ML20218A416

NRC-2018-000493 - Resp 2 - Interim, Agency Records Subject to the Request Are Enclosed

ML20218A416
Person / Time
Issue date:	01/08/2019
From:	NRC/OCIO
To:
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ML20218A414	List: ML20218A415 ML20218A416
References
FOIA, NRC-2018-000493
Download: ML20218A416 (214)

Text

REPORT OF TITE CO-CHATRS OF THE EEOC SELECT TASK FORCE ON THE STIJDY OF HAIRASSMENT IN THE WORKPLACE EXECUTIVE

SUMMARY

As co-chairs of the Equal Employment Opportunity Commission's Select Task Force on the Study of Harassment in the Workplace ("Select Task Force"), we have spent the last 18 months examining the myriad and complex issues associated with harassment in the workplace. Thirty years after the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964, we conclude that we have come a far way since that day, but sadly and too often still have far to go.

Created in January 2015, the Select Task Force was comprised of 16 members from around the country, including representatives of academia from various social science disciplines; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor. The Select Task Force reflected a broad diversity of experience, expertise, and opinion. From April 2015 through June 2016, the Select Task Force held a series of meetings - some were open to the public, some were closed working sessions, and others were a combination of both. In the course of a year, the Select Task Force received testimony from more than 30 witnesses, and received numerous public comments.

Throughout this past year, we sought to deploy the expertise of our Select task Force members and our witnesses to move beyond the legal arena and gain insights from the worlds of social science, and practitioners on the ground, on how to prevent harassment in the workplace. We focused on learning everything we could about workplace harassment - from sociologists, industrial-organizational psychologists, investigators, trainers, lawyers, employers, advocates, and anyone else who had something useful to convey to us.

Because our focus was on prevention, we did not confine ourselves to the legal definition of workplace harassment, but rather included examination of conduct and behaviors which might not be "legally actionable," but left unchecked, may set the stage for unlawful harassment.

This report is written by the two of us, in our capacity as Co-Chairs of the Select Task Force. It does not reflect the consensus view of the Select Task Force members, but is informed by the experience and observations of the Select Task Force members' wide range of viewpoints, as well as the testimony and information received and reviewed by the Select Task Force. Our report includes analysis and recommendations for a range of stakeholders: EEOC, the employer community, the civil rights community, other government agencies, academic researchers, and other interested parties. We summarize our key findings below.

Workplace Harassment Remains a Persistent Problem. Almost fully one third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment. This includes, among other things, charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy}, race, disability, age, ethnicity/national origin, color, and religion. While there is robust data and academic literature on sex-based harassment, there is very limited data regarding harassment on other protected bases. More research is needed.

iv

REPORT OF THE CO-CHArRS OF THE EEOC SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE Workplace Haras.'tment Too Often Goes Unreported. Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action - either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.

There ls a Compelling Business Case for Stopping and Preventing Harassment. When employers consider the costs of workplace harassment, they often focus on legal costs, and with good reason. Last year, EEOC alone recovered $164.5 million for workers alleging harassment

- and these direct costs are just the tip of the iceberg. Workplace harassment first and foremost comes at a steep cost to those who suffer it, as they experience mental, physical, and economic harm. Beyond that, workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm. All of this is a drag on performance - and the bottom-line.

It Starts at the Top -*Leadership and Accountability Are Critical. Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment. The importance of leadership cannot be overstated - effoctive harassment prevention efforts, and workplace culture in which harassment is not tolerated, must start with and involve the highest level of management of the company. But a commitment (even from the top) to a diverse, inclusive, and respectful workplace is not enough. Rather, at all levels, across all positions, an organization must have systems in place that hold employees accountable for this expectation.

Accountability systems must ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so). Finally, leadership means ensuring that anti-harassment efforts are given the necessary time and resources to be effective.

Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool - it's been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum - it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer' s most valuable resource in preventing and stopping harassment.

New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. "Bystander intervention training" - increasingly used to combat sexual violence on school campuses - empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may V

REPORT OF TIIE CO-CHAIRS OF THE EEOC SELECT TASK FORCE ON 1HE S1UDY OF HARASSMENT IN THEWORKPLACE show promise for harassment prevention. Workplace "civility training" that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.

It's On Us. Harassment in the workplace will not stop on its own - it's on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves. For this reason, we suggest exploring the launch of an It's on Us campaign for ithe workplace. Originally developed to reduce sexual violence in educational settings, the It's on Us campaign is premised on the idea that students, faculty, and campus staff should be empowered to be part of the solution to sexual assault, and should be provided the tools and resources to prevent sexual assault as engaged bystanders. Launching a similar It 's on Us campaign in workplaces across the nation - large and small, urban and rural -

is an audacious goal. But doing so could transform the problem of workplace harassment from being about targets, harassers, and legal compliance, into one in which co-workers, supervisors, clients, and customers all have roles to play in stopping such harassment.

Our final report also includes detailed recommendations .and a number of helpful tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated; ensuring employees are held accountable; and assessing and responding to workplace "risk factors" for harassment.

VI

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Differing Professional Opinions ml

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• Commission Encouragement of DPOs Based on Space Shuttle Columbia Accident, Davis Besse and Other Events

• Purpose is to Allow All Views to be Fully Heard and Dispositioned

• DPO Process NOT Intended to Drive "One View" or Make People Happy

• Significant Number of NRC Managers Believe Current Process Drives Paralysis

• Process Must be Improved to Ensure Views are Heard and Dispositioned in a Timely and Efficient Manner

• NRC Managers Must Be Empowered to Make Decisions 5 I NRC Stakeholders Meeting

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Safety Culture Goal O.,~,d;t,$allt~rm:<oiwl9CM.~ILll)ICHOI< lll'..lllJ;J/1 f!UJ:B.1151 "The NRC defines nuclear safety Nuclear Power and.the culture as the core values and Need for Climate Change behaviors resulting from a collective commitment by leaders David Lochbaum and individuals to emphasize Director, Nuclear Safety Project safety over competing goals to www.ucsusa.org ensure protection of people and the environment."

July 26, 2016 Topics Safety Culture As-is NRC's Safety Culture Goal vs. "Compared to 2009, NRC has Reality significantly decreased in eight categories, including Differing NRC's Safety Conscious Work Views processes, Engagement, Environment Goal vs. Reality Empowerment and Respect, ... ,

Climate is Changing in the NRC Mission & Strategic Plan, ***

Wrong Direction Elevating Concerns ***"

Need for Changing this Climate Source: 201 II ~llC Sa fety Cultu re and Cllmate Survey (ML'll6106A012)

Safety Conscious Safety Culture As-is Work Environment Goal "Quality Focus: *** a larger portion "A safety conscious work of participants feel that great environment is maintained where pressure is put on meeting personnel feel free to raise safety metrics rather than on producing concerns without fear of quality work" retaliation, intimidation, harassment or discrimination."

Source: 2015 NRC . .fety Culture and Cl imate S - , .

(ML1 6106A01 ~

Safety Conscious Safety Culture As-is Work Environment As-is uopen Collaborative Work Environment: Although participants "Elevating Concerns and think NRC has a collective mind-set Empowerment: *** Other for a collaboratlve work employees feel that although environment, many do not think this there Is a strong encouragement mind-set actually translates Into to elevate concerns, It Is collaborate working conditions.

stigmatizing to actually do so."

Participants feel that values such as openness and collaboration are no tonger practiced."

source: 201 s NIIC Safety Cult ure and Cllmate Survey Sourc e: 201 S NRC Safety Culture and Climate Survey (ML16106A0121 (ML18_1_06A012J

Safety Conscious Safety Conscious Work Environment As-is Work Environment As-is "Differing Views Processes: ... A majority of participants feel the "75 percent believed that their non-concurrence program was put performance evaluations were in place only to document adversely affected, 63 percent felt disagreements and are concerned they were excluded from work that if you disagree with your activities, and 25 percent thought manager it c;an, and m,o st likely they were passed over for career will, affect your career path and development."

advancement."

8ource1 2011 NRC Safety Cultur* and Climate Su,-y Sourc*: 2014 Non-Concu"anc* ProceH A**

• H ment (ML1§106AQUI (ML140S6~2M)

Safety Conscious Safety Conscious Work Environment As-is Work Environment As-is 6% of 209 workers exiting the

" ... many of the [.n on-concurrence NRC said that dissatisfaction with program] submitters believed they inaction by the agency was a experienced some type of factor in their decision to leave negative consequence as a result of submitting a non-concurrence. 4% of the 209 workers exiting the NRC said that fear of reprisal for raising a differing view was a factor in their decision to leave Sourc e1 2014 Non-Concurrence Proce** AHeHMent So&lrce: NRC Ex.It S u,,,.y (Aprll 2015 - Merch 2011 1 CMI..M..Q!Lm!J .0 (ML16109A345)

Climate Change in Wrong Direction Perception Gap "Differing View Processes: Overall SES*

Assesses employee awareness Differing Views 47 81 and perceived effectiveness of the Differing Professional Quallty Focus 51 77 Opinions and the Non-concurrence process." Elevating Concerns 60 89 2015: 47% Total Favorable Score

• It's hard to solve problems you don't 2012: 50% Total Favorable Score see.

Source: 2015 NRC Safwty Culture and Cllm*te Survey Source, 20115 NRC Safety Cultwe and cnmate Survey (ML161Q8AQ1ZI . (ML18106AQ121 Climate Change in Wrong Direction Need for Climate Change "Quality Focus: Evaluates "I can disclose a suspected employees' perception of NRC violation of any law, rule or safety culture, how safe they feel regulation without fear of at work, and NRC's commitment reprisal" to publlc safety."

