ML20046A111
| ML20046A111 | |
| Person / Time | |
|---|---|
| Issue date: | 07/09/1993 |
| From: | NRC OFFICE OF THE INSPECTOR GENERAL (OIG) |
| To: | |
| Shared Package | |
| ML20046A105 | List: |
| References | |
| NUDOCS 9307260205 | |
| Download: ML20046A111 (25) | |
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0FFICE OF THE INSPECTOR GENERAL INSPECTION REPORT D
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O' NRC RESPONSE TO WHISTLEBLOWER RETALIATION COMPLAINTS CASE N0.92-01N Yy&:lfbchk 7/f/93 h,, f-l '
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TABLE OF CONTENTS PAGE EXECUTIVE
SUMMARY
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BASIS AND SCOPE 9
i 1 0 BACKGROUND-LEGISLATIVE AND REGULATORY BASIS FOR EMPLOYEE PROTECTION 10 11 ENERGY POLICY ACT OF 1992 i
DOL SECTION 211 COMPLAINT PROCESSING PROCEDURES 12 NRC PROCESS FOR HANDLING REPORTS OF RETALIATION-AGAINST ALLEGERS..................
12 NRC INVESTIGATIONS / ENFORCEMENT ACTIONS INVOLVING RETALIATION
..................13 l
ISSUES........................... 16
-16 ANECDOTAL EXPERIENCES OF WHISTLEBLOWERS ISSUE 1: LACK OF TIMELY NRC RESPONSE TO RETALIATION 18 ISSUE 2: QUESTIONABLE IMPACT OF NRC'S " CHILLING 3
19 EFFECT" LETTER ISSUE 3: DISCLOSURE 0F WHISTLEBLOWERS' IDENTITIES 20 l
i 21 SUGGESTIONS FOR CHANGE-21 USE OF THE " WRONGDOER RULE" NRC INVESTIGATIVE INTERVIEWS VERSUS
" CHILLING EFFECT" LETTER..............
21
-4, PAGE PROTECTION FOR ACTIVELY-EMPLOYED ALLEGERS i
DURING NRC INVESTIGATION..............
21 INCREASED CIVIL PENALTIES AND OTHER ENFORCEMENT ACTIONS 22-FULL NRC INVESTIGATIVE RESPONSIBILITY FOR RETALIATION 22 1
INVESTIGATIVE RESOURCES FOR RETALIATION CASES 23 COMMENTS FROM PRIVATE ATTORNEYS 23 FINDINGS....
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l EXECUTIVE
SUMMARY
The Office of the Inspector General (OIG) received a number of complaints from licensee employees. The complaints focused on the inadequacy of U.S Nuclear Regulatory Commission (NRC) and Department of Labor (DOL) procedures to provide l
protection for licensee whistleblowers who experienced intimidation and harassment from their employers after voicing health and safety concerns. Senator Joseph I.
Lieberman also became aware of some of these complaints, and his staff discussed the issue with our office. The OlG initiated an inspection in 1992 to examine and better understand the nature and magnitude of this problem. During the inspection, ideas for addressing the problem were expressed to us which we have included in our report.
BACKGROUND The NRC is responsible for regulating the operation of nuclear power plants and the activities of nuclear materials licensees to protect public health and safety. Due to the magnitude of licensed activities, the NRC can inspect only a fraction of them. Because of this, the NRC relies, in part, on licensee and contractor employees to report safety concerns to both the licensee and the NRC. If employees are subjected to retaliation for reporting safety concerns to licensee management or to the NRC, there are potentially serious negative consequences.
He NRC developed regulations that are designed to protect from retaliation employees who cooperate with the NRC. Because both DOL and the NRC share responsibilities in the cmployee protection area, the two agencies entered into a Memorandum of Understanding in October 1982. Although the NRC can initiate an investigation at any time during the DOL process, working arrangements agreed to by both agencies provided that the NRC would not normally conduct a parallel investigation.
The NRC regulates 112 licensed nuclear power reactors with more than 100,000 employees, and more than 8,000 materials licensees and their employees. Between October 1988 and April 1993, the NRC received 609 retaliation complaints, of which 369 were also filed with DOL. From the 609 complaints, the NRC initiated 44 retaliation investigations and completed 31. Eight of these 31 completed investigations were of complaints that were also investigated by DOL. The remaining 23 completed
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investigations were conducted in response to the 240 complaints that were filed only with the NRC.
During this same 4-1/2 year period, the NRC Office of Enforcement took seven enforcement actions involving 10 of the 609 reported retaliation complaints. Three of the NRC enforcement actions were taken against nuclear power reactor licensees. Two of these three enforcement actions resulted in civil penal:ies being proposed. The proposed penalties were for $25,000 and $130,000, and they are still pending. The third enforcement action resulted in a Notice of Violation without a civil penalty.
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ISSUES In conducting this inspection, the OIG interviewed 16 whistleblowers who identified issues in the NRC process for responding to retaliation complaints that, in their opinion, contributed significantly to a " chilling effect" for the whistleblowers and their co-workers.
The issues mentioned were 1) the lack of a timely NRC response to retaliation complaints,2) the questionable impact of NRC's " Chilling Effect" letter, and 3) the disclosure of whistleblowers' identities through the NRC inspection process.
