ML20207A493
| ML20207A493 | |
| Person / Time | |
|---|---|
| Issue date: | 04/21/1987 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Breger M ADMINISTRATIVE CONFERENCE OF THE U.S. |
| Shared Package | |
| ML20207A489 | List: |
| References | |
| NUDOCS 8705200488 | |
| Download: ML20207A493 (1) | |
Text
...
[@3 MG h
o UNITED STATES 8'
/o NUCLEAR REGULATORY COMMISSION 3,s S
WASHINGTON, D. C. 205%
April 21, 1987 CHAIRMAN l
1 The Honorable Marshall J. Breger Chairman Administrative Conference of the United States Washington, D.C.
20037
't
Dear Mr. Breger:
This is in reference to your letter, dated March 13, 1987, to Jane Axelrad providing an opportunity to comment on the draft recommendations proposing uniform treatment for private sector whistleblowers protected by federal statutes.
Adoption of uniform standards and practices in this area may be beneficial.
However, it is not clear why all investigatory i
effort related to whistleblowing should be done by OSHA.
The Wage and Hour Administration appears to be doing an effective.iob i
in investigating cases under section 210 of the Energy l
Reorganization Act of 1974, as amended.
We have no view as to the effectiveness of OSHA, and the Conference's consultant study did not address the effectiveness of the investigatory agencies.
It may be appropriate to consider effectiveness along with caseload in determining which agency should receive the responsibility for investigations.
Also, we have a concern with the suggestion that sanctions may include licensing sanctions by the Department of Labor.
We firmly believe that, at least in the case of NRC licensees, only the NRC should make determinations to modify, suspend or revoke licenses issued by the NRC.
In this regard, we note that the Commission has 1
promulgated anti-discrimination regulations that parallel the protections in Section 210 and that the Commission enforces these regulations under its authority in the Atomic Energy Act of 1954, as amended.
See, e g2, 10 CFR 50.7.
z If you have any questions concerning these comments, please call Jim Lieberman, Director, Office of Enforcement, at 492-8259.
Sincerely, b.
Lando W. Ze
, Jr.
RE nc
. mww m
~
~
O
.#7 4
s
,, (e, ' d ADMINISTRATIVE CONFERENCE OF THE UNITED STATES k
},i 2120 L STREET. N.W-. SUITE 500 3
WASHINGTON.O.C. 20037 (202) 254 702o s
March 13,1987 1
OFFICE oF j
rHE CHAIRMAN i.
1 Ms. Jane A. Axelr::d 1
Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission j
Washington, DC 20555 j
t i
l
Dear Ms. Axelrad:
As you may know, the Administrative Conference has been studying the operation.of i
federal whistleblower statutes that protect private sector health and safety whistleblowers I
The Conference's consultant for this study, Eugene R. Fidell, of the from job retaliation.
i Washington law firm Klores, Feldesman and Tucker, has. written a report which describes I
incongruities in the statutory scheme (e.g., assignment of investigatory and adjudicatory responsibility to carrying agencies, statutes of limitations ranging from 30 days to 130 days, differing definitions of protected conduct, and differing remedies). Based on the report, the.
Conference's Committee on Adjudication has developed draft recommendations proposing uniform treatment of all covered private sector whistleblowers, j
The Committee is soliciting comments on the draft recommendations from interested l
persons and agencies. Because statutory change might directly affect your agency's program, We would l
we are especially interested in your vie.ws on the-stoposed recommendations.
j appreciate receiving your comments by Monday, April 6) They.can be addressed to' Deborah Ross of my staff. Both Mr. Fidell's recognAthe draft recommendations are enclosed.
j j
We value your participation in the Conference's deliberative process. Thanks for your cooperation.
