United States General Accounting Office

GAO Report to the Chairman, Subcommittee

on Oversight and Investigations,

Committee on Commerce, House of

Representatives

September 1997 NUCLEAR POWER

SAFETY

Industry Concerns

With Federal

Whistleblower

Protection System

GAO/HEHS-97-162

GAO United States

General Accounting Office

Washington, D.C. 20548

Health, Education, and

Human Services Division

B-275364 

September 2, 1997

The Honorable Joe Barton

Chairman, Subcommittee on Oversight

 and Investigations

Committee on Commerce

House of Representatives

Dear Mr. Chairman:

Few issues have so engaged the attention of nuclear industry regulators

and industry officials as the operation of the federal system to protect

employees who raise safety concerns. The actions that a utility takes in

response to employee concerns affect its reputation with regulators,

which, in turn, influences the amount of trust that regulators afford the

utility when employee allegations are made against it. This is especially

true for a utility that is a regulated organization licensed to operate a

nuclear reactor—a “licensee.” The Nuclear Regulatory Commission (NRC),

as the government agency responsible for the regulation of the nuclear

power industry, asserts that establishing and maintaining a

safety-conscious work environment that encourages employees to identify

and help resolve concerns is crucial for maintaining plant safety.

Protection processes were established within NRC and the Department of

Labor to encourage nuclear industry employees to raise safety concerns

with their employers or with NRC or others without fear of discrimination.

Section 211 (formerly section 210) of the Energy Reorganization Act of

1974 (ERA), as amended (42 U.S.C. 5851), makes it unlawful for an

employer to discriminate against an employee who has “blown the

whistle” by engaging in one or more “protected activities” related to

reporting safety concerns.1

Some members of the Congress recently expressed concern that the laws,

as implemented by NRC and Labor, have not adequately protected nuclear

power industry workers who raise health and safety issues. Our report

1

The terms “blowing the whistle” and “whistleblower” are used throughout the industry to refer to

voicing a safety concern or alleging a safety problem. The six specific protected activities listed in the

act are notifying an employer of an alleged violation of the ERA or the 1954 Atomic Energy Act (AEA);

refusing to engage in any practice made unlawful by the ERA or AEA if the employee has identified the

alleged illegality to the employer; testifying before the Congress or at any federal or state proceeding

regarding any provision or proposed provision of the ERA or AEA; commencing a proceeding under

the ERA or AEA or a proceeding for the administration or enforcement of any requirement imposed

under those acts; testifying or being about to testify in such proceedings; or assisting or participating

in any other manner in such a proceeding or in any other action to carry out the purposes of the ERA

or AEA.

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entitled Nuclear Employee Safety Concerns: Allegation System Offers

Better Protection, but Important Issues Remain (GAO/HEHS-97-51, Mar. 31,

1997) detailed recent actions NRC and Labor have taken to strengthen

whistleblower protection and reviewed other recommendations made by

an NRC review team that, if implemented, might further improve the

system. However, that study did not include a discussion of how these

changes and proposals for additional change have been received by the

nuclear power industry. Industry officials point out that this recent

concern for whistleblowers comes at a time when (1) competitive

pressures may lead to workforce changes that have historically resulted in

an increase in whistleblower allegations, (2) industry managers perceive

both increased regulatory pressure on licensees and broadened

protections for whistleblowers, and (3) industry believes it has succeeded

in developing and maintaining an effective safety culture.

Given your concerns about the tension between providing adequate

protections for whistleblowers and not overburdening industry with a

system that intrudes upon industry’s ability to manage its operations, you

asked us to obtain the perspective of nuclear industry officials on

• how NRC and Labor have implemented federal processes to protect

whistleblowers,

• whether Labor’s rulings on protected activities have had any effect on

industry’s ability to manage its workforce and comply with NRC

regulations, and

• whether abuse of the federal whistleblower protection system exists.

To respond to your request, we interviewed industry and federal

government officials and asked for their views about the whistleblower

protection processes and selected rulings made by the Secretary of Labor.

We interviewed NRC officials, officials from Labor’s Administrative Review

Board (ARB), Labor administrative law judges (ALJ), selected licensee

managers, attorneys for industry licensees and employees, and advocates

for licensees and the nuclear power industry. We reviewed recent Labor

rulings related to whistleblower complaints, pertinent sections of the ERA

and other statutes, the Code of Federal Regulations, and NRC’s and Labor’s

guidance and policy directives on whistleblower investigations and other

processes.

To determine which industry officials to interview, we discussed the areas

of concern with representatives of the Nuclear Energy Institute (NEI), an

industry organization whose members include the chief executives of the

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nation’s nuclear power companies, and with attorneys with experience in

defending companies in whistleblower cases.2

 We specifically sought

licensees that had been parties to significant rulings by the Secretary of

Labor and asked industry representatives to suggest other industry

sources who might want to provide comments. From these discussions,

we chose industry officials that represent from 52 of the 110 generating

units that use nuclear power to produce electricity in the United States

today, including licensees involved in whistleblower cases decided by the

Secretary of Labor from 1992 to 1996. (See app. I for details of our scope

and methodology and app. II for the list of licensees we interviewed.)

Results in Brief While industry officials have no disagreement with the policy underlying

the federal whistleblower protection system, some say that the current NRC

and Labor processes take too long to complete, are redundant, consume

large amounts of managers’ time and other resources, interfere with

effective management, and are often used to resolve issues only marginally

related to nuclear safety. Those officials are most concerned about the

overlapping actions of NRC and Labor in the whistleblower protection

system, which they believe contribute to lengthy and unnecessarily

contentious proceedings. Our March 1997 report noted that many of these

issues have previously been raised and that corrective actions are under

way to improve several of these areas. However, some industry officials

believe that few of these actions will help solve the problems that they

have with the system.

These officials also say that some of Labor’s rulings during the 1990s

broadened whistleblower protections and undermined industry’s

confidence in the system’s ability to resolve issues fairly for employers.

Officials claim that Labor’s decisions have expanded the definition of

“protected activities” so much that management now has difficulty

performing actions such as employee reassignments or downsizing.

Industry officials say that complying with NRC regulations has been

complicated by Labor’s enlargement of protected activity. For an example

of an activity that Labor has deemed “protected,” industry officials cited a

ruling that allows employees to withhold their safety concerns from

management and instead report safety concerns directly to the media or to

NRC rather than going through the plant’s management.

2

We interviewed individuals in a variety of occupations—managers and lawyers primarily—however,

in this report we use the terms “official” and “officials,” unless otherwise noted.

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Abuse of the whistleblower protection system, officials claim, takes the

form of employees’ (1) making discrimination allegations, some of which

are completely frivolous, and using their “protected” status to insulate

themselves from personnel actions, such as negative performance

evaluations or reassignments, or (2) threatening to file discrimination

allegations to avoid or delay layoffs, negotiate buyouts, or receive other

financial settlements. However, while they are concerned about the

burdensome and costly processes that result from such abuse, neither the

industry officials we interviewed nor NEI had information on the extent of

such abuse or believe that such data could be collected. Moreover, NEI

officials questioned whether it is possible to collect such data.

Industry officials’ suggestions to improve whistleblower protection

emphasized holding in abeyance NRC action to investigate or engage in

enforcement action based on whistleblower claims until Labor has

completed its investigations and issued a final ruling. In addition, industry

officials suggest setting time limits for NRC and Labor actions and final

decisions, penalizing employees who pursue frivolous allegations beyond

the initial stages, and using alternative dispute resolution (ADR) options

when the allegations do not appear to involve significant safety issues.

Industry officials also say that NRC and Labor should clearly define

“protected activities” in the public record. However, as a result of their

perceptions about the processes and Labor’s rulings, as well as their view

that little is likely to change in their favor, the industry officials say they

have become increasingly inclined to avoid the federal system and settle

complaints before the issues are made known outside the plant or to settle

the cases early in the federal whistleblower protection processes.

Officials from NRC and Labor, however, did not agree with these industry

comments and viewed their agencies as acting appropriately and within

their authority. NRC and Labor officials also said that the whistleblower

protection system ensures that employees feel free to raise safety

concerns to both management and NRC and promotes a work environment

that is crucial for maintaining safety in the nuclear industry. Neither

agency accepted the assertion by some industry officials that the

whistleblower protection system is plagued by abuse.

Background In 1977, NRC took the position that, even in the absence of explicit

statutory authority, (1) it had general authority under AEA to investigate

alleged discrimination against employees for raising safety concerns and

(2) it had authority to take enforcement action when discrimination

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allegations were substantiated. NRC also took the position, however, that it

lacked authority to provide individuals with personal remedy for the

discrimination. In 1978, the Congress passed section 210 (now section

211) of the ERA, which granted such authority to the Department of Labor.3

In 1982, NRC issued regulations consistent with section 210 that prohibited

licensees and their contractors from discriminating against employees for

raising concerns. In that year, NRC also entered into a memorandum of

understanding with Labor on the complementary responsibilities of the

two agencies. Since then, NRC and Labor have shared responsibility for

investigating discrimination allegations.

In 1992 and 1993, in response to complaints by employees who claimed

they were not being protected from discrimination, NRC initiated reviews

of the employee protection system. In a January 1994 report, an NRC review

team concluded that the existing NRC and Labor processes, as then

implemented, did not sufficiently protect employees who had alleged

discrimination. The team recommended a series of improvements to the

protection system. Our recent report summarizes the current status of

actions taken on these recommendations. Industry officials, however, do

not believe that NRC produced evidence of a problem with the industry

safety culture and expressed frustration that what they see as a few

isolated cases drives NRC to greater regulatory action.