2015: 74.8%

2015: 51% Total Favorable Score 2010: 80.2%"

2012: 54% Total Favorable Score Sowce: 2015 NRC Safety Culture

• d Climate Survey Source: 2018 Federal E111ployee VI-point Survey Report (ML16106A01_~ (ML 18102A30 __i)

Need for Climate Change Need for Climate Change "I am frequently worried about the "I believe the results of this following Impacting the future of survey wlll be used to make my the NRC: agency a better place to work" Nuclear events 13% 2015: 56.4%

Project AIM 50%" 2010: 72.2%"

Source, 2018 NRC Safety Cult ure and CU- to Su,-i, Sovrcea20111 foderol l!mploi,oo Viewpoint Surwi, ltoport (ML111 Q6A012l ~ 102Al!rn Need for Climate Change "I believe the results of this survey will be used to make my agency a better place to work" 2015: 56.4%

2010: 72.2 %"

Sourcor 20111 federal l!mploi,oo Viewpoint Survey lloport

(,NIL16102A308)

U.S. Department of Labor Office or Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX)

Issue Date: 13 July 2017 In the Matter of MICHAELS. PECK Complainant

v. Case Number: 2017- ERA- 00005 NUCLEAR REGULATORY COMMISSION Respondent BILLIE PIMER GARDE, ESQUIRE FOR COMPLAINANT JACK MCKIMM, ESQUIRE FOR RESPONDENT ORDER

SUMMARY

DECISION AS TO JURISDICTION CLAIM DISMISSED A hearing was scheduled for August 17, 2017 in Knoxville, Tennessee, pursuant to the Energy Reorganization Act of 1974, as amended ("ERA"), which provides whistleblower protections to certain employees for engaging in certain protected activities. After I held a telephone conference, Respondent filed a Motion to Dismiss based on sovereign immunity and precedential case law. The Complainant filed a response in the nature of an objection.

Jurisdiction is a threshold matter. Under 29 CFR § t 8.72 Summary decision:

(a) Motion/or summary decision or partial summary decision. A party may move for summary decision, identifying each claim or defense-or the part of each claim or defense-on which summary decision is sought. The judge shall grant summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law. The judge should state on the record the reasons for granting or denying the motion.

Section§ 5851 (a) of the Act as amended prohibits discrimination against an employee by an employer for notifying an employer of allegations of violations this Act or the Atomic Energy Act of 1954 (42 (U.S.C. 2011 et seq. or AEA)); ifan employee refused to engage in any unlawful activity under this Act or the AEA; testified before Congress or at any Federal or State proceeding regarding

any provision of this Act or the AEA; commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act or the AEA or a proceeding for the administration or enforcement of any requirement imposed under this Act or the AEA; testified or is about to testify in any such proceeding; or assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this Act or the AEA.

(2) For purposes of this section, the term "employer" includes-(F) the Commission; and (G) the Department of Energy.

(b} Complaint, filing and notification.

(I) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within 180 days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (in this section referred to as the "Secretary") alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the tiling of the complaint, the Commission, and the Department of Energy.

(2) (A) Upon receipt of a complaint filed under paragraph ( 1), the Secretary shall conduct an investigation of the violation alleged in the complaint. Within thirty days of the receipt of such complaint, the Secretary shall complete such investigation and shall notify in writing the complainant (and any person acting in his behalf) and the person alleged to have committed such violation of the results of the investigation conducted pursuant to this subparagraph.

Within ninety days ,o f the receipt of such complaint the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subparagraph (B) or denying the complaint. An order of the Secretary shall be made on the record after notice and opportunity for public hearing. Upon the conclusion of such hearing and the issuance of a recommended decision that the complaint has merit, the Secretary shall issue a preliminary order providing the relief prescribed in subparagraph (8), but may not order compensatory damages pending a final order. The Secretary may not enter into a settlement tenninating a proceeding on a complaint without the participation and consent of the complainant.

(B) 1f, in response to a complaint filed under paragraph ( 1}, the Secretary detennines that a violation of subsection (a) has occurred, the Secretary shall order the person who committed such violation to (i) take affinnative action to abate the violation, and (ii) reinstate the complainant to his fonner position together with the compensation (including back pay), tenns, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys' and expert witness fees) reasonably incurred, as detennined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

42 U.S.C. § 585 I.

I am advised by Respondent that when Congress amended the Act in 2005 to include the NRC within the definition of "employer" in § 5851 (a), it did not amend the remedies section of the Act,§ 585 l(b), which only allows "persons" to be held liable, to expressly include the NRC as a "person" under the Act.

I am directed to Mull v. Salisbury Veterans Admin. Med. Clinic, ARB No.09-107, AU No. 2008-ERA-008, slip op. at 9 (ARB Aug. 31, 2011). In that case, the complaint alleged that complaint alleging that the Respondent, Salisbury Veterans Administration Medical Center (SVAMC), terminated his employment in violation of the employee protection provisions of the Energy Reorganization Act, 42 U.S.C.A. § 5851 (ERA), because he complained that SVAMC intended to hire an unqualified Radiation Safety Officer in violation of applicable regulations.

SVAMC filed a Motion to Dismiss the complaint on the grounds of sovereign immunity. On April 13, 2009, Judge Kenneth Krantz ruled that the federal government had waived sovereign immunity with regard to the equitable remedies being sought and denied the Respondent's motion to dismiss. The Respondent sought and obtained interlocutory review of that ruling by the Administrative Review Board ("ARB"). On August 31, 2011, the Board reversed Judge Krantz' ruling and remanded the complaint for proceedings consistent with its decision. After hearing argument from all of the parties including the Department of Labor, The ARB compared the statutory language of the EPA with the language of three other environmental whistleblower statutes where sovereign immunity was expressly waived 1:

The ERA is decidedly different than these three examples, because unlike each of them, the ERA never defines "person," the entity employees are permitted to sue, anywhere in its language. Neither does it direct us to seek that definition elsewhere.

In any event, we point out that we see validity in arguments on both sides of the issue as to whether Congress intended to waive federal government sovereign immunity, and this, considered in favor of the sovereign, compels us to conclude that the ERA does not waive immunity because we find no unequivocal expression of intent to waive in the ERA.

On December 23, 2011, Judge Krantz dismissed the case. No appeal was taken.

The parties addressed the 2005 amendment that added the NRC as an "employee" but, in essence the ARB has determined that "person" is a missing factor. l find that this case has not been superseded and has the force of law. I note that in Mull the Department of Labor took the position that sovereign immunity had been waived. I note that the parties and the ARB did not address Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

where the Supreme Court established a two prong test for inte~reting statutes that may be ambiguous, and did not address the "rights/remedy dichotomy. Where an "employee" is given a right, (s)he should be entitled to a remedy. The Complainant has the burden to overcome Mull v.

1 Those statutes are the Clean Air Act, 42 U.S.C. § 7622 (2000) (CAA); the Solid Waste Disposal Act, 42 U.S.C. § 6971 (2000) (SWDA); and the Federal Water Pollution Control Act, 33 U.S.C. § 1367 (2000) (FWPCA).

2 Tracy A. Thomas, "Ubi Jus,Jbi Remdium: The Fundamental Right to a Remedy under Due Process Symposium:

Remedies Discussion Forum," 41 San Diego law Rev. 1633 (2004 ).

Salisbury Veterans Admin. Med. Clinic. He does not present legislative intent to show waiver of sovereign immunity to overcome the textual analysis applied in Mull. I find that he has not met his burden.

After having been fully advised in this matter, I enter the following.

1. As to jurisdiction, there are no material facts in dispute.

2. Respondent NRC is an independent regulatory agency created by Congress in 1974 to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. The NRC regulates commercial nuclear power plants and other uses of nuclear materials through licensing, inspection, and enforcement of its requirements. Headquarter,ed in Rockville, Maryland, the NRC employs more than 3,200 federal employees across its headquarters, 4 regional offices, and a Technical Training Center (TIC) in Chattanooga, Tennessee.

3. The Complainant is an NRC employee who brought a whistleblower action under the ERA.

4. The NRC is an instrumentality of the U.S. Government which through the laws of the United States permits certain actions under a waiver of sovereign immunity.

5. The United States has not waived sovereign immunity for ERA whistleblower actions.

6. Therefore I do not have jurisdiction in this case.

7. Therefore, Res pondent NR(;'s Motion to Dismiss is GRANTED.

8. The hearing is CANCELLED.

DIOI.Wy a&gneel by o.,,._. &otornon ON: CN*Otf\~I SolOmon, OUoMffllnlo1rott.,, I.aw Judge, 0-US OOl Offlca o4 AdmlNICtathM Law Jt,dQH, L*W...hlnQtOft, 8 *.0 C, C*US locatlon:W1""1Qlon0C DANIEL F. SOLOMON ADMINISTRATIVE LAW JUDGE NOTICE OF APPEAL RIGHTS: This Decision and Order will become the final order of the Secretary of Labor unless a written petition for review is filed with the Administrative Review Board (the Board") within* 10 business days of the date of this decision. The Board's address is:

Administrative Review Board, U.S. Department of Labor, Suite S-5220, 200 Constitution Avenue, NW, Washington DC 20210, for traditional paper filing.

Alternatively, the Board offers an Electronic File and Service Request (EFSR) system. The EFSR for electronic tiling (eFile) permits the submission of forms and documents to the Board through the Internet instead of using postal mail and fax. The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> every day. No paper copies need be filed.

An e-Filer must register as a user, by filing an online registration fonn. To register, thee-Filer must have a valid e-mail address. The Board must validate thee-Filer before he or she may file any e-Filed document. After the Board has accepted an e-Filing, it is handled just as it would be had it been filed in a more. traditional manner. e-Filers will also have access to electronic service (eService), which is simply a way to receive documents, issued by the Board, through the fntemet instead of mailing paper notices/documents.

fnfonnation regarding registration for access to the EFSR system, as well as a step by step user guide and FAQs can be found at: https://dol-appeals.entellitrak.com. If you have any questions or comments, please contact: Boards-EFSR-Help@dol.gov The date of the postmark, facsimile transmittal, ore-filing will be considered to be the date of filing. If the petition is tiled in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition for review must specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily will be deemed to have been waived by the parties.

