United States General Accounting Office

GAO Report to Congressional Requesters

March 1997 NUCLEAR EMPLOYEE

SAFETY CONCERNS

Allegation System Offers

Better Protection, but

Important Issues Remain

GAO/HEHS-97-51

GAO United States

General Accounting Office

Washington, D.C. 20548

Health, Education, and

Human Services Division

B-270675 

March 31, 1997

The Honorable John D. Dingell

Ranking Minority Member

Committee on Commerce

House of Representatives

The Honorable Joseph I. Lieberman

United States Senate

A nuclear power plant accident could result in severe harm or death not

only for workers but also for thousands of people living in the surrounding

area. Although the Nuclear Regulatory Commission (NRC) is directly

responsible for monitoring the nation’s more than 100 nuclear power

plants, as well as over 6,000 individuals and organizations licensed to

possess and use nuclear materials and wastes,1

 it is physically impossible

for NRC inspections to detect all health and safety hazards. For this reason,

it is critical that nuclear plant employees feel free to raise health and

safety concerns without fear of retribution.

Federal laws prohibit retaliation by power plant operators (licensees) or

their contractors against employees who “blow the whistle” by surfacing

health and safety issues. Protection is provided as follows: If

discrimination occurs, employees are to receive restitution and sanctions

may be imposed against employers. If employees believe the system

established by these laws adequately protects them, they will be more

willing to report hazards. Similarly, if licensees believe they will receive

burdensome sanctions or other negative consequences when they

discriminate against these employees, they will be unlikely to retaliate and

the atmosphere at their plants will be one in which employees feel free to

raise these concerns.

You expressed concern that these laws, as they have been implemented by

NRC and the Department of Labor, may not adequately protect nuclear

power industry workers who raise health and safety issues. Your concern

was based, in part, on problems surfaced in several recent studies that

recommended improvements to the system. For these reasons, you asked

us to

1

Another 15,000 individuals and organizations licensed to use nuclear materials and wastes are

regulated by state agencies under agreements with NRC.

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• describe how federal laws and regulations protect nuclear power industry

employees from discrimination for raising health and safety concerns and

• determine the implementation status of recommendations made in recent

NRC and Labor internal reviews and audits of the system for protecting

workers and assess the resulting changes to the system.

To do our work, we reviewed the provisions of the Energy Reorganization

Act (ERA), as amended, pertaining to protection for employees who raise

health and safety concerns and related legislation; the Code of Federal

Regulations sections pertaining to processing allegations of

discrimination;2

 and pertinent NRC and Department of Labor internal

directives. We discussed the processes for protecting these employees

with (1) cognizant NRC and Labor officials in both headquarters and field

offices, (2) employees who had alleged discrimination and filed

complaints with NRC and Labor, (3) managers at three licensees who had

been involved in resolving numerous discrimination allegations,

(4) attorneys who had represented both employees and licensees in these

proceedings, and (5) advocates for both employees and licensees. We

obtained and analyzed databases on discrimination allegations from all

NRC and Labor offices involved in investigating and resolving these cases.

We reviewed studies pertaining to allegations issues performed by the NRC

program staff and by the NRC and Labor Offices of Inspector General (OIG)

and obtained information on changes that are being made to improve the

process. (See app. I for details of our scope and methodology.)

Results in Brief NRC has overall responsibility for ensuring that the nuclear plants it

licenses are operated safely, and the Department of Labor also plays a role

in the system that protects industry employees against discrimination for

raising health and safety concerns. More specifically, the Atomic Energy

Act, as amended, gives NRC responsibility for taking action against the

employers it licenses when they are found to have discriminated against

individual employees. NRC can investigate when a harassment and

intimidation allegation is filed with NRC or when it receives a copy of a

discrimination complaint filed with Labor. An NRC review panel discusses

whether an allegation warrants investigation and recommends the

investigation priority. Once the panel and NRC’s Office of Investigations

complete initial inquiries, the Investigations staff, in coordination with the

regional administrator, decides the case’s priority and whether they will do

2

“Harassment and intimidation allegation” and “discrimination complaint” are NRC’s and Labor’s

respective terms for what this report calls discrimination allegations.

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a full investigation. NRC’s Office of Enforcement may use the results of the

NRC investigation or a decision from Labor to support enforcement action.

In addition, the ERA, as amended, authorizes the Secretary of Labor to

order employers to make restitution to the victims of such discrimination.

Restitution can include such actions as reinstatement to a former position,

reimbursement of all expenses related to the complaint, and removal from

personnel files of any adverse references to complaint activities. At Labor,

an order for restitution usually comes at the end of a three-stage process:

(1) an investigation by the Occupational Safety and Health Administration

(OSHA); (2) a hearing before an administrative law judge (ALJ) if the OSHA

determination is appealed; and (3) a review of the recommended decision

by the Administrative Review Board (ARB), which issues the Secretary of

Labor’s final decision. Settlements may occur at any point in the process

and often are made to minimize the cost and time of continuing a case for

both employee and licensee.

Concerns raised by employees about a lack of protection under the

existing process led to studies begun by NRC and Labor in 1992 and by a

review team established by the NRC Executive Director for Operations in

1993. These concerns included the inordinate amount of time it took Labor

to act on some discrimination complaints and NRC’s lack of involvement in

cases during Labor’s decision process. In response to recommendations in

reports from these groups, both NRC and Labor have taken actions

intended to improve the system for protecting employees. For example,

NRC has established a senior position to centrally coordinate and oversee

all phases of allegation management, and it has taken other actions to

improve overall management of the system, such as establishing

procedures to improve communication and feedback among employees,

NRC, and licensees. It has also increased its involvement in allegation cases

through several actions, including investigating a greater number of

allegations. Within Labor, responsibility for two of the three stages—the

initial investigation and the Secretary’s final decision—has been

transferred from one organizational unit to another. Transfer of

responsibility for the initial investigation from the Wage and Hour Division

to OSHA as of February 1997 was part of an exchange of responsibilities to

better use program expertise and resources, while delegation to ARB of the

authority for signing the final order was expected to improve timeliness.

Additionally, a backlog of cases that had been awaiting a final decision in

the Secretary’s office for an average of 2.5 years—which included 129

discrimination complaints by employees that were based on health and

safety concerns—has been eliminated, as recommended by the Labor OIG.

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While NRC and Labor have been responsive to these recommendations,

other recommendations, which could be implemented through

administrative procedural changes and would further improve the system,

still need to be addressed. These recommendations pertain to overall

timeliness of decisions at Labor; an automated system for tracking both

individual allegations and aggregate trends, such as settlements; and

knowledge of whether nuclear plant employees feel free, given their work

environments, to raise health and safety concerns. In addition, NRC and

Labor have yet to complete action on recommendations requiring

statutory and regulatory changes. These include recommendations to

reduce the financial burden on workers with cases pending and to

increase the dollar amount of civil penalties.

Background NRC is an independent agency of the federal government. Its five

commissioners are nominated by the president and confirmed by the

Senate, and its chairman is appointed by the president from among the

commissioners. The current Chairman was sworn in as a commissioner in

May 1995 and became Chairman that July. NRC’s mission includes ensuring

that civilian use of nuclear materials in the United States—in the operation

of nuclear power plants and in medical, industrial, and research

applications—is done with adequate protection of public health and

safety. NRC carries out its mission through licensing and regulatory

oversight of nuclear reactor operations and other activities involving the

possession and use of nuclear materials and wastes.

Because it is impossible for NRC’s inspections to detect all potential

hazards, NRC must also rely on nuclear licensee employees to help identify

such problems. Actions taken to respond to employee concerns raised in

the past have significantly contributed to improving safety in the nuclear

industry. Although most employee concerns are raised directly to licensee

managers and are resolved internally by licensees, employees may choose

to bring allegations directly to NRC. An employee generally raises a concern

with NRC if he or she is not satisfied with the licensee’s resolution of the

concern or is not comfortable raising the concern internally. Employees

may be discouraged from raising these issues internally if they believe

their employer discriminates against those who do so. This phenomenon

in the working environment is termed the “chilling effect.”

Some observers believe that certain developments in the nuclear power

industry increase the vulnerability of power plants to hazards, which

would increase the importance of employee vigilance in noting and

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reporting hazards. For example, the electrical power industry may soon

face deregulation, which would allow customers to choose a supplier and

create competition in the industry that did not exist before. This has led to

increased concern by NRC about safety because of the potential pressure

on utilities to minimize operating costs. Preparation for deregulation has

already resulted in downsizing at some nuclear plants and the closing of

others because of their comparatively high operating costs. Furthermore,

the nation’s over 100 nuclear power plants are aging (most were built

before 1980), which puts them increasingly at risk for certain kinds of

hazards.

Labor administers a variety of laws affecting conditions in the nation’s

work places, including laws to protect employees who report work place

hazards. OSHA’s responsibilities include investigating employee

discrimination complaints under these laws, including the ERA.

3

Investigations of employee discrimination cases are performed by a cadre

of about 60 investigators. ERA cases make up a small percentage of the

investigators’ workload.

In response to complaints by employees who raised health and safety

concerns that they were not being protected from discrimination, NRC has

studied and reported on the employee protection system. In 1992, NRC’s OIG

initiated a review to examine and better understand the nature of the

complaints and the magnitude of this problem. In a July 1993 report, the

OIG noted that employees who had raised concerns believed NRC did little

to protect them from retaliation or to investigate in a timely manner their

allegations of retaliation.4

 In response to hearings before what was then

the Subcommittee on Clean Air and Nuclear Regulation of the Senate

Committee on Environment and Public Works, the NRC OIG issued a report

in December 1993 that found NRC was primarily reactive to harassment and

intimidation allegations and did not have a program to assess the work

environment at licensees’ facilities except when serious problems

occurred.5

 On July 6, 1993, NRC’s Executive Director for Operations formed

a review team to reassess NRC’s process for protecting against retaliation

those employees who raise health and safety concerns. The review team

3

Until February 3, 1997, responsibility for investigating complaints under a number of such laws,

including the ERA, rested with the Wage and Hour Division in Labor’s Employment Standards

Administration.

4

NRC, OIG, NRC Response to Whistleblower Retaliation Complaints, Case No. 92-01N (Washington,

D.C: NRC, July 9, 1993).

5

NRC, OIG, Assessment of NRC’s Process for Protecting Allegers From Harassment and Intimidation,

Case 93-07N (Washington, D.C.: NRC, Dec. 15, 1993).

