In the Matter of: :
Complainant, : Case No.: 2002-ERA-28
v. :
Respondent. :

U.S. District Court
Courtroom 1944-C
Dirksen U.S. Courthouse
230 S. Dearborn Street
Chicago, Illinois 60604

December 19, 2002

The above-entitled matter came on for hearing,

pursuant to notice, at 9:00 a.m.

Administrative Law Judge









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On behalf of the Complainant:

134 N. LaSalle Street
Suite 1410
Chicago, Illinois 60602

On behalf of the Respondent:

Sidley, Austin, Brown, and Wood
10 South Dearborn Street
Chicago, Illinois 60603

















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Reporter: Stuart Karoubas Date: December 19, 2002
OALJ Case Name & Number: Oscar B. Shirani, 2002-ERA-28


Kevin Yessian 608 612 627 627

Martha Garza 634 648 656 657

Ruth Ann Gillis 663 699
Ellen Dee Caya 723

Russell Bastyr 735 789



RX 12 756 756

RX 13 767 767
RX 19 637 637

RX 20 638 638

RX 22 647 647

RX 25 648 648











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1 P R O C E E D I N G S

2 (8:38 a.m.)

3 JUDGE LESNICK: All right. This is day three of

4 Shirani versus Exelon, 2002-ERA-28. And raise your right hand,

5 sir.

6 (Whereupon,


8 was called as a witness by and on behalf of the Respondent, and

9 after having been first duly sworn, was examined and testified

10 as follows:)

11 JUDGE LESNICK: Mr. Gross, you may question the

12 witness.



15 Q Mr. Yessian, will you please state your full name and

16 spell your last name for the record?

17 A Kevin C. Yessian, Y-e-s-s-i-a-n.

18 Q Mr. Yessian, who is your current employer?

19 A Exelon.

20 Q What specific Exelon entity?

21 A Exelon Generation.

22 Q And what position are you currently in?

23 A Vice President of supply.

24 Q When did you assume that position?

25 A September of 2000.

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1 Q When did you first come to work at Exelon Generation

2 or any other Exelon company?

3 A September of 2000.

4 Q Prior to that you worked for whom?

5 A A company by the name of CBNI which stands for

6 Chicago Bridge and Iron.

7 Q Prior to September of 2000 did you have any

8 affiliation with Commonwealth Edison Company or Exelon Nuclear?

9 A None whatsoever.

10 Q What briefly are your duties as vice president of

11 supply?

12 A I'm responsible for approximately 1.3 billion dollars

13 of annual purchases, all the requirements of both services and

14 materials for the organization as far as generation is

15 concerned.

16 Q When did you first meet Oscar Shirani?

17 A Probably within a couple weeks after I hired onboard.

18 Q Where did you meet him and how did it come to pass

19 that you met him?

20 A Oscar Shirani is an employee within the group of

21 supplier evaluation services who worked for Russ Bastyr.

22 Q What did Mr. Shirani tell you in this conversation

23 with you that first conversation about himself?

24 A What I recall is some of the discussions is that he

25 enjoyed working for Exelon and he wanted to stay working for

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1 Exelon and just sort of general type of conversations.

2 Q And did he in that conversation have any discussion

3 with you about any frustrations he was having in his position?

4 A No, he did not.

5 Q When did you first learn that Mr. Shirani was

6 considering a position in the finance organization of the

7 company?

8 A It was probably within one to two months after the

9 September period.

10 Q And how did you learn that?

11 A He approached me and he had indicated that he was

12 interested in a position within finance and I had mentioned to

13 him that, you know, what kind of skill sets did he have for

14 that particular position versus the skill sets he has in his

15 previous position within the supplier evaluation group.

16 Q Why did you tell him that?

17 A Ruth Ann at the time was in charge of finance and

18 Oscar's background was predominately technical.

19 Q What did Mr. Shirani tell you regarding the reason he

20 was interested in that position?

21 A He was specifically interested in advancing and

22 seeking a higher grade level position in the organization.

23 Q What did you tell Mr. Shirani in that conversation

24 regarding any possibility of coming back to nuclear if he

25 leaves?

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1 A Well, I had mentioned that based on my assessment

2 within the first full 40 or 50 days that I was engaged in the

3 company and I questioned the need to have that many people in

4 the supplier evaluation group. At the time there was

5 approximately 11 people. Today there's seven individuals

6 including Russ Bastyr who's the supervisor and manager of the

7 department.

8 Q Again, what did you tell Mr. Shirani on that topic in

9 this conversation?

10 A I had mentioned to him that I was planning on

11 reducing the staff down to seven and that if he was to leave in

12 that position it would not be filled.

13 Q Can you look at the binder to your left there which

14 is a binder of Respondent's Exhibits. And specifically turn to

15 Exhibit 32.

16 And that is an e-mail in the bottom portion that

17 Mr. Shirani sent to Mr. Ellis with you cc. Do you see that

18 e-mail?

19 A Yes, I do.

20 Q Do you recall a conversation with Jerry Ellis on or

21 before the date of this e-mail July 26, 2001?

22 A I, the discussion that I informed Mr. Ellis was that

23 there were no open positions in my particular group.

24 Q And does this e-mail accurately reflect what you told

25 Mr. Ellis in that conversation?

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1 A It specifically says it had been reduced from 11 to

2 seven.

3 Q Did you ever report directly or indirectly to David

4 Helwig?

5 A For a very short period.

6 Q How short?

7 A Approximately two months.

8 Q Did Mr. Helwig ever ask you directly or suggest to

9 you that you take any particular action against or towards

10 Mr. Shirani?

11 A None whatsoever.

12 Q Did anyone ever ask you directly or suggest to you

13 that you encourage or get Mr. Shirani to leave Exelon Nuclear?

14 A None whatsoever.

15 Q Did you ever do that?

16 A No.

17 MR. GROSS: I have no further questions.

18 JUDGE LESNICK: Mr. McDermott, you may cross examine.



21 Q Your testimony is you had one conversation with

22 Mr. Shirani?

23 MR. GROSS: Objection. That's a mischaracterization.

24 MR. McDERMOTT: I believe that's --

25 JUDGE LESNICK: It's on cross. I'll allow it.

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2 Q Is that your testimony?

3 A No. I believe I think I was reanswering his question

4 as it relates to a particular conversation associated with his

5 interest in seeking a position outside of supply. I had, much

6 like I have a lot of conversations with a lot of the employees

7 that work for me as to what's happening, what's going on, etc.

8 I can't recall whether it was four conversations, three

9 conversations or 15 conversations.

10 Q So you may have had 15 conversations with

11 Mr. Shirani?

12 A No, I believe the point that I'm making is --

13 Q I'm not asking what point you're making. I'm asking

14 you a question. Did you have just one conversation with

15 Mr. Shirani?

16 A No. There was probably more than one conversation.

17 Q How many did you have?

18 A I don't keep track of the conversations I have with

19 all of my employees.

20 Q Was Mr. Shirani your employee when you had your

21 conversation with him?

22 A No. He was not my employee he was --

23 Q Okay.

24 A -- an employee --

25 Q Let me ask you --

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1 MR. GROSS: Can he finish the answer, please.

2 MR. McDERMOTT: He said no. That's the answer I

3 wanted.

4 MR. GROSS: He can finish his answer. Please don't

5 interrupt.

6 MR. McDERMOTT: All right.

7 THE WITNESS: You asked whether or not he was an

8 employee to me. He worked for Russ Bastyr. He was two levels

9 down in the organization.


11 Q I'll ask you again. Did he work for you?

12 A He worked within the supplier evaluation group of

13 which is part of the supply organization.

14 Q I see. So he was one of your employees?

15 A That is correct.

16 Q And you came from Chicago Bridge, right?

17 A Correct.

18 Q And in the first two months you had a conversation

19 with somebody two levels below you?

20 A I have a very small group here in the Canterra office

21 consisting of approximately 25 employees.

22 Q When you say the Canterra office, what did you mean?

23 A At the time it was in Downers Grove.

24 Q Where is it now?

25 A It's in Canterra which is in Warrenville.

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1 Q At the time you had this conversation during the

2 first two months of your employment with Exelon when you came

3 from Chicago Bridge, where did you have this conversation with

4 Mr. Shirani?

5 MR. GROSS: I'll object as to vagueness. We talked

6 about two different conversations with him. If you could

7 please identify which --

8 MR. McDERMOTT: I don't know how many conversations,

9 Judge, I'm trying to find that out.

10 MR. GROSS: And I'm asking you to identify which

11 conversation.

12 MR. McDERMOTT: The first conversation. The only one

13 he gave testimony to.

14 MR. GROSS: Objection. Mischaracterization.

15 JUDGE LESNICK: He can answer.

16 THE WITNESS: I'm not sure. Can you repeat the

17 question.


19 Q Where did you have this first conversation with

20 Mr. Shirani?

21 A I would surmise that it was in the building --

22 Q Where?

23 A -- in which we are engaged. At the time it was in

24 Downers Grove.

25 Q All right. So this was Downers Grove sometime in

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1 September, October?

2 A September or October.

3 Q Not November?

4 A Was, was within the two or three months in which he

5 was under our group.

6 Q What date in December, I'm sorry. What date in

7 September did you come to work for Exelon?

8 A It was approximately September 1st.

9 Q September the 1st.

10 A Correct.

11 Q And did Mr. Shirani come to your office for this

12 conversation?

13 A I don't believe so.

14 Q Where did you have this conversation?

15 A It was either in a conference room or was at his

16 desk.

17 MR. GROSS: Your Honor, I'm again going to object.

18 He keeps referring to this conversation. There is testimony

19 about the initial conversation when he first met him and then a

20 conversation about a position. I would just like some clarity

21 on which one we're talking about.

22 JUDGE LESNICK: Which one do you believe you're

23 talking about?

24 THE WITNESS: I believe the first time I met him.


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2 Q All right. So the first time you met him he bares

3 his soul about he wants to move? Get a new job?

4 A No.

5 Q Well, what did you have, let's get to the first

6 conversation. What did he say to you and what did you say to

7 him?

8 A First of all I introduced myself to all my employees

9 when I came on board. So --

10 Q And did you do that individually?

11 A Yes, I did.

12 Q All right. So this would have been the first

13 conversation with Mr. Shirani?

14 A That is correct.

15 Q And you introduced yourself to all 11 SES people

16 individually?

17 A I believe I did, yes.

18 Q You believe or you did?

19 A Well, the group travels a significant amount of their

20 time performing inspections. I don't recall whether I met all

21 of those people within that immediate time frame that I'm

22 referring to. Some of them could have been traveling.

23 Q So you may not have met everybody in SES?

24 A That's possible.

25 Q But you had already decided to downsize?

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1 A I believe I said that within 45 to 50 days I did an

2 assessment as to how many evaluations they were performing and

3 the number of people that it takes to perform those

4 evaluations.

5 Q So you did check into Mr. Shirani's work, correct?

6 A As far as, what's your question?

7 Q Well, you said you checked into each of these

8 people's number, each person's evaluations, is that correct?

9 A No.

10 Q The numbers of audits I take it?

11 A That's correct.

12 Q Or inspections?

13 A Right.

14 Q And then you knew how many vendors Mr. Shirani

15 supervised and monitored, correct?

16 A I asked Mr. Russ Bastyr to put together an

17 analysis --

18 Q That's not, please, did you know how many vendors

19 Mr. Shirani supervised?

20 A Yes.

21 Q How many?

22 A I don't have that number with me right now.

23 Q All right. Do you know what band or level of

24 suppliers Mr. Shirani personally was responsible for auditing?

25 A Yes, I do.

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1 Q Who were they?

2 A They were high quality type vendors. They were all

3 safety related type companies and they were all materials in

4 which performed safety type material requirements.

5 Q Did anybody else have a similar workload as

6 Mr. Shirani?

7 A I believe when I performed the evaluation that the

8 workload was evenly distributed throughout for the given year

9 and the number of audits that have to be performed.

10 Q All right. Who was monitoring Westinghouse at that

11 time?

12 A I don't recall.

13 Q Who was monitoring Holtec/U.S. Tool and Die at that

14 time?

15 A Let me say that we have approximately 932 suppliers

16 that fall into our radar screen. I cannot specifically sit

17 here and designate which individuals in my group are

18 responsible for which suppliers.

19 Q Let's get back to that first conversation. You

20 introduced yourself to Mr. Shirani, is that correct? That's

21 why you had this first conversation?

22 A Yes.

23 Q What did he say to you and what did you say to him?

24 A I think Mr. Shirani had talked about some of the

25 things that he had done for the organization and my point was

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1 to just get a general introduction with all the employees.

2 Q All right. So that's the substance of the first

3 conversation?

4 A I believe so.

5 Q So it was strictly related to and it's fair to say

6 Oscar's pretty proud of the work he does, right?

7 A Uh-huh.

8 Q And he wasn't ashamed to show that pride to you,

9 correct?

10 A And I wouldn't expect any of the employees to take a

11 different approach.

12 Q All right. So his conversation with you was

13 unremarkable? As a manager from your perspective?

14 A It, I, that was, it's a value call and I didn't form

15 any opinions at that time.

16 Q All right. So this is September, October, November,

17 right? September, October time, correct? Is that correct?

18 A That's correct.

19 Q Did he tell you he had just completed a U.S. Tool and

20 Die/Holtec dry cask storage audit that identified very, very

21 serious problems with respect to your storage of spent fuel

22 lines?

23 MR. GROSS: I'll object to the argumentative nature

24 of the question.

25 JUDGE LESNICK: I'll allow it.

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2 Q Did he tell you about it?

3 A I think he mentioned to me that there was a series of

4 issues which is no different than some of the other

5 manufacturers in which we have what is called nonconformance.

6 Q Did he tell you about Holtec/U.S. Tool and Die dry

7 cask storage problems at Dresden? Did he tell you that he

8 every other week met with a dry cask storage supervisory group?

9 Did he tell you those things?

10 A I believe he did.

11 Q So you were certainly aware of this safety issue,

12 correct?

13 A Well, no different than any of our suppliers, okay.

14 Any of the suppliers that provide safety related materials for

15 the nuclear industry fall in the same realm of concern and to

16 make sure that they do conform to all of the specifications.

17 Q How many other people told you about similar safety

18 related issues as you went around and maybe met all of the 11

19 SES evaluators?

20 A In any given instance throughout any time period

21 manufacturers have anomalies in their manufacturing process.

22 The whole purpose of this group is to make sure than

23 nonconformance is minimized if not down to zero, okay. For any

24 materials that are supplied in the nuclear industry that are

25 rated in a safety related classification.

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1 Q Did you ever read the audit report?

2 A No.

3 Q Are you familiar with audit reports?

4 A Yes.

5 Q Safety related issues?

6 A Yes. I've seen --

7 Q Did you do that at Chicago Bridge?

8 A No.

9 Q So this is something you're learning in September of

10 the year 2000, is that correct?

11 A I stand to be corrected.

12 Q How so?

13 A I'm familiar with the nuclear industry in my former

14 jobs. CBNI was a manufacturer of a lot of the pressure vessels

15 that are supplied in the nuclear industry, I was also

16 responsible for our manufacturing facility. They too had an N

17 staff which designates that they have the capabilities of

18 producing nuclear.

19 Q So this first meeting occurred in the first

20 September, October time frame and then you had another meeting

21 with, when Oscar tells you about his career prospectus?

22 A Correct.

23 Q Where was that meeting?

24 A That meeting was also in the Downers Grove facility.

25 Q Do you know where in the Downers Grove facility?

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1 A I would either surmise it was either in my office or

2 in a conference room.

3 Q When you say surmise does that mean you don't

4 remember where?

5 A Well, it would only take two places. Most of the

6 employees are in cubicles.

7 Q Right.

8 A And when I would deal with an employee I would try to

9 be in a confined area.

10 Q All right.

11 A The two confine the areas that I would be most likely

12 to meet with employees instead of an open area would be in a

13 conference room or in my office.

14 Q So you're surmising. Do you remember where it was

15 you had this second conversation with Mr. Shirani?

16 A Like I said the answer to my question was either in a

17 conference room or in my office.

18 Q Do you remember now this is not September or October,

19 this is later, is that correct?

20 A I would assume it was sometime in October or November

21 time frame.

22 Q But you don't remember exactly?

23 A No, I do not.

24 Q Do you ever take notes of these meetings?

25 A No, I do not.

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1 Q But you have a pretty substantial recall of what was

2 said, right?

3 A I don't know what you consider substantial.

4 Q Well, you say Oscar told you he was looking for and

5 had a job offer did you say?

6 MR. GROSS: Objection. Mischaracterization of his

7 testimony.


9 Q Well, what did he say to you? What did Oscar tell

10 you at the second meeting?

11 A Oscar was informing me that he was seeking

12 opportunity --

13 Q What did he say?

14 MR. GROSS: Excuse me. He's answering your question.

15 MR. McDERMOTT; No, he's not.

16 MR. GROSS: Objection.

17 JUDGE LESNICK: That's all right. Go ahead.

18 THE WITNESS: Oscar indicated to me that he was

19 seeking some opportunities specifically to a higher grade level

20 in the organization. And that he was good friends with Ruth

21 Ann Gillis, okay.


23 Q Well, but if you're going to quote what somebody says

24 they don't say Oscar was. What did he say, what were his words

25 as you remember them?

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1 A I'm just told you. I just answered that question.

2 Q No. You gave me a third person analysis. What were

3 the words? Like I'm saying to you now. Please recall his

4 exact words.

5 A To the best of my recollection Oscar approached me

6 and said he was exploring an opportunity in the finance area.

7 Q And he told you he was a good friend of --

8 A Ruth Ann Gillis.

9 Q And you knew who Ms, Ruth Ann Gillis was?

10 A At the time Ruth Ann Gillis was CFO of the

11 organization.

12 Q That's not my question. At the time you knew who she

13 was, correct?

14 A That's correct.

15 Q Thank you. And now you've already answered who she

16 was in fact, right. I don't need to ask that question.

17 What did you exactly say to him?

18 A I mentioned to Oscar that his technical skills versus

19 a finance position and indicated that it didn't look like to me

20 that it was a job in which he was best suited for.

21 Q So you were trying to tell him, I'm sorry. You told

22 him don't go there?

23 A No. Just the contrary. I was trying to engage in

24 some discussion in which he would in turn he came back and

25 informed me that they were planning on providing him extensive

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1 amount of training to get him facilitated to be able to do that

2 particular position.

3 Q This is in the same conversation?

4 A That's correct.

5 Q So there had been a promise of training sometime in

6 October or November --

7 MR. GROSS: Objection. Mischaracterization of his

8 testimony.

9 JUDGE LESNICK: Well, it's cross. You can disagree.

10 MR. McDERMOTT: Thank you.


12 Q So Oscar is telling you that they, whoever they are,

13 are going to train him, correct? Extensively, correct? He

14 told you that right?

15 A That's what I just said.

16 Q Okay. Is that correct? I want to get your testimony

17 down straight.

18 MR. GROSS: Yes. He's answered the question

19 straight. I object to the argument.

20 JUDGE LESNICK: I'll allow it. Go ahead.

21 MR. McDERMOTT: Thank you.


23 Q And what did you say to that?

24 A When an employee is seeking opportunities, any of my

25 employees, I don't discourage nor I encourage an individual to

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1 seek a particular job that I may interrupt not being an ideal

2 fit. I think that's an individual's decision.

3 Q I didn't ask you what your world view was. No --

4 request. What did you say to him, not what you felt about

5 employees coming to you and how you felt your obligation to

6 counsel them was. What did you say to him.

7 A That was the end of the conversation.

8 Q So you didn't say anything?

9 A Nope.

10 Q So you didn't tell him anything? Right? You just

11 testified here how you feel about people who tell you these

12 things, right?

13 MR. GROSS: Objection.

14 MR. McDERMOTT: Thank you. No other questions.



17 Q And Mr. Yessian, you testified also as to the

18 information you provided Mr. Shirani about the possible

19 opportunity to come back, correct?

20 A Yes, that's right.

21 Q You informed him of that in that conversation,

22 correct?

23 A Yes, I did.

24 MR. GROSS: No further questions.


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2 Q Well, now I'm going to have to ask some more.

3 This is the second conversation. You just now less

4 than a minute ago told me he shared some information with you

5 and then that was it. But now after being reminded of what

6 your testimony should be you'll telling the Court that you gave

7 him a warning. Is that right?

8 A You're categorizing this as a warning. I'm not sure

9 I understand what --

10 Q You just told him if you go you're not coming back.

11 There won't be any place for you. That's a warning isn't it?

12 A I believe I indicated that the program is to reduce

13 the number of people in my group.

14 Q Oh, it's during this conversation that you tell him

15 you're reducing from 11 to 7, that you made that decision?

16 A Yeah. That was made as I mentioned earlier in this

17 testimony sometime in the October time frame.

18 Q And you made that decision?

19 A That's correct.

20 Q And you had announced that to everybody in the SES

21 organization? And all these 11 people are now in October

22 knowing that they're going to lose four of their brothers?

23 They know that, right?

24 A Well, I'm not sure what you categorize as the word

25 announce, okay. Did I publish a paper that says I'm reducing

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1 the staff or did I talk to Russ Bastyr and come to a conclusion

2 with management --

3 Q When you say --

4 A -- then come back, I think you've got to have a

5 little crystal clarity to the way you posed your question.

6 Q Well, then let me pose it very directly. You told

7 him in November, am I correct, that you were going to reduce

8 SES from 11 to 7 people?

9 A That's correct.

10 Q And had you told any other employees other than Russ

11 Bastyr that you were going to do that?

12 A I don't recall.

13 Q You don't recall?

14 A No.

15 Q Would you be going around, is that a good management

16 posture to go and tell employees one of 11 before you are going

17 to be no longer with us that we're downsizing?

18 A I act when there's a decision, and I hadn't made the

19 decision as to how we were going to reduce is the fact there

20 wasn't enough work to support the engagement of 11 individuals.

21 Q Well, you made the decision?

22 A Through the analysis performed by Russ Bastyr.

23 Q Well, okay so it was his recommendation to you?

24 A It was his analysis that was performed. The data

25 speaks for itself.

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1 Q So does Mr. Bastyr, right?

2 A I don't know --

3 MR. GROSS: I'll object to the rhetoric.

4 MR. McDERMOTT: Well, let me --

5 JUDGE LESNICK: Overruled.


7 Q Let me just ask. Did you tell any other employees

8 other than Mr. Shirani that Mr. Bastyr had looked at all of

9 their performances and looked at all of their work and that he

10 had recommended to you and the data speaks for itself that

11 there should be a downsizing?

12 A No, you're making a connection between performance of

13 employees versus workload and I think there's a great

14 differentiation between that.

15 Q Okay.

16 A This wasn't an issue of performance of employees.

17 Q All right. So your 900 plus vendors would not require

18 11 SES employees, correct?

19 A On the number of annual audits needed to perform

20 that's correct.

21 Q All right. So are you familiar with something called


23 A Yes, a little bit.

24 Q A little bit. Do you know what NUPIC stands for?

25 A No.

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1 Q Do you know what NUPIC does?

2 A In an over large perspective, yes.

3 Q What does it do?

4 A Provides a vehicle for outside evaluations performed

5 by multiple parties.

6 Q And isn't it precisely an organization to which your

7 company belongs that meets regularly? Mr. Bastyr's in fact a

8 representative. They decide on annual audits running employees

9 like Mr. Shirani, like Mr. Bastyr I take it, to do audits of

10 safety related issues for vendors that all of them use and that

11 they share these audits between themselves and that they keep

12 each other informed as to problems that develop with vendors?

13 Is that essentially it?

14 A That's the objective of the program.

15 Q You're sure you told Mr. Shirani that you were

16 downsizing and that if he left there wouldn't be a job for him

17 when he came back?

18 A That is correct.

19 Q And used those or similar words?

20 A Similar words.

21 Q And what did Mr. Shirani say to you in response to

22 that?

23 A I can't recall specifically what his response was.

24 Q Was that the last conversation you had with

25 Mr. Shirani?

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1 A There was probably some informal discussions based on

2 some other participations at the Asian, various meetings that I

3 attend as it relates to the diversity objectives of the

4 organization.

5 Q Is that AACES?

6 A That's correct.

7 Q Was Mr. Shirani active in AACES after the November

8 time frame that you had this conversation?

9 A I don't know his level of being active at that time.

10 Q Did you and he attend these AACES events after this

11 conversation?

12 A I try to attend as many as I can.

13 Q Did you and he attend anything together after this

14 conversation you had in November --

15 A I can't recall.

16 Q So you don't remember seeing or talking to him again?

17 A No.

18 Q So this second conversation could have been the last?

19 A Possibly.

20 MR. McDERMOTT: Thank you.

21 MR. GROSS: I have nothing to ask him.


23 Q Mr. Yessian, when you informed Mr. Shirani about the

24 intended downsizing, did you talk to him about how you intended

25 to downsize?

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1 A No, I did not.

2 Q Did you talk about whether it would be through

3 attrition or through actual removing of anyone?

4 A No, I did not.

5 Q If I'm Mr. Shirani and you're telling me this, could

6 I have, would I be correct in that I could take two meanings

7 from it? One is your telling me I can't have, I won't have a

8 job if I leave to come back to. Or that I'm out of a job if I

9 stay? Would that be fair either way?

10 A No, I think it would be the former rather than the

11 latter that he wouldn't have an opportunity to come back.

12 Q That's the meaning you hoped to convey?

13 A Correct, right.

14 Q But if he thought you were saying, well, I mean I

15 wouldn't have a job I stay because you're downsizing, did you

16 say anything to him that would contradict that?

17 A No. As a matter of fact, yeah, I did say something.

18 I said by all means we value your service in the organization.

19 So there was no indications that his performance was in, in

20 question.

21 Q In fact how did you downsize? Through attrition or

22 did you remove anyone?

23 A Predominately through attrition?

24 Q You did remove some people?

25 A I believe there is one person that we removed.

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1 Q Okay.

2 JUDGE LESNICK: All right. Does that raise any

3 questions?

4 MR. GROSS: No, Your Honor.

5 MR. McDERMOTT: Thank you, Judge.

6 JUDGE LESNICK: Thank you --

7 MR. GROSS: I'll get our next witness.

8 JUDGE LESNICK: Off the record.

9 (Off the record.)

10 (On the record.)

11 JUDGE LESNICK: Raise your right hand please.

12 (Whereupon,


14 was called as a witness by and on behalf of the Respondent, and

15 after having been first duly sworn, was examined and testified

16 as follows:)

17 JUDGE LESNICK: You may question the witness.



20 Q Ms. Garza, can you please state your full name and

21 spell your last name for the record?

22 A Certainly. Martha Garza, G-a-r-z-a.

23 Q And what is your current position?

24 A I am human resources manager for the corporate

25 center. Business Services Company.

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1 Q And you've been in that position since when?

2 A Merger date October 23rd, 2000.

3 Q Can you describe what duties you have in that

4 position?

5 A I am responsible for recruiting, for multiple aspects

6 of human resources, performance management, succession

7 planning, leadership development. Mainly recruiting internal

8 and external.

9 Q Have you ever had any job assignment in ComEd's

10 nuclear operations or Exelon Nuclear?

11 A Never.

12 Q Can you please turn to Exhibit 19 in the binder,

13 Respondent's Exhibit 19. And can you please identify that

14 document for us?

15 A This is an internal resume from our people's soft HR

16 system. And it gives job history for our employees.

17 Q Whose internal resume is this?

18 A This is Oscar Shirani's.

19 Q Would you please look at the first page of

20 Respondent's Exhibit 19 and specifically do you see his salary

21 grades identified under the various positions?

22 A Yes.

23 Q There is a 07 up through 09. Can you describe for us

24 what the system was in place during that time period?

