Nuclear Employer Alert

  
 

Retaliation Confirmatory Order At Vogtle

By Donn C. Meindertsma

The NRC has issued a Confirmatory Order to a former manager at Southern Nuclear’s Vogtle 3 and 4 construction site for discriminating against a mechanical planner. The Order follows an investigation by the Office of Investigations and conciliation via the NRC’s alternative dispute resolution process. As discussed below, this enforcement action is notable in that it seems to painstakingly avoid suggesting that the manager intentionally discriminated against the planner because he raised safety concerns.

According to his LinkedIn page, the manager, Thomas Saunders, is a relatively young employee with an engineering degree. He started working at the Vogtle construction project—his first job in the nuclear industry—nine years ago. The alleged discrimination occurred in mid-2017, when Saunders was the Contracts and Procurement Director for Construction at the site. Presumably by that time, Saunders had received ample training on SCWE expectations and non-discrimination requirements.

According to the NRC’s press release: "The NRC concluded [that Saunders] violated the agency’s employee protection regulations by having the employee removed from the Vogtle site in July 2017 knowing the employee had previously raised concerns about safety-related welding and other issues. The employee’s employment was terminated the next day."

Note well: this language does not say that Saunders removed the planner “because” he had raised issues; only that he knew the planner had raised issues. The Order similarly states: “At the time he had the mechanical planner removed, Mr. Saunders was aware that the mechanical planner had engaged in protected activity by raising numerous safety-related welding and module fit-up concerns” (emphasis added). Of course, most nuclear employees raise issues at some time or another. Many times, managers who discipline or discharge a worker may “know” that he or she had raised issues. The question, however, is whether the adverse action is taken because of the protected activity. As the NRC’s regulations state: “The prohibition [against discrimination] applies when the adverse action occurs because the employee has engaged in protected activities. An employee's engagement in protected activities does not automatically render him or her immune from discharge or discipline for legitimate reasons or from adverse action dictated by nonprohibited considerations.”

Certainly, knowledge that an employee raised safety concerns is not a sufficient basis for a discrimination finding. Unfortunately, various press accounts regarding the Order exhibit confusion about the discrimination standard. An August Chronicle piece, for example, states that Saunders' request to remove the planner from the site "was a violation of employee protection since he was aware the employee had engaged in protected activity by raising the safety concerns."

The NRC's press release suggests that Saunders had the planner removed the day after he raised concerns (“the next day”). The Order suggests something different. It indicates that the planner worked at the site for a while in 2014 and 2015. During that stint, he “raised numerous safety-related welding and module fit-up concerns.” The planner returned to work at Vogtle on July 11, 2017, and Saunders had him removed two days later—at least two years after the planner had raised concerns.

Saunders’ commitments under the Order are interesting. When it finds that an individual discriminated against a worker, the NRC typically considers banning the individual from working in the industry for a set period of time. Saunders’ commitments in the Order are largely the opposite: he must make numerous written and oral presentations to the industry to discuss the error of his ways. He will be quite prominent in the industry.

The Order states: “Saunders acknowledges that a violation of 10 CFR 52.5 (Employee Protection) occurred.” This does not say that Saunders acknowledged that he violated the regulation, however—just that a violation "occurred." The commitments Saunders undertakes in the Order also suggest that there was no agreement during ADR that he engaged in intentional discrimination. For example, Saunders in his presentations will discuss “lessons learned regarding the importance of employee protection (to include contractors), why it is necessary to ensure proper follow-up in response [in response to what the Order does not say], and proper follow-up when evaluating any potentially adverse personnel decisions.”

In addition, Saunders must “honestly answer questions about what he failed to do (follow STAR, seek advice from management, consult with HR, and engage with the consolidated concerns department)” (emphasis added). In short, the language about Saunders’ “failures” suggests he might have been negligent by not taking all the steps he could have when he asked for the planner's release, but it does not state that he deliberately discriminated against the planner. Moreover, the NRC did not find that Saunders engaged in deliberate misconduct under 10 CFR 52.4.

In a March 7, 2019 letter, the NRC notified Southern Nuclear that OI had closed a discrimination investigation also involving Vogtle 3 and 4, without a finding of discrimination. It is not known if this investigation involved the same events or whether the NRC is considering or has considered enforcement action against the licensee based on those events. The lack of enforcement action against Southern Nuclear relating to the Saunders matter has drawn criticism from some quarters, according to a piece by the Atlanta Journal-Constitution.

This new action is not to be confused with the recent action concerning a former FPL executive named Thomas Summers, which we summarized in our September 13, 2019 Alert.

Please let us know if you have any questions about this development.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.