Page 5 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
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solicited input from employees who had alleged discrimination, licensees,

and the public and, in a January 1994 report,6

 concluded that the existing

NRC and Labor processes, as then implemented, did not provide sufficient

protection to these employees.

In addition, in a May 1993 report, the Labor OIG referred to the office

responsible for preparing the Secretary of Labor’s final decisions as a

“burial ground” for cases on which the Secretary and other Labor officials

did not issue a final decision. The oldest 26 cases had been pending at this

final stage for an average of 7.5 years, and there was a backlog of 178

cases—129 of them involving complaints under the several laws Labor

enforces pertaining to discrimination of workers who raise health and

safety concerns—that had been in that office for an average of 2.5 years.7

System for Protecting

Employees Involves

Multiple Steps in Two

Agencies

NRC has the overall responsibility for ensuring that the nuclear plants it

licenses are operated safely. This entails informing licensees and

individual employees about the discrimination prohibitions of the law and

of the steps an employee can take if he or she feels unjustly treated, and

ensuring that employees are comfortable raising health and safety

concerns. Once an employee raises an allegation of discrimination or

harassment, however, both NRC and Labor have roles in processing the

allegation. Under the Atomic Energy Act, as amended, NRC may take action

against the employers it licenses when they are found to have

discriminated against individual employees for raising health and safety

concerns. Accordingly, NRC has established a process for investigating

discrimination complaints and, if appropriate, taking enforcement action

against licensees. The ERA, as amended, authorizes the Secretary of Labor

to order employers to make restitution to the victims of such

discrimination, and Labor has instituted a process for investigating and

adjudicating discrimination complaints. In 1982, NRC and Labor entered

into a Memorandum of Understanding that recognized that the two

agencies have complementary responsibilities in the area of employee

protection.

6

NRC, Reassessment of the NRC’s Program for Protecting Allegers Against Retaliation (Washington,

D.C.: NRC, Jan. 7, 1994).

7

Department of Labor, OIG, Audit of the Office of Administrative Appeals, Report No. 17-93-009-01-010

(Washington, D.C.: Department of Labor, May 19, 1993).

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Laws Establish Separate

Responsibilities for NRC

and Labor

Under the Atomic Energy Act, NRC has implied authority to investigate

cases in which an individual may have been discriminated against for

raising health or safety concerns, and to take appropriate enforcement

action against licensees for such discrimination. The act does not,

however, specifically authorize NRC to order restitution, such as

reinstatement or back pay, for an employee who has been subjected to

discrimination.

It was not until 1978, when the Congress enacted section 2118

 of the ERA,

that statutory remedies were provided for individuals when discrimination

occurs. Section 211 prohibits employers from discriminating against

employees who raise health or safety issues to NRC or its licensees and

authorizes the Secretary of Labor, after an investigation and an

opportunity for a public hearing, to order restitution. According to Labor,

restitution can include reinstatement of the complainant to his or her

former position with back pay, if warranted; award of compensatory

damages; payment of attorney fees; and purging personnel files of any

adverse references to the complaint. The Secretary is required to complete

an initial investigation within 30 days and issue a final order within 90 days

of the filing of the complaint. Federal regulations allow for extensions,

which, in effect, waive the 90-day time frame.

In 1982, NRC issued regulations implementing section 211. These

regulations notify licensees that discrimination of the type described in the

law is prohibited and incorporate NRC’s implied authority to investigate

alleged unlawful discrimination and take enforcement action, such as the

assessment of civil penalties. The regulations also require licensees to post

notices provided by NRC describing the rights of employees.

As part of the Energy Policy Act of 1992, section 211 was amended to give

employees more time to file a complaint, modify the burden of proof in

Labor administrative hearings by requiring the complainant to show that

raising a health and safety concern was a contributing factor in an

unfavorable personnel practice, specifically protect employees who raise

health or safety issues with their employers, and allow the Secretary of

Labor to order relief before completion of the review process that follows

an ALJ finding of discrimination.

8

Originally enacted as section 210.

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Memorandum of

Understanding Explains

How Labor and NRC

Coordinate Activities

NRC and Labor recognized that in view of Labor’s complementary

responsibilities, coordination was warranted. Consequently, Labor and NRC

entered into a Memorandum of Understanding in 1982. Under the

memorandum, NRC and Labor agreed to carry out their responsibilities

independently, but to cooperate and exchange timely information in areas

of mutual interest. In particular, Labor agreed to promptly provide NRC

copies of ERA complaints, decisions, and orders associated with

investigations and hearings on such complaints. NRC agreed to assist Labor

in obtaining access to licensee facilities.

Working arrangements formulated to implement the memorandum

specified that NRC will not normally initiate an investigation of a complaint

if Labor is already investigating it or has completed an investigation and

found no violations. If Labor finds that a violation has occurred, however,

NRC may take enforcement action. Normally, NRC considers Labor’s actions

before deciding what enforcement action, if any, to take.

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Joint Process to

Investigate Discrimination

Allegations Involves

Several Steps

The joint process for investigating discrimination allegations is shown in

figure 1. A series of steps involving three components in Labor can lead to

restitution for an employee discriminated against for raising health and

safety concerns. A separate set of steps in NRC can lead to enforcement

action against a licensee who discriminates.

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Figure 1: Joint NRC-Labor Process for Action on Allegations of Discrimination by Nuclear Power Industry Employees Who

Raise Health and Safety Concerns

Page 10 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
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The three components in Labor’s allegation process perform the following

activities. Settlements between the parties may occur at any point in this

process and are often made to minimize the expense and time involved for

both the employee and the licensee in continuing a case. (The actual times

for these steps are discussed in the next section under timeliness

standards.)

• OSHA: To receive restitution for being discriminated against by a licensee,

an employee must file a complaint with OSHA within 180 days of the alleged

discriminatory act. OSHA must complete the initial investigation within 30

days, under the law. However, under Labor procedures, when necessary

and preferably with the agreement of both parties, the 30-day limit may be

exceeded. If either party does not agree with the OSHA decision, it may be

appealed to Labor’s Office of Administrative Law Judges (OALJ) within 5

calendar days.

• OALJ: Within 7 days of the appeal, the ALJ assigned to the case is to

schedule a hearing. All parties must be given at least 5 days notice of the

scheduled hearing. Federal regulations state that requests for

postponement of the ALJ hearing may be granted for compelling reasons.

The ALJ is required to submit a recommended decision within 20 days of

the hearing.

• Office of the Secretary: The ALJ’s recommended decision is automatically

reviewed by the ARB within the Secretary of Labor’s office.9

 Either party

may appeal the final Labor decision to the appropriate federal court of

appeals within 60 days. Pursuant to the ERA, a final decision is not subject

to judicial review in any criminal or other civil proceeding.

For discrimination allegations filed directly with NRC or Labor, an NRC

review panel, located in each regional office and headquarters, decides

whether to request an investigation by NRC’s Office of Investigations. The

Investigations staff, in coordination with the regional administrator,

decides the case’s priority and whether they will do a full investigation. If

Investigations determines that a violation occurred, or if a final

determination of discrimination is received from Labor, NRC assesses the

violation in accordance with its enforcement policy, which defines the

level of severity and the appropriate sanction. Severity levels range from

severity level I for the most significant violations to severity level IV for

those of lesser concern. Minor violations are not subject to formal

enforcement actions. One factor that determines the severity of a

discrimination violation is the organizational level of the offender. For

9

Prior to May 1996, ALJs’ recommended decisions were reviewed by the Office of Administrative

Appeals, and the final decision was signed by the Secretary. Since that time, the final decision has been

signed for the Secretary by the Chairman of the ARB.

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example, discrimination violations by senior corporate management

would be severity level I, whereas violations by plant management above

the first-line supervisor and by the first-line supervisor would be severity

levels II and III, respectively. Another factor that might determine severity

level is whether a hostile work environment existed.

There are three primary enforcement actions available to NRC: Notice of

Violation, civil penalty, and order. The Notice of Violation is a written

notice used to formalize the identification of one or more violations of a

legally binding requirement. The civil penalty is a monetary fine. Orders

modify, suspend, or revoke licenses or require specific actions of the

licensee.

Many

Recommendations

Have Been

Implemented, but

Some Important

Issues Remain

Complaints by current and former nuclear licensee employees about,

among other things, the allegations process led NRC and Labor to study the

system for protecting employees who raise health or safety concerns. In

response to recommendations and concerns raised in NRC’s January 1994

review team report and NRC and Labor OIG reports, many changes have

been made in an effort to improve the employee protection system.

Employees we spoke with who had made allegations of discrimination for

raising safety issues generally supported these changes to improve

protection. However, several recommendations that could significantly

improve protection, and the perception of protection, for employees have

not been implemented.

Recommendations

Implemented Should

Improve the System

Many of the implemented recommendations from these studies led to

actions at NRC to improve monitoring of cases, expand communication

with employees about their cases, and increase the agency’s involvement

in allegation investigations; they also led to changes at Labor to improve

its timeliness in processing allegation cases. These recommendations

addressed concerns expressed by many of the allegers we interviewed.

Regarding case monitoring, NRC has designated a full-time, senior official

to centrally coordinate allegation information from NRC and Labor, and

oversee the management of and periodically audit the allegation process at

NRC. NRC established the position of Agency Allegation Advisor in

February 1995, and since then, two rounds of audits of the allegation

process have been completed. In September 1996, the Agency Allegation

Advisor issued the first annual report on the status of the allegation

system, which addressed issues previously identified through audits and

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data gathered on allegations. These actions give NRC a focal point for

gathering and publishing information on how its allegation process is

working and enable it to recognize problems.

Some recommendations implemented by NRC should improve

communication. One of these recommended improving feedback to

employees on the status of their cases. As of May 1996, new procedures

established time frames for NRC to periodically report case status to

employees. The procedures required NRC to inform the alleger in writing of

the status of his or her case within 30 days of NRC’s receipt of the

allegation, every 6 months thereafter, and again within 30 days of

completing the investigation. NRC has also established a hotline through

which employees can report problems and issued a policy statement

emphasizing the importance of licensees maintaining an environment in

which employees are comfortable raising health and safety concerns.

These new procedures address issues allegers raised with us about not

being informed on the status of their cases. However, some allegers told us

that because the policy statement is directed only at the licensees’

responsibilities for maintaining a good work environment and does not

include specific responsibilities for NRC, it is not adequate.

