ML20034D559
| ML20034D559 | |
| Person / Time | |
|---|---|
| Issue date: | 02/10/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-035, SECY-93-35, NUDOCS 9302160182 | |
| Download: ML20034D559 (70) | |
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RELEASED TO THE PDR
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ADJUDICATORY ISSUE SECy-93-03s (Inf0Mation)
February 10, 1993 FOR:
The Commission FROM:
John F.
Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 01 Local Union 1515. IBEW v.
Commonwealth Edison Co.,
No. 93 CH C0794 (Circuit Court of Cook County, Ill.,
filed Jan. 27, 1993)
Plaintiff in this lawsuit is a labor union that seeks a state court order enforcing a subpoena for the testimony of six NRC employees at an arbitration proceeding.
Two months ago, acting pursuant to the NRC's "Touhv" regulations, the NRC's General Counsel had issued a letter declining to permit the testimony.
The General Counsel reasoned that there was no health and safety justification for the testimony, nor was there any showing that testimony by NRC employees was the sole means to elicit material factual information.
We have consulted with the United States Attorney's office in Chicago, which is filing papers to remove the case from state to federal court.
We then plan to prepare a motion seeking dismissal of the suit.
Attachment:
Complaint
Contact:
Carole F. Kagan 504-1620 NOTE:
TO BE MADE PUBLICLY AVAILABLE IN 10 WORKING DAYS FROM THE DATE OF THIS PAPER I
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t The Commission 2
i DeLoatch v.
Selin, Civ. No. 93-0163 (D.D.C.,-filed l
Jan. 26, 1993)
This is a Title VII lawsuit alleging race, gender and
.l age discrimination in a promotion decision in the NRC's Division of Contracts and Property Management.
I Plaintiff's effort to obtain administrative relief proved unsuccessful, and he now seeks a remedy in federal district court in Washington, D.C.
Plaintiff may have filed suit in the wrong court, as discrimination complaints against the NRC for headquarters activities normally lie in the federal l
district court for Maryland (in Baltimore).
We will work with the United States Attorney's office both on
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this procedural problem and on the merits of the case.
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Attachment:
Complaint j
Contact:
Marvin L.
Itzkowitz j
504-1566 Combustion Enaineerina, Inc.
v.
NRC, No. 93-1094 (D.C.
)
l Cir., filed Jan. 29, 1993) i This suit challenges the NRC's denial of Combustion i
Engineering's request for an exemption from paying
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annual charges for fiscal year 1992.
CE already is challenging the NRC's denial of an exemption for fiscal year 1991.
See Litigation Report 1992-02, SECY-92-028.
l That case has been argued and is awaiting decision by i
the D.C.
Circuit.
This latest suit was filed to protect CE's position should it prevail on its 1991
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claim.
CE has asked the court of appeals to hold its l
new suit in abeyance.
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Attachment:
i Petition for Review i
Contact:
L. Michael Rafky 504-1974 i
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Cordes, Jr.
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ATTACHMENT -
1 Local Union 1515. IBEW v.
Commonwealth Edison Co.,
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No.-93 CH 00794 (Circuit Court of Cook Coultty, Ill.,
filed Jan. 27, 1993) j i
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4 IN THE CIRCUIT COURT OF COOK COUNTY STATE OF ILLINOIS LOCAL UNION 1515, INTERNATIONAL
)
BROTHERHOOD OF ELECTRICAL WORKERS; )
LOCAL UNION 1460, INTERNATIONAL
)
BROTHERHOOD OF ELECTRICAL WORKERS; )
LOCAL UNION 1461, INTERNATIONAL
)
BROTHERHOOD OF ELECTRICAL WORKERS; )
and LOCAL UNION 1469, INTERNATIONAL)
BROTHERHOOD OF ELECTRICAL WORKERS. )
)
Plaintiffs,
)
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vs.
)
)
No.
COKMONWEALTH EDISON COMPANY,
)
Serve:
J.
Stanley Graves Div._
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Commonwealth Edison Company )
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1st National Bank Building
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10 S.
Dearborn
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Chicago, Illinois 60603
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and
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UNITED STATES NUCLEAR REGULATORY
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COMNISSION, REGION III.
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Serve:
A.
Bert Davis, Regional
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Administrator,
)
United States Nuclear
)
Regulatory Commision,
)
Region III,
)
790 Roosevelt Road
)
Glen Ellyn, IL 60137
)
)
Defendants,
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COMPLAINT IN CHJdiCERY TO ERPORCE BUBPOENAS I
NOW COME Plaintiffs Local Union 1515, International Brother-I hood of Electrical Workers; Local 1460, International Brotherhood of Electrical Wor':ers; Local 1461, International Brotherhood of
Electrical Workers; and Local 1469, International Brotherhood of Electrical Workers, by their attorneys, and for their cause of action against Defendants Commonwealth Edison Company and United States Nuclear Regulatory Commission, Region III, state as follows:
1.
Plaintiffs Local Union 1515, International Brotherhood of Electrical Workers (hereafter referred to as " Local 1515, IBEW");
Local Union 1460, International Brotherhood of Electrical Workers (hereafter referred to as " Local 1460,IBEW"); Local Union 1461, International Brotherhood of Electrical Workers (hereaf ter referred to as " Local 1461, IBEW"); and Local Union 1469, International Brotherhood of Electrical Workers (hereaf ter referred to as " Local 1469, IBEW") bring their cause of action against Defendants under Chapter 10, Paragraph 307 (a) through (d), Uniform Arbitration Act of the state of Illinois; Supreme Court Rules 219 and 237; and the Code of Civil Procedure, Section2-209.1.
2.
Defendant Commonwealth Edison Company (hereaf ter referred
- to as " Company") is a public utility engaged in the generation, transmission, distribution and sale of electricity in the State of Illinois, and its main office is located in the City of Chicago, County of Cook, State of Illinois.
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3.
Defendant United States Nuclear Regulatory Co&7ission, l
Region III (hereafter referred to as "NRC Region III") is an a
agency of the United States Covernment whoce main office is located in Glen Ellyn, Du Page County, State of Illinois.
4.
Locals 1515, 1460, 1461, and 1469, IBEW represent certain employees of the Company who work at the Company's Dresden, Quad Cities, Zion, Braidwood, La Salle, and Byron nuclear generating
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stations; and the wages, hours and terms and conditions of employ-l ment of the employees are set forth in a Collective Bargaining Agreement, ef fective April 1, 1992 through March 31, 1994 (here-after referred to as the "1992-94 Agreement").
5.
The Nuclear Reglulatory Commission regulates nuclear gen-f erating stations and issues licenses to public utilities to operate nuclear generating stations.
The Nuclear Regulator Commission has issued operating licenses to the Company to operate the Dresden, j
Quad Cities, Zion, Braidwood, La Salle, and Byron nuclear genor-ating stations.
6.
The Nuc1 car Regulatory Commission has issued policies, t
guidelines, and other written statements concerning matters such t
as safety, fatigue and hours worked by operating personnel, and i
quality assurance programs for licensees of operating plants.
l 7.
Defendant NRC Region III in the past and at the present time has assigned engineers, inspectors, and other personnel to work in the Dresden, Quad Cities, Zion, Braidwood, La Salle, and Byron nuclear generating stations of the company to monitor, in-t spect, and to perform related duties and assignments in connection with the policies, guidelines, and other written statement issued
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by the Nuclear Regulatory Commission concerning matters such as safety, fatigue and hours worked by operating personnel, and quality assurance prograr.s.
8.
Locals 1515, 1460, 1461, and 1469, IBEW and the Company i
have negotiated collective bargaining agreements for many years, i
t including the current 1992-94 Agreement, and these collective 1
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bargaining agreements contain a grievance and arbitrtion procedure in ARTICLE VIII.
A copy of ARTICLE VIII, paragraphs 1 through 12 is attached hereto as Attachment "A".
9.
On or about September 6, 1991, Locals 1515, 1460, 1461, and 1469, IDEW filed a grievance with the Company (Case No.QC-50 i
- 89) alleging that the Company had violated the collective bargain-ing agreement and past practice in connection with hours of work, overtime, compensation, and other terms and conditions of employ-ment.
A copy of the grievance is attached hereto as Attachment "B".
- 10. The grievance was processed through the Steps of the
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grievance procedure, and when the parties were unable to resolve f
I the grievanco, the grievance was processed to arbitration in i
accordance with the provisions of ARTICLE VIII.
- 11. An arbitration hearing was initially scheduled for Sep-i tomber 1 and 2, 1992; but, at the request of the Company, it was continued to December 10 and 11, 1992, to be held at the Midland Hotel, 172 West Adams, Chicago, Illinois.
- 12. The Arbitrator selected by the Company and Locals 1515, 1460, 1461, and 1469, IBEW to conduct the arbitrtion hearing and to render a final and binding decision as provided for in ARTICLE VIII is Steven Briggs.
13.
Pursuant to Chapter 10, Paragraph 107, of the Uniforn Arbitration Act, Locals 1515, 14 60, 14 61, and 14 69, IBEW requested of Arbitrator Steven Briggs that he issue Subpoenas Ad Testifican-dum for the attendance of witnesses at the arbitration hearing,,
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and Arbitrator Briggs issued the Subpoenas Ad Testificandum for witnesses to appear at the arbitration hearing.
- 14. On November 6, 1992, attorney Charles A. Werner on behalf of Plaintiffs Locals 1515, 1460, 1461, and 1469, IBEW, pursuant to 10 CFR Ch. 1, Subpart D, Paragraphs 9.200 through 9.201, sent a letter to William C. Parler, General Counsel of the United States Nuclear Regulatory Commission, Washington, D.C.,
informing the Nuclear Regulatory Commission of the arbitra-tion hearing scheduled for December 10 and 11, 1992, and requested that representatives of the NRC be available for testimony at the i
arbitration hearing concerning documents issued by the NRC which are involved in the arbitration hearing between Plaintif fs and the Company.
A copy of the letter is attached hereto as Attachment "C".
- 15. Approximately 10 days to 2 weeks later, an attorney on behalf of the Nuclear Regulatory Commission spoke to Charles Werner about the November 6, 1992 letter, and inquired about the background of the request, the nature of the hearing, and the need for the appearance of representatives of the Nuclear Reguia-tory commission at the arbitration hearing.
The NRC attorney was informed that the issues involved in the arbitration hearing in-volved saf ety and health, and fitness for duty, and that Plaintiffs requested testimony from representatives of Defendant NRC Region III who were stationed in the six (6) nuclear generating stations concerning the policies and guidelines of the NRC which were being cited and relied on by the Company in violation of the terms and
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conditions of the collection bargaining agreement and past f
practice.
16.
The attorney for the NRC did not request that Plaintiffs submit either an af fidvit or a detailed statement of the testimony l
sought from the NRC Region III representatives at the arbitration hearing scheduled for December 10 and 11, 1992.
17.
Subsequently Plaintiffs served the Subpoenas Ad Testifi-candum on NRC Region III representatives Wayne Kroop, Tom Taylor, Dave Hills, Steve DuPont, Walt Roger, and Jim Smith, for appear-t ance and testimony at the arbitration hearing scheduled for Decem-ber 10 and 11, 1992.
All six (6) of the NRC Region III representa-tives were served their subpoenas more than seven (7) days prior to their scheduled appearance at the arbitration hearing, and each of the six NRC Region III representatives received a check for witness fee and mileage in accordance with the fees for attendance in the Circuit Court of Cook County.
Copies of the Subpoenas are attached hereto as Attachment "D".
l 18.
The arbitration hearing between Plaintiffs and the Com-pany convened on December 10, 1992, at the Midland Hotel, 172 W.
Adams, Chicago, Illinois, at 10:00 AM before Arbitrator Briggs.
I The arbitration hearing was opened by Arbitrator Briggs, Opening Statements were made by the attorneys for Plaintiffs and the Com-pany, and Plaintif fs began their presentation by of f ering exhibits i
into evidence.
j 19.
None of the six (G) representatives of Defendant NRC l
Region III who were issued Subpoenas Ad Testificandum appeared I
1 '
S at the arbitration hearing, and there was no attorney or repre-sentative of Defendant NRC Region III present at the hearing.
20.
No attorney appeared on behalf of the six (6) witnesses at the hearing to move that the Subpoenas be quashed, and there were no allegations made at the hearing that the subpoenas were not properly issued.