25 A During that period we had a numeric salary grade

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1 system 1 through 24. So Oscar was a level, various levels

2 throughout that period of time.

3 Q And it indicates a change to an E salary grade in

4 January of 2000. Can you explain what occurred there?

5 A During that time period we changed our salary grades

6 from numeric to alpha so the E that Oscar became at that time

7 was equivalent to the 9.

8 Q How many employees did this change apply to?

9 A All of the exempt employees.

10 Q Did any reduction in pay accompany that change?

11 A No.

12 Q The second page, Exhibit 19, on the top contains a

13 salary history. What is that?

14 A This actually gives the annual salary and any

15 movement that took place with that salary during an employee's

16 history.

17 Q And then the job performance section down below on

18 the second page tells you what?

19 A That is the actual performance rating that's given to

20 employees.

21 Q Overall performance rating?

22 A Yes. Annual performance rating, correct.

23 MR. GROSS: Move to admit Respondent's Exhibit 19.

24 JUDGE LESNICK: Any objection?

25 MR. McDERMOTT: No objection, Judge.

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1 JUDGE LESNICK: Admitted.

2 (Whereupon, the document referred

3 to as Respondent's Exhibit No. 19

4 was marked and received into

5 evidence.)


7 Q Could you please turn to Respondent's Exhibit 20 and

8 ask you if you recognize this document?

9 A Yes.

10 Q What does this describe?

11 A This is the mapping of the old salary band structure

12 and the equivalent new salary bands under the Exelon model.

13 Q And when did these changes to the Exelon model go

14 into place?

15 A At merger day one.

16 Q Under Unicom band in this document there's some

17 letters indicated. What are those?

18 A That was the previous salary band structure for

19 Unicom prior to the merger.

20 Q And where was Mr. Shirani's salary grade in this

21 Unicom band structure as reflected on Respondent's Exhibit 20?

22 A He was a salary grade E.

23 Q What did that translate to at the time of the merger?

24 A A salary band 3.

25 Q The internal resume has an E-3 indicated on October

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1 23, 2000. Can you explain the E in front of the 3?

2 A Certainly. All of our employees aren't on this new

3 system. The E designated exempt employees as opposed to

4 nonexempt employees.

5 Q And the 3 reflected on Respondent's Exhibit 19

6 correspondents to the Roman Numeral three on the lefthand side

7 of Respondent's Exhibit 20?

8 A Yes.

9 MR. GROSS: Move to admit Respondent's Exhibit 20.

10 MR. McDERMOTT: No objection.

11 JUDGE LESNICK: Admitted.

12 (Whereupon, the document referred

13 to as Respondent's Exhibit No. 20

14 were marked and received into

15 evidence.)


17 Q Was Mr. Shirani ever demoted from E-4 to E-3?

18 A No.

19 Q Could you please turn to what had been marked as

20 Complainant's Exhibit 19 and I will put one in front of you.

21 It's in a different binder. I'll hand this to you.

22 Can you tell me what kind of document that is?

23 MR. McDERMOTT: Can I ask you? Counselor, do I have

24 it?

25 MR. GROSS: It's Complainant's Exhibit 19.

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1 MR. McDERMOTT: Oh, all right.

2 MR. GROSS: Yes. I don't have an extra copy.


4 Q I'm sorry. Could you please explain what that is?

5 A This is an overall compensation summary that shows an

6 employee's basic compensation. Their annual target and a

7 quarterly incentive that they participate in. So this is

8 Oscar's compensation summary specifically for a one year.

9 Q What organization generated that document?

10 A This comes out of HR the compensation department.

11 Q And which company's HR did that come out of?

12 A This would have come out of the Business Services

13 Company.

14 Q Is that part of your HR organization?

15 A Yes.

16 Q Is this a standard document generated for all

17 employees?

18 A Yes.

19 Q What does this actually reflect?

20 A This reflects performance for the year 2000 and

21 proposed compensation for the new year 2001.

22 Q What is the earliest possible date that document

23 could have been generated?

24 A Traditionally this is at the end of our compensation

25 process so late February, very late February 3rd to 4th week in

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1 February for the previous year.

2 Q And when after a performance evaluation rating is

3 assigned for a calendar year is that document generated? How

4 long after?

5 A Normally six to seven weeks.

6 Q I'd like to direct your attention now to the fall of

7 2001. Can you tell me how you were involved in Ms. Caya's

8 restructuring of the internal audit organization at that time?

9 A As the HR manager I supported Ellen in, supported and

10 administered the process to fill open positions in the internal

11 audit department.

12 Q And when you say support what do you mean?

13 A I had responsibility for the internal posting

14 process. I had responsibility for scheduling interviews and

15 coordinating all of that for a hiring manager.

16 Q Would you please turn to Respondent's Exhibit 4 in

17 the binder.

18 Do you recognize this e-mail?

19 A Yes.

20 Q If you could turn to the second page of Respondent's

21 Exhibit 4. Tell me whether that reflects that dates that were

22 determined for the application process during that

23 restructuring?

24 A Yes. Those are accurate dates.

25 Q What date were the jobs posted for the positions?

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1 A Friday, October 5th.

2 Q And what was the deadline for applying for those

3 positions?

4 A Jobs were posted for 10 days so the applications

5 would have been received through Tuesday, October 16th.

6 Q How did you first become involved with Mr. Shirani in

7 the context of this particular restructuring process?

8 A Mr. Shirani phoned me prior to the posting being

9 official. Ellen had been very good about keeping all of her

10 employees or current employees informed of the process that we

11 would be using to fill jobs.

12 Oscar phoned me the night before October 5th, it was

13 a Thursday night and said that he was aware that the jobs would

14 be posted the next day and he wanted specifically to talk about

15 the manager position.

16 Q What did he say?

17 A He said that based on the criteria as outlined in the

18 posting that he didn't think that he met the criteria as

19 outlined. I encouraged him to apply even though he didn't feel

20 that he met the criteria. I encouraged him to at least go

21 through the interview process and present his qualifications

22 and, and have the discussion with Ellen.

23 Q Why would you recommend he apply if he did not

24 believe he was qualified to meet the requirements?

25 A I mean clearly during an interview process you're

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1 able to sell yourself and present those things that you feel

2 might be important to indicate that you can do a job. So he,

3 he specifically mentioned a CPA, he wasn't a CPA. But a CPA

4 would not be the only criteria that you would need to

5 successfully do the job. So that's why I encouraged him to, to

6 apply.

7 Q What did he tell you in conversation about his

8 interest in any position other than the E-4 manager job?

9 A He, he was adamant that his current salary was very

10 close to the maximum of the next lower job, an E-3 position.

11 And he didn't want to go to a lower job because his salary was

12 so close to the maximum already and he didn't want to take a

13 demotion or a cut in pay.

14 Q How did you respond to that?

15 A That he should apply for those jobs that he thought

16 he was qualified to do.

17 Q Did you provide him any information in that

18 conversation about that salary issue and his current salary

19 being close to the top of the E-3?

20 A I don't recall.

21 Q What was the policy with respect to positions you

22 could be considered for during this process?

23 A You could be considered for any position that you

24 applied for.

25 Q During this process was anyone considered for a

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1 position for which that person did not apply?

2 A No.

3 Q Do you recall a meeting with Mr. Shirani on October

4 26th regarding his termination?

5 A Yes.

6 Q Who was there?

7 A Oscar, Ellen Caya and myself.

8 Q And from your perspective what was the purpose of the

9 meeting?

10 A The purpose was to inform Oscar that he had not been

11 selected for the position for which he had applied, the E-4

12 manager. And consequently because he didn't apply for any

13 other position and was not selected for that specific position

14 he then became eligible for merger severance benefits as a

15 result of that.

16 Q Turn to Respondent's Exhibit 33 please.

17 I ask if you recognize that document?

18 A Yes.

19 Q Who presented this to Mr. Shirani at that October

20 26th meeting?

21 A Ellen and I both. I, I went through the details of

22 the contents of the letter.

23 Q And does this accurately set forth the terms that

24 were given to Mr. Shirani on his termination?

25 A Yes.

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1 MR. GROSS: I believe Respondent's Exhibit 33 is

2 already in evidence, Your Honor.

3 JUDGE LESNICK: Off the record.

4 MR. GROSS: I just want to make sure.

5 (Off the record.)

6 (On the record.)


8 Q Ms. Garza, if you could refer to the second page at

9 the top it refers to outplacement service. Can you tell me

10 what that service is?

11 A All of our employees that are eligible for severance

12 benefits also are given an opportunity to participate in

13 outplacement support services through an external vendor that

14 we contracted with.

15 Q And that is a service available where physically?

16 A The Dersten Group is a company that has offices

17 located throughout the Chicagoland area with some in the

18 western suburbs, in the northern suburbs and even in downtown.

19 Q And do employees or former employees have access to

20 ECOS through that service?

21 A Yes, they do. They have access through the web and

22 then also through a toll free number to access any jobs that

23 may be open in our internal posting process.

24 Q If you could turn now to Respondent's Exhibit 21.

25 Did you receive a copy of the e-mail on the bottom portion of

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1 that first page of Respondent's Exhibit 21 which is an e-mail

2 from Mr. Shirani to Mr. Rowe dated October 30th, 2001?

3 A Yes.

4 Q Okay. Can you tell me what date you received that?

5 A On October 30th.

6 Q What information did you receive regarding others who

7 had received this e-mail as well?

8 A I received the e-mail and while I was reading the

9 e-mail I think I started to get telephone calls from various

10 folks throughout the company asking about the e-mail and I was

11 somewhat surprised because they weren't copied on the e-mail

12 but they shared with me that they had been blind copied on the

13 e-mail and it was members of the various employee network

14 groups that were calling me asking about this.

15 Q What decision was made because this e-mail was sent?

16 A We decided, Ellen and I decided that we needed to set

17 up a meeting with Oscar immediately to address this issue and

18 to in essence to begin the transition process to transition his

19 existing work and allow him to move on to the outplacement

20 services that had been offered to him.

21 Q If you could turn to Respondent's Exhibit 22 please

22 and I'll ask you if you recognize that document?

23 A Yes.

24 Q Who prepared these notes in Exhibit 22?

25 A I did. They're my notes.

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1 Q And what do they reflect?

2 A The meeting that took place with Oscar on the

3 afternoon of October 30th.

4 Q That meeting took place after the?

5 A After the e-mail, correct.

6 Q And how long after you received that e-mail, excuse

7 me. How long after the meeting itself did you prepare these

8 notes?

9 A Immediately. That afternoon.

10 Q And this accurately sets forth what happened in that

11 meeting?

12 A Absolutely.

13 Q Can you tell me what happened that lead to security

14 coming?

15 A The, the intent was to get Oscar to begin to

16 transition his work to other members of the internal audit

17 department. He was at a point in his audit project that it

18 would be simple enough for him to transition over. We wanted

19 to give him an opportunity to avail himself of the outplacement

20 services.

21 Oscar became very belligerent and confrontational

22 during that meeting and indicated that we could not remove him

23 that, that he didn't have to leave the property that we needed

24 a court order to remove him from the property. That it was his

25 right to stay on the property. That he was an employee and I

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1 confirmed with him that he would remain on the payroll through

2 the end of his transition period but that it was in the

3 company's best interest that he go to outplacement and start

4 the search internal or external for another position.

5 Q Who made the decision to call security if you recall?

6 A Ellen specifically.

7 MR. GROSS: Move to admit Respondent's Exhibit 22.

8 MR. McDERMOTT: No objection.

9 JUDGE LESNICK: Any objection? Admitted.

10 (Whereupon, the document referred

11 to as Respondent's Exhibit No. 22

12 was marked and received into

13 evidence.)


15 Q If you could please turn to Respondent's Exhibit 25.

16 I'll ask you if you recognize that document?

17 A Yes.

18 Q What is that?

19 A This is also from our internal PECO soft system, our

20 HR system that we use to document any changes.

21 Q Whose information is contained in Exhibit 25?

22 A An Edward Netzel.

23 Q Who maintains this database?

24 A The HR shared service center that processes all

25 transactional work for human resources.

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1 Q When did Mr. Netzel leave and under what

2 circumstances?

3 A He left on August 25th, 1998 and he retired under a

4 severance package.

5 MR. GROSS: Move for the admission of Respondent's

6 Exhibit 25.

7 JUDGE LESNICK: Any objection?

8 MR. McDERMOTT: No objection, Judge.

9 JUDGE LESNICK: 25 admitted.

10 (Whereupon, the document referred

11 to as Respondent's Exhibit No. 25

12 was marked and received into

13 evidence.)


15 Q Other than Mr. Shirani did anyone from Exelon Nuclear

16 ever tell you anything about any activities he engaged in or

17 work he did in Nuclear?

18 A No.

19 Q Did anyone ever direct you, ask you or even suggest

20 to you that you or Exelon BSC fire Mr. Shirani.

21 A No.

22 MR. GROSS: No further questions.

23 JUDGE LESNICK: You may cross, Mr. McDermott.

24 MR. McDERMOTT: Thank you, Your Honor.


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2 Q Ms. Garza, with respect to Exhibit No. 25 it is not

3 uncommon is it that people have a retirement date that

4 physically separate from their place of work within a company,

5 within Exelon or within Commonwealth Edison prior to that date?

6 A The system will reflect the date that they

7 terminated.

8 Q I understand that. That's, I understand the date of

9 termination either by dismissal or retirement or resignation

10 being fixed. That's the termination date for Mr. Netzel?

11 A Right.

12 Q 8/31. But it's quite possible that he left his work

13 site a month or two months or even three months earlier, is

14 that possible?

15 A It's possible.

16 Q And you wouldn't have known whether he did or didn't?

17 A I would not, no.

18 Q All right. And you have nothing in your possession

19 or nothing in your software package that would access that or

20 be able to tell you that? I mean the person's chair is no

21 longer warm, they're gone. You only know when it is they

22 separate from the company pursuant to this software package,

23 correct?

24 A That's correct.

25 Q Thank you. You were present with Ms. Caya when Oscar

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1 was told that he was not selected for the manager's position,

2 is that correct?

3 A Yes.

4 Q Did you have a conversation with him the next day as

5 well? You and Ellen?

6 A No.

7 Q Did he ever have a conversation with you where he

8 said, all right I'll take an E-3 job? And did you in fact

9 respond to him or you and Ellen respond to him, we'll think

10 about it?

11 A I don't recall.

12 Q Is it possible?

13 A It may be possible but I don't recall.

14 Q Is it possible that if that happened outside of your

15 recollection that the next time you and Ellen met with him you

16 said we can't do it because of the deadline?

17 A No.

18 Q Is it possible you just said we can't do it period?

19 A If he didn't apply for a position he would not have

20 been considered for it.

21 Q Is that what you told him the next day? If you could

22 recall that conversation?

23 MR. GROSS: Objection. It calls for speculation.

24 MR. McDERMOTT: I'm not phrasing it correct.


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1 Q You say you can't recall whether or not you and Ellen

2 said you would think about his request to be considered for the

3 E-3 position? I'm saying you can't recall that?

4 A Correct.

5 Q There was never any further discussion about the E-3

6 position?

7 A The discussion that Oscar and I had about positions

8 lower than the manager position he was totally against even

9 considering.

10 Q But that was earlier, correct?

11 A That was earlier. That was, that was the discussion

12 that Oscar and I had.

13 Q Earlier than his termination?

14 A Yes.

15 Q That's the discussion he initiated with you on or

16 about the 5th of October?

17 A Correct.

18 Q Thank you. Now turning to Exhibits 19 and 20

19 MR. GROSS: Respondent's Exhibits I assume?

20 JUDGE LESNICK: Is that correct?

21 MR. McDERMOTT: I guess you're talking about, yes.

22 Judge, Respondent's Exhibits.


24 Q How long have you been with Exelon?

25 A 31 years.

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1 Q So you've been there for all the names and all the

2 presidents and all the rocking and all the rolling?

3 A Yes.

4 Q Isn't true that the numerical bands at least in the

5 parlance and the common knowledge of the employees and of

6 course employees watch these events like birds of prey,

7 correct?

8 A Certainly.

9 Q Isn't it true that seven, level seven alpha, I'm

10 sorry, in Arabic seven and eight translated to E-3 and Arabic

11 nine and ten translated to E-4? I mean wasn't that the common

12 understanding among the workers that if you had, if you were a

13 level E-9 you were going to be, I'm sorry, a level 9 you would

14 become a level E-4?

15 MR. GROSS: Objection as to a request she testifies

16 as to what others commonly understood.

17 JUDGE LESNICK: I'll allow the question.

18 THE WITNESS: Would you ask the question again,

19 please?

20 MR. McDERMOTT: Sure.


22 Q I'm looking at something that has to do with the year

23 2000. Obviously the October time frame.

24 A Uh-huh.

25 Q Obviously trying to create an equilibrium for the

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1 people in Philadelphia and the people in Illinois so that

2 everybody in the merging situation believes that at least they

3 have the information as to how people were being treated on

4 either side of the Ohio, right?

5 A Uh-huh.

6 Q But what I don't have between this 20 and this 19 is

7 the 1,2,3,4,5 and the translation document. And what I'm

8 asking you is isn't it true that if you were either a seven or

9 an eight under the Arabic system you would become an E-3?

10 There's no room for, there's not enough alphas for every seven

11 or every eight, do you understand what I'm saying?

12 A I do.

13 Q Wouldn't it take two numbers to make a letter?

14 MR. GROSS: I'll object as to the --

15 MR. McDERMOTT: She knows what I'm asking her.

16 MR. GROSS: I would asked for some time frame

17 because --

18 JUDGE LESNICK: Do you understand what

19 he's --


21 Q In the years '99 prior to the merger?

22 A Prior to the merger when we went from the old bands 1

23 through 24.

24 Q Right.

25 A And then we went to the new structure there was some

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1 consolidation of bands.

2 Q All right. And did the consolidation seven and eight

3 translate to an E-3?

4 A I can't recall. I can't recall.

5 Q Right. It's not here, correct?

6 A It's not part of this document, correct.

7 Q That's right. So is there such a document that would

8 tell us that? I mean at this point it would be a historical

9 event, hysterical. It would be something that is long since

10 abandoned, correct?

11 A That's correct.

12 Q And it's something that's probably best forgotten

13 since there's a merger, correct?

14 MR. GROSS: I'll object.


16 MR. McDERMOTT: This woman has been there for than

17 three decades. She has seen all manner of events and the

18 repercussions of what the numbers translate into letters mean.


20 Q Isn't it true that if you were a seven or an eight

21 when you made that transition to the alphas you became an E-3?

22 And if you were a nine and a ten you became an E-4?

23 MR. GROSS: Objection. Mischaracterization of her

24 testimony.

25 MR. McDERMOTT: It's not --

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1 MR. GROSS: It's incorrect. She didn't say that.

2 THE WITNESS: I, I don't recall. There was some

3 overlap but I don't recall how they mapped to the new

4 structure.


6 Q You don't recall or you don't want to?

7 A I don't recall. It was not my role. I was not a

8 compensation expert at --

9 Q You were not a compensation expert for the purposes

10 of identifying this document either are you?

11 A That's correct but this is common knowledge in my

12 work.

13 Q Oh, I understand. But when the overlap was common

14 knowledge you knew, correct?

15 A I may have been aware of how they mapped that.

16 Q Well, you would have had a piece of paper just like

17 you have here today, right? It would have shown seven and

18 eights becoming what they are, eights and nines becoming what

19 they are or nines and tens becoming what they are, am I right?

20 You would have had such a document?

21 A I --

22 Q When you made the changes?

23 A Yes. I may have had something, correct.

24 Q And now that that's history you don't remember?

25 A That's correct.

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1 Q But if it happened to him he'd remember wouldn't he?

2 MR. GROSS: I'll object.

3 MR. McDERMOTT: I'm sorry.


5 Q If it happened to Mr. Shirani --

6 MR. GROSS: I don't know that she can say or not.


8 Q As a professional human resource functionary,

9 somebody who is in human resources every day, if somebody was

10 at a level nine and the new system was inaugurated and he

11 became an E-3 and he knew that levels nine and ten became E-4s,

12 I'm sorry.

13 And that happened, would he know himself by seeing it

14 on a printout or by seeing it on a CRT of some kind?

15 A Yes.

16 Q All right. So you don't know if happened to

17 Mr. Shirani?

18 A Based on, on the documents here, no, I don't know.

19 Q Based on these documents?

20 A Correct.

21 Q Thank you.

22 MR. McDERMOTT: I have no other questions.

23 JUDGE LESNICK: Any redirect?

24 MR. GROSS: Yes.


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2 Q Ms. Garza, when you just answered questions about

3 translating a seven or eight into an E-3 or E-4 you were

4 referring to the October 2000 structure, correct?

5 A That's correct. Prior to the merger.

6 Q And in January of 2000 the change was from a seven,

7 eight or nine to a single letter, correct?

8 A That's correct.

9 Q At any time between January of 2000 and October 2000

10 did any employee, any employee in the system have an E-3 or an

11 E-4?

12 A No.

13 Q During that time period every employee had a single

14 letter, correct?

15 A That's correct.

16 MR. GROSS: No further questions.



19 Q But my question was and I hope you understand this,

20 the part you can't recall is the, at sometime prior to the

21 merger there was a reconfiguration as well, am I correct?

22 A That is correct.

23 Q And do you have a general idea as to what year that

24 happened?

25 A It took place in 2000.

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1 Q Did it take place in any configuration change in '99?

2 A No.

3 Q Was it only 2000?

4 A That's correct.

5 Q Beginning on January of 2000?

6 A That's when they became effective, yes.

7 Q All right. And prior to January of 2000 we had the

8 numericals?

9 A That's correct.

10 Q So that the record is clear, we had single numbers

11 and then we had single numbers in 1999 and the year 2000 we had

12 single numbers?

13 A No. In the year 2000 we had --

14 Q 2001.

15 A Prior to 2000 we had a numeric system.

16 Q Right.

17 A Effective January of 2000 we went to a single alpha

18 and as of merger --

19 Q A single letter?

20 A That's correct. And as of merger day one --

21 Q October?

22 A October 23rd.

23 Q 2000.

24 A We went to numeric. The alpha designates exempt

25 versus nonexempt.

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1 Q So you either have an E or an N?

2 A An E or an NE.

3 Q An E or an NE?

4 A Correct.

5 Q And exempt means?

6 A Exempt are those employees that are in our

7 professional ratings as opposed to nonexempt are our entry

8 level people, our admin. type people, some low level technical

9 people.

10 Q Thank you.

11 MR. GROSS: Nothing further.


13 Q Ms. Garza, under the E-3 pay band for which

14 Mr. Shirani, for the pay band for which he was applying, he was

15 apply for E-4?

16 A Right.

17 Q A pay band at the E-3 level. Exhibit 20 shows a

18 maximum pay of $100,000, is that correct?

19 A Yes.

20 Q How do you reach the $100,000?

21 A Several different ways. The salary bands are wide

22 enough to allow movement within a salary band either through

23 enhanced skills, education, various different ways. Salary

24 bands are wide to allow entry from external based on different

25 criteria that new hires bring. Or you can promote into a

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1 salary band that get you into the, the next higher level.

2 Q If you perform your job in a fully satisfactory

3 manner are there automatic pay increases each year?

4 A There is a merit adjustment that is done effective

5 March 1st but we do not have an automatic progression through a

6 salary band.

7 Q So someone has to make a decision to have someone

8 have an increase in pay in that system?

9 A That's correct.

10 Q In that system. Just to analogize it, are you

11 familiar with the federal pay system in any way?

12 A Somewhat. I know that there are salary bands.

13 Q There's more than one but under the GS schedule.

14 This is historical for me also but under that system a person

15 can go from one pay grade to, well, if a person performs really

16 satisfactory then there is a modest increase each year. That's

17 not so in this system?

18 A That is very similar to ours. We do a base salary

19 adjustment once a year.

20 Q But you're saying, but under the federal system it's

21 automatic unless you do poorly. Unless you've been

22 disciplined. Under your system is it automatic? That is no

23 one has to make a decision if someone moves up? Oh, no, you're

24 saying you adjust the pay band?

25 A Absolutely.

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1 Q But, so if you do not adjust the pay band, a

2 reasonable pay increase --

3 A The pay band doesn't get adjusted. We have merit

4 increases based on performance and we adjust within a salary

5 band but a pay adjustment would not necessarily, should not

6 take anybody into the next salary band.

7 Q Oh, no, I understand that. But I'm saying if an

8 employee satisfactorily performs their job is it certain that

9 they'll move up to the maximum within that pay band?

10 A There is no certainly because our bands are so wide,

11 you know, but clearly a salary adjustment or a merit increase

12 would take them into the higher range of a salary band.

13 Q Okay. But the distinction I'm trying to make is that

14 it's not automatic? Someone has to make the decision?

15 A Absolutely. It's performance based.

16 Q Okay. Under the old fashioned GS schedule each year

17 a person gets a few percentage increase and it may go from a

18 first three years is an automatic increase then it goes to two

19 years then it goes to fours years so they don't reach the ten

20 step process for perhaps a whole career if they don't jump from

21 one band to the next, from a GS5 to a 6, or a 6 to a 7.

22 Now to move from one band to the next generally

23 that's, that has to be promotion based on their merit. But

24 then once your within a band you automatically progress on a

25 certain calendar schedule if you're proving satisfactory in

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1 performing the job.

2 A And we don't have that automatic progression.

3 Q Okay. I understand. Now in the pay, what pay band

4 was, if any, or what schedule was Mr. Shirani before this

5 change occurred? I see in Exhibit 19 it says at the tope of

6 the job history at present E-4, is that what he was called

7 then?

8 A Yes, he was an E-4.

9 Q Okay. And that is not the same pay band as on 20?

10 A Yes, it is.

11 Q Okay. So clearly he was going from the higher pay

12 band to the lower pay band?

13 A He went from the lower to the higher.

14 Q I mean if he had applied for an E-3 he would have

15 been going down a pay band?

16 A That's correct.

17 Q And so his range, his potential before this occurred

18 was up to possibly $126,000, is that correct?

19 A That's correct.

20 Q And he was at $97,000 so he was about the middle of

21 the pay band of an E-4?

22 A That's correct.

23 Q Okay. And he was then, if he had applied to E-3 he

24 was moving to the, basically to the top of the E-3?

25 A Yes. And because of our wide salary bands of course

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1 there is overlap between our bands.

2 Q I see. I understand that. Okay. All right. Does

3 that raise any questions for your Mr. McDermott or Mr. Gross?

4 MR. McDERMOTT: No, Judge, thank you.

5 MR. GROSS: No, Your Honor.

6 JUDGE LESNICK: You're excused. Thank you very much.

7 Off the record.

8 (Off the record.)

9 (On the record.)

10 JUDGE LESNICK: Back on the record.

11 MR. GROSS: Ms. Gillis, will you please state your

12 full name?

13 JUDGE LESNICK: Could you raise you right hand?

14 (Whereupon,


16 was called as a witness by and on behalf of the Respondent, and

17 after having been first duly sworn, was examined and testified

18 as follows:)

19 JUDGE LESNICK: Okay. You may proceed.



22 Q Ms. Gillis, can you please state your full and spell

23 your last name for the record?

24 A Yes. My name is Ruth Ann Mary Gillis, G-i-l-l-i-s.

25 Q What are your current positions?

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1 A Currently I am president, an Exelon Business Service

2 Company.

3 Q Are you an officer of Exelon Corporation?

4 A Yes, I am.

5 Q What position is that?

6 A I am a senior vice president of the Corporation.

7 Q When did you first become a senior vice president of

8 Exelon Corporation?

9 A Upon its organization in October 2000, October 20th

10 of 2000.

11 Q When did you first become president of Exelon BSC?

12 A At the end of October of this year. 2002.

13 Q Prior to becoming president of Exelon BSC what was

14 your position?