To increase NRC’s involvement in the allegation process, the January 1994

study recommended that NRC revise the criteria for selecting complaints to

be investigated in order to expand the number of investigations. Before

October 1993, NRC had investigated few discrimination complaints and

usually waited for the Labor Secretary’s final decision, which generally

took longer than an NRC investigation, before taking enforcement action. In

October 1993, NRC Investigations’ policy was changed to require that field

offices open a case and conduct an evaluation of all matters involving

discrimination complaints, regardless of Labor’s involvement. In

April 1996, NRC issued a policy statement directing its Office of

Investigations to investigate all high-priority allegations of discrimination,

whether the Labor Secretary’s final decision has been made or not, and to

devote the resources necessary to complete these investigations. As a

result, the number of high-priority investigations NRC opened has increased

significantly. By applying the new criteria, the percentage of cases opened

that were high priority increased from 37 percent in May 1996 to

81 percent in July 1996. These actions should address the dissatisfaction

employees expressed to both NRC’s OIG and us about NRC’s lack of

involvement in the investigation of cases. However, NRC has identified a

need for more resources at the Office of Investigations to handle the

greater number of investigations, and as of December 1996, this need had

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not been addressed. Therefore, it is unclear whether the investigations can

be completed as quickly as hoped.

Labor has also improved its timeliness in processing cases, as

recommended in the Labor OIG’s May 1993 report. Labor has eliminated a

backlog of cases awaiting decision in the Office of the Secretary and has

developed and implemented a management information system to monitor

case activity. Since these changes were implemented, the average time for

the Secretary’s office to decide cases has been reduced from about 3 years

in fiscal year 1994 to about 1.3 years in fiscal year 1996. A Labor official

told us that as of December 1996, the average case took only about 4

months to clear the Office of the Secretary, due partially to the elimination

of the backlog.

In addition, to better use program expertise, Labor has transferred

responsibility for investigation of allegation cases from the Wage and Hour

Division to OSHA, which has a staff with experience investigating

allegations of discrimination against employees who raise health and

safety concerns. The Assistant Secretary of Labor for Employee Standards

commented that the primary purpose of reassigning initial investigations

from Wage and Hour to OSHA was part of an exchange of responsibilities.

Prior to the reassignment, OSHA had responsibility for the employee

protection, or “whistleblower,” provisions of certain laws and the staff

devoted to the enforcement of these provisions. The Wage and Hour

Division was responsible for certain employee protections affecting farm

workers and would be able to make field sanitation inspections as part of

its regular investigations. These responsibilities were exchanged in order

to better use program expertise and promote effective and efficient use of

resources. This transfer was effective February 3, 1997.

Some Recommendations

Not Implemented Could

Significantly Improve

Protection

In spite of NRC’s and Labor’s overall responsiveness to the reports’

recommendations, some recommendations that address concerns raised

not only by the NRC review team but also by other NRC staff, the OIG, and

allegers we interviewed have not yet been implemented. Some

recommendations, which could be implemented through administrative

procedural changes, could significantly improve the system; these address

timeliness standards, case monitoring, and NRC’s knowledge of the

employee environment in licensees’ facilities. Other recommendations,

which require statutory changes or are controversial as to their

effectiveness, have also not been implemented.

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Timeliness Standards When allegation cases take several years to complete, significant negative

effects accrue. Lengthy cases increase attorney fees, prolong the time an

employee may be out of work, and have a chilling effect on other

employees. Under past policies, which provided for few NRC investigations,

long cases delayed NRC’s ability to impose enforcement actions as they

waited for Labor decisions. Some cases that allegers have filed have

continued for over 5 years, and during that time the employee may be out

of work, paying attorney fees, and exhausting his or her financial

resources. Furthermore, the January 1994 NRC report noted that delays in

processing cases at the Office of the Secretary of Labor had, in some

cases, prevented NRC from taking enforcement action against licensees

because the time limits under the statute of limitations had run out.10

The Labor OIG report recommended that Labor establish a timeliness

standard for the issuance of Secretary of Labor decisions and conduct an

analysis to determine operational changes and resources necessary to

meet the new standard. Establishing a standard was intended to provide a

means to objectively measure Labor’s performance during the final step of

its process and help meet legal requirements and customer service

expectations. In September 1995, in its closing comments on this review,

the OIG stated that Labor would need time to develop data on which to

base a realistic timeliness standard and that the standard would be

developed in the future when the data are available. A Labor official told

us the standard is now being developed and that Labor expects to have a

standard soon, although no date for implementation has been established.

According to the Chairman of the ARB, the ARB is continuing to work on

putting procedures in place to collect data that could be used to establish

a standard.

In addition, the NRC review team report recommended that Labor develop

legislation to amend the law to establish a realistic timeliness standard for

the entire Labor process. As of December 1996, NRC was drafting

legislation for Labor’s approval that would establish a new timeliness

standard of 480 days to complete the Labor process. This would allow 120

days for the administrative investigation, 30 days to appeal the decision to

the OALJ, 240 days for the OALJ to recommend a decision, and 90 days for a

10The government has 5 years from the date a violation occurs to bring an action to enforce a civil

penalty against a licensee. (See 28 U.S.C. 2462.) Since 1992, NRC’s enforcement policy has been to

initiate enforcement action after an ALJ finding of discrimination. However, when the ALJ does not

decide in favor of the complainant, but the Secretary’s final decision does find discrimination, if NRC

does not find discrimination based on its investigation, NRC has no reason to take enforcement action

until the Secretary’s decision has been issued. Delays in the Secretary’s decisions in such cases have

precluded civil penalties when the Secretary’s determination occurred more than 5 years after the

violation.

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final decision from the Secretary. According to NRC, the intent in proposing

more realistic timeliness standards is that there is more incentive to try to

meet standards that are achievable than those that normally cannot be

met. These proposals were based on comparisons with baseline data from

investigations done under other related statutes and proposed legislation

considered in the 101st Congress. For example, the review team reported

that OSHA investigations under other employee protection statutes took, on

average, 120 days. Labor officials have indicated that they would support

this legislation.

Our review of processing times in each of Labor’s three offices showed

that meeting the new standards would require a significant change in how

these cases are processed. For cases processed in fiscal year 1994 through

the first 9 months of fiscal year 1996, the proposed time frames were not

met for all cases in any of the three offices. For 164 cases investigated by

the Wage and Hour Division during this period,11 only 16 percent of the

investigations were completed within the 30 days currently mandated by

law and an additional 46 percent would have met the proposed time frame

of 120 days. (See fig. 2.) These investigations took an average of 128 days,

with a range of 1 day to over 2 years, to complete. OSHA officials said that

during the pilot study for transferring the initial investigative responsibility

to their office from Wage and Hour, they found it very difficult to meet the

30-day mandate and had to ask for extensions in several cases.

11Includes 11 investigations performed by OSHA investigators under a pilot program.

Page 17 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

Figure 2: Percentage of Wage and

Hour Division Investigations

Completed Within the Current and

Proposed Statutory Time Frames in

Recent Years

43

16

1994

(48 Cases)

1995

(69 Cases)

1996

(47 Cases)

1994-96

(164 Cases)

0

20

40

60

80

100

100 100 100 100

Investigations by Fiscal Year

Percentage

Met Current Time Frame

Met Proposed Time Frame 

Exceeded Proposed

44

42

53

46

41

30

38

16 17 14

During this same period, 56 percent of OALJ’s recommended decisions and

orders would have met the proposed time frame of 240 days. OALJ took an

average of 271 days (9 months) to issue 118 recommended decisions and

orders. The time for these decisions ranged from less than 30 days to over

3 years. Currently, there is no time frame specifically for the OALJ step of

the process. Even though the act provides for a 90-day time frame for

moving from initial investigation to a final decision, extensions were

Page 18 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

requested by the parties in virtually all cases we reviewed. One reason for

this is that the OALJ hearing is de novo—it essentially starts the process

over again because it does not consider the results of the Wage and Hour

investigation. In addition, Labor officials told us that these extensions

were necessary to allow additional time for discovery and review of

evidence by legal counsels of both parties in preparation for the hearing.

In commenting on a draft of this report, Labor’s Chief Administrative Law

Judge stated that 240 days is an achievable goal if the following factors are

addressed:

• establishment of a mechanism to extend the time frame in appropriate

circumstances,

• recognition that existing case law conflicts with a strict time limit on

discovery and hearing, and

• availability of adequate staff.

Page 19 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

Figure 3: Percentage of OALJ’s

Recommended Decisions Completed

Within the Proposed Statutory Time

Frame in Recent Years

1994

(28 Cases)

1995

(56 Cases)

1996

(34 Cases)

1994-96

(118 Cases)

0

20

40

60

80

100

100 100 100 100

Decisions by Fiscal Year

Percentage

Met Proposed Time Frame

Exceeded Proposed

61

39

59

41

53

44

47

56

For the final step in the process, our data showed significant improvement

in the time it took to obtain decisions from the Secretary of Labor, but

even in the most recent year we analyzed, only 37 percent would have met

the proposed 90-day time frame. (See fig. 4.) The average time to decide

217 cases in the Secretary’s office decreased from about 3.3 years in fiscal

year 1994 to about 1.3 years (16 months) in fiscal year 1996. In

commenting on a draft of this report, the Chairman of the ARB noted that

the current policy gives the parties 75 days to file all the briefs. In most

cases, an extension is requested by at least one of the parties. Therefore, in

Page 20 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

his opinion, a 90-day timeliness standard is unrealistic unless ARB severely

restricts the parties’ ability to properly brief the issues pressed.

Figure 4: Percentage of Secretary of

Labor Decisions Completed Within the

Proposed Statutory Time Frame in

Recent Years

1994

(67 Cases)

1995

(98 Cases)

1996

(52 Cases)

1994-96

(217 Cases)

0

20

40

60

80

100

100 100 100 100

Decisions by Fiscal Year

Percentage

Met Proposed Time Frame

Exceeded Proposed

12

33

37

27

88

67 63

73

Monitoring of Allegation Cases

and Trends

Both monitoring of individual cases and monitoring trends in allegations

are important oversight activities. Monitoring the individual cases as they

progress is a way to determine whether cases are being resolved in a

timely way. Monitoring trends in allegations would help NRC’s Agency

Allegation Advisor in overseeing the system’s effectiveness.