- 21. The attorney for the Plaintiffs stated to Arbitrator Briggs at the arbitration hearing that Plaintiffs considered the testimony of the NRC Region III representatives to be critical to the presentation of their case.
22.
Arbitrator Briggs acknowledged that the subpoenas Ad Testificandum had been requested and issued in accordance with Chapter 10, Uniform Arbitration Act; but that only a Circuit Court could enforce the Subpoenas and order the witnesses to appear at the arbitration hearing.
23.
The arbitration hearing was then adjourned so that the Plaintiffs could seek enforcement of the Subpoenas in Court.
24.
Plaintiffs have no other remedy at law or equity to compel the enforcement of the Subpoenas and the appearance of the witnesses at the arbitration hearing.
25.
plaintiffs have been informed that Defendant NRC Region III will not permit the voluntary appearance of the requested representatives at the arbitration hearing, and that NRC Region III had directed the subpoened witnesses not to appear at the arbitra-tion hearing on December lo and11, 1992.
26.
Plaintif fs submit that without the appearance and testi-
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nony of the NRC Region III at the arbitration hearing, that they will not be able to fully and adequately present their case in-volving the issues concerning safety and health, and fitness for duty of the employees of the company represented by Plaintiffs.
WHEREFORE, Plaintiffs pray that the Court forthwith enter its Order ordering Defendant NRC Region III and its employees who were issued Subpoenas Ad Testificandum in accordance with Chapter i
10, Paragraph 107, Uniform Arbitration Act, to appear and testify i
at the arbitration hearing between Plaintiffs and the Company; that Defendant NRC Region III pay Plaintiffs their attorneys fees, costs and expenses ressulting from the refusal of the subpoened representatives of Defendant NRC Region III to appear and testify i
at the arbitration hearing and the necessity of Plaintiffs to bring this law suit; and for such other and further relief as to the Court seems just.
Attorneys for Plaintiffs S
CHAT, COOK & WERNER 4y k
Charles A.'Werner, MBE 17072 Afwa Neal M.
- Davis, IL /06202995 1221 Locuct, suite 250 St. Louis, MO 63103 (314) 621-2626
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LotScwood IL #70615 805 Touhy, Suite 200 Park Ridge, IL 60068 (708) 825-1965
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15e le 1!! tCo-nmaJI Asis,Ic 1 til(Comnmordi C
Nuerher ruf wimld result m a rate higher than the schedule maximum of the job In n'h m Chnf Src'a nrdt s tauthcation to whkh he is assigned.
Waukegan.
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When a qualilied employe is tempwarily awgneo d and woiks in a I
management joh t lanification he shall be paid for that day a rate beed R"'k E"*' U.'"."f opm his present tate plus 14 00 per day.
Joliet.
7 Awipornents of fetit hours or more in one day shallle co wicered a llenvey Kankakee Crestwml.
4 t u11 day smdtr ihis Set t hm. No payment will be made for such terrana ry Streator pmti:ic.
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.mirnmerh of they amount to Icw than four hours in one day.
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% ben rummtmg an employe wbo has had ettensive upgrading over "3"I *' ' *P "> ""
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I an es tcnded period of time.comideration will he given.st eheemploye's tetpest;to allowing time etedtt in the higher job classification not to I'""E' O'} "P**"
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i Stewards.
neced two time steps.
( lt shall be one of the du'ies of the Stewards and ChieIStewards to 1 An employe returning from a military leave of absence, who is reeng4y ed m im former job classincation. or a job classification w hich
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- n not higher than his formerjob clautfication. shall receive the rate of
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I p.ny pmvided forin the then esisting time steps of the job classification,
- 5. Simuld any dnpute or difference arise between the Company and tak1"F nto account the time creths which hnJ accrued when he left for the Unnm or ds roembers as to the interpretation or applit acim of any of i
nutie wy wrvice rlin the perial of his absence because of military the provisumt of thn Agrrement er with reyect iojob working cumdetions, wtvite.
the term werking condttium bemg limited tothme elementsconcemed with the houn when an employe is at work and the acts required of him during such hours, the dnpute or defTerence shall be willed through the grievance pmcedure, provided that no grievance will be cornidered AR11CLE Vill which is more than four weeks old A dopote as to whether a p,irticular Arevare-Unewerr-4rhunarie, dnagreement is a pnycr subjett for the grievance procedure shalliswif he treated as a grievance. Ihe steps m the grievance pmcedme are:
- 1. There shall be a rea umable number of Stewards.not to exceed 167 Step I.
ThediTuse or dil ference shall be presented a nd first dncened for aff errployes covered by this Agreement, who shallbe selected by the by the employe concemed and the immediate Supervism.The I.m at Umon they reptewnt. Esc h Steward shall N auigned to a specific employ e shah be amn5panied by a Stewanf ifIhe employe so w och getmper work groups and in generailhejurisdictionof one Steward req = c k shall m* overlap that of any other Steward.The Union shall fumish the Step 2.
If the dispute or difTerence is not satisfactonly wetted in Step Company with a Int of the names of the Stewards and the work groups I, it shall be reduced to writing and presented by the Steward they represent.
to the Divit, ion Commercial Manager, Division Operating l
- 2. Chki Ste wards shall be selected by the local Union they repesent Manager, Assistant Supenntendent,or Super miendent, as the T he Umon rhall fumish the Company with a list of the names of Ibc case may be, in the area in which the employe wwks. The emptown selected as Chief Stewards.
management mprewntative, who will be accompanied by the Industrial Relatiem Representative.shall discuwihe grievance 1be mimher of Cheef Stewards shall be as follows:
wrth the Steward. who may be accompanied by the Chief b
Steward having jurisdictren, within ten (IO) wmkmg days
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a fter receipt of the gric varce. Eithet party may be accompanied by one (1) additional representative The manapern,eg f.
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t, h m te t 111 tCmtmuch Argn 4, yggg g(,,,;,,,,,g; tepresentative shall give hn amwer within Gve (5) wmking reptesentatives of the Ucion Should this Arbitration Board days alter the Step 2 discuwion, tv unable 1o agree on any rnatter hefore them within forty.Five Step 1 If the dnpute or differerwe is not satiefactorily sented m 54ep (45) wmking days she appnintment of r impanial aibitrator
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shall be made inmi a list fumished to not les under the 2.it shallbe presented tothe Desion Vice nesident Station Manager.or plant Manager by the hesident of the cenpinye's procedure provided in the Veluntary Labor Arbitratim Rules Inal union.ne Division Vice hesident Statim Manater, of the American Arbitration Aswciation. he list shall rv Ptant Manager and the lhvisien irwiuerial Relations M aidter emtsin the navnes of 15 nrbitrators all whom are members of and the General Office later Relations Rerrtsentative will the National Academy of Arbitrators. No arbitrator shall bc drwuw the grievance with the President of the Local Union, erwtuded in the hst who has teen selected to act er is acting as~
who may be acrompamed by the Chief Stewerd and Steward the impanial arbitrator in any other perwhng labor arbitration mvolved, within hiteen (15) working days after receipt of the between the rempany and System Cmmcd U 25 or any of gnevance. Either party may be anompariied by one (I) their local Unitms. Each pany will remove no note than I,
seven of the arbitrators from the list and return it to the additeenal r presentative. The management representative i
shall give his answer within five (5) working days after the Amencan Arbitration Anociation. Whenthe appointment of 5ttp 3 distinsion.
an impanial arbitrator is made under such rules the arbitration au cmnlutted under the Voluntary Labor Arbitration Step 4 If the dnpute or difference is not satisfactorily settled in Step Ru es f the American Arbitration Association. Alldecisions 3 it shall be sent to the Director of tabor Reletions by the terw cred by the Arbitratmn floant shall be Gnal and binding besident of the Local Umert ne appropriate Company E *" '
Vice hesident shall, within thirty (.t0) working days mect and dncins IFe matter in dispute with a committee compmed
- 6. Ire all cases in this Article where a cenain numter of working days t
as followv is u,pulated the said nurnber nf days shall not mclude Saturdays, Sundays, or holidays.
Representatives of the Union.
The President from cach ofite seven Local Uniom cos ered he time speciGed for each uep in the gnevance procedure may be by this Agtrement and the artwpriate Chief Steward for emended by nminal agreement. By enutual consent, any step in the ihe Depaetment in whnh the di'pute or difference has grievance proudure may be bypawed.
.nii.cn, w ho may be accompanieel by a representative of the
- 7. At each step of the gnevante pra:edure, any appoimed or elected II""he'f"'"l umon representative may serve as an attemate. Ilowever, any allemate Rep esentatives of the Company; appomred for the representative of the Brotherhood will not qualify for The Vrce hesident of the Company.
pay orider Article Vill, Section 12.
%c ihrector ef tabor Relations.
Al each step or the griev ance procedere, the Company may appoint an
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Adthtional Company represematives up to the number of attemate for any of its tepresentatives.
Unien reptewntatises as stated almve.
- 8. At each step above Siep I in the grievance procedure the anwer I hc Company shall give itt ans w er with m Hiteen ( 15) wor k i1g given by the Company shall be in writmg. In case the Unim es not days atser the date of this diwuwion satisGed with the Company's reply,it shall present within Hfteen (IM work ing days a w ritten request for funher consnieration to the Company l
Step 5 If the dipte or difference is ma satisfacterily settled in Step
'tP'f'C"IJhse specified at the nest higber step.
j 4 it shall be refened, at the request of ettber party, to an
- 9. De Arbitration floani shall be govemed wholly by the terms of 1
Arbitration Board consisting of net move than two this Agreement and shall base no power to add or to change its tenns.
representatists of the Compan) and not triore thare two
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t,,ec 3 Each party in an arbitration proceedeng may != represented m.such raer 29 i
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i sn te t til(Comneunft Artn le 1 !!! Cwrnme,ls weeding by any person authorized in writing by such pany. Such
- 12. Pay at their baiic houity rates of pay will be allowed officially l l Inoent itivo m,ty e samine all witnewes in the pmceedings designated Unmn representatives.or their a'ternates, as pmvided for in NsA c e, for the banc work days of their b.v.ie work week whele lash of the parties in the arbitration proceedings shall hear the fees erigaged in the following steps of the grievance proce, lure-e id espem.cs of its own Arbitrators and the fees,nd esfenses of the
...Sieps t,2 and 3 opartial Arbetrator shall be borne by tvih parties, pmveded, however, Stewards..
ut the totalcompemstim of wthimpartial Arintrator shallir agreed Chief Stewardt..... ~... -....... _..
.... Steps 2. 3 and 4 nm in advance alter wbminion of the mattes in contmversy to the five local Union Preskkr ts.
..Skrs 3 amt 4 aNtrators.
