ML20056D466
| ML20056D466 | |
| Person / Time | |
|---|---|
| Issue date: | 07/14/1993 |
| From: | Selin I, The Chairman NRC COMMISSION (OCM) |
| To: | Reich R LABOR, DEPT. OF |
| Shared Package | |
| ML20056D469 | List: |
| References | |
| NUDOCS 9308160265 | |
| Download: ML20056D466 (1) | |
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UNITED STATES i
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July 14, 1993 CHAtRMAN j
The Honorable Robert B.
Reich Secretary of Labor Washington, D.C.
20210
Dear Mr. Secretary:
The Nuclear Regulatory Commission has been-requested by the b
Senate Committee on Environment and Public Works to provide -its views on whether one-party taping of; conversations by. employees ji of NRC licensees could constitute, under.some circumstances,'
protected activity under'Section 211 of.the Energy Reorganization Act of 1974, as amended.
The Committee also requested that'NRO communicate its views on-this. issue to the Department-of Labor..
j Enclosed, please. find a copy.of our letter to the Committee expressing our views concerning this issue.
Since this communication touches on issues raised in.a case ~
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pending before you, Mosbaugh v. Georgia Power Company, 91-ERA-1' i
and 92-ERA-11, we.are also serving a copy.of-thisiletter_upon the:
i parties to that proceeding.
j Sincerely, Ivan Selin-
Enclosure:
1 As stated I
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I July 14, 1993 J
.i CHAIRMAN
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i The Honorable Max Baucus, Chairman Committee on Environment and Public Works United States Senate Washington, D.C.
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Dear Mr. Chairman:
(l This responds to your letter of June 11, 1993, in which you _
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requested the Nuclear Regulatory Commission's views on whether.
1 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 f
its views on this issue to the Department of Labor.
In general, the NRC believes that attempts by employees of NRC 3
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 l
the Energy Reorganization Act, 42 U.S.C. Sec._5851, are j'
activities subject to protection under that'--section.
In the context of the Committee's-letter, the NRC believes that: legal surreptitious 1 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 scopefof activities
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protected under section.211, employment may still be terminated (or other employment action taken), if-the employer-can.
i demonstrate by clear and' convincing evidence that it would have 1
taken the same unfavorable action in the absence of such:
1' 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 4
potential for interruption lof 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 L
reason, ~ determination - of whether an employer may terminate (n-l take other employment action.against'an employee who hastengaged-in an activity subject-to: protection.under section 211 will l
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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 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 also serving it upon the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
Sincerely, j
Mt Ivan Selin cc:
The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia. Power Company) c a
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July 14, 1993 CHAIRMAN The Honorable John Chafee Ranking Minority Member Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Senator Chafee:
1993, in which you This responds to your letter of June 11, requested the Nuclear h ther f PRC licensees one-party taping of conversations by employees oprotected activity under in some circumstances, 4.
You also-section 211 of the Energy Reorganization Act of 197it would be app could constitute, suggested thatits views on this issue to the Department of Labor.
the NRC believes that attempts by employees of NRC or subcontractors (" employee") to gather In general, ulated evidence relating to nuclear safety concerns at NRC-reg licensees, contractors, d to the tion 211 of reporting of safety issues for purposes covered by sec 42 U.S.C.
Sec. 5851, are i
In the the Energy Reorganization Act, activities subject to protection under that sect on.
h t legal context of the Committee's letter, the NRC believes t asations, to surreptitious taping by an employee of personal converf providing the which the employee is a party, with the intent o is an activity information obtained to the licensee or the NRC, subject to protection under section 211.
i ities Although the activity may be within the scope of act vemployment may sti protected under section 211, if the employer ran (or other employment action taken),
ld have demonstrate by clear and convincing evidence that it wou f such taken the same unfavorable action in the absence o for legitimate, non-discriminatory reasons, ble including whether the activity was carried out in an unreasona behavior; i.e.,
Thus, while the Commission idence of manner or in violation of law.
recognizes that attempts by an employee to gather evs ects the mere could have a disruptive effect on the workplace, tions that potential for interruption of routine conduct of opera i
hould not may be caused by reasonable whistleblower activit es sFor this be a basis for disciplinary action against an employee. dete h
has engaged take other employment action against an employee w
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g July 14, 1993 CHAIRMAN The Honorable John Chafee 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 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 in an activity subject to protection under section 211 will n.[L-jfh j y,
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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.
j once an employee has acted to gather evidence, the employee i
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 I
of the ERA for such action.
i 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,
.{
Ivan Selin ec:
The Honorable Robert B. Reich Parties'to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia Power company) l i
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July 14, 1993 CHAIRMAN The Honorable 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 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 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 in an activity subject to protection under section 211 will
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depend on the specific facts and circumstances of th case.
Lawful taping of conversations to which the en j
party to obtain safety information, carried out in a.
and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not 2
be a valid basis for terminating an employee.
Onco an employee has acted to gather evidence, the-employee should inform either the licensee or the NRC, of the employee's i
.utions.
prompt notification is in the public's interest because
.i 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
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cf 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,
'I Ivan Selin cc:
The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia power Company) 1
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3 July 14, 1993 CaAIRMAN The Honorable Alan K.
Simpson Ranking Minority Member Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works United States Senate Washingcon, 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 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 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 'co 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 in an activity subject to protection under section 211 will M dl? k
2 depend on the specific facts and circumstances of the particular Lawful taping of conversations to which the employee is a case.
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 also 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)