The whistleblowers told OlG that they felt the NRC does little to protect them from retaliation or to investigate their allegations of retaliation in a timely manner. They described a feeling of abandonment created by the NRC's willingness to " sit on the sidelines" and allow DOL to determine whether the whistleblowers were subjected to' retaliation. These whistleblowers believe that the NRC's lack of effort to investigate retaliation complaints results in a " chilling effect" for them and their co-workers.
The NRC staff had vanjing opinions about the usefulness of the " Chilling Effect" letter sent to licensees. Several felt it was ineffective and had no deterrent effect for licensees.
The staff also told OIG that the NRC did not routinely verify representations in licensees' responses to " Chilling Effect" letters."
Although the NRC has procedures in place to protect the identity of allegers who report safety concerns, a number of allegers informed O!G that they believed the NRC comprornised their identities to their employers through the same procedures. The disclosure of an alleger's identity can occur through a process known as " fingerprinting."
SUGGESTIONS FOR CHANGE During this inspection, OlG received numerous suggestions for changing the agency's policy for responding to whistleblower complaints from several sources including the NRC staff. The NRC staff intersiewed by OlG emphasized that acceptance of additional investigative responsibilities will require either a shifting of work priorities, or the NRC will need to request additional investigative ar'd enforcement resources. There were suggestions and comments which included the following:
Use of the SVrongdoer Rule" Significant criticism was directed at the NRC practice of penalizing only licensees for retaliation. Allegers maintained that individual managers responsible for willful acts of retaliation were not penalized and often continued working in the nuclear industry.
This rule allows the NRC to order the removal of an employee from licensed activities.
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Increased civil penalties and other enforcement actions The allegers and numerous NRC staff interviewed by the OIG, and certain attorneys representing allegers, stated that the current monetary level of civil penalties has little deterrence for licensees. Substantially larger monetary fines are an alternative, but many of those inteniewed questioned the impact of a larger civil penalty. However, nearly all inteniewees agreed that NRC ordering the shutdown of a nuclear power plant or revoking a license would be the most significant penalty to impose on licensees. Many of the inteniewees maintained that these were the only penalties which would cause licensees to consider retaliation to be a serious violation.
NRC investigative inteniews versus Chilling Effect" letter When a DOL Area Director finds that an alleger was retaliated agairist, the NRC sends the licensee a " Chilling Effect" letter. The purpose of the letter is to obtain an explanation of what the licensee has done and plans to do to ensure that the retaliatory act does not have a " chilling effect" on other employees. Allegers and several of the NRC staff OlG interviewed agreed that the NRC places too much reliance on unverified licensee responses to tha
- Chilling Effect" letter. They maintained that a preliminary inquiry by NRC investigators would be more effective in determining whether a potential
" chilling effect" exists. Specifically, the investigators could obtain first hand explanations about alleged retaliation, review pertinent documentation and conduct interviews of licensee managers.
Protection for actively employed allegers during NRC investigation Allegers and a number of NRC staff suggested that the NRC could order licensees to temporarily protect an alleger's employment status. This protection would continue at least until the NRC had completed its own investigation of the alleged retaliation. Other NRC staff expressed concern that this practice could be easily abused by an employee with a frivolous complaint to avoid an adverse personnel action or a scheduled layof:
Howeser, this option could be considered when these improper motives can be ruled out.
Full NRC investigative responsibility for retaliation If the NRC assumed total responsibility for investigating and adjudicating retaliatory complaints reported by licensee employees, there would be a positive impact in reducing the " chilling effect," according to certain interviewees. The interviewees said that timely investigations and enforcement actions by the NRC will provide licensees with a message that retaliation will not be tolerated. Also, licensee employees will know that the NRC can provide protection to those employees who cooperate with the NRC. The inteniewees recognized that this option would likely require additional NRC investigative resources or a reassestment of the system for determining investigative 6
i priorities. Further, the NRC would have to assess the resource impact that the assumption of the DOL adjudicating process would have on the agency.
FINDINGS 1
Based on the information developed during this inspection, we found that the NRC i
process for handling allegations of retaliation does not provide an adequate level of protection to allegers reporting safety concerns. Our inspection disclosed substantial dissatisfaction with the process among the allegers and numerous NRC staff we interviewed. The NRC staff acknowledged that the current NRC practice of awaiting DOL decisions does not provide for timely resolution of retaliation allegations. Such a delay can result in a " chilling effect" for whistleblowers and their co-workers who may have additional safety concerns to report to licensee management or to the NRC.
NRC staff. allegers, and attorneys representing allegers concurred that the lack of an aggressive and timely NRC response to complaints of retaliation sends a message to licensee management that the NRC does not consider retaliation to be a matter of serious concern. This perception can also result in a " chilling effect" for allegers and their co-workers.
The NRC staff had varying opinions about the usefulness of the NRC's " Chilling Effect" letter. However, several felt it was ineffective and had no deterrent effect for licensees.
A number of interviewees believe the NRC should penalize individual licensee employees responsible for retaliation. We found that the NRC has options available to deal with individuals responsible for retaliation. In addition to the Wrongdoer Rule, Title 42, United States Code 2273 provides criminal penalties for willful violations of the Atomic Energy Act.
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BASIS AND SCOPE The Office of the Inspector General (OlG) received a number of complaints from licensee employees. The complaints focused on the inadequacy of U.S. Nuclear Regulatory Commission (NRC) and Department of Labor (DOL) procedures to provide protection for licensee whistleblowers who experienced intimidation and harassment from their employers after voicing health and safety concerns. Senator Joseph I.