ARTICII!X
- 10. In case of a grievance relative to di'.cT nary suspecion or li
.moin n.oribuharp for cavte,such grievante shall be originated as Ter"" */ A rrremrat tcp 3 in the goevance procedure, g, Thn Agree nent.when signed by the properof ficiahof the Company l'
In grievanto involving discharges,it is the objective of the parties and the Unkm and appmved by the president of the llrothedml. slut l ut the grievance will normally be toolved within 9 months of the he elfettive as of April I, IW2, for the emplo3cs on the pay roll im smd mharge. In order to accomplish this objective. if the grievance ii.
after Apnl1, IW2.
wcwcd to Step 5 and a panel of arbitrators is requested from the
- 2. The termsof the new Agreementu. hall he from April 1. IW2, to onceican Arbieratkm Awociation.the panci shallinclude the names of March 3l IW4 The Co.npany or the Union shall have the right. upm 1 :nNtratorswhoare membenof the Natiorial Academy of Arbitraux' bc Company arwi thc Unkm agree to stnke no more than 5 names tm the
} at least sisty (60) days prmt written notice.to reopen the Agreements as of March 31, IW3 for negotiatkm only of Eencrat wage thangn anel of artntrators and to rank the remaining atbitraton. If Ibc selected i
cifretive April I, IW3 Upm submnsion of a scopening notne.
ibitrartw is eof available to condutt the arbitration hearing within 2 negotiations shall begin at least forty (40) days prk>r to the scopening a
.onths of his or her seletskm, the next mutually agreeable arbitratorts) date, and if negotiation are not rescIved by the reopening date of March n the panel willle contacted for their availablity. II a tramcript of the 31, lW3 the iwoe of any general wage changenhall he determined by caring is requosed. it mmt be finnished within 3 weeks of the cime of an attuttation burd app >inted ard sefing m acctmlance w it h the rrovidem ie hearing.11y mutiul etmsent, any of the foregoing time perkwis nuy of Artkle Villof the Agreements.The Agreementofull be comnkred w ao ed er mhtied.
renewed from actm to term of one (1 ) year cat h at ihe cxpitatson date of it ibe dunges are rmt sustained in the pmcedure outlined in this March 31. IW4 onlew a wnisen notice of desire to amemf or semiirute
.: t ede. the employe 's rectmi s hall it cleared of such charges and in case the Agreements is Fiven by the Union or Company at kast nsty (M4 i fou of any wage he shall be reimimrsed for such Ims, days prk.r to the expiratitm of the term of the Agreements or of any in s a e of a grievarwe as a result of irnplementation of a department 41 rcnewal period. In the event such written emike esprewo a doire to congamiaiion or tethnological change affecting employes m the amend the Agreements, wth doired amendments shall be wt forth in
...ryaining mtit. < hanges in an existing job classification. er the l writing arxi accompany ihe notkc ol doire to amem! The parties agree i
.tabh,,hment of a new job claus!1 cation, soth grievance may be nc@ne on any propmed arnendments not ko than risma'ed at Step 4 forty t40) days priot to the end of tbe iben current ierm.and furt her agree that if said negotiatioris are rmt completed by the cirtratmo date of the j
i1. In the event of a dispute or difTerence, the parties bereto s. hall then cunent scrm of the Agreements, then the term of the Agreemems ontinue to tramart and cany on their businets in the same manner as at shall autonutically le extended so long ae, negotiatiom are m pmgrest ee inme of the raivng of the question or quotiom in thspute imtil a Changs in the Agseements can he made at any time by tuuttui mment.
tilement is teat hed thrtmgh the grievance of arbitration procedme im uled in tim Article.
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- v.,, mgg Mr. Robert E.
Cronin Sidley & Austin One First National Plaza Chicago, Illinois 60603 Re:
Case No.
51 300 0151 92 S Commonwealth Edison Company and Local Unions 1515, 1460, 1461, and 1469, IBEW Grievance:
QC-SO-89
Dear Dob:
The above-captioned arbitration is scheduled for Tuesday and Wednesday, September 1st and 2nd, 1992.
Kristin Allison, AAA Tribunal Administrator, noted in her Notice of Hearing that Arbitrator Steven Briggs has requested a Chicago location for the hearing.
The Unions do not have any objection to this arbitration hearing being held in Chicago, and suggest that the Company or the Unions make arrangements at a Chicago hotel for these two dates.
With respect to the starting time, the Unions prefer that we start at 9:00 a.m.
on Tuesday, September ist.
The parties can agree on September 1st as to the starting time for September 2nd.
It is the position of the four Unions that this case involves three basic issues:
1.
The Company violated and continues to violate the Collective Bargaining Agreement and past practice when it unilaterally instituted overtime guidelines and restrictions at the Zion, Dresden, and Quad Cities Nuc1 car Generating Stations.
2.
The Company violated and continues to violate the Collective Bargaining Agreement and past practice when it unilaterally instituted overtime guidelines and restrictions on non-safety related classifi-cations and functions at the Zion, Dresden, Quad
- cities, Braidwood,
- Byron, and LaSalle Nuclear Cencrating Stations.
i i
i
4 3.
The Company violated and continues to violate the Collective Bargaining Agreement and past practice, including the call-out procedures, forcing employcos to work overtimo, and the computation of over t irne
- hours, by its unilaterally instituted overtime guidelines and restrictions at the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSalle Nuclear Generating Stations, and the use and mis-use of its overtime Deviation Authorization Policy.
I bc3ieve that a great deal of the information and documents pertaining to this arbitration can be identified and agrcod-upon prior to the arbitration hearing.
These documents can then be stipulated as exhibits by the parties at the beginning of the hearing.
Other documents can be identified and brought to the hearing as possible exhibits; or, at least, as references -for either party and/or the Arbitrator.
With tnis in mind, I request that the Company gather together the documents listed in Attachment A to this letter, and make them available to me for my inspection on a day during the week of July 20th through 24 th, 1992.
Af ter I revicw the documents, I will make arrangements with you for the copying of those documents I will need for the arbitration hearing.
Please give me a call next week as to the date that the documents will be available.
I will probably have some Union representatives with me at the time the documents are inspected.
Ve ' truly yours, f
^lN charles A. Werner CAW:dk Enclosure cc:
Mr. Edward J.
MacDonald Mr. Richard Young, Local 1460, IDEW Mr. Edward Holden, Local 1461, IBEW Mr. Don Hardy, Local 1469, IBEW Mr. Norman Willey, Local 1515, IBEW imo s ATTACHMENT A t
Local Unions 1460, 1461, 1469, and 1515, IBEW (hereafter " Unions")
request that Commonwealth Edison Company (hereaf ter " Company") make available tothe Unions' attorney and representatives the followin-information and doc..ments in the possession of the Company for in-spection and subsequent copying in connection with the arbitration hearing in Case No. 51 300 0151 92 S between Locals 1515, 1460, 1461, i
and 1469, IDEW and Commonwealth Edison company:
l 1.
Copies of all Company documents, policies, and memorandums, from January 1, 1986 to the present time, concerning over-time policios and guidelines at the Zion, Dresden, Quad Cities, Draidwood, Dyron, and LaSalle Plants, including but not limited to the following:
i Interim Policy Statement, dated 12/31/90, a.
f b.
Changes in Implementing NRC Generic Letter 82-12 Overtime Restrictions, dated 10/21/91.
c.
Current and past copies of Nuclear operations Directive NOD OA.13.
d.
T.J.
Kovach's letter to A.Bert Davis, dated 10/4/89, i
including enclosure.
o.
Henry E.
Bliss's letter to A.B.
Davis, dated 7/5/88, including attachments.
i f.
T.J.
Kovach's letter to A.Bert Davis, dated 2/15/90.
I s
Overtime Guidelines, dated 3/15/90 g.
copies of all Nuclear Regulatory Commission (hereafter 2.
i "NRC") memos and document s to the Company concerning j
overtime at the six (6) nuclear generating stations, in-i l
cluding but not limited tos j
r 1
a.
GL 82-12 i
i b.
GL 82-02 c.
d.
GL 83-14 e.
GL B4-01 i
f.
The documents listed in Attachment II which is attached i
to this Attachment A.
Letter and attachment from Edward G. Greenman to Cordell g.
Reed, dated 8/4/88.
h.
The Diagnostic Evaluation Team Report For Zion Nuclear Station from James M. Taylor to James J. O'Connor, dated i
9/4/90.
l i.
Letter and attachments from William L.
Forney to Cordell i
a l
Reed, dated 1/4/91.
j.
Letter and attachments f rom W.D.Shafer to Cordell Reed, dated 3/29/91.
k.
Letter and attachments f rom G.C. Wright to Cordell Reed, l
dated 3/29/88.
1.
Letter and attachments to Cordell Reed regarding Dres-den, from the NRC, dated 5/18/88.
i 1
L k
t
ATTACHMENT A (Continued) i 3.
The initial, revised, and current NBC Operating Licenses for the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSalle i
Nuclear Generating Stations, including, but not limited to, NPF-11, NPF-18, NPF-19, NPF-25, NPP-29, HPF-30, NPF-37, NPF-39, NPP-48, NPF-66, NPF-72, and NPF-77.
1 4.
All NRC Inspection Reports of the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSalle Generating Stations from January 1,
1986 to the present time.
l f
5.
The Overtime Guidance Procedures for the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSalle Generating Stations, which l
I believe are marked or numbered as follows a.
Byron BAP 100-7 b.
Braidwood BwAP 100-7 c.
LaSalle LAP 100-17 d.
Dresden DAP 7-1 l
e Quad Citics QAP 300-3 e.
f.
210N ZAP-09 6.
Copies of all Overtime Deviation Authorizations, before and l
afcer the fact, for the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSalle Generating Stations from January 1, 1986 to the present time.
{
7.
Copies of reports for the Zion, Dresden, Quad Cities, Braid-i l
wood, Byron, and LaSalle Generating Stations showing the over-l time hours worked by employees covered by the Company's overtimo guidelines, and hours worked and names of employees, including i
supervisors, who exceeded the Company's overtime guidelines I
8.
Copies of all semi-annual reports and records submitted by the
{
1 six (6) nuclear generating stations to the Company's Vice President showing deviation approvals.
l 1
9.
Copies of any other documents, data, and information used or relied on by the Company in its preparation and implementation l
of overtime guidelines for employees at the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSalle Nuclear Generating Stations.
If you have questions concerning any of the above requests, please con-tact Charles A. Werner, attorney for the Unions, 1221 Locust, Suite 250, St. Louis, MO 63103 (Telephone: 314-621-2626).
i I
b d
]
t
..u s ru.. uns M1AcHkte ri d
i t
At Ditfont, PEFF;RENCES
(-
t I
I US KRC !.R. Circular No. 80-02 dated February 1.1980, References i
- Nuclear Power Plant Staff Work Hours.*
i (d):
D. O. Risenhut letter to All Licensees and Applicants dated July 31. 1980, ceneric Letter 80-29, " Interim Criteria for shif t staf fing."
D. O. Eisenhut letter to All Licensees and Applicants
!(
dated october 31. 1980. Generic Le tter 80-40.
- Post-TMI Requirements
- which transmitted NUR80 0737, including i
section I. A.I.3 shif t Manning.
[f )'
D. G. Eisenhut. letter to All Licensees and Applicants dated rebruary 8,1982, Generic 1,etter 82-02, ' Nuclear
[
Power Plant Staff Working Hours
- which transmitted
- Policy on Factors Causing Fatigue of operating Personnel at Nuclear Reactors.*
{
i D. G, Eisenhut letter to All Licensees and Applicants
[
dated June 15. 1982. Generic Letter 82-12.
- Nuclear l
Power Plant Staf f Working Hours *. which transmitted i
(
revised pages of WREO 0737 section I.A.1.3 shif t j
f Manning, and " Policy on Factors Causing Fatigue of operating Personnel at Nuclear Reactors.*
i 3
I)cVY/'
//f (h):
D. O. Eisenhut letter to All Licensees and Applicants i
dated March 7,1983, Ceneric Le t ter 83-14, " Definition I
of 'Fley Maintenance Personne1' (Clarification of Generic 1.etter B2-12).*
n6Go
(%
F) -*) ~a ?
\\
-l (1):
R. F. Janecek letter to D. G. Eisenhut dated Noveder 5.
l 1980. " Response to NRC Request Concerning Interim Criteria for Shif t Staffing."
i J. s. Abel letter to D. G. Eisenhut dated Deceder 15, (j):
1980. " Confirmation of NUR80-0737 Implementation Dates
]
and Justification for Delays."
J S. Abel letter to D. o. Eisenhut dated January 30.
(k):
1981, "Suppiercental Information Concerning Shif t Overtime, NURBO 0737 Item I. A. I.3.*
1
.f (1):
J. 5. Abel letter to D.O. Eisenhut dated April 1,1981,
- Infors.ation Concerning NUREG-0737 Items Vith subesittels l
tue by April 1,1981.*
f i
i
'8 ]
i l
?
I
PEFFSEMCES
- 2 1961.
J. S. Abel letter to D.O. Eisenhut dated May 29,
- 5upplemental Response to NUREG 0737 concerning Shift (m):
overtise.*
s 3 1 T. A. Ippolito letter to L. De10eorge dated November 10.
(n):
I.C.S. and I.C.6 yyf 1981 7NI Action Plan Items I. A.1.3(1).
gf*
As Described in NUREG-0737.*
C i-r W *<' ",-
D. Swartz letter to D.O. Eisenhut dated June 4.
1982.
(o):
E.*Pesponse to Generic Letter 82-10 concerning Various
/pf97 NUR EG 0731 I t er.s.
- Amendment No. 86 to Dresden Unit 2 Technical (p):
issued March 20. f M's.
Specifications, Item 6.2. A.14, Amendment No. 79 to Dresden Unit 3 Technical (q):
6.2.A.14 issued March 20, 1985.
