NUREG-0500, Informs Comm of Comments Received Re NRC Survey Rept on Differing Prof opinions(NUREG-0500)& Staff Plans to Dev NRC Proposed Policy & Procedures.Provides Sched for Completion of Response Actions
| ML20153A959 | |
| Person / Time | |
|---|---|
| Issue date: | 11/07/1978 |
| From: | Haller N NRC OFFICE OF MANAGEMENT AND PROGRAM ANALYSIS (MPA) |
| To: | |
| References | |
| SECY-78-575, NUDOCS 7811290021 | |
| Download: ML20153A959 (95) | |
Text
{{#Wiki_filter:-- - ._ _ . . Q l-> , November 7,1978 UN4TTD STATEK SECY-78-575 NUCLEAR REGULATORY COMMis3 ION l INFORMATION REPORT 1 l For: The Commissioners j From: Norman M. Haller, Director . Office of Management and Program Analysis ' Thru: Executive Director for Operatio
Subject:
DIFFERING PROFESSIONAL OPINIONS
Purpose:
To inform the Commission of (1) comments received concerning our survey report on differing professional opinions (NUREG-0500), and (2) staff plans to develop NRC's proposed policy and procedures for differing professional opinions. 3 Discussion: In his February 6,1978 Budget Authorization hearing testimony, Chairman Hendrie reported that NRC was preparing a comprehensive policy and associated pro-cedures for handling differing professional opinions. within NRC. He also advised that NRC intended to provide ample opportunity for public and employee comment on this policy and. the related procedures.
- The NUREG-0500 report, "A Survey of Policies and Procedures Applicable to the Expression of Differing Professional Opinions," is the staff's first step in
- developing this policy and procedure. The report was
- distributed on July 20, 1978 to.all NRC employees and to 58 outside individuals and organizations with expertise and; interest in matters relating to dif-fering professional opinions. All recipients of the report were encouraged to submit comments, suggestions, and recommendations. A Federal Register Notice also requested public coments pertinent to the Commission's-development of agency-wide policy and procedures. As of October 18, 1978, NRC had distributed about 3,050 copies of the report. ,
Contact:
H. J. Watters, MPA 49-27721 31123dO2( -
1 Discussion of Written Comments Received i As of October 20, MPA had received 27 written. 3 responses, from which MPA has identified over j 120 distinct comments applicable to the report and to the -development of NRC's policy and procedures. Enclosure 2 contains copies of each of the 27 written responses, which include ten from NRC - employees,'three from former NRC executives, , four from academic institutions, three from j professional / scientific associations, two from ! special interest groups and ff ve from other ! respondents. A number of the more general coments are complimentary of NRC's efforts in this area. The American Association of University Professors . states that "as an introduction to procedures and ! overall criteria, the Survey is admirably comprehensive." I The American Association for the Advancement of Science l remarks that "we commend the NRC ... for the breadth I of the survey and for the decision to invite public coment at this time." In contrast, other general coments are somewhat critical of the report. Kenneth Chapman, former Director of NMSS, indicates that the document is deficient "in examining whether the surveyed policies and procedures produced meaningful results," i.e., it provides no analysis of expected benefits. Former Chairman William A. Anders states that he be-lieves the " discussion of policy and procedures in NUREG-0500 is weak in the areas of discouraging abuse from below and encouraging those above to act on their informed judgment." Peter L. Strauss, former NRC General Counsel, indicates that the report emphasizes employee responsibilities more than those of management.
% i I
l Specific comments on both the sumary report and the proposed NRC policy and procedures can be reldted to one or more of seven distinct issues. These issues and representative comments pertaining to each are paraphrased below.
- 1. The Need to Expand the Scope of NRC's Policies and Procedures Coments indicate that the scope of NRC's proposed policy and procedures for differing professional opinions should be expanded in one or more of the following ways:
(a) NRC policy and procedures should be applicable to all functions assigned to the NRC by the Atomic Energy Act, the Energy Reorganization Act, the National Environmental Protection Act, i and other mission-oriented legislation. NUREG-0500 limits the policy to issues relating to public health and safety. (b) NUREG-0500 limits applicability of the proposed policy and procedures to differing professional opinions in an employee's particular field of expertise. Several respondents disagree with this limitation, because: (1) NRC's employees-
--because of the agency's organizational structure and professional assignments--are versatile and knowledgeable in many areas, and (2) differing opinions on the management of a technical review can have as much or more public impact as opinicns on technical issues.
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l (c) NUREG-0500 limits the survey of policy and procedures to those-issues which arise in the "nonnal decision-making process." Several respondents suggest that the issues of greatest , importance to NRC may be those that do not arise i in the normal decision-making process. Wese ! include generic issues involving established regulatory practices or guidelines, issues con- ._ cerning the adequacy of entire regulatory approaches (as opposed to specific license applications), and other similar issues. (d) Proposed procedures should make adequate pro-vision for employees assigned to one NRC organization to express their differing pro-fessional opinions about the activities of another.
- 2. The Need to Formalize NRC Policy and Procedures Several respondents suggest that NRC formally codify the policy and procedures for differing professional opinions as soon as possible. Development of an NRC Manual Chapter is suggested.
- 3. Internal Resolution of Differences Some people indicate that NRC needs to provide an effective internal mechanism for resolving differences of professional opinion and for publicly documenting those that are not fully resolved. Internal resolution may be achieved by clearly specifying the responsi-bilties of professional NRC employees and supervisors at all levels in handling differing professional opinions.
NRC policy-and procedures, some respondents suggest, should assure that differing professional opinions are not merely tolerated but that they are encouraged, invited, and welcomed into the agency's decision-naking process. Management should not be deprived of any opinion with potential impact upon mission-oriented issues.
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- 4. Measures to Assure Protection Against Retaliation Many respondents believe NRC employees must be l assured protection against retaliation, even in !
its more subtle forms, for having expressed differing i professional views. To do this, some suggest ! that it is necessary to define what retaliation is (as well as what it is not) and to create a credible system of protection that is free from - t control by management. Rigid sanctions against j retaliatory actions are encouraged by some. A number of people agree that employees will not ! be willing to offer differing opinions unless NRC assures their protection against retaliation. I I
- 5. Protection Against Abuse Several commenters believe that NRC policy should !
provide more protection against abuse by those whose .real purpose is not to air differences of l opinion, but to further personal beliefs or self- . interest. Procedures for "ending discussion" of a j differing view are also requested. l l
- 6. The Need to Provide Effective Oversight Procedures j i
Some suggest that NRC use review groups, monitoring l techniques, and other procedures to assure adherence ! to policy and procedure and to monitor their effective- i ness. Peer review groups considering differing pro- l fessional opinions should be composed of professionals ! competent to judge the issues under consideration. ! Review panels composed of both NRC employees and non- i employees are also suggested.
- 7. Provision of Adequate Documentation l
A written record of differing professional opinions is i considered necessary by some respondents--not only to assure accountability and to expedite their resolution, but also to preserve those opinions for the public
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- 6-record. Some point out that the originating employee should be allowed discretion in placing a professional view before NRC management or into the public record.
Others believe that inclusion in the public record should be mandatory for some differing professional opinions, e.g., those that remain unresolved after they go beyond the level of the imediate supervisor of the originating . employee. Discussion of Plans to Develop Policy and Procedures ~ The Office of Management and Program Analysis will continue with development of NRC's proposed policy and procedures for differing professional opinions. This will include addressing the issues identified in the coments received on NUREG-0500. Our current schedule is to circulate a draft of proposed " NRC Policy and Procedures for Differing Frofessional Opinions" within NRC for coment by early 1979. After making any required modifications, a revised version will be submitted to the Comission. ' At that time we will seek approval to distribute the proposed policy and procedures for public comment. Current estimates indicate that this distribution can be made in the second quarter of 1979. , After receipt and evaluation of public cements, it is estimated that the necessary revisions to the proposed policy and procedures can be completed by mi d-1979. Following that, Commission approval of the final version of the "NRC Policy and Procedures for Differing Professional Opinions" could be obtained during the third quarter of 1979. The policy and procedures could then be incorporated into an NRC Manual Chapter by the fourth quarter of 1979. A milestone chart (Enclosure 1) indicates current estimated dates for completion of the actions des-cribed above. No1 W .
.an M. Haller, D1 rector F
Of Lice of Management and Program Analysis
Enclosures:
DISTRIBUTION: As Stated Commissioners Commission Staff Offices Exec, Dir. for Opers. Regional 0ffices
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7 s e 4 l l ENCLOSURE 1 l MILESTONE CHART FOR DEVELOPMENT OF NRC POLICY AND PROCEDURES ! ON DIFFERING PROFESSIONAL OPINIONS Milestones Late September Receive last written comments on NRC report 1978 covering policy and procedures for differing , professional opinions (NUREG-0500). l Late October Submit Commission Information paper. summarizing 1978 comments received and advising of the planned l development of proposed NRC policy and procedures. l Late December Complete and distribute draft proposed policy 1978 and procedures within NRC for comment. January or Feb- Receive comments on draft of proposed policy and ruary 1979 procedures. March 1979 Complete draft (revised per NRC comments). 1 April 1979 Submit Commission paper describing proposed policy and I procedures and requesting approval to circulate I for public comment. l l April or May. Distribute for comment and publish appropriate 1979 Federal Register Notice. June 1979 Receive comments in response to distribution. July or August Submit Commission paper incorporating revised policy 1979 and procedures and recommending final approval. August or Sep- Obtain Commission aoproval of policy, procedures, tember 1979 and implementation plans.
. 1 October 1979 Complete NRC Manual Chapter, incorporating details )
of approved NRC Policy and Procedures, and distri-bute. l l 1 l
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ENCLOSURE 2 COPIES OF WRITTEN RESPONSES CONCERNING NUREG-0500 l l Response Submitted Number By ~! 1, 2, 3, 7, 13 NRC Employees 15, 18, 21, ;22, 26 6, 10, 11 Former NRC Executives 4, 12, 14, 25 Academic Institutions 5, 19, 20 Professional and Scientific Associations 23, 24 Special Interest Groups 8, 9, 16, 17, 27 Others
. _ ,. . . . _ ~ _ _ _ _ _ .
, a iChairman Eendrio,
- This is to respond to your request for comments concerning Differing Professional Opinions. The paper co'ncerning this subject fails to consider the most important and perhaps the mos: o bvious factor. People are people.
If you have a differing view than another person, that person will re:alia:e. Can you imagine the typical bellowing bull, fist pounding on the ' table, four letter word vocabulary type manager, the bully, not retsliating arains* I the subordinate. who disshi rees with him? If you do, _ you are very naive. There are few =anagers who would accep t a differing view without retaliating. The retaliation could be very subtle. 'le have all seen the person who differs, being berated before his peers. Think of the nu=ber of people that jus don' t seem to advance because they have not alwi y.' agreed with the canagenent. - They get a reputation for "having problees and become pigeon-holed . Think of the number of reassisn=ents that have been cade because the people have dared to dissagree. How of ten have you known managers to surround thecselve with yes sen? A manager will do this because he feels threatened in his position. This -is the way of lif e in many organizations and is the way of life in many parts of the NRC. The one characteristic which =anagers want , 1 in subordinates over anything else-is cooperation. To differ is not inter-preted as cooperation and therefore, spel2s professional suicide for any professional. So therefore, forget a. bout how to handle differing professional opinions and sanctions agains t retaliation. Rather work on the building a professional organization where there is a basic respect for people and free exchange of ideas. Carefully consider for managers only those of =aturity in technical judgement, age and experience with people. 'doik on the building of a sperit withd.n;the staff that allows differing professional ooinions. Provide sose s tability to the s taf f.. The idea of selecting a director for a two year ter: makes for uncertainty. Af ter he has reorgsif.ed and a elected hi.s young favorites who generally have little experience, the staff is lef t to cope with a bad situation on his leaving. The irony of the situation is that the direc;or is usually co== ended for doing such a job on the s taff. Co ns id - , er zo:n seriously the Guidelines to Professional Espicynen for Sagineers and Scientists . Given a high class professional organization, you will not have problems on handling differing professional opinions or sanctions for
.re talla tion.
9
( p- <---ab ei - W+ e <M *44Me %-M' Q 8} \ g UMTED STATES NUCLEAR REGULATORY COMMISSION
;; a WASHINGTON, D. C. 20655
%pov . ,g AUG 4 1978 MEMORANDUM FOR: Dr. Joseph M. Hendrie, Chairman 1 FROM: L. G. Hulman, Chief Hydrology-Meteorology Branch Division of Site Safety and Environmental Analysis ;
Office of Nuclear Reactor Regulation ' THRU: Norman M. Haller, Director ~ Office'of Management and Program Analysis I
SUBJECT:
COMMENTS ON CHAIRMAN HENDRIE'S JULY 20,1978 MEMO l ON DIFFERING PROFESSIONAL OPINIONS, NUREG-0500 l 1 In response to the request for coments in the subject memo, I offer the following suggestions: ,
- a. Comission policy on differing professional opinions should clearly state the responsibilities of both individual employees and their lowest levels of management to seek all possible means to resolve issues in a timely manner. Statements on procedures to date have not, in ray opinion, fully articulated the responsibilities ,
of lower levels of management t6 aggressively seek out and attempt l to resolve differing opinions. Furthermore, where differing opinions l persist after attempted resolution, the responsibilities of lower ! management levels to encourage ernployees to seek higher level l resolution and to identify to higher levels independently of the l employee, persisting contrary views should ,be clearly stated. Further- ' more j individual employee responsibilities to actively discuss and seek resolution of public safety issues has not been fully articulated. In particular, the responsibility of individual employees to identify and attempt to resolve issues at the lowest management levels should be clearly articulated and encouraged at the Section, Branch and Assistant Director levels of management.
- b. Honest differences uf opinion are of ten viewed negatively, even in an open society. For example, any reflection by management that an "open door policy" is a means of employee " stroking" to minimi:e the likelihood of individuals from going public has a nyative l
L . . ._ _ _ _ . _ . . . . l Dr. Joseph M. Hendrie impact. Each level of management must be committed to the prompt resolution of differing opinions on public safety issues, and seemingly negative statements on "open door" program purposes or results must be avoided. -
- c. Retaliation cari take very subtle forms such as in assignments, training, travel and perfonnance appraisals. Built-in safeguards must be provided to prevent the more subtle forms of retaliation from being employed.
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- d. Much professional dissent may have its roots in procedural ,
dissatisfaction (see IBM " Speak Up" programs and the NIH Inter-Assembly Council). Consideration should be given to improving management-employee relations to minimize a climate that may foster dissent. Within this area are items such as appraisal criteria, promotion criteria, staff requirements, and suggestion programs. l l
- u. Hulman, f Hydrology-Meteorology Branch Division of Site Safety and Environmental Analysis Office of Nuclear Reactor Regulation l
l l i l l
- jd 4r UNITED STATES
,y "3 NUCLEAR REGULATORY COMMISSION g ,. .
j WASHINGTON, D.C 20555
'a ! %. ...* AUG e 578 MEMORANDUM FOR: Norm Haller, Director '
Office of Management and Program Analysis FROM: Charles N. Kelber, Assistant Director for Advanced Reactor Safety Research Division of Reactor Safety Research
SUBJECT:
COMMENTS ON NUREG-0500, "A SURVEY OF POLICIES AND PROCEDURES APPLICABLE TO THE EXPRESSION OF DIFFERING PROFESSIONAL OPINIONS." . My conneats on the subject document are: .
