ML20196C168
| ML20196C168 | |
| Person / Time | |
|---|---|
| Issue date: | 02/10/1988 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Russell W NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I) |
| References | |
| EGM-88-01, EGM-88-1, NUDOCS 8807010021 | |
| Download: ML20196C168 (11) | |
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EGM 88-01 MEMORANDUM FOR:
W. Russell, Regional Administrator, RI J. N. Grace, Regional Administrator, RII A. B. Davis, Regional Administrator, RIII R. Martin, Regional Administrator, RIV J. Martin, Regional Administrator, RV S. Ebneter Direuor, Office of Special Projects FROM:
James Lieberman, Director Office of Enforcement
SUBJECT:
ENFORCEMENT REGARDING DISCRIMINATION FOR ENGAGING IN PROTECTED ACTIVITIES The purpose of this memorandun is to provide enforcement guidance regarding cases involving discrimination for engaging in protected activities and Department of Labor (DOL) actions in such cases.
It is the NRC position that
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the protected activities in NRC regulations such as 10 CFR 50.7 include, among other things, employees who are reporting potential safety concerns to their management. NRC employees should be sensitive to the NRC responsibilities in this area and make sure that those who bring discrin.ination complaints to the NRC understand that the NRC is concerned about their complaints.
For purposes of this guidance, discrimination should be broadly defined and includes intimidation or harassment that could lead a person to reasonably expect that if the conduct is not changed the compensation, terms, conditions, and privileges of employnent could be affected.
If there are any questions concerning the scope of definitions, OE should be contacted.
The NRC employee receiving the complaint should follow the guidance in NRC Manual Chapter 0517, Appendix, Part I, which includes informing the complainant that:
1.
the NRC will evaluate the discrimination allegation and any safety concerns the allegation raises, 2.
to protect his or her personal employee rights (e.g., backpay, reinstatement or job position), the complainant must file a complaint with DOL within 30 days of the occurrence of the discrimination, and 3.
generally, the NRC will await the results of the DOL investigation, which the NRC will monitor, before investigating or taking enforcement action against a licensee for discrimination.
The NRC wants to avoid negating the successes of DOL in securing employee-erployer conciliations.
Notwithstanding this, the thrust of the NRC's enforcement policy is to ensure, through appropriate enforcement action against a licensee, 88070100?! 080210 PDR ONG NE E
4 Regional Administrators that discrimination by either the licensee or its contractors 1/ does not have a chilling effect on reporting of safety concerns. Cepending on the circumstances, a single incident of discrimination in violation of Section 210(a) which is settled before final DOL adjudication could have such a chilling effect.
Under the Memorandum of Understanding between NRC and D0L, if DOL receives a complaint concerning a possible violation of Section 210(a) of the Energy Reorganization Act, it is to promptly notify the NRC and inform the NRC of whether DOL intends to conduct an investigation into the matter. Each Region must appoint a person, normally the enforcement coordinator, to establish liaison with tre DOL Area Directors' offices within the Region to facilitate this notification.
Please notify me if the person appointed is not the enforce-ment coordinator.
DCL also will notify the NRC of the results of the Area Director's Notice of Determination (the results of the DOL investigator's conciliation effort and investigation), of the recortunended Decision and Order of the Administrative Law Judge (if the Notice of Determination is appealed by either party), and of the Final Order c,f the Secretary of Labor. The Office of Enforcement (OE) normally is included on the distribution for these documents with the exception of the Area Director's Notice of Determination.
OE will provide copies of the documents it receives tc the appropriate Regional Office where the document does not show distribution to the region.
Similarly, the region should send documents to OE if distribution to OE is not shown on the document.
The NRC facilitates DOL's investigations by taking all reasonable steps to assist DOL, when requested, in obtaini.19 access to licensed facilities and any necessary security clearances.
OE will assist in getting information from DOL Headquarters.
For those allegations of discrimination in which the alleger does not file a complaint with DOL, the Region will evaluate the allegation and either refer the matter to the licensee in accordance with the guidance in NRC Manual Chapter 0517, Section 0510, with due consideration regardino the issue of confidentiality, or request the Office of Investigations (Oi) to perform an investigation.
The decision whether to request an 0: investigation must be made on a case-by-case basis taking into account the particular fact pattern of the case in question. Factors to consider include whether the alleged discrimination may be egregious, whether the licensee has a prior history of discrimination complaints, the time since the alleged discriminatory act was comitted, the reasons for not filing an appeal (if any are known), and the likelihood of a violation.
The Guidelines discussed further on in this EGli should be used in so far as they can be applied.