Lieberman also became aware of some of these complaints, and his staff discussed the issue with our office. The OlG initiated an inspection in 1992 to examine and better -
understand the nature of the complaints and the magnitude of this problem. During the inspection, ideas for addressing the problem were expressed to us which we have included in our report.
This OIG inspection reviewed the NRC process for handling allegers, the implementing procedures for this process, and the allegation files associated with specific alleger cases.
The OIG interviewed a total of 16 allegers in the five NRC regions. The OIG also inteniewed 26 NRC staff to include the Allegation Coordinators, the Regional Legal Counsels, the Enforcement Officers, and the Field Office Directors of the Office of Investigations in each region. The Directors of the NRC Office of Enforcement and the NRC Office of Investigations were interviewed, and OlG obtained the views of attorneys representing both allegers and licensees.
The 16 whistleblowers OIG interviewed contacted the OlG directly with their complaints, or they were referred to OlO by others who were aware of the problems they were experiencing. The whistleblowers were interviewed with the objective of understanding their concerns with the government's handling of their retaliation complaints. While the allegers do not represent all whistleblowers, they did help us focus on the government policies and procedures that could impact negatively on the whistleblowers. Our inspection did not involve a comprehensive survey of all NRC allegers who filed retaliation complaints. Therefore, this report does not address the experiences and perceptions of the entire NRC whistleblower population.
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BACKGROUND The NRC has responsibility for regulating the operation of nuclear power plants and the activities of nuclear materials licensees to protect public health and safety. Although the NRC inspects and audits these licensees, the magnitude of licensed activities is so extensive that only a fraction of them can be inspected by the NRC. Because of this, the NRC relies, in part, on licensee and contractor employees to report safety concerns to both the licensee and the.NRC. The NRC considers a properly functioning licensee quality assurance program to be an integral part of the NRC's regulatory program.
Essentially, employees must feel free to report concerns to their management or the NRC. If employees are subject to retaliation for reporting safety concerns to licensee management or to the NRC, there are potentially serious negative consequences. The NRC developed regulations that are designed to protect from retaliation employees who cooperate with the NRC.
legislative and regulatory basis for employee protection In 1978, Section 210 was added to the Energy Reorganization Act of 1974. This statute provided that no NRC licensee, licensee contractor, or subcontractor could discharge or otherwise discriminate against employees with respect to the terms and conditions of their employment because the employees participated in protected activities. Employees who alleged a violation under Section 210 could file a complaint with DOL DOL was required to complete the investigation within 30 days, notify both parties to the complaint of the results, and order a remedy if appropriate. The DOL remedy could include an order to rehire the employee; provide back pay to the employee; promote the employee; and pay the employee's attorney fees.
In 1982 the NRC added new Employee Protection Sections to Title 10, Code of Federal Regulations (CFR). These provisions are reflected in 10 CFR parts 30.7,40.7,50.7,60.9, 61.9,70.7 and 72.10. These new rules adopted the basic statutory prohibition of retaliatory discrimination addressed in Section 210. These regulations further defined 4
the protected activities related to providing the Commission with information about possible violations of NRC requirements that could affect the public health and safety.
If the NRC determined through its own investigation or as the result of the DOL finding that an NRC licensee had committed a violation, the NRC could take enforcement action against the licensee. The NRC enforcement action could include denying, revoking, or suspending a license; imposing a civil penalty; or other enforcement action.
While the NRC enforcement authority is directed at the licensee, the DOL authority is directed at restoring the employee's job staNs when appropriate.
The NRC's authority was further enhanced in 1992, when the Commission amended its regulations to make applicable the existing criminal penalty provisions of the Atomic Energy Act of 1954, as amended. The provisions made it illegal to willfully violate the Commission's regulations regarding retaliation. Specifically, Title 42, United States 10
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Code, Section 2273 provides criminal penalties for willful violations of the Act by an individual director, officer, or employee of a firm licensed by the NRC. To date, there i
have been no prosecutions under this statute.
l Because both DOL and the NRC share responsibilities in the employee protection area, the two agencies entered into a Memorandum of Understanding (MOU)in October 1982. The MOU required the DOL to promptly notify the NRC of any complaint filed pursuant to Section 210 that involved NRC licensees. Additionally, DOL was required to promptly provide the NRC with copies of an alleger's complaint and advise the NRC of any actions taken with respect to the complaint. In turn, the NRC agreed to assist DOL in obtaining access to licensed facilities. Working arrangements agreed to by both agencies provided that the NRC would not normally conduct a parallel investigation of retaliation.
In 1986, the NRC reassessed the regulations, policies, and procedures for handling alleged violations of the Employee Protection provisions of 10 CFR. One issue addressed during this reassessment involved determining when the NRC should investigate incidents of alleged retaliation. The NRC chose to continue its practice of delaying its own investigations of retaliation until DOL had concluded its investigations and proceedings.
Enerrv Poliev Act of 1902 In 1992, the Congress was considering two bills, S. 2166 and H.R. 776, that would establish a national energy strategy. On June 26,1992, the NRC wrote the Honorable John D. Dingell, Chairman, House Committee on Energy and Commerce, to present its views on the bills. One of the provisions with which the NRC expressed " substantial" concern related to whistleblower protection. The NRC's detailed response to subsection 3004(h) of H.R. 776, which included the proposed changes to the whistleblower protection provisions stated:
We strongly object to subsection 3004(h) of H.R. 776, which would: (1) impose an independent duty on the NRC to investigate whistleblower allegation:, regardless of the pendency of a Department of Labor (DOL) investigation or federal court proceeding. The NRC would be directed not to delay any investigation during the pendency of a DOL investigation; and (2) bar the Commission from considering a determination by the DOL that a violation of section 210 had not occurred in determining whether any violation of that section or the Atomic Energy Act had occurred.
