ML20147C290
| ML20147C290 | |
| Person / Time | |
|---|---|
| Issue date: | 01/06/1988 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8801190159 | |
| Download: ML20147C290 (58) | |
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.U UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
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Briefing on Status of NRC Internal Drug Program Location:
Washingtcn, D.
C.
Date:
Wednesday,. January 6, 1988 t
Pages:
1 - 49 Ann Riley & Associates Court Reporters 1825 l Street, N.W., Suite 921 V
Washington, D.C. 20006 (202) 293-3960 8801190159 890106 PDR 10CFR PT9.7 PDR O
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1 D I SCLA I MER 2
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This is an unofficial transcript of a meeti.ng of the 7
United States Nuclear Regulatory Commission held on 3
1/06/88 In the Commission's office at 1717 H Street, 9
'f4.W.,
Washington, D.C.
The meeting was open to public to attendance and observation.
This transcript has not been 11 reviewed, corrected, or edited, and it may contain
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12 inaccuracies.
13 The transcript is intended solely for general 14 informational purposes.
As provided by 10 CFR 9 103, it is 15 not part of the formal or informal record of decision of the 16 matters discussed.
Expressions of cptnlon in'this transcript 17 do not necessarily reflect final' determination or beliefs.
No 16 pleading or other paper may be filed with t he Conn i s s i on in 19 any proceeding as the result of or addressed to any statement
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20 or argument contained herein, except.as the Commission may 21 authorize.
23 4
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l-1 UNITED. STATES ~OF AMERICA 2
KUCLEAR REGULATORI COMMISSION 3
1 l
4 BRIEFING ON STATUS OF NRC INTERNAL DRUG PROGRAM
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5 6
PUBLIC MEETING 7
8 Nuolear Regulatory Commission i
1 9
Roon 1130 1
10 1717 H Street, Northwest 11 Washington, D.C.
12 13 Wednesday, January 6, 1988 14
'i 15 The Commission met in open session, pursuant to 16 notice, at 10:00 a.m., the Honorable LANDO W.
ZECH, Chairman of 17 the Commission presiding.
I 18 i
19 COMMISSIONERS PRESENT:
20 LANDO W.
ZECH, JR.,
Chairman l
21 THOMAS M. ROBERTS, Commissioner i
22 FREDERICK M. BERNTHAL, Commissioner 23 KENNETH M. CARR, Commissioner 24 KENNETH C. ROGERS, Commissioner 25
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2 1
STAFF AND PRESENTERS SEATED AT COMMIS'SION TABLE:
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2 SAMUEL J. CHILK,, Secretary 3
WILLIAM C.
PARLER, General Counsel 4
DENNIS DAMBLY, Counsel's Office i
5 VICTOR STELLO, JR.,
Executive Director for 6
Operations 7
JIM TAYLOR 8
PAUL E.
BIRD 9
DICK DOPP 10 GREG BENOIT 11 12 13 14 15 16 17 18 19 20 i
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PROCE.EDINGS 2
CHAIRMAN ZECH:
Good morning, ladies and gentlemen.
3 Today we are going to hear from the staff on the 4
progress of implementing the internal NRC drug testing program.
5 Today's meeting is a counterpart to our discussion last month 6
with industry represent,ative.s on the status of implementation 7
of the Fitness for Duty Program for the nuclear industry, 3
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8 As I noted at that meeting, the only people at the 9
various plant sites that are not subject to some form of 10 i?ltness for Duty program are NRC employees.
I believe it is 11 important that we close that gap as soon as possible, and of 12 course consistent with meeting the requirements established by 13 Congress and by the Executive Branch.
14 It is better to define where we stand, in my 4
15 judgment, regarding those requirements than to continue in this 16 current position we are in of uncertainty.
That is why we 17 scheduled this meeting today, to see if we can't get the status 18 report and to look at the schedule of accomplishing an NRC drug 19 testing program and putting it into execution.
20 I would like to emphasize that this is a status 21 briefing today, and that we don't expect to make any Commission
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22 decisions at this time; but that we do expect to be brought up 23 to date on the status of the NRC drug testing program.
24 It is my understanding that vu-graphs are available
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25 at the back of the room that will be used in today's t
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presentation.
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2 Do any of my colleagues have any opening remarks 3
before we begin?
4 (No response.]
5 CHAIRMAN ZECH:
If not, Mr. Stello, would you proceed 6
please.
7 MR. STELLO:
Thank you, Mr. Chairman.
8 I think it is important to emphasize that this is a meeting on what the NRC is going to do about drug testing 9
10 within the NRC for NRC employees, and there is no direct 11 connection or coupling to the industry's Fitness for Duty 12 program.
13 We have followed the guidance as it evolved in the i
14 Federal Government.
We believe we have met all of th.e 15 requirements in the guidance that has evolved, and we are now 16 in a position and, as we will explain to you shortly, prepared 17 to move to a drug testing program as soon as the required 18 approvals as set forth by law are obtained.
Once they are 19 obtained, we will describe to you the steps that are necessary 20 that we will be taking that will lead to a drug testing program t
21 that could initiate as early as April of this year.
22 I will ask Mr. Taylor to give you a brief summary of 23 where we are, and shortly Mr. Bird will take you through the 24 details of the status of where we are with the program and lay l
(,/ 25 out for you the series of steps that have'yet to b's taken, what
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3 CHAIRMAN ZECH:' All right, thank you.
4 Mr. Taylor, you may begin, please.
5 MR. TAYLOR:
Thank you, sir.
1 6
On the 9th of July of 1987 the NRC drug policy was 7
issued, as approved by the Commission, to all employees setting 8
the NRC as a zero-tolerance agency with regard to illegal 9
drugs, and setting forth in the policy the major provisions 10 that the Commission desired in the forthcoming drug testing 11 program.
12 Two days later, on July lith, legislation was passed 13 which placed two major legal constraints on implementing drug 14 testing programs throughout the Federal Government, including 15 the program which the staff is beginning to develop here in the 16 NRC.
l 17 Despite these constraints, the staff has worked and l'8 is considerably ahead of other Federal agencies in its category 19 towards implementing a drug testing program, and that is what 20 we will try to show you today'.
21 For example, our staff response to the Department of
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22 Justice concerning the July lith legislation has resulted in a 23 special exception being granted the NRC in the planned Order 24 for certification of our testing program.
This means that the I
_/ 25-NRC, we* estimate, is about a year ahead of other similar 4
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1 Federal agencies'in it's' category with regard to drug testing,
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2 and'these agencies also are covered by the July lith 3
legislation.
4 In fact, we are pleased to report to the commission 5
today, and you will see in the details to follow, that we have 6
submitted our drug testing plan to the Department of Health and 7
Human Services, and to DOJ, for their approval.
That happened 8
over the holiday period, and we have followed the HHS 9
guidelines and the law and the Executive Order as we understand 10 them in developing our detailed plan.
A copy of that plan was 11 provided to the commission.
12 We have worked hard to be sure we are ready to 13 implement a program as soon as it is legally permissible for us 14 to do so.
We now project, by informal discussions with 15 counterparts in HHS, DOJ, and OMB, that we could begin testing 16 NRC nonbargaining-unit employees by April of 1988, this year, 17,
and you will see that developed in this presentation.
The key 18 to doing that is our projected approvals to be obtained from 19 HHS and DOJ.
OMB's report is reporting fiscal information to 20 them, and we did issue a letter of projected costs to OMB.
So 21 we are working that channel, also.
22 I will now ask Paul Bird to provide the details of 23 the presentation.
24 COMMISSIONER BERNTHAL:
Just one question.
When you
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25 say "nonbargaining' unit employees," does that separate out e
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rather clearly along organizational lines?
Or does that cut '
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In other words, of these major
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3 categories with unescorted access, for' example, who would that 4
affect and who would that not affect?
5 MR. TAYLOR:
Yes, it does 6
Paul, maybe you would care to answer, but as an 7
example a senior resident is a nonbargaining unit position.
8 The second resident is a bargaining-unit position, in the main.
9 Have I said that right?
I 10 MR. 3IRD:
Yes.
Essentially it cuts across a 11 managerial / supervisory line versus nonmanagerial/ supervisory.
12 COMMISSIONER BERNTHAL:
I see.
13 MR. BIRD:
That is the large portion.
7 14 COMMISSIONER BERNTHAL:
Isn't that--well, the next 15 obvious question ist You've got to resident inspectors.
One is the senior, and one is the junior, and you are going to 16 17 propose to go ahead with one and not the other?
18 MR. TAYLOR:
That's correct, until we are able to 19 negotiate this with the union people.