For those allegations of discrimination in which the alleger files a complaint with DOL, the Region no,mally will await completion of DOL investigations and the results of DOL adjudicatory proceedings before initiating an NRC investigation of, or formal erforcement action for, a complaint of discrimination.
- However, for each case in which the DOL Area Director finds discrimination occurred or the case is conciliated before the DOL Area Director makes a decision, the Region will obtain an EA number from OE and will reouest the licensee to provide a 1/
Licensees will be held responsible in enforcement actions for the discriminatory actions of their contractors.
However, licensees are not
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required to specifically report allegations of harassment, intimidation, or discrimination.
Regional Administrators description of the actions taken or planned to assure the alleged discriminatory act, whether actual or perceived, does not have a chilling effect on other employees raising safety concerns.
A sample letter for requesting this information from the licensee is attached as enclosure 1.
The same information may be reauested from licensees for those cases in which the 00L Area Director does not find discrimination if, in the opinion of the Region, the circumstances of the particular discrimination complaint warrant the request.
Of course if an allegation is made to the NRC that involves safety implications, the Region will follow-up on the allejation, resolve the matter, and take enforcement action if appropriate. Furthermore, any technical issues raised in connection with discrimination complaints should be resolved expeditiously without waiting for the results of 00L proceedings.
For those cases in which 00L has investigated an allegation of discrimination, the Region normally will initiate enforcement action for a violation of 10 CFR 50.7. 2/ when the Secretary of Labor finds that discrimination has occurred. 3/
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However, many discrimination complaints to 00L are settled before final 00L adjudication by the Secretary of Labor.
For any case in which a 00L Area Director's finding of discrimination is not appealed, or an appealed adverse Area Director's decision or adverse Administrative Law Judge's decision is conciliated before a decision by the Secretary of Labor, or the case is conciliated before the 00L Area Director makes a determination, 4_/ the Region will:
1.
Review relevant information provided by 00L including the 00L investigator's narrative report. The Region should request the 00L information using the sample letter attached as enclosure 2 as a guide. 5/
2.
Review the licensee's basis for taking the action alleged to be discriminatory, including any investigation reports prepared for the licensee regarding the matter and a oescription cf the licensee actions taken or 2/
For purposes of this guidance we have used 10 CFR 50.7 which applies to Part 50 licensees. For nun-reactor cases, use the appropriate reference in the regulations, e.g., 10 CFR 30.7, 72.10, etc.
3/
If the Secretary's decision is appealed, completion of the NRC enforcement action may be held in abeyance pending resolution of the appeal.
4/
Cases conciliated prior to a 00L Area Director's determination bear
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special attention because there usually is very little information available.
It is especially important in these cases to scrutinize the ccmplaint and the licensee's response in applying these guidelines because 00L has not made any determination and the licensee has settled.
5/
The sample letter attached as enclosure 2 is irtended to facilitate recuesting information from 00L Area Offices.
OE'should be consulted regarding requestir.g 00L records developed before an Administrative Law Judge.
Regional Administrators planned to assure the alleged discriminatory act, whether actual or perceived, does not have a chilling effect on other employees raising safety concerns. 6/
3.
Determine, in consultation with the Director, OE, and OGC, if sufficient evidence (DOL reports, NRC inspection reports, responses from the licensee, or any other relevant information) exists to support a finding that discrimination occurred.
4.
Initiate the enforcement process if the available evidence supports a finding that discriminatica occurred and the evidence is legally sufficient to support citing the licensee for a violation of 10 CFR 50.7 or 10 CFR Part 50, Appendix B, Criterion I.
5.
Close the case if there is inadequate evidence to support a finding that the complaint of discrimination has merit and it does not appear likely that the complaint is valid based on the relevant information concerning the complaint. The matter should be closed by informing the licensee of the determination that under the circumstances of the case, enforcement action is not being taken.
The sample letter attached as enclosure 3 should be used as a guide.
6.
Consider requesting OI to perform an investigation if the available evidence indicates that discrimination may have occurred but that evidence is insufficient to support citing the licensee 'er a violation of 10 CFR 50.7.
The decision whether to request an O! irvestigation must be made on a case-by-case basis taking into account the particular fact pattern of the case in question.
Factors to consider include whether the alleged discrimination may be egregious, whether the licensee has a prior history of discrimination ecmplaints, the likelihood of a violation of 10 CFR 50.7, and the potential for the employeent action having a chilling effect.
In all such cases, the matter should be discussed with the Director, OE, to determine whether regulatory action is required.
In addition, because these cases may involve potential wrongdoing, O! should be notified.
A sample memorandum for notifying OE, with a copy to 01, is attached as enclosure 4 If OI investigates and determines that discrimination in violation of NRC requirements occurred, initiate the enforcement process.