A~ the same time that you file your petition with the Board, you must serve a copy of the petition on (1) all parties, (2) the Chief Administrative Law Judge, U.S. Dept. of Labor, Office of Administrative Law Judges, 800 K Street, NW, Suite 400-North, Washington, DC 20001-8001, (3) the Assistant Secretary, Occupational Safety and Health Administration, and (4) the Associate Solicitor, Division of Fair Labor Standards. Addresses for the parties, the Assistant Secretary for OSHA, and the Associate Solicitor are found on the service sheet accompanying this Decision and Order.

If filing paper copies, you must file an original and four copies of the petition for review with the Board, together with one copy of this decision. In addition, within 30 calendar days of filing the petition for review you must file with the Board an original and four copies of a supporting legal brief of points and authorities, not to exceed thirty double-spaced typed pages, and you may file an appendix (one copy only) consisting of relevant excerpts of the record of the proceedings from which the appeal is taken, upon which you rely in support of your petition for review. If you e-File your petition and opening brief: only one copy need be uploaded.

Any response in opposition to a petition for review must be filed with the Board within 30 calendar days from the date of filing of the petitioning party's supporting legal briefofpoints

. s.

and authorities. The response in opposition to the petition for review must include an original and four copies of the responding party's legal brief of points and authorities in opposition to the p~tition, not to exct:ed thirty double-spaced typed pages, and may include an appendix (one copy only) consisting of relevant excerpts of the record of the proceedings from which appeal has been taken, upon which the responding party relies. If you e-File your responsive brief, only one copy need be uploaded.

Upon.receipt ofa legal brief tiled in opposition to a petition for review, the petitioning party may file a reply brief (original and four copies), not to exceed ten double-spaced typed pages, within such time period as may be ordered by the Board. If you e-File your reply brief, only one copy need be uploaded.

If a timely petition for review is not filed, or the Board denies review, this Decision and Order will become the final order of the Secretary of Labor. See 29 C.F.R. §§ 24.109(e) and 24.110.

SERVICE SHEET Case Name: PECK MICHAEL v. NUCLEAR REGULATORY COMMISSION Case Number: 2017ERA00005 Document

Title:

Order Summary Decision as to Jurlsdlcatlon I hereby certify that a copy of the above-referenced document was sent to the following this 13th day of July, 2017:

8 SHEILA SMITH LEGAL ASSIST ANT Regional Administrator Assistant GeneralCounsel for Materials Region 6 Litigation and Enforcement U.S. Department of Labor, OSHA Office of the General Counsel Room 602 U. S. Nuclear Regulatory Commission 525 Ori ffin Street WASHINGTON DC 20555-0001 DALLAS TX 75202 (Hard Copy* Regular Mail}

(Hard Copy* Regular Mail}

Bayley Reporting, Inc.

Associate Solicitor l 2945 Seminole Blvd., Bldg. I Division of Fair Labor Standards Suite 14 U. S. Department of Labor SEMINOLE FL 33778 Room N-2716, PPB (Hard Copy

• Regular Mail}

200 Constitution Ave., N.W.

WASHINGTON DC 20210 Director

{Hard Copy* Regular Mail} Directorate of Whistleblower Protection Programs US Department of Labor, OSHA Director Room N 4618 FPB Office of Enforcement 200 CONSTITUTION AVE NW U.S. Nuclear Regulatory Commission WASHINGTON DC 20210 One White Flint North {Hard Copy

• Reg11/ar Mail}

11555 Rockville Pike ROCKVILLE MD 20852-2738 Nuclear Regulatory Commission

{Hord Copy* Regular Mail} Region IV 1600 E. Lamar Blvd.

ARLINGTON TX 76011

{Hard Copy* Regular Mail}

SERVICE SHEET continued (20 I 7ERA00005 Case Decision) J>age: 2 ic ael S. Peck Ph.D (b)(6)

{Hard Copy - Regular Mail}

From: Anne Griggs <agriggs@eliinc.com >

Sent: Wednesday, July 19, 2017 6:14 PM To: Pedersen, Renee

Subject:

[External_Sender] RE: RE: RE: Upcoming presentation at NRC & Civility Rules ebook Hi Renee, Thank you very much, that should be fine. Yes you may include as well, great idea!

ELI gives permission to NRC to include a copy of the ebook, 6 Ways to make Civility Rules!, in the Appendix to the study.

Please let me know if you require addit ional information.

Thank you, Anne From: Pedersen, Renee [mailto:Renee.Pedersen@nrc.gov)

Sent: Wednesday, July 19, 20171:24 PM To: Anne Griggs <agriggs@eliinc.com>

Subject:

RE: RE: RE: Upcoming presentation at NRC & Civility Rules ebook

Anne, I already included a link to ELI in the body of the study in a bulleted list of sources and benchmarking. I don't know why it's pasting a link under everything, but in the study it just has a link under ELI. I added the register mark. Do I need register marks for the two ebooks? I'll also add a link the introductory language in the Appendix.

• ELI*, (Stephen Paskoff, Esq. President and CEO ) Safely Speaking for Managers* and Safely Speaking* for Employees; Creating a Cult ure of Speaking Up (ebook); 6 Ways to Make Civility Rule! (ebook)

By the way, I also included a link to the EEOC Task group study because themes of diversity and inclusion have a clear nexus to diversity of views. l was happy to see references to Steve in the study. EEOC, Select Task Force on t he Study of Harassment in t he Workplace Finally*, to keep our lawyers happy, can you please send me a clear statement that ELI gives permission to NRC to include a copy of the ebook in the Appendix to the study?

Renee From: Anne Griggs [1]

Sent: Wednesday, July 19, 2017 1:07 PM To: Pedersen, Renee <Renee.Pedersen@nrc.gov>

Subject:

[External_Sender] RE: RE: Upcoming presentation at NRC & Civility Rules ebook This is perfect, thank you. Below is the feedback I received:

All mentions of ELI gets a superscripted register mark - ELI All mentions of Safely Speaking should look like this - Safely Speaking for Managers and Safely Speaking for Employees

Make sure Steve has Esq. after his name - Stephen Paskoff, Esq.

It would be great to include the hyperlink, ELI Web site to our home page - www.eliinc.com Thanks for asking Renee!

Best, Anne From: Pedersen, Renee (mailto:Renee.Pedersen@nrc.gov]

Sent: Wednesday, July 19, 2017 12:23 PM To: Anne Griggs <agriggs@eliinc.com>

Subject:

RE: RE: Upcoming presentation at NRC & Civlllty Rules ebook Thanks for the response Anne. To be clear, I am referencing ELI materials as part of my benchmarking activities, but I wanted to actually include a copy of the ebook because I want senior managers to see it. I'm including a screen shot of the introductory language that I would include in the study.

Please let me know if this is acceptable or if you have any comments on the introductory language.

Renee

$tutfv of ~prhol orid Cll Ing We<t for Ra ~nil Miwon R~/Jlt'd Concc11111111d Dlffo,ini; Views al NRC AppendbcF EU Is I training company founded by Stephen Pflkoff to address unlawful wt unp,oductlve ~ In the wo,lcplace. Ye*l"$ ll80, ru developed Miomlted training for the nuclear community to suppo,t a

• safety consdous wott enwonment calledSefetv Spealcqf<< Managers* and Safely Spealcing" for

£~

In r ~ to cioncerns about the agency's lntemal safety culture, EU prOYfded senior manacetJ an 0

abbreviated session of Safety Spe.aklngfot M4ntgffl at a senior leadelship meeting In 2009. Due to sen1or rna"'3ement's positive response, EU prCMded numetous sessions to manag<<s and ,upffi'tSCfS In various NRC offlm. TIM! NRCsubsequently contracted wfth EU to aistomlze the materlets for the agency and certified rooltlple NRC employees as trainers. NRC certified trainers provided S.fefy Spealcrngfor ~nagm* on mul~ ~ to offkies upon request.

EU h a s ~ Its tralnlna IOCU$ Gl'I cMI behavior In the woncplace and prCMdes the follow!,.~ to anyone who registers on the EU Web site.

From: Anne Griggs [mailto:agriggs@eliinc.com)

Sent: Wednesday, July 19, 2017 12:09 PM To: Pedersen, Renee <Renee.Pedersen@nrc.gov>; Kelli Christ ian <kchristian @eliinc.com>

Subject:

[External_Sender] RE: Upcoming presentation at NRC & Civility Rules ebook Hi Renee, 2

Thank you for the kind words and that is wonderful to hear! I am double checking with our marketing team to see if referencing t he ebook would be an issue. Once I hear back, I will let you know.

I will be accompanying Steve to NRC on August 16, therefore I will make sure we connect in person while there. I have been working with Anthony Barnes who is hosting the conference.

Thanks again, Anne Anne C. Griggs Director of Client Development ELI Knowwt1atwomatWlllk...

804.543.6370 Civil Treatment* Train-the-Trainer Schedule:

Washington, DC: September 18 - 20; November 7 - 9 Atlanta, GA: August 15 -17; September 12 -14; October 17 -19; November 14-16; December 5 - 7 From: Pedersen, Renee @nrc.gov

Sent: Wednesday, July 19, 2017 11:25 AM To: Kelli Christian <kchrlstian@eliinc.com>

Cc: Anne Griggs <agriggs@eliinc.com>

Subject:

RE: RE: Upcoming presentation at NRC & Civility Rules ebook

Kelli, Thanks for the response. I look forward hearing from Anne.