1 20 COMMISSIONER BERNTHAL:
It sounds like trouble to me.
1 21 MR. STELLO:
We don't want to do that, but we are 22 obligated, when all the approvals are in, to go forward with 23 negotiations with the union.
It is conceivable that those will 24 have been finished, so we will be able to do both reasonably
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25 close to the same time, but there'is no guarantee.'
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, COMMISSIONER BERNTRAL:
Maybe, Paul, you would like
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2 to comment.
You_are the personnel expert here.-
Maybe you 3
ought to comm6nt on any morale and management difficulties you 4
can foresee with that kind of a distinction being made between 5
two people with essentially the same duties.
6 MR. TAYLOR:
If it is acceptable to you, I will ask 7
Paul to do that during his presentation, and then pick that up.
8 COMMISSIONER BERNTRAL:
That's fine.
Yes.
9 MR. TAYLOR:
We do hit on that.
10 CHAIRMAN ZECH:
Mr. Bird, you may proceed.
11 MR. BIRD:
Fine.
Thank you very much.
12 I would like to introduce the people who you may not
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13 know at the table.
To the left of Mr. Parler is Dennis Dambly 14 from the office of General Counsel.
Dennis and his staff hava 15 worked with us arm-in-arm in the development of this plan.
j 16 Next to Dennis is Dick Dopp of the Office of 17 Security.
Dennis is working essentially'on the testing aspects
- 18 of the plan.
19 To my left is Greg Benoit of my staff, Policy and 20 Labor Relations, who has worked hand in hand with this group in 21 development of the plan to date.
22 Now I would like to start with the slide 23 presentation, if I could.
I will direct your attention to the 24 information before you.
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25 (Slid's No. l.]
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, MR. BIRD:
The President issued *the Executive Order l
2 12564 on September 15th of 1986 which required Federal agencies 3
to develop plans for a drug-free work place.
4 The NRC issued a policy statement.on' July the 9th of i
5 1987 which conformed with the Executive Order.
Basically it j
6 called for a number of things:
7 One, that the NRC would be a zero-tolerance agency 8
and would not tolerate the use of drugs;'
9 Secondly, that we would institute a random testing 10 program for employees--
11 CHAIRMAN ZECH:
When you're talking "drugs," I 12 presume you're talking about illegal drugs?
13 MR. BIRD:
Illegal drugs, that is correct.
14 CHAIRMAN ZECH:
All right.
Go ahead.
15 MR. BIRD:
That we would institute--
16 COMMISSIONER CARR:
And alcohol, right?
17 MR. BIRD:
Well, alcohol is not part of this la particular plan, but certainly we are doing a lot of activities 19 and have been over a time related to alcohol use and 4
20 rehabilitation.
21 Basically we developed a random testing process which 22 would involve employees in certain sensitive positions, 23 particularly those with unescorted access to nuclear i
24 facilities, to people that are involved in our incident i
! (_) 25 response center, and to people that have access to classified j
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2 We also have proposad'five additional types of 3
testing which we can discuss later on in the presentation, and 4
we are ready to begin testing as soon as we feel it is legally 5
permissible to proceed.
6 Can I have the next slide, please.
7' (Slide No. 2.)
8 MR. BIRD:
Two days following the issuance of the NRC 9
policy statement on testing for illegal drugs, Public Law 100-10 71 was passed by the Congress and signed by the President.
It 11 was a supplemental appropriations bill.
However, it included 12 certain requirements for Federal agencie's to engage in drug 13 testing programs.
14 The basic requirement was that the Department of 15 Health and Human Services--referred to in the slide as "HHS"--
16 was to publish mandatory guidelines prior to any testing 17 programs in the Federal Government, with the exception of those 18 agencies that are already engaged in testing.
19 The HMS guidelines which are now in draft form, if 20 you would note the footnote at the bottom, call for certain 21 requirements to be met prior to any agency implementation.
22 Largely these are the technical requirements for testing, and 23 the requirements for specifying that certain medical review i
i 24 officers and rehabilitation officers meet certain criteria, and 2/, 25 we have passed that down to you in your background information.
11 1
It is rather specific guidance, and'if you will look
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'through it you will note that it is aimed at preventing any 2
3 false findings in the testing.
4 We now have those draft guidelines, and we expect the 5
final guidelines to be issued by HMS on January 30 of this 1
6 year.
Hopefully our plan, which has already been submitted to 7
HHS, would meet those guidelines.
We feel that we certainly 8
meet the draft guidelines and don't anticipate a great deal of 9
change between now and the final issuance.
10 Could I have the next slide, please.
11 (Slide No. 3.)
12 MR. BIRD:
The Public Law also specified that no 13 funds could be expanded for drug testing in the' Federal 14 Government under the Executivo order until the Secretary of HHS 15 had certified to Congress that drug testing plans, including 16 the NRC, were in accordance with the Executive order, other 17 laws and mandatory guidelines; that the Secretary of HHS would 18 also subnit to Congress the criteria for designating positions 19 for testing; and identifying those positions, and the nature,
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20 and frequency, and type of drug testing.
21 We have covered these subjects in our plan that we 22 have submitted to the Secretary of HHS.
That plan was
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23 submitted in December, as Mr. Stello has said.
It also calls 24 for us to advise OMB on the cost of implementing this program,
- (_) 25 and we sent a letter forward to OMB estimating our costs for l
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this year, and also the costs in,fu'tura years.
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2 COMMISSIONER ROBERTS:
What are those costs?
3 MR. BIRD:
We estimate that in the current year, if 4
we begin testing in April, the cost would be approximately 5
$85,000 for the current year.
Those costs would then fluctuate 6
in the following year.
The. cost is, I believe, $134,000--or 7
$144,000--well, it is $152,000.
Then,.because of the training 8
planned, some of the training which is planned to be done every 9
other year, that cost would fluctuate by $10,000, but it would 10 likely be in the $150,000 range if the estimates of what each 11 test would cost hold up.
That includes travel costs, resource 12 costs inside the agency, and so forth.
13 COMMISSIONER ROBERTS:
Well, I don't know much about 14 this area, but it is my understanding that there is a wide 15 variation in the cost of this testing.
Now are we getting--
16 what are you using for your planning p'urposes?
17 MR. BIRD:
Well, for planning, OMB'is providing some 18 guidance on what they believe would be the cost of a test.
19 COMMISSIONER ROBERTS:
That's from OMB7 20 MR. BIRD:
That's from OMB, giving an estimate of 21 what they believe those costs would be.
Then we supplement 22 that with the cost that we think we would entail beyond those' 23 types of costs.
We know what a test kit costs.
We know what a 44 ILboratory test will cost us.
(_) 25 COMMISSIONER' ROBERTS:
That's where I understand i
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there is a lot of variation.'.
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2 MR. BIRD:
We are estimating, and I think this is 3
again based on OMB guidance, that the laboratory testin'g would 4
be roughly $25 to $30, given the volume.
In contracting for
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5 that service--and it is going to be an HHS-driven contract--I 6
think the Federal Government as a whole, given the number of 7
tests that would be administered, will have a reasonable rate i
8 for that administration.
9 MR. TAYLOR:
Mr. Roberts--
10 COMMISSIONER ROBERTS:
I am more interested in the 11 accuracy than the rate.
12 MR., TAYLOR:
Right.
Mr. Roberts, we expe'ct the tests 13 at HHS-certified laboratories.
14 COMMISSIONER ROBERTS:
Okay.
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T 15 MR. TAYLOR:
And if the HHS certifications aren't in 16 place by the time we're ready, we would be poised to go to 17 laboratories that have current DOD-type programs.
So we are 18 being very careful about the selection.
In fact, HHS expects J
19 to have the lab certified, and.they will be certified for 20 Federal sector use, a
21 COMMISSIONER ROBERTS:
Thank'you.
22 MR. BIRD:
We do believe we have a favorable rate, 23 since it would be basically a government-wide rate.
24 Could I have the next slide, please.
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25 (Slide No. 4.)
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MR. BIRD:
The staff has been working very hard to
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2 try to get our provisions for drug testing implementation into 3
place.
As you can see on this list, a number of activities 4
have already been completed.
Beyond assuring the availability 5
of funds, we have identified the positions that we believe fall 6
into the testing designated categories.
This is approximately 7
1200 NRC positions.
About 600 of those positions, or about 8
half of those, are nonbargaining unit positions and about half 9
are bargaining unit positions that are in the random testing 10 category.
11 We have developed a random selection process and l
12 procedures.
We have established procedures for 1
l 13 reviewing--
14 COMMISSIONER ROBERTS:
Pardon me.
15 MR. BIRD:
Yes.