If OI does not substantiate the alleged discrimination or an investigation is not conducted, close the case by informing the licensee of the determi-nation that under the circumstances of the case, enforcement action is not t
6/
This information should have been requested from the licensee when the DOL Area Director made a finding of discrimination or when the COL Area Director secured a conciliation before making a determination.
If the information has not been requested already, make an appropriate request using the sample letter attached as enclosure 1 as a guide.
i
Name of Licensee (Address)
EA xx-xxx Gentlemen:
On 198, the V. S. Department of Labor's Wage and Hour Divisien in (Name of City), receTved a ccmplaint from a former employee of (Name of employer)
Lif necessary: a (Name of licensee) contractor at the (Name of site) sitej.
The former employee alleged that Lbriefly state nature of discrimination - dismissal, denial of employment, reassignment, etc.) because he had raised safety concerns while performing his duties at (Name of site).
In response to that complaint, the Wage and Hour Division conducted an investigation, and in the enclosed letter dated 198. the Area Director of the Wage and Hour Division found that the evioence c5tained during the Division's investigation indicated that the employee was engaged in a protected activity within the ambit of the Erergy Reorganization Act and that discrimination as defined and prohibited by the statute was a factor in the actions which comprised his complaint.
[or,In response to that complaint, the Wage and Hour Division secured an employee-employer conciliation as noted in the enclosed letter from the Area Director of the Wage and Hour Division.]
- / The NRC is concerned that a violatice of the employee protection provisions set forth in 10 CFR
- / may have occurred and that the actions taken
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against the (former) employee may have had a chil'ing effect on other licensee or contractor personnel.
- / Based on a review of the complaint filed with 00L, a violation of 10 CFR
- /
may have occurred which could have a chilling effect en other licensee or contractor personnel.
Therefore, you are requested te provide this office, within 30 days of the date of this letter, a response which:
1.
Provides the basis for the employrent action regarding the (former) employee and includes a copy of any investigation reports you have regarding the circumstances of the action; and 2.
Describes the actions. if any, taken or planned to assure that this employment action dces not have a chilling effect in discouraging other licensee or contractor employees fren raising perceived safety Concerns.
After reviewing your response, the NRC will determine whether enforcenent action is necessary at this time to ensure compliance with regulatory requirements.
- / Only one of these two paragraphs shoulc be included.
The first is used when there is some evidence for NRC to conclude that discrimination occurred.
- / Fill in the applicable regulation.
2 In accordance with Section 2.790 of the NRC's "Rules of Practice," Part 2 Title 10. Code of Federal Regulations, a copy of this letter will be placed in the NRC Public Document room.
The response requested by this letter is not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, Pub. L. No.96-511.
Sincerely, Regional Acministrator
Enclosure:
As Stated ec w/ enclosure:
(TO BE DETERMINED BY ThE REGION) bec w/ enclosure:
J. Taylor, DEDO J. Lieberman, OE L. Chandler, OGC F. Miraglia, NRR [For NRR matters)
R.Cunningham,hMSS[ForNMSSnatters)
1 Name of DOL Area Director U.S. Department of Labor Wage and Hour Division (Local Address)
Dear fir./Ms.
On 198_, the U. S. Departnent of Labor's Wage and Hour Division in (Name of City), received a complaint from (Name of complainant) a former employee of (Name of employer). (Name of complainant) alleged that [briefly state nature of discrimination. - dismissal, denial of emplo pent, reassignment, etc.) because he had raised safety concerns while performing his duties at (Name of site).
In response to that complaint, the Wage and Hour Division conducted an investigation, and in a letter dated 198, tne Area
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Director of the Wage and Hour Division found that the evidence obtained during the Division's investigation indicated that (Name of complainant) was engaged in a protected activity within the ambit of the Energy Reorganization Act and that discrimination as defined and prohibited by the statute was a factor in the actions which comprised his complaint. The complaint was subsequently settled and withdrawn.
The Nuclear Regulatory Comission (NRC) is concerned that a violation of the employee prctection provisions set forth in 10 CFR 50.7 */ may have occurred.
To resolve this matter, the NRC intends to review all reTevant information regarding the alleged discrimination including the 00L case file material.
The purpose of this letter is to request a copy of the narrative of the DOL Compliance Officer's Report for the subject case.
I'nder the October 25, 1982 Memorandum of Understanding between DOL and NRC, DOL makes all case file material available to NRC officials.
In response to an NRC request for arrangements to facilitate obtaining copies of DOL Compliance Officers' Reports, the Assistant Administrator, Wage and Hour Division, agreed in January 1987 that DOL will provide a ccpy of the narrative of any Compliance Officer's Report requested by NRC.
