oversight

Nuclear Employee Safety Concerns: Allegation System Offers Better Protection, but Important Issues Remain

Published by the Government Accountability Office on 1997-03-31.

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

                 United States General Accounting Office

GAO              Report to Congressional Requesters




March 1997
                 NUCLEAR EMPLOYEE
                 SAFETY CONCERNS
                 Allegation System Offers
                 Better Protection, but
                 Important Issues Remain




GAO/HEHS-97-51
      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Health, Education, and
      Human Services Division

      B-270675

      March 31, 1997

      The Honorable John D. Dingell
      Ranking Minority Member
      Committee on Commerce
      House of Representatives

      The Honorable Joseph I. Lieberman
      United States Senate

      A nuclear power plant accident could result in severe harm or death not
      only for workers but also for thousands of people living in the surrounding
      area. Although the Nuclear Regulatory Commission (NRC) is directly
      responsible for monitoring the nation’s more than 100 nuclear power
      plants, as well as over 6,000 individuals and organizations licensed to
      possess and use nuclear materials and wastes,1 it is physically impossible
      for NRC inspections to detect all health and safety hazards. For this reason,
      it is critical that nuclear plant employees feel free to raise health and
      safety concerns without fear of retribution.

      Federal laws prohibit retaliation by power plant operators (licensees) or
      their contractors against employees who “blow the whistle” by surfacing
      health and safety issues. Protection is provided as follows: If
      discrimination occurs, employees are to receive restitution and sanctions
      may be imposed against employers. If employees believe the system
      established by these laws adequately protects them, they will be more
      willing to report hazards. Similarly, if licensees believe they will receive
      burdensome sanctions or other negative consequences when they
      discriminate against these employees, they will be unlikely to retaliate and
      the atmosphere at their plants will be one in which employees feel free to
      raise these concerns.

      You expressed concern that these laws, as they have been implemented by
      NRC and the Department of Labor, may not adequately protect nuclear
      power industry workers who raise health and safety issues. Your concern
      was based, in part, on problems surfaced in several recent studies that
      recommended improvements to the system. For these reasons, you asked
      us to




      1
       Another 15,000 individuals and organizations licensed to use nuclear materials and wastes are
      regulated by state agencies under agreements with NRC.



      Page 1                                      GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                       B-270675




                   •   describe how federal laws and regulations protect nuclear power industry
                       employees from discrimination for raising health and safety concerns and
                   •   determine the implementation status of recommendations made in recent
                       NRC and Labor internal reviews and audits of the system for protecting
                       workers and assess the resulting changes to the system.

                       To do our work, we reviewed the provisions of the Energy Reorganization
                       Act (ERA), as amended, pertaining to protection for employees who raise
                       health and safety concerns and related legislation; the Code of Federal
                       Regulations sections pertaining to processing allegations of
                       discrimination;2 and pertinent NRC and Department of Labor internal
                       directives. We discussed the processes for protecting these employees
                       with (1) cognizant NRC and Labor officials in both headquarters and field
                       offices, (2) employees who had alleged discrimination and filed
                       complaints with NRC and Labor, (3) managers at three licensees who had
                       been involved in resolving numerous discrimination allegations,
                       (4) attorneys who had represented both employees and licensees in these
                       proceedings, and (5) advocates for both employees and licensees. We
                       obtained and analyzed databases on discrimination allegations from all
                       NRC and Labor offices involved in investigating and resolving these cases.
                       We reviewed studies pertaining to allegations issues performed by the NRC
                       program staff and by the NRC and Labor Offices of Inspector General (OIG)
                       and obtained information on changes that are being made to improve the
                       process. (See app. I for details of our scope and methodology.)


                       NRC  has overall responsibility for ensuring that the nuclear plants it
Results in Brief       licenses are operated safely, and the Department of Labor also plays a role
                       in the system that protects industry employees against discrimination for
                       raising health and safety concerns. More specifically, the Atomic Energy
                       Act, as amended, gives NRC responsibility for taking action against the
                       employers it licenses when they are found to have discriminated against
                       individual employees. NRC can investigate when a harassment and
                       intimidation allegation is filed with NRC or when it receives a copy of a
                       discrimination complaint filed with Labor. An NRC review panel discusses
                       whether an allegation warrants investigation and recommends the
                       investigation priority. Once the panel and NRC’s Office of Investigations
                       complete initial inquiries, the Investigations staff, in coordination with the
                       regional administrator, decides the case’s priority and whether they will do



                       2
                        “Harassment and intimidation allegation” and “discrimination complaint” are NRC’s and Labor’s
                       respective terms for what this report calls discrimination allegations.



                       Page 2                                     GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675




a full investigation. NRC’s Office of Enforcement may use the results of the
NRC investigation or a decision from Labor to support enforcement action.


In addition, the ERA, as amended, authorizes the Secretary of Labor to
order employers to make restitution to the victims of such discrimination.
Restitution can include such actions as reinstatement to a former position,
reimbursement of all expenses related to the complaint, and removal from
personnel files of any adverse references to complaint activities. At Labor,
an order for restitution usually comes at the end of a three-stage process:
(1) an investigation by the Occupational Safety and Health Administration
(OSHA); (2) a hearing before an administrative law judge (ALJ) if the OSHA
determination is appealed; and (3) a review of the recommended decision
by the Administrative Review Board (ARB), which issues the Secretary of
Labor’s final decision. Settlements may occur at any point in the process
and often are made to minimize the cost and time of continuing a case for
both employee and licensee.

Concerns raised by employees about a lack of protection under the
existing process led to studies begun by NRC and Labor in 1992 and by a
review team established by the NRC Executive Director for Operations in
1993. These concerns included the inordinate amount of time it took Labor
to act on some discrimination complaints and NRC’s lack of involvement in
cases during Labor’s decision process. In response to recommendations in
reports from these groups, both NRC and Labor have taken actions
intended to improve the system for protecting employees. For example,
NRC has established a senior position to centrally coordinate and oversee
all phases of allegation management, and it has taken other actions to
improve overall management of the system, such as establishing
procedures to improve communication and feedback among employees,
NRC, and licensees. It has also increased its involvement in allegation cases
through several actions, including investigating a greater number of
allegations. Within Labor, responsibility for two of the three stages—the
initial investigation and the Secretary’s final decision—has been
transferred from one organizational unit to another. Transfer of
responsibility for the initial investigation from the Wage and Hour Division
to OSHA as of February 1997 was part of an exchange of responsibilities to
better use program expertise and resources, while delegation to ARB of the
authority for signing the final order was expected to improve timeliness.
Additionally, a backlog of cases that had been awaiting a final decision in
the Secretary’s office for an average of 2.5 years—which included 129
discrimination complaints by employees that were based on health and
safety concerns—has been eliminated, as recommended by the Labor OIG.



Page 3                           GAO/HEHS-97-51 Nuclear Employee Safety Concerns
             B-270675




             While NRC and Labor have been responsive to these recommendations,
             other recommendations, which could be implemented through
             administrative procedural changes and would further improve the system,
             still need to be addressed. These recommendations pertain to overall
             timeliness of decisions at Labor; an automated system for tracking both
             individual allegations and aggregate trends, such as settlements; and
             knowledge of whether nuclear plant employees feel free, given their work
             environments, to raise health and safety concerns. In addition, NRC and
             Labor have yet to complete action on recommendations requiring
             statutory and regulatory changes. These include recommendations to
             reduce the financial burden on workers with cases pending and to
             increase the dollar amount of civil penalties.


             NRC is an independent agency of the federal government. Its five
Background   commissioners are nominated by the president and confirmed by the
             Senate, and its chairman is appointed by the president from among the
             commissioners. The current Chairman was sworn in as a commissioner in
             May 1995 and became Chairman that July. NRC’s mission includes ensuring
             that civilian use of nuclear materials in the United States—in the operation
             of nuclear power plants and in medical, industrial, and research
             applications—is done with adequate protection of public health and
             safety. NRC carries out its mission through licensing and regulatory
             oversight of nuclear reactor operations and other activities involving the
             possession and use of nuclear materials and wastes.

             Because it is impossible for NRC’s inspections to detect all potential
             hazards, NRC must also rely on nuclear licensee employees to help identify
             such problems. Actions taken to respond to employee concerns raised in
             the past have significantly contributed to improving safety in the nuclear
             industry. Although most employee concerns are raised directly to licensee
             managers and are resolved internally by licensees, employees may choose
             to bring allegations directly to NRC. An employee generally raises a concern
             with NRC if he or she is not satisfied with the licensee’s resolution of the
             concern or is not comfortable raising the concern internally. Employees
             may be discouraged from raising these issues internally if they believe
             their employer discriminates against those who do so. This phenomenon
             in the working environment is termed the “chilling effect.”

             Some observers believe that certain developments in the nuclear power
             industry increase the vulnerability of power plants to hazards, which
             would increase the importance of employee vigilance in noting and



             Page 4                          GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675




reporting hazards. For example, the electrical power industry may soon
face deregulation, which would allow customers to choose a supplier and
create competition in the industry that did not exist before. This has led to
increased concern by NRC about safety because of the potential pressure
on utilities to minimize operating costs. Preparation for deregulation has
already resulted in downsizing at some nuclear plants and the closing of
others because of their comparatively high operating costs. Furthermore,
the nation’s over 100 nuclear power plants are aging (most were built
before 1980), which puts them increasingly at risk for certain kinds of
hazards.

Labor administers a variety of laws affecting conditions in the nation’s
work places, including laws to protect employees who report work place
hazards. OSHA’s responsibilities include investigating employee
discrimination complaints under these laws, including the ERA.3
Investigations of employee discrimination cases are performed by a cadre
of about 60 investigators. ERA cases make up a small percentage of the
investigators’ workload.

In response to complaints by employees who raised health and safety
concerns that they were not being protected from discrimination, NRC has
studied and reported on the employee protection system. In 1992, NRC’s OIG
initiated a review to examine and better understand the nature of the
complaints and the magnitude of this problem. In a July 1993 report, the
OIG noted that employees who had raised concerns believed NRC did little
to protect them from retaliation or to investigate in a timely manner their
allegations of retaliation.4 In response to hearings before what was then
the Subcommittee on Clean Air and Nuclear Regulation of the Senate
Committee on Environment and Public Works, the NRC OIG issued a report
in December 1993 that found NRC was primarily reactive to harassment and
intimidation allegations and did not have a program to assess the work
environment at licensees’ facilities except when serious problems
occurred.5 On July 6, 1993, NRC’s Executive Director for Operations formed
a review team to reassess NRC’s process for protecting against retaliation
those employees who raise health and safety concerns. The review team


3
 Until February 3, 1997, responsibility for investigating complaints under a number of such laws,
including the ERA, rested with the Wage and Hour Division in Labor’s Employment Standards
Administration.
4
  NRC, OIG, NRC Response to Whistleblower Retaliation Complaints, Case No. 92-01N (Washington,
D.C: NRC, July 9, 1993).
5
NRC, OIG, Assessment of NRC’s Process for Protecting Allegers From Harassment and Intimidation,
Case 93-07N (Washington, D.C.: NRC, Dec. 15, 1993).



Page 5                                      GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        B-270675




                        solicited input from employees who had alleged discrimination, licensees,
                        and the public and, in a January 1994 report,6 concluded that the existing
                        NRC and Labor processes, as then implemented, did not provide sufficient
                        protection to these employees.