16 COMMISSIONER ROBERTS:
It is terribly important that 17 this random selection be credible.
i8 MR. BIRD:
Yes.
19 COMMISSIONER ROBERTS:
Can you give me a little bit 20 about the procedure?
l 21 MR. BIRD:
Yes, I can.
I can tell you that Dan 1
22 Lurie, who is here, can probably speak to the random selection 23 process more specifically, but the process is based on the 24 selection of Social Security numbers on a random basis.
We 1
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25-would plan to' select in a year's time frame on an annual basis' 4
15 a list 'f 1200 potential selectees.
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1200 names from '
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2 What th!.s will mean is that not everyone in the l
3 category for testing would be selected every year.
- However, 4
the estimate is about 65 percent of those that are in the
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5 testing-designated pool would be selected on an annual basis.
6 Over a longer period of time, there would be an expectation 7
that everyone that was in the testing-designated category would t
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be selected at some point.
9 However, someone may have more than one test in one i
l 10 year, since it is random.
11 COMMISSIONER ROBERTS:
The random selection process l
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12 has got to be a credible one.
That's all I'm saying, j
13 MR. BIRD:
Yes.
And we are working with experts to i
14 make sure that it is random.
My belief at this time is that h
15 that will be the case, i
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16 The procedures for determining what happens if we 17, have a positive drug test finding sre also included in the plan 18 that we sent to you.
We have completed the OHB cost estimate, 19 as was mentioned earlier, and we submitted our plan to both HMS 20 and DoJ for certification.
al COMMISSIOl'ER ROBERTS:
Now you have indicated when 82 you hope or expect to hear from HHS.
What about DOJ7 33 MR. BIRD:
We would be e'xpecting to hear from DOJ at 34 the same time, because the Secretary of HHS and the Department
(,/ 25 of Justice are basically working hand'in hand here.
So
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although thep are separate departments and we sent this plan to
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2 them independently, we would expect the outcome to be 4
3 simultaneous.
4 MR. PARLER:
Commissioner Roberts, as far as the 5
Department of Justice is concerned, Mr. Dambly and I have
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6 talked with them from time to time.
I have no reason to 4
7 believe that there will be a problem with-them.
As a matter of 8
fact, this plan that they are talking about is e part of an 9
overall government effort.
We are no longer in the mode of 10
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operrtion that we were in July of 1986 where we were proceeding 11 independently.
So I, don't anticipate any problem there, at 12 least from my standpoint.
13 COMMISSIONER ROBERTS:
Thank you.
14 MR. BIRD:
The last item on the slide is worthy of 15 mention.
We have issued solicitations to certain contractors j
J 16 that we would expect to be working with in the process of I
17 implementation having to do with the collection and testingt 18 the medical review officer, if you look at the acronym "MRO,"
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19 that's what that implies; and the employee assistance' program, i
20 which is what EAP implies on the slide.
We do have those
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21 contracts out for bid.
Since this Jublic Law prevents us from 4
22 expending funds at this time, we will not proceed with those 1
23 cortractual arrangements until such time as we feel we aro in l
24 the legal position to do so, which should be shortly following i.
j.. ) 25 the HMS app,roval.
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.My I have the next slide, pleace.
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(Slide No. 5.)
3' MR. BIRD: -The next n.11estone that is rettlly critical 1
4 is th'e final publication of the HMS guidelines.
We believe 5
that they will do this by the end of this month.
Then the two 6
approvals from DOJ and HHS would be expected to occur.
7 At that point when we have that appuoval, we are 8
required to issue a 60-day notice to all employees regarding 9
our drug testing plan, and a 30-day notice for those in the 10 testing designated pool in the random sample.
+ase issuances 11 can occur simultaneously.
12 The final. publication of a Privacy Act System of 13 Records, which has to be in place before we can implement, is 14 expected in February, along with the contracts awards.
That is would mean, if these approvals fall into place, that we could 16 begin implementation for nonbargaining unit employees as early 17 as April of this year, and that is what we are shooting for.
18 COMMISSIONER CARR:
And that date is decided by the 19 60-day notification?
20 MR. BIRD:
Yes.
21 CCMMISSIONER CARR:
Okay.
22 MR. BIRD:
We have already begun talking informally 23 with the raion.
We expect to begin negotiations at the point 24 that we have the final'HHS guidelines.
That doesn't T,)
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. necessarily fall after these other dates, but it would be g
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-contingent on having the' final guidelines to discuss with the
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2 bargaining unit.
3 could I have the next slide?
That is the last slide.,
4 We would b# happy to answer any que.ations thatuyou have related-5 to this program.
6 CHAIRMAN ZECH:
All right.
Thank you, very much.
7 Questions, my fellow Commissioners?
8 COMMISSIONER ROBERTS:
Yes.
9 CHAIRMAN ZECH:
Commissioner Roberts.
10 COMMISSIONER ROBERTS:
On your first slide, other 11 than the random testing, we've got "voluntary," "reasonable 12 suspicion," "specific condition," "pre-employment," and 13 hrehabilitation."
A12 those are self-evident except 14 "voluntary."
What do you mean by that?
15 MR. BIRD:
That would be someone who-would come 16 forward voluntarily and ask to be tested.
17 COMMISSIONER RCBERTS:
Why would anyone do that?
18 MR. STELLC:
The example cited a moment ago:
The l
1 19 senior resident wculd be covered under the bargaining unit as a 20 nonbargaining unit employee.
The other resident may choose at l
21 that point--may desire to enter into the program voluntarily, 22 for a variety of reasons.
As you are aware, we have at least 23 one particular facility which is requiring drug testing of our 24 employees, pursuant to tneir program.
We clearly obviously
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2 5 would prefer ours, and they could volunteer to go into our l
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program at any point in time.
Anyone could.
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2 COMMISSIONER ROBERTS:
All right.
3 CHAIRMAN ZECH:
Commissioner Bernthal.
4 COMMISSIONER BERNTHAL:
Well, I don't have any 5
detailed questions at this point.
I'm having a little trouble 6
because I don't have in front of me the paper on which tha 7
Commission took official action.
I am having a little trouble 8
correlating that with the final form of the policy statement 9
here.
10 I would note that there are elements in this 11 Commission Policy Statement with which I have taken strong 12 exception, and I note one in particular:
the so-called 13 "loyalty oath provision" here that all new emp'.oyees be 14 required to sign a statement acknowledging NRC as a zero-15 tolerance agency, et cetera, et cetera.
It is reminiscent of 16 the "I am not a communist" loyalty oath kind of thing that was 17 required in California some years ago.
I think that is 18 repugnant, and I think it is legally unenforceable, and 19 probably without anf legsl effect.
20 COMMISSIONER CARR:
Could we have the General Counsel 21 make a comment as to that?
22 HR. PARLER:
I am quite aware of the Commissioner's 23 position.
It was reflected in his memorandum of July 6,
- 1987, 24 on SECY 87-8.
As far as I can tell, the plan that is being
(;) 25 discussed here today does not' provide for such a' statement.
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But as we explained earlier, that was one.of the isstes that we
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were asked to legally address, and we did it in some detail in 3
attachment No. 3 of SECY 87-8A dated March 12, 1987; that it 4
simply would have no teeth to it, at least from a legsl 5
standpoint.
6 It would simply put everybody on notice that this 7
agency is a zero-tolerance agency, for whatever that means.
8 COMMISSIOl{ER BERNTHAL:
I think.that reflects my 9
comment, that it is legally unenforceable.
I think that is 10 what he has just told us.
11 COMMISSIONER CARR:
But it does notify the hiree.
12 COMMISSIONER BERNTHAL:
What's that?
Sorry?
13 COMMISSIONER CARR:
It does notify th's applicant of 14 what the agency's policy is.
15 MR. PARLER:
That's what I tried to just say.
As you 16 know, that should be the agency's policy in any event from the 17 Executive Order, because the Executive Order is entitled "A
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18 Drug Free Federal Work Place."
The difference between a drug-19 free Federal work place and a zero-tolerance agency kind of 20 like escapes me.
So everybody who is coming to work for this 1
21 agency, or works with chis agency, knows that it is a zero-22 tolerance agency.
23 I would assume, whether they were asked to sign 24 something or not--this is in your area, not mine--the people
(_/ 25 vculd certainly be told that early on at the very beginning of 6
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their career, whether they signed the statement or not.
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2 COMMISSIONER CARR:
But it would be legally correct 3
to say that they had been informed, because they had signed the 4
statement.
5 MR. PARLER:
Right.
6 COMMISSIONER CARR.:
Which I think is the;only purpose 7
of the statement.
8 MR. PARLER.
That's what we concluded earlier.