Further, the NRC response continued with the statement that:
The approach contained in section 3004(h) is unsatisfactory because it will mandate unnecessary and costly NRC duplication of DOL efforts, particularly if 11
we are precluded from considering a DOL finding rejecting the Whistleblower's claims. Without being given additional resources to accommodate this new workload, NRC investigatory resources will necessarily have to be diverted from other efforts.
The final legislation did not include the proposed changes.
Both the Senate and House bills contained a provision for increasing from 30 days to one year the time allowed for an alleger to file a claim with DOL under Section 210.
The NRC expressed support for a six. month statute of limitations rather than one year because the longer investigations of complaints are delayed, the more difficult investigations become." The six-month limit was ultimately accepted and included in the l
legislation which became effective in October 1992. Also at this time, Section 210 was l
redesignated Section 211.
DOL Section 211 complaint processing procedures The DOL Wage and Hour Division closes more than 65,000 cases annually, a small portion of which are filed by employees of NRC licensees. When an alleger complains of retaliation to DOL under Section 211 of the Energy Reorganization Act, an investigation is assigned to a local DOL Compliance Officer within the Wage and Hour Division.
The DOL staff notifies the appropriate NRC regional office that a Section 211 complaint has been received from an employee of an NRC licensed facility. The Compliance Officer initially attempts to attain a settlement between the alleger and the licensee. If.
this is unsuccessful, the officer completes the investigation and issues a Narrative Report to the DOL Area Director. The Section 211 requirement that the Narrative Report be completed within 30 days is not always met. The Area Director will issue a finding which is subject to appeal. The DOL staff will notify the NRC of the Area Director's finding.
When an Area Director's finding is appealed, a hearing is scheduled before an Administrative Law Judge (ALJ). The ALJ decision is automatically forwarded to the Secretary of Labor for review. This entire investigation and review process can take 3-5 years to complete. In some cases, the process has taken longer than five years.
NRC process for handling reports of retaliation against allegers NRC Management Directive 8.8, Management of Allegations, formerly NRC Manual Chapter 0517, addresses the need to promptly resolve technical concerns reported by allegers. This directive also acknowledges that allegations invohing retaliatory actions against individuals reporting safety concerns may have public safety implications.
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i Specifically, co-workers who become aware of alleged retaliatory acts may be discouraged from reporting safety concerns of their own. This is referred to as a " chilling effect."
When an alleger contacts the NRC with an allegation involving retaliation, the alleger is informed that the complaint should also be filed with DOL if a remedy is sought. The NRC also advises the alleger of the reporting requirements under Section 211. If the alleger files with DOL, the DOL proceedings will be monitored by the NRC.
The NRC can investigate retaliation complaints at any time regardless of the status of I
the DOL proceedings. However, the NRC seldom initiates an investigation while DOL is involved in a retaliation case. If a DOL Area Director finds for a licensee and the alleger does not request an AU hearing, the NRC will normally close the case at tha' juncture. On the other hand,if a DOL Area Director finds for the alleger and the allegation appears egregious or involves high level licensee managers, the NRC will determine whether to initiate its own investigation.
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In the past, NRC enforcement action was not taken against a licensee until the Secretary l
of Labor ruled. In March 1992, however, NRC guidance provided that enforcement actions could be initiated based on a DOL Administrative Law Judge's recommended i
decision for the alleger. This AU decision is generally rendered between 6 and 18 I
months after an appeal of the DOL Area Director's findings. Even though an NRC enforcement action could be proposed following an AU recommended decision, the NRC guidance provides that the enforcement action would not become final until the Secretary of Labor ruled.
Justification for this change to the NRC guidance was based on the extensive time required for a Secretary of Labor ruling. An extended period of time often elapses between the time an AU recommends a decision and the Secretary rules. As a result, I
the impact of an NRC enforcement action is diminished by the passage of time between the alleged offense and the ultimate enforcement action. Also,if the 5-year statute of limitations lapses during DOL proceedings, the NRC cannot issue a civil penalty.
For those cases in which an alleger files a complaint only with the NRC, the agency reviews the allegation to determine whether to initiate an investigation. This decision depends on a number of factors, including workload, other higher priority investigations, the availability of investigative resources, and whether the allegation involves egregious circumstances. The NRC has jurisdiction to take enforcement action against a licensee, j
but no authority to order remedial action for the alleger.
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1 NRC investigations / enforcement actions involving retaliation i
The NRC regulates 112 licensed nuclear power reactors with more than 100,000 employees, and more than 8,000 materials licensees and their employees. The OlG
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obtained statistica' data from the NRC pertaining to complaints of retaliation reported by employees of 'nese NRC licensees.
Between October 1988 and April 1993, the NRC received a total of 609 retaliation complaints. Of this total,369 complaints were also filed with DOL for investigation. Of the 369 complaints, DOL found for the allegers on 58 occasions, for the licensees on 159 occasions, and 54 complaints were dismissed for procedural reasons. Of the remaining' 98 complaints,32 were withdrawn by the allegers,41 were settled before any DOL
-i decision was rendered, and the disposition of the remaining 25 is unknown. The following chart displays these data.
