Nuclear Power Safety: Industry Concerns With Federal Whistleblower Protection System

Published by the Government Accountability Office on 1997-09-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                  United States General Accounting Office

GAO               Report to the Chairman, Subcommittee
                  on Oversight and Investigations,
                  Committee on Commerce, House of

September 1997
                  NUCLEAR POWER
                  Industry Concerns
                  With Federal
                  Protection System

      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Health, Education, and
      Human Services Division


      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

       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
•   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

    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.)

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

                    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.

                   Page 3                                                GAO/HEHS-97-162 Nuclear Power Safety

             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.

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

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

                      Page 5                                                    GAO/HEHS-97-162 Nuclear Power Safety

                         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

                         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    Although the management of a nuclear power plant charged with
Employees Involves Two   discrimination faces two agencies investigating the same allegation, the
Agencies                 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.

                         Page 6                                    GAO/HEHS-97-162 Nuclear Power Safety

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

                            Page 7                                      GAO/HEHS-97-162 Nuclear Power Safety

                             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   Labor’s actions to investigate whistleblower complaints made by nuclear
Whistleblowers               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.

                             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.
                              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
                              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.

                             Page 8                                                    GAO/HEHS-97-162 Nuclear Power Safety

                     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.

                     Industry officials expressed varied opinions about whether both NRC and
Managers’ Concerns   Labor should continue to be involved in protection and what role each
With Federal         agency should play. The perspectives expressed about the processes, case
Processes That       outcomes, and potential for abuse appeared to depend largely on whether
                     the licensee had recent experience in dealing with whistleblowers and the
Protect              processes. Generally, officials without recent experience in whistleblower
Whistleblowers       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

                      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.

                     Page 9                                                     GAO/HEHS-97-162 Nuclear Power Safety

                           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   Industry managers and legal representatives expressed widely varying
Widely on NRC and Labor    opinions about whether two federal agencies should continue to be
Roles                      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

                           Page 10                                     GAO/HEHS-97-162 Nuclear Power Safety

                         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

                         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   Industry officials commented about the specific problems they
Processes                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

                          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

                                 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   Managers in the nuclear power industry recently involved with the federal
Long                             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           The existing federal process involves several steps with actions by
Redundant                        multiple agencies, which industry sees as redundant. By regulation, OSHA
                                 must complete an initial investigation within 30 days; however, the time is

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

                                 Page 12                                      GAO/HEHS-97-162 Nuclear Power Safety

                              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

Processes Said to Interfere   Many of the managers we interviewed said that the whistleblower
With Effective Management     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

                              Page 13                                      GAO/HEHS-97-162 Nuclear Power Safety

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’

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

Page 14                                     GAO/HEHS-97-162 Nuclear Power Safety

                             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   Industry officials we interviewed said that NRC often gives contradictory
That They Get                messages in its actions and guidance relative to handling whistleblower
Contradictory Messages       allegations. Officials said NRC often acts on a finding of discrimination by
                             Labor, even when that finding contradicts the results of NRC’s own
From NRC                     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

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

                         acknowledged that new managers were in place and changes had been

Managers Question Data   Managers expressed concern about the allegation data that NRC collects,
NRC Uses                 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

                         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.

                           The 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.
                           60 Fed. Reg. 8790 (1997).

                         Page 17                                                 GAO/HEHS-97-162 Nuclear Power Safety

NRC’s Regulatory Power        Industry officials’ concerns about the whistleblower protection process
Affects Officials’ Views on   are heightened by NRC’s regulatory power over licensees regarding the
Whistleblower Protection      total operation of nuclear plants. Industry officials said that they believe
                              that NRC may take enforcement action against any licensee when Labor
System                        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.