9 COMMISSIONER BERNTHAL:
Well, it is legally 10 unenforceable to require the signing of the statement is the 11 point.
12 COMMISSIONER CARR:
But that is not what you are 13 trying to enforce is the statement.
1.4 COMMISSIONER BERNTHAL:.You'are requiring--
15 COMMISSIONER CARR:
You are trying to enforce 16 something against illegal use of drugs.
17 COMMISSIONER BERNTHAL:
You are requiring,new 18 employees to cign a st.itement which I think there is some 19 question whether you can legally enforce the requirement to 20 sign that statement.
That is the point.
21 MR. PARLER:
Well, if they don't want to sign a 22 statement, they have no Divine Right that I know of to worh 23 here.
24 (Laughter.]
,() 25 MR. PARLER:
This agency's positions under the 9
6 e
1
22 1
Executive Order are all, as'I understand it, sensitiv'e s
(
2 positions.
Therefore, the agency does have some f'exibility 3
'under the law to decide what the qualifications are for its 4
prospective employees.
{
5 COMMISSIONER BERNTHAL:
Well,'that t= not the 6
question.
The qualifications are precisely not the question.
7 The question is--
8 MR. PARLER:
But what you're driving at, when you 9
refer to McCarthy, is that whether you sign tha loyalty oath or 10 you refuse to sign it, that one cf the organizations is on a
{
11 list or something and that means that you have had it, you are i
12 terminated, et cetera, et cetera.
13 We have said in our earlier legal analysis that this 14 statement does not go that far.
At least it says what the
{
15 pol,1cy is and puts the people en notice.
16 Now if this statement is used and somebody refuses to l
17 sign it, this agency will have to do whatever it does in 18 similar circumstances.
You will look at everything and decide 19 what to do.
'l 20 CO?"MISSIONER CARR:
Well, I could call up whoever it 21 is personally and sign L memo for the record, which wou3d make 22 it pertinent thac he had been informed of the pc icy, urd;- is 23 all we want.
24 MR. PARLER:
Is the statement a part of the current
(_) 25 plan?
I thougnt it was not in the plan.
f
23 l
1 1
MR. STELLO:
Our intent is to do that.
2 MR. FA7LER:
It wasn't in the plan that I--
3 MR. STELLO:
It doesn't need to be in the plan, but 4
we'will develop a form that people will be asked to sign that 5
will r.ake them understand this is the policy of the agency.
6 COMMISSIONER BERNTHAL:
And is that going to be used 7
to wash out people who might choose not to sign it?
8 MR. STELLO:
If they don't choose to sign that form 9
or any other form that we require, then they don't--as General 10 counsel said--have a right to be employed here.
11 COMMISSIONER BERNTHAL:
If they refuse to sign an 12 ackncwledgement that they have been infcrmed, can you legally 13 wash them out of the hiring process then, Bill?
14 CHAIRMAN ZECH:
Well, maybe --whether it's legally te 15 wash them out or not, it seems to me that our agency has the 16 authority to execute such a policy.
Now if that policy were 17 challenged and taken to court, certainly it could be decided in 18 court.
But as I understand, it was the majority of'the 19 Commission that viewed it was straightforward, open, hora 20 and important to inform employees, if they 'Wcrk for thin 21 agency, 4 hat they would be expected to work in a drug-free i
22 environment.
i 23 COMMISSIONER BERNTHAL:
That is not the issue.
24 CHAIRMAN ZECH:
That is the issue A,)
25
'COMMXSSIONER BERNTHA?4 It is not..
The issue is 9
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2 CHAIRMAN ZECH:
The issue is to inform employees that 1
3 thia is a drug-free agency.
4 COMMISSIONER BERNTHAL:
You're nou informing them, 5
you're requiring them to sign it.
6 COMMISSIONER ROBERTS:
We're not going to c..?ve your 7
issue right here.
That's going to be done in the courts.
So 8
we're wanting time discussing it.
9 COMMISSIONER BERNTHAL:
Well, but the point is.that in the first place that provision was placed in this policy 10 11 while I was on leave, without my consultation, and I do not 12 approve of it the way it stands.'
13 The issue is not one of in*orming the employees.
We 14 can do that, and we can require employees to read it, but to 15 require them to sign a statement and then say, as apparently 16 we're being told, that if you don't sign a s.tatement saying 17, that you realize this is a zero-tolera. ace agency that you're 18 not eligible for employment in this agency, that is the 19 question and that is the thing which I feel is legally 20 vr. enforceable.
21 COMMISSIONER CARP:
Is it not true that we rcquire 4
22 them to sign an application and swear to all the things in 23 their application for employment that are true?
We equire 24 them to sign that.
' l
(,/ 25 COMMISSI NER BERNTRAL:
I think that this goes bey'ond J.
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2 COMMISSIONER RCBERTS:
- 3ut, F'ed, your issue will be r
J decided in the courts and not at this trble.
4 COMMISSIONER BERNTHAL:
Yes, it will be.
It will be 5
decided in the courts.
There's no quest'on about'that.
6 MR. PARLER:
I doubt that it will ever come to that 7
point.
8 CHAIRMAN ZECH:
Well in any case I think, Mr.
9 Bernthal, your position has been made clear, and I think 10 perhaps the rest of us differ with that position.
That happens 11 on this Commission from time to time, but I do think that if it 12 does go to the courts, so be it.
We all obey the law, and we 13 will obey the law.
But I think the intent 10, at ;sast with 14 the majority of us as I understand, is to be forthright, open, 15 and honest with amployees of this agency, recogniz.'.ny before 16 they come abeard that this is a drug-free agency and if they 17 wish to come aboard they may, if they do not wish to come 18 aboar,d under those circumstances they may not; but again, I 19 fully recognize that this court be tested in court.
20 It is my personal position that it is very important 21 to put that position forward, and that is the intent of this 22 statement.
But I do think, since it is going t'
- - tested in 23 court, so be it; I think we should move along.
24 MR. PARLER:
It may well--if the issue comes up, that
(,j 25' is where it will be resolved.
.I' don't know whether it will be
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tested or,not.
Cm.
2 CHAIRMAN ZECH:
No, I don't either. but as I say we 3
recognize that that is certainly a distinct possibility.
But 4
my view is that it is important that we be up front in this 5
kind of a statement.
6 COMMISSIONER BERNTHAL:
Look, I don't disagree for a 7
moment that we be up front, and all that requires is that we i
C tnform employees that are coming in that this is a zero-9 tolerance agency.
T?at is not what we are talking about.
We 10 are ta3 king about a requirement here that they sign a j
11 statement I think that should be clear by now.
l 1
.2 COMMISS'_0N2R CARR:
Eut having a lot of experience in 13 trying to get people tagged who have used drugs, one of the 14 requirements is that they knew that they weren't supposed to.
15 CHAIRMAN ZECH:
Well, let's see--
16 COMMISSIONER CARR:
How are you going to get around t
17 that?
L l
18 COMMISSIONER BERNTHAL:
Maybe we ought to have the 19 General Counsel ask whether.the entire Federal--or answer the 20 question c-shether the Federal program, and a statement, a
21 policy statement by the Commission is sufficient to fulfill the 22 requirement that employees have been informed of--Well, in any 23 case, what about all of the many employees who aren't new 24 hirees?
Should we require everybody.now an employee to sign a (j 25 statement so they all know, as well?
I
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g 27 1-COMMI.SSIONER CARR:- Do you want my vote?
2 COMMISSIONER BERNTHAL:
You'd like everybody to sign 3
a statement now?
4 COMMISSIONER CARR:
I would be happy to.
5 COMMISSIONER BERNTHAL:
So would I.
6 CHAIRMAN ZECH:
We've got two of them right now.
7 COMMISSIONER BERNTHAL:
Could va require that, Mr.
8 General Counsel?
9 MR, PARLER:
I suppose that you could require the 10 employees to sign.a statement that they.:now that their 11 offices, for the most part, in the new White Flint buildings 12 are going to be open spaces and it's Commission policy that you 13 ask them to sign.a statement about it.
14 The difficult question is:
Whst can yo. do about it 15 if you don't sign it?'
16 COMMISSIONER BERNTHAL:
That's right.
17 MR. PARLER:
And if that issue comes to pasu and it 13 cannot be resolved amicably, if you have the systen tested, the 19 part of our government that resolves those disputes are 20 obviously the court, so I can't resolve that.
This is not like 21 the legal situation that was presented to me shortly after I 22 took this office and I was asked to render an opinion on the 23 constitutionality of random testing across the board, which I 24 d.id, and that's in an attachment to the first paper,86-223.
