Removed By/Date/No." block on The DR.
(Tr. 22-23; RX 23 p.)

    24. According to the conformance procedures only quality control inspectors are to remove hold tags. (Lunsford Deposition p. 31).

    25. Every piece of equipment in a power plant is functionally tested sometime before startup. The fact that the hold tag is removed by an individual other than a quality inspector would have no significance as to the safety or quality of the equipment. (Lunsford Deposition p. 34).

    26. PX 9 is a deviation report pertaining to certain instrumentation cables. The deviation report indicated that at least one hold tag had been applied to the cables by Jack Chandler, another inspector. The nonconformance noted on the report was that the cables were too short reach their functioning point. (PX 9; Tr. 13-14).

    27. When Mr. Durham inspected the site on September 16, 1985 he found no hold tag attached to the cables, as he had expected on the basis of the Deviation Report, PX 9. (Tr. 15). Complainant put the notation "No Hold Tags Found" in the block entitled "Hold Tag Removed By" on PX 9. (DX 9, Tr. 21).

    28. He also signed off on the disposition of the deviation on the deviation report. According to Complaint, his signature on PX 9 indicated that the handling of the cable at that site met requirements for cable installation. He denied that with this signature he was accepting the quality of the cable. (PX 9; Tr. 19). Complainant then took PX 9 to Robert Colson, his Senior Inspector, for further processing. (Tr. 21).

    29. A clerk on September 25, 1985 noticed that the "Hold Tag Removed By" block on PX 9 had not been signed and brought this to the attention of Roy Page. He gave the deviation report to Bill Anderson with instructions to have the block filled out. (Tr. 178). Mr. Anderson passed these instructions on to Robert Colson. (Tr. 150).

    30. Robert Colson in turn requested Complainant to date and sign the "Hold Tag Removed By" block in PX 9. Mr. Durham refused to sign the block because he had found no hold tags and his signature would, in his view, conflict with the applicable procedure. (Tr. 26). The procedure in effect on that date was Revision 12 of Plant Vogtle Field Procedure GD-T-01 titled Non Conformance Control. (Tr. 28, See Findings 19, 23, supra). It is Complainant's position that if you can't find the tag, you can't account for it. (Tr. 102, See also Tr. 97).

    31. Complainant interprets a signature in the "Hold Tag Removed By" block according to the procedure in effect in September 1985 to represent that the inspector himself removed the tags. (Tr. 27).

    32. Upon his refusal mo sign the block, Complainant was informed by Mr. Colson some 5 or 10 minutes later that no inspector within the cable installation group would be permitted to leave until either the block had been signed and dated or the hold tag was found and the block then signed and dated. (Tr. 27, 161-162; PX 13 B-3). Mr. Durham replied he would not sign since there was no hold tag to remove. (Tr. 29).

    33. Thereupon Roy Page requested Mr. Durham, Robert Colson and Bill Anderson to report to his office. Roy Page at that meeting explained to Complainant that the purpose of the procedure was to assure that all hold tags had been removed and that there were no more hold tags in the field pertaining to that item so that the work could proceed. Mr. Durham stated his disagreement with that interpretation. (Tr. 29-30; PX 13 D-3 In Camera).

    34. The discussion between Roy Page and Complainant became heated. When Mr. Page told Mr. Durham to keep quiet and listen to his explanation Complaint got up, pointed his finger at Page stating this could be interpreted as harrassment and walked out. (Tr. 31).

    35. The following day, September 26, 1985, Mr. Durham requested another meeting with Roy Page, Bill Anderson and Robert Colson. That meeting was held in Ray Page's office. He apologized for his behavior of the night before. However, Complainant persisted in his refusal to sign and dare the "Hold Tags Removed By" block on the procedural grounds he had previously stated. (Tr. 32-33; PX 13 D-3 In Camera).

    36. The same day, Complainant attended another meeting. The participants were Roy Page, A. I. or "Fred" Page and Mr. Durham. In that conversation Mr. Durham explained that the hold tag did not affect his signature at the bottom of the deviation report. (Tr. 32). According to Complainant, his signature represented only that the disposition had been handled in accordance with the on-site procedures for cable installation. (Tr. 32). In short, Mr. Durham, when he inspected the work, found that the nonconformance on the deviation report had been corrected. (Tr. 49).