Recent Developments Other events have also affected the nuclear power industry. The Energy

Policy Act of 1992 included provisions to allow competition at the

wholesale level in electricity generation. Since this law was enacted,

actions for the economic deregulation of retail power markets have also

taken place. Structural changes and economic uncertainties driven by

regulatory and market forces have also affected the nuclear industry. The

number of nuclear power units operating or under construction has

decreased. Employment in the industry has declined.

Because of these changes to the business environment, NRC has raised as

an issue the possibility of the erosion of nuclear safety throughout the

industry. Pressures for nuclear plants to become low-cost energy

producers and the potentially limited resources available for plant

improvements have been identified as reasons for concern about possible

reductions in nuclear safety. NRC has made known its concern about

failure by industry management to identify or resolve problems that

management may incorrectly view as having little safety significance.

3

The legislative history for section 210 also confirmed NRC’s authority under the AEA.

Page 5 GAO/HEHS-97-162 Nuclear Power Safety
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Because NRC relies on licensees and their employees to identify and

resolve workplace safety concerns, it believes that licensees must

maintain an environment in which the employees are encouraged to freely

raise these concerns without fear of reprisal. Consequently, the issue of

whistleblowers and their protection has become increasingly important.

Industry officials are aware of concerns about upcoming restructuring and

deregulation of the electric utility industry but stated that they will not

affect licensees’ ability to address safety concerns. Industry

representatives are concerned, however, that if additional downsizings

and other industry reorganizations occur, an increase in discrimination

complaints is likely to follow. Consequently, the federal processes

associated with an increase in cases will divert finite management

resources and thus may create additional pressure in a competitive

environment.

In our March 1997 report on nuclear safety concerns, we reviewed the

joint NRC-Labor process for action on allegations of discrimination. Our

report concluded that NRC and Labor have acted on some NRC and Office of

Inspector General (OIG) recommendations to enhance their management of

nuclear employee discrimination cases and that the resulting changes

should improve monitoring of the process, increase NRC involvement, and

augment licensees’ responsiveness to employee concerns. However, we

also concluded that other recommendations that could be made that

would further improve the system had not been implemented and that

better coordination and commitment from both NRC and Labor would be

required to do so. We recommended that Labor establish and attempt to

meet realistic time periods for investigating complaints. We recommended

that NRC improve its monitoring of the allegation process and its

coordination with Labor. Finally, we recommended that NRC implement

methods to obtain information on the environment for reporting safety

issues in nuclear plants.

System for Protecting

Employees Involves Two

Agencies

Although the management of a nuclear power plant charged with

discrimination faces two agencies investigating the same allegation, the

agencies have different purposes for their investigations. While Labor

supports plant safety indirectly by providing personal remedies to industry

employees who have been discriminated against for raising safety

allegations, NRC has direct responsibility for ensuring that nuclear plants

operate safely.

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In 1982, when the whistleblower protection system was in its early stages,

NRC and Labor entered into a memorandum of understanding in which they

agreed to carry out their responsibilities independently but to cooperate

and exchange timely information in areas of mutual interest. 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 initially formulated to implement the memorandum also

specified that NRC would not normally initiate an investigation of a

complaint if Labor was already investigating it or had completed an

investigation and found no violations. If Labor found a violation, NRC

would consider Labor’s actions before deciding what enforcement action,

if any, to take.

Prior to October 1993, NRC had investigated relatively few discrimination

complaints and usually waited for the Labor Secretary’s final decision,

which generally took longer than an NRC investigation. 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 better

focused resources on high-priority discrimination cases. Currently,

55 percent of NRC’s Office of Investigations (OI) workload consists of

investigating whistleblower discrimination allegations. However, in 96 of

the 106 discrimination cases closed by OI in fiscal year 1996, no

discrimination was found.

NRC’s Response to a

Discrimination Allegation

When NRC staff receive a discrimination allegation, they conduct a review

to determine (1) whether the allegation has safety implications and (2) the

level in the organization of the alleged discriminator. However, NRC staff

generally do not inform plant management of the specific nature of their

concerns. NRC staff also assess the priority of the discrimination allegation.

If NRC determines, on the basis of an OI investigation, that a violation

occurred, or if an adjudicatory determination of discrimination is received

from Labor, NRC’s Office of Enforcement assesses the case in accordance

with its enforcement policy, which defines four levels of severity, and

advises on the appropriate sanction, if any.

If Labor ultimately finds that the employer has unlawfully discriminated

against an employee, it may, under the ERA, order the employer to make

restitution. Restitution can include reinstating employees to their former

position and providing back pay and possibly other compensation. If NRC

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finds unlawful discrimination, based on either an investigation by Labor or

an NRC investigation, NRC may (1) serve upon the company a notice of

violation that identifies one or more violations of a legally binding

requirement, (2) fine the licensee, or (3) have the company’s license to

operate a nuclear plant suspended, modified, or revoked. Industry officials

pointed out that in lodging a confidential discrimination complaint, the

employee making the allegation incurs neither expense nor risk. If neither

agency finds discrimination or finds that the complaint was entirely

frivolous, the person making the allegation suffers no financial loss or

other adverse consequences.

One factor NRC uses to determine severity is whether a hostile work

environment existed; another is the organizational position of the offender

identified in the whistleblower case. Discrimination violations by senior

corporate management are level I and are punishable by fines of up to

$110,000 per day. Violations by a first-line supervisor are level III and carry

lower fines. Civil actions, as well as criminal referrals to the Department of

Justice for prosecution of individual managers, are possible.

Labor’s Actions to Protect

Whistleblowers

Labor’s actions to investigate whistleblower complaints made by nuclear

industry employees are much like those it takes to protect employees in

industries covered by other whistleblower legislation.4

 Labor’s role in ERA

discrimination cases consists of (1) an investigation by the Occupational

Safety and Health Administration (OSHA);5

 (2) a hearing before an ALJ if the

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

by the ARB, which issues the Secretary of Labor’s final decision;6

 and (4) a

review of the settlement, if there is one. Settlements are often made to

minimize the cost and time of continuing a case for both the employee and

licensee and may occur at any point.

4

Along with the Energy Reorganization Act, 42 U.S.C. section 5821, other laws containing

whistleblower protections include Clean Air Act, 42 U.S.C. 7622; Comprehensive Environmental

Response—Compensation and Liability Act of 1980, 42 U.S.C. 9610; Federal Water Pollution Control

Act, 33 U.S.C. 1367 and 1369; Safe Drinking Water Act, 42 U.S.C. 300j9; Solid Waste Disposal Act, 4

U.S.C. 6971; Surface Transportation Assistance Act, 49 U.S.C. 31105; Surface Transportation

Assistance Act of 1982, 49 U.S.C. app. 2305; and Toxic Substances Control Act, 15 U.S.C. 2622.

5

Until February 1997, this responsibility was assigned to Labor’s Wage and Hour Division. It was

transferred to OSHA as part of an exchange of responsibilities to better use program expertise and

resources.

6

Until early 1996, ALJ recommended decisions were reviewed by the Office of Administrative Appeals,

and the final decision was signed by the Secretary. Since then, the final decision has been signed for

the Secretary by the Chair of the ARB.

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Neither Labor’s ARB nor the ALJs view nuclear whistleblower cases or

issues as being unique or having special circumstances. According to

Labor’s chief judge, the Office of Administrative Law Judges (OALJ)

generally treats all whistleblower cases similarly. He also emphasized that

nuclear and environmental cases are governed by the same procedural

regulations. In addition, in making decisions for nuclear industry

whistleblower cases, ALJs rely on precedents established in whistleblower

cases decided under other laws that regulate other industries. However, in

considering ERA whistleblower cases, ALJs generally do not consult with

NRC staff.

All ALJ decisions in whistleblower cases are rendered in the form of

recommendations, which must be reviewed by the Secretary of Labor or

designee (since 1996, the ARB). There is a statutory 90-day limit from when

a complaint is filed until Labor renders its decision.7

 The ARB has worked

to clear up a backlog of cases and told us that it attempts to provide a

timely decision in all cases. Either party dissatisfied with the ARB’s

decision may appeal the final Labor ruling to the appropriate federal

circuit court of appeals within 60 days.

Managers’ Concerns

With Federal

Processes That

Protect

Whistleblowers

Industry officials expressed varied opinions about whether both NRC and

Labor should continue to be involved in protection and what role each

agency should play. The perspectives expressed about the processes, case

outcomes, and potential for abuse appeared to depend largely on whether

the licensee had recent experience in dealing with whistleblowers and the

processes. Generally, officials without recent experience in whistleblower

cases expressed few concerns and showed a reluctance to make

comments. None of the industry officials we interviewed who had recent

contact with the federal processes was satisfied with them as they are

being currently carried out. The officials said they believed too much time

is allowed to elapse before reaching a final determination on cases. They

were also concerned about redundant and overlapping investigations,

intrusion into management processes, contradictory messages from NRC,

NRC’s interpretation and use of industry data, and the effect of

whistleblower complaints on NRC’s perception of a utility’s overall nuclear

operations and safety environment.

Industry officials we interviewed pointed out that before either NRC or

Labor becomes involved in the formal federal processes, several in-plant

7

In our March 1997 report, we note that this statutory limit is rarely met and is considered to be

unreasonable by officials at NRC and Labor.

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options are available for employees to report safety concerns. Among

these options are the front-line manager, middle managers, and upper

management, as well as employee concerns programs, personnel offices,

and anonymous reporting mechanisms, including hotlines and suggestion

boxes. Officials told us that these mechanisms are used to resolve

thousands of concerns industrywide each year and that the cases litigated

represent a minute fraction of the total number of concerns raised within

the industry.