The NRC report recommended that NRC improve its Allegation Management

System to be able to both monitor allegations from receipt to the

Page 21 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

completion of agency action, and to analyze trends. It could also help

improve agency responsiveness, such as when monitoring reveals sudden

increases in the time for cases to be resolved, and helps identify licensees

who may warrant closer scrutiny, such as a licensee that shows a sharp

increase in the number of cases against it or settled by it. NRC agrees with

the recommendation and has implemented a new system in its regional

offices and in the two headquarters offices with direct regulatory

oversight, which officials say will have the capability to track cases

through each step of the process. However, at the time of our review, the

system did not yet include data from the Offices of Investigations and

Enforcement, nor did it include on-line Labor investigation data.

Our findings highlight the need for the data tracking system to include the

period of time that a case is at Labor. For example, Labor has separate

databases and case identifiers at Wage and Hour and OALJ, and the cases

cannot easily be matched. As a result, neither Labor nor we can describe

the total time it takes cases to be resolved at Labor. In addition, of the 217

cases for which the Secretary of Labor had made a final determination, 22

had no such decision recorded in NRC files. While only one of these cases

resulted in a decision of discrimination, this is significant because NRC’s

policy is to hold open its enforcement action on complaints until notified

that the Secretary has made a final determination. However, without an

NRC investigation or an ALJ finding of discrimination, the 5-year limit on

civil penalties could be exceeded. NRC officials told us that they have

contacted Labor and requested copies of the 22 decisions to update their

files.

The number of settlements found in our analysis also underscores the

significance of the NRC review team report’s recommendation that NRC

should track trends in cases closed with a settlement without a finding of

discrimination. NRC currently has no systematic way of knowing the extent

to which settlements are made by individual licensees or when in the

process they occur. Yet, our data showed that numerous settlements

occurred at all steps in the process: Wage and Hour settled 22 of its 164

cases; the OALJ recommended settlement approval for 49 of the 118 cases

on which it issued recommended decisions; and the Secretary of Labor

approved settlements in 74 of the 217 allegations on which final decisions

were issued. Labor’s policy is to attempt to conciliate allegations in every

case; only if conciliation fails does it proceed with a fact-finding

investigation.

Page 22 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

NRC Knowledge of Work

Environment

NRC acknowledges that employee identification of problems is an

important part of its system to ensure nuclear power plant safety. NRC also

recognizes that the perception of discrimination may be even more

important than actual findings in terms of affecting employees’ willingness

to report health and safety concerns. Therefore, NRC needs not only factual

findings of discrimination but also a way to measure employee perception

of discrimination.

NRC’s December 1994 OIG report, however, noted that although NRC’s

management of discrimination issues focuses on encouraging licensees to

foster a retaliation-free work environment, NRC has no program to assess

licensees’ work environments except when a serious problem such as a

discrimination suit has already occurred. At about the same time, NRC’s

review team also concluded that NRC did not have a quantitative

understanding of the number of employees who were hesitant to raise

these kinds of concerns. Consequently, the review team commissioned

Battelle Human Affairs Research Center to study methods for credibly

assessing employee feelings about raising health and safety concerns. The

Battelle study recommended a three-part strategy for development,

implementation, and follow-up validation of the results of a mail-out

workforce survey of a sample of nuclear power plants. This approach was

then reflected in the NRC review team report’s recommendation that NRC

develop a survey to assess a licensee’s work environment.

The review team report’s recommendation was prompted, in part, by its

recognition of the limitations of some of the assessments NRC had done in

the past, such as one-on-one interviews of licensee employees conducted

by NRC inspectors. The problem with having NRC inspectors conduct such

interviews was illustrated by a September 1996 NRC-chartered study12 of

how employee concerns and allegations are handled at the Millstone

power plant. This study concluded that NRC inspectors, in general,

understated the extent of the chilling effect at plants and therefore are not

qualified to independently detect or assess the work environment at

licensee facilities. The Millstone report concluded that NRC’s efforts to gain

information on the work environment had not been effective and

furthermore cited NRC’s failure to develop a credible survey instrument as

one example of the lack of progress toward this end that has lowered

public confidence in NRC’s commitment to improve its performance in

addressing employee concerns.

12Millstone Independent Review Group, Handling of Employee Concerns and Allegations at Millstone

Nuclear Power Station Units 1, 2, & 3 From 1985 -Present (Waterford, Conn.: Sept. 1996).

Page 23 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

Nevertheless, NRC’s September 1996 annual report on the status of the

allegation system stated that NRC had decided not to implement the

recommendation to develop a survey instrument. The report cited a staff

recommendation made in November 1994 to not develop a survey because

of the cost to develop and process it and the expectation that other actions

implemented as a result of the review team report would yield the needed

information on work environment.

Because employees’ feelings about how NRC handles its allegations process

would also affect their willingness to raise health or safety concerns, the

review team report recommended that NRC develop a standard form and

include it with alleger close-out correspondence to solicit feedback from

employees on the way NRC handled their allegations. NRC developed the

form and conducted a pilot in December 1995 in which it sent the form to

145 employees; it received feedback from 44. It analyzed comments and

acted to address concerns raised. An NRC official said the agency plans to

again send the form in 1997 to another sample of employees. After

analyzing the 1997 responses, NRC will decide whether to routinely include

the form in all close-out correspondence and thereby fully implement the

recommendation.

In addition, when a finding of discrimination results from an

administrative investigation at Labor, NRC issues a “chilling effect” letter

asking the licensee to describe actions it has taken or plans to take to

remove any chilling effect that may have occurred. The review team and

OIG reports both noted that NRC does little follow-up on the actions

reported by licensees in response to these letters. This follow-up is

necessary not only to verify a licensee’s actions but also to enable NRC to

learn the effect of the discrimination finding on the plant’s work

environment. Both reports also noted that guidance is needed on when

additional NRC action may be necessary if a licensee receives more than

one chilling effect letter over a relatively short period of time because this

may indicate a serious problem at the plant. NRC has issued guidance that

each chilling effect letter should carry an enforcement number so that it

can be tracked, but systematic tracking is not currently done. NRC has not

developed guidance on how it will follow up on licensee actions or on

what actions it should take when a licensee receives multiple chilling

effect letters. NRC officials told us they intend to fully implement the

recommendation to establish follow-up procedures for chilling effect

letters, but they have no schedule for doing so.

Page 24 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

Relief of Financial Burden Allegers and agency officials expressed strong concern about the financial

burden on employees in the current protection process. They attributed

this burden to the extensive time it took to obtain a final decision, during

which the alleger must pay attorney fees and, in some cases, go without

pay.

One NRC review team report recommendation would provide relief through

a statutory change to provide that Labor defend its findings of

discrimination from the initial investigation at the ALJ hearing if Labor’s

decision is appealed by the employer. The review team noted that this

would avoid the perception that the government is leaving the employees

to defend themselves after being retaliated against for raising health and

safety concerns. After soliciting comments on this proposal in the Federal

Register in March 1994 to do by regulation what the recommendation

proposed be done by statute, Labor again stated in a March 26, 1996, letter

to NRC that it supports having this authority. But Labor also stated that

because of the resources needed to meet this added responsibility, if it is

granted, Labor expects to exercise this authority selectively and

cautiously.

The NRC review team report also recommended that the law be amended to

allow employees to be reinstated to their previous positions after the

initial investigation finds discrimination, even if the case is appealed to the

OALJ. Currently, section 211 provides that Labor may order reinstatement

following a public hearing. As of January 1997, NRC was drafting legislation

that would implement this recommendation.

In addition, the review team report recommended that, in certain cases,

NRC should ask the licensee to provide the employee with a holding period

that would maintain or restore pay and benefits until a finding is issued. A

holding period would basically maintain current pay and benefits for the

period between the filing of a discrimination complaint and an initial

administrative finding by Labor. NRC ultimately decided not to require

licensees to establish holding periods. However, a May 1, 1996, policy

statement on licensees’ responsibilities for maintaining a safety-conscious

work environment stated that if a licensee does provide a holding period,

NRC would consider such action as a mitigating factor in any enforcement

decisions if discrimination is found to have occurred. Allegers we

interviewed generally had mixed responses to the holding period

recommendation. Although they generally supported the financial relief

that would be provided, some expressed concern that licensees could

misuse the holding period to remove an employee from operational duties

Page 25 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

when this is not warranted. Both the report and allegers believed

safeguards should be established for the proper implementation of this

recommendation. Licensees also again had reservations about being

required to retain an employee who could later be found to be justifiably

dismissed. While NRC officials told us the agency is considering requesting

the holding period under some conditions, the original position not to

implement the recommendation has not changed.

Increased Penalties The NRC review team report recommended that NRC seek an amendment to

the Atomic Energy Act to increase the civil penalty from $100,000 to

$500,000 a day for each discrimination violation. The maximum penalty in

effect at the time of the report was $100,000,13 established in 1980. This

recommendation was meant to make the civil penalty a more effective

deterrent to licensee discrimination. In May 1994, NRC ordered a review of

the agency’s enforcement process, part of which focused on civil penalty

increases in the context of enforcement. This review concluded that

increasing incentives for strong self-monitoring and corrective action

programs would be better accomplished by revising the overall civil

penalty assessment process than by raising the penalty amounts and that

therefore no increase was needed.14 Recommendations made by the

review team report to revise the assessment process were accepted and

implemented through agency directives. NRC agreed with the report’s

conclusion and decided not to seek an increase in civil penalties.

Allegers and some others we interviewed agreed with the review team

report that a $100,000 penalty was not an effective deterrent. They had

mixed opinions, however, as to whether even an increase to $500,000

would be a sufficient deterrent. Some said the only sanction that really had

an impact on licensees was shutting down a plant. Others said that

negative publicity had a stronger impact than a civil penalty.

The review team report also recommended that NRC make the penalty for

all willful violations15 equal to the penalty currently reserved for the most

13This amount was raised in November 1996 to $110,000 as a result of a mandate by the Congress,

which adjusts all civil penalties periodically for inflation (P.L. 104-134).

14NRC, Assessment of the NRC Enforcement Program, NUREG-1525 (Washington, D.C.: NRC,

Apr. 1995).

15According to NRC, the severity level of a violation may be increased if the circumstances surrounding

the matter involve careless disregard for requirements, deception, or other indications of willfulness.

In determining the specific severity level of a violation involving willfulness, consideration is given to

such factors as the position and responsibilities of the person involved in the violation, the significance

of the underlying violation, the intent of the violator, and the economic or other advantage gained as a

result of the violation. The level of penalty for various offenses is established in NRC Enforcement

Policy, NUREG 1600, July 1995.