                              Page 18                                    GAO/HEHS-97-162 Nuclear Power Safety

                         Industry representatives expressed concern about a number of rulings the
Secretary of Labor       Secretary of Labor and the ARB have made on whistleblower cases in the
Rulings Cause            past several years, especially what they characterize as significant
Industry Concern         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   Nuclear industry legal representatives told us that they monitor Labor’s
Recommendations          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

                           Both 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

                               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          Either party may appeal an unfavorable decision to the court. Industry
Few of the Labor               legal representatives whom we interviewed stated they had appealed few
Secretary’s Reversals          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 industry attorneys alleged that several secretarial reversals of ALJ
Some Secretarial Reversals     decisions occurred because of determinations of witness credibility. These
of ALJ Decisions               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

                             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

Officials Say Labor’s        Some industry officials believe that several of the Secretary of Labor’s
Rulings Have Broadened       decisions reversing ALJ recommendations have expanded the definition of
Employee Protections         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

                             Page 21                                   GAO/HEHS-97-162 Nuclear Power Safety

    reporting structure. Officials said the ruling created a chilling effect on
    managers’ supervisory behavior and ability to pursue legitimate
•   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

    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

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

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

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

Page 23                                    GAO/HEHS-97-162 Nuclear Power Safety

                           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

                           Many of the nuclear power officials we interviewed said that the federal
Abuse of the System        whistleblower protection system is plagued by abuse but that only a
Alleged but Not            relatively few individuals are responsible for such abuse. Industry
Documented                 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      Officials told us that many of the whistleblower complaints have been
Believed to Be Used to     about concerns other than safety issues. They emphasized, however, that
Resolve Nonsafety Issues   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

                          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   While the federal processes protect employees who go outside the plant to
Characterizations of      NRC, Labor, or the public to raise safety concerns as “whistleblowers,”

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

                          Page 25                                    GAO/HEHS-97-162 Nuclear Power Safety

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

Page 26                                    GAO/HEHS-97-162 Nuclear Power Safety

                           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   Industry officials made a number of suggestions to improve the federal
Improving the              whistleblower protection system. Although they raised many issues about
Whistleblower Protection   the current processes, none advocated major structural changes. Most of
                           the managers and the legal representatives we interviewed said they were
System                     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

                     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.

                     NRC provided written comments on the draft report. In those comments,
Agency Comments      NRC’s Executive Director for Operations disagreed with several of the
and Our Evaluation   positions taken by industry and discussed in our report. NRC also stated

                      From 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

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

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

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

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

Letter                                                                                             1

Appendix I                                                                                        36

Scope and
Appendix II                                                                                       38

Industry Sites
Represented by
Officials We
Appendix III                                                                                      39

Secretary of Labor
and ARB Decisions,
January 1994-March
Appendix IV                                                                                       40

Department of Labor
Whistleblower Rulings
That Concern Nuclear
Industry Management
Appendix V                                                                                        42
                        Labor’s Alternative Dispute Resolution Pilot Program to Include           42
Department of Labor       ERA Cases
Pilot Processes for     Labor Offers Use of Settlement Judges in Current Cases                    43

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

Appendix VI                                                                                      44
                        GAO Comments                                                             47
Comments From the
Nuclear Regulatory
Commission and Our
Appendix VII                                                                                     48

Comments From the
Review Board,
Department of Labor
Appendix VIII                                                                                    49

Comments From the
Office of
Administrative Law
Judges, Department of
Appendix IX                                                                                      51

GAO Contacts and
Table                   Table III.1: Secretary of Labor and ARB Rulings on ERA Cases             39
                          Decided on the Merits, January 1994-March 1997