15 A I was senior vice president and chief financial

16 officer, an Exelon Corporation.

17 Q And during what time period were you CFO of Exelon

18 Corporation?

19 A October 20th of 2002, the end of October of 2002.

20 Q Prior to the merger that created Exelon Corporation

21 in 2000 what was your position?

22 A I was senior vice president and CFO of Unicom

23 Corporation, the predecessor company of Exelon Corporation.

24 Q What companies merged to form Exelon?

25 A Unicom Corporation the parent company of Commonwealth

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1 Edison and Philadelphia Electric PECO, P-E-C-O.

2 Q Exelon BSC has what corporate relationship to Exelon

3 Corporation?

4 A It is a subsidiary of Exelon Corporation and the

5 acronym BSC stands for Business Services Company.

6 Q Exelon Generation Company, LLC or GENCO has what

7 affiliation with Exelon Corporation?

8 A It is a subsidiary, an Exelon Corporation.

9 Q And Commonwealth Edison Company or ComEd currently

10 has what affiliation with Exelon?

11 A It's a subsidiary also of Exelon Corporation.

12 Q What corporate entity owns and operates all the

13 nuclear power plants that are licensed by the NRC?

14 A Exelon Generation Company, LLC or GENCO.

15 Q And prior to the merger who owned and operated all

16 the nuclear power plants?

17 A Two entities. Commonwealth Edison for the plants

18 that were principally located in northern Illinois.

19 Philadelphia Electric or PECO for the plants that were in the

20 Philadelphia region and then there was a joint venture among

21 Philadelphia Electric PECO and British Energy by the name of

22 AmerGen which owns three nuclear plants. One here in Illinois

23 and two in the east.

24 Q Does Exelon BSC have any licenses from the NRC?

25 A No, no, it does not.

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1 Q Has Exelon BSC ever owned or operated any nuclear

2 power plants?

3 A No.

4 Q When did you first become the CFO of the Unicom?

5 A In September, October of 2, I'm sorry, of 1999.

6 Q And was that when you first became employed with

7 Unicom or any of its subsidiaries?

8 A No, I was hired by the company, Unicom, as its

9 treasurer, vice president and treasurer on September 2nd, 1997.

10 Q Can you tell me what generally your duties were when

11 you were CFO of Exelon Corporation?

12 A I was responsible for essentially all the financial

13 and accounting matters of the company. Would you like me to

14 describe what that includes?

15 Q Sure.

16 A It includes the treasurer function which encompasses

17 financing and also cash management. We have accounting which

18 deals with internal accounting as well as external reporting.

19 For example our SEC filings that we do quarterly and annually

20 and periodically.

21 We also are responsible for management reporting of

22 financial results internally. We have responsibilities for

23 tax, internal audit, risk management, risk management in the

24 sense it incorporates not only traditional liability insurance

25 but it is also heavily focused on financial risk management,

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1 for example, with trading and other activities that we do in,

2 in our subsidiaries around energy contracts.

3 And I think I have encompassed pretty much all of my

4 responsibilities within my CFO role.

5 Q During the time you were CFO approximately how many

6 employees did you have in your entire organization?

7 A When I was CFO at Unicom we had --

8 Q I'm sorry, CFO of Exelon?

9 A CFO of Exelon in my direct span of control I had on

10 the order of 68 or 70 people.

11 Q And indirectly?

12 A Indirectly we had a decentralized organization so

13 there were CFOs in each of the business units who reported

14 directly to their line of business head. For example, to the

15 head of the GENCO in that instance. And we had a dotted line

16 relationship into me. That universe is probably 620 to 630

17 people all counted for.

18 Q Can you describe for us the context in which you

19 first came to meet Mr. Shirani?

20 A I was asked to be the executive sponsor for an

21 employee network group which is affiliated with the Asian

22 American employees of what was Commonwealth Edison, Unicom and

23 then he came in the same organization under the broader Exelon

24 umbrella.

25 It goes by the acronym AACES. Asian American ComEd

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1 Society when we were Unicom and then Asian American Community

2 for Exelon success under the Exelon umbrella.

3 But in either event the acronym is A-A-C-E-S as in

4 Sam.

5 Q And how did that executive sponsorship lead you to

6 meet Mr. Shirani?

7 A Mr. Shirani was AACES' first president.

8 Q Do you recall approximately what time period it was

9 that you first met Mr. Shirani?

10 A I believe it was 1999.

11 Q Prior to the fall of 2000, that is prior to the

12 merger that created Exelon, can you tell me about how

13 frequently you communicated with Mr. Shirani?

14 A It would be on the order of once to twice per month.

15 Q And what generally was the context of those

16 communications?

17 A Generally AACES business.

18 Q In those conversations or communications how often

19 did Mr. Shirani discuss his personal career with you?

20 A It was not uncommon that our conversations would

21 include some discussion of Oscar's job in, in the company.

22 Q When was the first conversation you recall you had

23 with him about his personal career?

24 A We had a lengthy conversation in what would have been

25 the spring, it would be the latter part of the spring of 1999

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1 or 2000. And it was, it was about an hour, I'm sorry, a half

2 an hour to 45 minutes in duration.

3 Q Where was that?

4 A It was in the context, an event that we were holding

5 for AACES we called it Taste of Asia. It was held in the, one

6 of our downtown buildings, ATT building at 225 West Monroe I

7 believe that is the address, and we, because of our roles we

8 were both there in addition to the rest of the leadership of


10 Q What did Mr. Shirani tell you in that conversation if

11 you recall about his career?

12 A He was particularly disappointed and perhaps

13 frustrated, expressed frustration that he was not receiving

14 what he felt to be adequate and appropriate recognition for his

15 experience and his academic and technical expertise in his

16 current role and job.

17 Q What complaints if any did he make during that

18 conversation about his specific job or his manager?

19 A Well, I know that he, he mentioned that he reported

20 to an individual who did not have any degrees beyond a high

21 school education. And expressed frustration that he had a fair

22 amount of, not only direct job related experience, but

23 technical training and degrees associated with that which

24 included a PE.

25 Q What did you advise him or suggest to him during this

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1 conversation?

2 A I suggested that he, he needed to be very clear about

3 his own goals as it related to his career and his job. And it

4 was important that he address his interests in wanting to be a

5 manager and be perhaps recognized for again his, his on the job

6 experience, his technical expertise in a way that was

7 commensurate with his interest in becoming a manager.

8 Q Again, prior to the merger, prior to the fall of 2000

9 time period do you recall approximately how many conversations

10 you had with him on these personal career issues?

11 A I, I believe that, I, I could not begin to estimate

12 the number of conversations. I, I would say that we probably

13 had more conversations that were career orientated in the

14 summer that proceeded and in the time that, summertime, that

15 preceded the merger. Again the merger was consummated on

16 October 20th of 2000.

17 Q What advise or recommendations did you give to

18 Mr. Shirani regarding his role as president of AACES?

19 A The, the commitment that Oscar made to his presidency

20 in AACES appeared to be very time consuming. He had a very

21 high interest level in making sure that he was responsive to

22 people, in charge of responsibilities that were, you know,

23 commensurate with the president's role.

24 And I suggested that perhaps a little too much time

25 was being spent in that, in that responsibility after all it

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1 was a volunteer position. It was not a job related, directly

2 job related position and I felt that he ought to give some

3 consideration to the amount of time he was spending and perhaps

4 not seek an additional term as president.

5 We did not have term limits, however, to how long one

6 could remain an officer but in that organization but my

7 recommendation was for him to consider not running for an

8 additional term.

9 Q You didn't have any information that his work in

10 nuclear was suffering, did you?

11 A No. When he was in a suburban location and when we

12 met and frequently met in my office downtown, so by definition

13 he wasn't in his work location when we had those meetings.

14 Q What advise or recommendation did you give to

15 Mr. Shirani regarding using his role as the president of AACES

16 for his career?

17 A I felt that on occasion Mr. Shirani used the

18 presidency of AACES as a platform for his own career interests

19 and because it was an opportunity by virtue of being president

20 of an employee network group to have probably more readily

21 accessible opportunities to interact with senior management.

22 And I was, I, I did note that when he, when he sent

23 e-mails he used president of AACES as a title that followed

24 his, his name and his PE notation. And I do not think that

25 that was appropriate. I wasn't aware that any other employee

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1 network group president or officer was using that in their

2 internal communications and possibly external communications.

3 Q Why did it concern you that he was using this role to

4 help advance himself in the company? Why was that an issue for

5 you?

6 A From my own personal perspective?

7 Q Yes.

8 A I, I think it's untoward. I think when you take on a

9 role within an organization to represent a group then that's

10 what that responsibility runs to. Not to one owns self.

11 Q And that's your opinion I take it?

12 A That's my opinion.

13 Q What did you advise Mr. Shirani in that respect?

14 A I advised him perhaps that not, not everyone in the

15 organization felt that what some of his agenda items were were

16 necessarily reflective of the concerns and issues of the

17 membership.

18 Q And who in the organization are you referring to who

19 brought this to your attention?

20 A The other officers on AACES at the time.

21 Q Throughout the entire time period before Mr. Shirani

22 came to work with you in January of 2001, what was it that

23 nuclear was doing or not doing that he complained about to you?

24 A In the context of our conversations about nuclear

25 were lack of promotion, lack of recognition, and lack of an

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1 opportunity to take on a managerial role which he felt was

2 important, you know, again given his, his career and the

3 progression that he wanted to see his career make.

4 In addition, you know, he expressed a strong interest

5 in wanting to do the best for Exelon. And I think there was,

6 my perception at least, was a correlation between taking on

7 expanded managerial responsibilities and giving the opportunity

8 to give his best to the company.

9 Q Did you find that to be a good thing? His expression

10 of his interests?

11 A Yes. It's not a bad thing at all.

12 Q At any time prior to Mr. Shirani's coming to work at

13 your organization in January of 2001, did he ever tell you that

14 he believed Exelon nuclear was trying to force him out or get

15 rid of him?

16 A No, I don't think I ever recall that there was an

17 expression of wanting to be forced out. There was an

18 expression of disappointment in having been given an individual

19 contributor position around the time of the merger.

20 We had job selection that went on and it varied from

21 business unit to business unit. And if I recall correctly

22 GENCO and nuclear did theirs mostly in the late summertime

23 frame. Finance did, we did most of our selection but never, we

24 did not finish at the time of the merger so we finished, we, we

25 did most of the selection however in the September to the early

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1 part of October time frame.

2 And he was given an individual contributor role which

3 means that he did not have other people reporting into him.

4 And expressed disappointment.

5 Q Can you please turn to Respondent's Exhibit 8.

6 A Is that this book?

7 Q In the binder in front of you, yes.

8 A And Exhibit?

9 Q 8.

10 A Yes, I have that.

11 Q And I want to ask you if you recall --

12 A Do you need to see this? Sorry.

13 Q I want to ask you if you recall receiving the e-mail

14 at the bottom of the first page of Exhibit 8.

15 A Yes, I did.

16 Q Was this the first time Mr. Shirani asked you for

17 help in getting a job?

18 A Yes, it was as I recall.

19 Q After your received this e-mail do you recall a

20 conversation with Mr. Shirani regarding his coming to work in

21 your organization?

22 A We had a conversation in the fall, September, October

23 time frame where in --

24 Q Of what year?

25 A Oh, I'm sorry. In 2000.

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1 Q Okay.

2 A So this is in the merger time frame. Merger became

3 October 20th of 2000. He asked me for a job in the finance

4 organization.

5 Q Where did that occur?

6 A In my office, at my conference table specifically.

7 Q Did he ask you anything else that you recall in that

8 conversation?

9 A He asked me for an opportunity to be able to get more

10 to the organization. And he felt working in finance might give

11 him that opportunity.

12 Q Other than Mr. Shirani in that conversation did

13 anyone else ever direct you, ask you or suggest to you that you

14 get Mr. Shirani a job in your organization?

15 A No, no one did.

16 Q Did Mr. Shirani give you any reason for his interest?

17 A He, he felt that there were fewer opportunities for

18 him to realize his goals and, and ambitions and again wanting

19 to give more, do more for Exelon in, outside of the area where

20 he was currently.

21 Q What did you tell him in response to his request?

22 A Well, I was still in the throws of finalizing our

23 selection for, for jobs in finance. As I mentioned ours were

24 done after some of the other business groups. And I did, well,

25 I wasn't fully done with that process. Many of the jobs had

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1 already been, you know, committed to inside but I did have some

2 jobs I was yet recruiting for. But I wasn't sure that I saw a

3 direct correlation between Mr. Shirani's background and the

4 opportunities that I, that I had directly in finance.

5 Q Just so I'm clear and the record is clear. Is this

6 your thinking or are you telling us what you actually told

7 Mr. Shirani?

8 A It is my thinking of, my, my recollection of my

9 conversation with Mr. Shirani.

10 Q Please continue.

11 A And but I did say to him that I, I would, I would

12 certainly one, do the best I can to consider his request and it

13 was a request. And I, and we talked briefly about the, the one

14 area where I had done no hiring yet because the area was being

15 completed reconstituted and that would be internal audit and

16 given Mr. Shirani's background, in particular his auditing

17 capabilities and his very good understanding from, you know,

18 having talked to him over time about process and controls, they

19 were not, they were not dissimilar disciplines in, in the

20 internal audit function that we had in my area.

21 And I felt that that would potentially be a match.

22 However, because I was rebuilding the organization I did not

23 even have managers in place in Chicago at the time.

24 Q Just so we're clear. What precisely did you tell

25 Mr. Shirani on that issue?

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1 A One I was in the process of hiring a general auditor

2 who would be responsible for the area and responsible for

3 designing a plan, a strategy if you will, to rebuild the

4 internal audit function. I did have a small group in

5 Philadelphia of internal audit prior, if I can step back.

6 Prior to the merger. Unicom had outsourced its

7 internal audit function 100 percent to Arthur Andersen. PECO

8 Philadelphia Electric prior to the merger had had what I would

9 call a fairly traditional utility internal audit function.

10 They probably had at one point in time as many as 15 people. I

11 think probably Andersen had on the order of 15 to 17 FTE when

12 you counted all of their ongoing people they had working on

13 audits committed to the Unicom. So kind of similar in size but

14 ours was outsourced here in the west.

15 Q In stepping back to what precisely you said to

16 Mr. Shirani on that issue.

17 A Well, I could not, I couldn't reproduce for you what

18 I said precisely. I did indicate that I am still in the

19 process of recruiting for a general auditor and a general

20 audit, a general auditor. And that whole area was going to be

21 rebuilt.

22 So I don't have an infrastructure as yet in Chicago.

23 And even if we were able to fashion a position it would

24 probably be one where it would report into Arthur Andersen the,

25 the team that was running our internal audits here in Chicago.

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1 But then over time I would certainly have that infrastructure

2 in place but there was, going to be a period of time when there

3 would some ambiguity and lack of structure in that

4 organization.

5 Q And what was your purpose in explaining that, those

6 issues to Mr. Shirani?

7 A Well, as I said he asked me for a job in finance. I

8 did not have a universe of jobs that were open number one.

9 Number two, the jobs that were open none really well correlated

10 with his background with the exception of internal audit and

11 frankly there wasn't an organization as we know it, no

12 infrastructure existed in Chicago at that point in time.

13 Q How did Mr. Shirani response to these issues that you

14 raised?

15 A He, he asked me to give consideration to what I could

16 explore and I promised him that I would. And I did.

17 Q What in fact did you do?

18 A Well, I, I took a look at our, well, in, in the work

19 that we did in organizational structure with the merger we had

20 essentially scoped out all be it not done anything beyond

21 scoping it out, how many people in internal audit we might have

22 and generally that would correspond with, from a, a grey

23 perspective, the levels would correspond to what we had in

24 other areas in finance such as accounting.

25 So I knew roughly that an auditor position would be,

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1 would be a grade or two, some of my accounting positions. I

2 also had a function in Philadelphia so I tried to correlate the

3 thinking, my, my thinking to make sure I wasn't, you know,

4 totally off base and keyed off of the grade system or the grade

5 placement that we had in Philadelphia as well.

6 And so I worked with our human resources department

7 to see if we could develop an opportunity in Chicago that would

8 be an auditor position in the internal audit group with a lot

9 of the specifics yet to be defined.

10 Q One question back to the initial conversation when

11 this came up. Did you in that conversation or any other

12 conversation offer Mr. Shirani or suggest to him a position as

13 a tax manager?

14 A No.

15 Q Given --

16 A Taxes is a highly specialized area.

17 Q And so therefore you would not have?

18 A I think of all the, all the jobs in the finance

19 organization tax would be the job that I, I could not do. It

20 just has a level of expertise that I, I would not even remotely

21 be able to, to handle myself.

22 Q You understood at the time that Mr. Shirani did not

23 have significant financial internal auditing experience, that's

24 right?

25 A Yes.

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1 Q Why despite that did you undertake these efforts to

2 create or look into a position for him in your organization?

3 A I guess a number of reasons. I'm an officer in the

4 company. I can do that. Secondly over the period of time that

5 I, I was working with, with Oscar in AACES and he met with me

6 and talked to me I got to know Oscar fairly well and understood

7 his, his interest in wanting to over time improve his career,

8 become a manager and, and he was very passionate in now wanting

9 to support Exelon. And frankly he asked me for a job.

10 So I felt that the least I could do was explore the

11 one area that probably dovetailed most closely with his

12 background. And there, there was some finance background in

13 Mr. Shirani's experience. And I think it's noted here if this

14 is the right Exhibit, on page two of this Exhibit it sights

15 some financial analyst work that was done in the '93 to '97

16 time frame.

17 Q Okay. You offered him a position subsequently?

18 A I offered him a position in December actually.

19 Q What was the salary grade for the position you

20 offered him?

21 A If I remember correctly it was an E-4 position.

22 Q How did you decide that particular salary grade for

23 this position?

24 A Well, as I mentioned we had the group in Philadelphia

25 and we had job rankings in the other areas in finance and that

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1 was the appropriate level for an auditor.

2 Q You took a vacation in that December, is that

3 correct?

4 A Yes.

5 Q When relative to your vacation did you offer a

6 position to Mr. Shirani?

7 A Shortly before I left and my departure date was

8 December the 20th of 2000.

9 Q And where did that discussion occur if you recall?

10 A When I originally offered Oscar the position I

11 believe we were in my office.

12 Q What did you tell him?

13 A I indicated to him, you know, much of what we just,

14 what I just reiterated to you in your question that, you know,

15 we don't have this group wholly formed at this point but we

16 would have one.

17 My, my expectation that my recruiting efforts would,

18 would wrap up in the near future and that was my goal to have

19 the, a recruitment in place by the, finalized by the end of the

20 first quarter of 2001. And that we would be developing the

21 organization over time. But I could create a rather unique

22 position here in Chicago and he would need to report into

23 Arthur Anderson.

24 The position could not report into me. I already had

25 a very broad span of control and could not take on, you know, a

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1 direct report at that level but report into Arthur Andersen.

2 In the intervening period of time of course I talked to our

3 engagement management at Arthur Andersen and he did not have

4 any particular concerns or reservations about trying to work

5 this position out for a period of time. And so I, I explained

6 that offer, the job at the E-4 level to Oscar.

7 Q Can you turn please to Respondent's Exhibit 9.

8 A Yes.

9 Q And specifically the second page of that Exhibit

10 which for the record is already admitted as Complaint's Exhibit

11 20.

12 Can you tell me what you did with this document at

13 that meeting when you made the offer of the position?

14 A I, I wouldn't have gotten this document from our

15 human resources group. Consistent with my conversations with

16 HR. And I gave this to, to Oscar to highlight the, the title

17 and the grade level and the salary level. It represented as is

18 indicated here just under 6.5 percent salary increase.

19 Q How did Mr. Shirani react to these numbers when you

20 gave them to him?

21 A I, I think he, as I recall, he was appreciative of my

22 efforts. However, he was disappointed in the salary level.

23 And he was taken aback by the grade level. He did not, he

24 thought that he was at a higher grade than was indicated on

25 this Exhibit on the left at an E-3. He thought he was, he was

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1 under the impression that he was in the higher grade level and,

2 number one.

3 Number two he felt that this was not what he expected

4 in terms of salary increase and he highlighted hardship that

5 would be entailed with a commute, different from the commute

6 that he currently had which was to a suburban location. This

7 job is principally located downtown although there is some,

8 some travel in, in the Chicagoland area involved to depending

9 upon the audit location.

10 And so he, he was not wholly pleased with the offer

11 that I gave him.

12 Q That document indicates an effective date of December

13 18th, 2000. Do you know?

14 A Generally when we, when we provide offers what we try

15 to do is show a date that's within a week or so in advance

16 because obviously you can't put it effective the date of the

17 conversation. The employee needs to be given time to reflect

18 on it and accept it or not as the case may be.

19 So it's not uncommon to see then a date would be a

20 week or so in advance in terms of an effective date. And

21 sometimes it's keyed off of a paycheck period.

22 Q Following up on his concerns relating to the pay

23 level. What specifically did you do in that respect?

24 A Well, I had actually done some work trying to figure

25 out what grade Oscar was. And in fact he was a grade level 4.

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1 I made sure of that. And it, I'm sorry, I beg your pardon. It

2 was an E-3 going to a 4, my apologies, I was on the wrong line.

3 And, and I felt that it was not, not an inappropriate

4 amount of salary increase for the promotion. It's very much in

5 keeping with our promotion salary raise. And by the way this

6 promotional increase would not preclude a merit increase in the

7 March, April time frame of the coming year.

8 It's when we do our annual merit increases, I was

9 going to say on an annual basis. So I was, I was personally

10 taken aback that there was a misunderstanding about the grade

11 level and there seemed to be lack of acceptance of the, of the

12 merit increase.

13 But I did understand the hardship issue of needing a

14 different commutation pattern and there was also an issue with

15 picking up children after school. And, and so but I worked

16 with human resources to see what we could do and in fact there

17 is some precedent for folks with having gotten new jobs, new

18 job assignments with the merger to have had different commutes

19 and we made some modifications from a salary basis to

20 accommodate those different commutation patterns.

21 So page one of that Exhibit shows that we increased

22 the salary to just a little bit over eight percent increase in

23 order to make that accommodation.

24 Q For the record page one you're referring to the first

25 page of Respondent's Exhibit 9?

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1 A Yes, I am.

2 Q And for the record that's already in as Complainant's

3 Exhibit 21.

4 Did you communicate the salary increase for that

5 position to Mr. Shirani?

6 A Yes, I did. And let me anticipate your question

7 which is probably how and I don't recall if I faxed it to him.

8 Remember Mr. Shirani at that point in time was working in the

9 suburbs. I, my office is downtown, or if human resources faxed

10 it to him or got it to him in another mode.

11 Q And did you receive any response from Mr. Shirani?

12 A I asked Mr. Shirani to consider it and let me know

13 however I was about to leave on my, on my vacation so I

14 suggested that he contact me by voice mail and let me know his

15 decision and I would call him as soon as I got his message.

16 Q And how did you come to learn his decision?

17 A If I'm not mistaken he left me a voice mail or he may

18 have left a voice mail on my assistant's line. I don't recall

19 exactly but I got a voice mail to call Oscar, he'd like to talk

20 to me and I did call him from my vacation and he told me the

21 good news and I was delighted that he accepted the position.

22 Q Prior to his accepting the position did you become

23 aware that he had applied for the position of diversity manager

24 in Exelon Nuclear?

25 A He told me that he applied for a position as

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1 diversity manager and it may have been at the time I was

2 talking to him about pursuing the internal audit position so

3 during my, if you will, my background work on trying to explore

4 the feasibility of that, that role and he indicated that he had

5 been told that he was the main candidate for the diversity

6 position.

7 And I, I certainly didn't want to put that series of

8 discussions off course if I, particularly if I was going to try

9 and go down a path of identifying a job in internal audit. So

10 I contacted human resources to find out whether or not this in

11 fact was fairly far down the road and if that were the case I,

12 I didn't feel it appropriate to, if you will, have those

13 discussions go a different direction if, if in fact they were

14 pretty far down the rod.

15 Q And what did you learn from human resources?

16 A That yes Mr. Shirani had I believe applied for the

17 position. We bid on positions in the company and he bid on a

18 position but was not the lead candidate. In fact they were not

19 at a point of narrowing down the field of candidates.

20 If I recall they were still in the interviewing

21 process and had not decided whether or not they would close off

22 interviewing to internal candidates alone or go outside and

23 interview externally.

24 Q Mr. Shirani testified on direct that at some point

25 during these conversations you made a reference to his being or

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1 possibly being in "the line of fire" in nuclear. Did you then

2 or did you now have any reason to believe that Mr. Shirani was

3 in "the line of fire" in Exelon Nuclear or ComEd Nuclear at any

4 time?

5 A Any perception that I have of Oscar's situation in

6 nuclear was wholly a function of my discussions with him. His

7 discussions with me. If he believed that he was in a tenuous

8 situation or in the line of fire that was the perception that I

9 got from those conversations. So it would have been in the

10 context on any comments he was making and they would have been

11 perceptual.

12 Q Do you recall ever using the words in the line of

13 fire with respect to Mr. Shirani's position in nuclear?

14 A I, I, it's possible that I may have said well if you

15 believe that you are in the line of fire.

16 Q Then what?

17 A Then you know it's important for you to step back and

18 consider your, your own personal goals and what, and what your,

19 what you're doing in getting out the position you're in. And

20 that theme was very consistent with all of the advise I ever

21 gave Oscar.

22 Q Mr. Shirani --

23 A Understand your goals and be very clear with whether

24 or not you're being met on the position that you're in.

25 Q Did Mr., excuse me. Mr. Shirani testified that you

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1 made a statement relating to Mr. Kingsley's support for

2 diversity. Did you ever state or suggest to Mr. Shirani that

3 Oliver Kingsley doesn't support diversity?

4 A Absolutely not.

5 Q Did you ever state or suggest to Mr. Kingsley that,

6 let's see. Did you ever state or suggest to Mr. Shirani that

7 Mr. Kingsley doesn't like the stuff Shirani does on diversity

8 or anything to that effect?

9 A No, no.

10 Q Did you then or do you now have any reason to believe

11 that anyone at Nuclear was trying to get rid of Mr. Shirani?

12 A No. I never talked to anyone in Nuclear about

13 Mr. Shirani's job.

14 Q Did you inform John Rowe that Mr. Shirani was coming

15 to work in your organization?

16 A Yes, I did.

17 Q Why? Why did you believe he would be interested?

18 A John and Oscar knew each other from various

19 interactions. They shared e-mails with one another. John is

20 my boss. I am in frequent contact with John. And we, I share

21 decisions that I make in human resources. And shared the good

22 news with John while I was on vacation.

23 Q Let me now turn to the time period after Mr. Shirani

24 started working in your organization.

25 A I'm sorry which organization?

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1 Q In the internal audit organization. Before Ellen

2 Caya came to the organization in April of 2001, can you tell me

3 what type of work Mr. Shirani performed?

4 A Mr. Shirani was assigned to a number of internal

5 audit projects. I can't recite for you which ones they were.

6 He worked together with the audit team from Arthur Andersen.

7 Q And who decided what role Mr. Shirani had in any of

8 those audits?

9 A That would be up through March that would have been a

10 joint decision among the engagement manager and Arthur Andersen

11 and a gentleman who was departing the company in March, a

12 gentleman by the name Mr. George Hurtz, H-u-r-z, there might be

13 a T in there, H-u-r-t-z, I think.

14 And he was responsible for the coordination of

15 internal audit assignments to Arthur Andersen.

16 Q Mr. Shirani testified that you promised training.

17 Can you tell me what training you told him he would get and

18 what training in fact you made available to him?

19 A I spoke specifically with Andersen about over time

20 would we be able to develop training opportunities that would

21 bring, if you will, more classroom days experience on top of

22 the on the job training experience to, to Oscar so that he can

23 expand his knowledge of financial internal accounting.