Page 26 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

severe violations. For example, under current procedures, discriminatory

actions by a first-line supervisor are considered lesser violations, and

receive lesser penalties, than violations that involve a higher level

manager, even if they are found to be willful violations. For the same

reasons cited for not requesting an increase in civil penalties, NRC decided

not to implement this recommendation.

Conclusions The joint NRC and Labor process for resolving allegations of discrimination

by nuclear licensees against employees who raise health and safety

concerns is intended to discourage discrimination, thereby fostering an

atmosphere in which employees feel free to report hazards. But it is

unrealistic to expect employees to raise such issues if they believe they

may be retaliated against for doing so, the process for seeking restitution

will be expensive and lengthy, and they will receive minimal attention and

support from the federal government. In response to these concerns, both

NRC and Labor have acted on OIG and agency recommendations to enhance

their management of nuclear employee discrimination cases. The resulting

changes should improve monitoring of the process, increase NRC

involvement, and augment licensees’ responsiveness to employee

concerns. However, recommendations that would establish standards for

timely decisions, permit monitoring of individual cases from start to finish

and assessment of overall trends, and enable NRC to measure the work

environment at nuclear plants for raising concerns have not been

implemented.

Improvements in the timeliness of decisions would not only help ensure

that employees feel more comfortable in reporting hazards and expedite

information to NRC for enforcement actions, but also decrease the financial

burden on allegers. At this point, it is unclear whether the time standard

recommended by NRC would decrease that burden sufficiently or whether

other recommendations for decreasing the financial burden would also

need to be implemented to address allegers’ concerns. Nevertheless,

establishing and meeting some standard that prevents cases from

languishing for many years would greatly improve the present system.

Many changes made by NRC were intended to increase its involvement in

the protection system and to make the agency proactive in its role. In

order to do this, NRC needs more knowledge of the process than it has had

in the past. For example, the Agency Allegation Advisor needs a revised

tracking system that will monitor trends so that the agency can address

problems suggested by those trends. Although this revised tracking system

Page 27 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

was recommended over 3 years ago and NRC has begun its implementation,

the system still does not incorporate vital elements. These elements

include current data on cases in the Labor process, data on all settled

cases, and information on NRC headquarters inspection and enforcement. It

is crucial that NRC management follow through to full implementation of

this system so that it can develop trend data for better monitoring and

make better-informed decisions on investigations and enforcement

actions. Including the Labor data, however, will also require commitment

from Labor as well as NRC, and effective coordination between the two

agencies.

Because information from employees on health and safety problems is

critical for NRC to ensure public safety, NRC must know whether employees

at nuclear plants are comfortable raising such concerns. Determining the

existence of a perception is not an easy task and may require the use of

more than one method of gathering information to obtain such knowledge.

Several methods, including surveying, developing indicators to flag

possible problems, tracking cases and settlements in individual plants,

using feedback forms to find out how employees believe their allegations

have been handled, and following up on chilling effect letters have been

recommended to NRC, but none of these methods have been implemented

to date.

Recommendations To improve the timeliness of Labor’s allegations processing, we

recommend that the Secretary of Labor establish and meet realistic

timeliness standards for all three steps in its process for investigating

discrimination complaints by employees in the nuclear power industry.

To improve NRC’s ability to monitor the allegation process, we recommend

that the Chairman, NRC, complete implementation of the NRC review team’s

recommendation to establish and operate the revised Allegation

Management System in all organizational components within NRC. We also

recommend that the Chairman, NRC, and the Secretary of Labor coordinate

efforts to ensure that NRC’s Allegation Management System includes

information on the status of cases at Labor.

To improve NRC’s knowledge of the work environment at nuclear power

plants, we recommend that the Chairman, NRC, ensure the implementation

of recommendations to provide information on the extent to which the

environment in nuclear plants is favorable for employees to report health

or safety hazards without fear of discrimination. This would include

Page 28 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

recommendations on tracking and monitoring allegation cases and

settlements, routinely providing feedback forms in allegation case

close-out correspondence, systematically following up on chilling effect

letters, and using a survey or other systematic method of obtaining

information from employees.

Agency Comments

and Our Evaluation

In commenting on a draft of this report, NRC’s Executive Director for

Operations stated that the report presents an accurate description of the

process for handling discrimination complaints and of NRC’s efforts to

improve in this area. He also provided some specific concerns and

observations and clarified several technical matters in the draft report.

NRC’s comments did not address the recommendations included in the

report. NRC’s comments appear in appendix IV.

We did not receive comments from the Secretary of Labor on our draft

report. The Chairman of the ARB, Labor’s Chief Administrative Law Judge,

the Assistant Secretary for Employee Standards, and a senior program

official in OSHA did, however, provide comments. Comments by these

officials addressed the report’s recommendations about Labor’s timeliness

standards only from the perspective of their individual offices.

The Chairman of the ARB stated that the ARB, as a first step in establishing

performance standards, is currently working with union officials to

overcome the concern that tracking the date an attorney begins work on a

case may constitute an attorney time-keeping requirement. He expects to

resolve this concern soon. The Chairman added that the suggested

timeliness standard of 90 days for ARB to review ERA cases is not realistic

unless the Board severely restricts the parties’ ability to properly brief the

issues presented. ARB’s comments appear in appendix V.

Labor’s Chief Administrative Law Judge stated that our draft report

appeared to provide a fair assessment of NRC’s and Labor’s handling of ERA

cases. He agreed that the suggested timeliness standard of 240 days for

ALJs to hear a case and issue a recommended decision is a reasonable

benchmark, but stated that, in designing any legislation or regulation to

implement the benchmark, several factors should be addressed: (1) in

appropriate circumstances, there must be provisions to extend the time

limit, (2) existing case law conflicts with a strict time limit on discovery

and hearing, and (3) timeliness standards are only reasonable if the

responsible agency has adequate staff. He also pointed out that ALJs are

currently directed to provide NRC information on ERA discrimination cases,

Page 29 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675 

information on all ALJ decisions is available on the OALJ Home Page on the

World Wide Web, and, if requested, OALJ will work with NRC to improve its

monitoring program. OALJ’s comments on our draft report appear in

appendix VI.

The Assistant Secretary of Labor for Employee Standards commented that

the primary purpose of reassigning initial investigations from the Wage

and Hour Division to OSHA was part of an exchange of responsibilities.

Before the reassignment, OSHA had responsibility for the employee

protection, or “whistleblower,” provisions of certain laws and the staff

devoted to the enforcement of these provisions. Wage and Hour was

responsible for certain employee protections affecting farm workers and

made field sanitation inspections as part of its regular investigations.

These responsibilities were exchanged in order to better use program

expertise and promote effective and efficient use of resources. The

Assistant Secretary also clarified several technical matters in the draft

report. The Employment Standards Administration’s comments on our

draft report appear in appendix VII.

A senior OSHA headquarters official responsible for overseeing OSHA

investigations of employment discrimination commented that, since OSHA

had only recently been assigned responsibility for conducting these

investigations, our report should state that almost all the initial Labor

investigations discussed were conducted by the Wage and Hour Division.

We have considered these comments and revised our report as necessary.

As agreed with your office, we will make no further distribution of this

report until 15 days from the date of this letter. At that time, we will send

copies to interested congressional committees, the Secretary of Labor, and

the Chairman of NRC. We will make copies available to others on request.

If you have questions about this report, please call me on (202) 512-7014.

Other GAO contacts and staff acknowledgments are listed in appendix VIII.

Carlotta C. Joyner

Director, Education and

 Employment Issues

Page 30 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Page 31 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Contents

Letter 1

Appendix I 

Scope and

Methodology

36

Appendix II 

Status of

Recommendations in

the NRC Review Team

Report

38

Recommendations Implemented 38

Recommendations Partially Implemented 48

Recommendations Not Implemented 50

Appendix III 

Status of

Recommendations

From the Labor OIG’s

Report, May 1993

52

Appendix IV 

Comments From the

Nuclear Regulatory

Commission and Our

Evaluation

54

Appendix V 

Comments From the

Administrative

Review Board,

Department of Labor

60

Page 32 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Contents

Appendix VI 

Comments From the

Office of

Administrative Law

Judges, Department of

Labor

62

Appendix VII 

Comments From the

Employment

Standards

Administration,

Department of Labor,

and Our Evaluation

65

Appendix VIII 

GAO Contacts and

Staff

Acknowledgments

69

Figures Figure 1: Joint NRC-Labor Process for Action on Allegations of

Discrimination by Nuclear Power Industry Employees Who Raise

Health and Safety Concerns

10

Figure 2: Percentage of Wage and Hour Division Investigations

Completed Within the Current and Proposed Statutory Time

Frames in Recent Years

18

Figure 3: Percentage of OALJ’s Recommended Decisions

Completed Within the Proposed Statutory Time Frame in Recent

Years

20

Figure 4: Percentage of Secretary of Labor Decisions Completed

Within the Proposed Statutory Time Frame in Recent Years

21

Page 33 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Contents

Abbreviations

ALJ administrative law judge

ARB Administrative Review Board

ERA Energy Reorganization Act

NRC Nuclear Regulatory Commission

OAA Office of Administrative Appeals

OALJ Office of Administrative Law Judges

OIG Office of Inspector General

OSHA Occupational Safety and Health Administration

TVA Tennessee Valley Authority

Page 34 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Page 35 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix I 

Scope and Methodology

To determine the legal protection afforded employees in the nuclear

power industry who claim they have been discriminated against for raising

health or safety concerns, we reviewed the employee protection

provisions of the Energy Reorganization Act (ERA), as amended, and the

Atomic Energy Act of 1954. We also examined the legislative history of

these provisions. We examined federal regulations relating to Labor’s

handling of employee complaints under the ERA, and to NRC’s protection of

employees from discrimination by licensees. We also examined the

appropriate sections of NRC’s and Labor’s procedure manuals and

management directives. We discussed the provisions of these laws and

regulations with NRC officials in headquarters and NRC regions I, II, and IV

and with Labor officials in headquarters and in the Philadelphia, Atlanta,

and Dallas regions. Finally, we obtained and examined regional directives

for the management of allegation cases from the three NRC regional offices

we visited.

We asked NRC and Labor officials, as well as employees who had filed

discrimination complaints, licensees, and attorneys who represented them,

to identify studies of the process for resolving cases of alleged

discrimination. We reviewed those generally acknowledged to be the

major studies related to the process.16 We discussed the status of the

recommendations included in these reports with cognizant officials in

Labor and NRC and examined available documentary support. We did not

independently assess the merit of specific recommendations made in these

reports nor audit actual agency implementation of the recommendations.

