[Federal Register Volume 60, Number 26 (Wednesday, February 8, 1995)]
[Notices]
[Pages 7592-7596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3089]



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NUCLEAR REGULATORY COMMISSION

Freedom of Employees in the Nuclear Industry To Raise Safety 
Concerns Without Fear of Retaliation; Draft Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Draft statement of policy.

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SUMMARY: The Nuclear Regulatory Commission is issuing this draft policy 
statement for public comment. The draft policy statement emphasizes the 
importance that the Commission places on maintaining a quality-
conscious environment in which all employees in the nuclear industry 
feel free to raise safety concerns, both to their management and to the 
NRC, without fear of retaliation. The responsibility for maintaining 
this type of an environment rests with each NRC licensee, as well as 
with contractors, subcontractors and employees in the nuclear industry. 
This policy statement would be applicable to licensed activities of all 
NRC licensees and their contractors and subcontractors.

DATES: The comment period expires April 10, 1995. Comments received 
after this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Submit written comments to: Secretary, Attn: Docketing and 
Service Branch, U.S. Nuclear Regulatory Commission, Washington, DC 
20555. Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:45 am and 4:15 pm, Federal workdays. Copies of 
comments received may be examined at the NRC Public Document Room, 2120 
L Street, NW, (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
(301) 504-2741.

SUPPLEMENTARY INFORMATION:

Background

    NRC licensees have the primary responsibility to ensure the safety 
of nuclear operations. Identification and communication of potential 
safety concerns<SUP>1 and the freedom of employees to raise such 
concerns is an integral part of carrying out this responsibility.

    \1\Throughout this notice, the terms ``concerns,'' ``a safety 
problem,'' or ``safety concerns'' refer to concerns associated with 
issues within the Commission's jurisdiction, whether or not a 
violation of NRC requirements is involved.
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    In the past, employees have raised important issues and as a 
result, the public health and safety has benefited. Although the 
Commission recognizes that not every concern raised by employees is 
safety significant or, for that matter, is valid, the Commission 
concludes that it is important that licensees' management establish an 
environment in which safety issues are promptly identified and 
effectively resolved and in which employees feel free to raise 
concerns.
    Although hundreds of concerns are raised and resolved daily in the 
nuclear industry, the Commission, on occasion, receives reports of 
individuals being retaliated against for raising concerns. This 
retaliation is unacceptable and unlawful. In addition to the hardship 
caused to the individual employee, the perception by fellow workers 
that raising concerns has resulted in retaliation can generate a 
chilling effect that may discourage other workers from raising 
concerns. A reluctance on the part of employees to raise concerns is 
detrimental to nuclear safety.
    As a result of questions raised about NRC's efforts to address 
retaliation against individuals who raise health and safety concerns, 
the Commission established a review team in 1993 to reassess the NRC's 
program for protecting allegers against retaliation. In its report 
(NUREG-1499, ``Reassessment of the NRC's Program for Protecting 
Allegers Against Retaliation,'' January 7, 1994) the review team made 
numerous recommendations, including several recommendations that 
addressed the need to encourage responsible licensee action with regard 
to encouraging a quality-conscious environment in which to raise safety 
concerns (recommendations II.A-1, II.A-2, and II.A-4). This policy 
statement is being issued after considering those recommendations and 
the bases for them. The policy statement and the principles set forth 
in it are intended to apply to licensed activities of all NRC licensees 
and their contractors,<SUP>2 although it is recognized that some of the 
suggestions, programs, or steps that might be taken to improve the 
quality of the work environment (e.g., establishment of an employee 
concerns program) may not be practical or may not be needed for very 
small licensees that have only a few employees and a very simple 
management structure.

    \2\Throughout this Notice, the term ``contractor'' includes 
contractors and subcontractors of licensees.
[[Page 7593]]