(_) 25 There were obviously some things that had to be e
a 4
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28 1
addressed there that clearl? had the real potential for (3'
i 2
clashing with the Constitution.
What you are asking me here is 3
not that tlear.
Somebody else will have to decide that 4
question if it comes-up.
5 To me, legally, it does not affront my sense of' 6
fairness, or my understanding of the Constitution or any 7
Federal law to require somebody to sign a statement that they 8
understand something about an agency policy.
As a matter of 9
fact, if there were better understandings about various agency 10 policies, perhaps sora of us would have probably been happier 11 over the years so we could find out even now what the heck is 12 going on and not-find out 15 or 20 years later.
13 (Laughter.]
14 CHAIRMAN ZECH:
Can we move along, Commissioner 15 Bernthal?
16 MR. STELLO:
I would suggest, Mr. Chairman, that it 17 may not completely answer this question, but on page 15 of the p'lan that you have in front of you: "Each employee in a testing la 19 designated position shall be asked to acknowledge in writing 20 that the employee has received a written notice which states 21 that the employee's position has been designated for random 22 drug testing, and that refusal to submit to testing will result in initiation of disciplinary action up to and including 23 24 removal."
(q,J 25 In other words, every employee who'is to be part of LL
s 29 1
this testing program will have to submit in writing that they
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1
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2
understand what the rules are, and~I think that is reasonably 3
clear notice.
4 COMMISSIONER BERNTHAL:
That is a different question.
5 MR. PARLER:
That is is a designated position.
That 6
is different from what we have been talking about, in my 7
judgment.
8 COMMISSIONER BERNTHAL:
Yes, that's right.
I think 9
there is no problem with that.
10 CHAIRMAN ZECH:
Well, look, to make very clear here--
11 12 COMMISSIONER CARR:
Your point, Fred, is not an 13 overcomeable obstacle.
If the man doesn't want'to sign it, or 14 the woman, whoever, if they want I'll read them the policy and 55 then I'll witness it in front of somebody else that they have 16 been--that the policy has been read to them.
That is all I 17 want them to xnew, so they can't come in then with a defense 18 that says I didn't know what the policy was.
19 CHAIRMAN ZECH:
That's how I feel, too.
The intent 20 is that they be informed of the policy.
That's the important 21 thing.
The mechanics of how they're informed is not important 22 to me, either; but the important thing to me is that they be informed.so that they actually know what the policy is.
That 23 24 is important, I believe.
(_j 25 COMMISSIONER BERNTNAL:
There is no disagreement 6
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about that.
The idea of informing'them is one thing.
The idea
('
2 of seeking to enforce as a legal matter the requirement to sign 3
that sort of thing is a separate question which, as Tom says, 4
will be decided in-the courts.
So I think there is enough 5
said.
6 I want to make ve.ry clear that, as I think~I have I
7 many times, for the record that I, like the rest of my 8
colleagues, have reached a determination that, at least in my-9 case, that limited random testing, not agency-wide random i
10 testing, of individuals with unescorted access to vital areas, 11 and those people with special positions of responsibility i
12 analogous to train engineers, perhaps, for Amtrak, that it is 13 essential for our regulatory mission that thosa people be 14 subjected to random drug testing, and I fully concur with the 8
15 agency's policy in these areas and the Commission's stated 16 policy.
17 I have had some difficulty with ce'tain--with the r
18 path we have taken to this objective.
We are not now going to 19 do random testing throughout this agency.
I had some 20 difficulty with that when that proposal was made.
I am still l
21 having some difficulty, as you can tell, with the seemingly implied requirement as a condition of employment that somebody 22 l
sign a statement which I suspect is not legally enforceable, 23 24 but we will find out in the courts if someone chooses to
_ (_j 25 challenge it.
1
a 31 1
Those are the comments I wanted to make.
(
2 CHAIRMAN ZECH:
Commissioner Carr?
3 COMMISSIONER CARR:
Yes.
On the nontargaining-unit 4
versus bargaining-unit, doesn't the 60-day requirement apply to 5
everybody?
6 MR. BIRD:
Yes, it would.
The 60-day requirement--
7 COMMISSIONER CARR:
So what you're saying is l'c may i
8 be longer than 60 days before the nonbargaining unit people--
4 9
MR. BIRD:
That's correct.
i 10 COMMISSIONER CARR:
And how are we doing on those 11 negotiations?
Aren't we negotiating now?
12 MR. BIRD:
We have been talking informall'y.
We are 13 not formally negotiating, pending getting the final HHS 14
- guidance, 15 COMMISSIONER CARR:
Well, couldn't we start?
{
16 MR. BIRD:
In essence, we have begun a dialogue.
17 However, we want to have the final' guidelines because that 18 would be the point of departure.
Those guidelines, basically 19 coming from HHS, will be the bargainable subject.
20 MR. PARLER:
Could I comment briefly on that?
Since 21 this is a part of a government-wide program, there is some 22 concern in certain quarters, at least from the legal 23 standpoint, that there not be premature negotiations which 24 could raise certain types 'of legal issues unnecessarily.
You
(_)25 wait until you get all your ducks lined'up_and th'en proceed.
9 m - -
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32
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COMMISSIONER CARR:
Are you telling me'.that we h. ave D'
a 2
to wait for somebody else to negotiate before we can?
3 MR. PARLER:
No.
Wa'it until the plan passes muster 4
with Justice and HHS before we do anything prematurely.
1 5
COMMISSIONER CARR:
Okay.
6 MR. PARLER:
I was asked, personally, to try to do 7
that by somebody from the office over there.
8 COMMISSIONER CARR:
All right.
I have looked this 9
over closely, since I am interested in it.
It looks to me like 10 there are sufficient safeguards that we won't get the wrong 11 person with a false reading.
There is a tremendous amount of 12 quality control checks in the program.
My only concern is that 13 we can't get it in place faster.
14 CHAIRMAN ZECH:
Commissioner Rogers.
15 COMMISSIONER ROGERS:
Just a couple--one comment on 16 that voluntary question that Mr. Stello cited as an example.
17 It just seems to me that that would be a good place not to i
'18 encourage the voluntary step because of these other' questions 4
19 that might come up with respect to negotiations with the 20 bargaining unit.
I think it'would be a mistake for us to 21 encourage bargaining-unit people to participate in this program 22 until that question of the whole unit's involvement is settled 23 with the bargaining unit.
~
24 MR. PARLER:
I have a comment on that.
I would think
- ,(' ) 25 that the 'offi'cial encouragement of any kind.wou1d cast, at
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least in my judiment,' ~
f a cloud ov.er whether.or not the effort on I
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2 the part of the employee was voluntary.
So to make sure that.
3 something is indeed voluntary, we have to be particularly l
4 careful, which I am sure that Mr. Bird and his colleagues will
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be.
6 COMMISSIONER CARR:
Well, I would agree with that,,
(
7 but we don't want to eliminate that option for somebody who is 8
tired of being followed around by some p ant employee who--
9 MR. PARLER:
A person who is tired of being followed 10 around that wants to opt for the NRC approach rather than being' 11 followed around can, of his or her own free will, can do so, i
12 but without agency encouragement.
~
13 COMMISSIONER ROGERS:
Well, I'm not familiar with how i
i 14 this particular bargaining unit functions, but in other 15 contexts it is very unwise to do anything on an individual 16 basis within a bargaining unit with respect to anything, any i
17 individual.
So it is just a cautionary note there to look at i
18 that very carefully, because you may be negotiating something i
19 and the whole thing is upset because somebody from the 1
20 bargaining unit is already participating in the program and 21 fouls up your negotiations.
It's just a. general comment, but it is something I think you should look at very carefully with 22 1
23 respect to the applications of the voluntary thing--
24 MR. BIRD:
We understand that clearly.
() 25 CO!C;ISSIONER ROGERS :. --to' people in the bargaining' 4...
34 1
unit un.til the whole unit has come in.
2 The other question is the definition'of the 3
categories that led to the 1200 number. ~ It just occurred to.me c
4 in looking at some of those people-that-they--and it's my 5
impression that'some of them are not aware that in fact they 6
would fall under the requirements that led to this--that~their 7
responsibilities are such that they would fall under that; not 8
that they necessarily object to being in the testing thing, but 9
is it clear to all of the job categories that are listed hero 10 that would then be subject to testing that those people's 11 responsibilities are consistent with, and their understanding 12 of their responsibilities, is consistent with the basis on 7
which that group was defined?
13 14 I don't have it here in front of me, but you"define 15 some requirements there for the sensitive positions, and I I
16 wonder if all those people in those job categories understand 17 that they are in fact in those kinds of sensitive positions?