P I
DOL Processing of Complaints i
Received from NRC Licensee Employees October 1988 - April 1993
((/((f(((([/
369' Mied with DOL
/(((((( 159 found for Licensee I//
58 Found for Alleger j
Procedural Dismisd 54 Cornplaint Witndrawn 32 b Employee 3
Setde<l Before DOL Decision i
41 Resoludon Unknown 25 to NRC 0
50 100 150 200 250 300 350 400 Number of Complaints 9
Of the 609 complaints reported during this period, the NRC Office of Investigations (01) initiated 44 full scale investigations. Thirty-one of these 44 investigations have been completed. Eight of these 31 completed investigations were of complaints that were also investigated by DOL These were among the 369 complaints that were filed with both 1
the NRC and DOL The remaining 23 completed investigations were conducted in response to the 240 complaints that were filed only with the NRC.
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9 Also during the October 1988 and April 1993 period, the NRC Office of Enforcement took 'l enforcement actions involving 10 of the 609 reported complaints. Three of the actions involved nuclear power reactor licensees. Two of these three enforcement actions resulted in civil penalties being proposed, and the remaining enforcement action resulted in a Notice of Violation without a civil penalty.. The proposed penalties were for $25,000 and 5130,000, and they are still pending. The fol;owing chart displays these data.
Complaints of Retaliation NRC Investigations and Enforcement Actions October 1988 April 1993 I
Filed with NRC 609 NRC Im estigations 44
(
NRC Enforcanent 7
Actions l
0 100 200 300 400 500 600 Number of Complaints P
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ISSUES This section identifies issues common to complaints received by the OlG from those interviewed. The complaints concerned the NRC's response to reports of retaliation and the impact of this response on whistleblowers. In conducting this inspection, the OIG interviewed 16 whistleblowers who identified issues in the NRC process for responding to retaliation complaints that, in their opinion, contributed significantly to a " chilling effect" for the whistleblowers and their co-workers. The issues mentioned were 1) the lack of a timely NRC response to retaliation complaints,2) the questionable impact of NRC's
" Chilling Effect" letter, and 3) the disclosure of whistleblowers' identities through the NRC inspection process. The OIG also selected anecdotalinformation from the interviews which were conducted. The anecdotes place in context the effects of the issues identified by the whistleblowers.
Anecdotal experiences of whistleblowers.
In 1988, an ergneering test technician employed by a nuclear power reactor licensee in the Southwest reported technical concerns to the NRC. The concerns were partially substantiated through the NRC inspection program and reported to the licensee for corrective action. Following the inspection, the alleger was subjected to a number of alleged retaliatory actions by supervisors. These actions involved being moved to a position that required longer work hours, that was more physically demanding, and that increased the employee's level of radiation exposure. The employee filed a Section 210 complaint with DOL. Because a complaint was filed with DOL, the alleger was advised that the NRC would monitor the DOL proceedings.
In 1989, a DOL Administrative Law Judge found for the alleger and ordered the licensee to take remedial action. The licensee sought reversal of the AU recommended decision which was sent to the Secretary of 12bor for review. Nearly five years after the complaint was originally reported, the Secretary has not rendered a final ruling in this case. During this lengthy process, the NRC did not investigate the licensee's alleged retaliatory act.ons. The NRC maintained that since the Al_I recommended decision was still being reviewed by the Secretary, the NRC would continue to wait until a final ruling was rendered before considering action.
In October 1992. because of potential statute of limitations problems with this case, and in accordance with the March 1992 revision to the enforcement procedures, the NRC proposed a civil penalty against the licensee based on the 1989 AU recommended decision. However, the alleger asserted that the lack of an aggressive response by the NRC following the 1989 AU decision contributed to continued acts of retaliation.
According to tr.e alleger, the NRC response has also deterred co-workers from reporting concerns and left the alleger "out in the cold."
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In 1959 a mid level manager employed by a nuclear power reactor licensee located in New England reported serious problems with safety equipment to licensee management and the NRC. This equipment is installed in numerous nuclear power plants throughout the United States. After reporting these problems, the manager reported retaliation by I
high-level managers to both the NRC and the DOL. The DOL Area Director found for the alleger, and the licensee appealed. Soon thereafter, a settlement was reached between the licensee and the alleger. The alleger continued to be employed by the licensee at that time.
Because of the high level managers allegedly involved in the retaliation, the NRC initiated an investigation following the DOL Area Director's findings. ' Die investigation was concluded more than 2-1/2 years later, and the NRC proposed an enforcement action approximately seven months after that. From the time the retaliation allegation was reported to the NRC until an enforcement action was proposed, more than 3-1/2 years had elapsed. Throughout the NRC investigation, the alleger complained to the OlG and others about the excessive time taken by the NRC staff to investigate both the techrucal concerns and the retaliation complaint.
The alleger told OlG that he would not recommend that co-workers follow his example and report safety concerns to the NRC. He based this on his treatment by the licensee for reporting concerns to the NRC and the lack of a timely NRC response to his retaliation complaint. The alleger also told OlG that co-workers expressed serious reservations about dealing with the NRC after learning of the alleger's experience.