Statement of Policy

    Under the Atomic Energy Act of 1954, as amended, the NRC has the 
authority to investigate allegations that employees of licensees or 
their contractors have been discriminated against for raising concerns 
and to take enforcement action if discrimination is substantiated. The 
Commission has promulgated regulations to prohibit discrimination (See, 
e.g., 10 CFR 30.7 and 50.7). Under the Energy Reorganization Act of 
1974, as amended, the Department of Labor (DOL) also has the authority 
to investigate complaints of discrimination and to provide a personal 
remedy to the employee when discrimination is found to have occurred. 
However, the processes for providing personal remedies and taking 
enforcement action can be time-consuming. To the extent that 
retaliation can be avoided altogether or addressed and resolved quickly 
when it occurs, the interests of all parties are well served.
    The Commission believes that the most effective improvements to the 
environment for raising concerns will come from within a licensee's 
organization (or the organization of the licensee's contractor), as 
communicated and demonstrated by licensee and contractor management. 
Management should recognize the value of effective processes for 
problem identification and resolution, understand the negative effect 
produced by the perception that employee concerns are unwelcome, and 
appreciate the importance of ensuring that multiple channels exist for 
raising concerns. As the Commission noted in its 1989 Policy Statement 
on the Conduct of Nuclear Power Plant Operations (January 24, 1989; 54 
FR 3424), management must provide the leadership that nurtures and 
perpetuates the safety environment.
    The Commission is issuing this statement to state clearly its 
expectation that licensees will ensure the freedom for all employees to 
raise concerns both to their management and to the NRC without fear of 
retaliation. In developing this policy statement, the Commission 
considered the need for:
    (1) Licensees and their contractors to establish work environments, 
with effective processes for problem identification and resolution, 
where employees feel free to raise concerns, both to their management 
and to the NRC, without fear of retaliation;
    (2) Improving contractors' awareness of their responsibilities in 
this area;
    (3) Senior management of licensees and contractors to become 
directly involved in investigating and addressing or resolving cases of 
alleged discrimination; and
    (4) Employees in the regulated industry to recognize their 
responsibility to raise safety concerns to licensees and their right to 
raise concerns to the NRC.

Effective Processes for Problem Identification and Resolution

    Licensees bear the primary responsibility for the safe use of 
nuclear materials in their various licensed activities. Effective 
problem identification and resolution processes are essential to 
ensuring safety. Thus, it is important that each licensee establish a 
quality-conscious environment where employees are encouraged to raise 
concerns and where such concerns are promptly reviewed, given the 
proper priority based on their potential safety significance, and 
appropriately resolved with timely feedback to employees.
    A quality-conscious environment is reinforced by a management 
attitude that promotes employee confidence in raising and resolving 
concerns. Other attributes of a work place with this type of an 
environment include well-developed systems or approaches for 
prioritizing problems and directing resources accordingly; effective 
communications among various departments or elements of the licensee's 
organization for openly sharing information and analyzing the root 
causes of identified problems; and employees and managers with an open 
and questioning attitude, a focus on safety, and a positive orientation 
toward admitting and correcting personnel errors.
    Initial and periodic training (including contractor training) for 
both employees and supervisors is also an important factor in achieving 
a work environment in which employees feel free to raise concerns. In 
addition to communicating management expectations, training can clarify 
options for problem identification. This would include use of 
licensee's internal processes as well as providing concerns directly to 
the NRC. Training of supervisors may also minimize the potential that 
efforts to reduce operating and maintenance costs may cause supervisors 
to be less receptive to employee concerns if identification and 
resolution of concerns involve significant costs or schedule delays.
    Incentive programs may provide a highly visible method for 
demonstrating management's commitment to safety, by rewarding ideas not 
based solely on their cost savings but also on their contribution to 
safety. Credible self-assessments of the environment for raising 
concerns can contribute to program effectiveness by evaluating the 
adequacy and timeliness of problem resolution. Self assessments can 
also be used to determine whether employees believe their concerns have 
been adequately addressed and whether employees feel free to raise 
concerns. When problems are identified through self-assessment, prompt 
corrective action should be taken.
    A basic measure of licensee success in this area is the degree to 
which concerns are identified and resolved through established internal 
procedures. The use of normal processes (e.g., raising issues to the 
employee supervisors or utilizing quality assurance programs) for 
problem identification and resolution is both more efficient and less 
likely to result in conflict. While licensees should encourage 
employees to resolve problems using normal processes, safety 
considerations dictate that no method of raising concerns should be 
discouraged. Thus, each licensee should develop a dual focus: achieving 
and maintaining an environment where employees feel free to raise their 
concerns directly to their supervisors and to licensee management; and 
ensuring that alternate means of raising and addressing concerns are 
accessible, credible, and effective.
    It is important to recognize that the fact that some employees do 
not desire to use the normal line management processes does not mean 
that they do not have legitimate concerns. Even in a generally good 
environment, some employees may not be comfortable in raising concerns 
through the normal channels. From a safety perspective, these concerns 
need to be captured by the licensee's resolution processes. Therefore, 
it is important that licensees provide methods for raising concerns 
that can serve as internal ``escape valves'' or ``safety nets.''\3\ 
Examples of these methods include:

    \3\In developing these programs, it is important for reactor 
licensees to be able to capture all concerns, not just concerns 
related to ``safety related'' activities covered by 10 CFR Part 50, 
Appendix B. For example, concerns relating to environmental, 
safeguards, and radiation protection issues should also be captured.
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    (1) An ``open-door'' policy that allows the employee to bring the 
concern to a higher-level manager;
    (2) A policy that permits employees to raise concerns to the 
licensee's quality assurance group; or
    (3) Some form of an employee concerns program.