18 My reading is that that is not universally the case.
19 MR. BIRD:
That is not the case at this point, but 20 the intention of the notice period, and particularly the 30-day 21 notice, is to tell everyone who i_s in a testing designated position that this criteria has been applied to those specific 22 23 jobs, to your job, and it also allows the employee then to have i
24 an appeal to that, if they feel that the criteria have been
/ 25' misapplied.
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4 35 1
, What we have now is largely a grouping of positions
,p' 2
identified by our senior managers for which we have, in the s
3 broad sense, tried to apply that criteria.
There has been a 4
lot of participation here, and many of the people whose 5
positions are identified on this list are aware of that, but 6
there are some who might not be aware or might take exception, 7
in which case we do have an appeal process which is outside of 8
the grievance process for those employees who come forward and 9
state--
10 COMMISSIONER ROGERS:
I was less concerned about 11 their being selected for random testing than that they 12 understood that their jobs were of such a nature that they had 13 this' kind of sensitive position.
I get a little feedback that 14 tells me that some people are not aware that their jobs in fact 15 were that sensitive.
16 So there is room for clarification here in terms of 17 what people's responsibilities are.
I think I am less 18 concerned about their being part of the testing program because 19 I happen to be in favor of. testing, but I am concerned that 20 this seems to be surfacing a lack of understanding of the full 21 nature of one's position in the organization, and that there is 22 some clarification I think that needs to be made.
23 MR. BIRD:
I think some clarification on the 24 sensitive nature of the positions is warranted, and certainly
( j 25 the notice period will provide a mechanism for us to do that.
4 5
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COMMISSIONER ROGERS:
And that*might give you an g
. /
2 opportunity for a little clarification through the_sy' stem of 3
people's responsibilities.
4 MR. BIRD:
I agree.
5 COMMISSIONER ROGERS:
There seems to be a little 6
looseness there on that'.
7 The other point that doesn't como in to this, though, 8
but I think concerns us, and certainly concerns me, is the 9
question of alcohol abuse.
It is not illegal, but it certainly 10 is troublesome.
It is not an illegal drug, but it is a
)
11 troublesome problem, and I just urge that we not lose sight of 12 the significance of that as we proceed with the "illegal drug" 13 policy, because that can be even more serious in some ways 14 I
because of the likelihood of a larger number of people being 15 involved, since it is the use of a "legal" rather than an 16 "illega1" substance.
17 I just encourage us to keep working on an alcohol 18 policy, or something, because I am not sure where that stands, 19 but nationally that is a very serious problem.
20 MR. BIRD:
We have an ongoing program dealing with 21 that subject matter, and certainly our intention is to enhance 22 that along with the inclusion of further education on drugs and 23 the. drug program; but the~ alcohol problem is widespread, and we 24 are dealing with that I think very ziuccessfully in this agency,
(_j 25 from my standpoint e
9
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37 1
We are doing a lot of training.
The training will C'S 2-continue and be enhanced.
There's a very large focus in the 3
employee assistance program which is mentioned here on alcohol' 4
as well as drugs.
5 COMMISSIONER-ROGERS:- Let me ask--I would'like.to l
6 hear more about that sometime, because my concern is with
'7 impaired performance, and that can extend to.something that is 8
not all that obvious.
9 MR. BIRD:
We would be happy to brief you on our
(
10 current program and talk-to you about what we intend to do in "
11 the future in that rt ard.
12 CHAIRMAN ZECH:
We have an ongoing training program 13 in that regard, too, that I think it might be useful, 14 Commis'sioner Rogers, for you to look into when you are looking 15 into the general subject.
I think the training program we have 16 does make a very excellent presentation in this regard, and I 17 think is something that we can point to as a very specific area 18 of action that we are taking.
19 But your point is well taken.
I think that training 20 program,.though, might be of great interest to you.
21 COMMISSIONER ROGERS:
Well, just to stress I am less 22 concerned with alcoholism, although that is a problem, but I am 23 very concerned with alcohol impairment on the job.
24 MR. BIRD:
Theuseofalcoholasitwouldrblateto
(,/ 25 these positions.
4 4
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COMMISSIONER ROGERS:
Yes.
('
2 COMMISSIONER BERNTHAL:
I' Wanted t'o ask a question 3
related to the one which Commissioner Rogr.rs has raised, 4
because it is a question that, as I go back and look here at-5 what was done last July, I have wondered about myself.
Let me 6
ask two questions, one for the EDO, I guess, and perhaps one 7
for you, Paul.
8 First, broadly speaking it was unclear to me at the 9
time what elements of the Commission's June 16th directive were 10 retained and remain now in what you have finally come up with 11 here, and remained in effect as compared with the policy 12 statement that went out in July.
I was curious as to how you 13 have resolved--I don't know whether you are prdpared to speak 14 to that now, but they were rather different.
There were two 15 modifications, and it wasn't clear after it was all said and 16 done exactly what we were doing and what we weren't doing.
If 17 that has been resolved consciously, I would like to know how it 18 was resolved.
19 MR. STELLO:
I don't know what directive he's 20 referring to.
21 MR. BIRD:
I think I can spenk to that.
22 COMMISSIONER BERNTRAL:
There was a June 16th 23 Commission directive, which was the last thing that I had a 24 part in, and then the Commission policy statement went out
(,)
25
.while I was out of town and i had a number of difficulties with.
4 9
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6 39 1
1 that, with the details of that p,olley statement as it.went out,
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2 and there were differences between the two, the Commission's s
3 June 16th directive and the final policy. statement.
4 MR. BIRD:
We don't have that June 16th directive-1 5
here, but certainly we can look at the differences.
6 MR. STELLO:
I donit'know if there are any, and 7
without looking at them, maybe you can enlighten me, but what 8
we did is faithfully,.as best we knew how, take the 1
instructions from the Commission, developed the policy 9
10 statement, sent it back down to the Commission for the 11 Commission to in fact approve it.
And this represents my 12 understanding of the-Commission's desire that faithfully 13 implements the guidance of the Commission.
14 COMMISSIONER BERNTHAL:
0f the June SRM, are you 15 saying?
16 MR. STELLO:
Yes.
17 MR. BIRD:
Yes, sir.
We tried to'do that.
j 18 CHAIRMAN 2ECH:
This was the effort that took place, i
19 and that was my understanding, too.
20 MR. STELLO:
That is what we were trying to do to the 21 best of our ability.
22 COMMISSIONER BERNTRAL:
So that was your guiding 23 document and not particularly the policy statement?
24 CHAIRMAN 2ECH:
The policy statement, as I understand
(_) 25 it, was developed from that SRM.
4 O
b 40 1
MR. STELLO:
Yes.
2 MR. TAYLOR:
Yes, sir.
We attempted to do that.
We s
l 3
may have missed--
l 4
COMMISSIONER BERNTHAL:
Well, there were differences, l
5 I think, but that is okay.
6 MR. TAYLOR:
That was our object.
7 COMMISSIONER BERNTHAL:
Let me get to the question of 8
alcohol, then, because one of the problems that I saw in the 9
policy statement is that it was unclear as to which elements of 10 the policy statement--and one of those was the specific 11 condition of testing element--would apply to alcohol as well as 12 to drugs.
Are we clear in our minds, now?
Is the' staff clear 13 in its more detailed considerations which of these elements 14 '
will apply to alcohol as well as to illegal drugs?
15 MR. BIRD:
Yes, I think we're fairly clear with that.
16 In dealing with the alcohol problem, as we have historically, 17 we will continuo to make referrals to medical officers and work 18 with rehabilitation counselors, professionals in that field to i
13 deal with the problem.
20 The testing aspect of that is not going to be a 21 forced issue, at this point.
We're n'ot testing in the random 22 testing for alcohol.
However, when we have an' identified 23 problem we would certainly do everything that we could to deal 24 with that problem.
() 25 COMMISSIONER BERNTHAL:
So for example', then, in 8
g --
U 41 1
specific condition testing, although the policy statement-(
2
' singles out illegal drug use, will it also apply to alcohol?
3 or, fo.r that matter, to being under the influence of legal 4
drugs?
5 MR. BIRD:
It could apply.
It's not necessarily a 6
requirement that we test to verify alcohol use at this point.
7 We would use that if we felt there was a need to test.
I think 8
our experience has been that those people who were involved 9
with alcohol generally when they're confronted and deal with 10 the medical officers and the rehabilitation counselors will 11 submit to the rehabilitation without having been found through 12 a positive test to have an alcohol problem.
But the intention 13 is not to force that with this policy.
14, In other words, we would not require a test.
But 15 certainly we would continue in our efforts to counsel employees 16 and families of employees, and anyone who we identify, however 17 we identify them, with the use of alcohol abuse.