In addition, officials told us that concerned employees who are not

comfortable with these reporting alternatives are urged to report directly

to NRC. NRC, however, generally prefers that employees inform their

management of safety issues directly. Nevertheless, the NRC’s expectation

that employees will normally raise safety concerns to their employer does

not mean that employees cannot come directly to NRC. NRC policy

encourages employees to come forward to NRC at any time they believe

NRC officials should be aware of their concerns.

Industry Opinions Varied

Widely on NRC and Labor

Roles

Industry managers and legal representatives expressed widely varying

opinions about whether two federal agencies should continue to be

involved in the whistleblower protection processes with overlapping

responsibilities and which agency should have full responsibility. Some

officials said they believe that Labor staff cannot make adequate decisions

about the nuclear whistleblowers because they do not understand the

safety context and technical environment of the nuclear industry. They

criticized Labor staff for not actively consulting during their investigations

with NRC resident inspectors or other staff to better understand technical

issues and the regulatory context of nuclear plant operations.

Industry officials also told us that Labor staff do not fully appreciate the

safety implications that the Secretary’s rulings may have on nuclear power

operations. Some argued that the Secretary’s rulings about public policy

protections of whistleblowers have moved beyond Labor’s area of

expertise (employees’ restitution) and have affected technical areas. Some

officials said that it would be easier for technically trained engineers to

learn about employment law than for Labor staff to understand the highly

technical, scientific, and closely regulated environment of a nuclear power

generating facility.

Other industry officials, however, fully acknowledge Labor’s expertise in

human resource and labor law issues. They see whistleblower protection

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as being fundamentally about individual disputes and personal remedies

and correctly within Labor’s purview. Labor’s processes of adjudication

before the ALJ, with the opportunity for discovery and cross-examination,

are especially viewed as positive attributes of the system. Industry officials

contrasted Labor’s adjudication process with their perceptions of the

closed NRC system under which investigations are conducted. They also

voiced strong concerns about what they describe as a hostile and

accusatory law enforcement attitude that NRC OI investigators often

exhibit.

Industry legal representatives raised concerns about the threat of

“criminality” that NRC brings into the discrimination investigation process.

Some industry attorneys contended that NRC’s basis for threatening

criminal prosecution related to these cases relies on an expansive

interpretation of NRC’s authority under the AEA.

8

 Industry attorneys also

believe that because NRC’s investigations can result in a civil penalty and

possibly a criminal referral, NRC should interpret its discrimination

regulation more narrowly than Labor interprets section 211, an

employment discrimination statute, which provides only civil penalties.

Thus, they believe that NRC unfairly bases potential criminal action on the

outcome of a civil proceeding.

Industry officials also told us that NRC has attempted to expand its activity

into Labor’s area of responsibility by proposing a personal remedy such as

a holding period (whereby an action against an employee who alleges

discrimination would be held in abeyance until the complaint has been

fully investigated) in its discussion of possible regulatory changes. These

legal representatives are concerned as well that NRC attempted to overstep

its authority by attempting to tell nuclear management how it should

behave in developing and maintaining a safety-conscious environment.

Specific Concerns With

Processes

Industry officials commented about the specific problems they

encountered with the current federal processes, as well as the use of the

processes in general. Specific issues of concern were that the processes

take too long, are redundant, interfere with management actions, and are

often used to resolve issues unrelated to safety. Officials are also

concerned about NRC’s possibly inappropriate use of allegation data and

heightened enforcement posture. Several of these issues have been raised

in prior NRC studies, and steps have been taken or are being considered to

8

In its comments, NRC noted that the Department of Justice agrees with NRC’s interpretation of its

authority. We did not verify this assertion attributed to Justice.

Page 11 GAO/HEHS-97-162 Nuclear Power Safety
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respond to them. In our March 1997 report, we reviewed actions NRC and

Labor took in response to various review teams’ suggestions. We made

several recommendations on actions that NRC and Labor could take to

improve the processes, timeliness, quality of information, and overall

knowledge of the work environment. Industry officials in general,

however, did not believe that the changes recently made or proposed

would improve the processes much. They said that most of the changes do

not take into account the industry point of view.

Processes Believed to Take Too

Long

Managers in the nuclear power industry recently involved with the federal

processes to protect whistleblowers complained about the extensive time

needed to complete investigations at each step. They also complained

about the significant amounts of managers’ effort and company resources

expended in defending themselves through the multiple processes. As we

previously reported, according to our analysis of cases from October 1,

1993, to June 30, 1996, the average time needed to reach a determination at

the first stage of the process (a Labor Wage and Hour or OSHA

investigation) was 4 months, and few cases met the 30-day completion

time included in the law.9

 During that same period, the average time

required from the first assignment of a case to an ALJ, until a final ruling

was rendered by the Secretary, took about 2.5 years.

NRC and Labor agreed that reducing the time to resolve nuclear

whistleblower cases would be good for all, and the average times have

been reduced somewhat. In discussing the recommendation mentioned in

our earlier report concerning limiting the time period of a case to a total of

480 days (and limiting the Secretary of Labor to 90 days to issue a final

decision), the chair of the ARB repeated his concern that a 90-day

timeliness standard was unrealistic because it would severely affect the

parties’ ability to file all the necessary legal briefs. He said that meeting

this standard would cause Labor to severely restrict the parties’ ability to

properly respond to the issues presented. Labor’s chief administrative law

judge commented that while OALJ is not opposed to realistic time

standards, his experience was that few complainants or employers were

prepared for early hearing dates and that requests for continuances were

the rule rather than the exception. NRC staff said that they are continuing

to discuss timeliness issues with Labor.

Processes Described as

Redundant

The existing federal process involves several steps with actions by

multiple agencies, which industry sees as redundant. By regulation, OSHA

must complete an initial investigation within 30 days; however, the time is

9

GAO/HEHS-97-51, Mar. 31, 1997, pp. 17-18.

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almost always extended through a waiver requested by the complainant or

the licensee. In addition, NRC may conduct a technical review dealing with

the safety issues raised and a full-scale OI investigation, which may review

the same whistleblower allegation received by OSHA. If either party

disagrees with the OSHA decision, it may appeal to Labor’s OALJ within 5

calendar days. An appeal sets aside the results of the investigation and

initiates a new investigation at the ALJ level.

Industry officials told us that they are in favor of bringing allegations to a

close and desire early settlement of the issues. However, in instances in

which settlement is not reached, industry sees multiple investigations by

different organizations that do not share information as inherently

inefficient and as consuming licensee management resources

unnecessarily. In addition, industry officials stated that when an appeal to

the ALJ is requested by either party, the current practice of discarding the

OSHA investigation results is wasteful and adds considerable time to

resolving allegations. Even when OSHA investigations and OALJ

adjudications do not find discrimination, the Secretary of Labor, through

the ARB, may determine that it did occur, causing NRC staff to review the

case. Finally, even if a case is settled before a decision by the ARB, NRC’s OI

may initiate its own investigation.

NRC and Labor officials said they understand the frustration that industry

feels because of multiple investigations. The chair of the ARB suggested

that a review of the first stage of the process may be in order to determine

whether the OSHA investigation phase led to settlements of cases. NRC staff

said that they believed the initial investigations resulted in a large number

of settlements. (Our analysis of cases investigated while Labor’s Wage and

Hour staff were responsible for the initial investigation (before February 3,

1997) showed a settlement rate of about 16 percent of cases.) NRC staff

added that doing away with the initial Labor investigations would increase

NRC’s workload. NRC currently uses an OSHA finding of discrimination as a

starting point for NRC’s dialogue with a licensee over corrective action and

also considers the evidence gathered by OSHA during the course of OI’s

investigation.

Processes Said to Interfere

With Effective Management

Many of the managers we interviewed said that the whistleblower

protection process interfered with their ability to perform management

functions related to those making allegations and their other staff in a

timely manner. Managers told us how they were forced to delay decisions

on normal supervisory actions because of the consultation necessary in a

whistleblower case. Some managers who have been involved with the

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B-275364 

processes referred to the consultations as excessive and gave examples of

how they were advised to confer with higher levels of management,

human resources or personnel units, and the plant’s or the parent utility’s

legal staff before taking supervisory action. Managers complained that in

some situations the extra consultations necessary have created a window

of vulnerability in which the plant could be exposed to more potential

problems from employees whose fitness for duty might be questioned than

would have been the case previously, when swift action without

consultation was the norm.

Most of the industry managers we talked to believed few of the

discrimination allegations were legitimate. However, because of fear for

their careers, and because the Department of Justice can hold them

criminally accountable for actions deemed to be discriminatory, nuclear

industry managers said that they must take all the allegations seriously

and respond to them accordingly. Higher-level managers said that the

delays associated with processing allegations that do not warrant

investigation particularly demoralize managers who come from a

command and control environment. They said such delays also decrease

plant efficiency and extend the time needed to resolve employees’

concerns.

Industry officials also cited examples of how managers become frustrated

in dealing with individuals making allegations who have an adversarial

relationship with management and how other workers perceive that the

whistleblower receives special treatment. Managers at one licensee told us

of how one very public person bringing an allegation in a maintenance job

was assigned to a favorable “desk job” to guard against further charges of

retaliation and that coworkers were unhappy that he was receiving this

opportunity and they were not.