24 And Andersen, Andersen explored that and they were

25 somewhat reticent to make commitments about training. They had

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1 a training facility that is mostly their, for their own

2 internal employees. That's up in St. Charles. They do rent

3 the facility out to third parties but infrequently do they

4 bring third parties in to their own training.

5 But they, they indicated to me that they'd like to be

6 able to work something out and it was something that with all

7 of the turmoil at Andersen, frankly we weren't able to continue

8 to explore further. They, things at Andersen got a little

9 rough as the year progressed.

10 Q Did Mr. Shirani then get any training during this

11 time period?

12 A On the job training working with the Andersen

13 consultants, Andersen audit team.

14 Q Again, prior to Ms. Caya's arrival, do you recall

15 whether any concerns were reported to you about how Mr. Shirani

16 was working with audited clients?

17 A I did hear back from Andersen and they were concerned

18 about Oscar's understanding his scope of responsibility in the

19 context of performing an audit and crossing, if you will, that

20 boundary, that line and essentially providing advice,

21 recommendations on how to do things that weren't being

22 solicited of him nor asked of him.

23 And that got a little difficult because, you know,

24 Andersen felt that, well, Oscar worked for the company but yet

25 company people were uncomfortable with that, with that

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1 unsolicited advice being given.

2 You know, there's a particular role that you have

3 when you're doing an internal audit which may very well be

4 different from the role in, in quality audits and other vendor

5 audits that could be done in different parts of the company.

6 Q What did you provide to Mr. Shirani in terms of

7 recommendations or suggestions on that issue?

8 A I suggested he was very clear on his audience's

9 receptivity on receiving advice. And perhaps it was best to

10 err on the side of not providing unsolicited advice. But if he

11 was asked for advice by his audit subject, then I, I would be

12 sure that he felt comfortable to provide it.

13 Q Other than that issue do you have any reason to

14 believe Mr. Shirani was not doing a good job as an auditor?

15 A No, I think he, I think he was doing what he needed

16 to do and again we're talking about the first couple of months

17 in this role. I know Mr. Hurtz provided some printed materials

18 perhaps from the American Association of Internal Auditors that

19 were, were, would be able to provide some, you know, reading

20 material in addition to the work that was being done on the

21 audit.

22 From time to time there was some down time. You're

23 not always out at the client's location doing an audit so I

24 believe that George talked to me about providing that. I don't

25 know for a fact it was actually provided but I know he had

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1 intended to.

2 Q When did you hire Ellen Caya?

3 A Her start date was on or about April 24th of 2001.

4 And the reason why I remember the date it was the date of our

5 annual meeting and that I think was her first date. Her first

6 day, her first start date.

7 Q And during what months did you interview people for

8 the position that Ellen ultimately filled?

9 A I started, I made a decision in August of 2000 that

10 we would not hire the incumbent general auditor at PECO to do

11 the general auditor role in, in Exelon. And I began informally

12 to field resumes from Arthur Andersen. They knew of our long

13 term intentions to rebuild an internal audit function

14 internally.

15 And they knew that probably a termination of their

16 then existing contract would we extend a year and that contract

17 was ending up at the end of 2000. We would extend another year

18 or to 18 months and that would be the duration of our, of our

19 relationship.

20 But they, we had had a long term relationship with

21 them and they were trying to be helpful in gaining resumes for

22 me to consider in looking for a general auditor.

23 And after I had interviewed about three or four

24 people on my own I realized, and I also was recruiting for two

25 other senior level positions I, I could not do all that

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1 recruiting on my own so I went to an outside recruitment firm

2 and I began interviewing their candidates in November and

3 interviewed candidates latter part of November, December and

4 January. And I think I made an offer to Ellen in February.

5 Q Of 2001?

6 A Of 2001. So in November, December 2000, January 2001

7 in terms of interviewing and recruitment.

8 Q What role did you have in Ms. Caya's decisions

9 regarding how to restructure the internal auditing function

10 during that 2001?

11 A That was her job. As general auditor she was hired

12 to create an internal audit strategy, working with all of the

13 business units and develop that strategy to develop an

14 organizational structure for internal audit. And it was really

15 her decision to make as to how much of the function was to be

16 brought in-house versus doing maybe a hybrid model of some of

17 the work being done in-house and some of it being outsourced.

18 And she, she had the responsibility to develop that

19 plan. And as her manager I was responsible for being a

20 sounding board and the final approver. But when I say final

21 approver I, we also needed to include Mr. Rowe and the head of

22 the audit committee and the audit committee in totality.

23 So I was her direct senior approver though on that

24 plan.

25 Q Did you direct Ms. Caya to structure the organization

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1 in any particular way?

2 A No. I just suggested it was really hers to determine

3 and frankly if anything I probably had a bias more toward a

4 hybrid organization and meaning as I suggested a portion of the

5 work being done in-house and a portion of the more specialized

6 work being done exclusively outside or outsourced. And the

7 model that she recommended was predominated on in, in-house

8 work with some co sourcing for highly specialized audits.

9 Q What role did you have in any of Ms. Caya's decisions

10 on who would actually fill the positions in the organization in

11 late 2001?

12 A When you said who, do you mean the people themselves?

13 Q What role did you have in Ms. Caya's decisions as to

14 what people would specifically fill the various positions in

15 the restructured organization?

16 A I hope I'm understanding your questions correctly and

17 I'm sorry if I do not.

18 Q Okay. Well, I'm asking for your role in those

19 decisions that she made?

20 A And I'm trying to figure out which decision you're

21 asking me for, I'm sorry. Is it people as in the individual

22 who was hired or not hired?

23 Q Yes.

24 A Or their, or their, or the credentials of the, of the

25 position to be filled?

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1 Q In terms of who was hired and who was not hired or

2 selected to fill, what role did you have in any of those

3 decisions?

4 A Actually some decisions preceded that and that was to

5 land on an organizational structure and then make a

6 determination as to the universe of managers for the east in

7 Philadelphia and west. And then the organization below those

8 individuals.

9 I did not interview all of the people who ultimately

10 filled all of the internal audit positions. I interviewed

11 principally the final candidates for the manager positions.

12 It's possible that I may have interviewed one or two

13 individuals at, probably because my calendar was available to

14 do so for that role.

15 Q Did you direct or suggest to Ms. Caya who should fill

16 any of the manager E-4 positions?

17 A No, I did not.

18 Q You said you might have interviewed individuals for

19 those positions?

20 A But at this point when I get involved in an interview

21 at my level for these jobs, they have already interviewed with

22 a handful of other people. They have already been, been, been

23 suggested by those other individuals for the job. So I'm, I'm

24 fairly far down the line if you will of interviews.

25 And I am a concurring interview I'm not, I'm not the

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1 one who, who will ultimately approves. That's Ellen's job to

2 ultimately approve.

3 Q Did you direct or suggest that Ms. Caya not select

4 Mr. Shirani for the E-4 manager position?

5 A No, that was her decision.

6 Q Did you have any role in the decision to terminate

7 Mr. Shirani?

8 A The decision to terminate Mr. Shirani was a function

9 of, frankly a protocol that we followed with people who had bid

10 on and not had been accepted or been selected for jobs and

11 there was a series of steps that needed to be taken as a follow

12 on to that.

13 Then Ellen informed me that the job that Oscar had

14 bid on he did not receive and to my recollection, best of my

15 recollection did not bid on any other jobs. And in the merger

16 and again we were still filling merger created jobs in internal

17 audit and the protocol was to move to termination or

18 separation.

19 Q Do you know David Helwig?

20 A Yes, I do.

21 Q Do you know Oliver Kingsley?

22 A Yes, I do.

23 Q Do you a Kevin Yessian?

24 A Yes, I do.

25 Q Did any of them, those three individuals direct you,

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1 ask you or even suggest to you that you take any action with

2 respect to Mr. Shirani?

3 A No.

4 Q Anyone in Nuclear, at Exelon make any such direction

5 or request or suggestion?

6 A No.

7 Q Are you familiar with an organization of engineers

8 called ASME?

9 A I know what it is, yes.

10 Q And what does ASME have to do with the work that your

11 internal audit organization does?

12 A Nothing directly.

13 Q What request did Mr. Shirani make of you regarding

14 ASME while he was employed in the finance organization?

15 A They're, in the American Society of Mechanical

16 Engineers, ASME is like most technical organizations, ones that

17 have educational and subject matter sessions, conferences if

18 you will.

19 Paper are frequently presented, lectures are, are

20 done at those conferences sometimes, you know, you, you attend

21 them to keep your credentialing up. I don't know in, in this

22 case if that's the case, but I know from financial

23 organizations you have to attend so many credits to maintain

24 your, your accreditation.

25 And the ASME conference was coming up and I honestly

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1 can't recollect when that was exactly. It could have been in

2 the later summer or early fall time frame but I, I am foggy on

3 that.

4 And I know from my earlier discussions with Oscar

5 that Nuclear was not directly supportive of his attending the

6 ASME conferences both from a time away from job perspective as

7 well as a budgetary perspective of funding the travel and the

8 attendance at the conference. And I know that was a great

9 disappointment to Oscar in the past.

10 He asked me if he could attend. I don't recall if he

11 was giving a paper at that point or participated in a paper

12 that was being delivered or if in fact he may have had an

13 officer role in the organization. Suffice to say that it was

14 important to him and he and I, and I inferred that it was

15 important to attend to maintain his credentialing as well.

16 And while it didn't have direct applicability to the

17 what, the work that we do in internal audit I, I feel strongly

18 that if somebody has earned a, a degree or a credential or a

19 technical achievement that, and that may not be particularly

20 relevant to what the individual's doing currently, I shouldn't

21 stand in the way of, of continuing that education or

22 credentially going forward.

23 So I did not oppose funding, which I did, the, the,

24 the trip, and the time away from the year, from the job.

25 MR. GROSS: No further questions.

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1 JUDGE LESNICK: You may cross, Mr. McDermott.

2 MR. McDERMOTT: Thank you, Judge.



5 Q Ms. Gillis, is it your testimony that you met and

6 came to have frequent meetings with Mr. Shirani in the year

7 1999?

8 A Yes, I believe that's when I began my association

9 with AACES.

10 Q Could it have been only after his becoming president

11 and could it have been only after May or at the earliest April

12 of 2000?

13 A I recall 1999 but I could certainly be mistaken in

14 that regard. It was when we were both affiliated with the

15 AACES group. So if your records suggest 2000 then that would

16 have been the time frame.

17 Q If the Feast of Asia event occurred in May of the

18 year 2000 that would have been your first prolonged conference

19 with Mr. --

20 A If that was indeed year, yes.

21 Q During this first contact between yourself and

22 Mr. Shirani, he asked you to consider mentoring him, is that

23 correct?

24 A I don't believe it happened in my first contact with

25 him.

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1 Q Did it happen maybe in your next contact with him?

2 A I, it's difficult for me to do the chronology.

3 Q I understand.

4 A I would suggest though that it came up in the time

5 frame that we were doing merger selection for positions in the

6 nuclear area because if I'm not mistaken it was a

7 recommendation that came out of Oscar's assessment that was

8 done in conjunction with his job selections. So it would have

9 been later in the summer I think. The request.

10 Q The request to do mentoring?

11 A Yes.

12 Q Well, so you don't think he asked you to mentor him

13 until August of 2000?

14 A 2000. I think that would be about the right time

15 frame.

16 Q And how many mentoring sessions did you have, if you

17 know?

18 A We met a number of times and again frequently it was

19 a combination of working on some AACES business and then we had

20 an opportunity to discuss matters that, that Oscar wanted to

21 raise with me that, that were more in the realm of mentoring.

22 Q So you don't--

23 A I cannot give an accurate --

24 Q But you do remember the word mentoring being used?

25 A Yes. He did ask me to be his mentor.

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1 Q Okay. So when he wrote to Frank Clark, you

2 identified Exhibit 8 --

3 A I'm just going to turn to, would you pass --

4 Q Sure.

5 A Yes, I have it open.

6 Q This displays that, you know, one of the things that

7 you mentioned that you felt was inappropriate and I'm not sure

8 that I agree with you. The display of a voluntary organization

9 on some kind of internal corporate memorandum is something I

10 would disapprove of as well.

11 A I would also note that it's not Mr. Shirani's resume.

12 Q Pardon?

13 A It's not his resume.

14 Q Oh, I didn't say he did it on his resume but, you

15 know, by the same token Jesse Jackson, I'm sure, lists at least

16 one or two Rainbow Coalition or PUSH identifications, so it

17 shouldn't sink the ship. And I think it's also a case if the

18 other presidents --

19 MR. GROSS: I'll object to the speech, Your Honor.


21 Q I think it's also the case that the other presidents

22 am I correct of these diversity organizations display their

23 presidency on their personal e-mail?

24 A I'm not aware of other presidents.

25 Q Because you weren't the executive sponsor for them,

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1 correct?

2 A No, I but I've received --

3 Q Pardon me?

4 A -- received messages from them.

5 Q You've received messages from them? You never saw

6 anybody else do that?

7 A Not that I recall.

8 Q Okay. The whole concept of AACES since you brought

9 it up, the concept of AACES is diversity, correct?

10 A At its core, yes.

11 Q I'm sorry?

12 A At its core, yes.

13 Q And at its core diversity means breaking the gender

14 line, breaking the color line, breaking all kinds of manners of

15 lines that allow for companies public or otherwise and agencies

16 public or otherwise to be at least the reflection if not a

17 mirror of their customs or the society that they serve,

18 correct?

19 A That is right.

20 Q And if there's a disproportionate number of people

21 who are at a level below management or a particular ethnic

22 background or of a particular racial membership or of a

23 particular gender, those people, am I correct, in a diversity

24 situation band together to try to rise to the surface to get

25 above, to get ahead, am I correct? In whatever organization?

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1 A I, I --

2 Q Or at least get the opportunity.

3 A Well, you need some terminology just proportionate

4 and I'm not quite sure if I follow that line of thinking. If

5 you want my opinion on what employee network groups are, I'd be

6 happy to provide it. If you --

7 Q That's fine. But what do you --

8 A Employee network groups were formed in order to bring

9 together, well the word network is in there so, to bring

10 together people of like background. And we have representation

11 of gay lesbian, Hispanic American, African American, Asian

12 American and now a woman's group that have found commonality

13 among each other and wanted to create a more formal way of

14 sharing thoughts, issues, socializing, a big part of the

15 employee network groups is socializing, and importantly

16 supporting the company in various of its diversity initiatives.

17 Diversity isn't implicitness. Diversity is various

18 of or vary valuedness of thought and of being. So I, I don't

19 disagree with your, your identification of ethnic, gender,

20 race. But I would also add thought as well to diversity.

21 Q Thought among all people in the organization. You

22 mean it being something in the presence of the corporate --

23 A Yeah, and to think differently, to have a different

24 perspective, bring different experience to the table, bring

25 other than, you know, everyone looking alike, acting alike,

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1 educational experience, same work experience to the table.

2 Diversity is very broad.

3 Q I'm sorry?

4 A Diversity is very broad in its concept. So employee

5 network groups come together in a way that allows for a social

6 environment to be promoted and an opportunity to, to raise

7 speakers, to participate in company sponsored events.

8 Q You mentioned that you believed that Oscar knew John

9 Rowe and that they exchanged e-mails?

10 A Yes, I do believe so.

11 Q And what allows you to form that belief?

12 A Because I believe that Oscar in fact in, in

13 conversation that we had subsequently he mentioned that

14 Mr. Rowe responded to him by e-mail that he, he did something

15 very classy when he, he, Oscar sent out a notification to the

16 employee network group membership their, for their, I'm sorry.

17 I apologize.

18 For their nominations he went out of his way, he John

19 went out of his way to e-mail Oscar on his, on his job in the

20 finance group and Oscar was appreciative of those things.

21 Q Well, we know that Mr. Rowe sent two mails on

22 December the 20th. The day after --

23 A It's possible.

24 Q The day after you and Oscar discussed his position.

25 I don't recall ever, I don't recall hearing anywhere else or

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1 through discovery seeing any e-mail traffic between Oscar and

2 John Rowe prior to that time.

3 A Well, I don't, I don't know if there was any prior to

4 that time.

5 Q Oh, so when you say that they e-mailed each other

6 you're talking about after he agreed to take a position in your

7 organization? Then they e-mailed?

8 A John certainly knew Oscar. They, they met in the

9 boardroom I remember in, in the company before the merger. All

10 the presidents of the employee network group. And some

11 financial --

12 Q Yes, I believe that's I --

13 MR. GROSS: Could she please finish her answer

14 then --

15 MR. McDERMOTT: Sure.

16 MR. GROSS: -- Mr. McDermott? Thank you.

17 THE WITNESS: And if I'm not mistaken John may have

18 addressed the AACES group but I can't recall if it was when

19 Oscar was president or not. I, I, I just don't recall, that

20 was one of the meetings that occurred under Oscar's presidency

21 where he actually addressed the AACES group. And actually a

22 very small group at that meeting. So he really got to know a

23 lot of the people there.


25 Q Well, I'm --

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1 A And that part and parcel is the reason for having

2 that opportunity in the network groups is to have access to

3 senior management in a way that not everyone otherwise could in

4 the organization.

5 Q Well, I understand that but aside from the AACES

6 vehicle Mr. Shirani had no access to Mr. --

7 A Oh, not that I'm aware of.

8 Q Rowe? Well, that you know of?

9 A Not that I know of.

10 Q Okay. Who keeps your daily calender?

11 A I do. My assistant does.

12 Q Did you check your daily calendar in preparation for

13 today's testimony at all?

14 A I looked at my daily calendar to, I went back to my

15 daily calendar just to understand dates because it was a while

16 ago that some of the things we talked about.

17 Q I understand. And course --

18 A And I have, I only have my calendar and an outlook,

19 that's the electronic version, that dovetails with Microsoft

20 Office the beginning of 2000.

21 Q The beginning of 2000. And it's --

22 A Prior to that we were solely paper based.

23 Q I understand. Did you have chance to just access it

24 to see how many meetings you had with Mr. Shirani?

25 A No, no, I didn't.

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1 Q Would that have been difficult for you to do?

2 A It would have been highly time consuming. And if

3 there's a way to do it I'm not aware of the way to do it.

4 Q I understand. You're certain that Oscar asked you

5 in, directly that he said Ruth Ann I would like a job working

6 for you?

7 A Yes. He sat at my conference table and asked me

8 that.

9 Q Are you sure it wasn't I wish I had a manager like

10 you because you're a nice person?

11 A I'm sure he said that, too.

12 Q But he said both the same day?

13 A No, I wouldn't --

14 Q At your conference table?

15 A -- say it was the same day. But he asked me for a

16 job at my conference table in a, in a very direct fashion. And

17 there was no ambiguity about that.

18 Q And that was after September the 20th when he cc you

19 on --

20 A Yes, I believe so.

21 MR. GROSS: I think I'll object --

22 THE WITNESS: On September or October time frame.

23 And I think I said fall consistently, I'm sorry.

24 MR. GROSS: I withdraw my objection.


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1 Q Do you understand the question? You heard the

2 question?

3 A No, I didn't.

4 MR. GROSS: Can you repeat the question.

5 MR. McDERMOTT: That's right because those two

6 lawyers were fighting.

7 MR. GROSS: The premises of my objection, Your Honor

8 is that he referred to September when the e-mail is dated

9 August. That was mischaracterization I was objecting about

10 but --

11 MR. McDERMOTT: Oh, I'm sorry.

12 MR. GROSS: The answer dealt with it.



15 Q Exhibit 8 is an August 9th e-mail from Mr. Shirani to

16 Mr. Frank Clark, correct?

17 A Yes, and cc to me, however both of us are noted on

18 the --

19 Q I understand that and I read that carefully. And his

20 request to you, the direct request to you came after this or

21 before this?

22 A The direct request came to me after the overture in

23 my office or the request to me in my office --

24 Q Are you sure of that?

25 A -- after this e-mail.

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1 Q And to the best of your recollection when was that?

2 A I will repeat. In the fall either September or

3 October time frame.

4 Q So it would have been --

5 A To the best of my recollection --

6 Q More than 60 days, assuming no sooner than 30 days --

7 A Mr. McDermott, I'm not going there. I can't give you

8 any better estimate, I'm sorry.

9 Q Well, you did certain things and you shared certain

10 information with him, is that correct? You told him about --

11 A Yes, I did.

12 Q -- there are some things that are a potential?

13 A Yes.

14 Q So then when Mr. Shirani says you --

15 A Some things are a potential, no. I said there's

16 really only one thing that could be an opportunity and that

17 required some, some work to pursue and see if I could structure

18 it.

19 Q Did he have a meeting with you on December the 7th of

20 the year 2000?

21 A We had a meeting in the, in early, early December,

22 yes.

23 Q And is it your testimony here today that Mr. Shirani

24 called you on your vacation?

25 A I believe I, I returned the message that he left for

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1 me.

2 Q And the message that he left for you was left on your

3 husband's laptop?

4 A I don't recall that it was a laptop message. I

5 believe it was a voice mail message. And as I had testified

6 earlier I don't recall if it was to me on my voice mail or if

7 my assistant got the message because sometimes my phone pops

8 over to my assistant's messages and she could have said, excuse

9 me, Ruth Ann this message is for you. And, and left me the

10 message.

11 But it was in response to hearing that I was to

12 return, you know, he wanted to talk to me about my, our

13 discussion about the job.

14 Q You certainly were returning a phone call?

15 A I don't think I was initiating one because I was

16 waiting to hear back from --

17 Q Would Mr. Shirani be incorrect if he testified that

18 he received your phone call at home at his home telephone

19 number in the evening?

20 A That's very possible, it's very possible.

21 Q That is very possible?

22 A It's very possible I returned the call at home. I

23 was an hour behind there.

24 Q Correct.

25 A I am picking up on messages.

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1 Q Right.

2 A I'm in theory picking them up in periods of time that

3 are in chunks so morning messages, mid day, if I'm available --

4 Q Why do you even go on vacation if you're doing all

5 that?

6 A It's, you know, it's a very interesting question. It

7 was the first vacation I had had in over a year and, you know,

8 Mr. Gross asked me if I talked to John Rowe. I think I talked

9 to John Rowe every day when I'm on vacation. Mr. Rowe doesn't

10 go away for the holidays so he's around. So I do conference

11 calls when I'm on vacation.

12 Q I suggest you were not on vacation.

13 A You won't get an argument from me.

14 Q I suggest you're outside of Cook County is all.

15 A I am outside of Cook County and it only makes the

16 communication more complicated for the person that --

17 MR. GROSS: I'll accept that re characterization.

18 THE WITNESS: As a lie.


20 Q You've characterized the general audit in Illinois as

21 something that had to be reconstituted?

22 A Yes.

23 Q That's the word you used?

24 A Yes, it is.

25 Q As I understand the term reconstituted it tells me

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1 you had a pretty good idea that Arthur Andersen was not going

2 to be providing the services they had provided for the last or

3 at least for as long as you had been employed by the company?

4 A And before. Oh, yes, the decision to reconstitute

5 change internal audit structure was made with the merger,

6 before the time of the merger.

7 Q Before the time of the merger?

8 A Uh-huh.

9 Q Because you know we're talking about e-mail traffic

10 from September, the merger as we now all know burned into our

11 memories and probably our eyes is 10/20/00, right?

12 A Yes, sir.

13 Q And that decision was just plain straight up made?

14 A Yes.

15 Q Okay.

16 A Now how that was going to articulate itself --

17 Q I understand. I understand.

18 A -- remained to be seen.

19 Q You heard the testimony of Ellen Caya yesterday that

20 she let a contract to Coopers Price --

21 A PricewaterhouseCoopers.

22 Q PricewaterhouseCoopers, yes. And that she got what

23 she wanted in the lay of the strategic plan and she went ahead.

24 She also testified that she was solely responsible for, as you

25 had testified today, correct?

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1 A It was her responsibility.

2 Q And you gave her the direction to go ahead and do

3 that?

4 A Yes, that's correct.

5 Q And that decision was made prior to your

6 conversations with Mr. Shirani whoever initiated the

7 conversations whether you called him or you called you?

8 MR. GROSS: What decision, Your Honor? I'm --


10 Q The decision to reconstitute internal audit and the

11 decision to extinguish the contract however long, however

12 extended into the future but the extinguishing of that contract

13 would be an event?

14 A Yes. But with one correction to your --

15 Q Sure.

16 A -- to your statement. That conversation was had in

17 my office that was in the same conversation on the day that

18 Oscar asked me for a position and I went through as I described

19 in my, in my examination with Mr., Mr. Gross that we did not

20 have an organization in, in the west.

21 Q Right. That's not what I'm talking about. I'm just

22 talking about here in Illinois the decision had been made --

23 A Yes, but with all due respect --

24 Q -- to no longer out --

25 A -- your question started off with whether he called

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1 me or I called him. And my inference was that you're referring

2 to the conversation that I had with him when I was in Colorado.

3 I did not have that conversation with him on the phone in

4 Colorado. I had that conversation in my office within, prior

5 to that phone conversation?

6 Q In Colorado prior to that phone conversation --

7 A Yes.

8 Q Yes, I understand that. I'm clear on that.

9 A Okay.

10 Q I'm just saying that whenever it was you and he had

11 that conversation, whoever initiated it, whatever words were

12 used on that particular time you had made the decision and the

13 company had made the decision to no longer outsource internal

14 audit in Illinois?

15 A No longer fully outsource.

16 Q It could be a hybrid?

17 A It could be a hybrid, right.

18 Q Okay. I understand. I heard your testimony too that

19 beyond that --

20 A It was going to be different.

21 Q Right. And nobody can really foresee the future, I'm

22 sure, but you said --

23 A And Arthur Andersen knew that too.

24 Q I understand. With respect to -- let me just strike

25 that.

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1 I recall in your deposition testimony and I can find

2 it, I can recall you had some sense of cautionary, there's a

3 cautionary message to Oscar about taking this position as well,

4 am I correct? Did you caution him?

5 A Yes.

6 Q How did you caution him?

7 A There was a lack of structure around the

8 organization. I wasn't able to give him the job description at

9 that point in time. That we needed to figure out if you will

10 the reporting relationship and working relationship with Arthur

11 Andersen. That this is an area where there is parallel or, or

12 experience that is not totally dissimilar from what he's going

13 to be asked to do, but he doesn't have the same amount of

14 career experience in financial internal auditing that he brings

15 to the table.

16 So in, in the other areas that he's more expert in

17 and it would, it would mean needing to learn on the job and

18 perhaps down the road with more formal training how to do the

19 job. This was not an easy undertaking for, would not in my

20 expectation, an easy undertaking for him or for the

21 organization. Lots of --

22 Q Did your cautionary tone amount to a summary, Oscar

23 you're assuming some risk in taking this move?

24 A I may not have used the risk word.

25 Q Would you say this is a role of the dice?

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1 A I don't use, that's not in my lexicon.

2 Q I figured it wasn't. That's --

3 A I have other --

4 Q I just thought I'd suggest it. I just thought I'd

5 suggest it.

6 A If I, given the list that I just went down, that's

7 about as cautionary as one can get. And so this was not

8 walking in with the manager, walking in with a job description,

9 walking in with all of this nicely ironed out because it

10 wasn't.

11 Q Yes, we know. Now if there was no job description as

12 you've just finally said, if there was no manager --

13 A Other than the Andersen folks.

14 Q Right. And but there is no contract. And it's rare

15 that the customer gets told what to do by an independent

16 contractor. I mean I don't get it. I don't know how it

17 happened. I certainly wasn't there and I don't know how

18 anybody would expect it to work. But I haven't always been

19 self employed alone. I've had some experience I've just never

20 seen anything quite like that situation, I don't mean to add

21 that parenthetically, but I'm just trying to put the entire

22 bundle together.