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In June 1990, a former executive with a materials licensee filed a complaint with DOL and the NRC alleging retaliation for reporting safety concerns to his management. The DOL Area Director found for the licensee. The alleger did not appeal the decision to DOI but did appeal to a United States Court of Appeals. In communicating with the alleger more than a year later, the NRC announced its intention to close its file on this allegation because there had been no substantive challenge by the alleger of the DOL Area Director's finding. After extensive communications between the alleger and the NRC staff, an investigation of the retaliation complaint was initiated approximately 2-1/2 years after it was first reported to the NRC. On June 14, 1993, the NRC investigative report was issued. Thus, nearly three years elapsed between the time the complaint was filed and the report was issued.
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During this inspection. OlG received letters from two employees of a nuclear power plant in Texas. These employees expressed fear for their jobs based on observing 17 l
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licensee treatment of co workers who had cooperated with the NRC and were subsequently terminated.
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In another instance, OlG agreed not to include one alleger's case history in this report because to do so could have revealed the identity of the alleger to licensee managers, which the alleger feared could result in further retaliation.
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An alleger told OlG of having to finance drawn-out legal proceedings without support from the NRC after reporting safety concerns. This alleger expects to file for bankruptcy and lose the family home due to legal expenses and the inability to gain employment. A number of other allegers told OIG that the possibility of financial destitution is a reality thi.y may have to confront after cooperating with the NRC and filing a complaint with DOL
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The whistleblowers interviewed by OIG described other experiences involving retaliation for having reported safety concerns to their employers or to the NRC. These experiences ranged from physical threats and attacks to psychological intimidation both on and off the job-site. One alleger told OlG of feeling threatened upon learning that a co-worker pointed to a charred mannequin used in fire-fighting exercises and said the alleger could end up in a similar state if the alleger's behavior did not change. This particular incident was investigated by the licensee and OlG, and disciplinary action was taken against the offender. This alleger was ultimately diagnosed to be suffering from l
" Post Traumatic Stress Disorder" attributed to trauma experienced in the workplace.
Whistleblowers also told OlG of alleged incidents of retaliation that were not verified by the OlG. These incidents included,1) an alleger's car being forced from the road by unknown assailants while driving home from work,2) unidentified person (s) shooting at an alleger's residence from a vehicle,3) poisoning of family pets, and 4) late night harassing phone calls.
Issue 1: Lack of timely NRC response to retaliation Whistleblowers told OlG that they felt the NRC does little to protect them from retaliation or to investigate their allegations in a timely manner. They described a feeling of abandonment created by the NRC's willingness to " sit on the sidelines" and allow DOL to determine whether the whistleblowers were subjected to retaliation.
These whistleblowers believe that the NRC's lack of effort to investigate retaliation complaints results in a " chilling effect" for them and their co workers.
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A number of NRC staff interviewed by OlG concurred that a lack of aggressive and timely NRC response to complaints of retaliation can send a message that retaliation complain'.s are not a priority matter. This perception can result in a " chilling effect" for j
whistleblowers.
l The Director of the Office of Investigations (01) stated that a " chilling effect" for allegers is perpetuated by two factors: 1) a lack of effort by the NRC or DOL to quickly develop a remedy for an employee filing a retaliation complaint, and 2) inadequate NRC enforcement action against licensees responsible for retaliation. The OI Director added that allegers' technical concerns are the highest priority for the NRC engineering staff to address. He opined, however, that the NRC staff are largely comprised of engineers and other technical personnel who are not normally comfortable responding to personnel problems. For this reason, the NRC often fails to consider that an alleger's welfare is the second-most important aspect of a safety concern. The OI Director maintained that t
this attitude contributes to the " chilling effect" nuclear industry employees must endure.
The Director of the Office of Enforcement (OE) stated that it is difficult to determine whether a chilling effect exists for industry employees. He said he was opposed to NRC inspection teams personally conducting interviews and surveys on-site and rendering a decision about a " chilling effect." The OE Director noted that employees who are,in fact, " chilled" would likely be unwilling to express their true feelings to NRC inspectors.
Issue 2: Questionable impact of NRC's ' Chilling EfTect" letter When a DOL Area Director finds that an alleger was retaliated against, the NRC sends the licensee a " Chilling Effect" letter. The purpose of the letter is to obtain an explanation of what the licensee has done and plans to do to ensure that the retaliatory act does not have a " chilling effect" on other employees. In responding to this letter, the licensee routinely describes an operational program for informing employees of their responsibility to report safety concerns, and to do so without fear of reprisals.
In one case, the licensee responded to the " Chilling Effect" letter, in part, by stating that employees are briefed on a statement of standards and expectations for guiding employee actions. These standards included an explanation of employee rights to report safety concerns to management or to the NRC without fear of reprisal. Had the NRC verified this response, they could have found evidence that a large number of employees had not been briefed on this statement. In fact, a licensee internal audit determined that 1
more than 50 percent of the employees surveyed had not been briefed.
The NRC staff had varying opinions about the usefulness of the " Chilling Effect" letter.
However, several felt it was ineffective and had no deterrent effect for licensees.
Comments were made that responding to the letter was a formality to which licensees 19
had become proficient. The staff told OlG that the NRC did not routinely verify representations in licensees' responses to " Chilling Effect" letters.
The OE Director stated that he was responsible for developing the " Chilling Effect" letter issued to licensees suspected of retaliation. While the letter may have been useful to the NRC when it was first used in 1988, he felt that it may no longer be effective if licensees are providing the same responses to the letter. The OE Director said he felt that certain licensees took the letter seriously. The Director concurred that an alternative to using a " Chilling Effect" letter would be for the NRC to conduct personal interviews of " problem licensees." However, the OE Director said he did not think this alternative should entirely replace the NRC's use of the letter.