Industry officials also told us of how managers were sometimes puzzled

about how to behave because of the lack of feedback from NRC’s OI on its

investigation activities. Several licensees commented about OI staff not

communicating to the target of a harassment and intimidation allegation

when review of the case found insufficient evidence to support the

discrimination allegation. This failure to notify left the accused managers

in a state of anxiety for lengthy periods, sometimes for years. Officials told

us this failure to communicate is especially worrisome because managers

could not be sure whether their past actions were appropriate or not.

Managers were also concerned because the OI investigators made

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B-275364 

reference to possible criminal, in addition to civil, charges with possible

referrals to Justice for prosecution.

Industry officials also said the stigma of being accused in a whistleblower

case severely harms the reputation of individual managers and the

company. Managers and legal representatives said they were also

concerned about the negative publicity created by NRC’s issuance of a

press release with a notice of violation in these cases. Further, industry

officials claim that the damage to an accused individual manager’s

reputation cannot be undone even if the notice of violation is rescinded.

NRC staff acknowledged that the time to complete investigations could be

rather lengthy. They also agreed that they did not ordinarily provide

closure letters to each individual investigated. They stated, however, that

letters signaling the closure of an investigation are always sent to the

licensee, with the expectation that licensee management will inform all

concerned employees that the case had been closed. Furthermore, they

also told us that while they do have the authority to refer cases to Justice

for consideration of criminal prosecution, such prosecution has occurred

only once.

Industry Officials Believe

That They Get

Contradictory Messages

From NRC

Industry officials we interviewed said that NRC often gives contradictory

messages in its actions and guidance relative to handling whistleblower

allegations. Officials said NRC often acts on a finding of discrimination by

Labor, even when that finding contradicts the results of NRC’s own

preliminary investigations by on-site teams. Managers also said that, on

occasion, NRC enforcement actions have ignored actions previously taken

by the plant management to correct conditions that led to the safety

allegations and subsequent discrimination allegations. As a consequence,

officials said that managers feel second-guessed, new managers may be

penalized for improper actions taken by prior managers, and the public

may perceive that problems that have been corrected still exist. Industry

officials would like to see NRC publicly acknowledge actions that managers

have taken to resolve issues and to see NRC take these corrective actions

into account when making enforcement announcements to the media.

Nuclear officials also told us that NRC encourages upper management

participation in whistleblower-related situations, but when upper-level

management becomes involved in resolving a case, the plant risks

increased NRC sanctions if discrimination is found. Under NRC’s

enforcement procedures, the level of the decisionmaker is considered in

Page 15 GAO/HEHS-97-162 Nuclear Power Safety
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determining the severity of the enforcement action. Therefore, upper-level

managers who become involved in these cases to protect lower managers

and ensure that whistleblower situations receive the high-level

management attention that NRC encourages make themselves and the plant

vulnerable to more severe penalties than if they had not become involved.

NEI commented on what it characterized as the extremeness of NRC’s

enforcement approach by comparing NRC’s enforcement policy provisions

relating to discrimination with other enforcement provisions relating to

reactor operations. Industry representatives pointed out that in the

context of reactor operations, a Level I civil penalty applies if a

radiological release occurs (as at Three Mile Island). They said they

thought it is unreasonable to treat a discrimination finding against a senior

member of licensee management with as severe a penalty as would be

given with a radiological release.

Although NRC officials disagreed that they automatically act on Labor’s

decision even if it contradicts their own findings, they did acknowledge

that, in almost every case, NRC has adopted the final position of Labor

when initiating its enforcement actions. NRC staff said that they review

each of Labor’s decisions but that without any compelling reason, they do

not independently examine the evidence supporting Labor’s findings. NRC

officials note that while NRC can base its enforcement decisions on Labor’s

rulings, it is not required to do so. NRC staff gave examples of two cases in

which they have refrained from taking action, despite an ALJ or ARB finding

of discrimination.

NRC staff also said that confusion about NRC processes could contribute to

impressions that NRC actions are contradictory. The OI Director explained

that preliminary technical reviews of issues related to discrimination

allegations are often handled by resident inspectors or NRC regional staff

who focus primarily on the safety issues associated with an allegation, not

on the alleged discriminatory conduct of the managers. Investigations of

the discrimination allegation by OI investigative staff can result in

conclusions about allegations different from those conducted during the

preliminary technical review. Also, the Director of the Office of

Enforcement acknowledged that long periods of time often passed and

that managers changed between original discrimination incidents and

enforcement actions. However, he said improper conduct by the company

may be dealt with through enforcement actions, even though NRC

Page 16 GAO/HEHS-97-162 Nuclear Power Safety
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acknowledged that new managers were in place and changes had been

made.10

Managers Question Data

NRC Uses

Managers expressed concern about the allegation data that NRC collects,

uses, and publishes to indicate the safety conditions at specific nuclear

plants. They believe that the data on safety allegations can be taken out of

context and are open to a variety of interpretations. For example, data

showing a large number of issues and allegations outstanding could

indicate problems at a plant or with its management culture. Conversely,

the same data could be interpreted to show that employees feel free to

raise safety concerns, and this is precisely the environment that NRC wants

to encourage. Industry officials expressed particular concern about NRC’s

February 27, 1997, Federal Register notice, “Safety Conscious Work

Environment.”11 The NRC notice requested comments on a proposal that

would use changes in the rate or number of allegations as possible

evidence of an emerging adverse trend concerning safety consciousness at

a facility. Industry representatives were highly critical of having the

allegation data used in this way.

In addition, officials told us that management-reported instances of safety

concerns are combined with allegations made by employees and

contractors in the data that NRC collects and publishes. For these reasons,

industry managers said that they believe that NRC needs to do additional

work in its allegation data collection and analyses and that they are wary

of data-driven enforcement targeting until such a review has been

completed.

NRC officials responded that numbers of allegations alone do not drive the

start of NRC investigations or enforcement actions and that NRC’s policy

was not to use management-reported incidents against them. The Director

of the Office of Enforcement said that NRC’s goal was not to take action

against licensees but to create a safety-conscious environment. However,

NRC acknowledged that in the past it has combined management reports of

safety concerns with employee concerns, a practice that it plans to

change. NRC’s agency allegation adviser acknowledged that NRC could do

more to explain to industry how the data would (and would not be) used.

NRC officials said that this explanation might be included as part of a

planned Federal Register notice.

10The Director of the Office of Enforcement added that if new management acted promptly to settle

the matter, this would likely be reflected in the enforcement action, if any.

1160 Fed. Reg. 8790 (1997).

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NRC’s Regulatory Power

Affects Officials’ Views on

Whistleblower Protection

System

Industry officials’ concerns about the whistleblower protection process

are heightened by NRC’s regulatory power over licensees regarding the

total operation of nuclear plants. Industry officials said that they believe

that NRC may take enforcement action against any licensee when Labor

finds discrimination, regardless of the circumstances and even when

technical safety issues are not at stake. They believe also that a series of

whistleblower complaints, regardless of their merit or outcome, may be

interpreted as indicating a pattern of problems that will lead NRC to

investigate a licensee’s overall activities. Even when no wrongdoing is

found, the investigations consume management resources, disrupt plant

operations, and may generate concern on the part of both consumers and

shareholders, to the point of threatening the continued viability of the

plant. As a result, managers and legal representatives said that by

resolving the cases informally, they attempt to avoid entering the federal

whistleblower protection system.

Some industry officials said that NRC in recent years has become

unjustifiably aggressive in pursuing allegations, even those that may be

questionable. Some expressed concern that NRC has proposed that

licensees may be subject to regulatory action if employees merely perceive

that discrimination occurred. Industry legal representatives believe that

the recent increased concern over whistleblower allegations is a

disproportionate response to the relatively few high-profile cases that have

received media attention. These officials also noted that what industry saw

as proposed NRC regulations on a safety-conscious workplace are vague

and incapable of being effectively implemented or objectively enforced.

NEI officials were also highly critical of NRC’s proposal to impose a holding

period whereby employees who allege discrimination would be

guaranteed full pay and benefits until the complaint has been fully

investigated. Under current procedures, this could last at least until an ALJ

has heard the case and issued a recommended decision. Industry officials

said this policy might provide an inducement for some employees to file

an allegation to protect themselves against legitimate economically related

personnel actions. These concerns are heightened by industry officials’

expectations that economic pressures stemming from deregulation will

lead to additional personnel actions such as job-shifting and downsizing

and that the environment that has led to numerous cases in which adverse

actions were based on economic reasons will continue for some time.

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B-275364 

Secretary of Labor

Rulings Cause

Industry Concern

Industry representatives expressed concern about a number of rulings the

Secretary of Labor and the ARB have made on whistleblower cases in the

past several years, especially what they characterize as significant

reversals by the Secretary and the ARB of several ALJ-recommended

decisions that favored the industry. They see these rulings, which reversed

the ALJs’, as having broadened the employee protection system, widened

the definition of “protected activities,” and interfered with management’s

ability to efficiently run nuclear power plants.

Secretary Reversed ALJ

Recommendations

Nuclear industry legal representatives told us that they monitor Labor’s

final rulings in whistleblower cases very closely. They find that the

percentage of Secretary of Labor or ARB reversals of ALJ-recommended

decisions is very high, especially where the ALJ decisions had favored the

industry rather than the whistleblower. The chair of Labor’s ARB told us

that he does not ordinarily “score” its decisions or tabulate data on how

cases were decided. In order to be able to assess the accuracy of industry’s

characterizations of the Secretary’s reversal decisions, we asked Labor to

review its decisions and categorize them.