In order to measure the effects of the recommendations on the timeliness

of the system, we gathered information on cases closed at each stage of

Labor’s process between October 1993 and June 1996. We chose to begin

our analysis with October 1, 1993, since that would cover the impact of

changes made to the process as a result of the studies we reviewed.

Furthermore, NRC’s OIG had already reported on cases through April 1993.

Specifically, we selected and analyzed the cases as follows:

16Studies we reviewed included NRC, Reassessment of the NRC’s Program for Protecting Allegers

Against Retaliation (Washington, D.C.: NRC, Jan. 7, 1994); Department of Labor, OIG, Audit of the

Office of Administrative Appeals, Report No. 17-93-009-01-010 (Washington, D.C.: Department of

Labor, May 19, 1993); NRC, OIG, Review of NRC’s Allegation Management System, IG/91A-07

(Washington, D.C.: NRC, Apr. 3, 1992); NRC, OIG, NRC Response to Whistleblower Retaliation

Complaints, Case No. 92-01N (Washington, D.C.: NRC, July 9, 1993); NRC, OIG, Assessment of NRC’s

Process for Protecting Allegers From Harassment and Intimidation, Case 93-07N (Washington, D.C.:

NRC, Dec. 15, 1993); and NRC, OIG, Implementation of Recommendations to Improve NRC’s Program

for Protecting Allegers Against Retaliation, Case No. 96-01S (Washington, D.C.: NRC, Mar. 5, 1996).

Page 36 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix I 

Scope and Methodology

• We obtained automated records from the Wage and Hour Division in

Washington, D.C., on all “whistleblower” cases closed between October 1,

1993, and February 28, 1996. We did not independently validate the

accuracy or completeness of these records. Since we could not always

determine the whistleblower laws under which discrimination complaints

were filed, we asked Labor to contact field personnel to identify the cases

filed under the ERA. We later obtained data covering a more recent

period—March 1, 1996, through June 30, 1996. We also obtained data on 11

ERA cases investigated by OSHA investigators in a pilot project during this

period.

• We obtained a listing of all ERA cases that had received a recommended

order between October 1, 1993, and June 30, 1996. We reviewed the

timeliness and outcomes of these cases using information posted by the

Office of Administrative Law Judges on the World Wide Web.

• We compiled a listing of all cases that had received a Secretary of Labor

decision by using information provided by Labor and NRC for the same

period.

In addition, we discussed with numerous knowledgeable individuals issues

concerning protection of nuclear power industry employees who have

raised safety concerns. We spoke with Labor and NRC officials both in

headquarters and in the field who had responsibilities relevant to the

discrimination complaint process. To obtain the perspective of employees

and licensees, we visited two nuclear power plants and, at those facilities

and elsewhere, spoke with (1) 10 nuclear industry employees who had

filed discrimination complaints with Labor, NRC, or both, including

members of the National Nuclear Safety Network;17 (2) 8 attorneys who

have represented employees and licensees in the process; (3) officials of 3

nuclear licensees that have been the subject of numerous discrimination

complaints; and (4) officials of the Nuclear Energy Institute, a nuclear

power industry association.

We performed our work between January and December 1996 in

accordance with generally accepted government auditing standards.

17The National Nuclear Safety Network is a group of individuals concerned about the safety of nuclear

plants. Members include employees who have raised safety concerns and their attorneys, as well as

other interested parties.

Page 37 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix II 

Status of Recommendations in the NRC

Review Team Report

This appendix lists the recommendations from NRC’s January 7, 1994,

report, Report of the Review Team for Reassessment of the NRC’s Program

for Protecting Allegers Against Retaliation, and the agency action taken on

each. The recommendations have been divided into three categories:

implemented, partially implemented, and not implemented. The

recommendations are identified with the same number used in the NRC

report, to allow for cross-referencing.

Recommendations

Implemented

Recommendation II.A-1 The Commission should issue a policy statement emphasizing that it is

important for licensees and their contractors to achieve and maintain a

work environment conducive to prompt, effective problem identification

and resolution, in which employees feel free to raise concerns both to

management and to NRC without fear of retaliation

Action A final policy statement implementing this recommendation was published

in the Federal Register on May 1, 1996.

Recommendation II.A-2 The Commission policy statement proposed in recommendation II.A-1

should include the following:

• licensees should have a means to raise issues internally outside the normal

process and

• employees (including contractor employees) should be informed how to

raise concerns through the normal processes, alternative internal

processes, and directly to NRC.

Action The final policy statement implementing this recommendation was

published in the Federal Register on May 1, 1996.

Recommendation II.A-3 Regulations in 10 C.F.R. part 19 should be reviewed for clarity to ensure

consistency with the Commission’s employee protection regulations.

Action A final rule revising 10 C.F.R. part 19 was issued in February 1996.

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Status of Recommendations in the NRC

Review Team Report

Recommendation II.A-4 The policy statement proposed in recommendation II.A-1 should

emphasize that licensees (1) are responsible for having their contractors

maintain an environment in which contractor employees are free to raise

concerns without fear of retaliation and (2) should incorporate this

responsibility into applicable contract language.

Action The final policy statement implementing this recommendation was

published in the Federal Register on May 1, 1996.

Recommendation II.B-1 NRC should incorporate consideration of the licensee environment for

problem identification and resolution, including raising concerns, into the

Systematic Assessment of Licensee Performance process.

Action The final revised Management Directive 8.6, which was issued on

January 27, 1995, includes consideration of the work environment in the

Systematic Assessment of Licensee Performance process. However, an

independent agency team that reviewed NRC actions at the Millstone plant

looked at the results of NRC inspections on work environment and reported

that NRC inspectors generally are not qualified to assess environment and

that, therefore, the results of these assessments were not reliable.

Recommendation II.B-2 NRC should develop inspection guidance for identifying problem areas in

the work place where employees may be reluctant to raise concerns or

provide information to NRC. This guidance should also address how such

information should be developed and channeled to NRC management.

Action NRC Inspection Procedure 40500 was revised accordingly in October 1994.

Recommendation II.B-4 Allegation follow-up sensitivity and responsiveness should be included in

performance appraisals for appropriate NRC staff and managers.

Action The elements and standards in NRC’s employee performance appraisals

were revised to implement this recommendation as of October 1995.

Recommendation II.B-5 NRC should place additional emphasis on periodic training for appropriate

NRC staff on the role of allegations in the regulatory process, and on the

processes for handling allegations.

Page 39 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix II 

Status of Recommendations in the NRC

Review Team Report

Action Refresher training has been required annually since May 1996.

Recommendation II.B-6 NRC should develop a readable, attractive brochure for industry employees.

The brochure should clearly present a summary of the concepts, NRC

policies, and legal processes associated with raising technical and

harassment and intimidation concerns. It should also discuss the practical

meaning of employee protection, including the limitations on NRC and

Labor actions. In addition, NRC should consider developing more active

methods of presenting this information to industry employees.

Action The brochure was issued in November 1996.

Recommendation II.B-7 Management Directive 8.8 should include specific criteria and time frames

for initial and periodic feedback to allegers, in order to measure consistent

agency practice.

Action The criteria and time frames were incorporated in Management Directive

8.8 as of May 1, 1996, and audits have been conducted to ensure

compliance.

Recommendation II.B-9 NRC should designate a full-time senior individual for centralized

coordination and oversight of all phases of allegation management as the

Agency Allegation Manager, with direct access to the Executive Director

for Operations, program office directors, and regional administrators.

Action The position of Agency Allegation Advisor was filled on February 6, 1995,

and the Advisor issued the first annual report on the allegation program to

the Executive Director for Operations in September 1996.

Recommendation II.B-10 All program office and regional office allegation coordinators should

participate in periodic counterpart meetings.

Action Three meetings have taken place, and continued annual meetings are

planned.

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Appendix II 

Status of Recommendations in the NRC

Review Team Report

Recommendation II.B-11 The Agency Allegation Manager should conduct periodic audits of the

quality and consistency of review panel decisions, allegation referrals,

inspection report documentation, and allegation case files.

Action Two rounds of audits have been completed, and audits will be conducted

annually to implement this recommendation.

Recommendation II.B-12 Criteria for referring allegations to licensees should be clarified to ensure

consistent application among review panels, program offices, and the

regions.

Action The criteria were clarified in Management Directive 8.8, issued May 1,

1996.

Recommendation II.B-15 NRC should periodically publish raw data on the number of technical and

harassment and intimidation allegations (for power reactor licensees, this

should be per site, per year).

Action A report containing these data, Office for Analysis and Evaluation of

Operational Data, Annual Report, FY 1994-95: Reactors, was issued in

July 1996.

Recommendation II.B-16 NRC should resolve any remaining policy differences between the Office of

Investigations and the Office of Nuclear Reactor Regulation on protecting

the identity of allegers (including confidentiality agreements) in inspection

and investigation activities.

Action Alleger protection was defined in the revised Management Directive 8.8

and in the revised NRC policy statement of May 1996, which implemented

the recommendation.

Recommendation II.B-17 Regional offices should provide toll-free 800 numbers for individuals to

use in making allegations.

Action A toll-free number was activated on October 1, 1995.

Page 41 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix II 

Status of Recommendations in the NRC

Review Team Report

Recommendation II.C-1 The Commission should support current consideration within Labor to

transfer section 211 implementation from the Wage and Hour Division to

OSHA.

Action The order to transfer section 211 cases to OSHA was signed by the

Secretary of Labor in December 1996 for implementation on February 3,

1997; NRC supported this change.

Recommendation II.C-3 NRC should recommend to the Secretary of Labor that adjudicatory

decisions under section 211 be published in a national reporting or

computer-based system.

Action Office of Administrative Law Judges (OALJ) and Secretary of Labor

decisions are now available on the World Wide Web.

Recommendation II.C-4 NRC should take a more active role in the Labor process. Consistent with

relevant statutes, Commission regulations, and agency resources and

priorities, NRC should normally make available information, agency

positions, and agency witnesses that may assist in completing the

adjudication record on discrimination issues. Such disclosures should be

made as part of the public record. NRC should consider filing amicus curiae

briefs, where warranted, in Labor adjudicatory proceedings.

Action NRC’s Executive Director for Operations issued the revised criteria for use

by the staff in October 1995. Management Directive 8.8, issued in

May 1996, contains revised guidance on this issue.