                        In addition, in a May 1993 report, the Labor OIG referred to the office
                        responsible for preparing the Secretary of Labor’s final decisions as a
                        “burial ground” for cases on which the Secretary and other Labor officials
                        did not issue a final decision. The oldest 26 cases had been pending at this
                        final stage for an average of 7.5 years, and there was a backlog of 178
                        cases—129 of them involving complaints under the several laws Labor
                        enforces pertaining to discrimination of workers who raise health and
                        safety concerns—that had been in that office for an average of 2.5 years.7


                        NRC  has the overall responsibility for ensuring that the nuclear plants it
System for Protecting   licenses are operated safely. This entails informing licensees and
Employees Involves      individual employees about the discrimination prohibitions of the law and
Multiple Steps in Two   of the steps an employee can take if he or she feels unjustly treated, and
                        ensuring that employees are comfortable raising health and safety
Agencies                concerns. Once an employee raises an allegation of discrimination or
                        harassment, however, both NRC and Labor have roles in processing the
                        allegation. Under the Atomic Energy Act, as amended, NRC may take action
                        against the employers it licenses when they are found to have
                        discriminated against individual employees for raising health and safety
                        concerns. Accordingly, NRC has established a process for investigating
                        discrimination complaints and, if appropriate, taking enforcement action
                        against licensees. The ERA, as amended, authorizes the Secretary of Labor
                        to order employers to make restitution to the victims of such
                        discrimination, and Labor has instituted a process for investigating and
                        adjudicating discrimination complaints. In 1982, NRC and Labor entered
                        into a Memorandum of Understanding that recognized that the two
                        agencies have complementary responsibilities in the area of employee
                        protection.




                        6
                        NRC, Reassessment of the NRC’s Program for Protecting Allegers Against Retaliation (Washington,
                        D.C.: NRC, Jan. 7, 1994).
                        7
                          Department of Labor, OIG, Audit of the Office of Administrative Appeals, Report No. 17-93-009-01-010
                        (Washington, D.C.: Department of Labor, May 19, 1993).



                        Page 6                                      GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                           B-270675




Laws Establish Separate    Under the Atomic Energy Act, NRC has implied authority to investigate
Responsibilities for NRC   cases in which an individual may have been discriminated against for
and Labor                  raising health or safety concerns, and to take appropriate enforcement
                           action against licensees for such discrimination. The act does not,
                           however, specifically authorize NRC to order restitution, such as
                           reinstatement or back pay, for an employee who has been subjected to
                           discrimination.

                           It was not until 1978, when the Congress enacted section 2118 of the ERA,
                           that statutory remedies were provided for individuals when discrimination
                           occurs. Section 211 prohibits employers from discriminating against
                           employees who raise health or safety issues to NRC or its licensees and
                           authorizes the Secretary of Labor, after an investigation and an
                           opportunity for a public hearing, to order restitution. According to Labor,
                           restitution can include reinstatement of the complainant to his or her
                           former position with back pay, if warranted; award of compensatory
                           damages; payment of attorney fees; and purging personnel files of any
                           adverse references to the complaint. The Secretary is required to complete
                           an initial investigation within 30 days and issue a final order within 90 days
                           of the filing of the complaint. Federal regulations allow for extensions,
                           which, in effect, waive the 90-day time frame.

                           In 1982, NRC issued regulations implementing section 211. These
                           regulations notify licensees that discrimination of the type described in the
                           law is prohibited and incorporate NRC’s implied authority to investigate
                           alleged unlawful discrimination and take enforcement action, such as the
                           assessment of civil penalties. The regulations also require licensees to post
                           notices provided by NRC describing the rights of employees.

                           As part of the Energy Policy Act of 1992, section 211 was amended to give
                           employees more time to file a complaint, modify the burden of proof in
                           Labor administrative hearings by requiring the complainant to show that
                           raising a health and safety concern was a contributing factor in an
                           unfavorable personnel practice, specifically protect employees who raise
                           health or safety issues with their employers, and allow the Secretary of
                           Labor to order relief before completion of the review process that follows
                           an ALJ finding of discrimination.




                           8
                            Originally enacted as section 210.



                           Page 7                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                         B-270675




Memorandum of            NRC and Labor recognized that in view of Labor’s complementary
Understanding Explains   responsibilities, coordination was warranted. Consequently, Labor and NRC
How Labor and NRC        entered into a Memorandum of Understanding in 1982. Under the
                         memorandum, NRC and Labor agreed to carry out their responsibilities
Coordinate Activities    independently, but to cooperate and exchange timely information in areas
                         of mutual interest. In particular, Labor agreed to promptly provide NRC
                         copies of ERA complaints, decisions, and orders associated with
                         investigations and hearings on such complaints. NRC agreed to assist Labor
                         in obtaining access to licensee facilities.

                         Working arrangements formulated to implement the memorandum
                         specified that NRC will not normally initiate an investigation of a complaint
                         if Labor is already investigating it or has completed an investigation and
                         found no violations. If Labor finds that a violation has occurred, however,
                         NRC may take enforcement action. Normally, NRC considers Labor’s actions
                         before deciding what enforcement action, if any, to take.




                         Page 8                           GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                             B-270675




Joint Process to             The joint process for investigating discrimination allegations is shown in
Investigate Discrimination   figure 1. A series of steps involving three components in Labor can lead to
Allegations Involves         restitution for an employee discriminated against for raising health and
                             safety concerns. A separate set of steps in NRC can lead to enforcement
Several Steps                action against a licensee who discriminates.




                             Page 9                          GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                                         B-270675




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




                                         Page 10                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675




Page 11    GAO/HEHS-97-51 Nuclear Employee Safety Concerns
    B-270675




    The three components in Labor’s allegation process perform the following
    activities. Settlements between the parties may occur at any point in this
    process and are often made to minimize the expense and time involved for
    both the employee and the licensee in continuing a case. (The actual times
    for these steps are discussed in the next section under timeliness
    standards.)

•   OSHA: To receive restitution for being discriminated against by a licensee,
    an employee must file a complaint with OSHA within 180 days of the alleged
    discriminatory act. OSHA must complete the initial investigation within 30
    days, under the law. However, under Labor procedures, when necessary
    and preferably with the agreement of both parties, the 30-day limit may be
    exceeded. If either party does not agree with the OSHA decision, it may be
    appealed to Labor’s Office of Administrative Law Judges (OALJ) within 5
    calendar days.
•   OALJ: Within 7 days of the appeal, the ALJ assigned to the case is to
    schedule a hearing. All parties must be given at least 5 days notice of the
    scheduled hearing. Federal regulations state that requests for
    postponement of the ALJ hearing may be granted for compelling reasons.
    The ALJ is required to submit a recommended decision within 20 days of
    the hearing.
•   Office of the Secretary: The ALJ’s recommended decision is automatically
    reviewed by the ARB within the Secretary of Labor’s office.9 Either party
    may appeal the final Labor decision to the appropriate federal court of
    appeals within 60 days. Pursuant to the ERA, a final decision is not subject
    to judicial review in any criminal or other civil proceeding.

    For discrimination allegations filed directly with NRC or Labor, an NRC
    review panel, located in each regional office and headquarters, decides
    whether to request an investigation by NRC’s Office of Investigations. The
    Investigations staff, in coordination with the regional administrator,
    decides the case’s priority and whether they will do a full investigation. If
    Investigations determines that a violation occurred, or if a final
    determination of discrimination is received from Labor, NRC assesses the
    violation in accordance with its enforcement policy, which defines the
    level of severity and the appropriate sanction. Severity levels range from
    severity level I for the most significant violations to severity level IV for
    those of lesser concern. Minor violations are not subject to formal
    enforcement actions. One factor that determines the severity of a
    discrimination violation is the organizational level of the offender. For

    9
     Prior to May 1996, ALJs’ recommended decisions were reviewed by the Office of Administrative
    Appeals, and the final decision was signed by the Secretary. Since that time, the final decision has been
    signed for the Secretary by the Chairman of the ARB.



    Page 12                                      GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                     B-270675




                     example, discrimination violations by senior corporate management
                     would be severity level I, whereas violations by plant management above
                     the first-line supervisor and by the first-line supervisor would be severity
                     levels II and III, respectively. Another factor that might determine severity
                     level is whether a hostile work environment existed.

                     There are three primary enforcement actions available to NRC: Notice of
                     Violation, civil penalty, and order. The Notice of Violation is a written
                     notice used to formalize the identification of one or more violations of a
                     legally binding requirement. The civil penalty is a monetary fine. Orders
                     modify, suspend, or revoke licenses or require specific actions of the
                     licensee.


                     Complaints by current and former nuclear licensee employees about,
Many                 among other things, the allegations process led NRC and Labor to study the
Recommendations      system for protecting employees who raise health or safety concerns. In
Have Been            response to recommendations and concerns raised in NRC’s January 1994
                     review team report and NRC and Labor OIG reports, many changes have
Implemented, but     been made in an effort to improve the employee protection system.
Some Important       Employees we spoke with who had made allegations of discrimination for
                     raising safety issues generally supported these changes to improve
Issues Remain        protection. However, several recommendations that could significantly
                     improve protection, and the perception of protection, for employees have
                     not been implemented.


Recommendations      Many of the implemented recommendations from these studies led to
Implemented Should   actions at NRC to improve monitoring of cases, expand communication
Improve the System   with employees about their cases, and increase the agency’s involvement
                     in allegation investigations; they also led to changes at Labor to improve
                     its timeliness in processing allegation cases. These recommendations
                     addressed concerns expressed by many of the allegers we interviewed.

                     Regarding case monitoring, NRC has designated a full-time, senior official
                     to centrally coordinate allegation information from NRC and Labor, and
                     oversee the management of and periodically audit the allegation process at
                     NRC. NRC established the position of Agency Allegation Advisor in
                     February 1995, and since then, two rounds of audits of the allegation
                     process have been completed. In September 1996, the Agency Allegation
                     Advisor issued the first annual report on the status of the allegation
                     system, which addressed issues previously identified through audits and



                     Page 13                          GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675




data gathered on allegations. These actions give NRC a focal point for
gathering and publishing information on how its allegation process is
working and enable it to recognize problems.

Some recommendations implemented by NRC should improve
communication. One of these recommended improving feedback to
employees on the status of their cases. As of May 1996, new procedures
established time frames for NRC to periodically report case status to
employees. The procedures required NRC to inform the alleger in writing of
the status of his or her case within 30 days of NRC’s receipt of the
allegation, every 6 months thereafter, and again within 30 days of
completing the investigation. NRC has also established a hotline through
which employees can report problems and issued a policy statement
emphasizing the importance of licensees maintaining an environment in
which employees are comfortable raising health and safety concerns.
These new procedures address issues allegers raised with us about not
being informed on the status of their cases. However, some allegers told us
that because the policy statement is directed only at the licensees’
responsibilities for maintaining a good work environment and does not
include specific responsibilities for NRC, it is not adequate.