Appendix III summarizes the Secretary’s rulings from January 1994

through March 1997. According to Labor’s analysis and our review, over

this period the ALJ’s recommendation was in favor of the licensee 44 times

and in favor of the employee 7 times. On review, the Secretary affirmed ALJ

recommendations 39 times, reversed the ALJ in an employee’s favor 11

times, and reversed the ALJ in a licensee’s favor 1 time. The bulk of the

decisions came in 1995 when Labor issued a number of final decisions for

cases that had been pending for some period of time.

In discussing rulings made in 1995, Labor and industry used different

totals.12 Industry representatives initially maintained that in 1995, in the 38

cases in which the ALJ made a recommended decision to the Secretary on

the merits of a case, the Secretary affirmed the ALJ decisions 19 times and

reversed the ALJ decisions 19 times (a 50-percent reversal rate). Labor’s

tabulation of the 1995 data shows that in that year the Secretary affirmed

ALJ recommendations 17 times, reversed the ALJ in the employee’s favor 6

times, and reversed the ALJ in the licensee’s favor 1 time. In their

comments on the draft report, NEI staff reviewed their 1995 data and

identified 42 decisions in which the Secretary addressed substantive

12Both Labor and NEI officials stressed that they were not counting reversals made for procedural

reasons (for example, whether or not the case was filed on time) or other nonsubstantive reasons. The

discrepancy in the total number of cases counted for 1995 may be caused to some extent by how cases

were classified as substantive or nonsubstantive.

Page 19 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

recommended decisions, affirming decisions 28 times and rejecting

recommended decisions 14 times (a 33-percent reversal rate).

Industry attorneys alleged that the percentage of reversals in favor of the

employee was higher in nuclear whistleblower cases than in whistleblower

cases in other industries or in other federal agency appellate processes.

We did not, however, obtain the data necessary to confirm that statement.

In addition, Labor calculated that a total of 95 settlements were approved

and 5 settlements were rejected over the period January 1994 to

March 1997.

Industry Has Appealed

Few of the Labor

Secretary’s Reversals

Either party may appeal an unfavorable decision to the court. Industry

legal representatives whom we interviewed stated they had appealed few

of the Secretary’s decisions. In most cases, they did not view such appeals

to be a reliable avenue for relief from adverse decisions because federal

agency decisions are given great deference by the courts. They told us that

their clients generally make a business decision to either accept the

Secretary’s decision or settle the case.

NRC and Labor officials confirmed that the number of cases appealed is

small. However, they reiterated to us that industry has the right to appeal

the rulings and that appeal processes are readily available. Neither the

industry nor the agencies keep a count of ERA whistleblower cases that

have been appealed. However, in their comments on the report, OALJ

officials said that they endeavor to track the ultimate disposition of cases.

For ERA cases from fiscal year 1990 to the present, OALJ reported that 20

cases had been appealed to federal courts but did not indicate how many

of the appeals were initiated by the complainant and how many were

initiated by the respondent employer.

Officials Question Basis for

Some Secretarial Reversals

of ALJ Decisions

Some industry attorneys alleged that several secretarial reversals of ALJ

decisions occurred because of determinations of witness credibility. These

counsels argued that proper judgments of witnesses’ credibility can be

made only by personally seeing and hearing the witnesses, not solely by

reviewing the written record. Industry attorneys said that they believe the

ALJs are in a better position to determine the credibility of the witnesses

because, unlike the Secretary, they observed the demeanor of the

witnesses and participated directly in the proceedings. The OALJ staff we

interviewed agreed with this position. They also believe that the written

record of the case alone does not provide the ARB with a true sense of what

Page 20 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

took place during the proceedings. Our review of the Secretary’s decisions

did not identify any cases in which Labor’s documentation showed witness

credibility to be the primary reason for a reversal. However, ALJs and

industry attorneys suggested that credibility issues may have influenced

the Secretary’s reasoning for several reversals.

The Chair of the ARB acknowledged that the issue of credibility of evidence

had been discussed in the past and that some ALJs had raised the same

issues about being present during the proceedings with him. He recalled

one case of a disagreement over expert witness testimony but did not

remember any other cases in which the credibility of witnesses was the

primary determinant in an ARB decision to reverse a recommended ALJ

decision.

Officials Say Labor’s

Rulings Have Broadened

Employee Protections

Some industry officials believe that several of the Secretary of Labor’s

decisions reversing ALJ recommendations have expanded the definition of

protected activities beyond what was intended in section 211 of the ERA,

with the result that the industry’s ability to manage and comply with NRC

safety regulations has been curtailed. We have delineated some specific

cases in which the Secretary of Labor reversed ALJs’ recommended

decisions and in which industry officials have viewed the reversals as

significant because they believe these rulings have considerably

broadened the definition of “protected activities.” (See app. IV for more

extensive details on these cases.)

• Robainas v. Florida Power and Light. In this case, the Secretary reversed

the ALJ and found discrimination when an employee was ordered to take a

psychological fitness-for-duty examination and was terminated for

refusing to do so. Industry managers said that they are concerned over the

effect that ruling has on their ability to meet NRC requirements to safely

manage their workforce without being subjected to section 211 liability.

The industry believes that a more complete appreciation of NRC’s

fitness-for-duty regulation would have led the Secretary to understand that

a referral, by itself, created no adverse consequences for the employee.

• Hobby v. Georgia Power. In this case, the Secretary reversed the ALJ and

held that the employee’s raising concerns about a lack of cooperation

between himself and a senior nuclear officer was “tantamount to”

protected activity. The Secretary ruled that management feared the

consequences of a memorandum raising concerns about the reporting

structure of nuclear operations and concluded that the complainant’s

position was eliminated to silence complaints about the company’s

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B-275364 

reporting structure. Officials said the ruling created a chilling effect on

managers’ supervisory behavior and ability to pursue legitimate

downsizing.

• Mosbaugh v. Georgia Power. In this case, the Secretary reversed the ALJ

and permitted the long-term and surreptitious taping of fellow workers,

NRC representatives, and management conversations in the plant,

considering this taping to be a legitimately protected activity. Managers

said the ruling has had the effect of reducing open and frank discussion

about technical and safety issues and limiting informal resolution of issues

between managers and staff.

• Saporito v. Florida Power and Light. In this case, the Secretary’s decision

gave an individual making an allegation the right to refuse to disclose

safety concerns to the licensee and instead go directly to NRC with a safety

allegation without first informing plant management.13 The Secretary also

found it permissible that the individual not go to the licensee even after he

identified the safety concern to NRC. Licensees believe this severely

infringes on their ability to protect public health and safety if they are

denied potentially important operational information. Managers and

industry attorneys view this as contrary to the entire intent of the section

211 process, which is geared to enhance the safety environment of nuclear

facilities. Attorneys also see it as being contrary to the experiences of

other regulated industries, where whistleblower protections begin after all

internal mechanisms to resolve a dispute have been unsuccessfully

attempted.

In response to this ruling, NRC’s chairman wrote to Labor stating its policy

that an NRC contact by a person bringing an allegation should be viewed as

a last resort. The letter emphasized that licensees are primarily

responsible for maintaining nuclear safety at their facilities and that the

licensees have a right to expect that their employees will use internal

mechanisms to inform them of safety matters. In a subsequent policy

statement, NRC made clear its expectation that while employees will

normally raise safety concerns to their employers, it does not mean that

they cannot come directly to NRC, and in fact they should come to NRC

whenever they believe the NRC should be aware of their concerns.

• Finally, in Biddy v. Alyeska Pipeline, industry legal representatives

expressed concern about a ruling the Secretary made under the Toxic

Substances Control Act (15 U.S.C. 2622). This decision concerned parties

providing the Secretary with details of all settlements of claims arising

13In comments on the draft report, NRC asserted that this perception is incorrect; see app. VI for NRC’s

comments.

Page 22 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

from the same factual circumstances forming the basis of the federal

claim. Industry representatives see the requirements of meeting this

decision as possibly revealing information about licensees’ business

decisions to employees and their attorneys, who might then use it to gain

unfair advantage in future proceedings. They said that this might be a

disincentive to settle cases.

ARB officials strongly disagreed that their decisions had broadened the

protections beyond what the ERA statute had intended. They said that

Labor rulings had not, in fact, expanded the list of activities that could

properly be classified as protected but, rather, the ALJs had simply drawn

upon legal precedents involving whistleblower cases under other similarly

worded statutes.

ARB officials also said that they understand the difference in the

relationship between the nuclear industry and its regulator compared with

other industries but that that relationship does not and cannot have any

bearing on how Labor treats allegations of discrimination. ARB staff

acknowledged, however, that they were not familiar with all NRC’s

enforcement targeting approaches or potential enforcement actions that

NRC might take after an allegation has been raised and investigated by

Labor. The Chair of the ARB said that he plans to become more familiar

with these actions in order to better understand the nuclear industry’s

reactions to Labor’s rulings.

Industry officials also commented on the protected activities listed under

ERA and how they believe the Secretary of Labor has gone beyond the

activities cited in the statute or in regulations to broaden whistleblower

protections. In one instance, officials said Labor’s broadening of

protections has made certain occupations—for example, security guards

or quality assurance positions—themselves a “protected” activity. In these

officials’ views, simply by being in one of the specific positions that Labor

has interpreted as having to do with safety, an individual would be covered

by whistleblower protections. Under this reasoning, any changes to

working conditions management makes or personnel actions that

management takes that adversely affect employees in these occupations

may be considered to be harassment or intimidation. No specific action

related to reporting a safety problem or issue need occur for an employee

to be protected through the whistleblower processes.