Specifications. Ite:
- c. V. Schroeder letter to A. Schwencer dated May 4.
(r):
1982, *LaSalle County Station Units I and 2 Interpretation of Technical Specifications-plant Staff working Hours.-
I
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1 i
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4862K L
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I
ATTACHMENT A (7/29 /92 Suppicment) l i
No. 3 The sections and provisions of the initial, revised, and current Operating Licenses with the NRC for the Zion, Dresden, Quad Cities, Draidwood, Byron, and LaSalle Nucicar Generating Stations which contain provisions or refer to the technical specifications, overtime guidelines, fitness for duty, hours of personnel, and related matters concern-ing the scheduled and working hours of the employees at these six (6) stations (both Union employees and manago-ment).
No. 4 The sections and provisions of all NRC Inspection Reports of the Zion, Dresden, Cuad Citics, Braidwood, Byron, and LaSalle Nuclear Generating Stations f rom January 1, 1986 to the present time which contain any references to the technical specifications, overtime guidelines, fitness for duty, deviation authorizations (pre and post-act), and hours of personnel (both Union etaployees and manegement}.
k No. 5 All Overtime Guideline Procedures for the Zion, Dresdon, Quad Cities, Braidwood, Byron, and LaSalle Nuclear Generating l
Stations, included the current Procedure and all revised 5
Overtime Guideline Procedures which have been issued.
To l
the best of the Unions ' knowledge the numbers and revisions are as follows !but all revisions are requested):
L J
Byron BAP 100-7 Revisions 1 through 6.
l a.
4 b.
Braidwood BwAP 100-7 Revisions 1 through 4.
l c.
LaSalle LAP 100-17 Revisions 1 through B.
t j
d.
Dresden DAP 7-1 Povisions 1 through 12 i
DAP 7-21 Revision 0 (and other revisions) l J
e.
Quad Citics OAP 300-3 Revisions 1 through 14.
f.
Zion ZAP-09 All revisions l
All Overtime Deviation Authorizations, before and af ter the I
No. 6 fact, for the Zion, Dresden, Quad cities and LaSalle Generatinc Stations, from January 1,1986 to the present time.
~
t Copies of records maintained by the Zion, Dresden, Quad l
No. 7 Cities, Braidwood. Byron, and LaSalle Nuclear Generating l
stations f rom Jar iary 1,1986 to the present time [other i
than the Deviatis n Authorizations requested in No. 6 above]
which show employees bypassed for overtime (because of i
i alleged " tech spec out", "not available because of 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br /> /24, 24/48, or 72 over 7 days", or required to work overtime i
because of another employce's "non-availability because of l
techincal specifications" If this information in on t
computer, furnish sample of data on the computer.
(
I 4
t
[7/29/92 Supplement) continued j
ATTACilMENT A _
No. 9 Copies of any other documents, data, and information used i
or relied on by the company in J ts preparation and imple-mentation of overtimo guidelines for employces at the Zion, Dresden, Quad Cities, Draidwood, Byron, and LaSalle Nuclear Generating Stations.
i No. 10 Copies of any Operating and/or Maintenance Memorandums l
issued by the Zion, Dresden, Quad Cities, Braidwood, Byron, and LaSa]Ie Nuclear Generating Stations, and/or the Company for the implementation of GLO2-12.
No. 11 Copics of the Force Reports for the Zion, Dresden, Quad
{
Citics, Braidwood, Byron, and LaSalle Nuclear Generating Stations for each month during the period January 1,1986 to the present time.
No. 12 Turnish the nane of any employee (management or Union),
i name of station, date, and copics of all Company memorandumn
}
and records who was not fit for work and/or who caused an t
accident or safety-related incident because he/she worked in excess of 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br /> in a 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> period, 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> in a 48 hour5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> period, and/or 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> in a 7-day period.
i i
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I 4
i 4
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1
.n...
.,n-DNION EXH1311 DETORC STEVEN DRIGGS, ARBITRATOR 1
e * * * *
- e e e * *
- A In the Matter of Arbitration Between:
COMMONWEALTH EDISON COMPANY, Grv. No. QC-50-89 and Case No.
LOCAL UNIONS 1460, 1461, 1469 and 51 300 0151 92 S 1515, IBEW SUBPOENA AD TESTITICANDUM TO:
"Jalt Rodgers NRC Engineer, % Dresden Nuclear Generating Station r
You are commanded, that setting aside all manner of excuse and delay, to appear and give oral testimony under oath before Steven Briggs, Arbitrator, on the 11 day of December 1992, at 9:00 A.M.
at The Midland Hotel, 172 W. Adams, Room (tba) Chicago, Illinois.
This Subpoena Ad Testificandum is issued in accordance with the authority granted to Arbitrators under Ill.Rev. Stat.
- 1991, 1
Ch.10, Par.107.
b day of August, 1992.
Issued this x-Steven Briggs, Arb2ffator 13310.1 s
I
m.
UNION EIHlBdh
~
BEFORE STEVEN BRIGGS, ARBITRATOR l
In the Matter of Arbitration Between:
COMMONWEALTH EDISON COMPANY, Grv. No. QC-50-89 and Case No.
51
~) 0 0 0151 92 S LOCAL UNIONS 1460, 1461, 1469 and 1515, IBEW
- m SUBPOENA AD TESTIFICANDUM TO:
STEVIE DL'PONT NRC Engineer, % Braidwood Nuclear Generating Station You are commanded, that setting aside all manner of excuse and delay, to appear and give oral testimony under oath before Steven Briggs, Arbitrator, on the lithday of December,1992, at 9:00 A.M.
at the Midland Hotel, 172 West Adams St.
, Chicago, Illinois.
This Subpoena Ad Testificandum is issued in accordance with the authority granted to-Arbitrators under Ill.Rev. Stat.
- 1991, Ch.10, Par.107.
h day of August, 1992.
Issued this kn Steven Briggs, 6/bitrator bd b
l D 4s-O 8/
Twv/s KWG
>==
l
%!CN E1HIBIT. YQ _
DEFORE STEVEN BRICCS, ARDITRATOR In the Matter of Arbitration Between:
COMMONWEALTH EDISON COMPANY, I
Grv. No. QC-50-89 and Case No.
LOCAL UNIONS 1460, 1461, 1469 and S1 300 0151 92 S 1515,.IBEW
_SU_BPOENA AD TESTITICANDUM TO:
DAvr F15 t A NRC Engineer, t LaSalle Nuclear Generating Station You are commanded, that setting aside all manner of excuse and delay, to appear and give oral testinony under oath before Steven Briggs, Arbitrator, on the llth day of December 1992, at 9:00 AM, at the Midland Hotel,172 West Adams St.
, Chicago, Illinois.
This Subpoena Ad Testificandum is issued in accordance with the authority granted to Arbitrators under Ill.Rev. Stat.
- 1991, i
Ch.10, Par.107.
lN Issued this b
day of August, 1992.
'C/0
.Steven Briggs, Arbigtor k
i t - >s -9 9-i5Y MAM 13 J D u d (r e
\\
NION EXHIBir P( [
BEFORE STEVEN BRIGCS, ARBITRATOR 1
In the Matter of. Arbitration Between:
\\
r COMMONWEALTH EDISON COMPANY, Crv. No. QC-50-89 and Case No.
LOCAL UNIONS 1460, 1461, 1469 and
$1 300 0151 92 S-d 1515, IDEW
)
SUBPOENA A D_ TESTIFICANDUM TO:
UIM SM ' YH NRC Enginecr, t Zion Nucioar Generating Station t
You are co:rsanded, that setting aside all z:anner of excuse ar.d
}
}
f delay, to appear and give oral testirnony under oath before steven Briggs, Arbitrator, on the 10thday of Decenber,1992, at 1:30 P.M.
at Mini A+Ja Arne -
l'iz-1J. Aosas
, Ch1cago,1111noio.
7 I
This Subpoena Ad Testificandum is issued in accordance with l
the authority granted to Arbitrators under Ill.Rev. Stat. 1991, j
Ch.10, Par.107.
/
Issued this L4 day of August, 1992.
Gl>
stevenBriggs,Ar{ltrator i
8 9
u2io.:
i h
i i
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[
.u.
is...
UNION EMiBil b -
BEFORE STEVEN BRIGGS, ARBITRATOR 1
e e e e e e e e e e * * * * ** ****e In the Matter of Arbitration Between:
e COMMOWEALTH EDISON COMPANY, Grv. No. QC-50-89 i
and Case No.
LOCAL UNIONS 1460, 1461, 1469 and 51 300 0151 92 S 1515, IBEW RURPorNA AD TrsTITIcANotJM To:
Wayne Kropp NRC Engineer, % Byron Nuclear Generating Station You are commanded, that setting aside all manner of excuse and delay, to appear and give oral testimony under oath before Steven Briggs, Arbitrator, on the 10thf ay of December, 1992, at 1:30 P.M.
atM_idland Hotel 172 W.
Adams
, Chicago, Illinois.
This Subpoena Ad Testificar.dum is issued in accordance with the authority granted to Arbitrators under Ill.Rev. Stat. 1991, Ch.10, Par.107.
Issued this h
day of August, 1992.
h Steven Briggs, At:)64trator 13310.1 1
. w n...
.,nm o
UNION mmIT_ b~
/
BEFORE STEVEN BRIGGS, ARBITRATOR i
i In the Matter of Arbitration Between:
COMMONWEALTH EDISON COMPANY, Grv. No. QC-50-89 and Case No.
LOCAL UNIONS 1460, 1461, 1469 and S1 300 0151 92 S
,j 1515, IBEW l
_ SUBPOENA AD TESTIFICANDUM TO:
Tom Taylor NRC Engineer, % Cuad Cities Nuclear Generating Stat on i
You are commanded, that setting aside all manner of excuse and l
delay, to appear and give oral testinony under oath before Steven Briggs, Arbitrator, on the 10 day of December, 1992, at lE30 P.M.
.I at Midland Hotel 172 W.
Adams
, Chicago, Illinois.
i' This Subpoena Ad Testificandumissued in accordance with the j
authority granted to Arbitrators under Ill.Rev. Stat. 1991, Ch.10, Par 107.
Issued this b
day of August, 1992.
j
.I i
s 1%
Steven Briggs, if6itrator I
13312.1 4
i
)
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~
LOCAL NO. _ln B c 1450 s 1461 & 1469 CASE NO. _ oc_so_eg Steward Maving Chief Steward Jurisdiction HaVing Jurisdiction Under Articlo THz C. E. A. AND ALL ot*HIR Step No..
5 Section AcREr. s PrRTA:nING t
Date 9-6-91 FACTS IN CASE (to be filled in by Union)
IASALIJ, BRAIDWOD 57
'ONS 1.
Name of Employc(s)2fL EFFE0*ED EPJLOYEEs 47 gynan, QUAD c; TIES, ZIDJ, DRESDDi ALL OEPT. s ETTICTC. BY 82'.2 2.
Decartment IrrTER C3RNGE
- 3. Location AnovE TTED Lo ATICNs RErra to Oc-SO 4.
Data Case Occurred
- 4. Date Answered in Step 1 6
Discussion in Step 1 was between 7.
Answer in Step 1 was given by f
B.
Description of Case AFTER QC-50-89 AT STEP 4 AND LONG TIME FRAX CF COMP. AND._
e
..,..,. NEGOTTATING COMMM.
- rGASS, THE WIONS JLRE PORCE3 M PCVE TEI ISSUE "O I
STp 5 OS THIS ISSUE, CHANGES IN METHODS Or WORK HOURS (CVERTIME) REMTID T5
?RE C01:pat;Y CHANGE UEING THE 8212 CDJERIC LEt?ER OF THE N.R.C..
WE CZMAND THAT i
THE COPJANY MAFJ-UP LOST OVERTIME BY THE CONTRACT AND WE D&AliD TEAT CCM FOR CURS OF 00PX CHANGES RESOLTING FR3M TEE 8212 L ;c4ER 32 PROPERLY COMPERSAT FOR FUTURE CFANGE3 FR3M THE ME7ttODS U5Lt> TO M5 Tw.E.
A_?* ACHED AFT GRIEVANCE !YAMPLIS TO EE USED POR THIS CASE SOLUTION.
(For a6ditional space use other side)
Employe's Signature Union Representative's Signature _
O
_ DISPOSITION OF CASEgg g'g@mpany) 1.