To increase NRC’s involvement in the allegation process, the January 1994
study recommended that NRC revise the criteria for selecting complaints to
be investigated in order to expand the number of investigations. Before
October 1993, NRC had investigated few discrimination complaints and
usually waited for the Labor Secretary’s final decision, which generally
took longer than an NRC investigation, before taking enforcement action. In
October 1993, NRC Investigations’ policy was changed to require that field
offices open a case and conduct an evaluation of all matters involving
discrimination complaints, regardless of Labor’s involvement. In
April 1996, NRC issued a policy statement directing its Office of
Investigations to investigate all high-priority allegations of discrimination,
whether the Labor Secretary’s final decision has been made or not, and to
devote the resources necessary to complete these investigations. As a
result, the number of high-priority investigations NRC opened has increased
significantly. By applying the new criteria, the percentage of cases opened
that were high priority increased from 37 percent in May 1996 to
81 percent in July 1996. These actions should address the dissatisfaction
employees expressed to both NRC’s OIG and us about NRC’s lack of
involvement in the investigation of cases. However, NRC has identified a
need for more resources at the Office of Investigations to handle the
greater number of investigations, and as of December 1996, this need had



Page 14                          GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        B-270675




                        not been addressed. Therefore, it is unclear whether the investigations can
                        be completed as quickly as hoped.

                        Labor has also improved its timeliness in processing cases, as
                        recommended in the Labor OIG’s May 1993 report. Labor has eliminated a
                        backlog of cases awaiting decision in the Office of the Secretary and has
                        developed and implemented a management information system to monitor
                        case activity. Since these changes were implemented, the average time for
                        the Secretary’s office to decide cases has been reduced from about 3 years
                        in fiscal year 1994 to about 1.3 years in fiscal year 1996. A Labor official
                        told us that as of December 1996, the average case took only about 4
                        months to clear the Office of the Secretary, due partially to the elimination
                        of the backlog.

                        In addition, to better use program expertise, Labor has transferred
                        responsibility for investigation of allegation cases from the Wage and Hour
                        Division to OSHA, which has a staff with experience investigating
                        allegations of discrimination against employees who raise health and
                        safety concerns. The Assistant Secretary of Labor for Employee Standards
                        commented that the primary purpose of reassigning initial investigations
                        from Wage and Hour to OSHA was part of an exchange of responsibilities.
                        Prior to the reassignment, OSHA had responsibility for the employee
                        protection, or “whistleblower,” provisions of certain laws and the staff
                        devoted to the enforcement of these provisions. The Wage and Hour
                        Division was responsible for certain employee protections affecting farm
                        workers and would be able to make field sanitation inspections as part of
                        its regular investigations. These responsibilities were exchanged in order
                        to better use program expertise and promote effective and efficient use of
                        resources. This transfer was effective February 3, 1997.


Some Recommendations    In spite of NRC’s and Labor’s overall responsiveness to the reports’
Not Implemented Could   recommendations, some recommendations that address concerns raised
Significantly Improve   not only by the NRC review team but also by other NRC staff, the OIG, and
                        allegers we interviewed have not yet been implemented. Some
Protection              recommendations, which could be implemented through administrative
                        procedural changes, could significantly improve the system; these address
                        timeliness standards, case monitoring, and NRC’s knowledge of the
                        employee environment in licensees’ facilities. Other recommendations,
                        which require statutory changes or are controversial as to their
                        effectiveness, have also not been implemented.




                        Page 15                          GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                       B-270675




Timeliness Standards   When allegation cases take several years to complete, significant negative
                       effects accrue. Lengthy cases increase attorney fees, prolong the time an
                       employee may be out of work, and have a chilling effect on other
                       employees. Under past policies, which provided for few NRC investigations,
                       long cases delayed NRC’s ability to impose enforcement actions as they
                       waited for Labor decisions. Some cases that allegers have filed have
                       continued for over 5 years, and during that time the employee may be out
                       of work, paying attorney fees, and exhausting his or her financial
                       resources. Furthermore, the January 1994 NRC report noted that delays in
                       processing cases at the Office of the Secretary of Labor had, in some
                       cases, prevented NRC from taking enforcement action against licensees
                       because the time limits under the statute of limitations had run out.10

                       The Labor OIG report recommended that Labor establish a timeliness
                       standard for the issuance of Secretary of Labor decisions and conduct an
                       analysis to determine operational changes and resources necessary to
                       meet the new standard. Establishing a standard was intended to provide a
                       means to objectively measure Labor’s performance during the final step of
                       its process and help meet legal requirements and customer service
                       expectations. In September 1995, in its closing comments on this review,
                       the OIG stated that Labor would need time to develop data on which to
                       base a realistic timeliness standard and that the standard would be
                       developed in the future when the data are available. A Labor official told
                       us the standard is now being developed and that Labor expects to have a
                       standard soon, although no date for implementation has been established.
                       According to the Chairman of the ARB, the ARB is continuing to work on
                       putting procedures in place to collect data that could be used to establish
                       a standard.

                       In addition, the NRC review team report recommended that Labor develop
                       legislation to amend the law to establish a realistic timeliness standard for
                       the entire Labor process. As of December 1996, NRC was drafting
                       legislation for Labor’s approval that would establish a new timeliness
                       standard of 480 days to complete the Labor process. This would allow 120
                       days for the administrative investigation, 30 days to appeal the decision to
                       the OALJ, 240 days for the OALJ to recommend a decision, and 90 days for a

                       10
                         The government has 5 years from the date a violation occurs to bring an action to enforce a civil
                       penalty against a licensee. (See 28 U.S.C. 2462.) Since 1992, NRC’s enforcement policy has been to
                       initiate enforcement action after an ALJ finding of discrimination. However, when the ALJ does not
                       decide in favor of the complainant, but the Secretary’s final decision does find discrimination, if NRC
                       does not find discrimination based on its investigation, NRC has no reason to take enforcement action
                       until the Secretary’s decision has been issued. Delays in the Secretary’s decisions in such cases have
                       precluded civil penalties when the Secretary’s determination occurred more than 5 years after the
                       violation.



                       Page 16                                     GAO/HEHS-97-51 Nuclear Employee Safety Concerns
B-270675




final decision from the Secretary. According to NRC, the intent in proposing
more realistic timeliness standards is that there is more incentive to try to
meet standards that are achievable than those that normally cannot be
met. These proposals were based on comparisons with baseline data from
investigations done under other related statutes and proposed legislation
considered in the 101st Congress. For example, the review team reported
that OSHA investigations under other employee protection statutes took, on
average, 120 days. Labor officials have indicated that they would support
this legislation.

Our review of processing times in each of Labor’s three offices showed
that meeting the new standards would require a significant change in how
these cases are processed. For cases processed in fiscal year 1994 through
the first 9 months of fiscal year 1996, the proposed time frames were not
met for all cases in any of the three offices. For 164 cases investigated by
the Wage and Hour Division during this period,11 only 16 percent of the
investigations were completed within the 30 days currently mandated by
law and an additional 46 percent would have met the proposed time frame
of 120 days. (See fig. 2.) These investigations took an average of 128 days,
with a range of 1 day to over 2 years, to complete. OSHA officials said that
during the pilot study for transferring the initial investigative responsibility
to their office from Wage and Hour, they found it very difficult to meet the
30-day mandate and had to ask for extensions in several cases.




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



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




Figure 2: Percentage of Wage and
Hour Division Investigations
Completed Within the Current and    Percentage
Proposed Statutory Time Frames in                  100                    100                  100               100
                                    100
Recent Years


                                                                                                30
                                                                                                                  38
                                     80             42                     41




                                     60




                                                                                               53
                                     40             44                                                            46
                                                                           43




                                     20


                                                                           16                   17
                                                    14                                                            16

                                      0
                                                  1994                  1995                   1996             1994-96
                                               (48 Cases)            (69 Cases)             (47 Cases)        (164 Cases)

                                       Investigations by Fiscal Year

                                                 Exceeded Proposed

                                                 Met Proposed Time Frame

                                                 Met Current Time Frame




                                    During this same period, 56 percent of OALJ’s recommended decisions and
                                    orders would have met the proposed time frame of 240 days. OALJ took an
                                    average of 271 days (9 months) to issue 118 recommended decisions and
                                    orders. The time for these decisions ranged from less than 30 days to over
                                    3 years. Currently, there is no time frame specifically for the OALJ step of
                                    the process. Even though the act provides for a 90-day time frame for
                                    moving from initial investigation to a final decision, extensions were




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




    requested by the parties in virtually all cases we reviewed. One reason for
    this is that the OALJ hearing is de novo—it essentially starts the process
    over again because it does not consider the results of the Wage and Hour
    investigation. In addition, Labor officials told us that these extensions
    were necessary to allow additional time for discovery and review of
    evidence by legal counsels of both parties in preparation for the hearing.
    In commenting on a draft of this report, Labor’s Chief Administrative Law
    Judge stated that 240 days is an achievable goal if the following factors are
    addressed:

•   establishment of a mechanism to extend the time frame in appropriate
    circumstances,
•   recognition that existing case law conflicts with a strict time limit on
    discovery and hearing, and
•   availability of adequate staff.




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




Figure 3: Percentage of OALJ’s
Recommended Decisions Completed
Within the Proposed Statutory Time   Percentage
                                                     100                    100                  100                100
Frame in Recent Years                100




                                      80              39                    41                                       44

                                                                                                 53


                                      60




                                      40

                                                     61                     59                                       56

                                                                                                 47
                                      20




                                       0
                                                    1994                    1995                 1996              1994-96
                                                 (28 Cases)              (56 Cases)           (34 Cases)         (118 Cases)
                                           Decisions by Fiscal Year

                                               Exceeded Proposed

                                               Met Proposed Time Frame




                                     For the final step in the process, our data showed significant improvement
                                     in the time it took to obtain decisions from the Secretary of Labor, but
                                     even in the most recent year we analyzed, only 37 percent would have met
                                     the proposed 90-day time frame. (See fig. 4.) The average time to decide
                                     217 cases in the Secretary’s office decreased from about 3.3 years in fiscal
                                     year 1994 to about 1.3 years (16 months) in fiscal year 1996. In
                                     commenting on a draft of this report, the Chairman of the ARB noted that
                                     the current policy gives the parties 75 days to file all the briefs. In most
                                     cases, an extension is requested by at least one of the parties. Therefore, in




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




                                       his opinion, a 90-day timeliness standard is unrealistic unless ARB severely
                                       restricts the parties’ ability to properly brief the issues pressed.


Figure 4: Percentage of Secretary of
Labor Decisions Completed Within the
Proposed Statutory Time Frame in       Percentage
                                                      100                    100                  100               100
Recent Years                           100




                                        80


                                                                             67                   63
                                                                                                                     73
                                        60            88




                                        40




                                        20                                                        37
                                                                             33
                                                                                                                     27

                                                       12
                                         0
                                                      1994                 1995                   1996             1994-96
                                                   (67 Cases)           (98 Cases)             (52 Cases)        (217 Cases)
                                             Decisions by Fiscal Year

                                                   Exceeded Proposed

                                                   Met Proposed Time Frame


Monitoring of Allegation Cases         Both monitoring of individual cases and monitoring trends in allegations
and Trends                             are important oversight activities. Monitoring the individual cases as they
                                       progress is a way to determine whether cases are being resolved in a
                                       timely way. Monitoring trends in allegations would help NRC’s Agency
                                       Allegation Advisor in overseeing the system’s effectiveness.