    37. Instead of signing the block, Complainant offered to initial and date it in but Roy Page rejected this offer as insufficient. (Tr. 35). Mr. Durham subsequently also offered to sign and date the block and then write a deviation report against himself for failure to comply with procedures. A. I. Page rejected that offer. (Tr. 35-36).

    38. At this meeting, Fred Page warned him that his conduct could be considered gross insubordination and that Butler would be notified. (DX 13-D-1 2/2 In Camera).

    39. After that meeting, Roy Page asked Robert Colson to go to the site and check for hold tags so that the deviation report could be completed. Mr.

Colson went to the site and found no hold tags. He accordingly signed the block concurring with Mr. Durham's statement that no hold tags were found. (Tr. 157).

    40. Complainant concedes that the statement "No hold tags found" in the "Hold Tag Removed by Block" was not false. Nevertheless, he feels the notation would not comply with the documentation or procedural requirements when in effect. (Tr. 52-53).

    41. Complainant would have been willing to sign the "Hold Tag Removed By" block in PX 9 had Revision 13 of GD-T-01 been in effect, because the new procedure referred to "available hold tags". (Tr. 26).

    42. Approximately two weeks later Complainant was laid off for five days without pay. He was informed of this disciplinary action by Lenny Hogue of Butler who told Mr. Durham that Georgia Power had recommended the lay off on grounds of gross insubordination because of the failure to sign and date the "Hold Tags Removed By" block as directed. (Tr. 34).

    43. After notice of the disciplinary action, Mr. Durham, filed a quality concern with Georgia Power alleging harrassment for the purpose of forcing him to provide documentation inconsistent with the procedures or requirements in effect. (Tr. 37). Georgia Power rejected Complainant's quality concern on the ground that it was not a quality item. (Tr. 38). He also filed a complaint with the Department of Labor alleging violation of the ERA.

    45. It is Complainant's position that, since the cables involved were Class 1E cables, the hold tag pertaining to them put the integrity of the cables in question Complainant does not know whether the integrity of the cable was in fact compromised. Complaint did not document any question or problem on safety issues relating to PX 9. (Tr. 39, 92, 96).

    46. Complainant further asserts that in his meeting with A. I. Page that he had offered to write up a deviation report against the integrity of the cable and reference that deviation report in the "Hold Tag Removed By" block which he would then sign and date. (Tr. 36-37, 61-62).

    47. RX 8 dared October 18, 1985, Complainant's letter to the Department of Labor, complaining with respect to his suspension does not mention his concern with respect to the integrity of the cable in question. Mr. Durham in fact never raised the integrity of the cable issue with the Department of Labor. (Tr. 63-64, 68).

    48. Mr. Durham's quality concern filed, after his suspension, with the Georgia Power Company's Quality Concern Program also contained no reference to the integrity of the cable issue. Nor did he mention it to the Quality Concern people when he filed the Complaint. (Tr. 64-65).

    49. Complainant also failed to raise the integrity of the cable issue in his deposition preceding the hearing in this proceeding. (Tr. 66-67).

    50. Complainant now feels he should have filed a deviation report with respect to the integrity of the cable being indeterminate at the time rather than just submitting it with the notation "No Hold Tags Found". (Tr. 94-95).

    51. Georgia Power Company's and Butler officials deny that Complainant raised the issue of the cable's integrity with them prior to his suspension. (Tr. 158-159, 169-17O, 186, 199, 220).

    The threshold issue in this case is whether the refusal of Joseph W. Durham, the Complainant, to complete a Quality Control form at a nuclear plant construction site constitutes protected activity within the meaning of the EPA.

    Joseph Durham is a Quality Inspector employed at the Vogtle Nuclear Plant construction site co-owned and operated by Georgia Power Company which is also responsible for the design and construction of that plant. Mr. Durham is an employee of the Butler Service Group which is a subcontractor furnishing technical support personnel for operations at the Vogtle plant. Butler

employees assigned to plant Vogtle work under the direction and supervision of Georgia Power Company. Georgia Power currently holds an operating license from the Nuclear Regulatory Commission.