NUREG-1499 may provide some helpful insights on various employee-
concern programs. The success of a licensee ``safety-net'' program is 
influenced by [[Page 7594]] the program's accessibility to employees, 
prioritization processes, independence, ability to protect the identity 
of employees, and adequate resources. However, the prime factors in the 
success of a given program appear to be demonstrated management support 
and how employees perceive the program. Therefore, timely feedback on 
the follow-up and resolution of concerns raised by employees is a 
necessary element of these programs.

Improving Contractors Awareness of Their Responsibilities

    The Commission's long-standing policy has been and continues to be 
to hold its licensees responsible for compliance with NRC requirements, 
even if licensees use contractors for products or services related to 
licensed activities. Thus, licensees are responsible for having their 
contractors maintain an environment in which contractor employees are 
free to raise concerns without fear of retaliation.
    Nevertheless, certain NRC requirements apply directly to 
contractors of licensees (see, for example, the rules on deliberate 
misconduct, such as 10 CFR 30.10, and 50.5 and the rules on reporting 
of defects and noncompliances in 10 CFR Part 21). In particular, the 
Commission's prohibition on discriminating against employees for 
raising safety concerns applies to the contractors of its licensees, as 
well as to licensees (see, for example, 10 CFR 30.7 and 50.7). 
Accordingly, if a licensee contractor discriminates against one of its 
employees in violation of applicable Commission rules, the Commission 
intends to consider enforcement action against both the licensee, who 
remains responsible for the environment maintained by its contractors, 
and the employer who actually discriminated against the employee.
    The Commission is concerned that a large number of discrimination 
complaints are made by employees of contractors. The Commission expects 
its licensees to take action so that:
    (1) Each contractor is aware of the applicable regulations that 
prohibit discrimination;
    (2) Each contractor is aware of its responsibilities in fostering 
an environment for raising concerns;
    (3) The licensee has the ability to oversee the contractor's 
efforts to encourage employees to raise concerns, prevent 
discrimination, and resolve allegations of discrimination by obtaining 
reports of alleged contractor discrimination and associated 
investigations conducted by or on behalf of its contractors; conducting 
its own investigations of such discrimination; and, if warranted, by 
directing that remedial action be undertaken; and
    (4) Contractor employees and management are informed of (a) the 
importance of raising safety concerns and (b) how to raise concerns 
through normal processes, alternative internal processes, and directly 
to the NRC.
    Adoption of contract provisions covering the matters discussed 
above may provide additional assurance that contractor employees will 
be able to raise concerns without fear of retaliation.