The Chair of the ARB conceded that employees in certain job classifications

may engage in protected activity simply by doing their jobs. However, he

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B-275364 

noted that not only does a specific protected act have to be found but also

the employee must prove that the adverse action was taken by the licensee

because of that protected act in order to support a ruling of

discrimination.

Abuse of the System

Alleged but Not

Documented

Many of the nuclear power officials we interviewed said that the federal

whistleblower protection system is plagued by abuse but that only a

relatively few individuals are responsible for such abuse. Industry

members varied in their descriptions of abuse, but we generally

understood them to mean that someone was using the system in ways that

were not intended, such as to gain a financial or other benefit that was not

part of protecting employees’ rights to raise safety concerns. However, the

industry did not define abuse uniformly and did not compile data to

indicate either its character or extent.

We could not obtain data to adequately quantify or characterize abuse for

individual plants or from the NEI on the industry as a whole. Industry

representatives told us that it is unlikely that data on abuse of the system

would ever be collected. They said that each case is unique and licensees

make individual determinations and business decisions to resolve them.

Likewise, data on settlements at all levels are not systematically collected

and maintained by industry, Labor, or NRC. Industry representatives told us

that in recent years licensees have been more prone to settle

whistleblower cases than they had been in the past and that they are more

likely to settle cases within the plant or at least early in the process than

they are to wait until the latter stages of the formal federal processes.

Federal Processes Are

Believed to Be Used to

Resolve Nonsafety Issues

Officials told us that many of the whistleblower complaints have been

about concerns other than safety issues. They emphasized, however, that

industry’s concern with the fairness and efficiency of the current process

does not reflect any disagreement with the policy underlying the federal

whistleblower protection system. Officials state that they believe that

employees play an important role in raising safety concerns and fully

support the need to encourage employees to identify safety concerns and

the existence of a mechanism to respond to instances in which employees

are discriminated against for raising such concerns. However, officials

said they believe that some whistleblowers use protected status to insulate

themselves from normal management personnel actions, such as negative

performance evaluations, reassignments, or layoffs. Some officials said

that employees use the process to obtain leverage in dealing with

Page 24 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

managers to obtain buyouts, settlements, or early retirements. Some told

us the process is used as a forum to resolve various human resources or

personnel disagreements that should be resolved by other means. In one

example, a licensee told us that an individual was filing an allegation

because of what he saw as an unfair distribution of funds between

management and labor in a profit-sharing plan. Some officials have also

alleged that employees go from employer to employer and raise frivolous

allegations purely to seek financial settlements.

NRC recognizes that some potential exists for individuals to “use the

system.” However, NRC officials do not accept the argument that a person

who engages in protected activity is immune from discipline, discharge, or

other action. NRC and Labor officials told us that they believe that properly

documented cases of nondiscriminatory adverse actions taken by the

employer can be reviewed in the current protection system and the

employer can be found to have acted without discrimination.

Industry Sees Different

Characterizations of

Whistleblowers

While the federal processes protect employees who go outside the plant to

NRC, Labor, or the public to raise safety concerns as “whistleblowers,”

many industry officials do not view all whistleblowers alike. Some

managers and attorneys informally classified whistleblowers—employees

and contractors—into four categories. NRC and Labor officials did not

directly comment on these characterizations.

1. True believers—employees generally perceived to be competent and

loyal who have raised what they see to be a serious safety issue and who

are not satisfied that management has responded adequately to the issue

or believe management has resolved it incorrectly or incompletely. These

employees are willing to risk their careers to ensure that the issue or

professional disagreement is dealt with properly and completely.

2. Employees with personal or personality problems—employees in

conflict with one or more members of management over issues that are

related to safety but that also involve personality clashes or reflect

personality problems on the part of the employee. Managers said that the

whistleblowers in this category have somewhat traditional

supervisor/employee conflict issues often related more to “personality”

issues than to the safety issue cited or have problems dealing with people.

Employees in this group bring their issue to the whistleblower process

because they know that it will receive attention by high-level management

at the facility and by outside parties—namely, NRC and Labor. Industry

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B-275364 

officials said employees in this group often use other venues, including

equal employment opportunity complaints, state courts, or grievances filed

with a union, in attempting to resolve their issues while they pursue

whistleblower allegations.

3. “Insurance policy” writers—employees viewed by managers as filing a

safety issue as a placeholder to insulate them against adverse management

decisions, as, for example, an unfavorable performance review, premature

separation, or downsizing. Officials view employees in this group as using

whistleblower protection to shelter them from economic and business

decisions that may minimize or threaten their employment at a facility.

Managers cited instances in which contractors brought in for plant

refueling operations have employed the allegation process, or the threat of

its use, as a way to extend their employment for the maximum duration.

Other examples cited included persons who fear downsizing decisions

contemplated by a nuclear facility and who raise an allegation as a way of

possibly protecting themselves from layoffs.

4. “Entrepreneurs”—employees who use the federal processes or the

threat of filing a complaint as a way to hold the company hostage and

achieve some monetary settlement in exchange for dropping, or not filing,

a harassment or discrimination charge. According to the officials, these

employees may file multiple claims against the same facility or several

employers, or look to negotiate some other benefit, such as an early

retirement, buyout, or other payoff as a way to pressure their employer.

Although different officials offered variations on the number and size of

whistleblower categories, most industry officials believed that the number

of true safety issues raised by whistleblowers was small. However,

industry officials stated that despite the fact that they believed that most

of the safety issues raised by whistleblowers did not reflect major safety

issues, the industry recognized that each concern must be treated as

though it, in fact, did represent such a safety issue. Industry

representatives we spoke to saw the last three categories of

whistleblowers as being responsible for the majority of the whistleblower

allegation activity.

Industry officials told us that experience led them to expect discrimination

complaints to increase during periods of uncertainty, job reassignments,

and particularly downsizings. Officials stated that historically, during

transition periods, such as moving from the construction phase to starting

full operation or during refueling and maintenance shutdowns, significant

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B-275364 

numbers of safety allegations and whistleblower allegations occurred.

They predicted these cyclical allegations would continue. Some officials

also said that as the industry continues to respond to economic pressures

of deregulation and competition, and with the possible closing down of

some nuclear plants when their original licenses expire, the number of

safety concerns and whistleblower complaints probably would increase.

NRC and Labor officials were aware of the various characterizations of

whistleblowers, but officials at both agencies said that a whistleblower’s

reason for raising an allegation was irrelevant to them. NRC said that its

policy is that the motive of a person making an allegation does not alter

the validity of the allegation and should not change the way in which NRC

or a licensee follows up on a concern. Labor officials and ALJs said that the

motivation of the nuclear whistleblower did not have, and should not have,

any effect on deliberations over the allegations made.

In responding to industry’s observation that many safety issues raised in

the protection process were relatively minor, NRC officials acknowledged

that most allegations were not “show stoppers.” However, they noted that

if they failed to deal with the minor issues, they would be discouraging the

raising of larger issues. NRC officials also expressed concern that

employees who feel inhibited about raising concerns may take more

indirect methods of raising concerns, thus delaying resolution of the issue

and requiring additional licensee and NRC resources.

Industry Suggestions for

Improving the

Whistleblower Protection

System

Industry officials made a number of suggestions to improve the federal

whistleblower protection system. Although they raised many issues about

the current processes, none advocated major structural changes. Most of

the managers and the legal representatives we interviewed said they were

willing to work within the present system if they had to and viewed these

processes as a cost of doing business. Generally, they said that the most

negative aspects of the whistleblower protection processes arose when

failure to resolve issues internally led to media attention and active NRC

intervention. Some managers and legal representatives suggested that NRC

should return to its previous policy of withholding taking action on a

section 211 claim (other than to ensure that the underlying safety issue

raised is evaluated and addressed) until the Labor process has been

completed. The industry officials did not suggest that NRC be relieved of

any of its responsibility for protecting public safety and health but

expressed the view that restricting NRC’s actions related to a

Page 27 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

discrimination claim until the completion of Labor’s activities would not

affect its obligations.

Suggestions for improvement included limiting the time for actions and

decisions at all levels of NRC and Labor and employing sanctions against

employees who pursue frivolous allegations beyond the initial stages. They

also suggested that NRC clearly define what constitutes “protected

activities” in a nuclear power plant. Industry officials suggested as well

that both NRC and Labor should encourage the use of companies’ internal

management processes to resolve whistleblower discrimination

allegations quickly.

Officials object to NRC’s proposed policy of using the number of

settlements as an indicator of the level of safety consciousness at a plant

or NRC’s perceived assumption that a plant management’s settling cases

indicates that a pattern of harassment and intimidation may exist at its

facility. Finally, the officials said that NRC and Labor should eliminate any

real or perceived obstacles to settling cases.

Industry officials support Labor’s making available more ADR options,

particularly when the whistleblower allegations do not involve significant

safety issues. Appendix V contains information on a pilot program that

Labor is considering for the use of ADR in whistleblower cases. Labor

currently offers settlement judges for the adjudication of whistleblower

claims, but this option is not often used.14 Industry representatives did not

express any reservations about using settlement judges to resolve these

complaints. They said that the process simply is not well known across the

industry and that few have had experience with it.

NRC is strongly supportive of Labor’s employing ADR in cases brought under

section 211 of ERA. In an April 15, 1997, letter to Labor, NRC stated that it

believes that ADR will decrease reliance on formal adjudication and that

ADR will serve the interests of the parties in obtaining prompt resolution of

their claims as well as the interests of the federal government in

conserving resources.