Renee From: Kelli Christian @eliinc.com

Sent: Wednesday, July 19, 2017 9:45 AM To: Pedersen, Renee <Renee.Pedersen@nrc.gov>

Cc: Anne Griggs <agriggs@eliinc.com>

Subject:

[External_Sender) RE: Upcoming presentation at NRC & Civility Rules ebook Hi Renee, Thank you so much for reaching out. I have cc'd Anne Griggs as she is now working with NRC. I'm sure Steve would be delighted to meet you at the presentation. Anne will respond to your request.

All the best, Kelli Christian Director Client D evelopment 3

E LI tcnoww11atwoctsat work...

770.437.2422 I direct kcbristian(a ,eliinc.com Civil Treatment* Train-the-Trainer Schedule:

Washington, DC: September 18 - 20; November 7 - 9 Atlanta, GA: August 15 -17; September 12 -14; October 17 -19; November 14-16; December 5 - 7 From: Pedersen, Renee (mailto:Renee.Pedersen @nrc.gov]

Sent: Tuesday, July 18, 2017 3:44 PM To: Kelli Christian <kchristian@eliinc.com>

Subject:

Upcoming presentation at NRC & Civility Rules ebook Hi Kelli, I hope that you are doing well. You may remember me as a certified instructor at the NRC for Safely Speak.ing. I'm reaching out to you for two reasons.

First, it's my understanding that Stephen Paskoff will be making a presentation at the NRC on August 16 to address civility in the workplace. I would greatly appreciate it if you could pass along my desire to meet him when he is at the NRC.

Second, I'm currently working on a study of reprisal and chilling effect for raising concerns and differing views and I would like to include the ebook, "6 Ways to Make Civility Rule!" as an appendix to the study. The study is an internal NRC-only document intended to provide senior managers with considerations for continuous improvement in this area. I've also cited Safely Speaking and "Creating a Culture of Speaking Up," as resources that I reviewed in developing the observations and considerations in the study.

I've even gone as far as recommending that management consider "diversity and inclusion" beyond the traditional EEO-based understanding to include diversity of views. This is consistent with "You can't conquer if you divide." If senior management approves this approach, it could mean an opportunity for ELI to merge the custom materials from Safely Speaking with EEO-based materials. This is all very preliminary and speculative, but wa nted to make you aware of it.

Please let me know if it OK to include a copy of "6 Ways to Make Civility Rule!" in my study. I am a big ELI fan and have routinely passed along your emails to our office that is responsible for diversity and inclusion. I'm glad to see that they have invited Mr. Paskoff to speak to our employees.

I look forward to your response.

Note: Since "6 Ways to Make Civility Rule!"

Regards, is Appendix G to the Reprisal Study released, which we released in response to NRC-2018-000318, and is publicly available in ADAMS as ML18179A032, it is not reproduced herein.

Renee Pedersen Senior Differing Views Program Manager (301) 287-9426 Renee.Pedersen@nrc.gov 4

Current Practices No FEAR Act: The agency requires biennially training to all employees. The training was revised to highlight that raising nuclear concerns and using ODP, NCP, and DPO Program is considered protected activity. Scenario 4 was revised to address concerns for using NCP.

NCP & DPO Program: Voluntary training for all employees; required training for reactor inspector certification. Online in iLearn covers basic policy: "The NRC strives to establish and maintain an environment that encourages all NRC employees and contractors to raise concerns and differing views promptly, without fear of reprisal, through various mechanisms."

Organizational Culture & Values: Required training for new supervisors, voluntary course for employees. Instructor lead one hour segment addresses NRC's culture and differing views.

Covers that culture Is everybody's responsibility, that reprisal is not tolerated, provides limited advice to address potential reprisal and notes multiple ways to pursue allegation (see slide 15).

This course is scheduled to be revised beginning in September. OE has already requested additional time to address expanded discussion on reprisal.

New Employee Orientation: Will be addressed in pre-arrival guide. "We support an environment that encourages all employees to raise concerns and differing views promptly, without fear of reprisal. " Includes references to ODP, NCP, and DPO Program.

OCWE (aka environment for raising concerns without fear of retaliation): Since 2007, public web site includes goal, expected behaviors (NRC Team Player poster), and links to ODP, NCP, and DPO Program. http://www.nrc.gov/about-nrc/values.html#open Internal and web site includes similar information, in addition to list of ways to raise mission-related concerns and how to nominate someone for the NRC Team Player award.

http://www.internal.nrc.gov/HR/ocwe/index.html Periodic Announcements: NCP and DPO MDs require EDO and ODs/RAs to periodically communicate the value of NCP and DPO. ODs/RAs use newsletters, all-hands meetings, brown bag lunches to communicate value and showcase success stories.

Recognition and Success Stories: NCP and DPO MDs require that managers consider recognizing employees whose use of process resulted in an improved outcome or made a valuable contribution to the agency decision (e.g., performance award, special act, time off, NRC Team Player award, etc.). NRC Team Player award: Employees can nominate other employees or supervisors whose behaviors support a positive environment for raising concerns.

Award presented by EDO and story included in NRC Reporter.

Methodology Thanks to focus group: Renee, Marge Sewell OE; Jason Using, Yvonne Weed, OCHCO; Joel Kravitz, SBCR: Jack McKimm, OGC; Melissa Ralph, OEDO; Maria Schwartz, NTEU 2015 SCCS (looked for all data Q existed) & 2015/2016 FEVS; 14 sources of additional information/benchmarking, including:

OSHA's Recommended Practices for Anti-Retaliation Programs, EEOC's Select Task Force on the Study of Harassment in the Workplace; ELi's Safely Speaking & 6 Ways to Make Civility Rule; investigator training from Billie Garde & INPO training from Morgan Lewis.

Rights and Prot ections Regarding Whistleblower Protection Whistleblowing is the lawful disclosure of information an employee reasonably believes is evidence of a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

NRC employees receive whistleblower protection from these primary sources:

• The Whistleblower Protection Act of 1989

- http://www.osha.gov/OshDoc/data General Facts/whistleblower rights.pdf

- http:ljosc.gov/documents/pubs/post wbr.pdf

- http:ljosc.gov/documents/pubs/post ppp.pdf

• The Whistleblower Protection Enhancement Act of 2012

- http://www.gpo.gov/fdsys/pkg/PLAW-112publ199/pdf/PLAW-112publ199.pdf

• The Energy Reorganization Act of 1974, as amended

- Rights-under-era.pdf

• The Inspector General Act of 1978

- www.archives.gov/about/laws/inspector-act-1978.html

Rights and Protections Under th e Wh ist leblow er Protect ion Act of 1989 The W histleblower Protection Act of 1989 was enacted to strengthen protection for Federal employees who claim that they have been subjected to prohibited personnel actions because of their whistleblower activities.

The Office of Special Counsel (OSC) is an independent Federal agency that investigates and prosecutes allegations of prohibited personnel practices, with an emphasis on protecting Federal Government whistleblowers. It seeks corrective action remedies as appropriate.

Additional Protections Under the Whistleblower Protection Enhancement Act of 2012

• The WPEA added several key enhancements to whistleblower protections:

Clarifying that a disclosure does not lose protection because: (1) the disclosure was made to a person, including a supervisor, who participated in the wrongdoing disclosed; (2) the disclosure 'revealed information that had previously been disclosed; (3) of the employee or applicant's motive for making the disclosure; (4) the disclosure was made while the employee was off duty; or (5) of the amount of time which has passed since the occurrence of the events described in the disclosure.

Allowing for compensatory damages in whistleblower cases Prohibition on certain non-disclosure agreements Expanded ability to pursue an Individual Right of Action Appeal for most 2302(b)(9) reprisal claims, including: retaliation for filing a whistleblower appeal; retaliation for assisting an individual in the exercise of an appeal, complaint or grievance right; retaliation for cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel; or retaliation for refusing to obey an order that would require the individual to violate a law.

Rights and Protections Under the Energy Reorganization Act of 1974, as amended

• The Energy Reorganization Act (ERA) makes it illegal to discharge or otherwise retaliate against an employee in terms of compensation, conditions, or privileges of employment because the employee or any person acting at an employee's request engages in protected activity.

• Employers covered by the ERA are:

The NRC A contractor or subcontractor of the NRC A licensee of the NRC or an agreement state, and the licensee's contractors and subcontractors An applicant for a license, and the applicant's contractors and subcontractors The Department of Energy {DOE)

A contractor or subcontractor of the DOE under the Atomic Energy Act {AEA}

• You are engaged in protected activity when you:

Raise an apparent nuclear safety concern at the NRC through informal discussion, the Open Door Policy, the Non-Concurrence Process, or the Differing Professional Opinion Program Notify your employer of an alleged violation of the ERA or the AEA Refuse to engage in any practice made unlawful by the ERA or the AEA Testify before Congress or at any Federal or State proceeding regarding any provision or proposed provision of the ERA or the AEA

• Commence or cause to be commenced a proceeding under the ERA, or a proceeding for the administration or enforcement of any requirement imposed under the ERA Testify or are about to testify in any such proceeding Assist or participate in such a proceeding or in any other action to carry out the purposes of the ERA or the AEA

Procedures for Filing Whistleblower Claims

• Any NRC employee who believes they have been subjected to a prohibited personnel action in retaliation for whistleblowing, may fire an appeal with the MSPB or a complaint with the OSC. If your allegation of whistleblower retaliation involves a personnel action that is appealable to the MSPB, you may file an appeal directly to the MSPB no later than 30 days after the effective date of the action being appealed, or 30 days after receipt of the agency's decision, whichever is later.