                                       The NRC report recommended that NRC improve its Allegation Management
                                       System to be able to both monitor allegations from receipt to the




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




completion of agency action, and to analyze trends. It could also help
improve agency responsiveness, such as when monitoring reveals sudden
increases in the time for cases to be resolved, and helps identify licensees
who may warrant closer scrutiny, such as a licensee that shows a sharp
increase in the number of cases against it or settled by it. NRC agrees with
the recommendation and has implemented a new system in its regional
offices and in the two headquarters offices with direct regulatory
oversight, which officials say will have the capability to track cases
through each step of the process. However, at the time of our review, the
system did not yet include data from the Offices of Investigations and
Enforcement, nor did it include on-line Labor investigation data.

Our findings highlight the need for the data tracking system to include the
period of time that a case is at Labor. For example, Labor has separate
databases and case identifiers at Wage and Hour and OALJ, and the cases
cannot easily be matched. As a result, neither Labor nor we can describe
the total time it takes cases to be resolved at Labor. In addition, of the 217
cases for which the Secretary of Labor had made a final determination, 22
had no such decision recorded in NRC files. While only one of these cases
resulted in a decision of discrimination, this is significant because NRC’s
policy is to hold open its enforcement action on complaints until notified
that the Secretary has made a final determination. However, without an
NRC investigation or an ALJ finding of discrimination, the 5-year limit on
civil penalties could be exceeded. NRC officials told us that they have
contacted Labor and requested copies of the 22 decisions to update their
files.

The number of settlements found in our analysis also underscores the
significance of the NRC review team report’s recommendation that NRC
should track trends in cases closed with a settlement without a finding of
discrimination. NRC currently has no systematic way of knowing the extent
to which settlements are made by individual licensees or when in the
process they occur. Yet, our data showed that numerous settlements
occurred at all steps in the process: Wage and Hour settled 22 of its 164
cases; the OALJ recommended settlement approval for 49 of the 118 cases
on which it issued recommended decisions; and the Secretary of Labor
approved settlements in 74 of the 217 allegations on which final decisions
were issued. Labor’s policy is to attempt to conciliate allegations in every
case; only if conciliation fails does it proceed with a fact-finding
investigation.




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




NRC Knowledge of Work   NRC  acknowledges that employee identification of problems is an
Environment             important part of its system to ensure nuclear power plant safety. NRC also
                        recognizes that the perception of discrimination may be even more
                        important than actual findings in terms of affecting employees’ willingness
                        to report health and safety concerns. Therefore, NRC needs not only factual
                        findings of discrimination but also a way to measure employee perception
                        of discrimination.

                        NRC’s December 1994 OIG report, however, noted that although NRC’s
                        management of discrimination issues focuses on encouraging licensees to
                        foster a retaliation-free work environment, NRC has no program to assess
                        licensees’ work environments except when a serious problem such as a
                        discrimination suit has already occurred. At about the same time, NRC’s
                        review team also concluded that NRC did not have a quantitative
                        understanding of the number of employees who were hesitant to raise
                        these kinds of concerns. Consequently, the review team commissioned
                        Battelle Human Affairs Research Center to study methods for credibly
                        assessing employee feelings about raising health and safety concerns. The
                        Battelle study recommended a three-part strategy for development,
                        implementation, and follow-up validation of the results of a mail-out
                        workforce survey of a sample of nuclear power plants. This approach was
                        then reflected in the NRC review team report’s recommendation that NRC
                        develop a survey to assess a licensee’s work environment.

                        The review team report’s recommendation was prompted, in part, by its
                        recognition of the limitations of some of the assessments NRC had done in
                        the past, such as one-on-one interviews of licensee employees conducted
                        by NRC inspectors. The problem with having NRC inspectors conduct such
                        interviews was illustrated by a September 1996 NRC-chartered study12 of
                        how employee concerns and allegations are handled at the Millstone
                        power plant. This study concluded that NRC inspectors, in general,
                        understated the extent of the chilling effect at plants and therefore are not
                        qualified to independently detect or assess the work environment at
                        licensee facilities. The Millstone report concluded that NRC’s efforts to gain
                        information on the work environment had not been effective and
                        furthermore cited NRC’s failure to develop a credible survey instrument as
                        one example of the lack of progress toward this end that has lowered
                        public confidence in NRC’s commitment to improve its performance in
                        addressing employee concerns.



                        12
                         Millstone Independent Review Group, Handling of Employee Concerns and Allegations at Millstone
                        Nuclear Power Station Units 1, 2, & 3 From 1985 -Present (Waterford, Conn.: Sept. 1996).



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




Nevertheless, NRC’s September 1996 annual report on the status of the
allegation system stated that NRC had decided not to implement the
recommendation to develop a survey instrument. The report cited a staff
recommendation made in November 1994 to not develop a survey because
of the cost to develop and process it and the expectation that other actions
implemented as a result of the review team report would yield the needed
information on work environment.

Because employees’ feelings about how NRC handles its allegations process
would also affect their willingness to raise health or safety concerns, the
review team report recommended that NRC develop a standard form and
include it with alleger close-out correspondence to solicit feedback from
employees on the way NRC handled their allegations. NRC developed the
form and conducted a pilot in December 1995 in which it sent the form to
145 employees; it received feedback from 44. It analyzed comments and
acted to address concerns raised. An NRC official said the agency plans to
again send the form in 1997 to another sample of employees. After
analyzing the 1997 responses, NRC will decide whether to routinely include
the form in all close-out correspondence and thereby fully implement the
recommendation.

In addition, when a finding of discrimination results from an
administrative investigation at Labor, NRC issues a “chilling effect” letter
asking the licensee to describe actions it has taken or plans to take to
remove any chilling effect that may have occurred. The review team and
OIG reports both noted that NRC does little follow-up on the actions
reported by licensees in response to these letters. This follow-up is
necessary not only to verify a licensee’s actions but also to enable NRC to
learn the effect of the discrimination finding on the plant’s work
environment. Both reports also noted that guidance is needed on when
additional NRC action may be necessary if a licensee receives more than
one chilling effect letter over a relatively short period of time because this
may indicate a serious problem at the plant. NRC has issued guidance that
each chilling effect letter should carry an enforcement number so that it
can be tracked, but systematic tracking is not currently done. NRC has not
developed guidance on how it will follow up on licensee actions or on
what actions it should take when a licensee receives multiple chilling
effect letters. NRC officials told us they intend to fully implement the
recommendation to establish follow-up procedures for chilling effect
letters, but they have no schedule for doing so.




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




Relief of Financial Burden   Allegers and agency officials expressed strong concern about the financial
                             burden on employees in the current protection process. They attributed
                             this burden to the extensive time it took to obtain a final decision, during
                             which the alleger must pay attorney fees and, in some cases, go without
                             pay.

                             One NRC review team report recommendation would provide relief through
                             a statutory change to provide that Labor defend its findings of
                             discrimination from the initial investigation at the ALJ hearing if Labor’s
                             decision is appealed by the employer. The review team noted that this
                             would avoid the perception that the government is leaving the employees
                             to defend themselves after being retaliated against for raising health and
                             safety concerns. After soliciting comments on this proposal in the Federal
                             Register in March 1994 to do by regulation what the recommendation
                             proposed be done by statute, Labor again stated in a March 26, 1996, letter
                             to NRC that it supports having this authority. But Labor also stated that
                             because of the resources needed to meet this added responsibility, if it is
                             granted, Labor expects to exercise this authority selectively and
                             cautiously.

                             The NRC review team report also recommended that the law be amended to
                             allow employees to be reinstated to their previous positions after the
                             initial investigation finds discrimination, even if the case is appealed to the
                             OALJ. Currently, section 211 provides that Labor may order reinstatement
                             following a public hearing. As of January 1997, NRC was drafting legislation
                             that would implement this recommendation.

                             In addition, the review team report recommended that, in certain cases,
                             NRC should ask the licensee to provide the employee with a holding period
                             that would maintain or restore pay and benefits until a finding is issued. A
                             holding period would basically maintain current pay and benefits for the
                             period between the filing of a discrimination complaint and an initial
                             administrative finding by Labor. NRC ultimately decided not to require
                             licensees to establish holding periods. However, a May 1, 1996, policy
                             statement on licensees’ responsibilities for maintaining a safety-conscious
                             work environment stated that if a licensee does provide a holding period,
                             NRC would consider such action as a mitigating factor in any enforcement
                             decisions if discrimination is found to have occurred. Allegers we
                             interviewed generally had mixed responses to the holding period
                             recommendation. Although they generally supported the financial relief
                             that would be provided, some expressed concern that licensees could
                             misuse the holding period to remove an employee from operational duties



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




                      when this is not warranted. Both the report and allegers believed
                      safeguards should be established for the proper implementation of this
                      recommendation. Licensees also again had reservations about being
                      required to retain an employee who could later be found to be justifiably
                      dismissed. While NRC officials told us the agency is considering requesting
                      the holding period under some conditions, the original position not to
                      implement the recommendation has not changed.

Increased Penalties   The NRC review team report recommended that NRC seek an amendment to
                      the Atomic Energy Act to increase the civil penalty from $100,000 to
                      $500,000 a day for each discrimination violation. The maximum penalty in
                      effect at the time of the report was $100,000,13 established in 1980. This
                      recommendation was meant to make the civil penalty a more effective
                      deterrent to licensee discrimination. In May 1994, NRC ordered a review of
                      the agency’s enforcement process, part of which focused on civil penalty
                      increases in the context of enforcement. This review concluded that
                      increasing incentives for strong self-monitoring and corrective action
                      programs would be better accomplished by revising the overall civil
                      penalty assessment process than by raising the penalty amounts and that
                      therefore no increase was needed.14 Recommendations made by the
                      review team report to revise the assessment process were accepted and
                      implemented through agency directives. NRC agreed with the report’s
                      conclusion and decided not to seek an increase in civil penalties.

                      Allegers and some others we interviewed agreed with the review team
                      report that a $100,000 penalty was not an effective deterrent. They had
                      mixed opinions, however, as to whether even an increase to $500,000
                      would be a sufficient deterrent. Some said the only sanction that really had
                      an impact on licensees was shutting down a plant. Others said that
                      negative publicity had a stronger impact than a civil penalty.

                      The review team report also recommended that NRC make the penalty for
                      all willful violations15 equal to the penalty currently reserved for the most

                      13
                       This amount was raised in November 1996 to $110,000 as a result of a mandate by the Congress,
                      which adjusts all civil penalties periodically for inflation (P.L. 104-134).
                      14
                       NRC, Assessment of the NRC Enforcement Program, NUREG-1525 (Washington, D.C.: NRC,
                      Apr. 1995).
                      15
                        According to NRC, the severity level of a violation may be increased if the circumstances surrounding
                      the matter involve careless disregard for requirements, deception, or other indications of willfulness.
                      In determining the specific severity level of a violation involving willfulness, consideration is given to
                      such factors as the position and responsibilities of the person involved in the violation, the significance
                      of the underlying violation, the intent of the violator, and the economic or other advantage gained as a
                      result of the violation. The level of penalty for various offenses is established in NRC Enforcement
                      Policy, NUREG 1600, July 1995.



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




              severe violations. For example, under current procedures, discriminatory
              actions by a first-line supervisor are considered lesser violations, and
              receive lesser penalties, than violations that involve a higher level
              manager, even if they are found to be willful violations. For the same
              reasons cited for not requesting an increase in civil penalties, NRC decided
              not to implement this recommendation.