Date fann recafved SEP 0 61991
- 2. cat discussed by company and Union 3.
'1"ne Company's position e..
$7 EXHIagy I
a 4.
Date Answer Given to Union _
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=-
ya n_s K. Ccox I.aw Oer<rn g.,; ' j;p g
g, CitattJ's A. Writsnt 621-2C20 cnue-t..His u T. Ila f e u
.% a l I t * < I I a 'I'.
( 'O 0 is* d' M' 1414 N 1;14 FAs ; C2bt378 Maksi.i s S. Te ste tJian M Titr. 4Itt:1.t. Ilt suisNa. Si sit; 2.h1 Jasars 1. SINctu 12.*1 l/m t'st Si ke.t7
$7ANU.Y R. SClRTH AT I. sa 8. V a N A util W SAINT I titfl8, A!!F80Li(1 (1:110:1 11(14 0 929 79) 841 u K I4 Aku :
acy Attitt u II. Naur smaus Akint a J. M Ants >
Of Counsci Nrat. M. ItAt ts M Aasaw K. Stuoustsc Tasonas J. CnAny of Cou,isel November 6, 1992 3
Mr. William C.
Parler, General Counsel U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Re:
Arbitration Between Commonwealth Edison Company and Local Union Nos. 1460, 1461, 1469, & 1515, IBEW [Griev. No. QC-SO-89)
AAA Case No. 51 300 0151 91 S
Dear Mr. Parler:
Local Union Nos. 1460, 1461, 1469, and 1515, IBEW (" Unions")
and Commonwcalth Edison Company
(" Company") have an arbitration hearing scheduled in the above-captioned matter for December loth f
l and lith, 1992 in chicago, Illinois before Arbitrator Steven Briggs.
The Arbitration was initially scheduled for September 1st and 2nd, 1992, but was continued at the request of the Com-pany.
I am onclosing a copy of my letter to Robert E.
- Cronin, attorney for the company, with attachments, which will describe the issues before the Arbitrator and some of the documents that will be presented to the Arbitrator by the parties.
In August, 1992 (prior to the continuance of the hearing), I contacted Bruce Berson, Regional Counsel, HRC Region III, and in-formed him of the pending arbitration and requested the name of a representative of the NRC to be subpoened for the hearing.
The Unions have requested, and Arbitrator Briggs has signed, a subpoena duces tecum and subpoena ad testificandum for the hearing.
Mr.
Berson informed me that I must seek approval from you, pursuant to 10 CFR Ch.
1, Subpart D, Paragraph 9.201, before an employee of the NRC can respond to a subpoena duly authorized under Illinois Law.
The issues in this arbitration hearing involve the interpre-tation and application of the Collective Bargaining Agreement and past practice between the Unions and the Company, and the l
Company's response and interpretation of HRC Generic Letters, Diagnostic Evaluation Team Reports, Deviation Authorizations, etc.
It is anticipated that the Unions and the Company will present witnesses and evidence concerning the aforementioned NRC doc-t uments and matters such as work scheduling, overtime, rest l
AfMMGWf
periods, deviation authorizations, safety versus non-safety related classifications, fitness for duty, etc.
Since the heart I
of this arbitration hearing involves the NRC, it is ossential that a representative of the NRC be prosent at the hearing to l
i identify documents, explain the history and reasons for the issuance of the Generic Lotters, explain the methodology and results of the Diagnostic Evaluation Team Reports, and other NRC documents, practices, and procedures.
The Unions request that a NRC representative be available l
on Thursday afternoon, December 10th, and if necessary, on l
Friday, December lith, 1992 at the arbitration.
We will pay I
a witness fee and mileage if requested.
1 would appreciate an immediate approval f rom your of fice, or the appropriate NRC Official, for the appearance of a designated NRC repre-sentative and the production of documents at the December, 1992 arbitration hearing.
Yo s very truly,
~~
{ ; D 'd 0
^
l Charles A.
We'rne r, Attorney l
for Local Unions 1460, 1461, 1469, and 1515, IBEW CAW /bd cc Mr. Bruce Berson, Regional Counsel NRC Region III l
799 Roosevelt Road Glen Ellyn, Illinois 60137 Presidents, Local Unions 1460, 1461, l
1469, and 1515, IBEW I
Chairman, Systen Council U-25, IBEW i
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CA0fr)[e1 ill b sd[/' fry) w IN THE CIRCUIT COURT OF COOK COUNTY 8 N[5fli paw,s STATE OF ILLINOIS wow.onu.,:, e.g F AX TR ANSMITT AL
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LOCAL UNION 1515, INTERNATIONAL i--
BROTHERHOOD OF ELECTRICAL WORKERS; d @/
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LOCAL UNION 1460, INTERNATIONAL r...
- M BROTHERHOOD OF ELECTRICAL WORKERS; LOCAL UNION 1461, INTERNATIONAL 3 0l 5Ob/bW -
"'c " " n ' ~ ' 'we ' o f BROTHERHOOD OF ELECTRICAL WORKERS; and LOCAL UNION 1469, INTERNATIONAL)
DROTHERHOOD OF ELECTRICAL WORKERS. )
)
Plaintiffs,
)
)
vs.
)
3 (SOC)hf_
)
No.
COMMONWEALTH EDISON COMPANY,
)
Serve:
J.
Stanley Graves Div.
M(4 f A/XEf Corsonwealth Edison Company )
ist National Bank Building
)
10 S.
Dearborn
)
Chicago, Illinois 60603
)
)
and
)
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION, REGION III.
)
)
Serve:
A.
Bert Davis, Regiona.1
)
Adrinistrator,
)
United States Nuclear
)
Regulatory Corsission
)
Region III,
)
790 Roosevelt Road
)
Glen Ellyn, IL. 60137
)
)
Defendants.
)
NOTICE PLEASE TAKE NOTICE that Plaintiffs will call up Plaintiffs' Co:nplaint In Chancery To Enforce Subpoena on the day of 94-A&M/
- 1993, vision d20 / of the Circuit Court A
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Y
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hiCHAAb T. OA[e( Oaihie, of Cook County,, State of Illinois at the hour oflf:00 A.M.,
or as soon thereafter as the same may be heard.
Attorneys for Plaintiffs SCHUCHAT, COOK & WERNER
- d/
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4 Charles A. Werner, MBE 17072 fy
/U M Neal M.
Davis, '
IL# 06202995 1221 Locust, Suite 250 St. Louis, Missouri 63103 (314) 621-2626
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f'.7 anes M.
- Lockwood, IL/ 70615
/ 805 Touhy, Suite 200 Park Ridae, Illinois 60068 (708) 825-1965 6,
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CERTIFICATE OF SERVICE i
M 7kay The undersigned hereby states that on this of rdAuvAA/
1993, a copy of the foregoing Notice was sent
(
first-class mail, postage prepaid to the following:
i J.
Stanley Graves Commonwealth Edison cor.pany 1st National Bank Building 10 S.
Dearborn Chicago, Illinois 60603 and f
}
4 A.
Bert Davis, Regional Administrator United States Nuclear Regulatory Commission) l i
Region III i
790 Roosevelt Road i
Glen Ellyn, Illinois 60137 i
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ATTACHMENT -
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DeLoatch v.
Selin, Civ. No. 93-0163 (D.D.C.,
filed Jan. 26, 1993) l I
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Knitch $tates pistrict (llourt FOR THE COLUMBIA DISTRICT OF t
Voneree Deloatch SUMMONS IN A C.IV.u. IL ACTION
%I ta t t d kg a
CASE NUMBER:
y, q
Ivan Selin, Chairman U.S.
Nuclear Regulatory Commission I
I I
T 0:e.- -e =.a e'o.' = n l
Ivan Selin, Chairman U.S. Nuclear Regulatory Commission
' Washington, D.C.
20555 l
l YOU ARE HEREBY SUMMONED and reautred to file with tne clerk of this court and serve upon j
t PLAINT 1FF's ATTORNEY eww ev nwn, Gary Howard Simpsonb.n.q.,
l Es Sinpson & Ehrlich, t
4800 Montgomery Lane Suite 920 Bethesda, Maryland 20814 l
an answer to the complaint which is herewith served upon you, within k3 days after service of '
this summons upon you, exciusiva of the day of service. If you tall to do so, judynent by default will be taken against you for the relief cemandes in the complaint.
NANC f MAYER-WHITTINGTON JAN 2 61393 CLERK DATE rl A f r)rn M
Jn BY DEPUTY CLERK-~
I i
h Mnitch St::tes pizirid 60urt for il e pistrid of Columhta l
em of ge cer6 t
3sb erib Cenetit.rtion btrerme, h'.5
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Jbl(mgtmt, PC 20001 sun su.sm Y
N F7% sM.M94 v h umsu, NOTICE OF RIGHT TO CONSENT TO TRIAL BEFORE A UNITED. STATES MAGISTRATE JUDGE f
In accordance with the provisions of Title 28, U.S.C.
Section 636(c), you are hereby notified that the United States Magistrate Judges of this District Court, in addition to their other duties, upon the consent of all parties in a civil case, may conduct any or all proceedings in a civil case, including a jury or nonjury trial, and order the entry of a final judgment.
You should be aware that your decision to consent, or not to 1
consent, to the referral of your case to a United States Magistrate Judge must be entirely voluntary.
Only if all the parties to the i
case consent to the reference to a Magistrate Judge will either the Judge or the Magistrate Judge to whom the case has been assigned be informed of your decision.
1 An appeal f rom a judgment entered by a Magistrate Judge may be taken directly to the United States Court of Appeals for this judicial circuit in the same manner as an appeal from any other judgment of a District Court.
Alternatively, upon consent of all parties, an appeal from a judgment entered by a Magistrate Judge may be taken directly to a District Judge.
Cases in which an appeal is taken to a District Judge may be reviewed by the United States Court of Appeals for this judicial circuit only by way of
~
petition for leave to appeal.
i I! ?u ? t lYl [Yliti, -lL Ll{Dn.
{
liA'NCY M/ MAYER-WIIITTINGTON J)
Clerk of Court I
CO-942A Pev. 2/91 e
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
,l'
[;,y l
VONEREE DELOATCH, "Ildg*
612 Windmill Lane
"**' 9 b.
Silver Spring, Maryland 20905 93 0163 Plaintiff C.A.
No.
vs.
Ivan Selin, Chairman U.S. NUCLEAR REGULATORY COMMISSION :
Washington, D.C.
20555 Serve: Ivan Selin, Chairman U.S. Nuclear Regulatory Commission :
Washington, D.C.
20555 Defendant COMPLAINT (Violation of Title VII)
Jurisdiction 1.
This action arises under the provisions of 5 717 (c) and 5 706 of Title VII, 42 U.S.C. 5 2000e-16 (c) and 2000e-5, and 29 U.S.C.
633(a), the ADEA, and 28 U.S.C.
5 1343 (4).
Parties 2.
The Plaintiff, Veneree Deloatch, is a black male (born on November 11, 1940) employee of the Nuclear Regulatory Commission.
At all times relevant to these proceedings Plaintiff has been employed by Defendant United States Nuclear Regulatory Commission.
He is a citizen of the United States and resides in Silver Spring, Maryland.
. =.
(
i 3.
The Defendant, United States Nuclear Regulatory Commission, (hereinafter "NRC") is an employer within the meaning of the ADEA and it maintains.its principal offices in the District of Columbia.
Ivan Selin f
i is the Chairman of the U.S. Nuclear Regulatory Commission f
and is being sued in his official capacity.
j i
4.
Plaintiff has exhausted his administrative i
remedies by seeking EEo counseling and filing administrative l
t complaints of discrimination, and nore than 180 days have
}
elapsed since he has done so.
l f
Facts i
5.
The position of Branch Chief GG-15 became j
i vacant on or about December, 1989.
.i t
f 6.
Deloatch was qualified for this position; he had supervisory experience and technical expertise which t
qualified him for this job.
During the course of the l
administrative proceedings he became a Brigade Commander in j
the Army Reserves.
The position carries the rank of f
i Brigadier General.
He applied for the Branch Chief, GG-15, j
position.
He was not promoted into this position.
He was
[
t not promoted into it because of his race and gender and his t
l age.
P i
2 i
I I
-i
7.