Agency Comments

and Our Evaluation

NRC provided written comments on the draft report. In those comments,

NRC’s Executive Director for Operations disagreed with several of the

positions taken by industry and discussed in our report. NRC also stated

14From July 1996 to July 1997, 10 ERA cases were referred to settlement judges. Nine of the cases were

settled with the help of a settlement judge; one case was still pending while this report was being

drafted.

Page 28 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

that its current regulations and policies support the goals of protecting

workers from discrimination and maintaining plant safety. NRC staff also

provided technical comments that clarified certain NRC policies and

positions discussed in the draft report. We have revised our report in

several places to incorporate comments made both formally and

informally. NRC’s comments appear in appendix VI.

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

report. The Chair of the ARB and Labor’s Chief Administrative Law Judge

did, however, provide comments that updated and clarified a number of

technical issues raised in the report. Generally, neither ARB nor OALJ took

issue with most of the industry positions raised in the report. The Chair of

ARB declined to comment on the merits of specific decisions but

encouraged any party who believes a final decision by ARB is contrary to

law or unsupported by fact to exercise his or her right to appeal that

decision. In his comments on the report, Labor’s Chief Judge pointed out

that while nuclear and environmental whistleblower cases are governed by

the same procedural regulations and that legal precedents apply to both

types of cases, administrative law judges are keenly aware that ERA

whistleblower cases arise in a factual context that is distinct from

environmental whistleblower cases. Given their formal and technical

comments, we have modified portions of the report and included

references to their comments in several places. ARB comments appear in

appendix VII. OALJ comments appear in appendix VIII.

NEI provided technical comments and clarifications to its positions on

several issues. Many of these have also been incorporated in the report.

NEI was also interested in ensuring that it communicated its concern that

discussions about the problems with the whistleblower protection

processes should not overshadow the successful safety culture that has

been achieved in the nuclear power industry today. NEI was also

concerned about the role of NRC in whistleblower processes and what it

viewed as an imbalance between NRC’s regulatory emphasis on

whistleblower protection and the amount of benefit to the industry. NEI did

not provide written comments for publication.

As agreed with your office, unless you publicly announce the contents of

this report earlier, we plan no further distribution until 7 days after its

issue date. At that time, we will send copies to the Secretary of Labor, the

Chairman of NRC, and interested congressional committees. We will also

Page 29 GAO/HEHS-97-162 Nuclear Power Safety
B-275364 

make copies available to industry licensees and NEI and to others upon

request.

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

Major contributors to this report are listed in appendix IX.

Sincerely yours,

Carlotta C. Joyner

Director, Education and

 Employment Issues

Page 30 GAO/HEHS-97-162 Nuclear Power Safety
Page 31 GAO/HEHS-97-162 Nuclear Power Safety
Contents

Letter 1

Appendix I 

Scope and

Methodology

36

Appendix II 

Industry Sites

Represented by

Officials We

Interviewed

38

Appendix III 

Secretary of Labor

and ARB Decisions,

January 1994-March

1997

39

Appendix IV 

Department of Labor

Whistleblower Rulings

That Concern Nuclear

Industry Management

40

Appendix V 

Department of Labor

Pilot Processes for

ADR Use

42

Labor’s Alternative Dispute Resolution Pilot Program to Include

ERA Cases

42

Labor Offers Use of Settlement Judges in Current Cases 43

Page 32 GAO/HEHS-97-162 Nuclear Power Safety
Contents

Appendix VI 

Comments From the

Nuclear Regulatory

Commission and Our

Evaluation

44

GAO Comments 47

Appendix VII 

Comments From the

Administrative

Review Board,

Department of Labor

48

Appendix VIII 

Comments From the

Office of

Administrative Law

Judges, Department of

Labor

49

Appendix IX 

GAO Contacts and

Staff

Acknowledgments

51

Table Table III.1: Secretary of Labor and ARB Rulings on ERA Cases

Decided on the Merits, January 1994-March 1997

39

Page 33 GAO/HEHS-97-162 Nuclear Power Safety
Contents

Abbreviations

ADR alternative dispute resolution

AEA Atomic Energy Act

ALJ administrative law judge

ARB Administrative Review Board

ERA Energy Reorganization Act

NEI Nuclear Energy Institute

NRC Nuclear Regulatory Commission

OALJ Office of Administrative Law Judges

OI Office of Investigations

OIG Office of Inspector General

OSHA Occupational Safety and Health Administration

Page 34 GAO/HEHS-97-162 Nuclear Power Safety
Page 35 GAO/HEHS-97-162 Nuclear Power Safety
Appendix I 

Scope and Methodology

To understand the processes and the legal protection afforded nuclear

power industry employees who claim they have been discriminated

against for raising safety concerns, we reviewed the whistleblower

protection provisions of the 1974 Energy Reorganization Act (ERA) as

amended, the Energy Policy Act, and the Atomic Energy Act of 1954. We

also examined the legislative histories of these laws. We examined federal

regulations relating to the Department of Labor’s handling of employee

complaints under ERA and the Nuclear Regulatory Commission’s (NRC)

protection of nuclear power employees from discrimination. We also

examined the relevant sections of NRC’s and Labor’s procedure manuals

and management directives.

To determine the effect of Labor’s rulings on industry’s ability to manage

its workforce, we reviewed ERA cases from January 1979 to March 1997.

Because of industry concerns with recent rulings from the Secretary of

Labor and Labor’s Administrative Review Board (ARB), we reviewed

rulings from January 1994 to March 1997 and asked Labor to provide

summary tables of those rulings. We discussed the rulings, provisions of

these laws, and various regulations with NRC officials and with officials in

Labor’s ARB and Office of Administrative Law Judges (OALJ).

In addition, we discussed with knowledgeable industry representatives the

protection of nuclear employees who have raised safety concerns and

potential for abuse of the whistleblower protection system. To obtain the

perspective of licensees, we visited representatives of 15 electrical utility

companies that account for 52 of the nation’s 110 civilian nuclear

generating units. We interviewed managers who had dealt with

discrimination complaints involving both NRC and Labor and with

attorneys who have represented employees and licensees in whistleblower

cases. We also met with officials of the Nuclear Energy Institute (NEI), a

nuclear power industry association whose members include the top

officials of utility companies operating nuclear plants, and we spoke with

other industry legal representatives and industry groups.

Since we were focused on the industry’s perspective on federal processes

and rulings, we did not attempt to determine the merits of particular cases

other than to review the potential effect of specific rulings on industry

safety. We did not meet with individuals who made allegations to discuss

their treatment or their particular case histories. We did not attempt to

establish the appropriateness of NRC’s response to particular rulings or

their allocation of resources for whistleblower protection activities.

Page 36 GAO/HEHS-97-162 Nuclear Power Safety
Appendix I 

Scope and Methodology

We performed our work between September 1996 and June 1997 in

accordance with generally accepted government auditing standards.

Page 37 GAO/HEHS-97-162 Nuclear Power Safety
Appendix II 

Industry Sites Represented by Officials We

Interviewed

Arizona Public Service Co.

Baltimore Gas and Electric Co.

Commonwealth Edison Co.

Detroit Edison Co.

Florida Power and Light Co.

Georgia Power Co.

Houston Lighting and Power Co.

Northeast Nuclear Energy Co.

Pennsylvania Power and Light Co.

Southern California Edison

Southern Nuclear Operating Co.

Tennessee Valley Authority

Texas Utilities Electric Co.

Virginia Electric and Power Co.

Yankee Industries

Page 38 GAO/HEHS-97-162 Nuclear Power Safety
Appendix III 

Secretary of Labor and ARB Decisions,

January 1994-March 1997

Whistleblower cases are initially investigated by Labor’s Occupational

Safety and Health Administration (OSHA) field staff. If either party to the

complaint does not agree with OSHA’s decision, the case may be appealed

to Labor’s OALJ and the appeal is heard by an administrative law judge

(ALJ). The ALJ makes a recommended decision to the Secretary of Labor.

The Secretary may accept, reject, or modify the recommended decision.

Since April 17, 1996, Labor’s ARB has acted for the Secretary in issuing final

decisions on questions of law and fact arising in review or on appeal of

whistleblower cases.

Industry representatives expressed concern about the number of nuclear

whistleblower cases in which the Secretary or the ARB had reversed the

decision of the ALJ. Table III.1 shows Labor’s compilation of Secretary of

Labor/ARB rulings in ERA whistleblower cases for January 1994 through

March 1997.

Table III.1: Secretary of Labor and ARB

Rulings on ERA Cases Decided on the

Merits, January 1994-March 1997

Secretary’s/ARB’s

decision in ERA

casesa 1994 1995 1996

1997

(Jan-Mar.) Total

ALJ recommendation

affirmed 12 17 8 2 39

ALJ recommendation

reversed in

employee’s favor 2 6 3 0 11

ALJ recommendation

reversed in licensee’s

favor 0 1 0 0 1

Total 14 24 11 2 51b

aThe ARB does not maintain an audit trail of individual cases at each level of review.

bOf the 51 cases, at the ALJ level the licensee won 44 and the employee won 7.

Source: Department of Labor, ARB.

Page 39 GAO/HEHS-97-162 Nuclear Power Safety
Appendix IV 

Department of Labor Whistleblower Rulings

That Concern Nuclear Industry Management

Case and summary of

issue Discrimination alleged Labor disposition

Management response

to ruling

Effect management

perceives

Robainas v. Florida Power and Light

Whether a utility

company’s order to have

one employee undergo

psychological

fitness-for-duty evaluation

qualifies as discrimination

under ERA.

Harassment, false

performance evaluations,

illegal fitness-for-duty

evaluation, and unlawful

discharge.

ALJ recommended that

complaint be dismissed

because of failure to

meet burden of proof.