I Sincerely, 1
O'15 W Y. fpepss Marshall J. Breger bs(
l Chairman j
1
\\
Enclosures l
cc: lionorable James Asselstine l
i i
I V9?oysoea/L-W i
872074
(
~ -..
i i
l
' Federal Protection of Private Sector Health and Safety Whistleblowers 1
Preliminary Recommendations (for comment)
Private sector employees who make disclosures concerning health and safety matters i
pertaining to the workplace are protected against retaliatory actions by over a dozen federal laws. By common usage these employees, as well as others who make similar disclosures 4
concerning fraud or other misconduct (but.who are beyond the Conference's current study),*
4 i
have become known as whistleblowers. Under current statutes, for example, nucleer power f
plant workers, miners, truckers, and farm laborers are specifically protected when acting as i
whistleblowers. Other workers may be covered under the more general protections granted I
by the Occupational Safety and Health Act (OSHA) or various environmentallaws.
I The protection provided employees by the so-called whistleblower statutes under study here serves the important public interest of helping ensure the health and safety of workers j
in the various regulated industries or activities, as well as that of the general public, which may suffer the consequences of any lapses.
The statutes are intended to create an 3
4 environment where an individual can feel free to bring a hazardous or unlawful situation to
)
the attention of the public or the government without fear of p,ersonal reprisal. Such r,
a disclosures can be a valuable safety valve when dealing with mass transportation and with potential hazards in the workplace and in interstate commerce, especially where the public l
I lacks the knowledge or access to information necessary to be fully informed on these important issues.
e f
3
'The Conference has limited its study to health and safety related disclosures because in this area a pattern of federal statutory protections has emerged with sufficient experience to allow a study.
u
In its examination of the-current federal statutory scheme designed to protect whistleblowers in the private sector, the Conference found that, as currently written, 'the
,vtrious whistleblower statutes lack uniformity.in a number of areas including the following:
1.
Investigative responsibility is assigned to numerous agencies, including several divisions within the Department of Labor (DOL), the Department of the Interior and other agencies, with little coordination between them.
2.
Adjudicatory responsibility is similarly divided. For example, while several statutes provide for adjudication by a DOL administrative law judge, some provide for decisions by other agencies or for trial in the district court.
3.
Judicial review likewise differs. Some statutes provide for review in the district 4
court, some in the court of appeals. And for some, no review is available, i
- 4. Statutes of limitations for filing a complaint range from 30 days to 180 days.
l
- 5. ' Exhaustion of internal employee-mandated grievance procedures is typically not required.
- 6. Definitions of protected conduct differ according to statute. For example, protected disclosure may include any disclosure, disclosure to "the public," to the media, or to the responsible agency, a union or employer. Protected conduct may or may not include refusals to work.
.,.{
7.
In certain cases where the agency declines to proceed with the complaint (under either the OSHA or the Asbestos Hazard Emergency Response Act), the complaining employee is left without judicial review of that decision, and without a federal remedy.
As a result of these statutory incongruities, available procedures and protections may differ depending solely upon the industry to which an aggrieved employee belongs. For example, an employee seeking protection under the Clean Air Act (CAA) has 30 days in which to file a complaint, while an employee filing under provisions of the Migrant Seasonal v
,,--s 1
J.
and Agricultural Worker Protection Act (MSAWPA) has 180 days. And while both CAA and MSAWPA violations are investigated by the Wage and Hour Division of the Department of Labor, adjudication of CAA complaints is before a DOL administrative law judge; while MSAWPA complaints are adjudicated in the district courts. The Conference has concluded that this lack of uniformity does not appear to be reasoned, but simply reflects the incremental enactment of the various statutes ove: a period of years.
The study also indicated that access to written decisional precedents in these cases needs to be improved. The Department of Labor's Office of Administrative Law Judges does not l
yet publish its decisions (although it has recently announced plans to do so), and a unified index for these decisions and those of other agency adjudicative bodies does not exist.