Ms. Mary Mace (a white female born on July 17, 1950) was promoted into the Branch Chief GG-15 position.
She was not as well qualified as Deloatch for the position.
8.
Ms. Mace received better treatment than Deloatch because of her gender, race and age.
Management non-competitively detailed Mace as the Chief, Contract Administration Section No. 1 from December 3, 1989 to June 3,
1990 (180 days).
Ms. Mace had no prior supervisor experience.
9.
Ms. Mace was non-competitively detailed as Chief, Contract Negotiation Branch 2 from June 3, 1990 to l
December 6, 1990 (180 days).
10.
The position in issue (the GG-15 level job) t was announced on October 29, 1990; the position was announced ten months after the position became vacant so that Mace, due to the preferential treatment in terms of I
being non-competitively detailed into supervisory positions, could meet the minimal qualifications for the position
~
5 (which required supervisory experience as a matter of federal personnel law).
11.
Ms. Mace was named' Acting Chief, Contract 1
Negotiation Branch No. 2 from December 7, 1990 through May 3,
1991 (150 days).
i 3
i P
,t i
i 1
l Ms. Mace was selected into the Branch Chief, 12.
t GG-15 j ob, on May 15, 1991.
j 13.
Mr. Edward L.
Halman, the selecting official, knew that the position in question is a GG-15 with l
r supervisory responsibilities.
The vacancy announcement says I
that the applicant must have:
Demonstrated ability to manage and supervise a staff of Contracts Specialists and l
supporting clerical staff.
One year of this i
experience must have been at the next lower j
l grade level or equivalent.
i o
I 14.
Ms. Mace's only supervisory experience were her temporary assignments starting in December of 1989 which 2
1
)
were given to her non-competitively.
With regard to the i
qualifications question, Mr. James H. Sniezek, Deputy 4
l Executive Director, stated:
I l
the vacancy announcement on its face j
requires demonstrated ability to manage and j
supervise -- not previous experience doing so.
Thus the plain language of the provision l-requires a demonstration of supervisor l
l ability -- not experience.
3 i
l He knew that the selectee had not demonstrated supervisory i
experience.
15.
Ms. Mace obtained the year's supervisory l
4 experience illegitimately.
The position was vacant on or J
about December 1989.
As of that date Ms. Mace had no i
supervisory experience.
She was named acting chief of the t
I l
4 l
4 1
l f
l l
i
'l i
Contract Administration Branch on December 3, 1989.
There 1
is no suggestion in the record of a valid reason for having i
l delayed a co=petitive announcement beyond December 1989.
j i
16.
NRC Appendix 4108, Part III A.
1.
a.,
now NRC Management Directive 10.1.
I.F.
Tab 7, page 11 requires the l
NRC to use competitive procedures when NRC employees compete for "the potential for promotion."
This regulation was violated literally and in spirit.
17.
Mr. Deloatch was the victim of improper delay f
I I
in the announcement of a temporary position that carried with it ' the potential for promotion."
This delay resulted I
in the appointment of a white female in preference to a l
black male.
He was qualified for the position as of i
December 1989.
18.
Although the number of employees involved is j
small, =aking statistical inferences difficult, there is a promotional pattern that makes it more difficult for a black l
I nale to be promoted than for a white female.
j l
19.
Had there been a prompt announcement of a competitive position, Ms. Mace would not have been qualified l
for the position to which she was appointed because she lacked one year of supervisory experience.
20.
Ms. Mace's multiple appointments (each of f
which was for more than 90 calendar days), which resulted in j
l 5
1
)
i
i r
her becoming qualified for this competitive position, were covered by NRC Appendix 4108, Part III A.1.a. because the series of actions affected NRC employees competing for "the potential for a promotion."
)
21.
Here are the facts in tabular form:
Dates of Accointrent Title 12/3/89 - 6/3/90 Chief, Contract Administration Section No. 1 (180 days) 5/3/90 - 12/6/90 Chief, Contract Negotiation Branch No. 2 (180 days) i 12/7/90 - 5/3/91 Acting Chief, Contract Negotiation Branch No. 2 (150 days) 22-There is no suggestion in the record of a l
valid reason for delaying a competitive announcement beyond i
December 1989.
Mr. Halman says:
i We are generally slow in filling ma3cr positions.
If we put a person in a job as acting and the work is getting done, the i
pressure is off.
It does not become a priority at the time to advertise it quickly.
l This is not an adequate reason to delay an announcement i
which would permit open competition for an advancement l
t opportunity.
i 23.
These facts indicate a failure to follow the I
letter and spirit of the Merit Selection regulations (NRC l
Appendix 4108, Part III).
Each of the separate appointments i
6 i
i
k I
exceeded 90 days.
Together, they exceeded one year and four months.
The coverage of those regulations is:
Whenever NRC employees compete for promotion or the potential for a promotion.
(A.1.a.)
For selection of an NRC employee for temporary promotion for more than 90 calendar days.
(A.1.d.)
The spirit of these regulations has been captured in a memoranda for office directors and regional administrators, signed June 19, 1990 by Mr. James M. Taylor, Executive l
Director for Operations:
It has come to my attention that some offices are liberally using " accretion of duties" as a means of effecting noncompetitive promotions above the " full performance" 1
level.
Likewise, some staff have been i
assigned from nonsupervisory to supervisory positions at the same grade level.
While the foregoing actions are allowed under our personnel regulations, I believe that,.
whenever possible, promotions and assignments to supervisory positions should be on a competitive basis.
Competition helps ensure that the best qualified candidate fills every position and that all staff are treated equitably.
Since supervisory experience is one factor in selection for SES positions, noncompetitive lateral assianments from nonsupervisory to supervisorv nositions cive an advantace to current suoervisors in the SES comoetitive Drocess.
[ Emphasis added).
24.
Had the merit selection procedures been adhered to and the same position description announced as is 7
i now in contest, the winning candidate, Mary H. Mace, would not have met the last required qualification.
Demonstrated ability to manage and supervise a staff of Contracts Specialists and supporting clerical staff.
One year of this
[
experience must have been at the next lower l
grade leve:. or equivalent.
Exhibit 33, Career Oppcrtunity Announcement 91-8000-MB; Qualifications Required section, pp. 1 & 2.
~;
{See also Exhibit 34, 91-8001-MB, which i
contains the same required qualification.)
i r
25.
Deloatch was better qualified for the l
position than Ms. Mace.
26.
Mr. Edward L. Halman is the Senior executive who has served as Director of the Division of Contracts and Property Management, Office of Administration.
He is responsible for the Division in which the contested position occurred and he actively participated in the selection process.
27.
On the record before the agency there are no black males who have favorable comnents about how they have been treated by Mr. Halman.
Although it is true that Mr.
Halman is himself a black male, he has fallen into a pattern of supervision which favors females for promotion, l
particularly young females.
Even though Mr. Halman has actively recruited black nales, b ; management style favors female employees for promotion.
In particular, there is no t
8 7
e
f l
~
l indication that any black male was part of an upward I
i mobility program under Mr. Halman.
Since some of the black i
males were motivated enough to leave the agency to gain promotion, it is hard to understand why they could not be i
part of an upward mobility program within the' agency.
i 28.
On the record before the agency, all the j
favorable comments about Mr. Halman are by women.
The comments of males in the record vary from bitter to l
scathing.
First, there is the testimony of the complainant, 2
e Veneree Deloatch, who believes he has been discriminated-against.
The core of Mr Deloatch's testimony is that:
i In order to advance, and be promoted, all of the Black Males who have been employed under Mr. Halman, had to leave NRC and seek employment in other agencies.
In fact, three j
of these Black males are presently Branch Chiefs in other Federal agencies.
Currently e
there are no Black or any other minority males in DCPM in this pay plan and series.
l 29.
A black male ex-employee who worked in the contracts division under Mr. Halman (and who was a coworker of Mr. Deloatch) states, in no uncertain terms, his conclusion that Mr. Halman was biased against black males.
i He states that his supervisor at the NRC, Mr. Morton, was l
black and was brought in as a GM-15 but that Mr. Halman l
didn't find any of the black males qualified to move beyond GS-13.
In my opinion the l
Blacks in the division who were not pror.oted 9
I t
'I were just as qualified as the white males and-I
~
j the white females were.
There was one older black man in the i
division, Lee Murphy, who I think was adequately qualified for promotion, but was stuck at about a GS-9.
He had a college i
degree and had studied for an advanced
[
degree.
He also states that i
All of the eligible white males were promoted l
past GS-13.
None of the eligible black males l
were.
30.
Consistent with this testimony is the f
testimony of another black male ex-employee who felt he was dead-ended in Mr. Halman's division and who achieved a GG-14 I
at the Government Printing Office after he left the NRC.
l The ex-employee stated:
I went to GPO to get into the management ranks, which I-could not do at NRC.
No black males in NRC, in the contracts division, i
moved beyond GS-13 in the seven years I was there.
t When I arrived in NRC contracting, the ratio of females to males in the 1102 series was fairly equal.
By the time I left the ratio had tipped to favor the female side.
)
I would characterize Mr. Halman as a f
consummate manager.
He controlled most of the decision making in the division, even when he was not the first line supervisor.
l He obviously controlled the types of assignments that employees were given and helped decide who would get certain contracts
[to work on].
In my opinion, Blacks did not receive equal or fair assignment of training 10
(
1 l
i i
or the co= plex type of contract assignments.
f These decisions obviously_have a. bearing on j
the advancement of employees.
I believe j
that, on the average, the black employees.
brought at least equal or better education 1
and training to the job than the white employees did.
l 31.
Deloatch is a highly qualified candidate.
On rating factor 1, which deals with comprehensive knowledge of federal acquisition regulations and applicable agency
{
regulations, he has seen the procurement regulations from a i
variety of perspectives: (1) as a business development
{
specialist (GS-14), he has seen their impact on small disadvantaged business, labor surplus and woman-owned
[
businesses; (2) he has developed policies on small business
[
i programs; (3) he has been a liaison to a Congressional committee and to the White House Staff; (4) he has developed procurement regulations and related NRC materials; (5) for about a year, he was a contract negotiator, administrator (January 1979 - February 1980).
32.
Neither Mr. Hagan nor Mr. Halman reasonably considered the relative education and experience of the candidates with respect to management.
Both by virtue of the number of years of management experience, including l
military experience (which Mr. Hagan inexplicably discounted totally) and education (Mr. Deloatch had taken 30 seminar 11 i
l a
~ _.
.~
I f
t hours in management and 25 in administration).
Rating Ms.
j Mace and Mr. Deloatch as equal on this rating factor is
{
indicative of a bias resulting from generally favoring Ms.
l Mace.
It is not necessarily a racial bias; but it is a bias i
that prevented a fair consideration of management skills and l
t that contributed to a failure to consider all candidates, j
i including those of minority groups.
l 33.
Had the competition been held at an earlier time, Ms. Mace would not have had the required management experience at all and Mr. Deloatch would have to have been j
t superior on this factor.
34.
Defendant's reasons for not selecting
{
Deloatch for the position are pretextual.
35.
Plaintiff has exhausted his administrative i
remedies and this suit is timely filed.
36.
Defendant has intentionally discriminated against Plaintiff due to his race (black) and gender (male).
l WHEREFORE, Plaintiff prays that this court:
f 1.
Declare the Defendants' conduct to be in violation of his rights under Title VII and enjoin them from engaging in such conduct.
2.
Place Plaintiff in his rightful place in Defendants' work force and order front pay relief and f
benefits until he attains his rightful place.
l 12 j
1
i i
3.
Award him equitable relief of back pay and benefits to the date of his promotion, front pay and benefits until he attains his rightful place and compensatory damages to the extent allowed by law.
4.
Award his attorney's fees and costs.
5.
Grant such other relief as it may deem just and proper.
?
Respectfully suh tted, Ce WW Gary Jioward Simpson Simpson & Ehrlich, P.A.
4800 Montgomery Lane Suite 920 l
Bethesda, Maryland 20814 (301) 656-7013 Attorney for Plaintiff i
Jury Demand Plaintiff demands a trial by jupy on all issues so triable.
/
?