- If the personnel action is within the MSPB's jurisdiction, the employee may also elect to file a complaint with the OSC before filing an appeal with the MSPB.

- If the personnel action does not fall under the MSPB jurisdiction, you must first fire a complaint with the OSC before filing an appeal with the MSPB. This is known as an Individual Right of Action Appeal

• For claims that MUST first be filed with OSC, and after the OSC com pf aint process is exhausted, the appellant may file an appeal with the MSPB no later than 65 days after the date that OSC's written notification was issued terminating the investigation.

• If OSC has not notified the employee that it will seek corrective action within 120 days of the filing date, the appellant may file an MSPB appeal at any time after the 120 day period expires.

Alternate Procedures for Filing W histleblow er Claims

• Bargaining unit employees who believe they have been subjected to prohibited personnel actions in retaliation for whistleblower activities, may also file a grievance under the CBA; however, you must choose either one of the statutory procedures or the negotiated grievance procedure, but not both.

• Bargaining and non-bargaining unit employees who believe they have been subject to a prohibited personnel action in retaliation for whistleblowing are encouraged to bring such matters to the attention of their management officials. They may also notify the NRC OIG.

Procedures for Filing Claims under the Energy Reorganization Act of 1974 You may file a complaint within 180 days of the retaliatory action. A complaint must be in writing and may be delivered in person or by mail to the nearest local office of the Occupational Safety and Health Administration {OSHA), Department of Labor (DOL), or to the Office of the Assistant Secretary, OSHA, Department of Labor, Washington, D.C. 20210.

If DOL has not issued a final decision within 1 year of the filing of the complaint, you have the right to file the complaint in U.S. District Court for de nova review, so long as the delay is not due to your bad faith.

Filing a complaint with OSHA does not prohibit an employee from also filing a complaint with the OSC.

References

• Occupational Safety and Health Administration {OSHA)

Energy Reorganization Act (ERA)

- Your Rights Under the Energy Reorganization Act. - 24 App A Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as Amended

Prohibited Personnel Practices Under 5 USC§ 2302(b)

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority:

1. Oiscf'iminate on the basis of race, sex, national origin, color, religion, disability, age, marital status, sexual orientation, or political affiliation.

2. Solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics.

3. Coerce the political activity of any person, or take action against any employee as reprisal for refusing to engage in political activity.

4. Deceive or willfully obstruct any person from competing for employment.

5. Influence any person to withdraw from competition for a position to improve or injure the employment prospects of any other person.

6. Give an unauthorized preference to a person to improve or injure the employment prospects of any particular employee or applicant.

7. Engage in nepotism (hire, promote, or ad"ocate the hiring of relatives).

8. Take a personnel action against an employee because of whistleblowing.

9. Take a personnel action against any employee because of the exercise of an appeal, complaint, or grievance right.

10. Discriminate against an employee on the basis of conduct, which does not adversely affect the performance of the employee.

11. Take or fail to take a personnel action, if such action would violate a veterans' preference requirement.

12. Take a personnel action against an employee which "iolates a law, rule, or regulation which implements a merit systems principle at 5 u.s.c. 2301.

13. Implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain a required statement notifying employees of their rights to make disclosures consistent with statutes and Executive Orders, to include disclosures to Congress and the Inspector General.

Proh ibited Personnel Pra ctices under the Energy Reorganization Act of 1974 Employers may not retaliate against you for engaging in protected activity by:

- Intimidating

- Threatening

- Restraining

- Coercing

- Blacklisting

- Firing

- Demoting

- Disciplining

- Discriminating regarding terms and conditions of employment (e.g., reassignment or denial of overtime or promotion)

- Or in any other manner retaliating against you

Related NRC Policies and W eb sites

1. Management Directive 7 .4 "Reporting Sus-pected W rongdoing and Processing OIG Referrals"

2. "Employee Information Regarding Whistleblower Protection, Anti-Discrimination and Retaliation"

3. NRC's Civil Rights Program Web site

4. Office of the Inspector General Web links 1, 2, and 3 are only accessible from NRC facilities.

Introduction transcript for on-line NGP & DPO Program Training Hello I'm Victor Mccree, the NRG's Executive Director for Operations.

I want to personally thank you for being part of the NRG workforce and for taking the time to focus on this important topic.

The NRG has earned a reputation of being a premier regulator of nuclear materials and a best place to work in the federal government.

I believe that the NRG is successful because of our talented and dedicated employees and our robust organizational culture. Our organizational culture reflects the qualities the NRG believes in and how the NRC will conduct its work, as well as how we treat each other and our stakeholders.

At the NRG, we foster a culture in which all employees live the NRG's values, demonstrate a positive safety culture, and adhere to the Principles of Good Regulation to support the NRC's mission to protect public health, safety, and the environment.

The NRC culture includes a system of shared values, beliefs, and behaviors that demonstrate our collective commitment to emphasize safety as the overriding priority in our regulatory decisionmaking, and that recognizes the important role each of us plays in NRC's success. We are committed to creating and sustaining a positive work environment to ensure we remain a model regulator.

Everyone has a role in safety at the NRC.

Whether you perform an administrative, technical, or legal function, the contribution each of you makes every day supports our safety and security mission. We are all responsible for protecting people and the environment.

In order to fulfill our mission, it is absolutely essential that we're able to collectively act as a team and fully utilize the talents of every single individual: The NRC holds its employees to a high standard of involvement and responsibility for the decisions that are made. At the NRG, we encourage collaborative problem solving and decisionmaking. We value diverse views, alternative approaches, critical thinking, unbiased evaluations, and honest feedback on how decisions are made.

We expect all of our employees to routinely engage in informal discussions on issues with their coworkers and supervisors. Informal discussions typically resolve concerns. However, when they don't, employees have various avenues for expressing and having their concerns and differing views heard and considered by management, including our Open Door Policy, Non-Concurrence Process, and Differing Professional Opinion Program. We are committed to maintaining an environment that encourages trust, respect, and open communication where employees are comfortable speaking up without fear of retaliation.

Thank you for all you do in supporting our important mission of protecting people and the environment.

I hope that you find this training useful.

EDO Video on Differing Views The video can be released one of two ways.

Option 1: Yellow Announcement (see draft on next page)

Option 2: Daily Announcement Daily Announcement Announcement Category: General Interest

Subject:

NRC Policy on Differing Views The NRC strives to establish and maintain an environment that encourages all NRC employees and contractors to raise concerns and differing views promptly, without fear of reprisal. The free and open exchange of views or ideas conducted in a non-threatening environment provides the ideal forum where concerns and alternative views can be considered and addressed in an efficient and timely manner that improves decisionmaking and supports the agency's safety and security mission.

Please click on the link to view a video message from the EDO that emphasizes the importance of the agency's policy on differing views.

UNITED STATES NUCLEAR REGULATORY COMMISSION Announcement Category Policy Reminder ML#

ML Publish on

, 2017 Yellow Announcement: YA-17-####-

Date: March##-, 2017 Expiration Date: October, 2020 TO: All NRC Employees

SUBJECT:

NRC POLICY ON DIFFERING VIEWS The NRC strives to establish and maintain an environment that encourages all NRC employees and contractors to raise concerns and differing views promptly, without fear of reprisal. The free and open exchange of views or ideas conducted in a non-threatening environment provides the ideal forum where concerns and alternative views can be considered and addressed in an efficient and timely manner that improves decisionmaking and supports the agency's safety and security mission.

Please click on the link to view a video message from me that emphasizes the importance of the agency's policy on differing views.

IRA/

Victor M. Mccree Executive Director for Operations Management Directive

Reference:

MD 10.160, "Open Door Policy,"Section I; MD 10.158, "NRC Non-Concurrence Process,"Section I; MD 10.159, "NRC Differing Professional Opinion Program,"Section I.

2016 Agencywide Action Plan Activity 3- Background 2016 Agencywide Action Plan - Issued June 9, 2016 (ML16148A211)

Focus area: Fostering a greater climate of trust at the NRC Associated goals:

1. Strengthen the positive environment for raising concerns

2. Promote a culture of fairness. empowerment, and respect across.the agency

3. Establish clear expectations and accountability for U.S. Nuclear Regulatory Commission (NRC) leaders The Action Plan contains six action Items. each of which will contribute towards achieving all of the goals.

Activity 3: Continue to develop/enhance activities that address concerns of retaliation and chilling effect for raising concerns, as well as support continuous improvement of the following:

• Open Door Policy

• Non-Concurrence Process

• Differing Professional Opinion Program Timeline: 3rc1 ORT FY17 Measurement: Improved feedback and responses from assessments and surveys. Includes timely feedback from process participants (75% positive feedback on process support), future SCCS (e.g., reduced concerns of retaliation) and 75% positive feedback from training and outreach.

Working Group (WG3):

Renee Pedersen OE 415-2742 Marge Sewell, OE 415-8045 Jason Lising, OCHCO 287-0569 Yvonne Weed, OCHCO 287-9463 Joel Kravitz, SBCR 415-0503 Jack Mckimm, OGC 287-9240 Melissa Ralph, OEDO 415-1720 NTEU Rep:

Maria Schwartz 415-1888

WG3 Focus:

N RC r&eds to ensure that it has a positive environment for raising concerns without fear of reprisal to ensure sustained employee engagement. Employee engagement is necessary to siupport informed decision-making to help ensure we fulfill our mission.

} 'J\lhere we've been

) VVhere we are

~ '\'Vhere we want to go What c:anwe do to reduce the fear of reprisal for raising concerns and differing views?

Thank you for allowing us to come and share information about the NRC's culture as it relates to differing views.

Introductions

Renee-celebrating 30 years with the NRC, engineering background, doing job for over a decade.

Marge-with agency for 10 Years and 3 years of experience in the differing views area.