    On September 16, 1985 Complainant was inspecting the installation of Class 1E cables which have safety related functions. Previously another quality control inspector had determined that the cables in question were too short to perform their assigned function and they were noted as not conforming in a deviation report. The deviation report further noted that this inspector had put a hold tag on the cables to indicate that they were not conforming and that no work was to be performed on them until the disposition was approved. A deviation report was submitted to Georgia Power's engineering department for a solution of the condition noted as nonconforming. After engineering prescribed a solution for the nonconformance, Mr. Durham, inspected the re-work pursuant to the disposition prescribed by engineering on September 16, 1985. When he inspected the site he did not find the hold tag on the cables which he had expected to find on the basis of the deviation report.

    Section 6.3.8 of the Vogtle Field Procedure Manual GD-T-01 Revision 12 in effect on that date required that the "Q.C. removes the hold tags, and insures that all tags have been accounted for, signs, states number removed, and dates in the 'Hold Tag Removed By/Dare/No.' block on the Deviation Report." Only Quality Control Inspectors are authorized to remove such tags. Complainant, since he could not find the tag, noted "No Hold Tags Found" in the "Hold Tag Removed By" block on the deviation report. He signed the bottom of the deviation report indicating that he found the installation of the cables satisfactory and in accordance with on site procedures as well as the solution prescribed by engineering in connection with the deviation report.

    On completion of the inspection, Complainant took the form to Robert Colson his senior inspector for further processing. on September 26, 1985 Mr. Colson requested Complainant to date and sign the "Hold Tag Removed By" block on the deviation report. Complainant refused on the ground that to do so would violate the requirements of Revision No. 12 that the inspector removing the hold tag account for them. Mr. Durham adhered to this position in the course of several meetings with his superiors in the Quality Control department.

    Complainant's superiors in those meetings explained their interpretations of the procedures that a signature in the block by a Quality Control Inspector was necessary to show that there were no hold tags on the equipment inhibiting

or precluding further work. In their view it vas necessary to complete the form so work on the site could proceed. Mr. Durham refused to accept that interpretation persisted in his refusal to sign and date the block, and was warned that his conduct would be construed as insubordination. Complainant persisted in his refusal stating that since the hold tag could not the found he could not account for the tag as required by Revision 12. Subsequently he was in fact suspended for five days for insubordination because he refused to sign and date the "Hold Tag Removed By" block as instructed.

    Complainant asserts that his refusal to sign the "Hold Tag Removed By" block is procedures activity under the ERA since he refused to violate applicable procedures concerning documentation with respect to hold tags. In this connection he contends that the rationale for applying hold tags was to insure that the items were controlled and worked on only in an authorized manner. He claim that since "he could not find a hold tag, he could not account for it by signing his name in the block as procedure dictated." He further asserts that was concerned that with the unauthorized removal of the hold tag or at some point after the tag was removed that the cable could have been damaged in some way not detectable by the eye and therefore the integrity of the cable was in question. (Complainant's Brief p. 10). In short, Complainant urges that his refusal to complete the form as requested was designed to protect the integrity of the quality control procedures in effect at the plant and that in addition he raised a quality and safety issue with respect to the cable itself, namely, the question of its determinate integrity. In summary, Complainant asserts that his concern with safety and quality was "implicit in his insistence on following the written procedure of the Quality Control department". (Complainant's Brief p. 11). In this connection Complainant has also alleged that his signature in the block under the notation "No Hold Tags Found" would be a falsification under the regulations.

    Employer urges that Mr. Durham's conduct did not constitute protected activity since his refusal to sign the "Hold Tag Removed By" block did not constitute a quality or safety complaint. (Employer's Brief p. 49).

    In short, Complainant advances two arguments in support of his claim that he was engaged in protected activity resulting in his suspension. He first contends that his refusal to complete the form to avoid a violation of the applicable quality control procedures is protected. He also urges that his refusal to sign the block in question raised a question concerning the indeterminate integrity of the cables and is therefore protected for that reason. Each contention will be considered in turn.