The 01 Director stated that a " Chilling Effect" letter is "a piece of paper that means little or nothing." He explained that the letter has little deterrence value for licensees who would retaliate against employees. The 01 Director stated that the NRC is too willing to accept licensees' responses to these letters without question.
Issue 3: Disclosure of whistleblowers' identities Numerous allegers informed OlG that they believed the NRC compromised their identities to their employers. According to these allegers, once it became known they had reported safety concerns to the NRC, acts of retaliation occurred.
The NRC has procedures in place to protect the identities of allegers who report safety concerns. Specificahy. NRC Management Directive 8.8, Management of Allegations, notes the importance of protecting an alleger's identity, and in all instances the identity should not be revealed without the alleger's consent. This directive extends to protecting reports and documents that could, by their content, identify an alleger.
Despite NRC attempts to protect the identities of allegers, their identities can become known through the NRC's recommended course of action. NRC procedures encourage 1;censee employees to first attempt to resolve their concerns with licensee management.
If this attempt is unsuccessful, the employee then should report the concerns to the NRC. If employees follow this path, they have identified themselves to their management as being concerned about a particular safety issue. If the employees then take their technical concerns to the NRC and the NRC conducts an inspection of the same safety issue, the allegers could be easily identified. Disclosure of an alleger's identity through this process is known as " fingerprinting."
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SUGGESTIONS FOR CHANGE Many of the NRC staff and the allegers interviewed by OIG believe that the current NRC policy for responding to retaliation complaints contributes to a " chilling effect" for many employees in the nuclear industry. During this inspection, OIG received numerous suggestions for changing the agency's policy for responding to whistleblower complaints from several sources including the NRC staff, These NRC staff believed that most of the suggestion 3 could be acnieved by adjusting NRC policy, while others would require legislation.
The NRC staff interviewed by O!G emphasized that before any of these suggestions are adopted, one very important factor had to be considered. That factor is that the acceptance of additional investigative responsibilities will require either a shifting of,
work priorities, or the NRC will need to request additionalinvestigative and enforcement resources. The following suggestions were offered as possible improvements to those NRC policies dealing with retaliation complaints. These suggestions and comments were provided by allegers, NRC staff, and attorneys representing both the allegers and the nuclear industry.
Use of the SVrongdoer Rule" Substantial criticism was directed at the NRC practice of penalizing only licensees for retaliation. Allegers maintained that individual managers responsible for willful acts of retaliation were not penalized and often continued working in the nuclear industry.
Attomeys representing both allegers and industry licensees concurred that use of the
" Wrongdoer Rule"is a potentially effective means of assigning responsibility to individuals found guilty of willful misconduct. This rule allows the NRC to order an employee to be removed from licensed activities.
NRC investigative interviews versus " Chilling Effect" letter Allegers and several of the NRC staff OIG interviewed agreed that the NRC places too much reliance on unverified licensee responses to the " Chilling Effect" letter. They maintained that a preliminary inquiry by NRC investigators would be more effective in determining whether a potential " chilling effect" exists. Specifically, the investigators could obtain first hand explanations about alleged retalintion, review pertinent documentation and conduct interviews of licensee managers.
Protection for actively-employed allegers during NRC investigation The allegers and a number of NRC staff suggested that the NRC could order licensees to temporarily protect an alleger's employment status. This protection would continue at least until the NRC had completed its own investigation of the alleged retaliation. Other NRC staff expressed concern that this practice could be easily abused by an employee 21
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- e with a frivolous complaint to avoid an adverse personnel action or a scheduled layoff.
However, this option could be considered when these emproper motives can be ruled out.
Increased civil penalties and other enforcement actions The allegers and numerous NRC staff interviewed by the OlG, and certain attorneys representing allegers stated that the current monetary level of civil penalties has little deterrence for licensees. Substantially larger monetary fines are an alternative, but many of those interviewed questioned the impact of a larger civil penalty. There were also mixed opinions about the impact of negative publicity associated with an NRC civil penalty. However, nearly all interviewees agreed that NRC ordering the shutdown of a nuclear power plant or revoking a license would be the most significant penalty to impose on licensees. These are the most severe penalties available to the NRC, yet many of the interviewees maintained that these were the only penalties which would cause licensees to consider retaliation to be a serious violation.
The 01 Director stated that current civil penalties are insufficient for nuclear reactor licensees found guilty of retaliation. He recommended a minimum penalty of $500,000 for those licensees responsible for retaliation, with a portion of the penalty awarded to the alleger. The 01 Director noted that a recent civil penalty of $100,000 levied against a nuclear power plant for retaliation failed to even cover the cost of his office's investigation.
The OE Director said a $240,000 penalty imposed against TVA represents the largest NRC civil penalty for retaliation. He maintained, however, that the size of a civil penalty may be irrelevant to deterring retaliation. One expectation from significantly increasing the size of civil penalties is a rise m the amount of litigation the NRC would face, according to the Director. While the NRC has the capability of revoking a license for retaliation. the OE Director said the most realistic and effective way of "getting a licensee's attention" is through negative publicity invoking an enforcement action.