23 In December of the year 2000, you're giving him some

24 cautionary, a measure of cautionary signal?

25 A Yes, sir.

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1 Q You're asking him to stay focused on his goals,

2 correct?

3 A Yes, sir.

4 Q You have a history of him approaching you with, if

5 not complaint, frustration about the lack of being recognized

6 and the lack of at least in his sense, moving up --

7 A Yes.

8 Q -- in Exelon. You also said he was passionate about

9 the company?

10 A Uh-huh.

11 Q And --

12 A -- yes, he was.

13 Q And, I'm sorry?

14 A Yes, he was.

15 Q And the first and foremost I think there was a desire

16 am I correct for status? That he would like to have an

17 increased status and maybe if not necessarily increased

18 visibility, at least some kind of recognition and status

19 adjustment? Is that a fair --

20 A He wanted to be a manager.

21 Q Right. That meant money, too, correct?

22 A Money, clout, yes.

23 Q Clout you use?

24 A Uh-huh.

25 Q That's in your lexicon?

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1 A Uh-huh.

2 Q All right?

3 MR. GROSS: Is that yes?

4 THE WITNESS: Yes, it is.


6 Q All right. So he wanted some money, he wanted some

7 clout, he wanted some status, right. And he wasn't going to

8 run for Alderman, right?

9 A Not that I'm aware of.

10 Q All right. All of those things being true did you

11 consider him a dullard to take such a job without a job

12 description, without any reporting line? I mean if you knew

13 all those things about him in his makeup --

14 A Not in the least.

15 Q What did you think?

16 A I have taken jobs that don't, I took a job when, when

17 I joined Unicom the person who recruited me, hired me, left two

18 and a half weeks before that. I had no mentor. I had no, no,

19 the person I was reporting into changed. I, I believe in one's

20 career if you have your goals and objectives formally set out

21 you ought to pursue them.

22 And yes, there's some ambiguity and let me use the

23 risk word, that you need to take along the way. There is a

24 risk reward tradeoff in most choices that people make. In, in

25 my view this was not a strange thing, or you used the word was

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1 he a dullard for taking this. Not, not in the least.

2 Q I just asked you if you thought he was a dullard for

3 taking this?

4 A Not in the least.

5 Q Having given him, you know, having given him some

6 kind of cautionary measure, having, knowing what you knew about

7 him, knowing about what his aspirations were, I'm just saying

8 that entire font of your knowledge --

9 A Not in the least. Because you know I might have done

10 the same thing. I have done the same thing. I've taken jobs

11 with, that most people would have said, I won't, I wouldn't

12 take a job with a brand new corporation, a brand new industry

13 coming in as a VP treasurer and the person who hired you isn't

14 even there. I, I, I don't view that as odd at all. Not in the

15 least.

16 Q Well, some of the things I've learned in looking at

17 this time frame that's not uncommon for Unicom, Exelon or ComEd

18 for, for people to come and go pretty quickly.

19 A Particularly during this merger time frame, yes,

20 there were a fair amount of people who did come and leave the

21 organization. Not uncommon for a merger.

22 Q There are no assurances. You didn't suggest or

23 strongly hint to Oscar that this could, this move could result

24 in less stress for him and a real application of his skills to

25 become a manager?

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1 A I made no promises whatsoever about Oscar becoming a

2 manager. Stress I cannot, I, I can't even comment on. I never

3 discussed the stress level of job with him.

4 Q I meant the stress level of his then current job.

5 That this would be a less stressful environment for him?

6 A I don't think I, and the stress component I

7 understand what you, what you're suggesting here and I don't

8 think that was part of my, my thinking.

9 Q During this period of time, during this merger period

10 of time do you know of anybody else similarly situated to

11 yourself as an officer of the corporation with the clout that

12 you had who made provisions for people who were similarly

13 situated as Mr. Shirani?

14 A No, I'm not specifically aware of such an issue.

15 Q It's a big company and it's a merger period. Even

16 this, you know, even at this point in time when he's terminated

17 in the year, in 10/01 we understand that was a merger issue

18 deferred until Illinois hat gotten its position together,

19 Philadelphia got its position. We understand all of that.

20 But a similar person of your level and clout and of

21 doing anything like placing an employee in a position without a

22 job description, without a reporting line, without reporting to

23 you and testified today you did not want him reporting to you,

24 correct? You didn't have time for it?

25 A It couldn't, it couldn't have been a real managerial

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1 relationship given the rest of my responsibilities --

2 Q I understand.

3 A -- as CFO of the corporation.

4 Q I understand. You're obviously --

5 A To answer your question though, I'm not aware of an

6 exact situation that mirrors the one that you just described.

7 Q I didn't say exact, you know, anything similar?

8 A No, nothing.

9 MR. McDERMOTT: I have no other questions.

10 MR. GROSS: And I have no follow-up questions, Your

11 Honor.

12 JUDGE LESNICK: I have some questions.

13 Ms. Gillis, you mentioned you know Mr. Helwig?

14 THE WITNESS: Yes, I know him.

15 JUDGE LESNICK: How long? How well --

16 THE WITNESS: He's a work colleague. I don't know

17 him, to the best of my recollection we have never even worked

18 on a committee or tasked together. We're certainly not in the

19 same area.

20 JUDGE LESNICK: You were asked by counsel whether or

21 not you either directly or by suggestion given him any idea of

22 whether or not you should take any action with Mr. Shirani and

23 you said you did not. Did he discuss with you on any occasion

24 Mr. Shirani?

25 THE WITNESS: Not that I recall.

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1 JUDGE LESNICK: Did anyone on Mr. Helwig's staff or

2 close to Mr. Helwig discuss Mr. Shirani with you?

3 THE WITNESS: I did call, as I had mentioned earlier,

4 that, to human resources to understand the status of the

5 leading candidate from a diversity position in nuclear, so I

6 talked indirectly to the head of HR of nuclear.


8 THE WITNESS: But I don't believe I had that

9 conversation directly. I'm trying to think about all of the

10 other interactions I may have had, but no.

11 JUDGE LESNICK: In the context of that conversation

12 did they talk about Mr. Shirani --

13 THE WITNESS: No, no.

14 JUDGE LESNICK: Were you aware of any reputation of

15 Mr. Shirani before or except through him to you?

16 THE WITNESS: Well, just through Mr. Shirani.

17 JUDGE LESNICK: Okay. There was testimony by

18 Mr. Shirani himself that he had a nickname given by people in a

19 derogatory sense that he was a, referred to a shut down

20 Shirani. Have you heard that?

21 THE WITNESS: He did not share that with me, no.

22 JUDGE LESNICK: Did anyone share it with you?

23 THE WITNESS: No, sir.

24 JUDGE LESNICK: Any further questions?

25 MR. McDERMOTT: None, Judge.

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1 MR. GROSS: Your Honor, we have a short witness and

2 then Mr. Bastyr. Go off the record?

3 JUDGE LESNICK: No, let's stay on the record. All

4 right. Did we cross off a witness?

5 MR. GROSS: No, we'll recall Ms. Caya for a limited

6 purpose on an issue that came up during Mr. Palacios' cross

7 examination.

8 JUDGE LESNICK: Okay. All right.

9 MR. McDERMOTT: Off the record?

10 JUDGE LESNICK: Off the record.

11 (Off the record.)

12 (On the record.)

13 JUDGE LESNICK: Raise your right hand. Actually no,

14 you have been previously sworn and you're still under oath.

15 You may question the witness.

16 (Whereupon,


18 was recalled as a witness by and on behalf of the Respondent

19 and, having been previously duly sworn, was examined and

20 testified as follows:)



23 Q Good morning, Ms. Caya, and thank you for coming at

24 the last minute.

25 A Good morning.

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1 Q Ms. Caya, can you turn your attention to Respondent's

2 Exhibit 4.

3 A Yes.

4 Q And at the end of the third full paragraph in that e-

5 mail there's reference to selection criteria as the core

6 competencies and there's then a following sentence.

7 Can you tell me what that following sentence means in

8 terms of what's required for the position?

9 A Well, basically I require what's under the core

10 competencies and then this basically says that technical

11 knowledge skill and previous experience will be considered. So

12 those are more flexible.

13 Q Can you turn to Respondent's Exhibit 5, please.

14 MR. McDERMOTT: Just can I have a clarification,

15 Judge. Are you looking at the exhibit?

16 JUDGE LESNICK: I'm not looking at that one, no.

17 MR. McDERMOTT: This is Exhibit 4, where in Exhibit

18 4?

19 MR. GROSS: At the end of the last, excuse me, the

20 end of the third full paragraph text.

21 JUDGE LESNICK: That's right.

22 MR. GROSS: Okay. Could you please turn to

23 Respondent's Exhibit 5.

24 JUDGE LESNICK: Is there a problem with 4?

25 MR. McDERMOTT: Well, it's just he misdirected me to

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1 reading something and she, she gave testimony and I just wanted

2 to see. Again, Judge, I'm objecting I think the document

3 speaks for itself. She's adding additional and new

4 information.

5 MR. GROSS: She's not adding additional information,

6 Your Honor, she --

7 MR. McDERMOTT: She's attempting --

8 MR. GROSS: -- clarifying to get to the point here.

9 JUDGE LESNICK: Okay. Well, move on.


11 Q Referring you to Respondent's Exhibit 5 can you tell

12 me where those technical knowledge skills and previous

13 experience are reflected on Exhibit 5?

14 A It's on page two under level of education,

15 certification, years of experience. That's the technical

16 skills piece. Previous experience is under that same section

17 of level of education, certification, years of experience.

18 Q Thank you. And can you again list for us the key

19 reasons you did not select Mr. Shirani for --

20 MR. McDERMOTT: Objection, Judge, this is, he's here

21 to clarify, I'm objecting strenuously. He presented this

22 witness to clarify another witnesses' testimony that's in the

23 record. This is, you know, prejudicial. She's now going to

24 say I get a chance to do this, I would have if he had ever

25 applied. I certainly would have employed, now this is crazy.

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1 MR. GROSS: Your Honor, I am not asking anything

2 about an E-3 position. We're talking solely about the E-4

3 manager position and I represented that to the Judge. We're

4 not going to go --

5 JUDGE LESNICK: Okay. I'll hold in abeyance any

6 ruling on whether or not the testimony can be considered.

7 Well, you can even address that in your briefs. Why don't we

8 put the evidence, put it on the record. I'm not a jury. The

9 benefit of an ALJ is I can disregard testimony and as if it

10 didn't occur. So let's put it on the record though and then

11 we'll deal with it because I'm not sure how I will right now.


13 Q Can you please summarize for us the key reasons you

14 did not select Mr. Shirani for the E-4 manager position?

15 A For the E-4 manager position. The E-4 manager

16 position --

17 Q You don't need to refer to the Exhibit.

18 A Oh, okay. Basically the E-4 manager position

19 required a breath of audit experience of a financial

20 operational and compliance auditing. And I felt that

21 Mr. Shirani had primarily focused on operational auditing and

22 was not as strong in the financial or compliance auditing area.

23 The E-4 manager position required supervisory

24 experience. While he was a team member on many audits I was

25 not aware that he had supervised people including hiring,

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1 firing, giving performance evaluations and supervising them on

2 the day to day jobs.

3 The manager responsibility required very strong

4 verbal and written communication skills because they're the

5 last line of, they see the report last. The draft goes to

6 them, they are the last person who does the editing on the

7 report. I felt that his verbal skills were good but his

8 written communication skills needed some work.

9 Problem solving and logic. I mean the manager is the

10 sole person who oversees the day to day audit and it has to be

11 able to look at the set of facts, interpret some of the work

12 that the staff does and make sure that they draw sound

13 conclusion. I didn't feel that Mr. Shirani does that well

14 either.

15 Q If you could turn to Respondent's Exhibit 6 which is

16 the document you discussed yesterday and those issues you said

17 are reflected in here, correct?

18 A Yes, sir.

19 Q Now Mr. Palacios testified yesterday --

20 MR. McDERMOTT: Objection, Judge.


22 Q Did you have a conversation with --

23 JUDGE LESNICK: Sustained.

24 MR. McDERMOTT: Objection.

25 JUDGE LESNICK: Sustained.

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1 MR. McDERMOTT: Thank you.


3 Q Do you recall any conversation with Mr. Palacios,

4 Eliecer Palacios about Mr. Shirani's being considered for any

5 of these positions.

6 MR. McDERMOTT: Objection.

7 JUDGE LESNICK: I'll allow this.


9 MR. GROSS: Okay.


11 Q And what did you tell Mr. Palacios in that

12 conversation.

13 MR. McDERMOTT: Can we have a foundation, Judge? I'm

14 objecting no foundation. They might, I saw them have a

15 conversation out here yesterday.

16 MR. GROSS: All right. Was it a conversation prior to

17 your decision to not select Mr. Shirani for the manager job?

18 JUDGE LESNICK: Well, let me ask. Did you discuss

19 testimony with Mr. Palacios?


21 JUDGE LESNICK: All right. Proceed.


23 Q Did you have a conversation with Mr. Palacios prior

24 to your decision not to select Mr. Shirani for management? If

25 you recall?

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1 A I don't recall. I know I had a conversation with

2 Mr. Palacios but I don't recall if it was prior to this date or

3 post this date.

4 Q Prior to or post October 5th, 2000?

5 A Of 2001.

6 Q I'm sorry, 2001.

7 MR. McDERMOTT: Judge, are we looking at a document

8 entitled Exhibit No. 6?


10 JUDGE LESNICK: I've got 5. Did we move to 6?

11 MR. McDERMOTT: Yes, he moved to 6. He asked her to

12 look at 6.

13 JUDGE LESNICK: I'm just trying to understand what

14 date you're referring to when you said

15 before --

16 THE WITNESS: I'm sorry. I did not have a

17 conversation with Eliecer Palacios before this.


19 Q Before October 22nd, 2001, correct?

20 A Correct.

21 Q You don't recall any conversation?

22 A No, I don't.

23 Q Do you recall any conversation with Mr. Palacios

24 regarding Mr. Shirani's interest in the position of manager?

25 A Yes.

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1 MR. McDERMOTT: Objection, Judge, foundation.



4 Q And do you recall when that conversation occurred?

5 A I don't to be honest.

6 Q Do you know if it was before or after October 22nd,

7 2001?

8 A I would speculate that it would be afterwards because

9 I believe Mr. Shirani went to Elias after he did not get the

10 position.

11 Q But you don't know for sure?

12 A I can't remember.

13 Q Do you recall what if anything you told Mr. Palacios

14 about the financial internal auditing experience --

15 MR. McDERMOTT: Objection, Judge, I renew my

16 objection this is only intended to reconstruct some other

17 person's testimony.

18 JUDGE LESNICK: Okay. I understand your objection

19 and I'll hold it in abeyance for a ruling on it and let's hear

20 your answer.


22 MR. GROSS: Did you, I'm sorry.

23 THE WITNESS: Ask the question again I'm, I didn't.


25 Q Do you recall whether Mr. Palacios and you discussed

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1 the financial internal auditing experience criteria of any of

2 these positions?

3 A We did.

4 Q And what do you recall you told him?

5 A That for the manager position I needed someone with

6 more of a breath and depth of experience. I needed someone

7 with financial operational and compliance auditing experience.

8 Q Do you recall whether you told Mr. Palacios that

9 you --

10 MR. McDERMOTT: Objection, he's leading.


12 Q Do you recall whether you had any discussion with

13 Mr. Palacios about whether Mr. Shirani should or should not

14 apply for the E-4 manager position?

15 A I believe I told Mr. Palacios that it was unlikely

16 that he was going to get this position because he didn't have

17 the breath and depth of that experience.

18 Q If you could please turn to Respondent's Exhibit 6.

19 MR. McDERMOTT: I renew my objection, Judge, he said

20 this was going to be very brief.

21 MR. GROSS: And it's almost done.

22 JUDGE LESNICK: Okay. I understand. Go ahead.


24 Q Can you please return to --

25 JUDGE LESNICK: We left 6? We're back to 6?

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1 MR. GROSS: We're back to 6 again, Your Honor, I'm

2 sorry.

3 JUDGE LESNICK: All right.


5 Q And the first bullet point can you tell me the

6 reference to financial and system auditing experience what that

7 meant to your decision?

8 A Again, I, I was looking for a financial operational

9 and compliance auditing experience and he has very, he had very

10 limited financial auditing experience. The system auditing

11 experience relates to IT systems and he had very limited of

12 that either.

13 Q And what experience if any did Mr. Zurowski have in

14 those two?

15 MR. McDERMOTT: Objection again, Judge. He's just

16 trying to get this witness to, all over again.

17 JUDGE LESNICK: This would be easier if we just let

18 it go in and you can argue about it. Go ahead.

19 THE WITNESS: Mr. Zurowski had a dual degree in

20 accounting and computer science and had been both a financial

21 operational and IT auditor in the past.


23 Q What about Mr. Cuszo?

24 A Mr. Cuszo had both financial operational and

25 compliance auditing experience with his years at Sara Lee and

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1 Alberta Culvert.

2 Q And my last question is on the second bullet point

3 can you tell what experience Mr. Zurowski had on supervisory

4 experience?

5 A Mr. Zurowski has a lot of supervisory experience. He

6 was a manager at Arthur Andersen for several years and had

7 supervised I think up to eight, ten auditors at one time. And

8 prior to that he also had I believe some supervisory experience

9 at the job before he took Arthur Andersen.

10 Q And what about Mr. Cuszo?

11 A Mr. Cuszo also had very strong supervisory

12 experience. He was a manager at Sara Lee and also had had

13 supervisory experience in his previous responsibilities as an

14 audit manager at Alberta Culvert.

15 MR. GROSS: No further questions.

16 JUDGE LESNICK: Mr. McDermott?

17 MR. McDERMOTT: No, Judge.

18 JUDGE LESNICK: Let me ask you some questions,

19 Ms. Caya.

20 Ms. Gillis has testified earlier today. Let me ask

21 you your version of any conversations that occurred. Did you

22 discuss Mr. Shirani with Ms. Gillis on any occasion before he

23 was not selected for the E-4?

24 THE WITNESS: Before he was not selected for the E-4.

25 I honestly do not recall. I, I might have, you know, just made

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1 her aware of what was going on in the process in general

2 because we, you know it's a hard time for all the employees.

3 So I am a direct report to her and I have frequent updates with

4 her and I might have talked to her but I can't recall.

5 JUDGE LESNICK: Would you have had any discussion

6 with her about her opinion as to his abilities for the E-3

7 position?

8 THE WITNESS: Unlikely.

9 JUDGE LESNICK: Yesterday you said you knew

10 Mr. Helwig. How well did you know Mr. Helwig?

11 THE WITNESS: I actually never met Mr. Helwig at this

12 point in time except for on one occasion during the strategic

13 performance assessment. We interviewed him for one hour in

14 that long, I interviewed 63 different executives over a couple

15 months and he was one of the 63 executives and I had met with

16 him for that one hour to discuss that subject and had never met

17 him before that.

18 JUDGE LESNICK: I'm just concerned about at the time

19 you made the decision?

20 THE WITNESS: Had only met him for that one hour.

21 JUDGE LESNICK: Okay. Anything further?

22 MR. GROSS: I just have one follow-up question.



25 Q And in that one hour did you or Mr. Helwig discuss

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1 Oscar Shirani at any point?

2 A No, we did not.

3 JUDGE LESNICK: You're excused.

4 MR. GROSS: Thank you.

5 THE WITNESS: Thank you, sir.

6 JUDGE LESNICK: Off the record.

7 (Off the record.)

8 (On the record.)

9 JUDGE LESNICK: Raise your right hand, sir.

10 (Whereupon,


12 was called as a witness by and on behalf of the Respondent, and

13 after having been first duly sworn, was examined and testified

14 as follows:)

15 JUDGE LESNICK: You may question the witness.



18 Q Mr. Bastyr, sir, can you state your full name and

19 spell your last name for the record?

20 A Russell Bastyr, B-a-s-t-y-r.

21 Q What is your current position?

22 A I am the supplier evaluation services manager for

23 Exelon Generation Nuclear.

24 Q What are your duties generally in this position?

25 A I supervise a group of auditors that oversee our

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1 suppliers that provide safety related product for the nuclear

2 division.

3 Q How long have you had those duties?

4 A I started that job in September of 1997.

5 Q Has your position always been called SES Manager

6 during that time?

7 A No, it hasn't. I started out as a superintendent.

8 Q And when was your title changed?

9 A My title was changed in October of 1999.

10 Q To?

11 A To a SES Manager, supplier evaluation services

12 manager.

13 Q Prior to September of 1997 what was your position?

14 A I was an individual contributed group member of the

15 supplier evaluation services group.

16 Q And what specific position were you in?

17 A I was a lead auditor.

18 Q And did you have a professional relationship with

19 Mr. Shirani prior to becoming a superintendent in SES?

20 A Mr. Shirani and I were peers during that time.

21 Q Prior to your tenure as an auditor in SES what was

22 your position?

23 A Prior to that I was a MIS liaison in the MIS group

24 corporate and that was about a year. And prior to that I was,

25 excuse me, could you repeat the question I think I might have

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1 skipped one. Did you want me to stop and start --

2 Q Immediately prior to being an auditor at SES.

3 A Okay. I was a MIS liaison. Before that I was a

4 quality assurance auditor out at our Bryon Station. Before

5 that I was a quality control inspector at LaSalle and I had --

6 Q You can stop right there. How many years, since when

7 have you worked in ComEd Nuclear and then Exelon Nuclear?

8 A Probably within ComEd Nuclear, let's see, since 1982

9 or '83.

10 Q Are you familiar with the employee concerns program?

11 A Yes, I am.

12 Q What is that?

13 A It's a program that was started based out of our, a

14 group at our Braidwood Generating Station. They were having a

15 lot of problems with allegations being brought up to the NRC

16 after people left the site. And they determined that the

17 reason for that was because people didn't have the opportunity

18 to bring these issues up and didn't feel comfortable bringing

19 them up during their employment, during the construction

20 phrase.

21 They were worried about loss of jobs and things like

22 that for bringing up issues. So ComEd I think it was at the

23 time, it was probably Commonwealth Edison at the time, started

24 this program at Braidwood Station to allow an individual to

25 identify safety significant issues at our site, at that site

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1 to, without fear of retaliation or retribution so they'd feel

2 free to identify nuclear issues and hopefully we'd be able to

3 take care of them as a company before they got to the level of

4 the NRC.

5 Q How long has the employee concerns program been in

6 place?

7 A I would guess probably almost as long as I've been in

8 nuclear power, maybe a year or two after I started.

9 Q So 1983 or --

10 A Yeah, something like that.

11 Q What other mechanisms do employees have to report

12 safety concerns complaints in nuclear?

13 A Through my years with Edison, with nuclear there's

14 been various programs. There's, it's been called the cliff

15 program, discrepancy reports, condition reports and what it is

16 it's a, anyone within the company, nuclear division, can write

17 up one of these documents to identify issues that they have

18 with the plant.

19 It could be material issues in the plant. It could

20 be an issue where your supervisor didn't give a safety concern

21 you thought was proper conditions, they range the whole gambit.

22 And what this does is it goes into a group who can then look at

23 it and your immediate supervisor reviews it then it goes to a

24 screening committee who looks at the significance and actions

25 are taken to correct problems based on the program.

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1 Q How has the company encouraged employees to raise

2 nuclear concerns? Safety concerns?

3 A There's been many advertisement programs, hand outs

4 in paychecks we go through every year. If you have unescorted

5 nuclear access where you taught about the employee concerns

6 program and the corrective action program and it all rolls back

7 into the 10 C.F.R. 21 requirement which, which has the utility

8 provide a program so then an employee can bring up these safety

9 concerns and not feel harassed.

10 Q When did you first have supervisory responsibility

11 over Mr. Shirani?

12 A When I took over the job in September of 1997.

13 Q From whom?

14 A I took over the job from Paul Zurowski.

15 Q Did Paul Zurowski ever come back to work for you?

16 A Yes. Paul Zurowski came back to work for me in

17 August of 1999.

18 Q What occurred in August of that year that happened?

19 A Well, it's actually a little sooner in, in June of

20 that year and it started before June. We went through a

21 realignment. There was some new management brought to the

22 company. We went through a effort where you had to reapply for

23 your job.

24 So myself included, all of us in nuclear had to

25 reapply for our jobs. I was chosen for my job and then I had

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1 to pick a staff.

2 During this time there was another group doing a dry

3 cask storage oversight and Mr. Zurowski was a member of that

4 team. And the dry cask storage group was too full. It did

5 internal audits of the work that went on at the site which took

6 probably about half the group size of five or, you know, a

7 third of it I'm not sure what the split was and then there was

8 a group that worked on external things that handled the

9 vendors.

10 I was a supplier evaluation services superintendent

11 at the time and I felt it was my responsibility to do that

12 work. I didn't think it was prudent for the company to have a

13 whole group to concentrate on one supplier. So I requested my

14 upper management through nuclear oversight to move that back,

15 work back into my area. Move that work back where it belonged.

16 That did happen during the reorganization in June.

17 It took a little while for the group to disband and to get

18 things together and Mr. Zurowski and also another gentleman

19 Tony Frazier ended up coming over to my employ at that time.

20 Q You indicated that was in August of 1999?

21 A I think --

22 Q Are you sure that's the right year?

23 A I'm not sure about the year. It could be '98. Let

24 me think for a second. Yeah, it, it was '98. Because he was

25 gone for about a year.

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1 Q During that reorganization were auditors removed from

2 your group?

3 A Yes, yes.

4 Q How did that occur?

5 A Well, there was a, a separation that was done in the

6 downsizing or rightsizing, put the right people in the right

7 jobs. What we had to do after I was chosen for my position

8 through a rightsizing that I was, you know, I had submitted a

9 form that told what my abilities were and why I thought I

10 should have the job and things. I then, had access to everyone

11 else who submitted so.

12 So there were, let's see at that time there were one,

13 two, two auditors that worked for me that I released and there

14 were also two gentleman that didn't work for me but were under

15 my payroll because our payroll structure worked kind of strange

16 at that time that I also released.

17 Q And when you say you released. Who made that

18 decision to terminate them?

19 A Well, it was my decision. I chose my group.

20 Q Was it a voluntary termination or involuntary

21 termination?

22 A It was an involuntary termination.

23 Q Do you remember the names of any of those auditors

24 that you terminated?

25 A Yes --

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1 MR. McDERMOTT: Judge, could we have a foundation

2 because I'm not sure what, I just don't, I don't even know what

3 year we're even talking about.

4 MR. GROSS: He clarified it was 1998, I believe.

5 MR. McDERMOTT: But I don't know when in 1998.

6 THE WITNESS: It was prior to June is when the actual

7 execution of the separations happened so it was prior to June

8 '98, probably a couple months before that.


10 Q And then who, what were the name of the auditors who

11 you terminated?

12 A Sam Bahktiari and John Kellerhalls.

13 Q Can you tell us what the purpose of supplier

14 evaluation services has been?

15 A Well, the purpose is, is we go out to suppliers and

16 we verify that the suppliers' quality assurance program meets

17 the requirements of the, of the NRC rules or the federal law,

18 whatever you might call it. And meets the requirement of 10-

19 C.F.R. 50 criteria which I can just refer to as a federal law

20 or the NRC requirements.

21 We do that through audit. We do that through

22 surveillance. We share those audits with other utilities

23 through a process called NUPIC. We do annual evaluations of

24 the suppliers. We write corrective actions when they have

25 problems. There's a host of things we do in the program to

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1 make sure we understand the vendors performance and make sure

2 that they're following the requirements.

3 Q With respect to audits what were Mr. Shirani's duties

4 as an auditor in your SES organization?