- 1. The State Department model appears to meet the NRC needs effectively: ,
- a. A written statement is made by senior management of the contending views and of the logic behind the decision taken.
Thus, the differing opinion is placed in the appropriate context. It may prevail, but whether it does or not, it is assured consideration and the judgements leading to decision are exposed to view,
- b. No field of activity is proscribed to any employee..
This is a serious defect of the current NRC system where a l member outside a given unit may not have his views considered l until matters reach the ACRS. The ACRS should be reserved for matters of highest import requiring ektensive in-depth review. By the time such matters reach the ACRS organizational positions are often rigid. Thus an NRC staff from another unit may be perceived as attacking an entire NRC organizational unit when actually he is in basic agreement on most issues. I Prior discussion using.the State Department formula would avoid such misleading perceptions. I
]
N. Haller M 8 1978 l
- 2. I wish to endorse the Review Group process as an effective way of. ,
examining. divergent views. I can cite several cases where such ! reviews effectively enhanced the value of work we were doing by , pointing out and remedying deficiences. ! f). Ch rles N. Kelber, Assistant Director for Advanced Reactor Safety Research Division of Reactor Safety Research i i i i 4
, :. .w f V:. = Cornell University b H -- PROGRAM ON SCIENCE, TECHNOLOGY AND SOCETY , 62 CLAAK HAU. TTHACA. NEW YORK 14415 , TELEPHONE 607/2% 4810 , 31 July 1978 Joseph M. Hendrie, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
Dear Dr. Hendrie,
l l Let me comment briefly on your Survey of Policies-Applic-able to the Expression of Differing Professional Opinion. l Disseminating such a document is an excellent idea. My l only criticism relates to the occasional vagueness in procedural recommendations. For example, on page 7, the parenthetical comment in the last part of Step 1 is critically important. If there are no means to encourage employees to express their dissenting views, I the entire process is obviated. i on page 8, the continued use of the word " channels" seems , to be inadequate without examples. Some of these appear later l in the document, but some mention here might be appropriate. i One channel that is generally neglected is the possibility of ! open discussion and debate'about critical and controversial ques ~- tions. As we all know, open discussion helps to clarify pro- l fessional opinions and allows an individual with a differing opinion to judge the import'ance of the issue. It could also serve _as a check on retaliatory, action by_d.ep_ersonalizine the procedur,e. _ I particularly like your recommendation on page 35. Sincerely, hw Dorothy Nelkin Professor dn/sh
7 THE INSTITUTE OF
- . E LECTRICAL AND ELEcTaosics E ncis s e ns,isc.
WA5HINGTON, D.C., OFFICE 2029 K Street N.W. Washington, D.C. 20006 (202) 785 0017 August 4, 1978 Joseph M. Hendrie Chairman 1 United States Nuclear l Regulatory Commission . Washington, D. C. 20555
Dear Mr. Hendrie:
1 Thank you for your recent correspondence, and a copy of the "For Con: ment - A Survey of Policies and Pro: dures Applicable to the Expression of Differing Professional Opinions". I highly commend you and your colleagues for a job well done as I have looked at it very carefully and am highly impressed. l I am taking the liberty of sending copies to a number of our members requesting an evaluation and resulting comments. I trust that this will be ; supportive and responsive to your request. Sincerely, s - O I 1 l v i Leo C Fanning i Pro am Director l l LCF:1pn l l l
)
i 11
i . h VOUGl4T CORPOAATICn Post Office Box 5907 . Callas, Texas 75222 4 August 1978 Mr. Jos eph M. Hendrie Chairman U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Director, Office of Management and Program Analysis -
Dear Chairman Hendrie:
The opportunity to comment on NUREG-0500 is appreciated. I remain interested in the activities of the NRC and in nuclear power as a viable solu-tion to our energy problems. With respect to the document itself, I found it generally thorough and l responsive to the objective. It seemed deficient, however, in examining whether the surveyed policies and procedures produced meaningful results either in decision reversals, reduced number of expressed differences, or i other. I do not, therefore, believe it would be of merit for the Commission to establish by regulation the policies and procedures described in the Ap-pendix without clarification as to the expected benefits. During my NRC appointment and subsequent, I have held the view that the EDO management concept is fundamentally incorrect and is a cause of many criticisms directed at NRC. The EDO, in my opinion, should be administrative not line. In an administrative capacity a natural tendency of the office would be to insure that dissenting str.ff views were raised to Commis sion level in appropriate Commission documents or forums. The EDO as a line function operates exactly in the reverse with inclinations to pres ent a single, coordinated staff position tc the Commission. No policy or structure will preclude occasional malcontent " whistle blowing" abuses. The i s oue for the Commis sion is how to insur e that meaningful dis sent is permitted to surface to a ction/ decision levels. A rede:ir.ition of the EDO is in my view a necessary and, perhaps, sufficient s olution. "Open door" may be a neces sary public posture but it is potentially vest Cv:crat; da- c. c: ca y
. ?,1r. Joseph M. Hendrie 2 4 August 1978
( wasteful of resources and generally nonproductive in employee relations. I believe minority opinions or dissent should be a normal way of life in a regulatory body, since all determinations are judgmental and require the broadest perspective and best possible data base. The responsibility for surfacing difering opinions should rest with an administrative, non-line EDO. Sinc erely,
/
c __ & ;; Kenneth R. Cha[j Tice President, Marketing
. Development and Analysis KRC/mp i
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' MEMORANDUM FOR: Chairman Joseph M. Hendrie c/o Norman M. Haller, Director Office. of Management and Program Analysis-1 FROM: Winnie Bengelsdorf ;
Personnel Management Specialist Management and Policy Branch Division of Organization and Personnel
SUBJECT:
DIFFERING PROFESSIONAL OPINIONS This refers to your July 20, 1978 memo requesting employee comment on the subject paper. The report stresses the need to avoid retaliatory action against employees who offer differing professional views. I agree this is an essential element in any agency policy on this subject. However, I-question the proposal (pages 9 and 13) for monetary awards or other special-recognition as a result of successful professional' dissent. I believe the official agency policy should be to maintain an absolutely neutral position on dissent, without retaliation or reward. Injecting the possibility of rewarding dissent may serve, per se, to encourage it. Further, the prospect of recognition may infuse a self-serving motivation and may exacerbate the problem of " Inappropriate use j of channels for expressing differing opinions" as outlined on' page 37. , 1 I think dissenting employees contributing to agency missions should be ) eligible for awards-only through normal channels, which include recogni-tion for special achievement and outstanding contributions. A / Winnie Bengelsd'orf / Personnel Man'agement Specialist j Management and Policy 3 ranch ; Division of Organization and Personnel j i e
UNITED STATES - [ r NUCLEAR REGULATORY COMMISSION
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a fi! ATOMIC SAFETY AND LICENSING BOARD PANEL
%, / WASHINGTON, D. C. 20556
**=** 2 August 1978 ~
Dr. Joseph M. Hendrie, Chairman - Director, Office of Management W B.d P,s,ggram A Analysis U.S. Nuclear Regulatory Commission k*ashington DC 20555 1 nG 73 4 : 09 - .
Dear Chairman Hendrie:
~
I have read the recently-circulated report entitled "A Survey and Procedures Applicable to the Expression of Differing Professional Opinions." First, I wish to command the efforts to' develop a policy for airing differing professional opinions within the staff. However, there is one aspect of the policy under development which is not clear to me in reading the report. I think any policy developed for the purpose of handling differing professional opinions should apply to NRC employees in the conduct of their professional functions under all applicable laws, regulations, acts, etc. Further, I presume that this is the intent of the policy under development. However, the use of the expression "public health and safety" throughout the report
- may convey the impression that only functions conducted under the Atomic Energy Act or Energy Reorganization Act are covered, as the expression more closely parallels the expressions used in those Acts.
Therefore, I recommend that consideration be given to clarifyini; that the policy i vould also cover professional differences of opinion which develop among the Staff during the conduct of its duties under the National Environmental Policy Act. , etc. This clarification might be handled as an early footnote or under Secticn C - Definitions , in the report. Sincerely yours, F t J. Remick cart-Ti::e Menber TJR/dj s
'et: James R. Yore, ASLBF
*?or example: the third paragraph of your covering nemo dated July 20, 1978; the first paragraph of the Introducticn on pg.1; first paragraph under Peer Review en pg. 4; paragraph No. 1 under Overall Criteria on pg. 10; etc.
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,@'.i EXECUTIVE OFFICE OF [HE PRESIDENT LIl$ i)f OFFICE OF MANAGEMENT AND BUDGET
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August 18, 1978 . Mr. Norman M. Haller Director Office of Management and Program Analysis U.S. Nuclear Regulatory Commission - Washington, D.C. 20555
Dear Mr. Haller:
This is in response to Chairman Hendrie's letter of July 20, 1978, requesting coments on the " Survey of Policies and Procedures Applicable to the Expression of Differing Professional Opinions." I have not reviewed the document in detail. My initial impression, however, is that much of the material -- particularly the examples of various procedural steps existing in other organizations -- will be useful in your efforts to develop a procedure for the ; handling of professional differences within NRC. i i Thank you for the opportunity to comment. Sincerely,
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, i Howard M. Messner l Assistant Director for Management Improvement and Evaluation P
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1 1 WI LLI A M A. A N D E R S 179 CURTNER AVENUE vcc es.rcu, August 25, 1978 . u so.s. c u re.. A .. .. A.o St.caAkMANAOC4 Director Office of Management and Program Analysis U. S. Nuclear Regulatory Commission Washington, D. C. 20555
Dear Sir:
I am responding to Chairman Eendrie's request for my comments concerning the Survey . of Policies and Procedures Applicable to the Expression of Differing Professional Opinions. Rather than commenting in detail on the many specific aspects of NUREG-0500, I will t estrict myself to some general observations which you might find useful. ; It is obviously essential for organitations making professional judgments about matters of public health and safety, like the NRC, to have appropriate procedures for airing and resolving differences in professional opinions. But it is also i=portant that such procedures be designed to avoid abuse by those whose real pur-pose is not to air legitimate differences of opinien but to further their political , or philosophical beliefs or their self-interest. My basic concern is that the procedures and discussions contained in 10EREG-0500 ! seem to be rather one-sided. Steps to voice differences are well spelled out, but too little is said concerning the. responsibilities of the dissenter and pres-sures against abuse; e.g., grandstanding, " Pearl Harbor"/CYA syndrome, pressure for promotion, or alleviation of personal grievances. All have been and will continue to be at work in the fish bow 1/ headline-grabbing environment around nuclear power and its regulation. Also, not enough attention is given to the broader view and span of responsibility of the "next level up" -- nanagement. In my experience, contenticus differences of opinion at the NRC were less matters of professienal judgment than ones of personal opinion involving facters well beyond the individual dissenter's area of conpetence or responsibility. Next-lavel-up managers should have a broader viev of most areas in contention.- It is their responsibility to mcke decisions witch balance the views of subordinates -- especially if there is disagree =ent. ;
~hese canagers should be encouraged to lj_ sten to all responsible viewpoints, but they should not be intimidated into inaction by lack of unanimity fro: below or l the presence of procedures like those described in NURIG-0500.
l I: su= mary, I believe that the discussion of policies and procedures in NU?lG-0500 j is weak in the areas of discouraging abuse from below and encouraging those above I te act on their informed judgment. ~here has to be more discipline applied at l
. Director Office of Management and Program Analysis Page 2 U. S. Nuclear Regulatory Commission August 25, 1978 all levels or the nuclear regulatory process will become further begged down over issues of form rather than addressing those of substance - i.e. , public health and safety and environmental acceptability. I find it somewhat regretable to have to codify what, in most professional fields, is taken as matter of course. But, since the nuclear regulation is so fraught with emotion, it is probably wis- to codify dissent, procedures - if for no other reason than to be able to reb.q the time top management has had to spend explaining and defending less formalized, yet nomally (in other environments) effective approaches.
Sincerely, e :=# W. A. Anders WAA:b
' UNITED STATES
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f' # *%,t NUCLEAR REGULATORY COMMISSION
,j , g WASHINGTON, D. C. 20555
'*f.6o /2 ic. _r e September 11, 1978 q.Q~4 /
l OFFICE OF THE CHAIRMAN l l Mr. William A. Anders Vice President and General Manager Nuclear Energy Products Division . General Electric Company 17S Curtner Avenue San Jose, California 95125
Dear Bill:
I have seen a copy of your answer to our Differing Professional Opinions Survey and want to thank you for taking the time to , reply. Your points are well taken. We do intend to develop the "other side" of the differing views question as we progress with the draft provisions of the policy. Hopefully, the final product will contain the necessary balance to allow mature people to reach reasonable conclusions in an open and professional atmos-phere. We will be back in touch with you when we have assimilated all i of the comments. Thanks again. Sincerely, 6-2
.M. Hendrie Chairman
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1" Columbia University in the City of New York New York, N. Y. 10027 -- - - scwoot on Law ass w..: nom so..r August 8, 1978 Director Office of Management and Program Analysis United States Nuclear Regulatory Commission Washington, D.C. 20555
Dear Sir:
This is in response to Chairman Hendrie's invitation of July 20, 1978 to comment on your. " Survey of Policies and Procedures Applicable to ~ the Expression of Dif'fering Professional Opinions." I'm not really in a position to comment on this as a survey, as I have no expertise that would help me to know whether it was a complete survey, touched the necessary criteria, or the like. But it also seems to have been intended in.some respects as a proposal for what the Nuclear Regulatory Commission might'say on the subject, and as to that I do have some observations, in substantial part the result of my experience as the Commission's first General Counsel. (1) While the survey early and aptly refers to the mutual obliga-tions of employer and employee, one searches in vain for an indication of what the employer's obligations.might be. The omission of any discussion of employer's obligations, at 1 cast explicit discussion specifically tied to the discussion of employee obligations, would be fatal to a document obviously and necessarily intended as a morale builder, as the foundation for a trusting and appropriate relationship between employer and employee. An employee will find it insulting to be told what his obligations are, i but that it is apparently not necessary to state any of the "large number of goals applicable primari.ly to the employer." Indeed, the tone of the document as a whole 1s stiff, directive, and even condescending, which makes it hard to believe it could achieve its ends. To start with e=ployee obligation and consistently emphasize employee obligation is to overlock the atmosphere of distrust e1 =anagement and claims of supervisory coercion which loom so large in the background of this document. (2) A more promising start could be obtained ware the document to begin with material such as appears now starting at page 10, in item 5, "Overall Criteria." What is required at the outset is a definition of the atmosphere of mutual trust and interaction which the orgarization requires for effective functioning. Following that it may be appropriate to outline truly mutual obligations, and then procedures for implementing those obligations. Such a document could contribute to healthy = orale; but, again, I am less sure that this one will.