Publication and indexing of existing case law should help narrow the issues for future adjudications, contribute to a sense of fairness in the adjudicatory process, and improved case management. In addition, the study found that, with certain exceptions, there is little interaction between the program agency and the investigating / adjudicating agency, thus diminishing the involvement of the lead program agencies. Procedures should be established by which program agencies provide assistance to complaint-handling agencies, and decisions are subsequently reported to the program agency.
While the Conference study focused primarily on existing law, it also discussed areas of law where gaps in whistleblower protection exist. These include the, aviation and aeronautics industries, vessel construction and operation, and manufacturing and production of food, drugs, medical devices or consumer products generally. Because of the health and safety concerns present in these regulated industries, Congress may wish to consider granting these workers whistleblower protection conforming to the legislation recommended below.
Finally, the Conference notes that there is a growing amount of litigation in state courts concerning whistleblowers, but does not take a position on whether federal statutes do or should preempt state law in this field. (ACUS Recommendation 84-5, Preemption of State m.
_g.
Regulation by Federal Agencies, recommends that Congress address foreseeable preemption.
issues, and advises regulatory agencies to be aware of situations where a conflict might arise.)
~
With the increasing interest in these matters by Congress, the media and the general public, the Conference hopes that its study will provide a foundation for needed improvements.
Recommendations I. In the interest of uniform treatment of private sector health and safety whistleblowers, Congress should enact whistleblowing legislation to replace all extant federal private sector health and safety whistleblowing provisions. That legislation should include:
(A) assignment of preliminary investigative responsibility to the Secretary of Labor for all private sector health and safety whistleblowing retaliation cases.
-(B) authorization for the Secretary to explore alternative means of resolving these disputes, with the consent of:the parties, (see ACUS Recommendation M-3, Agencies Use of Alternative Means of Dispute Resolution.)
(C) provision for an opportunity for an on-the-record APA earing by DOL Administrative Law Judges with discretionary review by. the Secretary of Labor, judicial review in the courts of appeals, and enforcement in the district courts [provided that certain cases may be assigned to other appropriate adjudicatory agencies such as the Occupational Safety and Health Review Commissi6n, or Federal Mine Safety and Health Review Commission where such forums already handle related' cases].
4
.. - ~
- u.._
1
'(D) 'a grant of subpoena power to the Secretary of Labor for whistleblowing investigations and hearings, with provision for judicial enforcement; and (E) a grant of rulemaking authority to the Secretary of Labor with respect to investigative and adjudicatory procedures, notice posting requirements and mandatory coordination with program agencies.
(F) a single definition of protected conduct; (G) a single statute of limitations of not less than 180 days;.
(H) a single provision for remedies, (including possible licensing and contracts sanctions).
II. Subject to action by Congress as recommended above, the Secretary of Labor should:
(A) promulgate rules of appellate procedure governing practice and procedure in connection with the Secretary's review of decisions in whistleblower cases by the Office of Administrative Law Judges; (B) transfer all private sector health and safety whistleblowing investigative responsibility to the Occupational Safety and Health Administration, because that agency currently receives by far the largest number of private sector health and safety whistleblowing complaints;
f,_
6~-
(C) develop, in consultation with the agencies responsible for the substantive regulatory programs, detailed written procedures that are as nearly uniform as the Secretary deems practicable for coordinating investigation, adjudication and follow-up in whistleblowing cases; and (D)
In accordance with the Freedom of Information Act, 5 U.S.C.
6552(a)(2)(A), cause to be indexed and published all ALJ _ and Secretarial decisions in whistleblowing cases, including those rendered prior to January 1, 1987.
III. Where Congress has judged it necessary to regulate an industry so as to ensure the safety of its workplace, products, services, or the environment, it is also appropriate that enforcement of the regulatory scheme be strengthened by providing whistleblower protection for the industry's employees who wish to report statutory violations. Consequently, Congress should consider expanding whistleblower protection to workers in industries who may currently lack such protection.
I
-e.--
g ----.,
-