Appreciate that you've already done introductions, but it helps us to know our audience. Audience poll:

How many employees 1-5 years? (Newbies)

How many employees 5-10 years?

How many employees 10-15 years? (Klingons)

How many employees more than 15 years?

How many employees are supervisors?

1

Marge Review objectives.

Our goal is not to make you experts on the drffering views processes but instead we'll provide you with a high level overview of them.

First we'll review NRC's policy on Differing Views. Next we'll review the processes we have in place for you to use to raise concerns or differing views. And lastly, we'll show you where to go for more info. about the processes.

Renee ICE BREAKER EXERCISE:

Everybody stand up. If you have ever had a different view from someone that you work with or a management position, please sit down.

Good. The NRC needs an engaged workforoe.

George Patten said:

"If everyone is thinking alike, then someone isn't thinking."

Marge Read definition.

It's important to note that the policy applies to everyone at the NRC-employees in all areas, including administrative & corporate staff & NRC contractors.

Everyone should be comfortable raising issues without fear of reprisal.

What do we mean by reprisal?

Reprisal in this context includes harassment, intimidation, retaliation or discrimination by management or co-workers against employees who raise mission-related concerns or express or support a differing view.

3

NRC Policy

• • f/1c fruu ill)(/ uµen cxc;/1dniJC of views or ideas conducted m a non-ttneMenmg cnv1ronmcn1 provides th<': rdc*al fonm1

~vllere conc()rns and alternat:vc v,ew.s can he cons1rlerer/ ilnd addresser/ m n11 crr,cienl anr/ limuly manner //wt 1111proves rtcers,onmaking ancl suppo,1s t11e agency*s safe/)' and scr:unty mission

• Renee Establishing an environment for raising concerns is about more than creating a nappy" work place. It is important for several reasons.

It supports sound decisionmaking.

There is value to considering alternative approaches and differing views even when the views are not adopted. Having all perspectives improves our chances of making Jhe best d~~i~ions. This is especially important when we are engaging 1n new act1v1t1es.

It can help us be more effective and efficient.

It supports continuous improvement and sustaining excellence.

It encourages innovation.

It supports sustained employee engagement.

It's an effective method of transferring 'know how' among individuals, so it supports KM Bottom line: Why is creating a healthy environment for raising concerns important?

4

Renee Safety and security are our mission-it's the reason we exist.

5

Renee What does a healthy environment for raising concerns feel like? What's the temperature in your office (section, branch, division)?

Click 1. Is it sunny and inviting? Click 2. The goal is a model work place where employees are encouraged to raise concerns and differing views.

Click 3. Or does it feel chilly and suppressed? Click 4. A chilled work environment occurs when an event, interaction, inaction, decision, or policy change results in a perception that the raising of mission-related concerns or differing views to management is being suppressed or is discouraged or will result in reprisal (harassment, intimidation, retaliation, or discrimination).

Click 5. Maybe it's partly sunny and differing views are merely tolerated.

Let's hope it's not a hostile work environment. Click 6. A discriminatory work environment that includes inappropriate intimidating or offensive behavior, comments, jokes, and any other conduct related to an individual's expression of a mission-related concern that makes it difficult to perform his or her job. Click 7.

So, what's the temperature in your office (section, branch, division)? Invite audience participation.

6

Renee Employees need to understand how they fit in and what is expected of them.

Employees are responsible for using their skills to provide management their best answers, advice, information, and recommendations on issues.

Managers are responsible for decision-making. Employees play a part in the decisionmaking process and can affect decision-making, but management is ultimately responsible for making regulatory decisions.

Barriers will vary depending on your work unit, but typically involve the three "T's"--time, turf, trust.

People may think it takes too long to get input. In the short-term, collaboration will generally take more time and effort; however, in the long-term it will save time. Make TIME ... pay me now, pay me later.

Discussions can be difficult when confusion on roles and responsibilities creates turf issues (especially across organizational boundaries). We all work for the NRC.

Lack of trust can bring a healthy environment to a "freezing" halt and perpetuate a fear of speaking up. Good resources out there-Speed of Trust.

Employees must really believe in the benefits, e.g ., it's worth the investment-supports our mission.

We need to strive for and support continuous impmvement. It includes a questioning attitude and raising concerns.

It takes personal commitment. Our values and behaviors play a critical role.

We all have to be committed to modeling the right values and behaviors. We need to walk the talk.

7

Ways to Raise Differing Views f . ,.,

lnforr11al Discussion ' ,

• • • ,~*

Open Door Policy l'.J Non-Concurrence Process  ;'!!..~*

- ~ *l Differing Professional Op,rnons Progrwn Marge The NRC has many ways for employees to raise concerns and differing views depending on the nature of your issue. I'll show you where you can find more information on the various processes to help employees later in the presentation.

For the purposes of this discussion, we'll focus on the value of informal discussion and address three processes that you can use to pursue mission-related concerns and differing views.

It's important to note that it is O.K. to agree to disagree at the NRC. We understand that we aren't always going to agree and we have these processes in place to ensure that we keep communication open to assist in good regulatory decision-making.

8

Marge All NRC employees and contractors are expected to discuss their views and concerns with their immediate supervisors on a regular, ongoing basis.

Even if you don't feel that communications have been successful in the past, you shouldn't assume that they will always be unsuccessful.

Informal discussion should be the norm.

We encourage everyone to engage in productive communications.

We've included "Tips for Effective Communication" in your handout.

Employees should engage in informal discussions until they have reached a common understanding of the issues.

Remember, it takes two to communicate. Click 1.

9

Beyond Informal Discussions

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\\lt 11-r1 .;1;i1<:'i:.:ri1Pr.t h,r; nc;l Lii:er: H\lCtH:C 0r !hf' 111{!:*,*1du;i!'j cnnc:t~rn n<..1s not t;,~cn ott1er-1.1s*.'

• esoh:t!d VYhen 1l 1s unhktily t~c1t c1dd *t1on..-1I d :scus'.:;1t,11 wd: rt~stift m ,111 aqrnc;1blc outcome Marge How long should you engage in informal discussions?

Click 1 When issues and views have been fully vetted Click 2 When it is clear that views are fully understood Click 3 When no new information is exchanged Click 4 When participants can agree to disagree Click 5 When agreement has not been reached, or the individual's concern has not been otherwise resolved Click 6 When it is unlikely that additional discussion will result in an agreeable outcome.

When you've reached this point, you should consider other options beyond informal discussion. Continuing discussions can actually become non-productive and viewed as a strategy to talk an employee into submission.

Let's talk about three processes you can use to raise a mission-related concern or differing view.

10

Renee The Open Door Policy is different than routine informal discussions.

As a first line supervisor, you should encourage informal discussions with your employees. You may also say that you have "an open door." That's OK, but it is different than communications under the Open Door Policy.

The ODP can be used to communicate with any manager, beyond the first-line supervisor. It can be used to address any work-related issue, but the intent is that it be used for mission-related issues.

Managers should consider assisting employees raise differing views up the chain or across organizational boundaries-even when they don't necessarily agree with issue.

Employees shouldn't use process as a routine approach to decision-making, use when ,discussions with supervisor don't work or are not comfortable.

Employees don't have to notify supervisor, but can and can ask for supervisor to attend meeting . .

Employees should request confidentiality if the desire, but recognize that actions to address concern could inadvertently identify the employee.

Managers and co-workers shouldn't hold it against employees who uses Open Door Policy.

It's understandable that a supervisor would feel upset if an employee didn't come to them with an issue, but the policy allows it. Maybe the employee didn't feel comfortable?

11

Marge It's important to note that the NCP applies to employees who have been asked to review or contribute to a document even if they are not on concurrence.

Employees can also ask to use the NCP if they have been previously involved on an issue or have knowledge and skills about the issue. It's better to allow employees to provide insights before a decision is made, than have the issues brought up as a DPO.

Document signers can also suggest that an employee be allowed to use the NCP if they believe it enhances the decision-making process and contributes to knowledge management.

Employees who want to use the NCP, should talk to their supervisors early to discuss an appropriate amount of time to submit an NCP.

There is no overall timeliness goal or metric for the NCP. The time to respond to an NCP is part of the timeliness goal of getting the subject document issued. Extensions may be necessary to support a complete review and documented response to the non-concurrence. There are timeliness goals for certain steps, such as an NCP should be submitted within 1 week of verbally notifying the intent to use the process.

Managers and co-workers shouldn't hold it against employees who uses NCP.

Participants in the NCP should remember that the NCP is a communication tool and that they should focus on the issues, not the people.

A key attribute of the process is that when it's complete, the employee can ask that the NCP Form be public.

12

Renee It's important to emphasize that the DPO Program applies to all employees and all issues, including administrative or corporate policy Issues, provided they are related to the NRC mission.

DPO Program is different that NCP because it applies to established issues and also includes independent DPO Panel.

The DPO PM establishes the DPO Panel in cooperation w/ applicable OD/RA, Director, OE, and DPO submitter.

Process allows submitter to nominate an employee as a panel member.

Panels usually have 3 members, headed by SES manager.

DPO Panel provides report and recommendations to OD/RA.

OD/RA doesn't have to agree with report. It is a tool to aid manager in decision-making.

If DPO submitter doesn't agree with the decision, it can be appealed to EDO. EDO has discretion for conducting review.

DPO summaries on public web (WIR) & DPO Web page.

Employees can ask that DPO Case File be public.

13

Renee These processes are only effective if YOU think they are effective. We need employee feedback and input. We just completed comprehensive assessments and revised the MDs based, in part, on employee feedback.

Handouts include assessment highlights.

The good news is that the overwhelming majority of employees are aware of the processes and a majority of employees would be willing to use them.

Upcoming SCCS will provide another opportunity for employee feedback.

We need to walk the talk.

