ML20046C040
| ML20046C040 | |
| Person / Time | |
|---|---|
| Issue date: | 07/14/1993 |
| From: | Selin I, The Chairman NRC COMMISSION (OCM) |
| To: | Baucus M, Chafee J, Lieberman J, Simpson A SENATE, ENVIRONMENT & PUBLIC WORKS |
| References | |
| CCS, NUDOCS 9308090142 | |
| Download: ML20046C040 (8) | |
Text
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o UNITED STATES
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July 14, 1993 CHAIRMAN i
The Hcnorable Joseph I. Lieberman, Chairman Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Mr. Chairman:
This responds to your letter of June 11, 1993, in which you requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations by employees of NRC licensees could constitute, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 1974.
You als&
suggested that it would be appropriate for the NRC to communicate its views on this issue to the Department of Labor.
In general, the NRC believes that attempts by employees of NRC licensees, contractors, or subcontractors
(" employee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related to the reporting of safety issues for purposes covered by section 211 of the Energy Reorganization Act, 42 U.S.C.
Sec. 5851, are activities subject to protection under that section.
In the context of the Committee's letter, the NRC believes that legal surreptitious taping by an employee of personal conversations, to which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is an activity subject to protection under section 211.
Although the activity may be within the scope of activities protected under section 211, employment may still be terminated (or other employment action taken), if the employer can demonstrate by clear and convincing evidence that it would have taken the same unfavorable action in the absence of such behavior; i.e.,
for legitimate, non-discriminatory reasons, including whether the activity was carried out-in an unreasonable manner or in violation of law.
Thus, while the Commission recognizes that attempts by an employee-to gather evidence of safety violations or related discrimination in some respects could have a disruptive effect on the workplace, the mere potential for interruption of routine conduct of operations that may be caused by reasonable whistleblower activities should not be a basis for disciplinary action against an employee.
For this reason, determination of whether an employer may terminate or take other employment action against an employee who has engaged
_I in an activity subject to protection under section 211 will i
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9308090142 930714 d[f7 PDR COMMS NRCC CORRESPONDENCE PDR 1
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2 depend on the specific facts and circumstances of the particular case.
Lawful taping of conversations to which the employee is a party to obtain safety information, carried cut in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee.
Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions.
Prompt notification is in the public's interest because it enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.
Surreptitious taping properly carried out under the direction of the NRC should afford the employee protection under section 211 of the ERA for such action.
I By copy of this letter, we are communicating our views on these-i issues to the Department of Labor and are also serving it upon the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
I sincerely, Ivan Selin cc:
The Honorable Robert B. Feich i
Parties to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia Power Company) t n
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WASHINGTON, D. C. 20555
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July 14, 1993 CHAIRMAN The Honorable Alan K. Simpson Ranking Minority Member Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Senator Simpson:
This responds to your letter of June 11, 1993, in which you requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations-by employees of NRC licensees could constitute, in some circumstances, protected activity un'd'er_
section 211 of the Energy Reorganization Act of 1974.
You also suggested that it would be appropriate for the NRC to communicate its views on this issue to the Department of Labor.
In general, the NRC believes that attempts by employees of NRC l
licensees, contractors, or subcontractors (" employee") to gather evidence relating to nuclear safety concerns _at.NRC-regulated facilities or to gather evidence of discrimination related'to the reporting of safety issues for purposes covered by section 211 of i
the Energy Reorganization Act, 42 U.S.C.
Sec. 5851, are activities subject to protection under that section.
In the context of.the Committee's letter,_the NRC believes that. legal surreptitious taping by an employee of personal conversations, to which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is an activity subject to protection under section 211.
Although the activity may be within.the scope:of activities
~
protected under section 211, employment may still be terminated (or other employment action taken), if the employer can
' demonstrate by clear and convincing evidence that it would have taken the same unfavorable action in the absence of such
' behavior; i.e.,
for legitimate, non-discriminatory reasons, including whether the activity was carried out in an unreasonable.
manner or in violation of law.
Thus, while the_ Commission.
recognizes that-attempts by an employee to gather evidence of j
safety violations or related discrimination-in some respects 1could have a disruptive:effect on the workplace,.the mere potential for interruption of routine conduct ofioperations that j
may be caused by reasonable-whistleblower activities _should not l
be a basis for disciplinary action-against an employee.-
Forfthis reason, determination of_whether-an employer may_ terminate or l
take other employment action-against an employee who has engaged in an activity subject to protection under.section 211 will
.t w
2 depend on the specific facts and circumstances of the particular case.
Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee.
Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions.
Prompt notification is in the public's interest because it enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.
surreptitious taping properly,arried out under the direction of the NRC should afford the er lyee protection under section 211 of the ERA for such action.
By copy of this letter, we are communicating our views on these-issues to the Department of Labor and are also serving it upon the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
Sincerely, y -
Ivan Selin cc:
Tts Honorable Robert B. Reich i
J.
ties to the Mosbaugh proceeding 1
(Alan Mosbaugh) l (Georgia Power Company) i
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION o
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July 14, 1993
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CHAIRMAN The Honorable Max Baucus, Chairman Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Mr. Chairman:
This responds to your letter of June 11, 1993, in which you requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations by employees of NRC licensees could constitute, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 1974.