5 A His, Mr. Shirani had the duties as I just described.

6 He had to perform audits. He the lead on some, he was a member

7 on some, to planning. We were to predefine checklists that we

8 get through the nuclear, the NUPIC organization.

9 He had to do ASL updates which is the approved

10 suppliers list, a database where we keep our information about

11 our vendors. He had to visit vendor sites to do these audits.

12 He had to look for technical specialists to come out on audit

13 teams with him. And third party evaluations, other utilities

14 audits and write corrective actions or things like that.

15 Q What are the purposes of the audits that your

16 organization does?

17 A The purpose of the audit is to identify problems with

18 the suppliers program so we can verify that we're, and have

19 assurance, reasonable assurance that we're getting parts that

20 meet the design requirement and requirements of the whatever

21 standards there might be that the parts are filled to so they

22 can meet their safety, perform your safety significant function

23 when they're in the plant and that they'll be reliable parts

24 and perform as they were intended to perform through the design

25 of the plant.

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1 Q What was your role in audits that Mr. Shirani lead?

2 A When Mr. Shirani lead audits my role was to review

3 his audit. I had to approve the audit plan, approve the audit,

4 approve any corrective actions and generally supervise

5 Mr. Shirani.

6 Q Were you held personally accountable for the quality

7 of Mr. Shirani's audits?

8 A Yes.

9 Q How?

10 A First off my name's on that audit so I had my

11 personal pride. But through the company, the company does not

12 want vendors that don't perform well, that have bad parts and

13 aren't identified because number one that can affect the

14 operation of your plant. It's very costly to have a plant come

15 down, not very good for safety significance. The NRC does not

16 like it.

17 So any time those kinds of things happen I'm held

18 accountable. The first thing that they ask was where was your

19 audit, why didn't you identify these issues that would have

20 guaranteed that we had a good part.

21 There are times when we've had some big enough issues

22 that they might even, they could even, I even worried about

23 that impacting my performance review because it is not good to

24 have that kind of exposure to the NRC. You have a certain

25 amount of margin with the NRC.

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1 I'll explain it sort like when you give your child a

2 car for the first time. You don't give him the keys and say

3 drive to California if you live in Chicago. You give him a

4 little lead way, let him go a little further and as you get

5 better, he gets better, and you fell more comfortable you get a

6 certain margin.

7 When you have supplier problems that are identified

8 with plant performance problems it eats at that margin. Pretty

9 soon that margin closes down and the NRC is with you as your

10 partner in finding out why you have these issues and why you're

11 not finding them through your audits and your reviews of the

12 suppliers.

13 Q How were you held personally accountable if any of

14 your auditors failed to find and report any deficiencies in the

15 supplier?

16 A In the same manner. We would have a bad part. If my

17 auditors weren't thorough and good auditors I would not, I

18 would have the same problem. A part wouldn't perform. They'd

19 come to me they'd ask me why the part, why the vendor did not

20 make the part as designed, the discrepancy, excuse me, a

21 corrective action record was written on that.

22 Many times, nine times out of ten when it's a

23 supplier, a part problem we get some action with the supplier

24 where they make us aware of it so we can monitor the supplier

25 or where we can do some extra oversight over the supplier to

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1 make sure that we realize the performance of the supplier.

2 And also as I stated earlier, if there are enough

3 problems it will affect my performance review.

4 Q What is a stop work order?

5 A A stop work order is a method that we use to make a

6 significant impact on a vendor when he has significant

7 problems. Stop work orders are given out when an auditor is

8 out an audit or out doing some field oversight or some of the

9 things we do and they find an issue where the process or the

10 work is going to impact the final product and going further

11 with the process in that manner will have a detrimental effect

12 be it a service like a calculation or a manufactured part.

13 So if you start with a bad weld prep say, the end of

14 a pipe isn't made correctly so the welds correctly, if you let

15 them go on and continue to weld with that bad weld prep you

16 would end up with a bad assembly. So you stop work to stop

17 that from happening.

18 The other thing is if there are problematic problems

19 their QA program isn't giving the, sufficient enough

20 reliability or, or giving you reasonable assurance that part is

21 going to perform as designed, you may want to stop it right

22 then and there too, the production of the part or the service.

23 Say you can make the supplier make a change prior to going out

24 so you, you have a guarantee or warrantee that your parts or

25 your services are in good shape.

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1 Q Who had the authority to issue a stop work order

2 after an audit was completed?

3 A Well, it depends what time frame you're talking

4 about. When I was a superintendent I worked for a manager. At

5 that point Exelon or ComEd whatever the vernacular you want to

6 use for SB, quality assurance manual or later was called a

7 quality assurance TOPCO report specified that the manager over

8 that specific job, well, actually it went further than that.

9 The vice president or the director I don't remember it depends

10 on what time, had stop work authority. They also passed that

11 stop work order authority down to the managers that reported

12 directly to him.

13 When I made the manager level in October of '98 I was

14 then given stop work authority from the nuclear oversight

15 manager. I had a direct line to the nuclear oversight manager

16 where if I had any issues that came up with the vendor I could

17 stop work on that.

18 So what it meant was when my auditors were out in the

19 field and they were performing their audits they would come up

20 with issues, they would identify these issues if they were

21 severe enough to institute a stop work in their opinion they

22 would contact me.

23 At that point I would talk with them and make the

24 determination of the stop work if it's needed at that time.

25 Most of the time we did that immediately. Sometimes you would

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1 look at audits afterwards and come up with that conclusion from

2 looking at the audits.

3 Q Thank you. You said manager in October '98. Just to

4 clarify the year. You became a manger in that year? October

5 '98?

6 A Yes, I think, no, October of, I'm sorry, these

7 dates --

8 Q I understand.

9 A -- throw me. It's the date that I started earlier.

10 October of, let me think now. October of '99, excuse me.

11 Q How many auditors currently in SES?

12 A Auditors currently in SES I have six auditors

13 currently reporting to me.

14 Q On the average how many audits has your team of

15 auditors done as a whole during any given year since you

16 became --

17 A On average --

18 Q -- since September of '97?

19 A Since September of '97 it would be, we average 15 to

20 16 audits.

21 Q And how frequently have any of those audits resulted

22 in formal findings?

23 A Oh, it's quite usual for each audit to end up with

24 one or two findings. Sometimes more and there are a few but I

25 would say it's the majority that don't come out without any

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1 findings. Usually you find something. I have auditors that

2 are sent out there to find problems and they find problems.

3 Q Since September of '99 how many stop work orders has

4 your SES organization issued towards vendors?

5 A Since September of '99?

6 Q I'm sorry, September of '97?

7 A Since September of'97 we've only issued one stop work

8 order under my time as supervisor.

9 Q And who made that decision?

10 A I made that decision?

11 Q Who was the auditor on that --

12 A Well, hold on, let me think when it was. I may have

13 not made that decision. I may have recommended that decision.

14 It was in July of 1997 so I became manager of '98 so I did not

15 make that decision. Oh, excuse me, it was in July of, I got to

16 think of this chronologically so give me a second, please.

17 Q Take your time.

18 A It would have been in July of 1998. And at that time

19 I was not yet a manager so at that time I think it was I'm not

20 sure which manager I worked for, my guess would be at that time

21 it might have been Larry Sprole or excuse, Roger Sprole is the

22 person who wrote it, it would have been Larry Spears or Gary

23 Waldrop.

24 Q At the time you were SES superintendent?

25 A Yes.

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1 Q You were the supervisor of Mr. Sprole?

2 A Yes.

3 Q And who, what vendor was issued a stop work order on

4 that occasion?

5 A It was PSI Professional Services Incorporated.

6 Q What do they supply? And what did they at that time

7 supply to the company?

8 A Professional Services Incorporated is a company that

9 does testing services and specifically they were doing concrete

10 testing for us. So they were taking cylinders from our reactor

11 walls and crushing them after we replaced sections of our

12 reactor wall for secondary containment to make sure that that

13 concrete was mixed, made according to spec and would withhold

14 and withstand the type of pressures that the secondary

15 containment was designed for.

16 And when I say secondary containment I mean the

17 fission product that's in the reactor, the reactor fuel when it

18 becomes irradiated and makes the electricity and the steam,

19 makes the steam which makes the electricity.

20 Q And is Mr. Sprole still an auditor with Exelon

21 Generation Company?

22 A Yes, he is. Mr. Sprole, I'm trying to remember when,

23 I think it might have been in early 2000 or late '99 I'm not

24 exactly sure of that date, he was looking for a new opportunity

25 to move closer to home. I hated to lose but I got him a job at

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1 Bryon Station. He's originally from Rochelle, Illinois which

2 was closer to his home.

3 Q Since September of '97 how frequently has the NRC

4 requested and received copies of audits from your organization?

5 A Generally the NRC asks me for, it's usually two to

6 three a year. It's not to irregular. What the NRC does is

7 they get a list of what audits we're performing from our

8 nuclear organization or joint organization. They usually look

9 at that and choose some of yours. So I would say about that.

10 Q Ordinarily on those occasions who provides the audits

11 to the NRC?

12 A Those go through nuclear licensing. We want to make

13 sure that confidential information and proprietary information

14 such as design information doesn't get out to the general

15 public so we have to write a cover letter on it which has some

16 C.F.R. type numbers that go with it, 50, I don't remember the

17 numbers exactly but licensing are the people that do that to

18 make sure it doesn't become a part of public record cause we

19 don't want that design information out to the public especially

20 now with the change in our country,

21 Q Turning now to Respondent's Exhibit 10 in the binder

22 in front of you. Recognize that memo?

23 A Yes.

24 Q Who wrote that memo?

25 A I wrote it.

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1 Q When did you write it?

2 A In the, it would have been days before June 12th,

3 1999.

4 Q What happened that caused you to write this memo?

5 A Well, there was a change in philosophy in ComEd at

6 the time. We, we used to be a company that kind of separated

7 church and state I would say. Quality and production.

8 During this time there was a change going to where

9 quality was being more integrated into the everyday work into

10 the processes. What another, us going to a line organization,

11 us going to an organization supplying, the supplier

12 organization put us more in a line with where our, where our

13 work was.

14 Now what this did was this letter here makes us

15 report to nuclear supply and it was a change reflected in the

16 quality assurance TOPCO report at the time. So that was sent

17 to the NRC for approval and their approval was given on that.

18 We had other groups that did this too. We, we went

19 to a peer inspection out at the sites rather than having a

20 separate quality control group that did all the inspections.

21 One worker, or one manager would inspect another work team's

22 job and things like that.

23 So it was a, a new push in Exelon at the time, or

24 ComEd, excuse me, at the time.

25 Q Since June of 1999 what authority has nuclear

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1 oversight kept over the SES organization?

2 A Well, the oversight, I'm still in line with them to

3 qualify my lead auditors so they do my certification of

4 auditors. I get my stop work authority passed on through them

5 still and I still have a reporting responsibility for that stop

6 work because the vice president of quality wants to know what's

7 going on in the quality organization.

8 Also I have an issues with escalation process. And

9 what that is when I came to the vendor to respond or I'm

10 getting pressured by, I might get pressured by a line

11 organization which never happened I might add, I have that

12 avenue to go up through nuclear oversight which is a totally

13 separate from production still and get their support. And they

14 usually try to meet with me a few times a year to see where

15 we're at at audits. They always, I always supply them with a

16 copy of our audit schedules and any big issues that come up I

17 supply them with.

18 Q Turn to Respondent's Exhibit 11 please and tell me

19 what happened that prompted this memorandum?

20 A This was the same, the same issue. We were making

21 that company change, that company philosophy change. The

22 reason that the financial change came before the quality change

23 is beginning of the year is always a good time to make a

24 financial change. And that's when we decided to make it.

25 Now all this did was change the financial change

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1 because of the QATR or excuse me, quality assurance topical

2 report hadn't changed. We still needed to have our functional

3 responsibility go through nuclear oversight until that was

4 approved and enacted at the company.

5 Q Prior to January of 1999 did David Helwig have any

6 authority whatsoever over the SES organization?

7 A No, he did not.

8 Q Prior to June of 1999 did Mr. Helwig have any

9 supervisory authority over SES other than this budgetary?

10 A No, he did not.

11 Q After September of 1997 when you first became SES

12 superintendent, when was the first time SES's offices actually

13 physically moved?

14 A I'm not sure of the exact date of that. What, I

15 would put in, I know it was prior to separating Mr. Bahktiari

16 and Mr. Kellerhalls and I know that it was after I took the

17 position so I would, my, my best guess and, and I don't know

18 exactly what it would be, probably January or February.

19 Q Of?

20 A Of, it would have been 1998.

21 Q And did any change in supervisory responsibility over

22 SES accompany that move?

23 A No. At that time I worked for Mr. Ed Netzel and he

24 remained my supervisor. I would go back there and attend staff

25 meetings and generally deal with him. He did, he oversaw my

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1 performance reviews and he still had our stop work authority.

2 Q To where did the, they move?

3 A They moved to the CT facility.

4 Q When was the first time Tom Joyce had any supervisory

5 responsibility over you?

6 A It would have been when these two exhibits that you

7 showed me were enacted.

8 Q Can you tell me the name of the utility that provided

9 the model for ComEd's move of SES in 1999?

10 A Yes. We had based our move, I'm almost positive it

11 was on the Roofs plant. It had their, who had made that

12 change. There's another plant too who is still like that is

13 PSENG out east in New Jersey and I think TECH Engineering is

14 also like that but I'm almost positive that the people who

15 handled the quality assurance TOPCO report used the Roofs

16 quality assurance manual as their, as their guide.

17 Q You've mentioned the NRC approved that move. Do you

18 recall when that occurred?

19 A It would have been whenever this letter states.

20 Well, maybe it doesn't state. That would have been in revision

21 66B whenever that was enacted. I'm not sure when it was.

22 Q Can you describe for me Shirani's level of

23 performance during the time he was an auditor in your section?

24 A Oscar was always one of my top performing auditors.

25 Q What were his strengths?

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1 A His strengths were his technical knowledge. He, he

2 was very good, he was, doing the design audits. He was very

3 thorough and he was, well, he uncovered issues that were

4 relevant.

5 Q Can you turn to Respondent's Exhibit 12 please and

6 identify that document for me?

7 A That's Mr. Shirani's performance review for the year

8 1999.

9 Q Who completed this performance evaluation in terms of

10 ratings and performance judgements?

11 A I did.

12 MR. GROSS: Move to admit Respondent's 12, Your

13 Honor.

14 JUDGE LESNICK: Any objection?

15 MR. MCDERMOTT: No objection, Judge.

16 JUDGE LESNICK: Accepted.

17 (Whereupon, the document referred

18 to as Respondent's Exhibit No. 12

19 was marked and received into

20 evidence.)


22 Q Can you look at page five of this exhibit, please?

23 A Yes.

24 Q And can you tell me what Mr. Shirani's overall rating

25 for 1991 was?

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1 A His overall rating was 1B, excellent.

2 Q Where is that reflected?

3 A It's reflected on a graph that is in the upper

4 lefthand corner.

5 Q And who gave him that rating?

6 A I gave him that rating.

7 Q How did that rating in 1999 compare to the rating you

8 gave to other auditors in your organization for that year?

9 A It was the highest rating I gave that year.

10 Q Did anyone direct you to change the rating that you

11 were going to give him for the 1999 year?

12 A No, they didn't.

13 Q Could you please turn to the prior page, that is page

14 four of this evaluation? Can you tell me why you gave him a B

15 rating in self development for the year 1999 if you recall?

16 A For the year 1999, may I look at another sheet in

17 here?

18 Q You're referring to which sheet?

19 A The, marked ERA 0006.

20 Q And who wrote?

21 A I authored this page. This is an overall synopsis.

22 Q And then rather than refer to where I did, please

23 refer to here. This is your synopsis of Mr. Shirani?

24 A Yes.

25 Q And you wrote this as part of your final review for

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1 1999?

2 A Yes. As it states here Oscar Shirani has performed

3 well in all of his commitments he worked this year to improve

4 leadership behaviors, situational leadership was a training

5 course that Oscar attended. Oscar will use this skill, the

6 skills he --

7 Q Let me stop you rather than read everything.

8 A Okay.

9 Q We won't spend time on that. You made reference to

10 leadership behaviors. Can you me what you did to assist

11 Mr. Shirani in improving that?

12 A Yeah. Oscar came to me and he wanted to, wanted me

13 to help him to improve himself and move up to a management

14 position. So what I did is I discussed with Oscar his, his

15 management style which was rather, which was kind of one

16 dimensional.

17 And what I did is I got Oscar enrolled in a course

18 called situation development which is here, which teaches you a

19 kind of a matrix way of looking at supervision of people. And

20 what it does is it takes you down from the least experienced to

21 the most experienced employee that you have working for you.

22 In that range there's, there's about four quadrants that you're

23 in.

24 The lowest being that they need direct supervision

25 and direct attention constantly to get through their jobs. So

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1 you have a new person that comes into the group not familiar

2 with the job, you really need to direct and command them in

3 their job so they understand it.

4 Then you go to the opposite end where you get a

5 person that's been in there for, you know, how ever long when

6 he's comfortable enough with his job that he's pretty much on

7 auto pilot. You assign him your work. And what this, and then

8 there were two quadrants in between.

9 What this taught you was tools, this course taught

10 you tools to identify where people were and how to supervise

11 those people so you're not always commanding and controlling

12 people that need a lot of work, don't need much command and

13 control and so you're not doing the opposite to people who do

14 need it.

15 So you, it, it gave, the intention was to give him a

16 more rounded, fuller set of tools to be able to manage people.

17 Q Can you turn now to Respondent's Exhibit 13 and tell

18 me if you recognize this document?

19 A Oh, yeah, that was the 2000 performance review for

20 Mr. Shirani.

21 Q And who completed any evaluations or ratings that are

22 contained in Exhibit 13?

23 A I did.

24 Q If you could tell me where on the first few pages

25 does this document reflect the overall rating Mr. Shirani

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1 received from you for the year 2000?

2 A Well, the overall rating is reflected on page five.

3 Q And what is that?

4 A And the overall rating was 2B.

5 Q When you gave Mr. Shirani this rating for 2000 was he

6 still working for you?

7 A Yes, he was.

8 Q Did you discuss this review with Mr. Shirani?

9 A No, I didn't.

10 Q Why not?

11 A When, about the time that we were going to, we

12 usually discuss the reviews when we give out the rate sheets.

13 The rate sheets came out in the tail end of January of 2000

14 and --

15 Q January 2000?

16 A Excuse me, January of 2001 and that's when

17 Mr. Shirani was gone from the group. I called Mr. Shirani and

18 asked him how he wanted me to get this to him and his rating

19 sheet and offered to let him, go over it with him and he didn't

20 appear to be interested since he was gone from the group. He

21 didn't want to meet with me so I think what I did was I left it

22 with the clerk and he picked it up while I was out of the

23 office.

24 Q In this evaluation on page four that are ratings of C

25 in two categories. Can you explain why you rated him as such

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1 in those categories?

2 A The categories were personal drive and integrity and

3 trust. During this year Oscar had seemed to lose a little

4 focus than he had previous years. He was, he, he had many

5 occasions where he would be out of the office for a, reasons he

6 should have been out of the office but he would neglect to tell

7 me where he was going to be so I can get a hold of him.

8 He seemed to very self promoting, more concerned

9 about that than his employment. He also, the group when, when

10 a person's gone a lot and their not focusing on what they need

11 to do, we do a lot of emergent changes to the ASL report

12 emergent work and if the person isn't available to do that the

13 work falls on the other group members. So I, I was hearing

14 rumblings from the other group members too, so it was shown to

15 me, showing me that there was a little lack of performance

16 compared to previous years.

17 Q Did any of Mr. Shirani's audits suffer because of

18 this?

19 A Well, Mr. Shirani always focused great on his audits.

20 His audits were always at the top of his priority.

21 Q And why did you consider this issue important enough

22 to rate him as such?

23 A Because audits are important but and it's important

24 to do audits but the day to day work is important too because

25 that's part of the evaluation process, too. It's not a single

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1 point evaluation. It's many issues that come into evaluating

2 his vendor and keeping up our communication tool the approved

3 supplier list, computer program. And if you don't keep up on

4 those things we just fall behind and we don't have the vendor

5 ready to use when the sites need to use them and they can't get

6 parts when they need to get them.

7 Q During the calendar year 2000 did you discuss these

8 specific issues with Mr. Shirani?

9 A Yes, I did. I called Mr. Shirani into his office and

10 asked him a couple times if he could please try to let me know

11 where he was going to be and how to get a hold of him. He, he

12 told me that he couldn't tell me where he was because of what

13 he was doing at the time which I, he kind of explained and I

14 accepted which was fine because I knew he was involved in his

15 AACES activities and during the merger time there was so much

16 going on that it was hard to know what was going on with

17 anybody anyway.

18 So we did discuss it and, you know, he would be

19 better for a couple days but generally he was kind of just

20 going and I never knew how to get a hold of him.

21 Q Did anyone direct or ask you to rate him in any

22 particular way for the year 2000?

23 A No, they did not.

24 Q Have you yourself ever received a performance rating

25 above 1B?

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1 A No, I have not.

2 Q Let me turn your attention now to the merger and

3 staffing in 2000. You were selected for a position during that

4 process, correct?

5 A Yes, I was.

6 Q And what position were you selected for?

7 A I was selected for the position of SES manager for

8 Exelon Corporation which was, well, it would have been Exelon

9 GENCO at the nuclear division which was the merged company.

10 Q How did that position you were selected for relate to

11 the position you had been in?

12 A Well, it was kind of the same as the position I had

13 been in but it was for more sites now. More nuclear plants,

14 excuse me.

15 Q Were you interviewed during that process for that

16 position?

17 A Yes, I was.

18 Q By whom?

19 A I was interviewed by Tony Broccolo and John Heller.

20 Q And can you tell me the issues and questions that

21 Mr. Broccolo raised in his interview with you?

22 A Mr. Broccolo focused around my ability to deal with

23 some superiors and subordinates. He wanted to know when I had

24 confrontations with people. He wanted to know when I had

25 successful interactions and, and what my styles were in dealing

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1 with those.

2 Q Did you nominate Mr. Shirani for any positions during

3 the re staffing process in 2000?

4 A Yes, I did.

5 Q What positions?

6 A I nominated him for my own position. I nominated him

7 for nuclear oversight had people with similar positions come on

8 who were in charge of auditors out at the sites. I nominated

9 him for one of those. And I also talked to people who put his

10 name in for a possible supervisory position in engineering.

11 Q Do you recall any conversations with Mr. Shirani

12 about an interview he had with vice president of supply Honorio

13 Padron?

14 A Yes. Mr. Shirani told me about the interview.

15 Actually it kind of came up in a strange sort of way. We were

16 at a group meeting and once again I was asking Mr. Shirani

17 where he was the afternoon before and he told me he couldn't

18 tell me where, where he was, he couldn't tell me why he was

19 there but he could tell me where he was. And I said that was

20 fine and next thing I know he blurted out he was on this

21 interview.

22 And he kind of generally, I don't remember what

23 position it was but he generally, he kind of told what it was

24 about. And I asked him how it went and he said it went wine,

25 it went fine but Mr. Pardon told him that he was good employee,

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1 he had good skills but he belonged in the nuclear department.

2 That's where he belonged.

3 Q Now Mr. Shirani testified that this interview

4 happened during an audit when he was in one of the locations.

5 Is that the position you're talking about now or a different

6 one?

7 A I thought it was that position. I could be mistaken.

8 Q But it was a position he had interviewed for

9 sometime --

10 A Yes.

11 Q -- in --

12 A Yes.

13 Q -- some time in 2000?

14 A Yeah, yes.

15 Q If you could turn now.

16 MR. GROSS: I move for the admission of Exhibit 13.

17 JUDGE LESNICK: Any objection?

18 MR. McDERMOTT: Just that, Your Honor, just to

19 clarify. It is signed by neither Mr. Shirani nor Mr. Bastyr,

20 is that correct?

21 JUDGE LESNICK: Yes, that's correct. And Mr. Bastyr

22 do you want to explain why this particular document is not

23 signed?

24 THE WITNESS: Yeah, because Mr. Shirani wasn't

25 interested in sitting down and talking about it and so it

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1 didn't get the signatures as it usually would have got.

2 MR. GROSS: Was it prepared by you?

3 THE WITNESS: Yes, it was prepared by me, and by

4 Mr. Shirani.

5 MR. McDERMOTT: And pardon me?

6 THE WITNESS: And by Mr. Shirani. He --

7 MR. GROSS: Which parts did Mr. Shirani prepare?

8 THE WITNESS: Mr. Shirani performed the part where,

9 let's see, in the entry where you put in your self development

10 goals. Those are done prior to myself doing the work.

11 MR. McDERMOTT: Can we identify where that is?

12 JUDGE LESNICK: What page?

13 THE WITNESS: Oh, I'm sorry.

14 MR. GROSS: You want to use the ERA number is that

15 maybe guessing?

16 THE WITNESS: Yes. Those go ERA 00035 to ERA 00040.

17 And part of that is --

18 JUDGE LESNICK: Was prepared by Mr. Shirani.

19 THE WITNESS: Yes. Part of that is and there's some

20 preparation by me on it, too. But part of it is what you're

21 going to do for self development and the other part at the end

22 that I mentioned was his final response when he turned in his

23 C.F.R. for what he performed during that year.

24 MR. GROSS: I move for the admission of Respondent's

25 Exhibit 13.

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1 MR. McDERMOTT: No objection, Judge.

2 JUDGE LESNICK: All right. Accepted.

3 (Whereupon, the document referred

4 to as Respondent's Exhibit No. 13

5 was marked and received into

6 evidence.)


8 Q Turn to Respondent's Exhibit 14, please and tell me

9 if you recall receiving the e-mail dated September 18th, 2000

10 on the bottom half of the first page of that Exhibit?

11 A Okay. I, there's an e-mail here from Mr. Shirani to

12 myself. Okay, I've read it.

13 Q Do you recall receiving that e-mail?

14 A Oh, yes.

15 Q And do you recall a conversation with Mr. Shirani

16 about this e-mail?

17 A Yeah.

18 Q Where did that occur?

19 A Probably in my office in 2000. This would have been

20 in one of the ET executive tower buildings.

21 Q And let me refer you now you to Complainant's Exhibit

22 31 and ask you if the e-mail on the first page of Complainant's

23 Exhibit 31, the bottom half is an e-mail that you sent

24 forwarding Mr. Shirani's e-mail?

25 A Just the top one?

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1 Q I'm just asking you if that e-mail you just read on

2 the first page is your forwarding of that e-mail?

3 A Yes, it is.

4 Q Okay. And in the conversation you had with

5 Mr. Shirani did you discuss with him his complaint that you had

6 not nominated him for positions outside of nuclear?

7 A Yes, I did.

8 Q Can you tell me what explanation you gave him for

9 that?

10 A Well, the explanation was kind of twofold. Number

11 one the way I understood it was that nuclear wasn't using that

12 program. We actually did not have any jobs in that bank of

13 jobs and we were nominating internally to nuclear because we

14 have a specialized field and need specialized trained people.

15 Q And that was your understanding at the time?

16 A That was my understanding at the time. Secondly I

17 thought Mr. Shirani's experience made him a better candidate

18 for nuclear jobs. I, I also thought he was of value to the

19 nuclear division and the company was better served by him being

20 in the nuclear division. And that's why I nominated him

21 previously for nuclear management type jobs.

22 Q Did you yourself make selections of individuals

23 during this re staffing process?

24 A Yes, I did.

25 Q For what positions?

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1 A For auditors under my job.

2 Q And you selected Mr. Shirani to remain an auditor?

3 A Yes, I did.

4 Q Prior to the actual decision, selecting Mr. Shirani,

5 did you discuss with him at all his interest in remaining an

6 auditor?