              The joint NRC and Labor process for resolving allegations of discrimination
Conclusions   by nuclear licensees against employees who raise health and safety
              concerns is intended to discourage discrimination, thereby fostering an
              atmosphere in which employees feel free to report hazards. But it is
              unrealistic to expect employees to raise such issues if they believe they
              may be retaliated against for doing so, the process for seeking restitution
              will be expensive and lengthy, and they will receive minimal attention and
              support from the federal government. In response to these concerns, both
              NRC and Labor have acted on OIG and agency recommendations to enhance
              their management of nuclear employee discrimination cases. The resulting
              changes should improve monitoring of the process, increase NRC
              involvement, and augment licensees’ responsiveness to employee
              concerns. However, recommendations that would establish standards for
              timely decisions, permit monitoring of individual cases from start to finish
              and assessment of overall trends, and enable NRC to measure the work
              environment at nuclear plants for raising concerns have not been
              implemented.

              Improvements in the timeliness of decisions would not only help ensure
              that employees feel more comfortable in reporting hazards and expedite
              information to NRC for enforcement actions, but also decrease the financial
              burden on allegers. At this point, it is unclear whether the time standard
              recommended by NRC would decrease that burden sufficiently or whether
              other recommendations for decreasing the financial burden would also
              need to be implemented to address allegers’ concerns. Nevertheless,
              establishing and meeting some standard that prevents cases from
              languishing for many years would greatly improve the present system.

              Many changes made by NRC were intended to increase its involvement in
              the protection system and to make the agency proactive in its role. In
              order to do this, NRC needs more knowledge of the process than it has had
              in the past. For example, the Agency Allegation Advisor needs a revised
              tracking system that will monitor trends so that the agency can address
              problems suggested by those trends. Although this revised tracking system



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




                  was recommended over 3 years ago and NRC has begun its implementation,
                  the system still does not incorporate vital elements. These elements
                  include current data on cases in the Labor process, data on all settled
                  cases, and information on NRC headquarters inspection and enforcement. It
                  is crucial that NRC management follow through to full implementation of
                  this system so that it can develop trend data for better monitoring and
                  make better-informed decisions on investigations and enforcement
                  actions. Including the Labor data, however, will also require commitment
                  from Labor as well as NRC, and effective coordination between the two
                  agencies.

                  Because information from employees on health and safety problems is
                  critical for NRC to ensure public safety, NRC must know whether employees
                  at nuclear plants are comfortable raising such concerns. Determining the
                  existence of a perception is not an easy task and may require the use of
                  more than one method of gathering information to obtain such knowledge.
                  Several methods, including surveying, developing indicators to flag
                  possible problems, tracking cases and settlements in individual plants,
                  using feedback forms to find out how employees believe their allegations
                  have been handled, and following up on chilling effect letters have been
                  recommended to NRC, but none of these methods have been implemented
                  to date.


                  To improve the timeliness of Labor’s allegations processing, we
Recommendations   recommend that the Secretary of Labor establish and meet realistic
                  timeliness standards for all three steps in its process for investigating
                  discrimination complaints by employees in the nuclear power industry.

                  To improve NRC’s ability to monitor the allegation process, we recommend
                  that the Chairman, NRC, complete implementation of the NRC review team’s
                  recommendation to establish and operate the revised Allegation
                  Management System in all organizational components within NRC. We also
                  recommend that the Chairman, NRC, and the Secretary of Labor coordinate
                  efforts to ensure that NRC’s Allegation Management System includes
                  information on the status of cases at Labor.

                  To improve NRC’s knowledge of the work environment at nuclear power
                  plants, we recommend that the Chairman, NRC, ensure the implementation
                  of recommendations to provide information on the extent to which the
                  environment in nuclear plants is favorable for employees to report health
                  or safety hazards without fear of discrimination. This would include



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




                     recommendations on tracking and monitoring allegation cases and
                     settlements, routinely providing feedback forms in allegation case
                     close-out correspondence, systematically following up on chilling effect
                     letters, and using a survey or other systematic method of obtaining
                     information from employees.


                     In commenting on a draft of this report, NRC’s Executive Director for
Agency Comments      Operations stated that the report presents an accurate description of the
and Our Evaluation   process for handling discrimination complaints and of NRC’s efforts to
                     improve in this area. He also provided some specific concerns and
                     observations and clarified several technical matters in the draft report.
                     NRC’s comments did not address the recommendations included in the
                     report. NRC’s comments appear in appendix IV.

                     We did not receive comments from the Secretary of Labor on our draft
                     report. The Chairman of the ARB, Labor’s Chief Administrative Law Judge,
                     the Assistant Secretary for Employee Standards, and a senior program
                     official in OSHA did, however, provide comments. Comments by these
                     officials addressed the report’s recommendations about Labor’s timeliness
                     standards only from the perspective of their individual offices.

                     The Chairman of the ARB stated that the ARB, as a first step in establishing
                     performance standards, is currently working with union officials to
                     overcome the concern that tracking the date an attorney begins work on a
                     case may constitute an attorney time-keeping requirement. He expects to
                     resolve this concern soon. The Chairman added that the suggested
                     timeliness standard of 90 days for ARB to review ERA cases is not realistic
                     unless the Board severely restricts the parties’ ability to properly brief the
                     issues presented. ARB’s comments appear in appendix V.

                     Labor’s Chief Administrative Law Judge stated that our draft report
                     appeared to provide a fair assessment of NRC’s and Labor’s handling of ERA
                     cases. He agreed that the suggested timeliness standard of 240 days for
                     ALJs to hear a case and issue a recommended decision is a reasonable
                     benchmark, but stated that, in designing any legislation or regulation to
                     implement the benchmark, several factors should be addressed: (1) in
                     appropriate circumstances, there must be provisions to extend the time
                     limit, (2) existing case law conflicts with a strict time limit on discovery
                     and hearing, and (3) timeliness standards are only reasonable if the
                     responsible agency has adequate staff. He also pointed out that ALJs are
                     currently directed to provide NRC information on ERA discrimination cases,



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




information on all ALJ decisions is available on the OALJ Home Page on the
World Wide Web, and, if requested, OALJ will work with NRC to improve its
monitoring program. OALJ’s comments on our draft report appear in
appendix VI.

The Assistant Secretary of Labor for Employee Standards commented that
the primary purpose of reassigning initial investigations from the Wage
and Hour Division to OSHA was part of an exchange of responsibilities.
Before the reassignment, OSHA had responsibility for the employee
protection, or “whistleblower,” provisions of certain laws and the staff
devoted to the enforcement of these provisions. Wage and Hour was
responsible for certain employee protections affecting farm workers and
made field sanitation inspections as part of its regular investigations.
These responsibilities were exchanged in order to better use program
expertise and promote effective and efficient use of resources. The
Assistant Secretary also clarified several technical matters in the draft
report. The Employment Standards Administration’s comments on our
draft report appear in appendix VII.

A senior OSHA headquarters official responsible for overseeing OSHA
investigations of employment discrimination commented that, since OSHA
had only recently been assigned responsibility for conducting these
investigations, our report should state that almost all the initial Labor
investigations discussed were conducted by the Wage and Hour Division.

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


As agreed with your office, we will make no further distribution of this
report until 15 days from the date of this letter. At that time, we will send
copies to interested congressional committees, the Secretary of Labor, and
the Chairman of NRC. We will make copies available to others on request.

If you have questions about this report, please call me on (202) 512-7014.
Other GAO contacts and staff acknowledgments are listed in appendix VIII.




Carlotta C. Joyner
Director, Education and
  Employment Issues


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



Letter                                                                                          1


Appendix I                                                                                     36

Scope and
Methodology
Appendix II                                                                                    38
                       Recommendations Implemented                                             38
Status of              Recommendations Partially Implemented                                   48
Recommendations in     Recommendations Not Implemented                                         50
the NRC Review Team
Report
Appendix III                                                                                   52

Status of
Recommendations
From the Labor OIG’s
Report, May 1993
Appendix IV                                                                                    54

Comments From the
Nuclear Regulatory
Commission and Our
Evaluation
Appendix V                                                                                     60

Comments From the
Administrative
Review Board,
Department of Labor




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




Appendix VI                                                                                      62

Comments From the
Office of
Administrative Law
Judges, Department of
Labor
Appendix VII                                                                                     65

Comments From the
Employment
Standards
Administration,
Department of Labor,
and Our Evaluation
Appendix VIII                                                                                    69

GAO Contacts and
Staff
Acknowledgments
Figures                 Figure 1: Joint NRC-Labor Process for Action on Allegations of           10
                          Discrimination by Nuclear Power Industry Employees Who Raise
                          Health and Safety Concerns
                        Figure 2: Percentage of Wage and Hour Division Investigations            18
                          Completed Within the Current and Proposed Statutory Time
                          Frames in Recent Years
                        Figure 3: Percentage of OALJ’s Recommended Decisions                     20
                          Completed Within the Proposed Statutory Time Frame in Recent
                          Years
                        Figure 4: Percentage of Secretary of Labor Decisions Completed           21
                          Within the Proposed Statutory Time Frame in Recent Years




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




Abbreviations

ALJ        administrative law judge
ARB        Administrative Review Board
ERA        Energy Reorganization Act
NRC        Nuclear Regulatory Commission
OAA        Office of Administrative Appeals
OALJ       Office of Administrative Law Judges
OIG        Office of Inspector General
OSHA       Occupational Safety and Health Administration
TVA        Tennessee Valley Authority


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

Scope and Methodology


             To determine the legal protection afforded employees in the nuclear
             power industry who claim they have been discriminated against for raising
             health or safety concerns, we reviewed the employee protection
             provisions of the Energy Reorganization Act (ERA), as amended, and the
             Atomic Energy Act of 1954. We also examined the legislative history of
             these provisions. We examined federal regulations relating to Labor’s
             handling of employee complaints under the ERA, and to NRC’s protection of
             employees from discrimination by licensees. We also examined the
             appropriate sections of NRC’s and Labor’s procedure manuals and
             management directives. We discussed the provisions of these laws and
             regulations with NRC officials in headquarters and NRC regions I, II, and IV
             and with Labor officials in headquarters and in the Philadelphia, Atlanta,
             and Dallas regions. Finally, we obtained and examined regional directives
             for the management of allegation cases from the three NRC regional offices
             we visited.

             We asked NRC and Labor officials, as well as employees who had filed
             discrimination complaints, licensees, and attorneys who represented them,
             to identify studies of the process for resolving cases of alleged
             discrimination. We reviewed those generally acknowledged to be the
             major studies related to the process.16 We discussed the status of the
             recommendations included in these reports with cognizant officials in
             Labor and NRC and examined available documentary support. We did not
             independently assess the merit of specific recommendations made in these
             reports nor audit actual agency implementation of the recommendations.