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-(3) From the' employee's perspective, the most troublesome issue is always that of assuring himself against retaliation; as, for the employer, is the problem of dealing with misfits and malcontents, who may believe or i find it politic to make it appear that they are whistle blowers. (What function is served by the incomplete, unused, and somewhat misleading defini- i tion'of whistle blower on page 4 is beyond me.) You need to assure freedom from retaliation, but to do so you must define what retaliation is and is not, and' you must create a believable mechanism for making that determination, one not infected by control through management. For example, the procedures ;
could state a believable sanction for a member of agency management found ! to have engaged in retaliatory behavior: loss of job, loss of grade, or the j like. It could also state that certain behavior may not under any circumstanced be reflected in any manner in an employee's personnel records; providing ) information to the Congress; taking safety concerns over his immediate super- ! f visor's head, to the ACRS, or to a commissioner; and the like. And, while your overall criteria generally seem admirable to me, there should also be~ some discussion of the responsibility to end discussion at some point; a mutual. recognition that the employee never able to resolve differences ! with his supervisors may simply have put himself into a professional situatiou l for which he is not personally suited. (4) Little mention is made in the survey of the work of the Office o the Inspector and Auditor of the NRC. I assume that may be because the l Commission's experiment with using that office as an independent " ear" for ! its employees has not been regarded as a success. Nonetheless, in a survey, j one would expect to have some discussion. (5) In general, I find myself in agreement with the recommenda- . tions of Hogan and Hartson for protective procedures against retaliation; j I would only stress that informality and speed are values to be cultivated, and that in establishing any such procedures, the Commission should safe-guard against including devices too likely to lead to drawn-out proceedings and delay. The "public statement" device that firm has also recommended , equally seems an appropriate measure to me. i 1
-> (6) I emphatically disagree with the paragraph nu=bered IVD, on l pages 38-39, at least as it bears on technical issues which =ay have a rela-tionship to more than one reactor or proceeding. Employees of the Commission :
are not affecteil by the "ax parte communications bar," as such; rather, any disabilities .they suffer arise under the Commission's provision to assure ;
" separation of functicas." This is a similar, but importantly different, concept; in particular, it recogni:es that in an agency dealing with _ matters of general concern, the commissioners have the right to be epprised of any j natter of significance that arises and could affect the general rtin of their j work. If an i:ployee who happens to be working on the application for the l Ce?ote I facili y, which has been noted for hearing before a licensing board, i uncovers a technical problem of significance with its proposed design -- a problen shared with fif teen' other reactors then undergoing application re-view or hearing _before the Commission -- I see no legal reasen why that l issue cannot be brought immediately to the Ccm=ission as a technical issue concern. It arises in a generality ' of cases; resolution of the issue J
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can await final completion of the ' adjudicatory proceedings only at great i cost to all of _ those proceedings; and neither the Administrative Procedure Act nor (in my view); the Atomic Energy Act forecloses immediate attention to the matter on a generic basis. The issue begins to become dif ficult when one asks, what resolution is expected at the Commission level. Certain outcomes, such as a binding determination that the issue at question present no significant safety hazard, could be obtained only by following APA procedures - rulemaking under 5 553, or adjudication under 5 554. But other outcomes would not require such formality - a direction to undertake a special study of the issue; a reference of the question to the ACRS for its . advice; a direction to RES to . . undertake a series of experiments aimed at resolving the issue; an effort l' through use of the Office of Inspection and' Enforcement, or through informal surveys of reactor operators, to determine the prevalence of the problem or views respecting it. Undoubtedly, notice should be given to the participants in the Covote I proceeding (and _all others in which this issue might be raised) that the dispute had arisen, together with some suggestion as to how it was being resolved and, where appropriate, an invitation to participate in its resolution. But that is a different matter from saying that the resolu-tion must proca.ed through the ~ fonnal adjudicatory process. The latter conclusion, which is the one stated by the paragraph, is simply not the case. I hope that these views have been of service to you. Yours truly, f .; e~ s Peter L. Strauss Professor of Law PLS/ sjk cc: Joseph M. I!endrie Chairnan U.S. Nuclear' Regulatory . Coc=issien
I- cf t UNITED STATES j "6,[$ NUCLEAR REGULATORY COMMISSION g7 ,dI ,14**a,. Sr
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WASHINGTON, D. C. 20555 (V Q.e g, s.-
'e August 18, 1978 ,
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CHAIRMAN l l Mr. Peter L:. Strauss l School of Law l Columbia University in the City of New York New York, New York 10027
Dear Peter:
Thanks for your comments, formal and otherwise, on our embryo dissent policy efforts. So far we have done only the easy part, but at least it is under way. Whether it is possible to write these things in more straicht-forward and humane prose is a question. We spend years teaching staff to write 'that. bureaucratic stuff, after all. However, we might try. l Our best to you and Joanna. l 1 e ards, e Joseph M Hendrie l l 1 1
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$ m,,, GEORGE A WASHINGTON "E" UNIVERSITY V washington, D.C 200D l The National Law Center August 31, 1978 Director Office of Management and Program Analysis U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Dear Sir:
Dr. Hendrie has invited my comments on NUREG-0500 and related matters. I am pleased to offer my comments in light of my background of almost three decades of study and observation of the atomic energy scene and my membership during the past two years in the American As-sociation for the Advancement of Science's Committee er. Scientific Freedom and Responsibility. As a member of that Committee, I have had considerable opportunity to reflect upon the problem of " whistle-blowing" through my participation in the review of individual cases of scientists who have alleged infringement of their scientific freedom or their right to act with what they considered to be appropriate scientific responsibility. The question of dissent within a government agency is a difficult one. I strongly believe that scientists and other professionals have a responsibility, and should be encouraged, to go outside of channels, and if need be to go public, with complaints about decisions or actions that they regard as morally offensive or as seriously detrimental to the public well-being. On the other hand, and of at least equal importance, e=ployees have a duty of loyalty to their e=ployers. Moreover, par-ticular instances of unfounded whistle-blowing, however well-motivated, may reflect adversely on an employee's competence or judgment, and an e=ployer should be entitled to take such adverse reflections into account in its decisions on retention, promotion, or comcensation. To further complicate the problem, it is extremely easy for any misfit or incom-petent or disgruntled e=ployee to convert a petty personal or personnel grievance, or a personality clash, into an incident of allegedly prin-cipled whistie-bleving. Unfortunately, the problem of dissent is particularly diffi-cult for the Nuclear Regulatory Cor=ission. To begin with, the NRC is burdened with the heritage of secrecy and repression derived from the
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earlier years of the Atomic Energy Commission. In addition, as I have commented elsewhere and in other contexts, the NRC's present policies '
. require,-or at least invite, all NRC entities and personnel to " race the clock" in getting plants licensed. These policies involve at least the implicit assumption that every technical problem can be, and will be, satisfactorily resolved, and that every application will ultimately re-sult in issuance of a license. An inevitable consequence of this is the perception by NRC personnel that too many questions, too much boat-rocking, or too much negativism will not be well-received. Indeed, I have per-sonally witnessed incidents in which such actions have'in fact not been l well-received. l l
NUREG-0500 makes a useful contribution, but only as a starting point. Its emphasis is somewhat misdirected. The emphasis should not
' be on tolerating dissent and protecting dissenters.
The fact that an em-ployee . (presumably competent) feels impelled to oppose a decision that has been made - and to do so outside channels - in itself shows that there is something wrong with the decision-making process. The objective should be to ensure that differing points of view are not merely toler-ated and protected, but that they are invited, encouraged, and welcomed in' the decision-making process.- Moreover, although I have serious doubts as to the wisdom of ervosing internal processes of decision-making to public view, I do think any employee should have the right, entirely at his/her option, to have his/her differing views become a part of the public record. If, and only if, this kind of decision-making existed, one would expect every responsible employee to join ranks and to accept the decision once it is made. True', some employees might with good cause refuse to do so as a matter of conviction, conscience, or public re-sponsibility. In my view, however, orderly process requires such an individual, if he desires to contest the agency's decision, to resign his/ har position and fight from the outside; or to contest from within and face the consequences. please understand, however, that I believe this seeningly (but not necessarily in view of the fact that political sup-port for a legitimate whistle-blower may be more useful and important thac protective internal agency procedures) harsh approach should be
'followed~ only in certain kinds of decision-making (such as NRC's) and in such cases only where the employee has the kind of opportunities l described in the preceding paragraph.
I hope these comments will be helpful to the NRC. l Sincerely yours,
;) :
Gj. ; : u _. - Harold P. Green
?rofessor of Law E?G:dpc w .-.s-,w
o UNITED STATES p" NUCLEAR REGULATORY COMMISSION
! . )A i ., j WASHINGTON, D. C. 20666 6 [ SEP 121978 ,
MEMORANDUM FOR: Joseph M. Hendrie, Chaiman
- c/o the Director, Office of Management and Program Analysis, EDO FROM: Demetrios L. Basdekas Experimental Fast Reactor Safety Research Branch l
SUBJECT:
COMMENTS ON NUREG-0500, A SURVEY OF POLICIES AND PROCEDURES APPLICABLE TO THE EXPRESSION OF DIFFERING PROFESSIONAL OPINIONS This is in response to your invitation for coment on the subject NRC report extended by you in your memorandum of July 20, 1978. It is worthy to note that the responses to your invitation would be most interesting to analyze taking into account the results of the General Accounting Office study reported in Reference 1. As one of several NRC employees who found the need to openly disagree i with licensing decisions, practices, and policy implementation, or l'ack thereof, I cannot help but be concerned as to whether the mere fact that I am commenting on this matter critically would compound my misfortune in the agency; and whether the cont,emplated procedures, regardless of how earnestly pursued by some of those charged with their development, may be turned into a cosmetic enterprise. (See page 162, par. III of Reference 2. )_ A system of procedures, or a system of people cannot be any better than the people who run it. Certainly, this does not mean that it is always as good as the people who run it. It appears to me, therefore, that as part of the development of this system of procedures, a colateral serious effort should be made to assure that those entrusted with its management will earnestly and comoetently seek that it functions as the publicly proclaimed policies of the Commission would mandate. A program of quality assurance of professional and administrative personnel, similar to that used by some professional engineering certification organizations could be a plausible prospect deserving serious consideration. The obvious implication here is that the quality of personnel making licensing and related decisions is not being assured. With things as they stand today, it is likely that the contemplated system of procedures will be derailed when put-into effect, and turned into a cosmetic and potentially hamful document, Putting it succinctly, we are dealing witn a serious human element problem in the regulatory process directly effecting public health and safety and national security. I so indicated to you during our meeting shortly after you took office. Unless the Commission takes the initiative to do something abo.t it, we may see a further 4m._-..
J.'M. Hendrie SEP 121978 spilling over of it beyond the Commission's jurisdictional boundaries. Despite the adversity which the contemplated system of procedures for i the consideration of differing professional opinions will likely meet, I ; beli' eve it is a step in the right direction. I decided to take the risk of comenting because, in conjunction with pending legislation such as that introduced by Senator Leahy and others in Congress, and already l approved by the Senate as part of the Civil Service Reform Bill, the I contemplated procedures have a fighting chance to prove effective. The following are some specific coments on NUREG-0500 and suggestions for the contemplated procedures:
- 1. The Hogan and Hartson Report contains a number of good suggestions i reflecting reelistic concerns of prudent and concerned people, who became intimately familiar with NRC's problems of dealing l i
with differing professional opinions as a result of their role i in representing me in internal NRC grievance proceedings, I as well as of their many interviews with NRC employees.
- 2. The survey contained in NUREG-0500 appears to be a good coverage l of procedures similar to those contemplated by NRC. However it is deficient by not citing the GA0 report of April 27,1978(1) l and only superficially citing the NRC coverage in Semtor '
Leahy's Report (3). 1
- 3. The excerpts from " Guidelines to Professional Employment for l Engineers and Scientists", First Edition, January 1,1973, although generally correct are not exhaustive in spelling out the obligations of federal employees. The provisions of 10 CFR Part 0.735-55, Annex A should have been strongly emphasized in the survey. Also, a special emphasis should have been given to the dual responsibilities of attorneys. (Officers of the court, as well as NRC employees).
4 A peer review group should be comprised of professional people competent in the field of the matter under debate, and of equal or better qualifications than those of the originator of the differing view.
- 5. Expressed concerns should not be limited to the subject matter falling within the often narrow charter responsibility of the originator's organizational unit. The State Department's emphasis of this aspect is most prudent.
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l _ ._._ J. P.. Hendrie SEP 121978 l
- 6. The concept of the Ombudsman has alot to offer, provided that !
the assignment is given to a person of high and tested integrity with some technical background, and certainly outside the NRC.
- 7. _ Provisions should be included to preclude the use by managerial personnel and others of coercive measures against the' originator ,
of a differing opinion, including, most notably, the tactics of I using irrelevant facts or fiction to shift the focus from the issues atopinion. differing hand, and(See discredit and silencege originator the Leahy Report of the pp. 3., 25) This may be accomplished by simply focusing on the merits of the issue raised and those merits alone. - You indicate in your memorandum of July 20, 1978, that an account of any personal experiences might be appropriate. To this I can only say that my grievance, a matter of public record, recently denied by the Executive Director for Operations will be premature for me to discuss in specific terms at this time. However, I can say that any grievance system under which the agency officials can appoint themselves to review and decide l actions which they took or were parties to, then that grievance system leaves a lot to be desired. NRC has one just like that. My concents certainly reflect my personal experiences with expression of differing opinions. I hope that they will be helpful towards achieving a realistic view of the problem, however painfully, and hence its solution. I also hope that coments from people outside the Comission such as former NRC General Counsel Mr. Jerome Nelson will make a significant centribution to the task on hand. If I can be of further assistance, I will be glad to provide it. Ah% bd Demetrios L. Basdekas
, '1 Experimental Fast Reactor Safety Research Branch c:: C: r issioner Gilinsky-C:rissioner Kennedy
.C:n-issioner Bradford C:r issioner Ahearne !
Peter Raven-Hansen, Esq. I Hogan and. Hartson l l y- .-a, - e--y
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8 r J. M. Hendrie -4 SEP 12 .1978
References:
- 1. Report to the Congress; " Nuclear Powerplant Licensing: Need for Additional Improvements" General Accounting Office EMD-78-29, ,
April 27, 1978.
- 2. Hearing Record: " Nuclear Regulatory Comission's Safety and Licensing Procedures" Committee on Government Operations, i United States Senate, December 13, 1976. .