'18 COMMISSIONER BERNTHAL:
Well, Aet's see.' The 19 Commission's policy does have a kind of management enforcement in the agency so that if somebody is using drugs, I would read 20
'21 this policy--and I think the commission intended that this 22 policy means that if his supervisor or a co-worker sees a 23 condition whero he suspects that there is something wrong that 24 might insolve drug use, that employee may be required to
( _ j 2.5 undergo testing.
But you are saying that,that requiremen't, as 4
6
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42 1
a management matter,'will not extend to suspicions of alcohol--
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2 being under the influence of alcohol in the same circumstance?
3 MR. BIRD:
It's different in that it's not included 4
in this policy.
5 COMMISSIONER BERNTRAL:
That is just what I was 6
concerned about.
7 MR. BIRD:
And it's not a requirement that we test 8
for that.
9 MR. TAYLOR:
Our plan, in our specific plan, cnd the 10 thing we were asked'to present today is for illegal drug use.
11 COMMISSIONER BERNTRAL:
I understand that.
12 MR. TAYLOR:
There are numbers of parallels to 13 current alcohol programs within the agency, including 14 supervisory observation.
So a supervisor may note aberrant 15 behavior that may be due to alcohol, or he may not aberrant 16 behavior that may be due to drugs, but the training--this 17 policy, this statement is for drugs and discusses supervisory 18 observation--right, Paul?
19 MR. BIRD:
Yes.
20 MR. TAYLOR:
--and training to have supervisors be 21 aware of potential behavior which may indicate either drugs.
22 But currently supervisors are trained to observe employees for 23 alcohol abuse.
That is part of our current program.
24 MR. BIRD:
If they observe aberrant behavior, at the g j 25 time they. observe'it they may not know whether it is drug-d e
(_
^ 43 1
induced or alcohol-induced, however in both= cases we would work fm 2
with--
3 COMMISSIONER BERNTHAL:
Let:me'sse if I can cut 4
through this.
We are not applying the same management standard 5
for required testing, for example, to alcohol and, implicitly 6
to legal drugs--although I don't know how you distinguish it as 7
a practical matter--as we are'to illegal drugs?
8 MR. BIRD:
As far as testing goes, I think that is 9
correct.
l 10 MR. TAYLOR:
That is correct.
11 COMMISSIO.NER BERNTHAL:
Okay, that was my concern, 12 and it remains, then.
13 COMMISSIONER CARR:
Well, that's not really true.
I 14 Legal drugs are addressed in this drug pol 1cy because you're 15 supposed to notify the tester that you are under prescription 16 drugs, and provide the data that proves that.
17 COMMISSIONER BERNTHAL:
The specific condition-18 testing requirement is the question, and I don't think that--
19 MR. STELLO:
It does not address the. issue of 20 specific condition-testing for alcohol.
21 CHAIRMAN ZECH:
That's right.
22 COMMISSIONER BERNTHAL:
Right.
23 HR. STELLO:
That is done through the current program 24 that we have, and perhaps we need to do more there, too.
(, j 26 COMMISSIONER BERNTHALt. Well, it only ment' ions 9
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"illegal, drugs," though.
2 MR. STELLO:
That's what I said.
So perhaps we need i
3 to do more about alcohol.
4 COMMISSIONER BERNTHAL:
That's what I was asking.
5 MR. TAYLbR:
The whole Executive Order and the HMS 6
guidance and everything else is based on illegal drugs.
It 7
does not cover alcohpl.
8 MR. PARLER:
So is the public law.
But 9
unfortunately, the alcohol has always come up in this 10 discussion, and it was alluded to in various places in the 11 Commission's policy statement of July 9th, 1987.
That's the 12 reason for these questions, I guess.
13 CHAIRMAN ZECH:
Yes.
Are there other questions?
~
14 COMMISSIONER CARR:
Yes.
I would like to ask one 15 other question.
How sure are we that HMS is going to meet i
16 their deadlines?
Who is our HHS prodder?
17
[ Laughter.)
i 18 MR. BIRD:
Well, Greg and I prod every place we think' 19 there may be some potential hold up or delay in implementing 20 the program.
We feel confident that HHS will issue their final 21 guidelines by the end of the month, and that HHS is proceuding 22 to authorize agencies to proceed with their planning.
23 Our plan is on their doorstep.
Other agencies 24 certainly are pursuing the same iss.ue, and the sequence in
(,j 25 which HMS approves will be based on how well we lobby to get up t
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.in the top group for approval.
We feel that we have done
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2 everything they have asked us-to do, and certainly,asticipate 3
that we would be approved by HMS and DOJ early on, and I hope 4
that turns out to.be the case.
5 COMMISSIONER CARR:
Well, maybe I.suggest that if you l
6 see potential problems in'this area, you let the Chairman know 7
so he can prod?
8 MR. TAYLOR:
I am certain the Chairman and I will be 9
in close touch on this issue.
10 CHAIRMAN ZECH:
That is correct.
We will be.
11 1
Are there oth?r questions, my fellow Commissicaers?
12 (No response.)
13 CHAIRMAN ZECH:
Well, let me just make a couple of 14 comments, then, 15 First of all, I would like to compliment the staff on 16 their efforts in this very important program.
I think you have j
17 very diligently attempted to carry out the. vill of the majority 18 of the Commission, if not all the Commissioners, in their 19 various viewpoints.
20 I think you do recognize that the Commission does 1
Il believe that we should be c drug-free agency.
i 1
I clso believe, from what.you have told us t.y and
.% rstanding of looking into this program very carefully i
w status of our efforts, that we are considerably further
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than most other government agencies in our country, and I 1
9 e-vW
.ex 46 1
appreciate your efforts te try to keep out in front on that p) t 2
regard.
I agree, too, that if'you hcve problems, if you think 3
it is appropriate
- hat I contact HHS-or DOJ, that you inform me 4
promptly and I assure you I will do so.
5 I think basically the American people expect that 6
this agency will indeed be a drug-free agency.
I don't think
'7 the American people really want NRC employees involved with 8
illegal drugs.
I think that is clear.
Certainly it is to me.
9 We have a responsibility to the public health and 10 safety, and that is why I feel very strongly that we should 11 have a7 tough a drug policy for our employees as is legally 12 permissible.
And I do feel, as Commissioner Carr nas pointed 13 out, too, that we should put such a program in place as soon as 14 possib'le.
To me, thic is a responsibility we have of, frankly, 15 one of the highest priorinies.
16 We know the indurtry does have a program in place in 17 our utilities, for example.
All of the utilities have a drug 18
~ program in place.
This Commission does not.
This agency does i
19 not.
I think we should move again as promptly a we can to 20 rectify that situat4.on.
I think again the American people 21 expect and demand of us, and they should, that we who are 22 responsible for their safety have a drug-free agency to the i
23 absolute extent legally possible.
24 So I would just like to commend you for what you are (j25 doing, and ask you to again move as promptly,as'you legalil can 1
l
47 1
in cooperation with the other gove'nmental agencies or our r
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2 country, and I would hope that perhaps we might be the first 3
government agency, or certainly maybe one of the first, to put
~
4 this program in effect.
5 Are there any other comments, my fellow 6
Commissioners, before we adjourn?
i 7
COMMISSIONER BERNTRAL:
I don't think I got the B
answer to the question of--maybe I did and missed it--of the 9
resident inspectors, where we are having two groups, in effect 10 We talked about it, but did you speak specifically to any 11 management or other difficulties that you might foresee in 12 doing that?
13 I guess I really wanted to inquire a's to why we 14 can't, not withstanding the legitimate concerns that 15 Commissioner Rogers raises, what I would like to do--and I 16 agree with Londo--is move quickly in +.hese areas where we know i
17 we are on firm legal ground, and I woiild wonder why we can't 1
18 reach an early agreement with the union perhaps so that we 19 don't have these two classes of citizens in our resident 20 inspectors.
21 MR. STELLO:
We are going to do everything we can to 22 avoid it.
We hope to be able to get the issue resolved so that 23 t'.le testing for bargaining and ncnbargaining unit enployees 24 will be reasonably,close, but there 'is no way to quarantee it..
( ) 25 It is a process of negotiati'on.
If it goes well,. we will s
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achieve that.
If it doesn't, we won't.
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2 But that is one of th'e reasons we have built in, and l
3 think it is very very important to maintain the option of I
4 voluntary testing, so that if the resident chooses and elects 5
and wants to, they can.- We are not going to push, persuado, 6
urge; it's up to them.