You also suggested that it would be appropriate for the NRC to communic' ate its views on this issue to the Department of Labor.
In general, the NRC believes that attempts by employees of NRC licensees, contractors, or subcontractors
(" employee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related.to the reporting of safety issues for purposes covered by section 211 of the Energy Reorganization Act, 42 U.S.C. Sec. 5851, are activities subject to protection under that section.
In the context of the Committee's letter, the NRC believes that legal surreptitious taping by an employee of personal conversations, to which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is an activity subject to protection under section 211.
Although the activity may be within the scope of activities protected under section 211, employment may still be terminated (or other employment action taken), if the employer can j
demonstrate by clear and convincing evidence that it would have
)
taken the same unfavorable action in the absence of such l
behavior; i.e.,
for legitimate, non-discriminatory reasons, including whether the activity was carried out in an unreasonable manner or in violation of law.
Thus, while the Commission l
recognizes that attempts by an employee to gather evidence of safety violations or related discrimination in some respects j
could have a disruptive effect on'the workplace, the mere potential for interruption of routine conduct of operations that may be caused by reasonable whistleblower activities should not be a basis for disciplinary action against an employee.
For this reason, determination of whether an employer may terminate or take other employment action against an employee who has engaged in an activity subject to protection under section 211 will
.=
l 2
depend on the specific facts and circumstances of the particular case.
Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee.
Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions.
Prompt notification is in the public's interest because it enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.
Surreptitious taping properly carried out under the direction of the NRC should afford the employee protection under section 211 of the ERA for such action.
By copy of this letter, we are communicating our views on these-issues to the Department of Labor and are clso serving it upon the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
Sincerely, W
Ivan Selin cc:
The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia Power Company)
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July 14, 1993 CHAIRMAN The Honorable John Chafee i
Ranking Minority Member Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Senator Chafee:
This responds to your letter of June 11, 1993, in which you requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations by employees of NRC licensees could constitute, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 1974.
You also-suggested that it would be appropriate for the NRC to communicate
)
its views on this issue to the Department of Labor.
In general, the NRC b511 eves that attempts by employees of NRC licensees, contractors, or subcontractors
(" employee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related to the reporting of safety issues for purposes covered by section 211 of the Energy Reorganization Act, 42 U.S.C. Sec. 5831, are activities subject to protection under that section.
In the context of the Committee's letter, the NRC believes that legal surreptitious taping by an employee of personal conversations, to j
which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is an activity subject to protection under section 211.
Although the activity may be within the scope of activities protected under section 211, employment may still be terminated 4
(or other employment action taken), if the employer can demonstrate by clear and convincing evidence that it would have i
taken the same unfavorable action in the absence of such behavior; i.e.,
for legitimate, non-discriminatory reasons, including whether the activity wars carried out in an unreasonable manner or in violation of law.
Thus, while the Commission recognizes that attempts by an employee to gather evidence of safety violations or related discrimination in some respects could have a disruptive effect on the workplace, the mere potential for interruption of routine conduct of operations that may be caused by reasonable whistleblower activities should not be a basis for disciplinary action against an employee.
For this reason, determination of whether an employer may terminate or take other employment action against an employee who has engaged in an activity subject to protection under section 211 will i
l 2
1 depend on the specific facts and circumstances of the particular case.
Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not-be a valid basis for terminating an employee.
C once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions.
Prompt notification is in the public's interest because it. enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.
Surreptitious taping properly carried out under the direction of the NRC should afford the employee protection under section 211 of the ERA for such action.
By copy of this letter, we are communicating our views on thes,e,,
issues to the Department of Labor and are also serving it upon the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
l Sincerely, I'
Ivan Selin cc:
The Honorable Robert B. Reich Parties to the Monbaugh proceeding 1
(Alan Mosbaugh)
(Georgia Power Company)
_j I
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CONGRESSIONAL CORRESPONDENCE SYSTEM DOCUKINT PREPARATION CHECKLIST l
This checklist is be submitted with each docu=ent (or group of G3/As) sent for +
ing into the CCS.
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1.
BRIEF DESCRIPTION OF DOCCXENT(5)
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,e 2.
TTPE or-m
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Correspondancer Estrin 6me(Qs/Aab 3.
DOCUKENT CONTROL Sensitive (NRC Only)
Non-Eansitive 4
C:NGRESSIONAL COMMITTEE and SUBCOXMITTEZE (if applicable)
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Congressional Committee Subecmmittas 5.
SUBJECT CODES (a)
(b)
(C)
I 6
SOURCE OF DOCUMENTS (a) 5520 (docu=ent name
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Scan.
(c)
AtT,achments (b)
(d)
Raksy (a)
Other 7.
SYSTEM LOG DATER
()Ml"/ / ~/:^n ii.
(a)
Date OCA sent document to CCS (b)
Data CCS receivess documsat (c)
Data returned to oCA for additional information (d)
Data resubmitted by-CCA to CCS
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(a)
Data entered into CCS by (f)
Data CCA notified that docu=ent is in CCS 050075 8.
e xMENr.
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