Recommendation II.C-5 NRC should designate the Agency Allegation Manager as the focal point to

assist people in requesting NRC information, positions, or witnesses

relevant to Labor litigation under section 211 (or state court litigation

concerning wrongful discharge issues). Information on this process, and

on how to contact the NRC focal point, should be included in the brochure

for industry employees (see recommendation II.B-6).

Action This responsibility was given to the Agency Allegation Advisor through

Management Directive 8.8 as of May 1996.

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Appendix II 

Status of Recommendations in the NRC

Review Team Report

Recommendation II.C-7 NRC should revise the criteria for prioritizing NRC investigations involving

discrimination. The following criteria should be considered for assigning a

high investigation priority: (1) allegations of discrimination as a result of

providing information directly to the NRC; (2) allegations of discrimination

caused by a manager above first-line supervisor (consistent with current

Enforcement Policy classification of severity level I or II violations);

(3) allegations of discrimination where a history of findings of

discrimination (by Labor or NRC) or settlements suggests a programmatic

rather than an isolated issue; and (4) allegations of discrimination that

appear particularly blatant or egregious.

Action Management Directive 8.8, issued in May 1996, implemented this

recommendation.

Recommendation II.C-8 NRC investigators should continue to interface with Labor to minimize

duplication of effort on parallel investigations. Where NRC is conducting

parallel investigations with Labor, Office of Investigations procedures

should provide that its investigators contact Labor on a case-by-case basis

to share information and minimize duplication of effort. Labor’s process

should be monitored to determine if NRC investigations should be

conducted or continued, or priorities changed. In that regard, settlements

should be given special consideration.

Action This recommendation was implemented through the Investigation

Procedure Manual, section 3.2.2.10.1.

Recommendation II.C-9 When an individual who has not yet filed with Labor brings a harassment

and intimidation allegation to NRC, NRC should inform the person (1) that a

full-scale investigation will not necessarily be conducted; (2) that Labor

and not NRC provides the process for obtaining restitution; and (3) of the

method for filing a complaint with Labor. If, after the Allegation Review

Board review, the Office of Investigations determines that an investigation

will not be conducted, the individual should be so informed.

Action Guidance in Management Directive 8.8, as of May 1996, implemented this

recommendation.

Recommendation II.C-10 The Office of Investigations should discuss cases involving section 211

issues with the Department of Justice as early as appropriate so that a

Page 43 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix II 

Status of Recommendations in the NRC

Review Team Report

prompt Justice declination, if warranted, can allow information acquired

by the Office of Investigations to be used in the Labor process.

Action The Investigation Procedure Manual, section 8.2.3, implemented this

recommendation.

Recommendation II.C-11 The implementation of the Memorandum of Understanding with the

Tennessee Valley Authority (TVA) Inspector General should be

reconsidered following the completion of the ongoing review.

Action The Memorandum of Understanding with TVA was terminated on

August 30, 1994.

Recommendation II.D-1 For cases that are appealed and result in Labor administrative law judge

(ALJ) adjudication, NRC should continue the current practice of initiating

the enforcement process following a finding of discrimination by the ALJ.

However, the licensee should be required to provide the normal response

required by 10 C.F.R. 2.201.

Action This recommendation was implemented through a revision to the

Enforcement Policy on December 31, 1994.

Recommendation II.D-2 Additional severity level II examples should be added to the Enforcement

Policy to address hostile work environments and discrimination in cases

where the protected activity involved providing information of high safety

significance. The policy should recognize restrictive agreements and

threats of discrimination as examples of violations at least at a severity

level III. It should also provide that less significant violations involving

discrimination issues be categorized at a severity level IV.

Action This recommendation was implemented through a revision to the

Enforcement Policy on December 31, 1994.

Recommendation II.D-5 The Enforcement Policy should be changed, for civil penalty cases

involving discrimination violations, to normally allow mitigation only for

corrective action. Mitigation for corrective action should be warranted

only when it includes both broad remedial action as well as restitution to

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Appendix II 

Status of Recommendations in the NRC

Review Team Report

address the potential chilling effect. Mitigation or escalation for correction

should consider the timing of the corrective action.

Action A final revision of the Enforcement Policy in November 1994 implemented

this recommendation.

Recommendation II.D-6 For violations involving discrimination issues not within the criteria for a

high priority investigation (see recommendation II.C-7) citations should

not normally be issued nor NRC investigations conducted if

(1) discrimination, without a complaint being filed with Labor or an

allegation made to NRC, is identified by the licensee and corrective action

is taken to remedy the situation or (2) after a complaint is filed with Labor,

the matter is settled before an evidentiary hearing begins, provided the

licensee posts a notice that (a) a discrimination complaint was made, (b) a

settlement occurred, and (c) if Labor’s investigation found discrimination,

remedial action has been taken to reemphasize the importance of the need

to be able to raise concerns without fear of retaliation.

Action The Enforcement Policy was revised on November 28, 1994, to implement

this recommendation.

Recommendation II.D-7 In taking enforcement actions involving discrimination, use of the

deliberate misconduct rule for enforcement action against the responsible

individual should be considered.

Action This recommendation was implemented through a revision to the

Enforcement Policy on December 31, 1994.

Recommendation II.E-1 Regional administrators and office directors should respond to credible

reports of reasonable fears of retaliation, when the individual is willing to

be identified, by holding documented meetings or issuing letters to notify

senior licensee management that NRC (1) has received information that an

individual is concerned that retaliation may occur for engaging in

protected activities; (2) will monitor actions taken against this individual;

and (3) will consider enforcement action if discrimination occurs,

including applying the wrongdoer rule.

Action This recommendation was implemented through guidance in Management

Directive 8.8 issued in May 1996.

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Appendix II 

Status of Recommendations in the NRC

Review Team Report

Recommendation II.E-2 Before contacting a licensee as proposed in recommendation II.E-1, NRC

should (1) contact the individual to determine whether he or she objects

to disclosure of his or her identity and (2) explain to the individual the

provisions of section 211 and the Labor process (e.g., that it is Labor and

not NRC that provides restitution.)

Action This recommendation was implemented through guidance in Management

Directive 8.8 issued in May 1996.

Recommendation II.E-3 The Commission should include in its policy statement (as proposed in

recommendation II.A-1) expectations for licensees’ handling of complaints

of discrimination as follows: (1) Senior management of licensees should

become directly involved in allegations of discrimination. (2) Power

reactor licensees and large fuel cycle facilities should be encouraged to

adopt internal policies providing a holding period for their employees and

contractors’ employees that would maintain or restore pay and benefits

when the licensee has been notified by an employee that, in the

employee’s views, discrimination has occurred. This voluntary holding

period would allow the licensee to investigate the matter, reconsider the

facts, negotiate with the employee, and inform the employee of the final

decision. After the employee has been notified of the licensee’s final

decision, the holding period should continue for an additional 2 weeks to

allow a reasonable time for the employee to file a complaint with Labor. If

the employee files within that time, the licensee should continue the

holding period until the Labor finding is made on the basis of an

investigation. If the employee does not file with Labor within this 2-week

period, then the holding period would terminate. (Notwithstanding this

limitation on the filing of a complaint with Labor to preserve the holding

period, the employee clearly would retain the legal right to file a complaint

with Labor within 180 days of the alleged discrimination). The holding

period should continue should the licensee appeal an adverse Labor

investigative finding. NRC would not consider the licensee’s use of a

holding period to be discrimination even if the person is not restored to his

or her former position, provided that the employee agrees to the

conditions of the holding period and that pay and benefits are maintained.

(3) Should it be determined that discrimination did occur, the licensee’s

handling of the matter (including the extent of its investigation, its effort

to minimize the chilling effect, and the promptness of providing restitution

to the individual) would be considered in any associated enforcement

action. While not adopting a holding period would not be considered an

Page 46 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix II 

Status of Recommendations in the NRC

Review Team Report

escalation factor, use of a holding period would be considered a mitigating

factor in any sanction.

Action An NRC policy statement published in May 1996 implemented this

recommendation.

Recommendation II.E-4 In appropriate cases, the Executive Director for Operations (or other

senior NRC management) should notify the licensee’s senior management

by letter, noting that NRC has not taken a position on the merits of the

allegation but emphasizing the importance NRC places on a

quality-conscious environment where people believe they are free to raise

concerns, and the potential for adverse impact on this environment if the

allegation is not appropriately resolved; requesting the personal

involvement of senior licensee management in the matter to ensure that

the employment action taken was not prompted by the employee’s

involvement in protected activity, and to consider whether action is

needed to address the potential for a chilling effect; requiring a full report

of the actions that senior licensee management took on this request within

45 days; and noting that the licensee’s decision to adopt a holding period

will be considered as a mitigating factor in any enforcement decision

should discrimination be determined to have occurred.

In such cases, prior to issuing the letter the employee should be notified

that (a) Labor and not NRC provides restitution and (b) NRC will be sending

a letter revealing the person’s identity to the licensee, requiring an

explanation from the company and requesting a holding period in

accordance with the Commission’s policy statement.

Action NRC’s policy statement and the revision of Management Directive 8.8 in

May 1996 implemented this recommendation. Regarding the 45-day time

limit of this recommendation, although NRC has not established this

requirement in the Management Directive, an official told us the agency

does, in fact, give licensees a time limit within which they must reply.

Recommendation II.E-6 A second investigative finding of discrimination within an 18-month period

should normally result in a meeting between the licensee’s senior

management and the NRC Regional Administrator.

Action The Enforcement Manual was revised on December 31, 1994, to include

this wording.

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Appendix II 

Status of Recommendations in the NRC

Review Team Report

Recommendation II.E-7 If more than two investigative findings of discrimination occur within an

18-month period, NRC should consider stronger action, including issuing a

Demand for Information.

Action The Enforcement Manual was revised on December 31, 1994, to include

this wording.

Recommendations

Partially Implemented

Recommendation II.B-8 NRC should develop a standard form to be included with alleger close-out

correspondence to solicit feedback on NRC’s handling of a given concern.

Action NRC developed a feedback form that it sent to a sample of allegers in

December 1995, and it plans to send the form again to another sample in

1997. After that survey, the agency will decide whether to provide

feedback forms routinely with close-out correspondence.

Recommendation II.B-13 NRC should revise the Allegation Management System to be able to trend

and monitor an allegation from receipt to the completion of agency action.