I
- 1 hm Nlv%
GEryyowaf(Simpon I
i 4
l 13
4 i -
ATTACHMENT -
Combustion Encineerina. Inc. v. NRC, No.,93-1094 (D.C. Cir., filed Jan. 29, 1993)
1 l
i United States Coart of Appeau For the District of Columbia Orcuit
{
fitED JAN 291993 l
1 IN THE ROkl GARVIN j
UNITED STATES COURT OF APPEALS CLERK FOR THE DISTRICT OF-COLUMBIA CIRCUIT i
PETITION FOR REVIEW
)
OF ORDER OF UNITED STATES NUCLEAR REGUIATORY COMMISSION
)
I
)
I COMBUSTION ENGINEERING, INC.,
)
)
[
Petitioner,
)
is
)
SJ-1094 v.
)
No.
)
-UNITED STATES OF AMERICA and
)
U.S. NUCLEAR REGULATORY.
)
{
COMMISSION,
)
Respondents.
)
)
i
)
i i
3 PETITION FOR REVIEW Pursuant to Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S 2239 (1988), and the Administrative Orders Review Act, 28 U.S.C. SS 2341-2351 (1988), Combustion Engineering, Inc. ("CE") hereby petitions the Court for review of a final order issued by the United States Nuclear Regulatory Commission ("NRC") on December 17, 1992.
The final order is in.
the form of a letter from James M. Taylor, NRC Executive Director i
for Operations, to lir. A. Edward Scherer, Vice President, Regulatory Affairs, Combustion Engineering, Inc.
It denies CE's request, submitted pursuant to 10 C.F.R. S 171.11(d), for an t
exemption from the payment of the NRC's fiscal year 1992 annual i
\\
?
i i' i t
fee and surcharge, published at 57 Fed. Reg. 32,691 (July 23, 1992).
A copy of the final order is attached hereto.
P i
Respectfully submitted, I
h Harold F. Reis Michael F. Healy R. Alexander Glenn NEWMAN.& HOLTZINGER, P.C.
1615 L St., N.W.
Suite 1000 Washington, D.C.
20036 Tel. (202) 955-6600
{
1 Attorneys for Petitioner Combustion Engineering, Inc.
Dated:
January 29, 1993 Attachment i
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4 UNITED STATES
1 NUCLEAR REGULATORY COMMISSIO
)' A y
assincion.o. c. 2osss j[
December 17, 1992 Mr. A. Edward Scherer Vice President, Regulatory Affairs Combustion Engineering, Inc.
1000 Prospect Hill Road P.O. Box 500 Windsor, Connecticut 06095-0500
Dear Mr. Scherer:
I am responding to your November 19, 1992, letter requesting an exemption from payment of the annual fees for the two low enriched uranium (LEU) fuel manufacturing licenses for Combustion Engineering's (CE's) facilities in Hematite, Missouri and Windsor, Connecticut.
Your request for exemption from the FY 1992 annual fees raises the same issues that were raised in your August 8,1991, request for exemption from the annual fees. These issues were-fully addressed in our response to Mr. Richard S.
Siudek dated December 17, 1991, which denied CE's request for exemption from the annual fees (copy enclosed). As you indicate in your November 19, 1992, letter, CE challenged the FY 1991 final rule as well as the NRC denial of your exemption request and this case is now pending before the U.S. tourt of Appeals (D.C. Circuit), Combustion Engineerino Inc. v. United htates Nuclear Regulatory Commission and the United States of America, D.C. Cir. Nos.
91-1435 and 92-1001.
The NRC indicated in the final rule which was published July 23, 1992 (effective August 24,1992), that the basic methodology used in developing the amount of the fees for FY 1992 was unchanged from that used in FY 1991 to calculate the Part 170 professional hourly rate, the specific materials licensing and inspection fees in Part 170, and the Part 171 annual fees (57 FR 32692). Therefore, and as you have indicated in your November 19, 1992, letter, the FY 1992 amendments to the fee regulations did not modify in any significant respect their impact on CE as compared with any other low enriched uranium fuel facility. Thus, the NRC concludes that your arguments regarding economic and competitive impact, and capacity, do not provide a basis for the NRC to grant CE an exemption from the annual fee for FY 1992.
We believe that the annual fee, including the surcharge, is based on a practical, fair and equitable allocation of the costs attributable to the LEU fuel fabrication subclass of licensees.
7FF(FDFPRO Df??
M JM 191993
_AGLbuULb Newman & Holtzinger
F Mr. A. Edward Scherer i Based on the above and the reasons specifically enunciated in our December 17, 1991, letter to CE, your request for exemption from'the FY 1992 annual fee, including the surcharge, is denied and your request to base the annual fee on fuel fabrication capacity is denied.
Sincerely, gg/
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JmesM.Tayfor xecutive Director for Operations I
Enclosure-
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17/l'7/91 letter J. Taylor to R. Siudek, CE I
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December 17, 1991 Mr. Richard S. Siudek Vice President, Nuclear Fuel l
Combustion Engineering, Inc.
1000 Prospect Hill Road Post Office Box 500 Windsor, Connecticut 06095-0500
Dear Mr. Siudek:
I am responding to your August 8, 1991, letter requesting'an exemption from payment of the annual fees for the two low enriched uranium (LEU) fuel manufacturing licenses for Combustion Engineering's (CE's) facilities in Hematite, Missouri and Windsor, Connecticut.
For reasons specified in this letter, your request has been denied.
i As stated in 10 CFR 171.11(d), the Commission may grant a materials licensee an exemption from the annual fee only if it determines that the annual fee is not based on a fair and equitable allocation of the NRC costs under 10 CFR 171.11.
The following factors must be fulfilled as determined by the Commission for an exemption to be granted.
1)
There are data specifically indicating that the l
assessment of the annual fee will result in a t
significantly disproportionate allocation of costs to the licensee, or class of licensees; 2)
There is clear and convincing evidence that the budgeted generic costs attributable to the class of licensees are neither directly nor indirectly related to the specific class of licensee nor explicitly allocated to the licensee by Commission policy decision; and i
3)
Any other relttant matter that t'a licensee believes shows that the annual fee was not based on a fair and equitable allocation of NRC costs.
These criteria are consistent with the requirement of Public Law 101-508 that:
"To the maximum extent practical, the charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the allocation of the Commission's resources among licensees or classes or licensees."
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In support of the exemption request, CE has stated that:
"The new annual fee has an inequitable and disproportionate economic and competitive impact on CE r
as opposed to other fuel manufacturers and the imposition of the annual fee on both CE fuel facilities bears no " reasonable relationship to the cost of providing regulatory services" to CE, as required by OBRA.
The NRC's generic costs for regulating fuel facilities are not substantially increased by the fact that CE has one process split between two facilities.
However, even if CE vere charged only one fee, under the new rule, CE would still pay a disproportionate t
amount of the generic NRC costs in relation to larger fuel manufacturers.
For these reasons, the charges, therefore, also violate OBRA in that they have not been l
" fairly and equitably" allocated "among licensees."
Your request for an exemption from the annual fees raises two questions.
The first question involves whether economic and competitive i= pacts, and capacity should be considered in assessing annual fees.
The second question concerns whether there is a reasonable relationship between the LEU fuel manufacturing license to which the annual fee is'ascessed, and the regulatory services provided.
Economic and Competitive Impact and Capacity.
Most of the com= enters on the proposed rule published April 12, 1991, indicated that the annual fees would result in some type of impact on the licensee.
Many commenters, including fuel facilities, noted that the annual fees would result in adverse economic and competitive impacts.
Therefore, in developing the final rule, the commission considered generically the adverse impact of implementing Public Law 101-508.
The Commission j
concluded tha F
"to eliminate the adverse effects, the annual fees would have to be eliminated or reduced.
Because Public Law 101-508 requires the NRC to assess and collect l
approximately 100 percent of its budget authority, a
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reduction in the fees assessed for one class of licensee would require a corresponding increase in the j
fees assessed for another class.
Therefore, the impacts noted cannot be eliminated without creating l
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For this reason, i
consideration has been given only to the effects that NRC is required to consider by law (i.e.,
the Atomic Energy Act, the Energy Reorganization Act, and the Regulatory Flexibility Act)."
(56 FR 31476; July 10, 1991).
i I
Consistent with the Commission conclusion in the final rule, the economic and competitive impacts you noted are not a basis for adjusting the annual fees.
In addition, the Commission is not i
required to equalize the economic and competitive impacts on the more than 9,000 NRC licensas or on specific licensees (e.g.,
CE) within a specific class (e.g., LEU fuel manufacturers).
The fact l
that the impact varies for the more than 9,000 licenses or within
[
the LEU fuel cl..ss of licensees does not lead to the conclusion that the fees have not been fairly and equitably allocated among licensees or a class of licensees.
In fact, it would be expected l
that the same annual fee could have different economic and competitiv6 impacts on different licensees because of the different economies of scale, financial positions, business strategies, and other business and economic factors associated with the specific licensee.
It would not constitute sound policy or the wise use of limited NRC resources to tailor fees to accommodate the particular situation of each of these licensees.
1 4
In discussing the impact of the new annual fees, you have provided data indicating that CE's annual fee per production capacity (kilograms of Uranium 235 (KGU)) is higher than that for other LEU fuel fabricators.
The NRC does not debate this clain.
However, the NRC does not agree with the implication that annual fees should be based on a licensee's size, production capacity or i
the actual production of LEU, and hence revenues generated by the organization.
The annual fees are to recover the NRC's generic l
and other regulatory costs not appropriated from the Nuclear Waste Fund or recovered from license fees under 10 CER Part 170.
The amount of these costs is not materially affected by a facility's LEU fuel fabrication capacity, but is primarily dependent on NRC's regulations, guidance and policy development activities, research and other activities that are necessary for NRC to regulate safely a class of licensees.
It is also noted that the annual fees for other classes of licensees are based on possession of a license and not on capacity (e.g., number of hospital beds, number of radioactive sources, or capacity to produce electricity).
For the above reasons, I conclude that your arguments regarding economic and co=petitive impact, and capacity do not support'an exemption from the annual fee.
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-j Allocation of NRC Costs to LEU Fuel Manufacturina Licensees j
You indicated that the allocation of costs in the rule to LEU facilities results in a significantly disproportionate allocation of costs to CE as compared to other LEU fuel manufacturers.
The basis for this claim is that you believe the generic and other l
regulatory costs for regulating LEU fuel facility licensees are not materially increased by the fact that CE operates two facilities as opposed to one.
t The NRC has reexamined the allocation of costs to the LEU fuel manufacturing licenses.
This reexamination has been accomplished j
within the framework of the Public Law and accompanying i
Conference Report, and the fundamental principles used by the Commission in establishing annual fees for all classes of l
l licensees.
Public Law 101-508 and the accompanying Conference Report provide that to the maximum extent practicable, the annual fee shall have i
a reasonable relationship to the cost of providing regulatory i
services to the licensees.
Consistent with the law and the l
guidance in the Conference Report, the NRC allocated its budgeted i
l generic and other regulatory costs not recovered from 10 CFR Part 170 license fees to the major classes of licensees.
To the extent practicable and where necessary for a more' fair and equitable allocation of costs, a major class of licensees was further subdivided into subclasses.
For example, NRC costs for the fuel facilities class of licensees were allocated further to UF conversion, HEU fuel fabrication, LEU fuel fabrication and 6
other licenses.
Within a subclass, the cost was uniformly e
allocated to each license in the subclass based on the premise that the.re is no significant difference in the generic and other l
regulatory services provided to each license within a subclass.
This approach and principle were used for all classes of licensees.
I i
The costs allocated to the licenses within the LEU subclass are for the safety and safeguards generic and other regulatory
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activities that are attributable to this subclass of licensees and that are not recovered by 10 CFR Part 170 license and
)
inspection fees.
These costs were allocated uniformly to each of the six licenses within the LEU subclass, based on the premise that there is not a significant difference in the generic and other regulatory services provided to each of the six licenses.
(The six licenses are shown in the enclosure.)
Thus, the question presented is whether, in fact, there is a significant difference between the generic and other regulatory services provided to either of the two CE LEU licenses and to the other four LEU licenses.
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i To answer the above question, the NRC regulatory activities covered by the annual fee were reexamined to determine whether any vary to a significant degree from license to license.
These activities and their relationship to the license are discussed below:
t Safety. Safeauards and Environmental Reculations, Guidance and Policies:
The same NRC regulations (e.g.,
10 CFR Parts 70, 73 and 74), guidance (e.g.,
Regulatory Guides) and policies are applied to each of the six licenses to the same degree.