It's important to emphasize that it's O.K. to agree to disagree.

The fact that we have these processes in place is a STRENGTH.

Using these processes does not indicate that we have failed.

The overwhelming majority of employees will never engage in the NCP or DPO Program, but knowing that we have processes increases trust.

Employees need to be comfortable using the processes and not be fearful of how it could negatively affect their career or workplace.

This is an area we need to continue to focus on.

Renee We ALL have a responsibility for establishing and maintaining a healthy environment for raising concerns.

Reprisal is more than retaliation by a supervisor. Reprisal includes harassment, intimidation, or discrimination by co-workers. Things that are said can have a chilling effect. Everyone needs to be supportive of those who express differing views or use on of our processes.

Supervisors need to take action In response to claims of reprisal or chilling effect.

When you hear something that could be harassment or chill others from raising concerns or using one of our differing view processes you need to take appropriate action. Need to find a way to dispel rumor/chilling effect w/o divulging privacy information. (1 )Counsel employees(2)Espouse value in work unit communication (email, branch meeting)(3)1nvite DVPM to meeting or have seminar.

The NRC does not tolerate reprisal for raising concerns or engaging in a differing views process. An employee could be subject to disciplinary action or the agency could be subject to a claim under the Whistleblower Protection laws.

This doesn't mean you should be scared to take a personnel action or adjust an employee's work activities. You should have a legitimate rationale and document it. For example, you may have been thinking about adjusting work activities or cancelling an employee's training. If an employee then submits an NCP and you subsequently take the action, the adverse action could be viewed as retaliatory for submitting the NCP because of the timing. Raising safety concerns and using our differing views processes is considered protected activity. By not documenting your intent, for you are leaving the agency vulnerable to a lawsuit.

What can you do if you think you've been the subject of reprisal? List in NCP & DPO MDs and Web sites, e.g., OCHCO, OIG, NTEU, OSC, Whistleblower complaint.

Marge Helpful information on the Web sites FAQs, interactive flowcharts, assessments, crosed cases 16

Renee To sum up ...

It is NRC policy to maintain an environment where all employees and contractors are encouraged to promptly raise concerns without fear of reprisal.

Supporting differing views supports our safety & security mission.

Less is best. Informal discussions should always be the norm.

If informal discussions don't resolve your concern, you have choices.

ODP, NCP, DPO. Supervisors should understand the processes and help employees understand processes.

Our values and behaviors play a key role in the success and effectiveness of these processes and our ability to create a healthy environment for raising concerns.

And finally, we've looked at where you can go for additional information.

When in doubt, call us!! We're here to help!!

17

After questions...

Renee Thank you for your attention.

18

08/05/2016

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Differiing Professional Opinion (DPO)

Program I I ' I ' '

The NRC strives to establish and maintain an environment that encourages all NRC employees and contractors to raise concerns and differing views promptly, without fear of reprisal, through various mechanisms.

1

08/05/2016 The free and open exchange of views or ideas conducted in a non-threatening environment provides the ideal forum where concerns and alternative views can be considered and addressed in an efficient and timely manner that improves decisionmaking and supports the agency's safety and security mission.

All NRC employees and contractors are expected to discuss their views and concerns with their immediate supervisors on a regular, ongoing basis.

These informal discussions should be sufficient to resolve most issues.

2

08/05/2016 However, if informal discussions do not resolve concerns, employees have various avenues for expressing and having their concerns and differing views heard and considered by management.

• Open Door Policy (II M1!nagement Direct1v~ 10_.160 ""

• Non-Concurrence Process (NCP)

Management Directive 10.158

• DPO Program Management Directive 10.159 This course focuses on the DPO Program and the resources available to assist you .

1I/

r;,,

By the end of this course, t .1 f;7 you will be able to: F.,7

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&7

[)

D Define what a DPO is D Understand how the DPO Program relates to the Open Door Policy and the NCP D Describe how the DPO Program works D Identify where you can go for DPO Program assistance 3

08/05/2016 A DPO is defined as:

"A conscientious expression of a

'" '\ . judgment or position that differs

.n\*t.\on " ' from an established staff view, def'.*\ " .,. I'-"' '-' o, I h -: 1-::,<.: " \ disagrees with a management

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decision or policy position, or takes issue with an established agency practice involving technical, legal, or policy issues (including administrative or corporate support issues)."

A DPO can cover a broad range of concerns, provided the opinion is related to the agency's mission and to the strategic goals and objectives that support the mission as addressed in the NRC's Strategic Plan.

4

08/05/2016

• The DPO Program is not as broad as the Open Door Policy that can be used by any NRC employee to discuss any work-related issue or concern with any agency supervisor or manager, beyond informal discussions with his or her immediate supervisor. The DPO Program applies only to positions that are no longer under staff review.

• Using the Open Door Policy (i.e., raising a concern beyond an employee's immediate supervisor) is not a prerequisite or a part of the DPO Program, although exercising the Open Door Policy while participating in the DPO Program is not prohibited.

• The DPO Program differs from the NCP because the NCP applies only to positions that are still under staff review in a draft document before a final position is established.

The NCP cannot be used before a document is formally routed through concurrence or after a document is signed and issued.

• Using the NCP does not prohibit an employee from raising the same concerns in the OPO Program after the NCP has been completed and the subject document has been issued.

5

08/05/2016 The DPO Program includes a DPO process and a DPO appeal process.

DPO submittal

• The DPO process allows an NRC employee or a contractor to have his or her DPO evaluated by an independent panel and considered and responded to by an office director (OD) or regional administrator (RA).

If an employee is not satisfied with a DPO Decision, he or she can submit an appeal.

DPO ~

~

appeal

• The DPO appeal process allows an NRC employee to have his or her DPO considered and responded to by the Executive Director for Operations (EDO), or the Chairman or the Commission for those offices reporting to the Chairman or the Commission.

6

08/05/2016 The DPO process is available to NRC employees and NRC contractors to seek formal resolution of disagreements about established technical, legal, or policy positions or issues (including administrative or corporate support issues).

• The DPO appeal {S) The DPO appeal process is available to all process is not available NRC employees. to NRC contractors.

(.S) The DPO process and DPO appeal process are not available to employees on NRC Limited (Excepted) appointment.

7

08/05/2016 Issues Not Subject to the DPO Program (S,) Issues that are still under staff review or inspection activity, where an official position has not yet been established.

(S,) Issues that are being, or should be, addressed under grievance procedures, or personnel appeal procedures, or those that are governed by law or Governmentwide regulation.

(S,) Issues that are subject to collective bargaining.

(S,) Issues involving allegations of fraud, waste, abuse, or misconduct by NRC staff or contractors, allegations of retaliation for raising concerns.

C\ See complete list in Management Directive 10.159.

Jane recently started a job as a project manager for an operating reactor. She has concerns about a recent license amendment that was issued for her facility. She spoke to her immediate supervisor and wasn't satisfied with the resolution. Therefore, Jane decides to submit a DPO.

Let's review the basic steps in the DPO process.

DPO Pone!

rt:?v1ew 8

08/05/2016 An individual who wants to submit a DPO ...

• Should discuss the concerns with their immediate supervisor.

• Must use a DPO Form 680, "Differing Professional Opinion," located in the NRC Forms Library on SharePoint.

The DPO submittal should include specific information, including:

• A summary of the established position.

• A description of the submitter's views and how they differ from the established position.

• The safety or security significance of the issue and the potential consequences of the established position.

• Three potential DPO Panel members.

C\ See Form 680 for complete information and instructions.

9

08/ 05/ 2016

• All DPO submittals are sent to the agency's DPO Program Manager (PM) for screening.

• If appropriate, the DPO PM assigns it a tracking number.

• The DPO PM forwards the DPO to the OD or RA responsible for overseeing the concern described in the DPO.

• The DPO PM works with the OD or RA, the Director of the Office of Enforcement, and the DPO submitter to establish a panel of knowledgeable employees ( normally three) who have not been involved with the issue to review the DPO.

• The employee who submitted the DPO may nominate one member of the panel.

10

08/05/2016

• The panel provides its conclusions and recommendations in a report to the OD or RA.

• The OD or RA reviews the report and subsequently issues a DPO Decision to the submitter.

• If the submitter does not believe the DPO Decision adequately addressed the concerns, he or she may submit a DPO Appeal to the EDO or the Chairman or the Commission for those offices reporting to the Chairman or the Commission.

• Employees must use a DPO , ..

Form 690, " Differing Professional Opinion--Appeal," located in the NRC Forms Library on SharePoint.

~ -

11

08/05/2016

• The DPO PM screens the submittal and requests a Statement of Views (SOV) on the contested issues from the OD or RA.

• The DPO PM forwards the SOV and the DPO Case File to the EDO or the Chairman or the Commission for review and final decision.

• The EDO or the Chairman or the Commission reviews the information and relies upon knowledgeable staff, the submitter, the DPO Panel, or other resources, as necessary, to assist them in their consideration of the appeal.

• The EDO or the Chairman or the Commission issues the DPO Appeal Decision to the submitter.

• The DPO case is closed.

12

08/05/2016

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13

08/05/2016 When it comes to implementing the DPO Program, there are many resources to help you.

The NRC internal Web site will guide you to a variety of resources and aids to assist employees engaging in the DPO Program. To locate the DPO Program Web page click on "Topics" and then click on "Employee Resources."

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14

08/05/2016 Next, go to "Employee Concerns" and click on "Differing Professional Opinion Program."

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The DPO Prngram Web site includes a link to the DPO Program MD 10.159, interactive flowcharts, and many other helpful tools to guide you through the process .

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15

08/05/2016

• Need help?

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• Have a question? backup DPO PM.

• Want advice?

• DPOPM.Resource@nrc.gov

• (301) 415~2741 Were here to help!!