- 3. Sen. P. Leahy, "The Whistleblowers": Rep. for S. Com on l Governmental Affairs, 95th Congress, 2nd Session (1978). -
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gy ...c.- 00i. OF NUCLEAR ENGINEERING 'M . p ;. c.=- '~ g Atlanta, Georgia 30332 (404) 894-: August 31, 1978 , - Director 9T" ]h Office of Management and Program Analysis
- ' ~ 1T% U.S. Nuclear Regulatory Commission R;,d k*ashington, DC 20555 dc==dl f
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Dear Sir:
c=Q I have taken a quick look at NUp2G-0500 which was sent s*wS to me by Dr. Joseph M. Hendrie and am pleased that the NRC is IND preparing this document. I believe freedom of speech and the Md press, encouragement of research whether or not the results sup-port preconceived policies of the supporting agencies and en- ) ,
'a couragement of employees to express views that may differ from L[,S Q, wx those of the majority (or the company or agency) are vital parts 69 and requirements of a healthy democracy.
fd I can only wish this NRC policy had been stated so clearly EXc==> " at the birth of the NRC; if this had been done, perhaps we never P would have had the R.M. Fluegge incident (Nuclear News 11 No. 14, hp 29 Nov 1976) and perhaps the public would have learned sooner of 7g.] cases (such as with the Trojan reactor) where pressures in tha
,gg pressure vessel were excessive at low temperatures where the risk of brittle fracture is greatest. I have strongly supported nuclear
{. En" ' power for over 30 years but not at any cost and I give the Fluegge 1 9} case only as an example of where M' REG-0500 should have been in p force. k' hen I was director of the Health Physics Division of Oak b . ._,' Ridge National Laboratory (for 29 years), I saw many cases where t-- 2 such a NUREG would have served a useful purpose and increased confidence n of the public in nuclear energy programs. Nothing hurts the profes-b sional pride of a good scientist more than to have his ideas squelched
$@ because he is expected to be a good company nan or to go along with the establishment.
W I have only a f ew specific co=ments as follows: p.1- we have, "Dif f erences of professional opinion are Q limited to an employee's field of expertise." Here ycu provide all the loophole needed for an organiza-tion to completely ignore NCREG 0500. I'his means of
' c c) . depreciation of a scientist's views was used at ORNL ,g even though for exa=ple the objection might be as sound that the proposal did not conform to the second
( ) Law of Thermodynamics. L"L.1 e-
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- p. S- Bere you should emphasize that persons on peer review committees must not have a conflict of interest.
Here I might refer'to the peer committee of NIH for the Bross Tri-State Program. p 13, line 6, omit "otherwise benefits the agency." Here the important moral and scientific question is overlooked completely. The question raised by the employee with a point of view diff ering from that of the agency that employs him may turn out to " hurt the agency" from the point of view of management, of getting a larger budget, of enlarging its program. Maybe the best solu-tion would be for the agency to shrink its program. Except for a few observations such as the above, I wish to congratu- ~ q late you for having this document under preparation. ( Sincerely, l f' / n l
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/ SEP 7 1978 MEMORANDUM FOR: Chairman Hendrie c/o Norman Haller, Director Office of Management and Program Analysis FROM: Harold T. Peterson, Jr.
Sr. Environmental Health Physicist Office of Standards Development ,
SUBJECT:
DIFFERING PROFESSIONAL OPINION _ Enclosed are comments on NUREG-0500 "A Survey of Policies and Procedures Applicable to Expression of Differing Professional Opinions" in response i to the request of July 20, 1978. NUREG-500 represents an interesting l survey of existing procedures for handling dissent and should represent - a good foundation upon which to develop effective procedures. , My principal concern with NUREG-0500 is the coninent on page 1 that l
" differences of professional opinion are limited to an employee's i field (s) of expertise." By defining such expertise very narrowly, this I restriction could be used to effectively dismiss almost all dissent j without further inquiry. Hence, while a staff member is obviously in a l 1ess certain area outside his or her own expertise, I do not believe that
- a. " difference of professional opinion" need be confined to this area '
of expertise. I believe that a more formalized dissent policy is required to ensure effective resolution of such concerns. I have drafted the enclosed suggested set of procedures to accomplish this objective. A/
/
Harold T. Peterson, Jr. Sr. Environmental Health Physicist Office of Standards Development
Enclosures:
ecco C B gmments E on NUREG-0500 Suggested Dissent Procedures gnt? 73 O b-
- COMMENTS ON NUREG-0500 l
)
"A SURVEY OF POLICIES AND PROCEDURES APPLICABLE TO EXPRESSION OF DIFFERING PROFESSIONAL OPINIONS" General Coments:
- 1. Many of the case studies examined are not directly relevant to NRC's mission as they do not relate directly to independent regulation ,
agencies with responsibilities for protection of public health and safety (e.g. , The State Department or IBM). The FDA and FAA procedures are, { however, epplicable examples. l H
- 2. There was little effort to detennine the effectiveness of the example procedures from the view point of professional staff members. l Hence, the views presented are generally those of management. J I
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Soecific Comments ! page 1, second paragraph, lines 6-7. The limitation of differences of ; professional opinion to an employee's field (s) of expertise , appears to be overly restrictive. Such a limitation could be used effectively to squelch almost all differing professional ; opinions. , pages 2-3. This discussion stresses employee's obligations without giving equal presentation to the suggested obligations of employers. pages 4-5. The definition of " peer review" seems more like a procedure. ;
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pages 6 and 10. The terTn " follow-up regarding retaliation" is poor and not likely to induce free presentation of conflicting professional viewpoints. Suggest " prevention of retaliatory actions". j page 7. The second sentence of Step 1 is unclear. This presumes that l management has created an atmosphere for open presentation of ! conflicting professional viewpoints and procedural mechanisms for handling'such viewpoints. pages 9 (Step 4-last line) and page 13 (#7). My personal opinion is that an employee should not receive an award merely for doing his , job. The creation of an effective set of policies and procedures which afford each individual a right to express his/hr.r concerns should be sufficient. Hence, I am against awards for " dissent" ; as such. Existing award procedures would appear to be adequate , for especially meritorious contributions. I 4
. . 1
' 5 PROCEDURES TO ENSURE ADEQUATE CONSIDERATION OF DIFFERING STAFF
. 1 VIEWPOINTS ON HEALTH, SAFETY, AND ENVIRONMENTAL ISSUES l 1
l The purposes of this manual chapter are: (1) to affirm the NRC policy regarding transmission of individual staff viewpoints to NRC decision-making bodies such as the Commission, Atomic Safety and Licensing Boards, and the ) i Regulatory Requirements.. Review Committee (RRRC); (2) to establish procedures ! l to ensure that all relevant viewpoints are considered in NRC decision- : making, and (3) to clarify the' responsiblity of staff members and NRC j l management for assuring that there is a free flow of information to the l l appropriate decision-making level .
- I. COMMISSION POLICY Since its formation, the NRC has operated under a Commission policy of openne:. nd full opportunity for the free discussion of issues. This policy .1as been strongly emphasized by each Chairman and the Executive Director for Operations. Statements on this policy by Chairmen Anders, Rowden, and Hendrie and Mr. Gos. sick are attached. The prinicipal points of the Commission policy are: -
- 1. It is the right and the duty of a member of NRC management. and staff to make known promptly to appropriate management levels any situation' which he or she considers to be unacce , table from the standpoint of pro-tection of the public.
- 1 2.' It is the responsibility of NRC management to assure that all of its )
employees are afforded an opportunity to make their views known to appro-1 priate management levels.
- 3. Every employeesha' the right to write ,directly to or talk with any level of NRC management, including the Commissioners and the Office of Inspector and Auditor, in order to bring their views to the attention of whatever NRC management level is necessary to assure adequate consideration 4
("Open-doorpolicy"). j
- 4. The staff should be able, and is expected, to make Known their best A l
professional judgment, whether or not it corresponds with the views of other l 1 staff members or management, with full assurance that there will not be any ; recrimination or retribution for doing so. , ( II. POLICY FOR IMPLEMENTATION i I
'l. All members of NRC management and staff will comply with the spirit and letter of the Commission policy stated before.
e 2 First-line Supervisors. and other managers will ensure that subordinates views are transmitted promptly to the appropriate management level for resolution, are transmitted to hearing boards and other decision-making bodies as appropriate, and are incorporated in official and public records. i 2 3
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- 3. Supervisors and managers will encourage and assure full airing of issues and objective consideration of conflicting views.
- 4. Management will keep the originator informed of the status and efforts to resolve issaes raised by that staff member.
- 5. Employees will be provided with reasonable time and resources neces-sary to document their concerns. '
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- 6. Supervisors and other management officials who attempt to suppress the transmission of staff views by coercion, reprisal, or retaliation may be subject to disciplinary action.
- 7. All involuntary transfers of personnel within NRC shall be documented i
in writing and shall provide a detailed explanation of why the transfer l is in the best interest of both the Agency and the individual (s) transferred. A copy of this explanation shall be provided to each affected individual prior to initiation of the personnel action. In cases where management is aware that the individual has originated a " conflicting professional view point" within 3 years prior to the involuntary transfer it will be necessary to document the reasons showing why the proposed transfer is not io retaliation for' presenting a " conflicting professional opinion."
- 8. Each task leader, project manager, originator, manager or supervisor,
.has the right and should have the opportunity to concur or noncur on the 3
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final, as-dispatched, version of a proposed regulation, staff paper, or
. correspondence concerning any of the issues covered by these procedures.
Concurrence is an indication that an individual has no significant dis-agreement with the substantive issues in the document. If there is a significant disagreement the individual should nonconcur (by writing "nonconcur" and initialing in the appropriate signature block) and append a written statement of the' reasons for the non-concurrence. This state-ment, exactly as written, will.be forwarded as an enclosure to the document . to all internal NRC recipients and files.
- 9. Any NRC employee has the right to communicate directly with the Chair-man of the Advisory Committee on Reactor Safeguards or any member 'of the ACRS in order to identify a potential safety concern which may affect
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licensed operators, workers, et members of the general public.
. If desired l such communications may be anonymous. Any NRC staff member also'has the right to appear before the ACRS or to request such an appearance. However, in such cases the employee will be appearing as a member of the general public rather than as a representative of the Ccmmission and, when, will clearly state that such appearance has not been sanctioned by NRC management.
III. PROCEDURES Coverace: These procedures apply to raising technical issues concerned with safety, protection of public health, and protection of the environment, safe-guarding of nuclear materials and facilities, and ensuring consistency with 4
n . - . . . . . n'
. 1 with environmental protection statutes (such as NEPA) and anti-trust laws.
These procedures do not apply to administrative matters such as performance dvaluation' appeals (Manual Chapter 4157), failure to be certified for step - increases (Manual Chapter 4130C), failure to be selected for promotion (Manual Chapter 4157), complaints of discrimination (Manual Chapter 4158), or adverse personnel actions (Manual Chapters 4158 and 4171), except when such actions may haveresulted in retaliation for expressing a " differing professional opinion." A. Procedures for Identifying Issues
- 1. A concern which a member of the staff has regarding the protection of health and safety or the environment should initially be discussed with his or her 'immediate supervisor. If this does not appear appropriate to the individual, discussion with another level of supervision is recomended.
This does not restrict the right of any staff member to comrhunicate to whatever level of NRC management they deem appropriate ("open door" policy) or to document their concerns.
- 2. The supervisor or manager should assist the staff member in identify-ing seecific areas of concern and in defining proposed courses of action to further investigate or to resolve the concern. Contact with other NRC cffices may be helpful in providing information en any ongoing projects that may provide additional .information on or resciution of the concern.
- 3. If the individual does'not believe that the issue is being adequately investigated or resolved, either within his/her own office or another Office, 5
. . 7. . . .
e 4 he/she should document these concerns as specifically as possible and pro-vide any information on related on-going programs and why they might not I resolve the issue of concern. The individual should, where poisible, also identify suggested procedures or methods to resolve the issue cr to provide further information.
- 4. Upon receipt of such written documentation from a , staff member, the supervisor or manager may append his or her views and concurrence or non- _
concurrence with the staff members view or propsed methods of resolution. Tne supervisor or manager should also document any discussions or actions undertaken to resolve the concerns. The supervisor or manager may not Withdraw, alter, or modify the original documentation or delay its trans- ) mission for more than 5 working days.without written permission from the originator. If this time period is not sufficient to adequately document the supervisor's actions or ongoing efforts for resolving the issue, the initial document should be transmitted to the next level of management j together with a note that such additional documentation is being prepared. A copy of the supervisor's comments shall be provided to the originator (s) and should, when possible, be discussed.
- 5. The supervisor should determine which NRC offices (in addition to any icentified by the staff member) should be informed of the concern.and whether the concern should be transmitted to the RRRC, the ACES, Public Cacument Rcom, or hearing board. Each Office has developed procedures for transmitting such concerns to hearing boards.
6
' 3. The package consisting of the Form XXYY and the " differing professional opinion" shall be treated as controlled correspondence and logged in appro-priate correspondence records.
- 4. Each successive level of management receiving the package shall record the date, and time of receipt and complete the appropriate portion of Fom XXYY. After all actions are completed, the date and time of dispatch shall be recorded and a copy of the completed Form XXYY and copies of any materials added to the package shall be sent to the oiiginator. A separate copy of the completed form should be retained by the sender.
- 5. Th'e official (s) having programmai;ic responsibility for the technical i l
area (s) addressed in the " differing professional opinion" will prepare a preliminary reply 'to the originator. Th'is reply will contain:
- a. Acknowledgement of receipt of the " differing professional opinion;"
- b. A description of the approach and approximate schedule for resolving each of the specific issues raised in the opinion;
- c. A-description of past or on-going research or technical analyses that may be related to these issues; and
- d. A preliminary assessment of the potential significance of these issues.
S
s If, n' the opinion of the official (s) having programmatic for these areas, the issues have been resolved, or are not of sufficient significance to warrant further investigation, this reply v:ill so note these conclusions.
- 6. a. the initiator may accept this response. In this case, the matter will be considered closed, or
- b. The initiator may rebut the reply, stating his/her opinions on the adequacy of the proposed actions or previous analyses and why they I
might not adequately resolve the issues initially raised. j
- c. The initiator may request the appointment of a peer group review board consisting of senior professional staff (GS-13 to GS-15) l l
having expertise in the area (s) addressed in the " differing professional l l opinion." This peer. group shall be appointed by the responsible. program official (s) based upon experience as described on NRC Form ERDA-702. This peer group review board shall review the merits of the issues raised in the " differing professional opinion" and any past or on-going studies or analyses related to these issues and prepare a report on their findings. a copy of this report shall be provided concurrently to the. responsible program official and the initiator of a " differing professional opinion."
- d. The initiator or the responsible program ..ficial may appeal the peer group review board's findings to the Commission stating the inadequacies of the response. A copy of this appeal shall be concurrently provided to 9
, ~
a ,. , the initiator or to t e hprogram official (s) signing the response, together A with notification.of inte'ntion to appeal. This appeal together will be considered by the Commission.. The Commission may issue a decision, hold an open' hearing, or remand the issue to staff for further investigation.
- 7. In the event that f.urther investigation of the issues raised is required, or if additional studies'are initiated, or if there are on-going studies related to the issues raised, the initiator shall receive all' progress ...
reports and final reports on't'hese studies as they are issued. Upon comple-tion of all relevant studies, the initiator may take any of the actions described.in item 6 above. . C. Procedures'for Re'portin,g and Handling Charges of Retaliation for Presenting Differing Professional Viewpoints , l
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- 1. An employee that has reason to believe that he or she is being subjected to retaliation for expressing a substantive difference of pro-fessional opinion should file a written complaint to the Director, Office of Inspector and Auditor.