Involvement of Senior Management in Cases of Alleged Discrimination

    The Commission reminds licensees of their obligation both to ensure 
that personnel actions against employees who have raised concerns, 
including personnel actions by contractors, have a well-founded, 
legitimate non-discriminatory basis and to make clear to all employees 
that any adverse action taken against an employee was for legitimate 
non-discriminatory reasons. If employees allege retaliation for 
engaging in protected activities, senior licensee management should 
become involved, review the particular facts, and consider or 
reconsider the action.
    In some cases, management may desire to use a holding period, that 
is, to maintain or restore the pay and benefits of the employee 
alleging retaliation, pending resolution of the matter or pending the 
outcome of an investigation by the Department of Labor (DOL). This 
holding period may calm feelings on site and could be used to 
demonstrate management encouragement of an environment conducive to 
raising concerns. By this approach, management would be acknowledging 
that although a dispute exists as to whether discrimination occurred, 
in the interest of not discouraging other employees from raising 
concerns, the employee involved in the dispute will not lose pay and 
benefits while the dispute is being resolved. In addition, this 
approach encourages licensees and employees to resolve their 
differences without the need for NRC or DOL involvement.
    Nothing in this policy statement should be taken to alter the 
existing rights of either the licensee or the employee, or be taken as 
a direction by, or an expectation of, the Commission, for licensees to 
adopt the holding period concept. For both the employee and the 
employer, participation in a holding period under the conditions of a 
specific case is entirely voluntary.
    The intent of this policy statement is to emphasize the importance 
of licensee management taking an active role to resolve promptly 
situations involving alleged discrimination internally, with minimal 
disruption of the work place and without government involvement. 
Because of the complex nature of labor-management conflicts, any 
externally-imposed resolution is not as desirable as one achieved 
internally. The Commission emphasizes that internal resolution is the 
licensee's responsibility, and that early resolution is in the best 
interests of both the licensee and the employee. For this reason, the 
Commission has recently amended its enforcement policy (10 CFR Part 2, 
Appendix C) to provide greater consideration of the actions taken by 
licensees in addressing and resolving issues of discrimination when the 
Commission develops enforcement sanctions for violations involving 
discrimination. 59 FR 60697 (November 28, 1994).
    A licensee may conclude after a full review that an adverse action 
against an employee is warranted.\4\ The Commission recognizes the need 
for licensees to take disciplinary action when such action is 
justified. Commission regulations do not render a person who engages in 
protected activity immune from discharge or discipline stemming from 
non-prohibited considerations (see, for example, 10 CFR 50.7(d)). The 
Commission expects licensees to make personnel decisions that are 
consistent with regulatory requirements and that will enhance the 
effectiveness and safety of the licensee's operations.

    \4\When other employees know that the individual who was the 
recipient of an adverse action may have engaged in protected 
activities, it may be appropriate for the licensee to let the other 
employees know, consistent with privacy considerations, that (1) 
management reviewed the matter and determined that its action was 
warranted, (2) the action was not in retaliation for engaging in 
protected activity and the reason why, and (3) licensee management 
continues to encourage them to raise issues. This may reduce any 
perception that retaliation occurred.
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Responsibilities of Employees

    As emphasized above, the responsibility for maintaining a quality-
conscious environment rests with licensee management. However, 
employees in the nuclear industry also have responsibilities in this 
area. As a general principle, the Commission expects employees in the 
nuclear industry to raise safety and compliance concerns directly to 
licensees, or indirectly to licensees through contractors, since it is 
the licensee, and not the Commission, who has the primary 
responsibility for, and is most able to ensure, safe operation of 
nuclear [[Page 7595]] facilities and safe use of nuclear materials.\5\ 
Employees have a variety of responsibilities to their employers to 
raise concerns to them, based on employment contracts, employers' 
rules, and NRC requirements. In fact, many employees in the nuclear 
industry have been specifically hired to fulfill NRC requirements that 
licensees identify deficiencies, violations and safety issues. Examples 
of these include many employees who conduct surveillance, quality 
assurance, radiation protection, and security activities. In addition 
to individuals who specifically perform functions to meet monitoring 
requirements, the Commission believes that all employees have a 
responsibility to raise concerns to licensees if they identify safety 
issues\6\ so that licensees can address them before an event with 
safety consequences occurs.

    \5\The expectation that employees provide safety and compliance 
concerns to licensees is not applicable to concerns of possible 
wrongdoing by NRC employees or NRC contractors. Such concerns are 
subject to investigation by the NRC Office of Inspector General. 
Concerns related to fraud, waste or abuse in NRC operations or NRC 
programs including retaliation against a person for raising such 
issues should be reported directly to the NRC Office of Inspector 
General. The Inspector General's toll free hotline is 800-233-3497.
    \6\Except in the area of radiological working conditions, the 
Commission has not codified this obligation. Licensees are required 
by 10 CFR 19.12 to train certain employees in their responsibility 
to raise issues related to radiation safety.
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    The Commission emphasizes that employees who raise concerns serve 
an important role in addressing potential safety issues. Retaliation 
against employees who, in good faith, attempt to carry out this 
responsibility cannot and will not be tolerated.
    The Commission's expectation that employees will raise safety 
concerns to licensees does not mean that employees may not come to the 
NRC. The Commission encourages employees, when they are not satisfied 
that licensees have been responsive to their concerns, or for that 
matter at any time when they believe that the Commission should be 
aware of their concerns, to come to the NRC. But the Commission does 
expect that employees normally will have raised the issue with the 
licensee either prior to or contemporaneously with coming to the NRC. 
This is because the licensee, and not the NRC, is usually in the best 
position and has the detailed knowledge of the specific operations and 
the resources to deal promptly and effectively with concerns raised by 
employees. The NRC can only serve as a supplementary avenue for raising 
concerns, not the primary conduit. This is another reason why the 
Commission expects licensees to establish an environment in which 
employees feel free to raise concerns to the licensees themselves.
    Employees should be aware that except in limited fact-specific 
instances, advising the Commission of safety information would not 
absolve an employee of his or her duty also to inform the employer of 
matters that could bear on public, including worker, health and safety. 
Examples of those exceptions would include situations in which the 
employee had a reasonable expectation that he or she may be subject to 
retaliation for raising an issue to his or her employer even if an 
alternative internal process is used, situations where the licensee has 
threatened adverse action for identifying noncompliances or other 
safety concerns, and circumstances in which the employee believes that 
supervisors and management may have engaged in wrongdoing and that 
raising the matter internally could result in a cover-up or destruction 
of evidence.
    The Commission cautions licensees that although licensees should 
expect employees to normally raise issues to them, disciplining 
employees for not doing so when they have come directly to the NRC will 
be closely scrutinized by the Commission. The Commission will give high 
priority to investigating allegations of such discrimination. Whether 
it was reasonable for an employee not to have raised a safety concern 
to the licensee depends on all the relevant facts and circumstances in 
the particular situation. If disciplinary action is found to have 
occurred solely because the person came to the NRC, enforcement action 
will be taken against the licensee.