That is, the regulations, guidance and policy applied to the General Electric license, for example, are the same as those applied to the CE Windsor license or to the CE Hematite license.
The NRC does not apply only a part of the regulations, guidance and policies to CE Hematite because the facility only converts UF, to UO, and a different part i
2 to CE Windsor and B&W because they only convert UO to 2
r finished fuel.
Instead, the application of the regulations, guidance and policies is the same independent of what part of the conversion process is licensed or whether the entire process is licensed.
For CE, this means that NRC regulations, guidance and i
i policies are applied to each license separately.
Safety and Safeauards Research:
The research costs included in the annual fee are for research in the areas of safeguards and environmental policy /
decommissioning.
These research activities are uniformly applicable to each license, and do not depend t
on a specific part of the LEU fuel fabrication process.
For example, CE has two licenses at separate locations to decommission and the research associated with decommissioning is applicable to each site.
Inspection Procedures and Oversicht of Recional Activities:
As with the regulations and regulatory guides, the NRC does not apply one part of the inspection procedures to facilities that convert UF to 6
UO and a different part to those that convert UO2 to 2
finished fuel.
Instead, the same procedures are uniformly applicable to each license.
In addition, headquarters oversight of the regional activities is uniformly applicable to each license.
It is also noted that the two CE facilities are also located within and inspected by two different regions.
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Event Analysis:
The analysis of events benefits each license the same.
For example, generic communications resulting from an event are sent to CE for each license held by the company.
Recional Enforcement:
Allegation followup and regional enforcement are dependent on the fact that there is a facility (i.e.,
license), independent of what process is used.
Enforcement regulations, for example, apply to a specific license and not to the process used by the licensee.
Other Reculatory Activities:
Other regulatory activities whose costs are included in the annual fee i
include, for example, responses to 2.206 petitions and responses to Congressional letters.
As indicated by the above discussion, the NRC costs attributable to the LEU facilities subclass are more related to the fact that a license exists and not to the LEU manufacturing process.
- Thus, a uniform allocation of costs to each license results in an annual fee that has a reasonable relationship to the generic and other regulatory services provided.
r The surcharge part of the annual fee includes NRC budgeted costs that are not attributable to the LEU subclass, but it was assessed to the licensees in the subclass for policy reasons.
For the LEU subclass of licensees, the surcharge includes a portion of low-level waste costs and costs not recovered from small entities.
In the Conference Report, Congress indicated that these types of costs "may be recovered from such licensees as the Commission, in its discretion, determines can fairly, i
equitably, and practicably-contribute to their payment."
Following this guidance, the Commissicn decided to uniformly allocate these costs to each fuel facility resulting in the same surcharge for each license.
For the above reasons, I conclude that the annual fee, including the surcharge, is based on a practical, fair and equitable allocation of the costs attributable to the LEU fuel fabrication subclass of licensees.
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Conclusion:==
The economic and competitive impacts noted in your exemption request do not provide a basis for the NRC to grant Combustion Engineering, Inc. an exemption from the annual fee.
Based on a reexamination of the allocation of costs to the LEU fuel
4 e
, manufacturing subclass of licensees, the NRC concludes that uniformly allocating the costs to the license to determine the amount of the annual fee is a fair, equitable and practical way to recover its costs attributable to the LEU fuel fabrication subclass of licensees.
In addition, this method of allocating the costs results in annual fees that have a reasonable relationship to the cost of providing the regulatory services; therefore, the annual fees do not result in a disproportionate allocation of NRC generic and other regulatory costs to the LEU fuel fabrication licenses.
Based on the above, your request for an exemption from the FY 1991 through FY 1995 annual fees, including the surcharge, is denied and your request to base the annual fee on fuel fabrication capacity is denied.
Sincerely, Original sigud sy.
James M. Teylor James M. Taylor Executive Director for Operations
Enclosure:
As stated
Enclosure SUBCLASS LOW ENRICIIED URANIUM FUEL FACILITIES Licenses Docket /
Location Fuel Fabrication Process Combustion Engineering 70-36 RIII UF to 00 6
2
(.llematite)
Combustion Engineering 70-1100 RI UO to finished fuel 2
(Windsor)
Babcock and Wilcox 70-1201 RII UO to finished fuel 2
Advanced Nuclear Fuels 70-1257 R-V UF to UO to finished fuel 6
2 General Electric Co.
70-1113 RII UF to 00 to finished fuel 6
2 Westinghouse Electric Co.
70-1151 RII UF to 00 to finished fuel 6
2
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR REVIEW OF ORDER OF UNITED STATES NUCLEAR REGULATORY COMMISSION
)
COMBUSTION ENGINEERING, INC.
)
)
Petitioner,
)
)
v.
)
No.
)
UNITED STATES OF AMERICA AND
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION,
)
)
Respondents.
)
)
)
DISCLOSURE OF INTERESTS OF PARTIES Pursuant to Rule 6A of the General Rules of the United States Court of Appeals for the District of Columbia Circuit there follows a disclosure statement identifying each of petitioner's parent companies, subsidiaries (except wholly-owned subsidiaries) and affiliates that have issued shares or debt i
securities to the public:
I Asea Brown Boveri, Inc., a U.S. corporation ABB Asea Brown Boveri Ltd., a Swiss corporation Asea AB, a Swedish corporation BBC Brown Boveri Ltd., a Swiss corporation ABB Finance Inc., a U.S. corporation ABB Special Finance, Inc., a U.S. corporation ABB Finance B.V.,
the Netherlands ABB Capital B.V.,
the Netherlands ABB Special Investment N.V.,
Netherland Antilles Elektrisk Bureau A/S, Norway A/S Norsk Elektrisk Brown Boveri, Norway Asea Brown Boveri AG, Germany 1
s 1
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Asea Tolley Electric Company Ltd., New Zealand j
Skulderbladet AB, Sweden 4.
Asea Brown Boveri Ltd., India f
i Respectfully submitted,
'H'arold F. Reis l
Michael F. Healy R. Alexander Glenn NEWMAN & HOLTZINGER, P.C.
1615 L Street, N.W.
Suite 1000 t
Washington, D.C.
20036 Tel. (202) 955-6600 Attorneys for Petitioner l
Combustion Engineering, Inc.
l Dated:
January 29, 1993 L
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IN THE UNITED STATES COURT OF-APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
-PETITION FOR REVIEW j
OF ORDER OF l
UNITED STATES NUCLEAR REGULATORY COMMISSION
)
-l COMBUSTION ENGINEERING, INC.
)
)
Petitioner,
)
)
v.
)
No.
}
UNITED STATES OF AMERICA AND
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION,
)
l
)
Respondents.
)
)
i CERTIFICATE OF SERVICE I hereby certify that I have this 29th day of January, T
1993, served a copy of the " Petition for. Review" and " Disclosure
'i of Interests of Parties" in the above-captioned proceeding by i
first class mail, postage prepaid, upon the Attorney General of i
i the United States and the Solicitor of the United States Nuclear Regulatory Commission.
Respectfully submitted, es/K46i Na'rold F. Reis j
NEWMAN & HOLTZINGER, P.C.
1615 L Street, N.W.
)
Suite 1000 Washington, D.C.
20036 Tel. (202) 955-6600 Attorneys for Petitioner i
Combustion Engineering, Inc.
Dated:
January 29, 1993 l
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IN THE UNITED STATES COURT OF APPEALS i
FOR THE' DISTRICT OF COLUMBIA CIRCUIT l
f PETITION FOR REVIEN OF ORDER OF UNITED STATES NUCLEAR REGULATORY COMMISSION r
l i
I i
)
)
.}
COMBUSTION ENGINEERING, INC.
)
)
f Petitioner,
)
)
I v.
)
No.
)
UNITED STATES OF AMERICA AND
)
[
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION,
)
)
i Respondents.
)
[
)
)
I t
MOTION OF COMBUSTION ENGINEERING, INC.
TO CONSOLIDATE WITH CASE NO. 92-1390 AND DEFER FURTHER PROCEEDINGS i
Combustion Engineering, Inc. ("CE") hereby moves the l
Court to consolidate this case with case No. 92-1390 currently pending before the Court and defer further proceedings in these i
consolidated cases.
l CE's Petition for Review, filed concurrently with this j
motion, seeks review of a final order of the United States i
Nuclear Regulatory Commission ("NRC") denying CE's request for f
exemption from the NRC's final rule published at 57 Fed. Reg.
f 32,691 (July 23, 1992) which imposes on CE annual fees.and surcharges for fiscal year 1992.
Case No. 92-1390 seeks review of that final rule.
Both No. 92-1390 and the present Petition j
l for Review involve the application to CE of different but related
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i provisions of the amendments to 10 C.F.R. Part 171 establishing the annual fee and surcharge for fiscal year 1992.
In view of
{
l the close relationship of No. 92-1390 with the present Petition for Review, the substantially similar legal issues involved in the two cases, and "[i]n order to achieve the most efficient use of the Court's resources as well as to maintain consistency in its decisions," 1/ CE submits that the Court should consolidate f
these cases.
CE also requests that the Court defer further i
i proceedings in this case.
The 1992 fee is based upon the same t
statute, Section 6101(c) of the Omnibus Budget Reconciliation Act
}
4 of 1990, Pub. L. No. 101-508, 104 Stat. 1388, 1388-298 (codified at 42 U.S.C.A.
S 2214 (Supp. 1992)).
It employs essentially the l
same methodology as that adopted by the NRC in an earlier rule I
promulgated for annual fees.
56 Fed. Reg. 31,472 (July 10, j
1992).
That latter rule and CE's related exemption request for r
f fiscal years 1991-1995 are the subject of consolidated cases Nos.
91-1407, 92-1019, 91-1435 and 92-1001 (hereinafter "the f
j Consolidated Cases") currently pending in this Court.
Therefore, the disposition by this Court of the Petitions for Review in the l
i Consolidated Cases may well determine the disposition of this l
case and No. 92-1390.
l t
1/
Handbook of Practice and Internal Procedures of the United f
States Court of Aeneals for the District of Columbia l
Circuit, Part V.A.,
p.26 (1987).
l t
On August 25, 1992, CE filed a Motion to Defer Further
.{
i Proceedings in No. 92-1390 for reasons similar to those set forth l
herein.
On October 8, 1992, the Court granted CE's motion and deferred further proceedings in No. 92-1390 pending a final j
decision in the Consolidated Cases.
j Accordingly, for the reasons stated above, and based on i.
the Court's earlier order deferring further action in 92-1390, CE i
i moves that the Court defer all further action on this case pending a final, non-reviewable decision in the Consolidated Cases or pending further motion of either CE or the Government.
j i
Respondents.
The NRC has authorized CE to advise the Court that j
i the Government Respondents have no objection to the relief sought i
i by this motion.
l Respectfully submitted, 4
Harold F. Reis i
Michael F. Healy l
R. Alexander Glenn NEWMAN & HOLTZINGER, P.C.
4 1615 L Street, N.W.
[
Suite 1000 i
Washington, D.C.
20036 i
Tel. (202) 955-6600 Attorneys for Petitioner f
i Combustion Engineering, Inc.
l i
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Dated:
January 29, 1993 l
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT l
k PETITION FOR REVIEW OF ORDER OF UNITED STATES NUCLEAR REGULATORY COMMISSION
[
i
)
COMBUSTION ENGINEERING, INC.
)
I
)
Petitioner,
)
j e
)
v.
)
No.
)
UNITED STATES OF AMERICA AND
)
j UNITED STATES NUCLEAR REGULATORY
)
COMMISSION,
)
l
)
Respondents.
)
~
)
i CERTIFICATE OF SERVICE f
I hereby certify that I have on this 29th day of t
January, 1993, served Combustion Engineering, Inc.'s " Motion to Consolidate With Case No. 92-1390 and Defer Further Proceedings" by first class mail, postage prepaid, upon the Attorney General of the United States and the Solicitor of the United States Nuclear Regulatory Commission.
Respectfully submitted, k_
/Af Harold F. Reis NEWMAN & HOLTZINGER, P.C.
1615 L Street, N.W.
Suite 1000 Washington, D.C.
20036 1
Tel. (202) 955-6600 Attorneys for Petitioner Combustion Engineering, Inc.
Dated:
January 29, 1993