    If management had requested Complainant to falsify a quality control document or violate quality control procedures his refusal would constitute protected activity. Such a refusal would be designed to protect the overall integrity of the applicable quality control and inspection procedures. As such it could be construed as the initial step in instituting a proceeding under 42 U.S.C. §5851 of the ERA. (See generally Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984); Kansas Gas and Electric, 780 F.2d 1505 (10th Cir. 1985); Lockert v. Pullman Power Products, 84-ERA-15 (Slip Op. Decision of the Secretary of Labor 1985). That did not occur in this case however. Contrary to Complaint's assertion his signature and date on the "Hold Tag Removed By" block under the notation "No Hold Tags Found" would not be a falsification. Mr. Durham himself admitted that the statement was literally true.

    The record further shows that Revision 12 of GT-0-01 pertaining to the accounting of hold tags does not apply to situations where hold tags are missing. Complainant admitted this fact and further conceded that his supervisors were not telling him to violate a procedure but what to do in a situation not covered by that procedure. (Tr. 70-71). In this connection it should further be noted that Mr. Durham in another case where a hold tag was missing noted on the "Hold Tag Removed By" block that the hold was missing and signed and dated the block.

    Inspectors under the Revision 12 procedures were in fact trained to put "0" or "none" in the "Hold Tag Removed By Block" when no hold tags were found. Finally, management under the applicable procedures has a right to interpret these procedures and where necessary to authorize deviations therefrom provided such deviations satisfy the intent of the procedures.

    Under the circumstance, Complainant's difference of opinion with management as to the appropriate interpretation of Revision 12 cannot be considered protected activity within the scope of ERA. While Mr. Durham's initial refusal may have been motivated by a sincere belief that his signature in the block would violate the applicable procedures, and thus protected he could no longer assert that as a defense once supervisors had explained to him their interpretation of the procedure and the necessity for following their instructions. See generally, Pensyl v. Catalytic, Inc., 83 ERA 2 (Decision of the Secretary 1984, Slip Op. pp. 7-8).

would have been logical for him to raise that critical issue in those documents. These documents are essentially contemporaneous with the events under consideration. Their silence on this issue compels the inference that Complainant did not raise that issue prior to his suspension in connection with his refusal to sign the block. The testimony of Complainant's officials consistent with the inferences to be drawn from the contemporaneous documents that Mr. Durham had not raised the indeterminate integrity issue is more persuasive. In any event, the record compels a finding that whatever Mr. Durham's motivation his superiors were unaware that he was raising a quality issue in connection with the cables.

    Finally, Complainant concedes that he would have signed and dated the block if the Revision 13 procedure with the added word "available" had been in effect. This admission further compels the inference that his refusal to sign was motivated simply by his disagreement concerning the interpretation of the procedures rather than a quality concern with respect to the cables themselves. If in fact the integrity of the cables was his concern because of what may have transpired after the loss of the hold tags, then it would be irrelevant whether Revision 13 or 12 were in effect. The logical procedure for Mr. Durham would have been to file a deviation report on the integrity of the cables, a step which he failed to take.

    For the foregoing reasons, the record as a whole supports a finding that Complainant refused to sign the block not because of concern pertaining to the cables' indeterminate integrity but because he disagreed with management on the interpretation and application of Revision 12. As already noted, Mr. Durham's refusal to sign the "Hold Tag Removed By" block on procedural grounds is not protected activity within the meaning of the ERA. Accordingly Complainant has failed to establish a prima facie case that his suspension was in retaliation for protected activity. The complainant should therefore be dismissed.

    To sum up, this episode seems considerably overblown. As one of the participants noted "If Joe had held his cool better, it wouldn't have gone this far. Possibly both sides should have kept their cool better." (PX 13, D3, 4-4 In Camera).

    It is ordered that the Complaint of Joseph W. Durham be, and it hereby is, dismissed.

       THEODOR P. VON BRAND
       Administrative Law Judge

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