             In order to measure the effects of the recommendations on the timeliness
             of the system, we gathered information on cases closed at each stage of
             Labor’s process between October 1993 and June 1996. We chose to begin
             our analysis with October 1, 1993, since that would cover the impact of
             changes made to the process as a result of the studies we reviewed.
             Furthermore, NRC’s OIG had already reported on cases through April 1993.
             Specifically, we selected and analyzed the cases as follows:




             16
               Studies we reviewed included NRC, Reassessment of the NRC’s Program for Protecting Allegers
             Against Retaliation (Washington, D.C.: NRC, Jan. 7, 1994); Department of Labor, OIG, Audit of the
             Office of Administrative Appeals, Report No. 17-93-009-01-010 (Washington, D.C.: Department of
             Labor, May 19, 1993); NRC, OIG, Review of NRC’s Allegation Management System, IG/91A-07
             (Washington, D.C.: NRC, Apr. 3, 1992); NRC, OIG, NRC Response to Whistleblower Retaliation
             Complaints, Case No. 92-01N (Washington, D.C.: NRC, July 9, 1993); NRC, OIG, Assessment of NRC’s
             Process for Protecting Allegers From Harassment and Intimidation, Case 93-07N (Washington, D.C.:
             NRC, Dec. 15, 1993); and NRC, OIG, Implementation of Recommendations to Improve NRC’s Program
             for Protecting Allegers Against Retaliation, Case No. 96-01S (Washington, D.C.: NRC, Mar. 5, 1996).



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




•   We obtained automated records from the Wage and Hour Division in
    Washington, D.C., on all “whistleblower” cases closed between October 1,
    1993, and February 28, 1996. We did not independently validate the
    accuracy or completeness of these records. Since we could not always
    determine the whistleblower laws under which discrimination complaints
    were filed, we asked Labor to contact field personnel to identify the cases
    filed under the ERA. We later obtained data covering a more recent
    period—March 1, 1996, through June 30, 1996. We also obtained data on 11
    ERA cases investigated by OSHA investigators in a pilot project during this
    period.
•   We obtained a listing of all ERA cases that had received a recommended
    order between October 1, 1993, and June 30, 1996. We reviewed the
    timeliness and outcomes of these cases using information posted by the
    Office of Administrative Law Judges on the World Wide Web.
•   We compiled a listing of all cases that had received a Secretary of Labor
    decision by using information provided by Labor and NRC for the same
    period.

    In addition, we discussed with numerous knowledgeable individuals issues
    concerning protection of nuclear power industry employees who have
    raised safety concerns. We spoke with Labor and NRC officials both in
    headquarters and in the field who had responsibilities relevant to the
    discrimination complaint process. To obtain the perspective of employees
    and licensees, we visited two nuclear power plants and, at those facilities
    and elsewhere, spoke with (1) 10 nuclear industry employees who had
    filed discrimination complaints with Labor, NRC, or both, including
    members of the National Nuclear Safety Network;17 (2) 8 attorneys who
    have represented employees and licensees in the process; (3) officials of 3
    nuclear licensees that have been the subject of numerous discrimination
    complaints; and (4) officials of the Nuclear Energy Institute, a nuclear
    power industry association.

    We performed our work between January and December 1996 in
    accordance with generally accepted government auditing standards.




    17
     The National Nuclear Safety Network is a group of individuals concerned about the safety of nuclear
    plants. Members include employees who have raised safety concerns and their attorneys, as well as
    other interested parties.



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

Status of Recommendations in the NRC
Review Team Report

                            This appendix lists the recommendations from NRC’s January 7, 1994,
                            report, Report of the Review Team for Reassessment of the NRC’s Program
                            for Protecting Allegers Against Retaliation, and the agency action taken on
                            each. The recommendations have been divided into three categories:
                            implemented, partially implemented, and not implemented. The
                            recommendations are identified with the same number used in the NRC
                            report, to allow for cross-referencing.



Recommendations
Implemented

Recommendation II.A-1       The Commission should issue a policy statement emphasizing that it is
                            important for licensees and their contractors to achieve and maintain a
                            work environment conducive to prompt, effective problem identification
                            and resolution, in which employees feel free to raise concerns both to
                            management and to NRC without fear of retaliation

Action                      A final policy statement implementing this recommendation was published
                            in the Federal Register on May 1, 1996.


Recommendation II.A-2       The Commission policy statement proposed in recommendation II.A-1
                            should include the following:

                        •   licensees should have a means to raise issues internally outside the normal
                            process and
                        •   employees (including contractor employees) should be informed how to
                            raise concerns through the normal processes, alternative internal
                            processes, and directly to NRC.

Action                      The final policy statement implementing this recommendation was
                            published in the Federal Register on May 1, 1996.


Recommendation II.A-3       Regulations in 10 C.F.R. part 19 should be reviewed for clarity to ensure
                            consistency with the Commission’s employee protection regulations.

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




                            Page 38                          GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




Recommendation II.A-4   The policy statement proposed in recommendation II.A-1 should
                        emphasize that licensees (1) are responsible for having their contractors
                        maintain an environment in which contractor employees are free to raise
                        concerns without fear of retaliation and (2) should incorporate this
                        responsibility into applicable contract language.

Action                  The final policy statement implementing this recommendation was
                        published in the Federal Register on May 1, 1996.


Recommendation II.B-1   NRC should incorporate consideration of the licensee environment for
                        problem identification and resolution, including raising concerns, into the
                        Systematic Assessment of Licensee Performance process.

Action                  The final revised Management Directive 8.6, which was issued on
                        January 27, 1995, includes consideration of the work environment in the
                        Systematic Assessment of Licensee Performance process. However, an
                        independent agency team that reviewed NRC actions at the Millstone plant
                        looked at the results of NRC inspections on work environment and reported
                        that NRC inspectors generally are not qualified to assess environment and
                        that, therefore, the results of these assessments were not reliable.


Recommendation II.B-2   NRC should develop inspection guidance for identifying problem areas in
                        the work place where employees may be reluctant to raise concerns or
                        provide information to NRC. This guidance should also address how such
                        information should be developed and channeled to NRC management.

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


Recommendation II.B-4   Allegation follow-up sensitivity and responsiveness should be included in
                        performance appraisals for appropriate NRC staff and managers.

Action                  The elements and standards in NRC’s employee performance appraisals
                        were revised to implement this recommendation as of October 1995.


Recommendation II.B-5   NRC should place additional emphasis on periodic training for appropriate
                        NRC staff on the role of allegations in the regulatory process, and on the
                        processes for handling allegations.




                        Page 39                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                         Appendix II
                         Status of Recommendations in the NRC
                         Review Team Report




Action                   Refresher training has been required annually since May 1996.


Recommendation II.B-6    NRC should develop a readable, attractive brochure for industry employees.
                         The brochure should clearly present a summary of the concepts, NRC
                         policies, and legal processes associated with raising technical and
                         harassment and intimidation concerns. It should also discuss the practical
                         meaning of employee protection, including the limitations on NRC and
                         Labor actions. In addition, NRC should consider developing more active
                         methods of presenting this information to industry employees.

Action                   The brochure was issued in November 1996.


Recommendation II.B-7    Management Directive 8.8 should include specific criteria and time frames
                         for initial and periodic feedback to allegers, in order to measure consistent
                         agency practice.

Action                   The criteria and time frames were incorporated in Management Directive
                         8.8 as of May 1, 1996, and audits have been conducted to ensure
                         compliance.


Recommendation II.B-9    NRC should designate a full-time senior individual for centralized
                         coordination and oversight of all phases of allegation management as the
                         Agency Allegation Manager, with direct access to the Executive Director
                         for Operations, program office directors, and regional administrators.

Action                   The position of Agency Allegation Advisor was filled on February 6, 1995,
                         and the Advisor issued the first annual report on the allegation program to
                         the Executive Director for Operations in September 1996.


Recommendation II.B-10   All program office and regional office allegation coordinators should
                         participate in periodic counterpart meetings.

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




                         Page 40                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                         Appendix II
                         Status of Recommendations in the NRC
                         Review Team Report




Recommendation II.B-11   The Agency Allegation Manager should conduct periodic audits of the
                         quality and consistency of review panel decisions, allegation referrals,
                         inspection report documentation, and allegation case files.

Action                   Two rounds of audits have been completed, and audits will be conducted
                         annually to implement this recommendation.


Recommendation II.B-12   Criteria for referring allegations to licensees should be clarified to ensure
                         consistent application among review panels, program offices, and the
                         regions.

Action                   The criteria were clarified in Management Directive 8.8, issued May 1,
                         1996.


Recommendation II.B-15   NRC should periodically publish raw data on the number of technical and
                         harassment and intimidation allegations (for power reactor licensees, this
                         should be per site, per year).

Action                   A report containing these data, Office for Analysis and Evaluation of
                         Operational Data, Annual Report, FY 1994-95: Reactors, was issued in
                         July 1996.


Recommendation II.B-16   NRC  should resolve any remaining policy differences between the Office of
                         Investigations and the Office of Nuclear Reactor Regulation on protecting
                         the identity of allegers (including confidentiality agreements) in inspection
                         and investigation activities.

Action                   Alleger protection was defined in the revised Management Directive 8.8
                         and in the revised NRC policy statement of May 1996, which implemented
                         the recommendation.


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

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




                         Page 41                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




Recommendation II.C-1   The Commission should support current consideration within Labor to
                        transfer section 211 implementation from the Wage and Hour Division to
                        OSHA.


Action                  The order to transfer section 211 cases to OSHA was signed by the
                        Secretary of Labor in December 1996 for implementation on February 3,
                        1997; NRC supported this change.


Recommendation II.C-3   NRC should recommend to the Secretary of Labor that adjudicatory
                        decisions under section 211 be published in a national reporting or
                        computer-based system.

Action                  Office of Administrative Law Judges (OALJ) and Secretary of Labor
                        decisions are now available on the World Wide Web.


Recommendation II.C-4   NRC should take a more active role in the Labor process. Consistent with
                        relevant statutes, Commission regulations, and agency resources and
                        priorities, NRC should normally make available information, agency
                        positions, and agency witnesses that may assist in completing the
                        adjudication record on discrimination issues. Such disclosures should be
                        made as part of the public record. NRC should consider filing amicus curiae
                        briefs, where warranted, in Labor adjudicatory proceedings.

Action                  NRC’s Executive Director for Operations issued the revised criteria for use
                        by the staff in October 1995. Management Directive 8.8, issued in
                        May 1996, contains revised guidance on this issue.


Recommendation II.C-5   NRC  should designate the Agency Allegation Manager as the focal point to
                        assist people in requesting NRC information, positions, or witnesses
                        relevant to Labor litigation under section 211 (or state court litigation
                        concerning wrongful discharge issues). Information on this process, and
                        on how to contact the NRC focal point, should be included in the brochure
                        for industry employees (see recommendation II.B-6).

Action                  This responsibility was given to the Agency Allegation Advisor through
                        Management Directive 8.8 as of May 1996.




                        Page 42                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                         Appendix II
                         Status of Recommendations in the NRC
                         Review Team Report




Recommendation II.C-7    NRC  should revise the criteria for prioritizing NRC investigations involving
                         discrimination. The following criteria should be considered for assigning a
                         high investigation priority: (1) allegations of discrimination as a result of
                         providing information directly to the NRC; (2) allegations of discrimination
                         caused by a manager above first-line supervisor (consistent with current
                         Enforcement Policy classification of severity level I or II violations);
                         (3) allegations of discrimination where a history of findings of
                         discrimination (by Labor or NRC) or settlements suggests a programmatic
                         rather than an isolated issue; and (4) allegations of discrimination that
                         appear particularly blatant or egregious.