- 2. The complaint should state'specifically:
- a. The nature of the' retaliatory action (see item 3 below);
- b. The name of. the ccmplainant;.
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- c. .The name and title of the official involved; l
- d. The names and titles of any witnesses to the alleged action; e.. The approximate time, date, and place that the action took place, and
- f. A description of the " difference of professional opinion," and the date and manner in which this dissenting opinion was initially raised,' a description of any followup actions taken by the supervisor or managers, and the current status of the dissenting opinion or its resolution.
l
- 3. Retaliatory actions covered by these procedures include-Suporession of a dissenting opinion by:
a. (1) failure to promptly act on and/or transmit the opinion to the appropriate NRC officials or higher management; (2) a direct order not to document or transmit to higher manage-ment a dissenting opinion; (3) destruction of documentation accompanying a differing professional opinion; 11
. 3' .
(4) willful deletion of a dissenting opinion from a report or paper to the Commission or a report to higher management-covering the same topic; and (5) deliberately withholding a dissenting professional opinion that, under ex'isting NRC and/or written office procedures, should have l been transmitted bo th'e Commission, the Director of the Office.of Inspection and Auditing, the Advis6ry Committee on Reactor Safeguards, an Atomic Safety Licensing or Appeal Board, the Congress of the United States, or to any other individual 'in fulfillment of a valid request under the Freedom of Information Act.
. .I l
- b. coercion of an individual not to proceed further with a dissenting opinion. Coercion includes actual or implied threats of:
(1) physical violence, unsatisfactory performance rating, adverse personnel actions, or other disciplinary measures; (2)- blocking future promotions or voluntary transfer; 1 (3) increased workloads beyond normal job requirements; (4) assignment of demeaning duties not within the written job description or not customarily performed by individuals at a similar grade level and similar job description; and 12
. c .. (5) involuntary transfer or reassignments.
- c. retaliation in' response to an individual proceeding with dissent '
procedures by: (1) actual acts of physical violence against an employee or his/her property; (2) issuance of an unsatisfatory performance evaluation either as part of a routine evaluation or in connection with an application for promotion or transfer. (NOTE: see section 4 below.) (3) assignment of a workloa'd for in excess of previous norms and beyond that concurrently being carried by other individuals of similar grades within the same organization or unit; . (4) assignment of demeaning duties not within the written job description or not usually performed by individuals at a similar grade level and similar job category; and (5) initiation of an involuntary transfer or reassignment (NOTE: section 4 below). 4.. In order to ensure against the dissent procedures being used to block or intimidate a supervisor from initiating, with cause, a valid unsatisfactory 13
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perfonnance evaluation or other adverse personnel action or disciplinary i action, the Inspector and Auditor will examine the time sequence of the dissenting opinion and the occurrence of the supposed retaliatory action and the documentation $f the supervisor's reasons for these actions. l i Empicyees who are found to have used the dissent procedures improperly for such purpose will be subject to additional disciplinary actiens.
- 5. Upon receipt of a complaint of possible retaliation, the Inspector and Auditor will review the charges and documentation to determine I whether:
- a. there is sufficient evidence that a retaliatory action (as defined in Section 3 above) might have resulted form the presentation of 1 l
a " differing professional viewpoint;"
- b. additional information or documentation is required from the originator; and/or
- c. a formal investigation will be initiated.
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- 6. Initial decision of the Inspector and Auditor shall be promptly transmitted in writing to the originctor of the complaint. This initial decision will either:
14
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- a. inform the originator that she chart.,es are not supported with s,ufficient evidence to warrant an investigation; and/or b.. request additional information; or
- c. inform the originator that the areas covered in the complaint do not fal's. within th'ese. procedures; or
- d. inform the orginator that there is sufficient grounds to warrant further investigation.
NOTE: All communications will be transmitted in a plain sealed envelope marked "To Be Opened By Addressee Only."
- 7. The supervisor named in .the complaint will be notified and provided a copy of the complaint only H the Inspector and Auditor decides that a formal investigation is warranted. If a decision that no investigation is warranted is made, the only records of the complaint will be maintained by the Office of Inspector and . Auditor and will not be further transmitted.
No record of the complaint will be placed in either the originator's or supervisors personnel records. 15
- 8. If the Inspector and Auditor determines that there is sufficient reason to further investigate the compliant, a copy of the complaint will be provided to the supervisor named in Section 2b of the complaint together with a request for a written explanation of the supervisor's action. No other management !
official will be informed of the investigation at this time. The supervisor will be allotted a minimum period of 14 days following receipt to respond to I this request. I I As in the case of the originator of a complaint, all correspondence to a supervisor accused of retaliatory actions will be in a plain sealed addressed envelope marked: "To Be Opened' By Addressee Only."
'1 1
- 9. Upon review of the supervisor's explanations and any further investiga-tion such as interviews with either or both parties or any witnesses, the Director, Office of Inspector and Auditor will issue an interim finding.
This finding will be communicated to both parties and to all higher manage-ment officials within the office (s) of the complainant and supervisors. This finding shall include:
- a. a copy of the original complaint and supporting documentation,
- b. a copy of the supervisor's written explanation and any supporting documentation, 16
., ,; ~ . _ . . _ , . _ .__. ___ _ . .___ _._ _ . _ _. _ 1
- c. a summary of other evidence obtained during the course'of the investigation,
- d. the' interim finding based on the record that:
4 e (1) the supervisor's actions appears to be based on cause and were not in retaliation for a dissenting professional opinion or opinions, and/or (2) the employee raised an improper complaint in an attempt to reverse this action and should be subject to additional disciplinary actions for misuse of these procedures; or , l (3) the actions of the supervisor appear to be in retaliation j for expression of a differing professional opinion" and the supervisor should be subject to disciplinary action; or (.4 ) there is insufficient docune.acd evidence upon which to base a definite finding. 1C, Within 30 days after receipt of the interim findings, both parties m'.st ei-her file a written consent with the interm finding or either party maj e:aest a formal hearing. If a formal hearing is requested, any 17
disciplinary actions recommended in the interim finding will not be instituted until the hearing board has issued its findings.
- 11. The minimum penalty for willfully initiating a retaliatory action against an employee for. expressing a " differing professional opinion" is a formal reprimand and loss of one week's pay. 'More' serious penalities may be assessed particularly if the employee's dissent revealed negligency, improper actions,
' or incompetence on the part of the supervisor.
- 12. Where it has been determined that an action was in retaliation for expressing a " difference of professional opinion,"the retaliatory action will be reversed, if this is desired by the employee, and where such rever-sal is possible.
- I D. Dissent Through. Channels External to NRC ,
Definition:. An external channel is a channel outside of the formal organiza-tional structure of NRC. External channels would include the U.S. Congress or public media such as television, radio, and newspaper. Appearance before or informing the Advisory Committee on Reactor Safeguards, Atomic Safety and Licensing Boards, Atomic Safety and Licensing Appeal Boa.rds, or other hearing boards does not constitute use of external channels. Appearance before Congress in ccnnection with official duties does not fall within the definition. 18
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Policy: The use of external channels is a matter for individual decision.
-Ordinarily, the use of external channels should be considered only after internal channels have been used and the final NRC resolution of the issues is till not acceptable to the individual. Use of external- channels prior to the use of internal NRC channels may be grounds for disciplinary action.
.Use of external channels after using internal channels will not ordinarily be grounds for discipEinary action.
Procedures: An individual using external channels of dissent shall:
- 1. - Clearly indieste that he/she is presenting his/her own personal view-point and is - ;nting the Commission or presenting a official NRC viewpoint. *
- 2. Indicate whether NRC internal dissent' channels were emhloyed and, if so, why he/she believes that the final official resolution is unsatisfactory.
- 3. Be solely responsible for ~any resulting legal actions arising from the expression. The NRC will not provide legal counsel. However, an employee may receive pre-appearance advice and counsel from the Office of the General Counsel as to the penalities and consequences associated with such appear-ances (such as grounds for being in contempt of Congress and/or a general discussionoflibellaw).
19
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- Telephone: (202) 737 8700 l J? P, Omem( A SWILOthG iN A(P(V Pbgagg ag Fg e 70 12a/NCR/(37-38)NRC September 5, 1978 Mr. Martin Daugherty, Chief ,
Labor Management & Er:ployee Relations Branch . Division of Organization & Personnel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 i
Dear Mr. Daugherty:
This is in reply tc your letter of August 3, 1978 wherein ! you forwarded a draft proposal concerning a Survey of Policies l and Procedures Applicable to Expression of Differing Professional Opinions for our review. We have completed review of the draf t and have no comments or recommendations to submit. Please forward to us a copy of your final regulation. Sincerely, n hDAM Josep D. Gleascn Executive Vice President
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(202) 331-4699 September 11, 1978 Director ~ Office of Management and Program Analysis United States Nuclear Regulatory Commission Washington, D.C. 20555 Re: Comments on NUREG-0500
Dear Sir:
At the request of Chairman Hendrie, we are submitting this letter of comments on NUREG-0500 as cooperating attorneys for and on behalf of The American Civil Liberties Union Fund for the National Capital Area (" ACLU"). We had previously submitted a memorandum on December 27, 1977, entitled, Freedom of Pro-fessional Judoment Within the Nuclear Regulatory Commission: Proposed Procedures, ( " Hogan & Hartson Memorandum" ) which, we are
. pleased to note, was one of the sources consulted and cited in NUREG-0500. Our previous memoraridum..is . incorporated herein .bv r e f e re n_c e , and the~follo'sinfcoinments are in,, addition to the '
analysis contained therein. Initially, we wish to commend the Of fice of Management and Program Analysis for the effort which clearly went into your
" Survey of Pol'icies' and Procedures Applicable to the Expression of Diftering Professional opinions." We view it as a healthy sign that the NRC recognizes that, by its own criteria, its present procedures are plainly inadecuate. NUREG-0500 at 53 (note; table entries admitting "no prevision specified"). Taking this initial survey as an indicator, we believe .that the NRC may be on the road ' to the development and implementation of a pioneering set of detailed procedures for "the expression of dif f ering professional opinions" within the agency--one which could serve as a model for other federal agencies and commissions which employ scientific and engineering professionals, z.
eGEmpe n =mi +-#E76 g n epi = l However, the NRC will stay on that road only if: (1) 'it follows through with written, detailed and ef fective procedures, published in the NRC personnel manual, and (2) it does so expeditiously. The issue of handling " differences of profes-sional opinion" is too important to be lef t on the back burner. : Nor will another of the NRC's periodic generalized " dissent" l memoranda to employees do the job, as Chairman Hendrie has recognized. Memorandum of J. Hendrie to all NRC Employees j (July 20, 1978). The ACLU and other observers will closely l follow the future' developments within the NMC, and we hope and anticipate that we will have another opportunity to comment constructively on a draf t NRC Manual chapter before the end of the year. In this connection, we wish to emphasize that any procedures for the expression of differing professional opinions . which the NRC may develop are a necessary supplement to the l whistle-blowing protections contained in this Administration's l proposed Civil Service Commission ("CSC") reforms. See S. 2640, l 95th Cong., 2d Sess. (1978); Sen. Comm. un Governmental Affairs, I Civil Service Reform Act of 1978, S. Rep. No. 95-969, 95th Cong., l 2d Sess. (1978); H. Comm. on Government Operations, Reorgani- I ration Plan No. 2 of 1978, H. Rep. No. 95-1396, 95th Cong., 2d i Sess. (1978). The CSC reforms may provide one set of procedures l for the protection of federal employee " whistle-blowers," but ' their enactment is uncertain in this session of Congress, and, in any event, " whistle-blowers" only form.a small segment of the population of NRC employees who would be benefited by NRC procedures for the expression of dif fering professional opinions. Moreover, a healthy federal agency should offer its employees an internal mechanism for resolving differences of professional epinion instead of forcing them to take possibly esoteric and technical problems outside the agency to a "special prosecutor" cr his staff, as the proposed CSC reform bill envisions. We s trongly believe that such outside intervention should be a back-up remedy of last resort, and that every federal agency shculd institutionalize companion policies and procedures in:ernally for the expression of differing professional opinions by agency. employees. , With those initial background observations,Tae have the , following specific comments on S'JREG-0500. I i
'e *V .
- 1. Scope NUREG-0500 is limited by definition to policies and procedures lwhich would apply to " issues'that relate to public health and safety - and which arise in the normal decision making process," and, more specifically, those " differences of pro-f essional opinion '(that) are-limited to an employee's field (s) of expertise." .NUREG-0500 at 1. We _ believe that this definition of the scope of any proposed policies and procedures is unduly
' narrow and could -serve as a rationale for ex'cluding valuable differences' of professional opinion from the operation of any
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- policies or ' procedures. the NRC may adopt.
While we can readily understand the desire to exclude f rom the policies and procedures " personnel-type and other basically unrelated issues" (NUREG-0500 at 1) , the problem is to define the exclusion so that it does not swallow the rule. Differences of professional opinion on technical matters clearly f all within the scope of the problem as defined by NUREG-0500. However, differing opinions on the management of technical review can have as much " potential impact on public health or safety" . (NUREG-0500_ at 4 ) as opinions on narrower technical issues in the I l review itself, and should therefore also be .within the scope of any policies or procedures which NRC may adopt in this area. This may be' implicit in NUREG-0500 's definition of " scope," but it should be made clear in any policies or procedures which are . eventually adopted. In addition, there is no justification for limiting such policies or procedures to only those issues "which arise in the normal decision making process." NUREG-0500 at 1. It may , be precisely those issues which do not arise in the normal decision making process which are of greatest importance, includ-ing generic issues. involving established regulatory practices or guidelines, issues of the propriety of ~ past decisions in light of newly: discovered information, or issues going to the adecuacy of entire regulatory approaches rather than to individual power plant license or-permit applications. */
*/ See, e.'c., memorandum R.G. Smith to L.V. Gossick (October 18, 1977); memorandum from E.G.. Case to NRC staff (October 25, 1977); Hogan & Hartson Memorandum at 8.