7 A Yes, I, I actually called all of my group members in

8 individually and wanted to find out if they were interested in

9 staying as an auditor. What, what their interest, where their

10 interest lie. I couldn't guarantee them anything. I couldn't

11 make sure it happened. And Mr. Shirani stated that if that was

12 the only job available to him he would be willing to stay and

13 he'd be willing to work me and that we could work together.

14 Q After that initial conversation did you have any

15 further communications with Mr. Shirani about the auditor

16 position you were filling?

17 A Yeah. We, we talked about it on another occasion

18 and, and that occasion was kind of strange. What happened was

19 Mr. Shirani came into my office and in support of Mr. Shirani's

20 AACES association I had a poster up of, of the minority group

21 presidents and Mr. Shirani was one of them. I think three out

22 of the four were represented in the poster.

23 And Mr. Shirani sat down and he looked at that

24 poster, he pointed at it and he said, Russell, the African

25 American, I'm sorry I can't remember, group that president

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1 became a vice president in the merger. He looked at the

2 Hispanic and I might have these crossed too, but it was similar

3 to this, the Hispanic group that gentleman became a high

4 manager or director in the company and there's Oscar Shirani he

5 got nothing through the merger.

6 Q And what did Mr. Shirani tell you regarding his

7 continued interest in the auditor position?

8 A At that point Oscar asked me if a separation package

9 was available.

10 Q What did you tell him?

11 A Well, that the separations weren't voluntary. You

12 couldn't come in and ask for one. And I explained to him that

13 they weren't voluntary. And I explained to him that if he,

14 you, you know, if he was chosen he was chosen. There's nothing

15 you can do about it.

16 Q Did you discuss Mr. Shirani's request or question

17 about separation with your supervisor, Mr. Joyce?

18 A Sure. I went to Mr. Joyce and, and advised him of,

19 that Mr. Shirani asked for this offer and Mr. Joyce said you

20 asked for him, you need him, correct me, correct? And I said

21 of course I do I wouldn't have asked for him if I didn't need

22 him. So he said then there's no question about it. He doesn't

23 get offered a separation package.

24 Q Did you reject anyone for auditor during this

25 selection process when you were filling the auditor positions

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1 under you?

2 A Yes, I did. I had auditors available to me in the

3 east and the west since we have what we call regional operating

4 groups and my group is corporate but I decided to keep some in

5 each region and there was a gentleman named Scott Bryson and

6 another gentleman who was a nuclear engineer which I can't

7 remember that I also rejected for the job. Decided that they

8 weren't, didn't have the ability to be change agents that I

9 needed.

10 Q In 2000 how did Mr. Shirani's rate of pay compare to

11 yours?

12 A It was higher than mine.

13 Q Do you know why?

14 A Well, Mr. Shirani, basically Mr. Shirani is degreed

15 and I'm not. I mean, I'm a manager, I bring a lot to the

16 table, but Mr. Shirani has a certain technical expertise that

17 the company needed and he got rewarded higher for it, which in

18 my opinion he should have.

19 Q After you made the decision to fill the auditor

20 positions during this reorganization, did Mr. Shirani discuss

21 with you any other possible positions?

22 A Nothing comes to mind, I can't.

23 Q Did you have a conversation with Mr. Shirani about a

24 diversity manager position?

25 A Oh, yes, that was at a later.

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1 Q Okay. This is later in 2000?

2 A I'm, I'm thinking so. After, after we kind of, it

3 could have been after the merger. I'm not exactly sure of the

4 time frame.

5 Q What happened in that conversation?

6 A Mr. Shirani came in with a job posting for a, for

7 this job, I'm sorry, the officer who takes care of, of minority

8 issues. And I don't remember the exact title, I'm sorry. And

9 Mr. Shirani asked for my help in applying for this position.

10 He asked if he could apply for it first and I generally when

11 one of my employees ask for an outside job I let them interview

12 for it because it doesn't do any good to hold them back.

13 So what I did is I worked with Mr. Shirani to help

14 tailor his response so his experiences would help support the

15 requirements of the job.

16 Q And did you provide any assistance to him?

17 A Yes. He, he brought it back a couple times. I

18 reviewed it, we made some changes and he submitted the changed

19 document.

20 Q Do you recall any conversation with Mr. Shirani about

21 a possible position in Ruth Ann Gillis' organization?

22 A Yeah. Mr. Shirani came to me and I'm not exactly

23 sure when it was either. My guess would be it was post merger,

24 probably later in the year of the merger and said he was

25 interest, he had been approached about a possible job in the

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1 financial organization. He said he wanted to talk about that

2 or I can't remember if we just talked about it or write a

3 letter.

4 But he asked me the same thing. Basically to help

5 him look at his experience and see where that, we might be able

6 to help him understand how to sell himself, how to market

7 himself to be appealing for that job.

8 Q Did you express any opinion to Mr. Shirani on your

9 interest in him taking a job in finance or Ruth Ann Gillis'

10 organization?

11 A Well, in both cases I asked Oscar to stay because I,

12 I needed him. He was a good technical person. He did

13 excellent audits. We had a lot of work. He was familiar with

14 the dry cask storage work that was going on at the time so it

15 was loss to loose him. So, yes, I did ask him to stay.

16 Q How did you first learn that Mr. Shirani wouldn't be

17 taking a position in finance outside of nuclear?

18 A Mr. Shirani told me he was --

19 Q What did he tell you?

20 A He told me that he'd been offered a job in, in that

21 organization. That he was torn between that and the other job

22 that I mentioned and but he decided to take that job --

23 JUDGE LESNICK: The other job that you mentioned?

24 THE WITNESS: The, excuse me, the officer that was in

25 charge of, I'm sorry, the officer that was in charge of the

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1 minority group.

2 JUDGE LESNICK: All right.

3 THE WITNESS: I'm sorry. And he, he said do you

4 think I did the right thing and I told him, well, Oscar I'd

5 always figured you go for the money.


7 Q Did Mr. Shirani tell you the reason he accepted that

8 position?

9 A Yes. He, he wanted, he had shown interest in finance

10 before he, he had some licenses that he studied for and he was

11 talking to us a lot about finances, you know, personal

12 investment and things. And he said it went right along with

13 those new interests. That it was something different than

14 engineering, something new that he could enjoy and learn about.

15 Q Do you know Mr. Helwig?

16 A Yes, I do. Well, I don't know Mr. Helwig.

17 Mr. Helwig was my supervisor's supervisor.

18 Q So when you said yes I do you meant?

19 A I know who he is.

20 Q Did Mr. Helwig, Tom Joyce or anyone else direct you

21 or ask you to get Mr. Shirani to leave nuclear?

22 A No.

23 Q Did you ever have any conversation with Ruth Ann

24 Gillis about Oscar Shirani?

25 A No.

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1 Q Did you ever have any conversation with Ellen Caya

2 about Oscar Shirani?

3 A No.

4 Q The U.S., excuse me, the Holtec audits that

5 Mr. Shirani performed in 2000, did you have any role in those

6 that he was involved in?

7 A The Holtec audits that he reviewed, now there were a

8 couple audits so I think one he lead and one he was a member

9 of.

10 Q And was your role different on any of those?

11 A Pardon?

12 Q Was your role in either of those different?

13 A Well, on the one that he was a member on I wouldn't

14 review the reports because someone else would have written it

15 but I would have reviewed both documents and gone over what

16 actions he took on it.

17 Q And in your view of either of those Holtec audits did

18 you direct or suggest that Mr. Shirani make any changes in his

19 findings?

20 A No.

21 Q Did you tell Mr. Shirani anything about the quality

22 of the audit of the Holtec audits?

23 A Well, the Holtec audit that he lead I told him it was

24 a very good audit. That it helped the company. For the one

25 that he was a member on I was very supportive of the action

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1 that he took. He, there was, this was the Holtec Omni audit.

2 There was an issue with Holtec using a sub supplier which they

3 weren't adequately controlling. Oscar, and the other lead

4 utility and I will assume, Oscar came back to me with the

5 suggestion for how to handle the situation and presented a

6 problem identification form which is our corrective action

7 system.

8 And what it did is it gave them 24 hours to put

9 actions in place or we were going to stop work on them and

10 basically what Holtec did was stop action on their sub supplier

11 and they did follow through with the action and the next week

12 it worked out great. We got our issues taken care of, they put

13 more supervision in, Holtec put more supervision into the Omni.

14 We, us as utilities who are banded together and share

15 inspection services put inspectors in so we got some good

16 actions out of that that helped to alleviate the problem.

17 Q Are you familiar with a U.S. Tool and Die audit that

18 Mr. Shirani conducted in 2000?

19 A Yes.

20 Q Did you review that audit at any time?

21 A Yes, I did.

22 Q And did you at any time direct or suggest that

23 Mr. Shirani change any of his findings on that audit?

24 A No, I didn't.

25 Q Turn back to Respondent's Exhibit 13 if you would and

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1 can you tell me if this evaluation anywhere reflects

2 Mr. Shirani's performance on that U.S. Tool and Die audit?

3 A Well, it doesn't show performance that, to that

4 particular audit. But if you look on page ERA 00030 item four,

5 act as SES lead for dry cask storage project and Bryon and --

6 projects he was rated a one in that area which is a superior

7 rating. Which means all of his activities associated with that

8 oversight were, was rated high. So that audit was rated high

9 also.

10 Q Was the U.S. Tool and Die audit in any way critical

11 of Exelon nuclear?

12 A To the best of my recollection no it wasn't.

13 Q Did that audit have any impact on Exelon nuclear's

14 operation?

15 A No, it didn't.

16 Q Do you know whether the dry cask loading efforts that

17 related to that audit proceed as scheduled?

18 A Yes, it did. It proceed right on schedule.

19 Q Did you ask Mr. Shirani if a stop work order should

20 issue from the U.S. Tool and Die audit?

21 A Yes, I did.

22 Q What did he tell you?

23 A We went over the issues, made sure that we both

24 understood them and he explained to me why a stop work order

25 wasn't needed because the issues weren't at that level in his

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1 opinion.

2 Q Do you know whether Mr. Shirani ever filed any

3 problem identification form or corrective action report

4 suggesting that a stop work order should have been issued on

5 the U.S. Tool and Die audit?

6 A Not to my knowledge.

7 Q Can you turn please to Respondent's Exhibit 46 and

8 specifically page three of that exhibit. Are you there?

9 A Yes.

10 Q Okay. Can you tell me what starts on page three

11 about half way down?

12 A What starts is the problem identification form and

13 this is a form that is used by an individual to identify a

14 corrective action issue that they have quality issue that they

15 might have with the company.

16 Q And who originated this particular form?

17 A Mr. Shirani did.

18 Q And what portion of this form is the text that

19 Mr. Shirani would have?

20 A It would start from under SES, SES file SR200257 for

21 documentation with the 80,000 it would start --

22 MR. McDERMOTT: What page?

23 MR. GROSS: Let's, which page are you on?

24 THE WITNESS: Page three.

25 MR. GROSS: Page three and you're where?

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1 THE WITNESS: It starts with an assigned number

2 00033094-26-00.

3 MR. GROSS: Okay. I'm not with you. Oh, I see it

4 okay.

5 THE WITNESS: Okay. And it would go through that

6 page and it would end where it says, or in the middle of the

7 page on page four where it says originator Oscar Shirani with

8 the extension department date.


10 Q And everything below that was entered by whom?

11 A By myself.

12 Q Mr. Shirani did not enter any of the information

13 under supervisor, correct?

14 A No, he didn't.

15 Q If you could turn to Respondent's Exhibit 15, please.

16 Tell me if you recognize this document?

17 A Yes, I do.

18 Q What is this?

19 A This is a letter, a follow-up letter that we would

20 issue. Mr. Shirani issued. ComEd, as subject says, ComEd

21 follow-up response to your reference response reference number

22 one as a result of the NUPIC gas QG audit SR2000257 U.S. Tool

23 and Die, Pittsburgh facility June 19th through the 23rd and

24 July 20, July 5th through the 7th, 2000.

25 So it's the, whatever corrective actions he

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1 identified, whatever problems he identified that needed to be

2 corrected during that audit is, an acceptance of the corrective

3 action that was submitted. That's the response to those

4 problems that was submitted by the audit team, U.S. Tool and

5 Die.

6 Q Okay. Who prepared the text in the letter after Dear

7 Mr. Edwards before Mr. Shirani's signature?

8 A Mr. Shirani did.

9 Q And your role was what in the context of this?

10 A To review it, to review the documentation and verify

11 that Mr. Shirani came to the correct decision.

12 Q Did you object or find, have any disagreement with

13 Mr. Shirani's letter?

14 A No, I didn't.

15 Q If you could turn to Respondent's Exhibit 16 please?

16 And just for the record this is a problem identification form

17 relating to what?

18 A Findings are identified during a NUPIC joint audit of

19 Holtec International. And it's the Holtec on the fabrication

20 issues which I spoke of earlier.

21 Q And again, can you tell me what portion of this

22 Respondent's Exhibit 16 Mr. Shirani --

23 A Yes.

24 Q -- put in and you wrote?

25 A I'm sorry. Could you repeat, I'm sorry.

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1 Q Could you point out just from where to where

2 Mr. Shirani wrote this form and what point you wrote

3 information on this form?

4 A Okay. So you want both parts. We start up here on

5 it's just, there's no number on it, so I'll say 16, the first

6 page of it where it says, originator, and it would go through

7 that page into the second page, about oh, two thirds of the way

8 down where it says originator again and has Oscar Shirani's

9 name in that location.

10 Q And that would have been text who prepared?

11 A That would have been text that Oscar Shirani

12 prepared.

13 Q And who prepared the information after that?

14 A Below that the supervisory review would have been

15 performed by myself and it would have went from where

16 Mr. Shirani stopped to the next page where it says supervisor

17 with my name.

18 Q If you could turn to Respondent's Exhibit 46, please?

19 I'm sorry -- strike that.

20 Do you recall an occasion when Mr. Shirani told you

21 that the NRC had asked for the copy of the U.S. Tool and Die

22 audit?

23 A Yes.

24 Q What happened in that conversation?

25 A Pardon?

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1 Q What happened in that conversation?

2 A Mr. Shirani came into my office, and I can't remember

3 if it was directly after the meeting with the NRC or some time,

4 there was some vacation in there somewhere. And he, he

5 explained to me that he was at a meeting with, a Holtec meeting

6 that they had in, near their offices or in their offices I'm

7 sure. And that on that time he had occasion to talk to Russ

8 Landsman and the NRC and he also told me that he discussed some

9 issues of his audit with Holtec at that meeting, brought those

10 issue up on a phone call that was going on at the time and that

11 after the meeting Mr. Landsman asked him for a copy of the

12 audit.

13 Q What did you say to Mr. Shirani?

14 A Well, I told him what the process was. Which is

15 pretty simple. As I stated before when we send audits to the

16 NRC we don't send them directly to the NRC or hand them to the

17 NRC because we don't want them to become part of public record.

18 So I explained to Mr. Shirani that he had to go

19 through licensing. Also stated that actually the request

20 should go through us and but since you were at the same meeting

21 we could, we could forego that part of the formality. But to

22 go see the licensing department, get them to write the proper

23 letter to keep it out of public record and then they would

24 forward to Mr. Landsman.

25 Q Did you have any other conversation with Mr. Shirani

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1 about the NRC's request to see a copy of that audit?

2 A It was more probing to find out what Mr. Landsman's

3 feeling were.

4 Q By whom?

5 A By myself.

6 Q Probing who?

7 A Mr. Shirani, I'm sorry.

8 Q And what did you ask him?

9 A I was asking him what his, Mr. Landsman's attitude

10 and demeanor was because we had had some issues with

11 Mr. Landsman earlier, and it's just nice to get those kind of

12 information things so you can share them with the project team

13 and the people who deal with Mr. Landsman so we can anticipate

14 any issues coming up that he might have.

15 Q You're aware that Mr. Shirani conducted an audit of

16 General Electric in September of 19, excuse me, in 1997?

17 A Yes.

18 Q Are you aware that Mr. Shirani lead a follow-up of

19 that GE audit?

20 A Yes, I am.

21 Q Who made the decision to place Mr. Shirani as the

22 lead on the follow-up audit?

23 A I did. I assigned the audit duties for the group.

24 Q Meaning you decided Mr. Shirani would --

25 A Yes, I decided Mr. Shirani would perform the follow-

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1 up audit.

2 Q And at what point did you make that decision relative

3 to when the audit occurred?

4 A It was, it was, it's pretty much the way we do

5 business. It's standard we do that. If you perform the audit

6 you do the follow-up. We may have looked at some, some

7 alternative methods to doing the follow-up rather than going to

8 vendor shop like having GE supply us with calculations and

9 things but it didn't prove to pan out they weren't willing to

10 send that information to us.

11 So finally we ended up after GE was ready and we were

12 ready, both our schedules aligned, Mr. Shirani went on the

13 follow-up audit.

14 Q Did anyone direct you, ask you or suggest to you that

15 you would not assign Mr. Shirani to that follow-up audit?

16 A No, not at all.

17 Q If you could turn to Respondent's Exhibit 18 please

18 and tell me if you recognize which I believe in the record

19 already as Complainant's Exhibit 11 and tell me if you

20 recognize this e-mail?

21 A Yes. This is an e-mail that I wrote to Tom Joyce.

22 Q Do you recall approximately when during the actual

23 follow-up audit you sent this e-mail?

24 A It would have been when the auditors, well, it was on

25 Friday at 1:40 so my, my thought was it was either after the

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1 auditors have completed auditing or after they did the exit

2 meeting. But anyway it was after they were through assembling

3 data and coming up with their conclusions.

4 Q And the e-mail you start "we can finally get some

5 sleep tonight". Can you tell me what you were referring to

6 there?

7 A Yeah, there was a lot, there was a lot of concern

8 with this audit because we had a major project going at the

9 time which was the power outbreak mode and I don't know if this

10 says what unit, what site it was for and I don't know if I

11 actually remember right now.

12 But one of the concerns is when you're doing audits

13 you're looking at calculations. Some of these calculations can

14 be used in other calculations, you know, sub parts of the

15 calculations, and they could have very well been used in some

16 with the power operating mode calculations.

17 We were on a very tight schedule for this power op

18 mode and there was concern that in pulling the thread

19 Mr. Shirani would naturally be led to some of these

20 calculations. So what I was asked was to let the, Mr. Joyce

21 and the superiors in the company know this if we started

22 heading this way because they wanted to be able to discuss it

23 with GE and take whatever compensatory action they needed to

24 take with GE to keep them on track for schedule.

25 Q The second sentence ends with the words, their exit

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1 and then you begin a sentence they discussed. Can you tell me

2 who provided the information to you that is contained after

3 that point throughout the remainder of this e-mail?

4 A That information was provided by Mr. Shirani over a

5 phone call.

6 Q Did you consider Mr. Shirani's performance on this

7 follow-up of GE to be a good job?

8 A Yes, I did.

9 Q Did you consider him to have been thorough in his

10 audit?

11 A Yes.

12 Q Did Mr. Shirani's audit of GE back in September of

13 19, excuse me, back in 1997 improve GE's performance in your --

14 A Yes, his, the follow-up also stated that.

15 Q Between the lifting of the stop work order on the GE

16 audit and that lifting occurred in about November of 1997 and

17 the follow-up audits in 1999, were there any communications

18 with GE about the audit findings about their corrective action

19 efforts?

20 A Yes, there was. I, I reviewed the audit file and

21 found communications, monthly communications and, and providing

22 of status reports of the audit during part of the period until

23 there was a letter from Mr. Shirani which removed, which said

24 that portion of the audit, that finding associated with the

25 audit was closed so they wouldn't be required.

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1 Q Switching now to 2001. After Mr. Shirani had left

2 the organization, your organization, did he ever contact you or

3 communicate with you to request to return to nuclear?

4 A No, he didn't.

5 Q Do you recall in conversation with anyone regarding

6 his interest in returning to nuclear?

7 A Yeah, at one point Mr., Mr. Yessian, my supervisor,

8 the VP of the company, called me into his office and said that

9 he had found out that Mr. Shirani was interested in coming back

10 to the nuclear division and he was asked if there was room for

11 him in my group.

12 I looked at Kevin at that point and said well, I

13 wouldn't mind having him back but unfortunately I'm at head

14 count which means I had my allotted numbers of billets filled

15 and that I didn't have any more billets. So it was, if Kevin

16 wanted to be one over budget like I would be one over budget

17 I'd be happy to take him back and Kevin said well, you know we

18 can't do that, we're not allowed to do that. And I said well,

19 I guess that's the answer to your question, Kevin, I cannot

20 take him back.

21 Q Would you please look at Complainant's Exhibit 30 for

22 me and tell me if you recognize this document?

23 A Yes.

24 Q What is that?

25 A This is a letter granting signature authority to

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1 Oscar Shirani, my signature authority during my absence.

2 Q Why did you grant Mr. Shirani or delegate to

3 Mr. Shirani your signature authority on that occasion?

4 A Well, when I'm out of the office I need someone to

5 perform my duties to, to sign things that I would normally sign

6 and review things that I normally sign. I had one other

7 gentleman at the time who was qualified to do it, Mr. Mitchell

8 but he was also very involved in other issues.

9 At this time I was involved in merger issues and

10 going out to Philadelphia a lot so I just needed two people

11 rather than one, Mr. Shirani proved that he was at the level

12 where he could handle the part for this signature authority.

13 Q And you trusted Mr. Shirani to exercise that

14 authority appropriately?

15 A Yes, I did.

16 MR. GROSS: One moment, Your Honor, and I think I

17 should be done.

18 I have no further questions.

19 JUDGE LESNICK: Mr. McDermott, do you need a break

20 before you cross?

21 MR. McDERMOTT: I was going to ask you that.

22 JUDGE LESNICK: Let's go off the record.

23 (Off the record.)

24 (On the record.)

25 JUDGE LESNICK: You are under oath. You may cross

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1 examine, Mr. McDermott.



4 Q Mr. Bastyr, you were identified for us as the company

5 representative and you were asked to sit at the table, is that

6 correct?

7 A Yes.

8 Q And you weren't here this morning for Kevin Yessian's

9 testimony, were you?

10 A No.

11 Q Would he, one of the last things you gave testimony

12 before our break was sometime in 2001, sometime in September

13 maybe August you had conversation with Kevin, is that right,

14 about Oscar returning to nuclear?

15 A Yes.

16 MR. GROSS: I'll object as to the mischaracterization

17 as to the month that it occurred.


19 Q Do you recall when it occurred?

20 A Yeah, it would have been, let's see, so it would have

21 been after January of 2001.

22 Q After January of 2001. Was it, when after January

23 2001 if you know? You recited the conversation, if I can go

24 over one will you approve it. Wasn't that essentially it?

25 A Right. That was essentially what the conversation

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1 was.

2 Q Did he come to your office?

3 A At that point I didn't have office. I have an end

4 cap cubicle so he came to my cubicle.

5 Q So at your cubicle. And do you remember when?

6 A I'm, I'm trying to work through the chronological

7 steps in my head if you can give me a second. It would have

8 been, it would have been January 2001 probably later in the

9 month.

10 Q Was it after Oscar left?

11 A Or, I can't remember when exactly it was but I know

12 it was in January, that's as close as I can get

13 Q January, that's the same month that Oscar left.

14 A I'm pretty sure that's when it was. I know that now.

15 I'm not sure when it was in that time frame.

16 Q But he had just left his cubicle, is that right?

17 A Like I said I don't remember if it was, I think it

18 was in January but I'm not 100 percent sure.

19 Q Well, Kevin had only been employed here for the month

20 of September, October, November, December and if it was early

21 in January he hadn't even been here six months, correct?

22 A It's possible.

23 Q You didn't hear his testimony then today that he

24 never had a conversation with Oscar after Oscar took the job in

25 finance?

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1 A No.

2 Q And yet when he talked to you he said he had talked

3 to Oscar, is that correct?

4 A No, he didn't.

5 Q What did he say to you?

6 A He asked me about taking Oscar back into the group.

7 Q He didn't tell you that, that wasn't how you answered

8 it?

9 MR. GROSS: Objection. Mischaracterization of his

10 testimony.

11 JUDGE LESNICK: Well, I think he's trying to clarify

12 that. I'll allow it.

13 MR. McDERMOTT: I am trying to clarify.

14 MR. GROSS: He's putting words in his mouth.

15 JUDGE LESNICK: Well, it's cross. He can --

16 THE WITNESS: My intent was to say what happened

17 which was Kevin came to me and asked me if I would take him,

18 Oscar back into the group if I have room for him and the need

19 for him.


21 Q I thought you testified that he had talked to Oscar

22 and then he came to talk to you.

23 A If I said that I was mistaken. I don't believe I

24 said that though.

25 Q Okay. You identified certain documents during the

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1 earlier part of this hearing you heard other documents being

2 identified and you being referred to with respect to the circle

3 under these documents. Counsel is being kind enough to let me

4 use the copy, of course it's my copy I provided to him, it's

5 been marked as, although it was not beautifully bound and

6 gagged. It's Complainant's Exhibit No. 2.

7 A Okay.

8 MR. GROSS: I'll give you a big hug after this.


10 Q Can you identify that document?

11 A Yes. It's a career opportunity application from,

12 where were we at at this time, when was this written, '97 so it

13 would have been sometime in '97.

14 Q You note the numbers indicated that it's '97 12

15 meaning December?

16 A That would be my guess.

17 Q All right. And isn't it true at this time you had

18 Oscar submit or rewrite a portion of his job description

19 because you were reclassifying jobs in SES for the next fiscal

20 year?

21 A My thought would be I do remember that we had to

22 reapply for jobs, let's see, 12/97. Yes, it probably would

23 have been right around that time period.

24 Q Okay. And the time of Oscar's job change is that

25 correct at this time?

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1 A I'm sorry, can I take another look at that?

2 Position, senior lead auditor. It, it might have I'm not sure

3 what job was in place before that.

4 Q Does the title quality assurance administrator sound

5 familiar?

6 A That's very familiar.

7 Q And it is now, Oscar now becomes as of the first of

8 the year a senior lead auditor?

9 A The titles changed.

10 Q And it has you and it has, you're down here on the

11 bottom, somebody named John Egleston?

12 A Yes.

13 Q He is?

14 A Yeah, Mr. Egleston is the human resources person.

15 Q And it has your phone number 286-3260, is that

16 correct? Was that your phone number for some time?

17 A Yes, it does. That is my phone number at --

18 Q That's where the whole operation moved to --

19 A Yes.

20 Q Thank you. And one of the last documents you

21 identified was again one of our exhibits and that was Exhibit

22 No. 30, that was the authorization to act in your absence?

23 A Yes.

24 Q Now your response to Mr. Gross' question was you felt

25 that you had the trust, you had trust in Oscar to act

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1 correctly, correct?

2 A Yes, sir.

3 Q In your commitment for results the document that was

4 unsigned and Mr. Gross asked you about this specifically. You

5 grade Oscar C in integrity and trust. That's the same year, am

6 I right?

7 A Yes.

8 Q Did something happen between May 22nd and when you

9 completed that form, whenever it was you completed that form?

10 A Yes. As I explained in my testimony, as the year

11 progressed, well, maybe I did say as the year progressed, but

12 during that year --

13 Q Well, let's just say between May the, after May the

14 22nd, if this is correct and your testimony is truthful --

15 A Right.

16 MR. GROSS: I'll object to the mischaracterization of

17 his testimony. That he said after May 2000.

18 MR. McDERMOTT: No, all I'm saying is there any

19 testimony, his testimony --

20 MR. GROSS: Are you asking him to assume that or are

21 you asking him to --

22 MR. McDERMOTT: I don't know what his testimony is

23 going to be. I know that on May the 22nd when you asked him

24 the question he thought he had trust in Oscar to exercise this

25 document. And whenever this document is created he doesn't

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1 have the same level of trust.