Copies of exhibits, however, will have to be made by NRC personnel using DOL copying equipment at the DOL office where the exhibits are
- filed.
The material requested will be conspicuously marked as material obtained from the Department of Labor under a special arrangement with the NRC and that the information may not be disclosed outside the NRC without prior DOL approval.
If you have any questiens regarding this request, please contact me at FTS XXX-XXX.
- / The applicable regulation should be cited.
Letter to Area Director Sincerely, cc :
Assistant Administrator Wage and Hour Division Department of Labor, Washington, DC 6
bec: J. Lieberman, OE L. Chandler, OGC i
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Name of Licensee (Address)
Gentlemen:
Subject:
ALLEGED DISCRIMINATION AGAINST AN EMPLOYEE FOR HAVING ENGAGED IN PROTECTED ACTIVITIES
[FOR CASES IN WHICH AN OI INVESTIGATION HAS NOT BEEN CONDUCTED:]
This refers to your letter dated 198, in response to our letter dated 198, concerning the alleged 31scrimination of an employee for having engaged in p_rotected activities.
(Briefly describe the matter under review.) After reviewing the information provided and because of the circumstances of this case, we have determined that enforcerent action will not be taken at this time.
[FOR CASES IN WHICH AN O! INVESTIGATION HAS BEEN CONDUCTED:]
On 198, the NRC Office of Investigations (01) issued its report of an allegation of 31scrimination regarding (Include a brief description of the matter investigated and the results of the investigation.) A copy of the OI Report Synopsis is enclosed. Because of the circumstances of this case, we have determined that enforcement action will not be taken.
[FOR ALL CASES:]
(A paragraph addressing the fact that the NRC will rot condone discrimination may be added at the discretion of the Region for those cases where the call was close regarding whether or not the discrimination occurred.)
No response to this letter is required.
In accordance with Section 2.790 of the NRC's "Rules of Pract
.." Part 2. TWtle 10. Code of Federal Reculations, a copy of this letter will be placed in the NRC Public Document room.
Sincerely, Regional Administrator
Enclosure:
As Stated cc w/ enclosure:
(T0 BE DETERMINED BY THE REGION) bec w/ enclosure:
J. Taylor, DEDO J. Lieberman, OE L. Chandler, OGC F. Miraglia, NRR [For reactor licensees]
R. Cunningham, NMSS [For material licensees]
B. Hayes, OI
LIMITED DISTRIBUTION -- NOT FOR PUBLIC DISCLOSURE MEMORANDUM FOR:
James Lieberman, Director Office of Enforcement FROM:
, Regional Administrator Region
SUBJECT:
ALLEGATION OF DISCRIMINATION FOR HAVING ENGAGED FOR PROTECTED ACTIVITIES The purpose of this memorandum is to bring to your attention an allegation of discrimination (or intimidation) in which the available evidence indicates that discrimination may have occurred but that evidence is insufficient to support citing the licensee for a violation of 10 CFR 50.7 (or 10 CFR Part 50, Appendix B, Criterion I). Enclosed is a synopsis of the case and the basis for concluding that regulatory action is or is not required.
1 By copy of this memorandum, OI is notified of the potential wrongdoing that may be associated with the matter.
Regional Administrator
Enclosure:
As stated cc:
B. Hayes, 01 J. Taylor, DEDO L. Chandler, OGC Region OI Director LIMITED DISTRIBUTION -- NOT FOR PUBLIC DISCLOSURE WITHOUT OE APPROVAL
FES 101993 Regional Administrator's being taken using the sample letter attached as enclosure 3 as a guide. 7/
This guidance will be incorporated in the next revision of the OE Manual Chapter. Questions concerning this guidance should be referred to Dick Rosano (492-0740).
OripIPalfinned By James Ueberman James Lieberman, Director Office of Enforcement
Enclosures:
As stated cc: Regional Er.forcemer.+. Coordinators RI, RII, RIII, RIV, RV J. Taylor, OEDO L. Chandler, OGC F. Miraglia, NRR R. Cunningham, NHSS Enforcement Staff 7/
Those cases referred to O! which are returned to the staff by OI without investigation because of resource allocation should be reassessed using guideline 6, above.
If, after reassessment the natter warrants categori-zation at a higher priority, the ratter may be referred to O! again for investigation in accordance with the procedures in NRC Manual Chapter 0517.
If the natter does not warrant categorization at a higher priority, it should be closed by informing the licensee of the determination that, under the circumstances of the case, enforcement action is not being taken using the sample letter attached as enclosure 3 as a guide.
Ff
,.s RPRosano 4.eerman
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