Th.ey will have that option, and that is 7
the most that I see that we can do with the reality of the 8
process that we must follow, which is that we nust negotiate 9
with the union, and there is no predicting how long that 10 process will take with any degree of certainty.
Wrs cannot 11 estimate it.
It may go well.
It may not.
12 As yr' are aware, there is a challenge by the union 13 that represents the employees here to the Executive Order, as I 7
14 recall, itself, that is now pending in the courts.
15 COMMISSIONER ROBERTS:
Is it Customs?
16 MR. STELLO:
No, NTE** is challenging the Executive 17 Order in I've forgotten what court.
18 MR. PARLER:
Yes, that is who is challenging the 19 Executive Order.
But it might be some time be* ore that will be 20 resolved.
I don't know what position the union will take, but 21 I 6a know that we shouldn't discurs negotiating tactics and 22 issues here.
That is for sura.
23 MR. STELLO:
Absolutely.
24 CHAIRMAN ZECH:
Are there any o.ner final comments,
( j 25 my fellow Commissioners?
l
^
49 1
(No response.)
s
('5 2
CHAIRMAN ZECH:
If not, Mr. Stello, I would like to 3
congratulate you and your colleagues for an excellent' 4
presentation.
Thank you very much.
5 MR. STELLO:
Thank you.
]
6 CHAIRMAN ZECH:
We stand adjourned.
7 (Whereupon, at 11:10 a.m., the Commicsion meeting was 8
adjourned.]
9 10 11 12
)
13 14' 15 10 1
17 18 19 20 i
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REPORTER'S' CERTIFICATE 3
i 4
This is to certify that the attached events of a 5
meeting of the U.S. Nuclear Regulatory Commission entitled:
6-7 TITLE OF MEETING: Briefing on Status of MRC Internal Drug Program 8
PLACE OF MEETING:
Washington, D.C.
9 DATE OF MEETING: Wednesday, January 6, 1988 10 11 were held as herein appeat,, and that this is the original 12 transcript thereof the tile of the Commission taken l
f 13 stenographica31y by me, thereafter reduced to typewriting by 14, me or under the direction of the court reporting company, and 15 that the transcript is a true and accurata *.ecord o." the 16 foregoing events.
O, 17 f
'18 t
/
Jane W.
3each 19 20
'21 22 Ann Riley & Associates, Ltd.
33 24
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CCmlSSION BRIEFING GN THE STATUS OF THE NRC DRUG TESTING PROGRNi O
t 9
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.m BACKGROUND '
E,0, 12564 (SEPTEMBER 15, 1986) RE0'JIP.ES AGENCY PLANS FOR ACHIEVING DRUG FREE WORKPLACE NRC DRUG TESTING POLICY STATEMENT OF JULY 9, 1987, IN CONFORMANCE WITH THE E,0, PROVIDED THAT:
- USE OF DRUGS BY NRC EMPLOYEES WILL NOT BE TOLERATED
- RANDOM TESTING WILL BE REQUIRED FOR $MPLOYEES IN 1
SENSITIVE POSITIONS (UNESCORTED ACCESS, INCIDENT RESPONSE, CLASSIFIED INFORMATION)
- VOLUNTARY, REASONABLE SUSPICION, SPECIFIC CONDITION, PRE-EMPLOYMENT AND REHABILITATION FOLLOW-UP TESTING WILL ALSO BE ESTABLISHED
~
- TESTING WILL BEGIN AS S00N AS LEGALLY PERMI,SSIBLE.
NONBAilGAINING UNIT EMPLOYEES WILL BE TESTED d
FIRST, WITHOUT WAITING FOR UNION NEGOTIATIONS TO BE COMPLETED c
y,
t e
e.
i PUBLIC LAW 100-71, JULY 11, 1987 A.
REQUIRES DEPARTMENT OF HHS TO PUBLISH MANDATORY GUIDELINES PRIOR TO NRC DRUG TESTING HHS GUIDELINES PROVIDE:
SCIENTIFIC AND TECHNICAL REQUIREMENTS i
SPECIMEN COLLECTION PROCEDURES l
I l
LABORATORY ANALYSIS PROCEDURES 1
REPORTING AND REVIEW REQUIREMENTS STANDARDS FOR CERTIFICATION OF TESTING LABOPATORIES 1
FROFICIENCY TEST PROGRAM SPECIFICATIONS (NOTE:
DRAFT GUIDELINES PUBLISHED AUGUST 14, 1987.
- FINAL GUIDELINES AN.TICIPATED JANUARY 30, 1988.)
l I
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1
o.
i PUBLIC LAW 100-71 B.
NO FUNDS FOR DRL'G TESTING UNDER E, 0, 12564 UNTIL:
1.
SECRETARYs HHS:
(A)
CERTIFIES TO CONGRESS THAT NRC'HAS A DRUG TLSTING PLAN IN ACCORDANCE WITH E,0, 12564, OTHER LAWS, AND THE MANDATORY HHS GUIDELINES (B)
SUBMITS ANALYSIS TO CONGRESS CONCERNING NRC'S CRITERIA FOR DESIGNATING POSITIONS FOR TESTING AND WHICH IDENTIFIES ALL TESTING DESIGNATED POSITIONS, AND THE NATURE, FREQUENCY AND TYPE 0F DRUG TESTING.
(NOTE:
NRC SUBMITTED PLAN 12/87, HHS ACTION ANTICIPATED 2/88) 2.
DIRECTOR, OMB, SUBMITS ANALYSIS TO CONGRESS OF NRC'S ANTICIPATED ANNUAL COSTS FOR E.0, 12564 AND OTHER P.L. 100-71 REQUIREMENTS FOR FIRST 5 YEARS (NOTE:
NRC SUBMITTED COST ESTIMATE 12/87, OMB ACTIOb' ANTICIPATED 2/88)
?
'SbHEDULE
SUMMARY
LEAD MILESTONE RESPONSIBILITY LND ASSURE AVAILABILITY OF ARM COMPLETED FUNDS IDENTIFY POSITIONS AND OP COMPLETEL INDIVIDUALS IN THE "TESTING DESIGNATED" CATEGORIES (APPROXIMATELY 1200 POSITIONS)
DOCUMENT RANDOM SELECTION ARM COMPLETED PROCESS AND PROCEDURES FOR CO'LECTION AND RECEIPT OF TEST RESULTS ESTABLISH PROCEDURES FOR REVIEW ARM COMPLETED OF POSITIVE DRUG TEST RESULTS BY MEDICAL REVIEW 0FFICER
'i COMPLETE AND SUBMIT TO OMB ARM COMPLETED ESTIMATED COSTS ASSOCIATED WITH CARRYING OUT E,0, 12564 SUBMIT NRC PLAN TO HHS OP COMPLETED FOR CERTIFICATION, INCLUDING POSITION TITLES AND JUSTIF1-CATIONS SOLICITATIONS ISSUED TO ARM /0P COMPLETED POTENTIAL CONTRACTORS (COLLECTION, TESTING, MRO, AtlD EAPF e
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PROJECTED SCHEDULE
SUMMARY
LEAD MILESTONE RESPONSIBILITY EEQ HHS PUBLICATION OF FINAL HHS 1/30/88*
GUIDELINES D0J APPROVAL OF NRC PLAN 00J 2/88*
HHS CERTIFICATION OF NRC PLAN HHS 2/88*
ISSUE REQUIRED 60 DAY ADVANCE OP 2/88 GENERAL NOTICE TO ALL EMPLOYEES REGARDING DRUG TESTING PLAN (CAN NOT BF ISSUED UNTil AFTER PLAN IS CERTIFIED BY HHS AND DOJ)
ISSUE REQUIRED 30 -
OP 2/88 DAY ADVANCE SPECIFIC NOTICE TO EMPLOYEES SUBJECT TO DRUG TESTING FINAL PUBLICATION OF NEW ARM 2/88 PRIVACY ACT SYSTEM OF RECORDS 8LL CONTRACTS AWARDED ARM 2/88 UPON CERTIFICATION OF NRC PLAN BY HHS INITIATE DRUG TESTING ARM 4/88 FOR NON-BARGAINING UNIT EMPLOYEES COMPLETE IMPACT AND IMPLEMENTA-OP e
TION NEGOTIATIONS WITH NTEU INITIATE DRUG TESTING FOR ARM BARGAINING UNIT EMPLOYEES
- PROJECTED DATE, BUT NOT UNDER NRC CONTROL.
- DATES TO BE ESTABLISHED BASED ON INITIATION OF AND PROGRESS IN NEGOTIATIONS.
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SECY Correspondence & Records Branch E
Attached are copies of a Comission meeting transcript and related meeting 5;
document (s).
They are being forwarded for entry on the Daily Accession List and
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