, _ - ~ . . . . . _ . _ . . . . _ . - __
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l Finally, as noted in our prior memorandum, we think it l makes little sense to limit the scope of differences of ' professional opinions "to an employee's fielatc) of expertise," when the NRC's organizational structure and emplcyee assignments are themselves much more fluid. See, e.g., Hogan & Hartson Memorandum at 7. It is not uncommon for nuclear e 4ineers employed' by the NRC to be assigned to areas which are outside their specific field of expertise, or for a division's or branch's mission to extend substantially beyond or fall short of the assigned employees' expertise. It follo'ws that the employee may develop valuable technical opinions in the course of his 'l assigned work which are not technically coincident with his field l of expertise, but which.are still entitled to the protections of l whatever policies and procedures the NRC adopts in this area. I There is no indication in NUREG-0500 that the current use of the "open door" policy is excessive, and there is no l reason to think that a more liberal definition of the scope of l future policies and procedures will unduly burden agency . management. But if it does, there will be time enough to revise the definition of protected " differences of professional opinions" accordingly. 1 l
- 2. Management Resoonse We wholeheartedly endorse the suggestion that the originator of a differing opinion which becomes the prevailing view or otherwise contributes significantly to the agency's I mission "should be considered for public recognition and possibly I a monetary award." NU REG-0 5 0 0 a t 9 . NUREG-0500 has already taken a step to legitimize and encourage the expression of l dif fering professional opinions by abandoning the unduly narrow terminology of " dissent," but more concrete steps are necessary to assure employees that the expression of differing professional cpinions im in fact, welcomed and desired by management and the C ommis siv. , See temptroller General, Nuclear Pcwerplant Licensing: Need for Additional Improvements at 29 (April 27,
_s7i) (5% of tecnnical reviewers believe enat management dis:curages the expression of dif fering professional opinions and _i remain uncertain whether management really wishes such cpiniens voiced). Our own experience with URC empicyees shcws tna: they value even non-financial recognition of their achievements and contributions and desire the inclusion of such recognition in their personnel records.
The NRC's development and implementation of some internal award system for its professionals would also usefully parallel the system of " incentive awards and ranks" for the . Senior Executive Service proposed in CSC reform legislation. See 1 S. 2640, 95th Cong., 2d Sess. SS 406-07, 501 (1978). We have previously emphasized that a prompt and careful explanation by management of why a particular differing profes-sional opinion has been rejected can obviate any need for futher
" appeals" or the like in the majority of cas'es and leave a clear public record of - the basis for agency decision-making. Hogan &
Hartson Memorandum at 16, 25-26. Comcare Region III Manual Ch. 0985 (December 9, 1976). Whatever additional burden this places upon management is well worth the benefit to both NRC employees and the.public of having written explanations for management actions. Furthermore, the benefit of such written explanations for management action is not limited to the area of differing professional opinions. Personnel actions directed at employees who have expressed dif fering professional opinions sr. auld be similarly explained in writing to the employee in advance of the actions. Hogan & Hartson Memorandum at 25. In our experience with NRC employees, some of what eventually emerged as
" dissent" began with unexplained or inadequately explained management personnel actions which demoralized and intimidated employees who were left in the dark about management intentions. ,
Just as the articulation of management reasons for professional I decisions can satisfy the professional employee who has expressed a different initial opinion, management explanations of personnel actions can have the same salutory ef f ect in discouraging subsequent appeals, bitterness and misunderstanding by empicyees. l
- 3. Sanctions NUREG-0500 suggests that " rigid sanctions against retaliatery actions" be established and enforced. NUREG-0500
t e
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a t 10-11. Such. sanctions should be spelled out in any written NRC policies and procedures relating to the. expression of dif-fering professional. opinions. This will' both lend credibility to the stricture-against_ retaliatory actions and give fair warning to employees who take such actions. The.available sanctions should parallel those now available to punish employee miscon- >- duct under AEC Manual Ch. 4171, and the future NRC policies and procedures should specifically make the cross-reference. Futhermore, such policies and proc'edures should explain. when the more severe sanctions of suspension, demotion or removal are appropriate. (perhaps for retaliatory action which is _taken maliciously and with an. intent to injure the professional. reputa-tion or employment prospects of an employee), and when the lesser sanctions of reprimand or admonition are appropriate (perhaps for non-malicious retaliatory actions which do not injure an employee's professional reputation or employment prospects). NRC management can best judge the specific sanctions appropriate for particular types of retaliatory actions; we simply urge that the eventual policies and procedures spell this out in some detail.
- 4. Public Disclosure Ehile NUREG-0500 clearly focuses on agency procedures for dealing with differing' professional opinions within the NRC, such procedures should also reiterate the right of employees to go outside the NRC, lest . the omission be construed as NRC disapproval of " going public." A section of any eventual policies and procedures should emphasize that they are in addition to the employees' existing constitutional and statutory rights to bring unclassified information to the attention of Congress and to make their views known to the press and the public. U.S. Const. Amend. I; 5 U.S.C. S 7102.
We are informed that recent communications to employees from NRC management regarding the cocrdination of responses to Congressional incuiries have been viewed as intimidating efforts to check employee communications to Congress. Without venturing
. any view on the correctness of this assessment, we believe that these employee reactions reinforce the need to reiterate fundamental employee rights of free expressicn. Fcr example, a.. '
eventual NRC Manual chapter on the expression of differing
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with appropriate' citation to the Constitution and the relevant statute in an introductory " statement of purposes" or " policy objectives" on the model of other NRC Manual chapters. In addition, we believe that procedures for preser-vation of the public record should be clarified and strengthened to assure meaningful public disclocute. NUREG-0500 speaks only very generally and ambiguously of placing in the public record those differences which " continue unresolved through several levels of management." .NUREG-0500 at 12 (emphasis added) .
-Without suggesting the appropriate " level" for mandatory .
inclusion in the public. record, we urge that a specific level be identified precisely in the eventual policies and procedures to avoid any ambiguity. In addition, we reiterate here the importance of preserving the integrity of the public record, as a means for enforcing the accountability and " traceability" endorsed by NUREG-0500 (at 12). See Hogan & Hartson Memorandum at.10-13. Regulations such as those adopted by the Food & Drug Administration'(21 C.F.R. SS 10.70 et sec.) are essential in this . regard and could appropriately be included in an NRC Manual chapter on expression of professional judgments.
- 5. Follow-uo Regarding Retaliation" We are most concerned by the rather summary attention accorded in NUREG-0500 to this topic. Assurances against retaliatory action (NUREG-0500 at 11) are helpful, but give little confidence to. employees unless the NRC is prepared to establish a more ef fective method by which employees can challenge retaliatory actions. NUREG-0500 is largely silent on this subject, except for its summary, without endorsement, of the protective procedures we have previously proposed. NUREG-0 500 at 31-22.
The existing grievance system is unacceptable for this purpose because it recuires the employee to submit his claim of re:aliatory action for review in the first instance to his own supervisor cr, in some cases, a " key line official" who parti-
- ipa:ed in the retaliatory acticn. At the very least, the system-sh:c;d excuse the employee from presenting his claim at that
;evel or provide for an initial review cf this claim by manage-ment who have not participated in the allegedly retaliatory action. Second, existing procedures should define more clearly the types of personnel action encompaseed by the phrase "retalia-
- cry action" and should define them broadly enough to include the
- - _a_ .a __- _ _ _ _
- 1 . ,1 .
4 1 J f~ull range of imaginative personnel actions, i.e., from indirect ; harassment to outright firing. Third, the eventual policies and : procedures should recognize the heavy burden on anLemployee who i seeks to prove retaliatory action by, at the minimum, (1) holding l management to the reasons it gave for the challenged action at l the time it took that' action; or-(2) in the absence of any such l written reasons by management, shif ting the burden to management l to prove that its action was not retaliatory. In this con- l nection, the policies and procedures should reflect established ! I case law declaring unlawful'any personnel action for whicP retaliation was a motivating factor. */ J l The foregoing. recommendations, in conjunction with those made in our prior memorandum, could be implemented through relatively minor revisions of the existing grievance procedures and should not pose an undue burden on the agency. See Hogan & Hartson Memorandum at 21 et sec. Nor need formal adjudicative ' proceedings foreclose the possibility of more flexible alterna- I tives. For example, an employee could be offered the option, at i his dis ~cretion, of having his charge of retaliatory action reviewed by a peer group or panel of persons mutually acceptable to the employee and management, as an alternative to a full adjudicatory review by an outside administrative law judge. Such peer group review might be especially appropriate where the charges of retaliatory action are intertwined with highly technical issues. The fact-finding and recommendations of such a peer group would carry the same force as the fact-finding and I recommendations of an outside administrative law judge selected ; as a hearing examiner under the existing grievance system. Other more flexible alternatives might also be appropriate, so long as the employee is free to choose the formal adjudicative alterna- . tive if he wishes. l
- 6. Monitoring the Eventual Policies and i Procedures for the Expression of !
Differino Professional ooinions 1 Finally, we again urge that the.NRC consider egnvening a review panel of NRC employees and representatives of interested j outside groups :o monitor and report upon the implementation and
*/ Recuiring management to explain in writing the reascas for actions taken against employees will help alleviate the burden en employees.who challenge such actions. i 1
, ., g. _. __ __ _ _ . j
. -o .- 9-efficacy of any policies and procedures which may ultimately be adopted. Id. at 32-33. The fsurvey conducted by your staf f suggests both the variety of policies and procedures currently in.use by various institutions that must deal with differing professional opinions, and the paucity of detailed source materials or models for the policies and procedures which the NRC may eventually adopt. The NRC.will be pioneering the development and implementation of detailed procedures for federal agencies employing scientific and engineering professionals. It can and should therefore implement such policies and procedures flexibly and with a capacity for changing them as experience requires. A review panel wodld be immeasurably helpful in' monitoring the initial policies'and procedures and reporting on recommended changes af ter a year's experience. Some criteria for such a review have already been identified in NUREG-0500 (at 7). Moreover, a mixed membership review panel could give NRC employees the assurance that the implementation and efficacy of the procedures was receiving an objective evaluation. The membership of such.a panel may well suggest itself to you by the number and quality of responses which you receive to NUREG-0 500. We are confident that the NRC would have no trouble obtaining the voluntary commitments of various outside organizations to staff such a review panel, provided that the panel is given substantial staff support from the Office of
, Management and Program Analysis as well as access to the necessary data for performing the monitoring. function. The ACLU would be happy to discuss the formation of such a review panel with you in greater detail, should this proposal interest you.
We trust that the foregoing comments, in combination with our _ previous memorandum, are helpf ul to you in the development and implementation of the eventual policies and precedures. We look forward to the issuance for public comment of your first draf t of an appropriate chapter for the NRC Manual before the end of theEyear. Sincerely yours, - h - Peter Raven-Hansen 9
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4 A . 1 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20666 voy **"* SEP 121978 MEMORANDUM FOR: Chairman Hendrie c/o Norman M. Haller, Director Office of Management and Program Analysis R. P. Grill, Environmental Standards Branch FROM: Office of Standards Development
SUBJECT:
COMMENTS: DIFFERING PROFESSIONAL OPINION As requested in the Chairman's' letter of July 20, 1978, concerning Dif-- fering Professional Opinions (NUREG-0500), I submit the following connents for your consideration.
- 1. I, and other staff members, have difficulty understanding the context in which the survey's repeated reference to "public employees" and ,
" employee's loyalty to his employer" is used. This antique concept needs to be clarified and more sharply definec for our use.
In a broader sense than covered by this surve), "public employees" owe an additional loyalty to their ultimate emplo.i er, i.e. , the "Public." i This ultimate loyalty is perceived by many stiff members to supersede ! the traditional " loyalty" to the traditional 'bos s . " If the NRC staff member perceives a conflict between protectirg the reputation of his supervisory chain and protecting the "public health and welfare," he may be forced to make agonizing choices. The final NRC policy should address this dilemma in a manner that makes it clear that internal dissent is encouraged and that it should be resolved through tradi-tional management channels if at all possible. The policy should also make clear that alternative courses are available should resolution prove impossible within this framework. These alternatives should include the "open door policy" and, in extreme cases, recourse to Governmental " watchdog" groups outside the NRC. The use of the media as an ultimate recourse should be discussed and the Commission's policy on this should be made very clear.
- 2. The thrust of this survey concentrates on accommodation of differing staff opinions in the area of "public health and safety" only. This e obviously flows from the traditional Agency perception of our respon-sibilities under the Atomic Energy Act. Differing opinions should also be encouraged which involve this Commission's responsibilities under other legislation such as NEPA, for example, as well as in 7
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- i ChaiMan Hendrie c/o Norman M. Haller 2 SEP 121978 l
fiscal and organizational areas that are not health or safety related. T.he staff involved in discharging our responsibilities under other legislation perceives these responsibilities as equally important, if not as innediate, as those concerning " health and safety." The final policy statement should clarify this point. It should also specify any areas or circumstances that the Commission considers too sensitive l (or trivial) for differing staff opinions to be entertained. l
- 3. The concept expressed in the survey, i.e., " Differences of profes- 'l sional opinon are limited to an employee's field (s) of expertise," is unacceptable to many of the NRC staff. The wide work experience background and the high analytic ability resident in this Agency's staff make it impractical, stifling and inefficient to limit the . areas
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in which an employee can differ to those that cover either his current work assignment or the academic degrees he possesses. I strongly feel that no one should have a perceived concern rejected out of hand by a supervisor saying "You are not an expert in that field'" A secretary or mailclerk should have as much right to a hearing as any "profes-sional . " If the perceived problem is based upon faulty or incomplete i background of the employee, the true " expert" should be able to quickly make the matter clear. An example might be my own experience in using the "open door policy" in 1976 to attempt to correct what I saw as an unresolved safety issue. The subject was lightning protection of nuclear power plants. I can in no sense claim to be expert in any electrical or electronic discipline. My prior responsibility with the AEC and contractor work i
' experience, however, gave me rather unique insight into the problem. l The Commission saw enough merit in my concern to encourage me to pursue the matter. The management of SD also provided an atmosphere of non-discouragement and provided the facilities of staff who were expert in the discipline. The result has been the development of guidance which, when published and implemented, may resolve a real problem. My point is that the policy advocated in the survey would have stopped my efforts before they got off the ground. We cannot afford to waste the talents of our highly versatile and imaginative staff by placing artificial limitations on their ability to critically review NRC programs.
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.. thairman Hendrie c/o Norman M. Haller 3 SEP 121978 l'
Thank you for allowing me the opportunity to comment on the development of i this critical policy. Prompt issuance.of reasonable guidance could go a long way toward recapturing the interest and feeling of mission for a staff that'has become more than a bit disenchanted in recent years.
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C k R. P. Grill l Environmental Standards Branch Office of Standards Development i
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AMERICAN ASSOCIATh N OF UNIVERSITY PROFESSORS ONE DUPONT CIRCLE , SUITE 500 WASHINGTON, D.C. 20036 Telephone sc2-4664050 hesidens MAATHA FanowAs Associou / Unnmny of IUinois. Urbana JONATHAN September 13, 1978 MonTow 5. BAAAT2 wataeoa omaa l Mr. Norman M. Heller I Director office of Management and Program Analysis f U.S. Nuclear Regulatory Commission l Washington, D.C. 20555
Dear Mr. Heller:
I have read with a great deal of interest A, Survey _of l Policies and Procedures Applicable to the Expression of ' Differing Professional Opinions. As an introduction to procedures and overall criteria, the Survey is admirably comprehensive. I assume that more particular procedures and criteria are to be developed, particularly with respect to " assured freedom from retaliation," and I would be most willing to examine and comment upon any subsequent documents prepared by the Nuclear Regulatory Commission. Sincerely, f i
/ Jonathan Knight
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,mh4W e4W6k'h ew v'hW 4- 4-%h* -' w 9 5merican Association 20 for the Advancement of Science 1515 M A S S A C H U S ETT S AVENUE. NW, W A S H l'N G T O N , D. C., 20005 Phone: 467-4400 ( Aree Coco 202) Canle 4 coross: Advanceset, Washington. o C.