Summary

    In summary, the Commission expects that NRC licensees will 
establish quality-conscious environments in which employees of 
licensees and licensee contractors are free, and feel free, to raise 
concerns to their management and to the NRC without fear of 
retaliation.
    (a) The Commission expects that each of its licensees will:
    (1) With the exception of relatively small licensees with few 
employees, have a defined alternate method for raising and addressing 
concerns internally beyond the normal process of identifying concerns 
to supervisors;
    (2) Inform its employees and supervisors, including contractor and 
subcontractor employees and supervisors, of (a) the importance of 
raising concerns and (b) how to raise concerns through normal 
processes, alternative internal processes, and directly to the NRC; and
    (3) Address all potential safety and compliance concerns. For 
reactor licensees this means their programs should not focus solely on 
concerns related to ``safety-related'' activities.
    (b) In situations where licensees use contractors to assist them in 
carrying out licensed activities, the Commission expects that:
    (1) Each contractor or subcontractor will be made aware of the 
applicable regulations which prohibit discrimination;
    (2) Each contractor or subcontractor will be made aware of its 
responsibility to foster an environment in which employees are free to 
raise concerns, and of the need to provide training for supervisors and 
employees; and
    (3) The licensee will have the ability to oversee the contractor's 
or subcontractor's efforts to encourage employees to raise concerns, 
prevent discrimination, and resolve allegations of discrimination.
    Licensees must ensure that employment actions against employees who 
have raised concerns have a well-founded, non-discriminatory basis. 
When allegations of discrimination arise in licensee, contractor, or 
subcontractor organizations, the Commission expects that senior 
licensee management will get directly involved, review the particular 
facts, consider or reconsider the action, and, where warranted, remedy 
the matter.
    Employees also have a role in contributing to a quality-conscious 
environment. The Commission expects that each employee will raise 
concerns to the employer when the employee identifies a safety or 
compliance issue. Although employees are free to come to the NRC at any 
time, the Commission expects that employees will normally raise 
concerns with the involved licensee because the licensee has the 
primary responsibility for safety and is normally in the best position 
to promptly and effectively address the matter. Except in limited 
circumstances, the NRC should be viewed as a safety valve and not as a 
substitute forum for raising safety concerns.
    This policy statement has been issued to highlight licensees' 
existing obligation to maintain an environment in which employees are 
free to raise concerns without retaliation. However, if a licensee has 
not met this obligation, as evidenced by retaliation against an 
individual for engaging in a protected activity, whether the activity 
involves providing information to the licensee or the NRC, appropriate 
enforcement action can and will be taken against the 
[[Page 7596]] licensee, its contractors, and the involved individual 
supervisors.
    The Commission recognizes that the actions discussed in this policy 
statement will not necessarily insulate an employee from retaliation, 
nor will they remove all personal cost should the employee seek a 
personal remedy. However, these measures, if adopted by licensees, 
should improve the environment for raising concerns.

    Dated at Rockville, Maryland, this 2nd day of February, 1995.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 95-3089 Filed 2-7-95; 8:45 am]
BILLING CODE 7590-01-P