Full NRC insesti;'atise responsibility for retaliation If the NRC assumed total responsibility for investigating and adjudicating retaliatory complaints reported by licensee employees, there would be a positive impact in reducing the " chilling effect," according to allegers, certain NRC staff, and attorneys representing allegers. These individuals believe that a positive impact would result from a visible NRC investigative presence. The interviewees said that timely investigations and enforcement actions by the NRC will provide licensees with a strong message that retaliation will not be tolerated. Also, licensee employees will know that the NRC can provide protection to those employees who cooperate with the NRC. The interviewees recognized that this option would likely require additional NRC investigative resources or a reassessment of the system for determining investigative priorities. Further, the 22
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NRC would have to assess the resource impact that the assumption of the DOL adjudicating process would have on the agency.
The 01 Director recommended that the NRC assume full jurisdiction for the investigation and adjudication of retaliation cases. He maintained that morr Nstry employees would be encouraged to report safety concerns if they knew the
.vould protect them from unwarranted retaliation. The OI Director said the onl
.m r NRC can deter retaliation is for the NRC to become involved in retaliation cases e The Directo; of OE concurred that the most effective way of reducing a potential
" chilling effect" is early investigation by the NRC. However, he cautioned against potential conflicts arising from differing agency rulings between DOL and the NRC.
Investigative resources for retaliation cases Allegers complained that the time required for their cases to complete a review by DOL was unacceptable. They further criticized the NRC for contributing to a " chilling effect" by waiting for a DOL finding before initiating an investigation or enforcement action.
The staff generally concluded that the NRC is unable to initiate earlier investigations of retaliation cases without an effective increase in the investigative staff or an adjustment to the priorities assigned to investigative cases.
Of interest to this topic is a recent investigative initiative by the Tennessee Valley Authority, Office of the Inspector General (TVA-OIG). That initiative was begun with the encouragement of the NRC. In 1990, TVA-OlG changed a policy that significantly enhanced the scope of their investigative program. Based on the policy change, TVA-OIG started conducting investigations that are parallel with the DOL's investigations of retaliation.
During the three years the TVA-OlG program has been underway, the program manager said his investigators completed the majority of their investigations before DOL completed its cases. This achievement was attributed to the fact that 1) all TVA investigations are geographically centralized,2) only experienced investigators are assigned to these cases,3) the investigations recei. the highest priority, and 4) additional resources are available when necessar, ' rom other TVA-OIG investigative components. This three-year-old unit is comp.3ei of 8 investigators.
Comments from private attorneys The OlG received a letter from a senior partne
- Vashington, D.C. law firm representing a large number of utility licensees. Tb tollowing were among the views expressed in the attorney's letter:
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Endorsement of the NRC's policy of allowing the DOL process to conclude before responding to any alleged retaliation. The attorney expressed a desire that the NRC
- stay its hand" rather than change any existing policies of this nature. It was noted that the NRC investigative process does not include a mediation role, and parallel NRC/ DOL investigative efforts could " polarize" employment relationships and interfere with the DOL mediation and conciliation effort.
Early intervention by the NRC could distort priorities and divert licensee management resources away from more significant safety issues.
The DOL process is both effective and expeditious, although it is criticized by a relatively small number of complainants and the attorneys who specialize in representing these complainants. Through this process, a wrongfully terminated employee can expect to obtain relief far more l
quickly from DOL than in a state court or other legal forum.
One attorney representing whistleblowers commented that:
NRC civil penalties levied against reactor licensees are no deterrent because the amounts are so small.
Any duplication of effort between DOL and the NRC could be eliminated l
if the NRC would be responsible for conducting the entire investigation from the outset.
t Another attorney representing whistleblowers stated that:
l Whistleblower clients are advised to file suits in state or local courts rather than seek remedies through the NRC or DOL. This advice was based on the attorney's belief that the NRC's performance in investigating whistleblower complaints was " terrible," and DOL performance was 'only slightly better." The attorney attributed the NRC's poor performance partially to inadequate investigative resources.
NRC licensees are not conct.ned about adverse publicity stemming from a retaliation case. It was exp ained that until the Congress and the NRC are willing to take appropriate.y vigorous action against offending licensees.
negative newsclippings at meaningless to licensees.
As a condition of licensing, the NRC should require a licensee not to condone retaliation of employees reporting safety concerns.
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FINDINGS Based on the information developed during this inspection, we found that the NRC J
process for handling allegations of retaliation does not provide an adequate level of protection for whistleblowers. Our inspection disclosed substantial dissatisfaction with the process among the allegers and numerous NRC staff we interviewed. He NRC staff acknowledged that the current NRC practice of awaiting DOL decisions does not provide for timely resolution of allegations. Such a delay can send a message that retaliation complaints are not a priority concern. This perception can result in a " chilling effect" for whistleblowers and their co-workers who may have additional safety concerns to report to licensee management or to the NRC.
Allegers and certain NRC staff told us this " chilling effect" would be diminished if a number of policy changes were initiated. These suggested changes include 1) carlier NRC investigations of retaliation complaints,2) increased civil penalties for retaliation, and 3) more vigorous use of the Wrongdoer Rule to hold individuals responsible for retaliation.
De NRC staff had varying opinions about the usefulness of the NRC's " Chilling Effect" letter. However, several believed it was ineffective and had no deterrent effect for licensees. Further, the staff told OlG that the NRC did not routinely verify licensees' responses to " Chilling Effect" letters.
NRC practice has been to take an enforcement action against an offending licensee and issue a Notice of Violation or a civil penalty, when appropriate. However, several of the NRC staff and others interviewed by the OlG felt the NRC should take legal actions against individuals responsible for retaliation. In this regard, two options available to the NRC are the Wrongdoer Rule and the potential criminal penalties of 42 USC 2273.
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