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


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

               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       Secretary’s/ARB’s
Merits, January 1994-March 1997           decision in ERA                                                                    1997
                                          casesa                                1994            1995           1996     (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
                                              The ARB does not maintain an audit trail of individual cases at each level of review.
                                              Of 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                                                                    Management response         Effect management
issue                         Discrimination alleged      Labor disposition            to ruling                   perceives
Robainas v. Florida Power and Light
Whether a utility             Harassment, false           ALJ recommended that         Managers may delay or       Potentially unstable staff
company’s order to have       performance evaluations,    complaint be dismissed       refuse to order a           may be left in positions in
one employee undergo          illegal fitness-for-duty    because of failure to        psychological               which they could
psychological                 evaluation, and unlawful    meet burden of proof.        examination.                endanger plant safety.
fitness-for-duty evaluation   discharge.                  Secretary reversed and
qualifies as discrimination                               ordered reinstatement
under ERA.                                                with back pay with
                                                          interest, costs, expenses,
                                                          and attorney’s fees.
                                                          Remanded to ALJ for
                                                          proceedings to
                                                          determine complete
Hobby v. Georgia Power
Whether employee’s            Company eliminated job      ALJ recommended              Managers may delay or       Staff may refuse to obey
purely internal               of the person making        dismissal of entire          refuse to take adverse      justifiable management
memorandum raising            allegation, required him    complaint. Secretary         actions against             orders. Other staff may
concerns that company’s       to turn in his employee     remanded case to ALJ to      employees.                  be required to carry out
reporting structure may       badge and gate opener       determine complete                                       these orders.
not be in compliance with     to executive garage,        remedy.
its NRC license or            limited his access within
regulations constitutes       the building, and gave
protected activity under      him a lesser office.
Saporito v. Florida Power and Light
Whether employees may         Employer disciplined,       ALJ recommended              Management’s efforts to     Plant may not be as safe
refuse to discuss their       harassed, and               denying complaint.           ensure safety are           while an outside party
safety concerns with          discharged employee.        Secretary remanded           delayed because             verifies existence of a
management and go                                         case to ALJ to determine     employees’ right to         safety problem and
directly to NRC.                                          whether discharge for        refuse to bring safety      informs plant
                                                          “unprotected” activities     concerns to                 management.
                                                          was supportable by the       management leaves
                                                          record given the mixed       management uninformed.
Mosbaugh v. Georgia Power
Whether surreptitious         Employer downgraded         ALJ recommended              Managers believe free       Constrained
electronic recording, by      performance evaluation,     dismissal of complaint.      and open exchange of        communication and a
person making an              removed company car,        Secretary rejected ALJ’s     information is inhibited.   potentially less safe plant
allegation, of                and suspended and later     recommendation and           Trust necessary to          during the time the
conversations that            discharged employee.        found that discharge         maintaining plant safety    taping goes on and the
supported complaints to                                   violated ERA. Ordered        is eroded because           time when NRC informs
NRC constituted protected                                 reinstatement with back      employees’ right to         the management of the
activity under the ERA.                                   pay.                         secretly tape               plant of its concern.
                                                                                       conversations causes
                                                                                       managers and staff to
                                                                                       hold back, thereby
                                                                                       reducing open

                                                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                                                                      Management response          Effect management
issue                          Discrimination alleged      Labor disposition             to ruling                    perceives
Biddy v. Alyeska Pipeline
ARB requires parties           Although not an ERA         ALJ recommended               Managers and legal           Managers may be less
requesting approval of         issue, this whistleblower   decision requiring that       representatives fear that    likely to use the
settlements to provide         decision is being applied   information on all parties’   (1) employees who wish       settlement
settlement documentation       to ERA cases and            settlements related to the    to “hold up” the company     approach—and
for any other claims arising   concerns industry. Case     same facts be submitted       for money and (2)            company is thus
from the same factual          was brought under Toxic     to Labor in order for         competitors who might        deprived of a legitimate
circumstances forming          Substances Control Act,     federal settlement to be      profit from proprietary      tool of negotiations that
basis of federal claim or      Federal Water Pollution     approved.                     information will gain        could ease conflict and
certification that no other    Control Act, Clean Air                                    unfair advantage if they     save time and money.
settlement agreements          Act, and Solid Waste                                      can readily see details of
were entered into by the       Disposal Act.                                             case settlements.

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

Department of Labor Pilot Processes for

                      On February 12, 1997, Labor published a proposed rule in the Federal
Labor’s Alternative   Register (vol. 62, no. 29, pp. 6689-95) entitled “Expanded Use of
Dispute Resolution    Alternative Dispute Resolution in Programs Administered by the
Pilot Program to      Department of Labor.” This proposal requested public comments on the
                      use of ADR in a proposed pilot project test of voluntary mediation or
Include ERA Cases     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

                      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

                      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 currently offers the use of settlement judges to resolve
Labor Offers Use of    whistleblower cases in a less time-consuming and costly manner than a
Settlement Judges in   full ALJ appeal process. In these cases, specially selected ALJs hear
Current Cases          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.

               1. Wording revised.
GAO Comments
               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

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

Now on p. 20.

Now on p. 28.

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

GAO Contacts and Staff Acknowledgments

                  Larry Horinko, Assistant Director, (202) 512-7001
GAO Contacts      George Erhart, Senior Economist, (202) 512-7026

                  In addition, the following individuals made important contributions to this
Staff             report: Edward C. Shepherd and Richard Kelley gathered and analyzed
Acknowledgments   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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