Action On November 1, 1996, NRC installed a revised Allegation Management

System in the regional offices. The system is not yet linked to the Office of

Investigations and Office of Enforcement information systems, but NRC

plans to do this. Because the system was so recently installed and is not

fully linked, monitoring trends through the new system has not yet begun.

Recommendation II.B-14 Using the Allegation Management System, NRC should monitor both

harassment and intimidation and technical allegations to discern trends or

sudden increases that might justify its questioning the licensee as to the

root causes of such changes and trends. This effort should include

monitoring contractor allegations—both those arising at a specific

licensee and those against a particular contractor across the country.

Action As described for recommendation II.B-13, the system was just recently

installed, and more time needs to pass before trends can be tracked using

the new system.

Page 48 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix II 

Status of Recommendations in the NRC

Review Team Report

Recommendation II.C-2 The Commission should support legislation to amend section 211 as

follows: (1) revising the statute to provide 120 days from the filing of the

complaint to conduct the Labor investigation, 30 days from the

investigation finding to request a hearing, 240 additional days to issue an

ALJ decision, and 90 days for the Secretary of Labor to issue a final

decision, thus allowing a total of 480 days from when the complaint is filed

to complete the process; (2) revising the statute to provide that

reinstatement decisions be immediately effective following a Labor finding

based on an administrative investigation; (3) revising the statute to provide

that Labor defend its findings of discrimination and ordered relief in the

adjudicatory process if its orders are contested by the employer (this

would not preclude the complainant from also being a party in the

proceeding).

Action Legislation has been drafted by NRC and submitted for Labor’s review and

approval before submission to the Congress for (1) and (2). The

recommendation on Labor’s defense of allegers at the ALJ hearing (3) is

awaiting the Secretary’s signature, but implementation would be selective,

depending on resource availability.

Recommendation II.C-6 NRC should work with Labor to establish a shared database to track Labor

cases.

Action This action was delayed pending the transfer of section 211 duties from

the Wage and Hour Division to OSHA. The transfer took place on

February 3, 1997, and NRC and OSHA are currently discussing how to

implement this recommendation.

Recommendation II.E-5 NRC should usually issue a chilling effect letter if a licensee contests a

Labor area office finding of discrimination and a holding period is not

adopted. A letter would not be needed if section 211 is amended to provide

for reinstatement following a Labor administrative finding of

discrimination. When a chilling effect letter is issued, appropriate

follow-up action should be taken. (See recommendations II.E-3 and II.C-2.)

Action A revision to the Enforcement Manual on December 31, 1994, requires that

NRC assign an enforcement number to each chilling effect letter sent.

Systematic tracking by NRC has been started, but guidance for follow-up

actions and monitoring of trends in plants has not been issued.

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Status of Recommendations in the NRC

Review Team Report

Recommendation II.E-8 NRC should consider action when there is a trend in settlements without

findings of discrimination.

Action The Enforcement Manual was revised on December 31, 1994, to implement

this recommendation.

Recommendations

Not Implemented

Recommendation II.B-3 NRC should develop a survey instrument to independently and credibly

assess a licensee’s environment for raising concerns.

Action This recommendation will not be implemented, according to NRC’s Annual

Report on the Allegations Program, September 1996, because of

disagreement among NRC staff about its effectiveness. A current staff

proposal, however, contains actions to partially implement the

recommendation.

Recommendation II.D-3 The Commission should seek an amendment to section 234 of the Atomic

Energy Act of 1954 to provide for a civil penalty of up to $500,000 per day

for each violation. If this provision is enacted, the Enforcement Policy

should be amended to provide that this increased authority should usually

be used only for willful violations, including those involving

discrimination.

Action This recommendation will not be implemented because NRC believes that

increasing incentives for strong self-monitoring and corrective action

programs would be better accomplished by revising the overall civil

penalty assessment process than by raising civil penalty amounts.

Recommendation II.D-4 Pending an amendment to section 234 of the Atomic Energy Act, the

flexibility in the enforcement policy should be changed to provide that the

base penalty for willful violations involving discrimination, regardless of

severity level, should be the amount currently specified for a severity level

I violation.

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Review Team Report

Action This recommendation will not be implemented because NRC believes that

increasing incentives for strong self-monitoring and corrective action

programs would be better accomplished by revising the overall civil

penalty assessment process than by raising civil penalty amounts.

Recommendation II.E-4(3) The Executive Director for Operations or another senior official at NRC

should request, in appropriate cases, that the licensee place an employee

in a holding period as described in the Commission’s policy statement (see

recommendation II.E-3).

Action This part of recommendation II.E-4 will not be implemented, according to

NRC’s Annual Report on the Allegations Program, September 1996;

however, a staff proposal is being considered that would implement it.

Page 51 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix III 

Status of Recommendations From the Labor

OIG’s Report, May 1993

This appendix contains the recommendations and their implementation

status from the Labor OIG’s May 1993 report, Audit of the Office of

Administrative Appeals.

18

Recommendation The Director of the Office of Administrative Appeals (OAA) should conduct

an immediate review of cases pending in OAA to resolve the issues that

have prevented these cases from being completed and bring these cases to

completion as quickly as possible.

Action OAA has cleared the backlog of cases, thus implementing this

recommendation.

Recommendation The Director of OAA should establish timeliness standards for OAA’s case

processing and the issuance of decisions, which will meet the

requirements of due process, the intent of the Administrative Procedures

Act, and customer service expectations of the Secretary.

Action Action on this recommendation is pending. The Director is currently

involved in discussions to obtain agreement on timeliness standards.

Recommendation The Director of OAA should develop and implement management

information systems to include case management and time distribution

data.

Action The agency has developed and implemented a management information

system for cases.

Recommendation The Director of OAA should conduct analysis to identify operation changes

and resource requirements necessary to achieve and maintain compliance

with the newly established case processing standards and present that

information in OAA’s planning and budgeting documents.

18Report No. 17-93-009-01-010 (Washington, D.C.: Department of Labor, May 19, 1993). As previously

mentioned, the Office of Administrative Appeals function is now performed by the Administrative

Review Board in the Department of Labor.

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Status of Recommendations From the Labor

OIG’s Report, May 1993

Action Action is pending. Because timeliness standards have not been

established, resource needs cannot be evaluated.

Page 53 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix IV 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

Note: GAO comments

supplementing those in the

report text appear at the

end of this appendix.

Page 54 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix IV 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

Now on p. 2.

See comment 1.

Now on p. 3.

See comment 1.

Now on p. 4.

See comment 1.

Now on p. 10.

See comment 2.

Now on p. 11.

See comment 2.

Now on p. 12.

See comment 1.

Now on p. 12.

See comment 1.

Page 55 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
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Commission and Our Evaluation

Now on p. 13.

See comment 3.

Now on pp. 13-14.

See comment 1.

Now on p. 14.

See comment 1.

Now footnote 10.

See comment 1.

Now on p. 17.

See comment 1.

Page 56 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
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Commission and Our Evaluation

Now on p. 22.

See comment 1.

Now on p. 22.

See comment 1.

Now on p. 22.

See comment 1.

Now on p. 22.

See comment 1.

Now on p. 22.

See comment 4.

Page 57 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix IV 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

Now on p. 25.

See comment 1.

Now on p. 26.

See comment 5.

Now on p. 26.

See comment 1.

Now on p. 28.

See comment 1.

Now on p. 42.

See comment 1.

Now on p. 44.

See comment 1.

Now on p. 48.

See comment 1.

Now on p. 49.

See comment 1.

See comment 6.

Page 58 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix IV 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

The following are GAO’s comments on the Nuclear Regulatory

Commission’s letter dated February 21, 1997.

GAO Comments 1. Wording revised.

2. Figure revised as suggested.

3. Discussion of when civil penalties are imposed was deleted from this

section.

4. Comment not incorporated. According to Labor procedures, NRC is

supposed to receive copies of settlement agreements. We did not obtain

evidence on whether these procedures were followed.

5. Incorporated as footnote 14.

6. Corrections made.

Page 59 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix V 

Comments From the Administrative Review

Board, Department of Labor

Page 60 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix V 

Comments From the Administrative Review

Board, Department of Labor

Page 61 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VI 

Comments From the Office of

Administrative Law Judges, Department of

Labor

Page 62 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VI 

Comments From the Office of

Administrative Law Judges, Department of

Labor

Page 63 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VI 

Comments From the Office of

Administrative Law Judges, Department of

Labor

Page 64 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VII 

Comments From the Employment Standards

Administration, Department of Labor, and

Our Evaluation

Note: GAO comments

supplementing those in the

report text appear at the

end of this appendix.

Page 65 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VII 

Comments From the Employment Standards

Administration, Department of Labor, and

Our Evaluation

Now on p. 1.

See comment 1.

Now on p. 3.

See comment 2.

Now on p. 3.

See comment 1.

Now on p. 4.

See comment 1.

Now on p. 3.

See comment 1.

Page 66 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VII 

Comments From the Employment Standards

Administration, Department of Labor, and

Our Evaluation

Now on p. 7.

See comment 3.

Now on p. 15.

See comment 1.

Now on p. 49.

See comment 1.

Page 67 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VII 

Comments From the Employment Standards

Administration, Department of Labor, and

Our Evaluation

The following are GAO’s comments on the Assistant Secretary of Labor for

Employee Standard’s letter dated February 27, 1997.

GAO Comments 1. Wording revised.

2. Wording unchanged. We believe that the description of the process in

the preceding paragraph adequately conveys that there may be several

actions involved at Labor.

3. Wording unchanged. Although the regulation does not specifically state

that the 90-day time frame can be waived, current procedures have the

same effect as waiving the time frame: Cases are not completed in 90 days.

We do not disagree with the Assistant Secretary’s comment that the Wage

and Hour Division completed the investigative phase as quickly as

possible.

Page 68 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VIII 

GAO Contacts and Staff Acknowledgments

GAO Contacts Larry Horinko, Assistant Director, (202) 512-7001

Bob Sampson, Senior Evaluator, (202) 512-7251

Staff

Acknowledgments

In addition to those named above, the following individuals made

important contributions to this report: Joan Denomme and Mary Roy

gathered and analyzed essential information and drafted the report;

Elizabeth Morrison contributed extensively to development and

presentation of the report’s message; and Gary Boss and Philip Olson

provided technical advice concerning Nuclear Regulatory Commission

activities.

(205314) Page 69 GAO/HEHS-97-51 Nuclear Employee Safety Concerns
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