September 14, 1978 Director Office of Management.and Program Analysis U.S. Nuclear Regulatory Commission Washington, D.C. ' 20555
Dear Sir / Madam:
As members of the AAAS Committee on Scientific Freedom and Respon-sibility, we are responding to Chairman Hendrie's letter of July 20 and the Nuclear Regulatory Cr uission's survey of policies and procedures applicable to the expression of differing professional opinions. Our response is based on our special concerns about the need to clarify the r1ghts and obligations of NRC scientists and engineers as an example of scientific freedom and responsibility. We commend the NRC, and in particular the staff of the Office of Management and Program Analysis, for the breadth of the survey and the-decision to invite public comment at this time. We endorse the proposal that NRC will issue " written and publicized procedures" (NUREG-0500 at 11), and we recommend that these procedures be formally issued in. regulations or as a new, separate chapter of the NRC (personnel) Manual. Such a chapter should also contain a statement of the Commission's purpose in establishing these procedures and should I fully detail the policies supporting them. We further reco= mend that the prospective NRC policies and procedures be circulated for public comment after they have been draf ted in order to provide an opportunity for- broader review prior to their enactment. It is our opinion that the purpose of the prospective policies and procedures described in NUREG-0500 is to: (a) encourage an objective review of diff ering professional opinions within the NRC, and (b) ensure public awareness of differing opinions when appropriate. We endorse the ;;eneral notions outlined in NUREG-0500, including timely, written management response to differing professional opinions, the peer review of persistent or recurring professional opinions, public disclosure of differences of professional opinion which have persisted beyond levels of review er which have been the subject of peer review, and management liability for malicious or unreasonable action against professional e=ployees.
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w . . We object to the proposed scope of the policies and procedures as defined in NUREG-0500 (1,4) on the grounds that it is too narrow and' restricts the procedures to only those issues which "arise in the normal decision-making process." A more suitable statement would apply them to any (1) non-frivolous (ii) reasoned professional opinion on a matter (iii) within the purview of the NRC. When the prospective NRC policies and procedures for differing profes-sion,a1 opinions are issued for public comment, we will be available to carefully review them and to offer further detailed comments at that time. Sincerely, _ h Frank von Hippel i Research Scientist I Center for Environmental Studies l Princeton University ; NL - Peter Raven-Hansen Associate
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Hogan and Hartson Washington, D.C. l l
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... SEP 15 B78 MEMORANDUM FOR: J. M. Hendrie, Chairman U.S. Nuclear Regulatory Commission FROM: R. Clary, Structural Engineer FCTR:MSL:NMSS l 1
SUBJECT:
COMMENTS ON NUREG-0500 l I submit this note in comment on the subject issuance in response to the ;l Chairman's request of July 20, 1978. - 1 I find it encouraging that the Commission would seem to take serious interest in the issue of the expression of differing judgement however belatedly. I hope this interest is distinct and independent of the now thoroughly discredited "open door" policy. As I understand it, the basis of this interest are several independent, overt and implied complaints to the effect that administrative retribution is often taken against those who express such judgements. In fact, a majority of my staff colleagues advised me not to submit these very coments for fear of retribution. The instance of this submittal is the anticipation that, if that intimidation were accepted, those officials most responsible for public health and safety may be mislead in this matter. . My observations and coments are:
- 1. The instance of administrative retaliation against those staff expressing different judgement is pervasive and consistent as a function of the:
a) organizational unit, e.g., branch, division or office, b) persistence of the expression of different judgement, c) position of staff member expressing that judgement, d) safety significance of the issue, and/or e) cerceived sentiment of the Commission, i.e. , the actions /non-actions of the Commission are followed more consistently as a pattern than its various issuances. Considering the fact that several promising careers in federal service 2. have been ruined or compromised, and several thousands of public
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J. Mr Hendrie , monies have been expended on administrative actions with no substantive attenuation of abuses over this issue in just the period of my observa-tion, I believe that something far more substantial than a survey is necessary to justify any expectation of improving the present policies ; and practices. A prime objective of any amendment to standing policies I and . practices should address the various "mindsets" which manifest themselves so pervasively in virtually all such expressions. Neither surveys or prayer have proven effective in dealing with such attributes of this issue. , l
- 3. The declarations of Part IV.C, page 37 and 38, detract from the credibility of both the Commission and the management in that they reserve judgement and action for the principals representing management.
This provision was most often cited by the staff as the basis for their belief, virtually without exception, that "nothing has changed" and that a covert objective of the subject issuance was to discourage the submittal of comment on this issuance despite the Chairman's request. NUREG-0500 wc.s described as "just more propaganda," an opinion to which I do not subscribe without qualification. !
- 4. Independent of surveys, official procedures or law, no substantial improvement or protection from abuse can be expected unless: ,
a) there exists'an enforceable commitment to evaluate such expressions in an objective, defensible manner, b) there exists and is mainta'ined a high level of good faith in that commitment, c) there is a substantial improvement in the openness of the deliber-ations on these expressions,* and d) there is opportunity provided the staff to participate in any resolution and follow-up. Further, any responsible official whose participation is as a principal in such expressions should not be permitted to both judge and act, virtually without constraint or risk, as is the present practice.
- 5. I suggest that, counter to the sentiment expressed in Part IV.C, it be assumed that the staff member expressing differing judgement be presumed to be acting in good faith, consistent with 10 CFR Part 0 (Code of Conduct for Federal Employees), unselfishly, voluntarily, "The present practice of dealing with these expressions in a pseudo-secret atmosphere is observed to be damaging to both the morale and edification of- the staff as a whole.
. . _ _ . - . . ~ __ _ . ._ _ _ _ eeh%d e r 45med. .44e .w a -
. / -e J. M." Hendrie -
3- - and at significant personal ' sacrifice, in a continuing atmosphere of ~ severe intimidation instanced by and against such expression, and _ (probably) subsequent to a history of unsuccessful attempts to resolve his/her concerns "off the record"; especially in the absence of substantative evidence to the contrary. Further, it is my observation that formal dissent is expressed only as a last resort and only following repeated attempts to resolve issues informally. The provisions of Part IV.C not only penalize such attempts but invite the introduction of subjective assessments not constructive to objective resolution, or even discussion, of the basic issues. . - Differentiating between " genuine" and "non-genuine" on a case basi's can be accomplished, as a first step, on the basis of technical merit and safety significance. Differentiating on more subjective bases should not be attempted either by any participant or principal or any first or second level line official, especially in secret. In any case, the relative " genuineness" of a dissenting opinion should not be used as the basis for adverse personnel action, as such a provision would seem_ to permit. It is suggested that such subjective issues are examples of frivolity and as such have no place in serious discus-sions or proceedings. If necessary and as required, they should be addressed separately. Another aspect not addressed in NUREG-0500, and pertinent to " genuineness," is the clear definition / identification of the basis of the concern. It has generally proven virtually irgossible to obtain'a commitment by responsible officials to a specific position. Instead, in practice, the entire burden for position definition is imposed upon the individual expressing: concern, together with a denial of official resources. This intrinsically biased practice is of itself one of several forms of retribution.
- 6. In general, I consider NUREG-0500 to be incomplete without a discussion of historic and current cases illustrative'of the abuces of concern; These abuses range from the imaginative to the inane. In virtually all cases. they remain inexplicable and undefended.
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. - . ~ . . . . . . . - - . . . . . . . . , .
. J. M. Hendrie .
In closing, I wish to offer my continuing, personal support and deep . interest'in any serious effort to implement and expedite any degree of l improvement in the present situation.
, f-r Ronald Clary Structural Engineer Transportation Branch Division of Fuel Cycle and Material Safety i J
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g ,,_ _ 22. lef0!!ULTUM PCR: Chairman Hendrie 120td: Martin Levy, Requirements Analysis Branch, NMSS KJ2JEC'": DIPTERING PROFESSIONAL OPINIONS 1: your memo dated July 20, 1978, subject as above, you requested assistance in 1:2 proving cocmunications between all levels within NRC. I have a general c:cr:ent in regards to your statement about encouraging NRC employees to bring their differing professional views to the attention of NRC management a:d several specific cocinents in regards to certain paragraphs within NUREG. 0500. . Ihere are two ways in which there can be improvement in encouraging different - prof essional views. If the employees know that any retaliation by line. managers because of differing professional views will not be tolerated by the Commission, they will be.much more likely to speak especially if disciplinary action is taken against those managers who do retaliate. In addition, if the line managers know that their performance will be appraised based on how well they are able to get those with differing views to express those views, they will uke a much greater effort to encourage NRC employees to bring their diff ering views to the attention of NRC management. Specific ccaments are as follows : PARAGRAPH IN NUREG-0500: CatefENT I E ployer and Employee - In this section, the NRC Guidelines, NUREG. l Mutual Obligation, Pages 2-3 0500, list excerpts from the Guidelines to j Professional Employment. Since mention was ; made, almost in passing, of the goals applicable primarily to the employer, it will appear-to NRC employees that the main thrust of the NUREG is to be certain of the employee's loyality to the employer and not necessarily to the nation. It will also appear to NRC employees that employer responsibilities are secondary. F:ocedural Steps, Step 2, There must be some protection for the e=ployee i l Fage C in order to get that employee to continue to discuss the problems that may exist. Obviously if management takes an inordinately long time to answer the e=ployee each time he brings up the problem, and then blames the employee for the delay in co=pleting the mission, there will be no future attempts to discuss problems. My suggestions in the next paragraph 7: vill help to alleviate this situation. l v. _.y_ *- , _ . . . . . _ . . . . . . . . . _ . - . . . _ . _ .
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Step 5,. Follow-up Who will be independent enough to monitor Retaliation, Page 10 the process to assure that the employee is not subjected to retaliatory action? An organization is needed to assure that there is no retaliation. This can be accomplished by the organization first examining the facts of each individual case and then by determining if there has been systematic retaliation. Systematic retaliation can be determined by the use of statistical techniquer to learn if NRC denies a significantly greater number of within grade increases than do other organizations or if a significantly greater percentage of those NRC employees who express differing professional opinions are denied within grade increases than those who do not. The organization would also look to see if there have been a large number of involuntary transfers or denials of promotions where there have been differing professional views. If such an organization were to be established within NRC, it should report directly to the Commissioners and have no ties to any NRC Office. In order to insure freedom to differ, NRC must make it known that it will remove a supervisor who is taking retaliatory actions. This makes good sense because an individual who retaliates is not fit to supervise and should be removed from a management position. Obviously if an employee feels free from retaliation, he will be encouraged to make his differing professional opinion known. l Assured Freedom from My previous comments apply here. It must ) Recaliation, Page 11 be made clear to employees how they will ! be protected from retribution. Written and Publicized Note that any system will fail as did that l Procedures, Page 11 of the FDA if there is not an active system by which the career of the employee is protected. The Open Door Policy. What will happen if an individual, rather NRC, Page 19 than using the Open Door Policy, (See em ments on Step 2) cocaunicates with his or her manager several times, the manager claims the individual is delaying completion of the project and takes disciplinary action. It would then appear that the employee, if he then uses the Open Door Policy, is inappropriately using that channel for expressing dif f ering opinions. (See =y ce=nent s on Paragraph C, page 37.) l __m _ _ _ _ _ _ _
3 ,
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. Why wasn't' this question asked of the anployees ,
paragraph en Page 21. at NRC since they are the ones that need I protection, not the Office Directors? Obviously the Directors have little interest in an Ombudsman or Branch within NRC established l to assure that differing professional opinions l are expressed. If the Office Directors were ( protecting individuals with diff ering opinions in the first place, the problem at NRC that the Open Door Policy is attempting to correct would never have occurred and there would be no reason for the Ombudsman or independent i NRC Branch to protect against retaliation. Nor=al Process- NRC, Page 22 It is correct that the Normal Process is inadequate because most managers don't want
.to rock the boat. If this were not the case, the Open Door Policy would not be necessary.
Exm=ples of Step 5 - Follow- Ihe Commission does not state whst procedures up on Retaliation, Page 31 it will follow to assure employees freedom , from retaliation. I have suggested one procedure ! and Hogan and Hartson have suggested another. It is ny opinion that the Commission must , clearly spell out the procedures that will l be used to protect against retaliation or else any Commission action in regards to the Open Door Policy will be worthless. C ancept Expressed by I can assure you that when an employee differs Chair =an Hendrie, Page 35 from the supervisor in his professional opinion, there are cases uhen that opinion ~' is not forwarded by the supervisor and.the employee is actively discouraged from making his professional opinion known. nappropriate Use of NUREC - 0500 shows a concern that procedures Channels f or Expressing established for co=:unicating differing Cif f ering Opinions, Page 37 professional opinions may be intentionally misused. However, this is irrelevant. It really doesn't matter for what reason an employee raises an issue regarding differing professional opinions. Either the issue has merit or it does,'t. If it does, then it should be censidered and if it doesn't, then it should be distissed. If the e=ployee has c:her reasons for raising the issue, then that should be considered as a separate matter.