Secretary reversed and

ordered reinstatement

with back pay with

interest, costs, expenses,

and attorney’s fees.

Remanded to ALJ for

proceedings to

determine complete

remedy.

Managers may delay or

refuse to order a

psychological

examination.

Potentially unstable staff

may be left in positions in

which they could

endanger plant safety.

Hobby v. Georgia Power

Whether employee’s

purely internal

memorandum raising

concerns that company’s

reporting structure may

not be in compliance with

its NRC license or

regulations constitutes

protected activity under

ERA.

Company eliminated job

of the person making

allegation, required him

to turn in his employee

badge and gate opener

to executive garage,

limited his access within

the building, and gave

him a lesser office.

ALJ recommended

dismissal of entire

complaint. Secretary

remanded case to ALJ to

determine complete

remedy.

Managers may delay or

refuse to take adverse

actions against

employees.

Staff may refuse to obey

justifiable management

orders. Other staff may

be required to carry out

these orders.

Saporito v. Florida Power and Light

Whether employees may

refuse to discuss their

safety concerns with

management and go

directly to NRC.

Employer disciplined,

harassed, and

discharged employee.

ALJ recommended

denying complaint. 

Secretary remanded

case to ALJ to determine

whether discharge for

“unprotected” activities

was supportable by the

record given the mixed

motives.

Management’s efforts to

ensure safety are

delayed because

employees’ right to

refuse to bring safety

concerns to

management leaves

management uninformed.

Plant may not be as safe

while an outside party

verifies existence of a

safety problem and

informs plant

management.

Mosbaugh v. Georgia Power

Whether surreptitious

electronic recording, by

person making an

allegation, of

conversations that

supported complaints to

NRC constituted protected

activity under the ERA.

Employer downgraded

performance evaluation,

removed company car,

and suspended and later

discharged employee.

ALJ recommended

dismissal of complaint.

Secretary rejected ALJ’s

recommendation and

found that discharge

violated ERA. Ordered

reinstatement with back

pay.

Managers believe free

and open exchange of

information is inhibited.

Trust necessary to

maintaining plant safety

is eroded because

employees’ right to

secretly tape

conversations causes

managers and staff to

hold back, thereby

reducing open

communication.

Constrained

communication and a

potentially less safe plant

during the time the

taping goes on and the

time when NRC informs

the management of the

plant of its concern.

(continued)

Page 40 GAO/HEHS-97-162 Nuclear Power Safety
Appendix IV 

Department of Labor Whistleblower Rulings

That Concern Nuclear Industry Management

Case and summary of

issue Discrimination alleged Labor disposition

Management response

to ruling

Effect management

perceives

Biddy v. Alyeska Pipeline

ARB requires parties

requesting approval of

settlements to provide

settlement documentation

for any other claims arising

from the same factual

circumstances forming

basis of federal claim or

certification that no other

settlement agreements

were entered into by the

parties.

Although not an ERA

issue, this whistleblower

decision is being applied

to ERA cases and

concerns industry. Case

was brought under Toxic

Substances Control Act,

Federal Water Pollution

Control Act, Clean Air

Act, and Solid Waste

Disposal Act.

ALJ recommended

decision requiring that

information on all parties’

settlements related to the

same facts be submitted

to Labor in order for

federal settlement to be

approved.

Managers and legal

representatives fear that

(1) employees who wish

to “hold up” the company

for money and (2)

competitors who might

profit from proprietary

information will gain

unfair advantage if they

can readily see details of

case settlements.

Managers may be less

likely to use the

settlement

approach—and

company is thus

deprived of a legitimate

tool of negotiations that

could ease conflict and

save time and money.

Page 41 GAO/HEHS-97-162 Nuclear Power Safety
Appendix V 

Department of Labor Pilot Processes for

ADR Use

Labor’s Alternative

Dispute Resolution

Pilot Program to

Include ERA Cases

On February 12, 1997, Labor published a proposed rule in the Federal

Register (vol. 62, no. 29, pp. 6689-95) entitled “Expanded Use of

Alternative Dispute Resolution in Programs Administered by the

Department of Labor.” This proposal requested public comments on the

use of ADR in a proposed pilot project test of voluntary mediation or

arbitration in six categories of cases that OALJ adjudicates. One category

included environmental whistleblower cases under employee protection

provisions of the 1974 ERA, which covers whistleblowers in the nuclear

industry.

Labor plans to proceed with a pilot test to help determine whether private,

voluntary mediation or arbitration can (1) resolve disputes more quickly

and more efficiently than conventional litigation, (2) produce resolutions

that satisfy the parties and Labor, and (3) use the enforcement and

litigation resources of Labor more effectively. The primary potential

benefits of using ADR are lower litigation costs to both parties and, for

government agencies, the ability to resolve more cases with the same

resources.

Labor’s proposed pilot test will be limited to six types of cases, selected

because they present promising opportunities for the effective use of

voluntary ADR: (1) discrimination cases involving environmental

whistleblower cases under the employee-protection provisions of ERA and

six other environmental safety and health statutes, (2) cases under section

11(c) of the Occupational Safety and Health Act (29 U.S.C. 660(c)),

(3) cases under the Family and Medical Leave Act of 1993 (29 U.S.C. 2601

et seq.), (4) cases under the Fair Labor Standards Act of 1938 (29 U.S.C.

201 et seq.), (5) compliance review cases under Executive Order 11246,

and (6) complaint investigation cases under the Vietnam Era Veterans’

Readjustment Assistance Act (38 U.S.C. 4212). The results of the proposed

pilot test will guide Labor in future ADR initiatives, including the possible

expansion of voluntary mediation or arbitration to other types of cases.

During the 1990s, Labor has received an annual average of about 90

environmental whistleblower complaints. The Department’s OALJ conducts

about 80 hearings each year in this type of case, resulting in 30 to 40 final

ARB decisions. In the past, there have been significant delays in the

administrative adjudication process. Most recently, cases have been

adjudicated or resolved more promptly.

Under the proposed pilot test, after an employee’s complaint has been

investigated, Labor would determine whether the case is suitable for ADR.

Page 42 GAO/HEHS-97-162 Nuclear Power Safety
Appendix V 

Department of Labor Pilot Processes for

ADR Use

If ADR is appropriate, Labor would offer the employer and the employee

the option of mediation, arbitration, or both, conducted either by a

settlement judge in OALJ or by a private mediator or arbitrator. Labor

would not be a party to or participate in any mediation or arbitration.

Under the proposal, the ARB would not be bound by any resolution reached

by the parties but would review the results of mediation or arbitration. If

appropriate, using the same standard now applied in the ARB’s review of

other environmental whistleblower settlements between employees and

employers, the parties’ mediated settlement or the arbitrator’s decision

would be included in a final ARB order. Labor would revise or supplement

its existing regulations for environmental whistleblower cases (29 C.F.R.

part 24), as necessary, to incorporate these procedures.

Labor Offers Use of

Settlement Judges in

Current Cases

Labor currently offers the use of settlement judges to resolve

whistleblower cases in a less time-consuming and costly manner than a

full ALJ appeal process. In these cases, specially selected ALJs hear

evidence from both parties and attempt to help them reach a settlement. If

settlement attempts are unsatisfactory to either party for any reason, the

case goes back to the formal OALJ process for a full hearing. Labor’s

procedures for the use of the settlement judge process have been available

for several years, but relatively few cases have been adjudicated this way.

Page 43 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VI 

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 44 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VI 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

Now on p. 3.

See comments 1 and 2.

Now on p. 7.

See comment 3.

Now on p. 7.

See comment 1.

Now on p. 9.

See comment 1.

Now on p 11.

See comment 4.

Page 45 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VI 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

Now on p. 15.

See comment 1.

Now on pp. 16-17.

See comments 5 and 6.

Now on p. 18.

See comment 1.

Now on p. 24.

See comment 7.

Now on p. 40.

See comment 1.

Page 46 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VI 

Comments From the Nuclear Regulatory

Commission and Our Evaluation

The following are GAO’s comments on the Nuclear Regulatory

Commission’s letter dated August 6, 1997.

GAO Comments 1. Wording revised.

2. See footnote 13.

3. Comment not incorporated. In the 21 cases closed for administrative

reasons, discrimination was not substantiated.

4. See footnote 8.

5. Comment not fully incorporated.

6. See footnote 10.

7. Comment not incorporated. The ARB Chair clarified remarks attributed

to him concerning occupational groups and adverse actions.

Page 47 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VII 

Comments From the Administrative Review

Board, Department of Labor

Page 48 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VIII 

Comments From the Office of

Administrative Law Judges, Department of

Labor

Now on p. 19.

Now on pp. 12 and 28.

Now on p. 13.

Page 49 GAO/HEHS-97-162 Nuclear Power Safety
Appendix VIII 

Comments From the Office of

Administrative Law Judges, Department of

Labor

Now on p. 20.

Now on p. 28.

Page 50 GAO/HEHS-97-162 Nuclear Power Safety
Appendix IX 

GAO Contacts and Staff Acknowledgments

GAO Contacts Larry Horinko, Assistant Director, (202) 512-7001

George Erhart, Senior Economist, (202) 512-7026

Staff

Acknowledgments

In addition, the following individuals made important contributions to this

report: Edward C. Shepherd and Richard Kelley gathered and analyzed

essential information and drafted sections of the report. Jonathan Barker

of the Office of General Counsel assisted in gathering information and

provided legal assistance, and Philip Olson provided technical advice

concerning NRC activities.

(205326) Page 51 GAO/HEHS-97-162 Nuclear Power Safety
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