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


Recommendation II.C-8    NRC investigators should continue to interface with Labor to minimize
                         duplication of effort on parallel investigations. Where NRC is conducting
                         parallel investigations with Labor, Office of Investigations procedures
                         should provide that its investigators contact Labor on a case-by-case basis
                         to share information and minimize duplication of effort. Labor’s process
                         should be monitored to determine if NRC investigations should be
                         conducted or continued, or priorities changed. In that regard, settlements
                         should be given special consideration.

Action                   This recommendation was implemented through the Investigation
                         Procedure Manual, section 3.2.2.10.1.


Recommendation II.C-9    When an individual who has not yet filed with Labor brings a harassment
                         and intimidation allegation to NRC, NRC should inform the person (1) that a
                         full-scale investigation will not necessarily be conducted; (2) that Labor
                         and not NRC provides the process for obtaining restitution; and (3) of the
                         method for filing a complaint with Labor. If, after the Allegation Review
                         Board review, the Office of Investigations determines that an investigation
                         will not be conducted, the individual should be so informed.

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


Recommendation II.C-10   The Office of Investigations should discuss cases involving section 211
                         issues with the Department of Justice as early as appropriate so that a



                         Page 43                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                         Appendix II
                         Status of Recommendations in the NRC
                         Review Team Report




                         prompt Justice declination, if warranted, can allow information acquired
                         by the Office of Investigations to be used in the Labor process.

Action                   The Investigation Procedure Manual, section 8.2.3, implemented this
                         recommendation.


Recommendation II.C-11   The implementation of the Memorandum of Understanding with the
                         Tennessee Valley Authority (TVA) Inspector General should be
                         reconsidered following the completion of the ongoing review.

Action                   The Memorandum of Understanding with TVA was terminated on
                         August 30, 1994.


Recommendation II.D-1    For cases that are appealed and result in Labor administrative law judge
                         (ALJ) adjudication, NRC should continue the current practice of initiating
                         the enforcement process following a finding of discrimination by the ALJ.
                         However, the licensee should be required to provide the normal response
                         required by 10 C.F.R. 2.201.

Action                   This recommendation was implemented through a revision to the
                         Enforcement Policy on December 31, 1994.


Recommendation II.D-2    Additional severity level II examples should be added to the Enforcement
                         Policy to address hostile work environments and discrimination in cases
                         where the protected activity involved providing information of high safety
                         significance. The policy should recognize restrictive agreements and
                         threats of discrimination as examples of violations at least at a severity
                         level III. It should also provide that less significant violations involving
                         discrimination issues be categorized at a severity level IV.

Action                   This recommendation was implemented through a revision to the
                         Enforcement Policy on December 31, 1994.


Recommendation II.D-5    The Enforcement Policy should be changed, for civil penalty cases
                         involving discrimination violations, to normally allow mitigation only for
                         corrective action. Mitigation for corrective action should be warranted
                         only when it includes both broad remedial action as well as restitution to




                         Page 44                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




                        address the potential chilling effect. Mitigation or escalation for correction
                        should consider the timing of the corrective action.

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


Recommendation II.D-6   For violations involving discrimination issues not within the criteria for a
                        high priority investigation (see recommendation II.C-7) citations should
                        not normally be issued nor NRC investigations conducted if
                        (1) discrimination, without a complaint being filed with Labor or an
                        allegation made to NRC, is identified by the licensee and corrective action
                        is taken to remedy the situation or (2) after a complaint is filed with Labor,
                        the matter is settled before an evidentiary hearing begins, provided the
                        licensee posts a notice that (a) a discrimination complaint was made, (b) a
                        settlement occurred, and (c) if Labor’s investigation found discrimination,
                        remedial action has been taken to reemphasize the importance of the need
                        to be able to raise concerns without fear of retaliation.

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


Recommendation II.D-7   In taking enforcement actions involving discrimination, use of the
                        deliberate misconduct rule for enforcement action against the responsible
                        individual should be considered.

Action                  This recommendation was implemented through a revision to the
                        Enforcement Policy on December 31, 1994.


Recommendation II.E-1   Regional administrators and office directors should respond to credible
                        reports of reasonable fears of retaliation, when the individual is willing to
                        be identified, by holding documented meetings or issuing letters to notify
                        senior licensee management that NRC (1) has received information that an
                        individual is concerned that retaliation may occur for engaging in
                        protected activities; (2) will monitor actions taken against this individual;
                        and (3) will consider enforcement action if discrimination occurs,
                        including applying the wrongdoer rule.

Action                  This recommendation was implemented through guidance in Management
                        Directive 8.8 issued in May 1996.



                        Page 45                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




Recommendation II.E-2   Before contacting a licensee as proposed in recommendation II.E-1, NRC
                        should (1) contact the individual to determine whether he or she objects
                        to disclosure of his or her identity and (2) explain to the individual the
                        provisions of section 211 and the Labor process (e.g., that it is Labor and
                        not NRC that provides restitution.)

Action                  This recommendation was implemented through guidance in Management
                        Directive 8.8 issued in May 1996.


Recommendation II.E-3   The Commission should include in its policy statement (as proposed in
                        recommendation II.A-1) expectations for licensees’ handling of complaints
                        of discrimination as follows: (1) Senior management of licensees should
                        become directly involved in allegations of discrimination. (2) Power
                        reactor licensees and large fuel cycle facilities should be encouraged to
                        adopt internal policies providing a holding period for their employees and
                        contractors’ employees that would maintain or restore pay and benefits
                        when the licensee has been notified by an employee that, in the
                        employee’s views, discrimination has occurred. This voluntary holding
                        period would allow the licensee to investigate the matter, reconsider the
                        facts, negotiate with the employee, and inform the employee of the final
                        decision. After the employee has been notified of the licensee’s final
                        decision, the holding period should continue for an additional 2 weeks to
                        allow a reasonable time for the employee to file a complaint with Labor. If
                        the employee files within that time, the licensee should continue the
                        holding period until the Labor finding is made on the basis of an
                        investigation. If the employee does not file with Labor within this 2-week
                        period, then the holding period would terminate. (Notwithstanding this
                        limitation on the filing of a complaint with Labor to preserve the holding
                        period, the employee clearly would retain the legal right to file a complaint
                        with Labor within 180 days of the alleged discrimination). The holding
                        period should continue should the licensee appeal an adverse Labor
                        investigative finding. NRC would not consider the licensee’s use of a
                        holding period to be discrimination even if the person is not restored to his
                        or her former position, provided that the employee agrees to the
                        conditions of the holding period and that pay and benefits are maintained.
                        (3) Should it be determined that discrimination did occur, the licensee’s
                        handling of the matter (including the extent of its investigation, its effort
                        to minimize the chilling effect, and the promptness of providing restitution
                        to the individual) would be considered in any associated enforcement
                        action. While not adopting a holding period would not be considered an




                        Page 46                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




                        escalation factor, use of a holding period would be considered a mitigating
                        factor in any sanction.

Action                  An NRC policy statement published in May 1996 implemented this
                        recommendation.


Recommendation II.E-4   In appropriate cases, the Executive Director for Operations (or other
                        senior NRC management) should notify the licensee’s senior management
                        by letter, noting that NRC has not taken a position on the merits of the
                        allegation but emphasizing the importance NRC places on a
                        quality-conscious environment where people believe they are free to raise
                        concerns, and the potential for adverse impact on this environment if the
                        allegation is not appropriately resolved; requesting the personal
                        involvement of senior licensee management in the matter to ensure that
                        the employment action taken was not prompted by the employee’s
                        involvement in protected activity, and to consider whether action is
                        needed to address the potential for a chilling effect; requiring a full report
                        of the actions that senior licensee management took on this request within
                        45 days; and noting that the licensee’s decision to adopt a holding period
                        will be considered as a mitigating factor in any enforcement decision
                        should discrimination be determined to have occurred.

                        In such cases, prior to issuing the letter the employee should be notified
                        that (a) Labor and not NRC provides restitution and (b) NRC will be sending
                        a letter revealing the person’s identity to the licensee, requiring an
                        explanation from the company and requesting a holding period in
                        accordance with the Commission’s policy statement.

Action                  NRC’s policy statement and the revision of Management Directive 8.8 in
                        May 1996 implemented this recommendation. Regarding the 45-day time
                        limit of this recommendation, although NRC has not established this
                        requirement in the Management Directive, an official told us the agency
                        does, in fact, give licensees a time limit within which they must reply.


Recommendation II.E-6   A second investigative finding of discrimination within an 18-month period
                        should normally result in a meeting between the licensee’s senior
                        management and the NRC Regional Administrator.

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



                        Page 47                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                         Appendix II
                         Status of Recommendations in the NRC
                         Review Team Report




Recommendation II.E-7    If more than two investigative findings of discrimination occur within an
                         18-month period, NRC should consider stronger action, including issuing a
                         Demand for Information.

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



Recommendations
Partially Implemented

Recommendation II.B-8    NRC should develop a standard form to be included with alleger close-out
                         correspondence to solicit feedback on NRC’s handling of a given concern.

Action                   NRC developed a feedback form that it sent to a sample of allegers in
                         December 1995, and it plans to send the form again to another sample in
                         1997. After that survey, the agency will decide whether to provide
                         feedback forms routinely with close-out correspondence.


Recommendation II.B-13   NRC should revise the Allegation Management System to be able to trend
                         and monitor an allegation from receipt to the completion of agency action.

Action                   On November 1, 1996, NRC installed a revised Allegation Management
                         System in the regional offices. The system is not yet linked to the Office of
                         Investigations and Office of Enforcement information systems, but NRC
                         plans to do this. Because the system was so recently installed and is not
                         fully linked, monitoring trends through the new system has not yet begun.


Recommendation II.B-14   Using the Allegation Management System, NRC should monitor both
                         harassment and intimidation and technical allegations to discern trends or
                         sudden increases that might justify its questioning the licensee as to the
                         root causes of such changes and trends. This effort should include
                         monitoring contractor allegations—both those arising at a specific
                         licensee and those against a particular contractor across the country.

Action                   As described for recommendation II.B-13, the system was just recently
                         installed, and more time needs to pass before trends can be tracked using
                         the new system.



                         Page 48                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




Recommendation II.C-2   The Commission should support legislation to amend section 211 as
                        follows: (1) revising the statute to provide 120 days from the filing of the
                        complaint to conduct the Labor investigation, 30 days from the
                        investigation finding to request a hearing, 240 additional days to issue an
                        ALJ decision, and 90 days for the Secretary of Labor to issue a final
                        decision, thus allowing a total of 480 days from when the complaint is filed
                        to complete the process; (2) revising the statute to provide that
                        reinstatement decisions be immediately effective following a Labor finding
                        based on an administrative investigation; (3) revising the statute to provide
                        that Labor defend its findings of discrimination and ordered relief in the
                        adjudicatory process if its orders are contested by the employer (this
                        would not preclude the complainant from also being a party in the
                        proceeding).

Action                  Legislation has been drafted by NRC and submitted for Labor’s review and
                        approval before submission to the Congress for (1) and (2). The
                        recommendation on Labor’s defense of allegers at the ALJ hearing (3) is
                        awaiting the Secretary’s signature, but implementation would be selective,
                        depending on resource availability.


Recommendation II.C-6   NRC should work with Labor to establish a shared database to track Labor
                        cases.