2 JUDGE LESNICK: That document being?

3 MR. McDERMOTT: That document being their Exhibit No.

4 13, page four.

5 JUDGE LESNICK: Okay. Just so I was clear.

6 MR. McDERMOTT: Where --

7 JUDGE LESNICK: Is there still an objection?

8 MR. GROSS: I assume there will be a question to

9 follow on this.

10 JUDGE LESNICK: All right.


12 Q You remember Mr. Gross asking you about page four.

13 You can turn to Exhibit No. 13, Mr. Bastyr. And you gave him a

14 C in integrity and trust and you gave him a C in Foster's team

15 work, all right?

16 What occurred between, let me say a foundation

17 question.

18 Do you know when you prepared this document?

19 A I would have filled out the ratings probably in

20 December of the year.

21 Q All right. So what occurred between May the 22nd and

22 whenever it was in December when you filled it out?

23 A Well, that integrity and trust I placed it in with a

24 letter is a very specific integrity and trust. And in those

25 areas specific areas nothing happened.

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1 Q But what, this is different?

2 A Well, this is, this is more than just a signature for

3 my acting as me for my signature on certain documents. This is

4 his total performance. So I don't know what the baseline was

5 his total performance the pervious year so I can't tell you

6 what changed. All I know is that this is for a specific

7 documentation signature. I trusted him to review these

8 signatures. This goes beyond that.

9 Q Well, in his overall rating according to you here

10 was?

11 A 2B.

12 Q 2B?

13 A Yes, sir.

14 Q That was down from the year before?

15 A Yes.

16 Q And you've testified as to the audits he had done

17 this year or that particular year. The Holtec as a

18 participant, correct?

19 A Uh-huh.

20 Q The continued I take it, the continued supervision of

21 the ASL, am I correct?

22 A Yes, you're correct.

23 Q And continued in his responsibility for the dry cask

24 project, correct?

25 A Yes.

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1 Q Another Holtec audit that results in nine findings,

2 correct? All in one year?

3 A I'm not sure about the Holtec audit and nine

4 findings.

5 Q I'm sorry, U.S. Tool and Die?

6 A Okay.

7 Q He was doing that?

8 A Yes.

9 Q And nine findings?

10 A Yes.

11 Q But he gets a B2?

12 A Correct.

13 Q Now you said he was sometimes absent or many times

14 absent you couldn't find him, is that right?

15 A Yes.

16 Q Isn't it the case that you have an attendance sheet

17 in your office?

18 A Yes. And that attendance sheet was not always

19 completed or filled out.

20 Q By Oscar Shirani? Shut him down Shirani didn't put,

21 you know, what ever reason he was gone for he didn't put his

22 name down that he'd here or there?

23 A Not in all cases.

24 Q Would it have been easy to bring those sheets in to

25 prove that to us or not?

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1 A I doubt if those exist any more.

2 Q I see. You also mentioned with respect to or, yes,

3 you identified and again you can look at the Exhibit 18,

4 Respondent's Exhibit 18.

5 Your testimony on direct indicated that this was as,

6 this was not necessarily something, you were hoping John could

7 get a good night's sleep and you wanted John and the senior

8 people to get a good night's sleep not necessarily that because

9 Oscar would find out anything related to the now almost two

10 year old GENE audit, correct? It was more --

11 A I'm not sure I understand your question where you're

12 going with this.

13 Q I'm not sure I understood your answer when, and

14 that's why I'm asking you this question.

15 A Okay. That's fine.

16 Q You mentioned for the first time out of anybody

17 testifying for the Respondents something called the power

18 uprate mode is what you called it?

19 A Right. A project.

20 Q Okay.

21 A I'm not sure what the exact term was.

22 Q Okay. But in identifying this document and trying to

23 explain what you meant when you were writing to Mr. Joyce you

24 said you wanted management to know that Oscar was not

25 leading --

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1 A No, no.

2 Q -- or Oscar's audit was not leading that way.

3 A There's a term we, I'm sorry. Are you through with

4 your question?

5 Q That's all right, go ahead.

6 A Okay. There's a term we use in auditing called

7 pulling the string. Now what is it you review a document and

8 it'll have maybe have some statements that you aren't sure are

9 correct. So you'll go to the basis for that document and you

10 might go, it might lead you to another document and another

11 document.

12 So what can happen with audits like Oscar was doing,

13 he was doing calculation audits, in many times calculations are

14 used in sub parts of the calculations, calculations are very

15 big large voluminous documents. Subparts --

16 Q Can be used in other areas.

17 A -- could be used in other areas.

18 Q I see.

19 A Or power up rate, up grade mod, up grade mode would

20 be an area where some of them might be used. And in pulling

21 that string because management knows how audits work and know

22 that auditors have the ability to look anywhere they need to

23 look to prove what they need to prove, they were worried that

24 that string would lead them, would lead Oscar to identify some

25 calculations that might have affected the power operate mode.

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1 Q That's exactly the way I took your testimony.

2 A Okay.

3 Q Except you added one very, one important phrase and

4 that you wanted, senior management wanted to make sure that

5 nothing he did would keep the power up rate mode on schedule.

6 A Well, they want the mode to stay on schedule. I mean

7 and they want to take compensatory actions, they want to figure

8 out what actions get back on schedule if those calculations are

9 found --

10 Q I got it.

11 A -- and work is going to have to be done again.

12 Q Doesn't that in and of itself demonstrate to you that

13 the difficulty with quality assurance being in any way

14 associated with energy supply? That you've got a quality

15 assurance auditor out on the Pacific coast trying to wrap up an

16 audit that you have, in your deposition testified and wrapped

17 up and a month after it was completed in 1997 but really didn't

18 get wrapped up until this very time.

19 MR. GROSS: Object to the mischaracterization.

20 MR. McDERMOTT: Well --

21 MR. GROSS: And the length of the question. Is there

22 a question in there?

23 MR. McDERMOTT: There was a question.


25 Q Isn't your concern, I mean I believe your testimony,

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1 I believe it to be true and I believe you talked, I'm sorry,

2 you wrote and probably talked to Tom Joyce and expected him to

3 talk to others up the chain.

4 But isn't that exactly what's wrong with putting

5 auditors in any way shape or form in the same bed, in the same

6 car, in the same pen, in any kind of same organization with

7 supply?

8 Because you yourself as an SES manager here today

9 identified that exhibit not as some kind of string back to

10 1997 --

11 MR. GROSS: I'll object and ask that the argument be

12 reserved for post hearing.

13 JUDGE LESNICK: I'm going to allow it.

14 MR. McDERMOTT: Thank you.


16 Q Doesn't that answer of yours really reduce the

17 question of where Q and A and public safety should fit in a

18 organization like Exelon Corporation?

19 A No, because I have received the same type of

20 questions when I reported to Nuclear oversight by upper

21 management of the company.

22 Q I have no doubt.

23 A And since I have --

24 Q That's my point. I have no doubt.

25 A And since, when I worked for Nuclear oversight or

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1 when I worked for supply it did not make a difference. You got

2 the same letters. Is this going to affect our project. How is

3 this going to hurt our project. And I still had the same chain

4 of command if I had those issues and they were putting undue

5 pressure on me to take them up through Nuclear oversight and

6 the vice president of the nuclear oversight.

7 Q I had no doubt. I have no doubt in Exelon

8 Corporation that the vice president of nuclear oversight has

9 exactly the same --

10 A No, no. I didn't say that, sir.

11 Q Oh.

12 A I said that these exact same people would ask the

13 exact same questions whether I reported to the nuclear

14 oversight manager or whether I reported to the supply manager

15 or supply VP or nuclear oversight VP. These were typical

16 questions that were asked.

17 Q These same people who, now you're going to have to

18 define that for me. You mean Tom Joyce and --

19 A No. The same type of people. Production people.

20 Q Right. Except you're being paid by the production

21 people, correct.

22 A I'm getting paid by Exelon.

23 Q We understand that. We understand.

24 A The signature on my check does not come from the

25 production people.

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1 Q Your budget is in production at the time of this

2 letter?

3 A My budget is with a high enough level of management

4 that allows me to be independent from production as I think it

5 almost as it states in the C.F.R., in the nuclear rules.

6 Q I think it's 50?

7 A 10 C.F.R. 50 appendix B.

8 Q Appendix B criteria one?

9 A I'm not sure of the exact criteria. I use reference

10 books as reference books.

11 Q I understand. You identified, Exhibit No., and if

12 you can refer to it please, 46. And you identified the portion

13 that Mr. Shirani authored and you identified the portion you

14 are author of, correct?

15 A Correct.

16 Q I believe you heard the testimony of the first

17 witness called in this matter, Mr. Ross Landsman, correct.

18 A Yes, I did.

19 Q Do you know Mr. Landsman?

20 A I don't know him personally.

21 Q Did you ever see him before --

22 A Yes, I have seen him before.

23 Q -- this day. Have you ever attended a work shop with

24 him or anything?

25 A No.

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1 Q You'd seen him, that's it?

2 A I've seen him. I attended a meeting with the NRC

3 with him.

4 Q Okay. Did you hear his testimony that and when I

5 asked him to compare what you wrote, what's the acronym you

6 used for this? The Exhibit 46?

7 A Supervisory review.

8 Q All right. It's just simply called a supervisory

9 review?

10 A Yes.

11 Q Where does it go?

12 A This then goes to a team of people who do corrective

13 action reviews. What they do is they look at the issue. They

14 look at my comments and they determine if the corrective action

15 suggested is enough to correct the problem.

16 Q Who is this team?

17 A This team is made of, they call it the CAP group, the

18 corrective actions program group. It's a team of people from

19 different disciplines, engineering, nuclear oversight.

20 Q All Exelon?

21 A All Exelon.

22 Q All right.

23 A That look at this and determine what corrective

24 actions were taken. If the suggest corrective actions are

25 enough. If they're not they add corrective actions.

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1 Q Did they add any corrective actions based upon what

2 you wrote?

3 A I don't know because I don't have the rest of the

4 document that I can see. I'm not sure.

5 Q Do you recall --

6 A Can I read through it.

7 Q Sure.

8 A Here. Corrective actions taken. Sorry I did

9 misstate, too. I did have the rest of the document. I

10 apologize.

11 Q You do not have the rest of the document?

12 A I do have it. I apologize.

13 Q That's okay.

14 A Oh, I was wrong. I don't.

15 Q You don't have it?

16 A It ends, it ends at my, okay. here's the problem. At

17 this time a problem identification form went into a different

18 program so it became a different document. And that document

19 would, that computer program would house the information about

20 the corrective action taken.

21 This was a twofold system. This was an Access system

22 the other system was a mainframe system.

23 Q Your company produced this for us in discovery and

24 produced the big bundle audit that Mr. Landsman testified he'd

25 received a copy from licensing back in December 19, 2000.

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1 MR. GROSS: I'll object as to the mischaracterization

2 of what we produced. And questioning Mr. Bastyr on what we

3 produced.


5 Q You heard Mr. Landsman's testimony?

6 A Yes.

7 Q Do you agree with him that your statement that you

8 have admitted authoring here cannot be a true statement in

9 light of the actual audit?

10 A No, I don't.

11 Q How was it you can say after review, I'm sorry.

12 How can you say the subject findings were thoroughly

13 evaluated and all issues were resolved satisfactorily during

14 the audit by the team not to have any impact on the Dresden

15 Station unit one Dry storage cask?

16 A From reading the audit report.

17 Q I'm sorry?

18 A From reading the audit report and making that

19 determination.

20 Q Even though there are nine findings one of which is

21 cared for on the premises eight of which remain open, is that

22 correct?

23 A Yes. That's correct, yes.

24 Q So you arrived at a different conclusion than the NRC

25 person arrived at reading it?

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1 A Yes, I did.

2 Q At the same time? And upon what skill experience and

3 training did you rely to come to that conclusion?

4 A My 27 years with ComEd, Exelon and all the other

5 different names of the company.

6 Q Nobody asked you. You do not have a Bachelors in

7 Engineering?

8 A No, I don't.

9 Q You're not a licensed engineer?

10 A I am not.

11 Q Do you have any special certificates in any field

12 related to --

13 A Yes. I have a diploma in management.

14 Q From where?

15 A Rhor University.

16 Q All right. You have a diploma in management. Do you

17 have any certificates related to nuclear engineering? You heard

18 Mr. Salehi say that even while he had a PHD or I'm sorry he

19 didn't have a PHD, while he had certain certificates ComEd

20 trained him?

21 A Yes. ComEd has trained me. I've been through

22 systems description courses for both BWR and PWR plants. I've

23 been through -- mechanical fundamental --

24 Q But you're not a licensed operator?

25 A No, I'm not.

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1 Q You have certificates but you have no licenses for

2 anything?

3 A No, I don't.

4 Q And you read the Holtec audit and determined, this

5 document could you produce, this was a truthful statement and

6 it could go to a CAP team, is that correct?

7 A Yes.

8 Q For further action?

9 A Yes.

10 Q Now you also identified Exhibit No. 15.

11 MR. McDERMOTT: I have it here, Judge, if I could be

12 permitted just a minute. Exhibit No. 15.

13 MR. GROSS: Respondent's I assume?

14 MR. McDERMOTT: Yes, it is. That's correct, I'm

15 sorry.


17 Q You said that Mr. Shirani authored this letter or

18 prepared this letter for you, is that correct?

19 A Well, it's got his prepared by signature on it so,

20 yes, I did.

21 Q Was it, did he choose or did you choose

22 Mr. Gillenwater? Is that the name? To perform the follow-up

23 corrections?

24 A I chose Mr. Gillenwater.

25 Q So he would prepare this document but not necessarily

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1 control the content of the document?

2 A No, he controlled the content of it. He may have not

3 controlled who performed the follow-up.

4 Q You told him who to put in there?

5 A Pardon?

6 Q You told him who you wanted to perform the follow-up?

7 A Yes, I did.

8 Q Okay. Then tell me what Mr. Gillenwater's expertise

9 are?

10 A Mr. Gillenwater was the utility employee at the

11 Clinton Station, Nuclear Navy background. I'm not sure what

12 his educational background is.

13 Q Was he an engineer?

14 A I don't know that off the top of my head.

15 Q Isn't it true he's a nuclear engineer?

16 A I don't know that right now off the top of my head.

17 Q Why did you pick him?

18 A Because we have a group of utilities that share

19 resources to oversee the work at U.S. Tool and Die. In this

20 group of utilities we just added Mr. Gillenwater to perform

21 inspections and oversight at the site for us. The reason we

22 did that is because he had the quality background and

23 inspection background at the, the audit type background so we

24 could have the economy of having him being there without having

25 to send our own staff there constantly.

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1 Q All right. So you say he's at U.S. Tool and Die?

2 A Yes, he is.

3 Q He's on the site?

4 A Yes.

5 Q Does he know anything about welding?

6 A I'm, I'm not prepared to answer at this time. I

7 don't have --

8 Q I hope somebody is, especially with these dry cask.

9 You also identified a document that you said you wrote that was

10 signed by somebody else. I believe that was Exhibit No. 10.

11 Would you look again at Respondent's Exhibit No. 10. In your

12 testimony you said you wrote that exhibit, that document?

13 A Yes, I did.

14 Q Your wrote it to Mr. Perry?

15 A Yes.

16 Q And it was in respect to Exhibit No. 11 you also had

17 participated in making this decision sometime prior to the

18 published date of January the 20th, 1999, am I correct?

19 A I'm not sure I understand the question.

20 Q Well, if you're going to move a budget from one area

21 to another there's got to have been some discussion prior to

22 the date of it happening, correct?

23 A Well, the QA manual had to be submitted for approval.

24 Somebody had to change the QA manual.

25 Q And that would have occurred when?

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1 A Prior to, this was January '99, I'm not sure of the

2 date it was submitted but it would be prior to any of the

3 changes being made.

4 Q You testified that you didn't believe in the, and

5 everybody's referring it to as the merger period. You've heard

6 other witnesses refer to it as the merger period, too, haven't

7 you?

8 A I may have.

9 Q When you used the term merger period what are the

10 months of 2000 that you're talking about?

11 A Oh, the merger period, I think I got, it's the time I

12 was involved so it was probably the first quarter of, the end

13 of first quarter of, end of first quarter 2000 up until merger

14 time and then beyond the merger time.

15 Q Til the end of the year?

16 A Yeah.

17 Q So at least three quarters?

18 A Yeah, three quarters. Maybe a little more on the

19 tail end also.

20 Q Okay.

21 A Because we were still separating people.

22 Q You said during that period of time you, it was your

23 understanding that you could not, or people in nuclear could

24 not nominate employees as, managers in nuclear could not

25 nominate employees who came to them and sought nominations

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1 outside of nuclear?

2 A It was my understanding we weren't using that system.

3 Q I'm sorry?

4 A It was my understanding we weren't using that system

5 and also I nominated Oscar in the nuclear division because I

6 thought his skills were better used there.

7 Q So I understand your testimony. Did Oscar challenge

8 your understanding on that?

9 A I was on the road a lot then I'm not sure of the

10 change of events. I got e-mails when I was gone. I'm not sure

11 exactly when I saw him when he sent the e-mails.

12 Q You knew about the deadline however for the

13 nominations prior to the deadline?

14 A I just --

15 MR. GROSS: Excuse me I'm sorry?


17 Q You knew about the deadline for managers to nominate

18 their people prior to the deadline?

19 A Just from the e-mails that Mr. Shirani sent me.

20 Q And you may not have gotten them before the deadline?

21 A It's possible.

22 Q Did Oscar telephone you at all?

23 A I don't remember. I don't recall.

24 Q It is still your feeling however that his career at

25 that time as you understood it should have been in nuclear?

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1 A I thought it fit best in nuclear.

2 Q For the company?

3 A For the company.

4 Q Do you recall your deposition?

5 A Yes.

6 Q Okay. Do you recall being asked a series of

7 questions about Oscar discussing his job outside of nuclear and

8 in finance?

9 A I remember being asked about it.

10 Q You testified today almost identically to your

11 testimony at deposition that hey, we're all here for the money,

12 is that essentially it?

13 A That's pretty much it.

14 Q I'm not, you know, I'm not criticizing.

15 A I like the money.

16 Q So when Oscar came to you and I asked you in

17 deposition in December the 7th and told you he had this job

18 offer you discussed it with him?

19 A Yes.

20 Q All right. And when Oscar told you what the salary

21 was you knew it to be more than he was making at present?

22 A Yes, I did.

23 Q And you knew he was making more than you were making

24 at that time?

25 A Yes, I did.

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1 Q And when you said it, hey, we're here for the money,

2 you meant it?

3 A Yes.

4 Q And you told him you wouldn't stand in his way,

5 right?

6 A Yes, I told him I prefer for him to stay but I won't

7 stand in your way.

8 Q Did you have to sign one of those sign off forms to,

9 well, I guess not. You're moving to a new division does

10 that --

11 A Yeah, it wasn't an internal posting so --

12 Q So it wasn't --

13 A I don't even know how it works.

14 Q Okay. But had it been an internal posting he would

15 have had to come to you and say I'd like to apply for this job

16 over here and get this job over here?

17 A Yes, as he did with the other position.

18 Q Okay. And he did that with you on other occasions?

19 A Yes, he did.

20 Q But he didn't have to do that this time?

21 A Not to my knowledge.

22 Q Was that because of the clout of the person who

23 offered him the job?

24 MR. GROSS: I'll object. Lack of foundation as to

25 his knowledge.

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1 JUDGE LESNICK: I'll let him answer if he can.

2 THE WITNESS: I can't answer that question because I

3 don't know how, what even the process is for that. This was

4 the first time I was exposed to it. I don't even know if

5 there's a procedure for it.


7 Q That's all right. You've been with ComEd and then

8 Exelon for about 20 years?

9 A 27 years.

10 Q 27 years. I thought it was 1982? No?

11 A No.

12 Q I thought you started with them in 19 --

13 A 1975.

14 Q Oh, 1975. I missed it. I'm sorry.

15 A I entered the nuclear division in 1982.

16 Q I see. At a station?

17 A Yes.

18 Q Which station?

19 A LaSalle Station.

20 Q Had you ever heard the term power up rate prior to

21 1998?

22 A I don't know.

23 Q Pardon me?

24 A I, I don't know when I learned that term.

25 Q When did you become familiar with the power up rate

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1 program?

2 A When Exelon or whoever we were at the time, whatever

3 generation of the company we were at that time announced that

4 they were going to do that.

5 Q And do you remember when that was?

6 A No, I don't.

7 Q Was it '95?

8 A I have no idea, sir.

9 Q But you do know of its existence?

10 A Yes, I do.

11 Q Did you get a bonus last year?

12 A Yes, I did.

13 Q Did you get a bonus, now last year would have been

14 2001, correct?

15 A Yes.

16 Q Did you get a bonus in the year 2000?

17 A Yes.

18 Q Did you get a bonus in the year 1999?

19 A I'm not sure about that one. I'm not sure when the

20 bonuses started?

21 Q Did the bonuses start at approximately at the same

22 time that power up rate started?

23 A I don't know, sir.

24 Q You don't know or you don't remember?

25 A I don't know.

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1 Q What changed in the organization or the company that

2 allowed for the, allowed for people to get bonuses? Especially

3 people in Q and A? The quality assurance or SES like yourself?

4 A I'm sorry I don't understand that.

5 Q Why would you suddenly get bonuses? You worked for

6 the company for 27 years. Did you ever get bonuses before?

7 A No.

8 Q Something new, correct?

9 A Yes.

10 Q And you're not sure you got one in '99?

11 A I'm not sure.

12 Q But you're sure in 2000?

13 A Yes.

14 Q And you're sure in 2001?

15 A Yes.

16 Q Was it a percentage of your annual salary?

17 A Yes.

18 Q And you knew what the percentage was because they

19 told you what it was, correct?

20 A There were guidelines associated with it.

21 Q And it's commonly known and widely published within

22 the company that bonuses are tagged to production, correct?

23 A That's part of the equation.

24 Q Okay. Did that all occur since Mr. Kingsley's come

25 to Commonwealth Edison and now Exelon?

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1 A My guess it would have been around the same time that

2 we started becoming deregulated and Mr. Kingsley came.

3 Q I didn't hear you, you trailed off?

4 A And when Mr. Kingsley came.

5 Q When you say deregulated, deregulated in what sense?

6 A In, in mono, sales stable in Illinois, deregulation

7 act.

8 Q Right. State deregulation. I don't want the record

9 to be confused. You were never deregulated visa a via any

10 federal regulations that existed as far as you know?

11 A Not as far as I know.

12 Q Okay. But you were deregulated in the sense of they

13 treated differently among other power and energy producers

14 within the state of Illinois?

15 A Correct.

16 MR. GROSS: I'll object. Calls for a legal

17 conclusion.

18 MR. McDERMOTT: A legal conclusion?

19 THE WITNESS: May I answer?

20 MR. GROSS: Yes.

21 THE WITNESS: Correct.

22 MR. McDERMOTT: I have no other questions of this

23 witness.

24 JUDGE LESNICK: Any redirect?

25 MR. GROSS: I have no redirect, Your Honor.

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1 MR. McDERMOTT: Nothing.


3 THE WITNESS: Bastyr.

4 JUDGE LESNICK: Bastyr, I'll get it right.

5 THE WITNESS: Like turkey baster.

6 JUDGE LESNICK: You had, was it Mr. Yessian?


8 JUDGE LESNICK: Approached you sometime in 2001 and

9 said Mr. Shirani wanted to come back, would you like to take

10 him back and you said yes if I can have, if you give me room

11 for him.

12 THE WITNESS: Right. If I had the budget slot.

13 JUDGE LESNICK: Let's assume Monday you got the same,

14 Mr. Yessian asks you the same thing and you've had a chance to

15 compartmentalize any uncomfortableness because of the whole

16 proceeding. And with your 27 years of experience, you know how

17 to do that, you push it out of your mind today, what's your

18 answer to Mr. Yessian on Monday?

19 THE WITNESS: Well, my answer is I've developed

20 someone who has that ability now. I have a doctorate of

21 mechanical engineering, Mr. Yacoupatel who performs the same

22 type of services that Mr. Shirani performed for me.

23 At the time Mr. Shirani left I brought the gentleman

24 to the group under Mr. Shirani's recommendation to help

25 cultivate him to take Mr. Shirani's place in the future. He's

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1 up to speed now. I really need an electrical type person if I

2 could get anyone it would be someone with a double E degree.

3 JUDGE LESNICK: But if, okay. Now if you didn't have

4 this person, would you want Mr. Shirani back?

5 THE WITNESS: If I could compartmentalize it, I need,

6 I would need his abilities, let me put it that way.

7 JUDGE LESNICK: Any questions?

8 MR. GROSS: No questions.

9 JUDGE LESNICK: Thank you.

10 THE WITNESS: Thank you.

11 MR. GROSS: We have no further witnesses, Your Honor.


13 MR. McDERMOTT: No rebuttal witnesses, Judge. I want

14 to make that clear for the record.

15 JUDGE LESNICK: All right. Now do you want to give

16 an argument?

17 MR. McDERMOTT: I do.

18 JUDGE LESNICK: All right. And you don't?

19 MR. GROSS: Right. I will reserve for the brief.

20 JUDGE LESNICK: How do you feel about that?

21 MR. McDERMOTT: Well, then it forces me to almost

22 inevitably do a written with or without benefit of transcript.

23 JUDGE LESNICK: It's your call. I can give you one

24 other option --

25 MR. McDERMOTT: And what's that?

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1 JUDGE LESNICK: -- if you want to give your closing

2 and then you file and then I give you a rebuttal.

3 MR. McDERMOTT: In written form?

4 JUDGE LESNICK: It would have to be written, of

5 course, unless you want to send me a tape. No, it has to be

6 written.

7 MR. McDERMOTT: How about an argument without benefit

8 of transcript? A written argument without benefit of

9 transcript?

10 JUDGE LESNICK: From you?

11 MR. McDERMOTT: Yes.

12 JUDGE LESNICK: Oh, certainly, you're welcome to do

13 that. You're not required to order a transcript.

14 MR. McDERMOTT: And what's the deadline? When do you

15 want it?

16 JUDGE LESNICK: The transcript generally takes 20

17 business days. I would think given the nature of this, given a

18 fair amount of time, and we have holidays in between, too.

19 Well, no, the holidays would be the transcript time. We'll

20 just ruin Stuart's life.

21 MR. McDERMOTT: He smiled.

22 JUDGE LESNICK: So let's see, the end of January, end

23 of February, is that, I don't have a calendar in front of me.

24 Stuart, do you have a calendar? Does anyone know when let's

25 say February 20 occurs?

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1 MR. McDERMOTT: I don't.

2 JUDGE LESNICK: We can go off the record to do this.

3 (Off the record.)

4 (On the record.)

5 JUDGE LESNICK: Back on the record. We've agreed to

6 briefing schedule of briefs due, postmarked May 3rd, March 3rd.

7 And a reply, if they wish, a reply on March 17th. All right.

8 MR. GROSS: And on the record, page numbers?

9 JUDGE LESNICK: No page limit. But try to keep it

10 brief as briefs are called.

11 All right. Gentlemen, I want to thank you both for a

12 very well tried case. Thank you all. And there being nothing

13 further this record is closed.

14 (Whereupon, at 2:00 p.m., the hearing in the above-

15 entitled matter was concluded.)











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This is to certify that the attached proceedings before the

Administrative Law Judge Robert J. Lesnick, Pittsburgh, PA
Insert Title of Officer Name and Office

In the matter of: Oscar B. Shirani

Case/Docket Number: 2002-ERA-28

Place: Chicago, Illinois

Date: December 19, 2002

were held as therein appears, and that this is the original

transcript thereof for the files of the Department of Labor.

Free State Reporting, Inc.
(Name of Reporting Company)

(Official Reporter)













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