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l 4 The Existing NRC Agency-Wide As stated earlier, there is at present no System, Normal Process, Page 49 procedure that will assure the employee that there will not be retribution if he brings forward a prof essional opinion diff erent from that of his supervisors. There is no group within or without NRC that will protect the employee from the subtle and not so subtle presure ** c can be brought to bear by manageme._.. Thus the normal process has proven to be a failure. As evidence of this, consider the low number of cocuents that you have probably received fran t,he staff and compare that to the continuing conflict within NRC. i l l l l . I
Attmic Indu5tri;l Fc rum, In3. . 7101 Wisconsin Avsove - Washington. O.C 20014 T;lephone. (3011654 926o
~ Cable: Atomf orum Washingtonde l l
cars weiek. President September 15, 19 78 Director Office of Management , and program Analysis ! U.S. Nuclear Regulatory Commission - Washington , D.C. 20555 -
Dear Sir:
We appreciate the opportunity to review and comment on NUREG-0500, "A Survey of policies and procedures yplicable to the Expression of Differing pro fessional Opinions". We note that for the most part, this document treats the subj ect of accom-modating professional differences of opinion in a very general fashion, without recommendations as to the feasibility or the desirability of applying the surveyed techniques to NRC's par-ticular circums tances. At this point in time, we would like to offer a few contexting. thoughts that may be helpful- in re-fining NRC's choices. We would then welcome an opportunity for further comment on NRC's proposed program when it is suf-ficiently developed to be . viewed as a whole. First, the program should make clear that a complicated judg-mental regulatory program like NRC's will undoubtedly generate some significant differences of opinion among quclified and conscientious reviewers as to what re s ults constitute sound re gulato ry decisions. For a formal " dissent" sys tem to be con-s tructive ins te ad of dis ruptive , the public, media and othe r governmental decision-makers must be helped to unde rs tand that such " dissent" does not in itself demonstrate a weak regulatory sys tem incapable of protecting the public s afety and welfare, nor is it necessary that uncertainties be resolved in favor of the dissenting view to produce a reasonable result. The de gree of attention to public affairs that such a success ful program would require, particularly at this time of low institutional cre dibility generally, can hardly be exaggers ed. Second, the issue of the potential for misuse of a formal dissent procedure, by either the dissenters or others seeking to disrupt the regulatory process generally, seems to be minimized rathe r cavalierly in the survey. This aspect would seem to deserve more s
k September 15, 1978 j l attention. An effort might well be directed to dealing with frivolous claims, including, when appropriate , imposition of i sanctions. ! Of the substantive propos als surveyed, we favor provisionally l a marriage of peer review and detailed written documentation of a claim of error to focus on precisely what is in dispute. I This would be . the most promising combination to maximize in- J ternal and external perception of integrity of the system, i re gardless of individual results . Further ef fort could use- i fully be applied here to delineate a reasonable mix, and bound- l ing it with the resources that NRC determines are appropriate ! to apply to this particular regulatory problem. j t Finally, whatever " dissent" program is ultimately agreed to, the nature of nuclear controversy would seem to make it inev-itable that result-oriented individuals will critici:e the . procedure harshly following individual decisions with which they disagree. It thus should be kept in mind that such a ] program cannot be a panacea to s tem criticism of NRC. What i it can do, perhaps , is strike a reasonable balance involving l the individual needs of a responsible professional staff, a j public unclear as to where safety really lies, and NRC's organ-i:ational need to reach and implement decisions although all viewpoints may not prevail. This is a ve ry difficult task, i which will not be possible at all without constant application o f a high degree of realism. l i Since re ly , ; j 1 i CW/pcw I t i 1 b 3
Natural Resources Defense Council,Inc. L , M' 917 15TH STREET, N.W. WAS HINGToN, D.C. 20 005 202 737-3000 l
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g 7 425 327-1080 212 949-0049 Office of the Secreta:ry U.S. Nuclear Regulatory Commission - Washington, D.C. 20555 - Attention: Docketing and Service Section Re: NUREG-0500
Dear Sir:
My brief review of NUREG-0500, "A Survey of Policies and Procedures Applicable to the Expression of Differing Professional Opinions," suggests to me that it is a thoughtful effort to address a long festering problem. I am particularly interested in the Hogan & Hartson proposal that all differing views be placed on the public record when the differences have gone to two or more levels of the NRC. I believe the earliest possible public disclosure of differing views is desirable. I also believe that it is better to err on the side of excess disclosure. Thus, I would propose that all differing views be made publicly known when they are first reduced to writing, either by the originator or by the person receiving an oral presentation. This should cause no problem because of the definition of differing professional opinion which requires that it be limited to substantive health and safety issues. I would expand the definition to include environriental issues. I also believe the NRC should move prompt.1y on the issue and should set itself a 90-day deadline to implement a ecmprehensive program for the expression of differing pro-fessional cpiniens. Recent experiences disclosed in the Shearon Earris proceeding (see ALA3-4 90) demonstrated clearly that full disclosure of differing views is still a problem. Sincerely,
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Anthony0f ,,,/ Reisman Staff. Attorney zt
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- - r" 20 September 1978 Graduate School of Public Afairs l
Mr. Joseph M. Hendrie, Chairman Nuclear-Regulatory Commission Washington, D. C. 20555
Dear Mr. Hendrie:
The geneIr~al principles described in "A Survey of Policies and Procedures Applicable to the Expression! of Differding Professional opinions" seem well considered and should provide the basis for sound operating policy. However, as is made evident in the account, the NRC has not yet adopted a uniform and generally followed set of practices to support those principles. You and the people whoworked on the survey are well acquainted with this fact. The one additional suggestion I would like to offer i is that there should be --with endorsement from the top 1 administrative levels of the agency--established means of monitoring the adopted procedures to give assurance that the principles are being observed with reasonable uniformity throughout the agency. Sincerely, A S N(.(' J$0 $t Dael Wolfle
.? 266 Smith Hall / Telephone: 106) 54!-4920
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NUCLEAR REGULATORY COMMISSION
. . WASHINGTON, D. C. 20556
*.... September 26, 1978 MEMORANDUM FOR: .Dr. , Joseph M. Hendrie, Chairman U.S. Nuclear Regulatory Commission
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FROM: Ronald A. Brightsen, Technical Advisor to ,the Director ' Division of Safeguards
SUBJECT:
DIFFERING PROFESSIONAL OPINIONS - NUREG 0500 Responding to your July 20, 1978, request, I am attaching herewith my coments and suggestions on two basic aspects of this subject: I. Crr.ating An Environment Which Will Encourage Expression of Differing Professional Views II. Some Observations on.the Relationship Between Technical and Policy Issues I hope my views will contribute in a meaningful way to your admirable personal interest in developing an effective and comprehensive agency policy in this area. S 0, C
/3 Ronald A. Brightsen, Technical Advisor to the DirectoV Division of Safeguards
Enclosure:
As stated w ie # r - * ~~-** - . . .
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9*'ee.-a im 34 @ . . , + > , . _ . , , as 8m 9 e -enh w r ,, sh> e. w.ge,.epe,,, .,m, , , . , , , , _ , 1 \ l 1 . I. Creating An Environment Which' Will ' Encourage Expression of Differing Professional Views . In NUREG-0500 it is observed that the first procedural step'in any effective system for dealing with differing pro-fessional opinions is that employees must make known their
. difference of opinion. This point is obvious, and the sine qua non - management i:annot resolve differences of opinion _
unless they are aware of them. The_ paper goes on to state (p.7) that " management must have already taken the prior step of having established alternative methods that encourage ; employees to express such views in situations which they believe to be not in the best interest of the organization or the accomplishment of its mission." While it is true that having alternative methods (up the line is one, the open door is another) will tend to encourage professionals to express their differing dpinions, I believe a much more significant factor is the willinaness of the professional to openly express his views. The. professional's willingness will, in turn, derive from his or her perception of whether or not they invite subtle retaliation by speaking out. NUREG-0500 recognizes the very basic role that this perception plays (p.11): "... employees (whether non-managers or managers) will not utilize an organiza-tion's procedure to bring forth differing professional views or opinions if they.can expect any form of retaliation for either expression of the view or for having used the prccedure(s).
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.... Employee confidence in the sincerity of an organization's
. efforts can be totally destroyed by the least hint that retal-iatory actions are condoned." (emphasis supplied)
All of the foregoing leads inevitably to what I believe is the key question: What is the present state of affairs with respect to employce confidence in NRC's dedication to prevention
. of retaliation? How many employees have already been exposed to "the least hint that retaliatory actions are condoned"? Consider the following questions:
e How many employees have themselves suffered some fom of retaliation? e How many have. observed others being punished for voicing opinions unpopular with management? e How many have heard of such cases? I believe very few employees do not fall in one of these last three categories and consequently the majority are, to varying degrees, cautious and reluctant to voice any differing judgments they may have. Needless to say the proportion of employees that are reluctant to speak out will vary from Office to Office. In my opinion, most of the professionals in the Division of Safeguards have essentially no confidence in NRC's dedication to the preven-tion of retaliation - not because they do not believe the Commissioners are well-intentioned, but because they recognize that very little factual infomation on retaliation ever gets to the Commission. Unfortunately, little hard data exists on emoloyee attitudes. The recent CAO repcrt on " Nuclear Powerplant
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Licensing: Need for Additional Improvements" concludes that in NRR about 8% of the staff do not feel free to raise technical issues. But an equally valid alternative analysis ; of the same data. suggests that the ffgure may be as high as l l 53%.. A well designed, unbiased survey of NRC staff attitudes i on this subject would be.useful. However, whether the number is 8% or 53%, it is difficult to believe that the r.emaining 92%
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'or'47%, as the case may be, have been unaffected. Almost l 1
certainly they have become more cautious and more reluctant than they otherwise would be.
- The key role that freedom from retaliation plays in any i effective program designed; to encourage freedom of professional .
1 opinion is underscored by the following statements in NUREG-0500: e "It is a fundamental requirement, therefore, that an organization establish and strictly enforce rioid sanctions against' retaliatory actions" (emphasis supplied) (p.ll) e With regard to Step 5 - Follow-up on Retaliation:
....all sources that had either represented employees or investigated cases involving dissenting views state that this orocedural steo is the most imoortant."
(emphasis supplied)(p.31) In my view,- the essence of .the problem the Cor: mission iaces is as follows. The Commissioners wish to encourage employees to make known their differences of opinion by excressing them. But the employees fear retaliation to varying degrees, hence
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few will speak out. How can the Comission resolve this underlying problem, and begin creating an environment in which l d differences of professional opinion can be freely expressed? l 1 I believe two courses of action should be implementedt l 1
.l . A program to dramatically demonstrate to the NRC employees that the Commission will not tolerate retaliation, by identifying.and promptly applying stiff penalties to those who have retaliated. l l
- 2. A program to encourage NRC employees to express their own views, by providing recognition for individuals who raise an issue that is subsequently adopted by l the agency, otherwise benefits the agency, or significantly improved public safety..." (NUREG 0500, p.13) l Without a well-publicized, effective program along these lines, 1
I fear your efforts to develop a comprehensive agency policy will l yield form (improved procedures) but not substance (employee confidence,' and a willingness to speak out). More memoranda, policy statements and letters will not change employee attitudes. - Actions are essential. 1 l II. Some Observations on the Relationship Between Technical and l Policy Issues i In promulgating a comprehensive agency policy on differing professional opinions I would urge you to insist that the policy 1 1 apply to all areas where differences of professional judgment can, 1 l l
I t. c' 5-and do, develop - safety, safeguards, policy and management. NUREG-0500 implies (page 1) that the scope of this effort be
- 1) limited to health and safety issues and 2). limited to an employee's field of expertise. The r'easons for my view, which I believe are widely shared by NRC professionals, are straight-fo rward. First, while there are many regulatory matters thaj.
are clearly technical in nature (for. example, radiation exposure l limits and tne detection sensitivity of NDA systems) there are many more that have a technical content but involve broader ~ considerations of, policy and management - for example the utility of research and technical assistance programs in the achievement offwell-defined programmatic objectives. The exclusion of such broader issues on the grounds that they are " policy" or
" management" issues will do the NRC a disservice, for it will insulate the leadership from constructive criticism and healthy change. Further, such limitations wi.11 be viewed by many as 4
a device to reject differing views on the grounds that the pro-fessional does not have the " appropriate" expertise. The fact is that there are many NRC professionals who have expertise in several areas, by virtue of experience. Some have more management experience than their supervisors. Finally, I believe it is unwise to try to isolate, as NUREG-0500 implies (page 1),
" personnel-type and other basically unrelated issues". My view stems from the widely' recognized practices of management conversion of a substantive issue into a " personnel problem".
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. 1 For :further background on this subject I' would suggest you read , l 4
the section entitled '! Definition of Differing Professional l
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' Judgments'(Hogan.& Hartson-Report, page 6-9).
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v COMMENTS ON "FOR COMMENT" ISSUE OF NUREG-0500 17 2 The 'following comments 'on the draft document entitled "A Survey of l Policies and Procedures Applicable to the Expression of Differing Professional Opinions,t' NUREG-0500, issued by MRC's Office of Management and Program Analysis, are from the viewpoint of a consulting engineer in the nuclear industry who has.had' considerable experience in development and implementation of production facility designs including extensive interaction with regulatory agency professional staff and management. Many instances of differing professional opinions have been encountered in the course of these ' activities, not only between regulatory agency - and licensee positions but also among professionals within a given organization or agency. I The principal general comment on the draft document is that impact and perspective is significantly impaired because " whistle blowing" on waste, abuse and corruption has been lumped together with honest differences in qualified opinions and judgements of professional staff personnel on issues affecting public health and safety. The bases for there being unheard or unheeded opinions are not the same for these contrasting contexts and the most effective procedures for assuring that public interests are not adversely affected also will be different. It is recomended that NRC l consider separate approaches to the two problem categories and that priority be_ given to the latter as being fundamentally more significant as well as 1 more difficult to resolve equitably. A second general coment is that consideration should be given to including preventive as well as corrective action recuirements. It -is of l 1 critical importance that prescribed operating procedures include provisions ' by which. valid differences of opinion can be constructively resolvdd before positions become so polarized that grievance-type procedures and anti-retaliatory measures must be applied. Existance of differina views'amona professional staff' persons on issues where uncertainties cannot be resolved factually may be a healthy sign of open mindedness and broad perspective, l I I
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_2_ 1 but the necessity of resorting to special channels for- minority views to get adequate hearing on any but the most difficult issues is a sign of inadequacies in normal operating procedures or in their implementation, either of which can be more directly addressed than the corrective actions described in the draft document. In reoard to " peer review" as defined on page 5 of the subject document, it is stronaly felt that_ review of significant policy or program decisions, conclusions, proposed action plans, etc. by an appropriate group of peers. (professionally qualified but not directly involved in the issues being reviewed) should be recuired as a matter of policy whether differences of coinion have been noted or not. Among the advantages of such a procedural requirement are that: o Opportunity is provided to " smoke out" any unheard or unheeded opinions among qualified professionals. o persons are less reluctant to serve on such peer reviews than when resolution of polarized positions is the prescribed purpose, and , o Availability of a documented record of key decisions and their bases is assured. The last point listed above is felt to be important because it has been noted in practice that the majority of " differences ,of , professional coinion" encountered are actually misunderstandina as to the basic cuestions beino addressed, generally as the result of incomplete or unaccurate input infermation on relevant background, bases, assumptions, requirements, constraints, etc. This type of divergent view is counterproductive and shouid be minimized by effective communication and documentation procedures. Another factor contributing to unproductive polarization is that often acency pcsitions are develooed gradually and without formal notification so that crofessionals with valid _p.ositions of cotential sienificance are not aware that their_ inputs should 'be contributed until preliminary conclusions already L have been reached and some sort of " confrontation" is recuired to affect final results. Occurrence of such instances also can be pinimized by open and effective' cccmunication.
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3 l l In summary, it is felt that the first step in procedures for assuring. 1 constructive resolution of differina orofessional viess si.ould be to reouire that notice of intent to establish an agency oosition or to take some other significant action having potential impact on public health _ and safety be) published and distributed to all components or individuals _with valid I
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interest and potential inpu.t, Such notice should include reference to what key bases and constraints.are or where authoritative information .of this type can be obtained. Another early step in the procedural system should be the l recuirement for oeer review of all sicnificant actions to include evaluation ' of minority coinions, if any., and evaluation of why they are absent, if none have been identified. As used to establish mandatory engineering and design review requirements in industry, such procedures include provisions for documenting review team action recommendations and for requiring responsible management response within specified times. l As a final comment, it is felt that providino soecial incentives and recognition for those utilizing grievance-type procedures to air differences in professional opinion is not necessary or desirable. Some short-term benefits might be obtained where , conditions within an organization were already beyond recovery by straightforward operational controls but primary emphasis should be on eliminating . basic causes for valid opinions not getting a fair hearing rather than encouraging people not to get issues resolved by normal cooperative means. AEC 9,'7/78 d}}