Action                  This action was delayed pending the transfer of section 211 duties from
                        the Wage and Hour Division to OSHA. The transfer took place on
                        February 3, 1997, and NRC and OSHA are currently discussing how to
                        implement this recommendation.


Recommendation II.E-5   NRC  should usually issue a chilling effect letter if a licensee contests a
                        Labor area office finding of discrimination and a holding period is not
                        adopted. A letter would not be needed if section 211 is amended to provide
                        for reinstatement following a Labor administrative finding of
                        discrimination. When a chilling effect letter is issued, appropriate
                        follow-up action should be taken. (See recommendations II.E-3 and II.C-2.)

Action                  A revision to the Enforcement Manual on December 31, 1994, requires that
                        NRC assign an enforcement number to each chilling effect letter sent.
                        Systematic tracking by NRC has been started, but guidance for follow-up
                        actions and monitoring of trends in plants has not been issued.




                        Page 49                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                        Appendix II
                        Status of Recommendations in the NRC
                        Review Team Report




Recommendation II.E-8   NRC should consider action when there is a trend in settlements without
                        findings of discrimination.

Action                  The Enforcement Manual was revised on December 31, 1994, to implement
                        this recommendation.



Recommendations
Not Implemented

Recommendation II.B-3   NRC should develop a survey instrument to independently and credibly
                        assess a licensee’s environment for raising concerns.

Action                  This recommendation will not be implemented, according to NRC’s Annual
                        Report on the Allegations Program, September 1996, because of
                        disagreement among NRC staff about its effectiveness. A current staff
                        proposal, however, contains actions to partially implement the
                        recommendation.


Recommendation II.D-3   The Commission should seek an amendment to section 234 of the Atomic
                        Energy Act of 1954 to provide for a civil penalty of up to $500,000 per day
                        for each violation. If this provision is enacted, the Enforcement Policy
                        should be amended to provide that this increased authority should usually
                        be used only for willful violations, including those involving
                        discrimination.

Action                  This recommendation will not be implemented because NRC believes that
                        increasing incentives for strong self-monitoring and corrective action
                        programs would be better accomplished by revising the overall civil
                        penalty assessment process than by raising civil penalty amounts.


Recommendation II.D-4   Pending an amendment to section 234 of the Atomic Energy Act, the
                        flexibility in the enforcement policy should be changed to provide that the
                        base penalty for willful violations involving discrimination, regardless of
                        severity level, should be the amount currently specified for a severity level
                        I violation.




                        Page 50                                GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                           Appendix II
                           Status of Recommendations in the NRC
                           Review Team Report




Action                     This recommendation will not be implemented because NRC believes that
                           increasing incentives for strong self-monitoring and corrective action
                           programs would be better accomplished by revising the overall civil
                           penalty assessment process than by raising civil penalty amounts.


Recommendation II.E-4(3)   The Executive Director for Operations or another senior official at NRC
                           should request, in appropriate cases, that the licensee place an employee
                           in a holding period as described in the Commission’s policy statement (see
                           recommendation II.E-3).

Action                     This part of recommendation II.E-4 will not be implemented, according to
                           NRC’s Annual Report on the Allegations Program, September 1996;
                           however, a staff proposal is being considered that would implement it.




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

Status of Recommendations From the Labor
OIG’s Report, May 1993

                 This appendix contains the recommendations and their implementation
                 status from the Labor OIG’s May 1993 report, Audit of the Office of
                 Administrative Appeals.18


                 The Director of the Office of Administrative Appeals (OAA) should conduct
Recommendation   an immediate review of cases pending in OAA to resolve the issues that
                 have prevented these cases from being completed and bring these cases to
                 completion as quickly as possible.


Action           OAA has cleared the backlog of cases, thus implementing this
                 recommendation.


                 The Director of OAA should establish timeliness standards for OAA’s case
Recommendation   processing and the issuance of decisions, which will meet the
                 requirements of due process, the intent of the Administrative Procedures
                 Act, and customer service expectations of the Secretary.


Action           Action on this recommendation is pending. The Director is currently
                 involved in discussions to obtain agreement on timeliness standards.


                 The Director of OAA should develop and implement management
Recommendation   information systems to include case management and time distribution
                 data.


Action           The agency has developed and implemented a management information
                 system for cases.


                 The Director of OAA should conduct analysis to identify operation changes
Recommendation   and resource requirements necessary to achieve and maintain compliance
                 with the newly established case processing standards and present that
                 information in OAA’s planning and budgeting documents.



                 18
                  Report No. 17-93-009-01-010 (Washington, D.C.: Department of Labor, May 19, 1993). As previously
                 mentioned, the Office of Administrative Appeals function is now performed by the Administrative
                 Review Board in the Department of Labor.



                 Page 52                                    GAO/HEHS-97-51 Nuclear Employee Safety Concerns
         Appendix III
         Status of Recommendations From the Labor
         OIG’s Report, May 1993




Action   Action is pending. Because timeliness standards have not been
         established, resource needs cannot be evaluated.




         Page 53                             GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix IV

Comments From the Nuclear Regulatory
Commission and Our Evaluation

Note: GAO comments
supplementing those in the
report text appear at the
end of this appendix.




                             Page 54   GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                 Appendix IV
                 Comments From the Nuclear Regulatory
                 Commission and Our Evaluation




Now on p. 2.




See comment 1.




Now on p. 3.
See comment 1.



Now on p. 4.


See comment 1.



Now on p. 10.
See comment 2.


Now on p. 11.
See comment 2.




Now on p. 12.
See comment 1.

Now on p. 12.
See comment 1.




                 Page 55                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                    Appendix IV
                    Comments From the Nuclear Regulatory
                    Commission and Our Evaluation




Now on p. 13.
See comment 3.




Now on pp. 13-14.




See comment 1.



Now on p. 14.




See comment 1.




Now footnote 10.


See comment 1.



Now on p. 17.

See comment 1.




                    Page 56                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                 Appendix IV
                 Comments From the Nuclear Regulatory
                 Commission and Our Evaluation




Now on p. 22.

See comment 1.




Now on p. 22.
See comment 1.



Now on p. 22.




See comment 1.




Now on p. 22.




See comment 1.


Now on p. 22.
See comment 4.




                 Page 57                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                 Appendix IV
                 Comments From the Nuclear Regulatory
                 Commission and Our Evaluation




Now on p. 25.
See comment 1.



Now on p. 26.
See comment 5.

Now on p. 26.
See comment 1.

Now on p. 28.

See comment 1.


Now on p. 42.
See comment 1.



Now on p. 44.
See comment 1.


Now on p. 48.
See comment 1.




Now on p. 49.
See comment 1.


See comment 6.




                 Page 58                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
               Appendix IV
               Comments From the Nuclear Regulatory
               Commission and Our Evaluation




               The following are GAO’s comments on the Nuclear Regulatory
               Commission’s letter dated February 21, 1997.


               1. Wording revised.
GAO Comments
               2. Figure revised as suggested.

               3. Discussion of when civil penalties are imposed was deleted from this
               section.

               4. Comment not incorporated. According to Labor procedures, NRC is
               supposed to receive copies of settlement agreements. We did not obtain
               evidence on whether these procedures were followed.

               5. Incorporated as footnote 14.

               6. Corrections made.




               Page 59                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix V

Comments From the Administrative Review
Board, Department of Labor




              Page 60    GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix V
Comments From the Administrative Review
Board, Department of Labor




Page 61                            GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VI

Comments From the Office of
Administrative Law Judges, Department of
Labor




              Page 62      GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VI
Comments From the Office of
Administrative Law Judges, Department of
Labor




Page 63                              GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VI
Comments From the Office of
Administrative Law Judges, Department of
Labor




Page 64                              GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VII

Comments From the Employment Standards
Administration, Department of Labor, and
Our Evaluation
Note: GAO comments
supplementing those in the
report text appear at the
end of this appendix.




                             Page 65   GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                 Appendix VII
                 Comments From the Employment Standards
                 Administration, Department of Labor, and
                 Our Evaluation




Now on p. 1.

See comment 1.




Now on p. 3.
See comment 2.




Now on p. 3.
See comment 1.




Now on p. 4.
See comment 1.

Now on p. 3.
See comment 1.




                 Page 66                             GAO/HEHS-97-51 Nuclear Employee Safety Concerns
                 Appendix VII
                 Comments From the Employment Standards
                 Administration, Department of Labor, and
                 Our Evaluation




Now on p. 7.


See comment 3.



Now on p. 15.
See comment 1.


Now on p. 49.
See comment 1.




                 Page 67                             GAO/HEHS-97-51 Nuclear Employee Safety Concerns
               Appendix VII
               Comments From the Employment Standards
               Administration, Department of Labor, and
               Our Evaluation




               The following are GAO’s comments on the Assistant Secretary of Labor for
               Employee Standard’s letter dated February 27, 1997.


               1. Wording revised.
GAO Comments
               2. Wording unchanged. We believe that the description of the process in
               the preceding paragraph adequately conveys that there may be several
               actions involved at Labor.

               3. Wording unchanged. Although the regulation does not specifically state
               that the 90-day time frame can be waived, current procedures have the
               same effect as waiving the time frame: Cases are not completed in 90 days.
               We do not disagree with the Assistant Secretary’s comment that the Wage
               and Hour Division completed the investigative phase as quickly as
               possible.




               Page 68                             GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Appendix VIII

GAO Contacts and Staff Acknowledgments


                  Larry Horinko, Assistant Director, (202) 512-7001
GAO Contacts      Bob Sampson, Senior Evaluator, (202) 512-7251


                  In addition to those named above, the following individuals made
Staff             important contributions to this report: Joan Denomme and Mary Roy
Acknowledgments   gathered and analyzed essential information and drafted the report;
                  Elizabeth Morrison contributed extensively to development and
                  presentation of the report’s message; and Gary Boss and Philip Olson
                  provided technical advice concerning Nuclear Regulatory Commission
                  activities.




(205314)          Page 69                         GAO/HEHS-97-51 Nuclear Employee Safety Concerns
Ordering Information

The first copy of each GAO report and testimony is free.
Additional copies are $2 each. Orders should be sent to the
following address, accompanied by a check or money order
made out to the Superintendent of Documents, when
necessary. VISA and MasterCard credit cards are accepted, also.
Orders for 100 or more copies to be mailed to a single address
are discounted 25 percent.

Orders by mail:

U.S. General Accounting Office
P.O. Box 6015
Gaithersburg, MD 20884-6015

or visit:

Room 1100
700 4th St. NW (corner of 4th and G Sts. NW)
U.S. General Accounting Office
Washington, DC

Orders may also be placed by calling (202) 512-6000
or by using fax number (301) 258-4066, or TDD (301) 413-0006.

Each day, GAO issues a list of newly available reports and
testimony. To receive facsimile copies of the daily list or any
list from the past 30 days, please call (202) 512-6000 using a
touchtone phone. A recorded menu will provide information on
how to obtain these lists.

For information on how to access GAO reports on the INTERNET,
send an e-mail message with "info" in the body to:

info@www.gao.gov

or visit GAO’s World Wide Web Home Page at:

http://www.gao.gov




PRINTED ON    RECYCLED PAPER
United States                       Bulk Rate
General Accounting Office      Postage & Fees Paid
Washington, D.C. 20548-0001           GAO
                                 Permit No. G100
Official Business
Penalty for Private Use $300

Address Correction Requested