Iii A free and open discussion of differing views and alternative approaches improves decisionmaking and supports the agency's safety and security mission.

Iii Employees have a responsibility to raise concerns and propose solutions as early as possibl'e in the decisionmaking process.

Iii When informal discussions do not resolve concerns, employees can pursue concerns by using the Open Door Policy, the NCP, or the DPO Program.

16

08/05/2016 Which type of issue described below is NOT subject to the DPO Program?

A. Issues involving administrative or corporate support matters.

B. Issues that are still under staff review or inspection activity.

C. Issues that have been previously raised under the Non-Concurrence Process.

D. Issues that are raised by managers.

Which type of issue described below is not subject to the DPO Program?

B. Issues that are still under staff review or inspection activity.

The DPO Program applies to established positions. If an issue is still under review, employees should consider exercising the Open Door Policy or the Non-Concurrence Process to address their concern.

Administrative and corporate support issues can be addressed, provided the opinion is related to the agency's mission and to the strategic goals and objectives that support the mission as addressed in the NRC's Strategic Plan.

17

08/05/2016 Employees must use the Open Door Policy before submitting a DPO.

A. True.

B. False.

Employees must use the Open Door Policy before submitting a DPO.

B. False.

Using the Open Door Policy (i.e., raising a concern beyond an employee's immediate supervisor) is NOT a prerequisite or a part of the DPO Program, although exercising the Open Door Policy while participating in the DPO Program is not prohibited.

An employee should always attempt to discuss concerns with his or her immediate supervisor before submitting a DPO.

18

08/05/2016 Employees who are not satisfied with a DPO Appeal Decision may appeal the issue to the Commission.

A. True.

B. False.

Employees who are not satisfied with a DPO Appeal Decision may appeal the issue to the Commission.

B. False.

Once a DPO Appeal Decision is issued, the case is considered closed.

19

08/05/2016 All DPO cases are summarized on the public Web site.

A. True.

B. False.

All DPO cases are summarized on the public Web site.

A. True.

A summary of each DPO (without the submitter's name) is included in Weekly Information Report and posted on the public Web site.

If the submitter requests, the documents in the DPO Case File may also be made public (after a releasability review).

All DPO Case Files are included on the NRC Intranet.

20

NRC FORM 665 /"....,~

(07-2016) ,¥i ADAMS DOCUMENT SUBMISSION Instructions for compleUng NRC Form 665 * *cheat ShHt" (ML1S.3.13.A3.1~)

U.S. NUCLEAR REGULATORY COMMISSION Document Owner Originated By Phone No. (Enter 10 digits) Mall Stop LANID Date Renee Pedersen Renee Pedersen (301) 287-9426 014A41 rmp 12/18/2017 If documents are to be put Into a package and have the same release properties, list the Document TiUes or Accession Numbers below In the order they should appear. Documents with different release properties and sensitivity levels should be listed on addition al forms In the order they should appear. Examples (ML16035A181/

Note: Document Owner Is solely responsible for setting the Avallablllty, Document Sensitivity and Document Security Access Level.

Document No. 1 Total Number of Documents In this package 2 Document Titles) or Acce11lon No.

Memo to ED transmitting study Document2 Study of Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views Package Tltle (If necessary):

Study of Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views Is this a brief title that can be changed by DPC according to template instruction? D Yes 0 No SUNSI Review has been completed (for Publicly Available Documents) D Yes D No ltnltlals Document AVAILABILITY (select one)

D Publicly Available D Non-Publicly Available MD 3.4 Non-Public Item Code (A.3-A.7, 81}

(Indicate Release Date) Document SENSITIVITY (select one}

D Immediate Release I D IA.?

ISensitive Internal Info - Periodic I D IA.4 IProprietary Sensitive -

Review Required (all other D Normal Release sensitive internal info)

ID IA. 7 IPeriodic D IRelated D Delay Release Until Sensitive Internal Info - No J J A.3 Sensitive-Sec~rily Review (attorney work - Penod1c product & client privilege, and Review Required Date pre-decisional enforcement)

D Non-Sensitive ID IA.s J Sensitive - Fed, State, Foreign Gov't, International Agency I [Z] I I B.1 Non-Sensitive D Non-Sensitive Copyright Controlled Info Note: Package to be mar1<ed for release If two or more documents within the package ID IA.s ISensitive - PA/PII ID j 8 *1 Non-Sensitive -

J (includes Personally Identifiable Copyright are publicly available Information (PII))

Document SECURITY ACCESS LEVEL I0 Document Processing Center I = Owner I j [Z] NRC Users I= Viewer I

D Limited Document Security (Defined by Group or User e.g., Joe Smith = Owner)

Package Accession No. ADAMS Template No. RIDS Code (if applicable) other Identifiers Special Instructions Submitted By Phone No. (Enter 10 digits) Mail Stop LANID Date Submitted to DPC ML020170279 Page 1

History of Reprisal Concerns for Raising Concerns and Differing Views The NRC has conducted voluntary surveys over the years to determine whether the agency has an organizational climate that is coriducive to raising concerns or expressing differing viewpoints without fear of reprisal.

J For example, in a 1994 survey to assess the DPO process,. 25% of respondents answered positively, 40% did not find the climate favorable, and 33% had no opinion. (1994 Special Review Panel http://pbadupws.nrc.gov/docs/ML 1204/ML12048A734.pdf) From the same report:

They also believe there is a culture within the NRG that does not want to expose any weakness or e"or in previous NRC decisions or positions. Employees responding to the survey aired beliefs that submitting a DPV or DPO was "suicidal to your career' and that a filer would be "considered a troublemaker or non-team player."

Starting if11998, the OIG started conducting periodic Safety Culture and Climate Surveys (SCCS). Although the agency has seen improvement, 2015 results indicate an opportunity for improvement. Although 64% of employees believe the agency has a climate where truth can be spoken up the chain of command without fear of reprisal, 19% answered unfavorably and 17%

did not know. There has been no significant change on this question since 2009.

SCCSs have also asked employees about the NCP and the DPO Program. In 2015, the majority of employees responded that they are uncertain about the process's negative effect on career development. Of those employees who indicated that they would not be willing to use the processes, 82% indicated that it was because of concerns of negative consequences.

2014 NCP and DPO Program assessments have also included participant feedback (including anonymous surveys) Many employees indicated that they have experienced negative consequences for using ffle processes. For example, 75% of employees who used the NCP believed that they received a poor performance appraisal.

Concerns about retaliation for raising concerns and expressing differing viewpoints has also been raised from external stakeholders (Congress, interest groups, and media). For example, UCS raised concerns in 7/26/2016 stakeholder meeting. http://www.nrc.gov/reading-rm/doc-collections/commission/slides/2016/20160726/lochbaum-20160726. pdf. In 2012, the Wall Street Journal noted a letter from NRC employees to Re. Markey that indicated that a manager was suppressing concerns and that several employees had been retaliated against.

Fear of raising concerns within the agency can result in:

• employees raising issues outside of the agency (Congress, interest groups, or media);

• employees engaging in disruptive behaviors; or

• employees declining to raise issues at all.

To: Joe McMillan, Jennifer Golder, Mark Maxim, NTEU Cc:!(b)(6)  !, Yvonne Weed, Jason Using, Jack McKimm, Maria Schwartz

Subject:

ACTION: Request Data of Reprisal for Raising Differing Views As you may be aware, OE currently has the lead for activity 3 In the Agency Action Plan:

(b)(5)

We are currently working on a report for senior management's consideration, so we would appreciate your response by C.O.B Monday April 10th.

We sincerely appreciate your support of this important request.

Questions to Support Action Item 3 from Agency Action Plan (b)(5)

From: Schwartz, Maria Sent: Wednesday, June 07, 2017 2:43 PM To: Pedersen, Renee

Subject:

RE: ACTION: Please review reprisal data for report to EDO Hi Renee, This looks good to me. Thank you for sharing before you went forward with this.

Maria From: Pedersen, Renee Sent: Wednesday, June 07, 2017 2:33 PM To: Holahan, Patricia <Patricia.Holahan@nrc.gov>; McMillan, Joseph <.loseph.McMillan@nrc.gov>; Golder, Jennifer

<Jennifer.Golder@nrc.gov>; Maxin, Mark <Mark.Maxin@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Schwartz, Maria <Maria.Schwartz nrc. ov>

Cc: (b)(6) @nrc.gov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>; Lislng,Jason

<Jason.Llsing@nrc.gov>; McKimm, Jack <Jack.McKlmm@nrc.gov>; Ralph, Melissa <Melissa.Ralph@nrc.gov>; Kravetz, Joel <Joel.Kravetz@nrc.gov>; Figueroa Toledo, Gladys <Gladys.Figuero,aToledo@nrc.gov>; Peduzzi, Francis

<Francis.Peduzzl@nrc.gov>

Subject:

ACTION: Please review reprisal data for report to EDO Importance: High Thank you for your responses for reprisal data to support the report to the EDO on reprisal and chilling effect at the NRC. Here is an excerpt from the report. It is based on the collected responses and recognizes the limitations. None the less, we would appreciate it if you could review it and notify us in the event you have significant concerns with the accuracy of the content.

Thanks!

Renee A. Reprisal Data (b)(5) 1

(b)(5)

From: Holahan, Patricia Sent: Tuesday, March 28, 2017 12:04 PM To: McMillan, Joseph <Joseph.McMillan@nrc.gov>; Golder, Jennifer <Jennifer.Golder@nrc.gov>; Maxin, Mark

<Mark.Maxin@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Schwartz, Maria <Maria.Schwartz@nrc.gov>

Cc:!(b)(6)  !@nrc.gov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>; Using, Jason

<Jason.Lising@nrc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Ralph, Melissa <Melissa.Ralph@nrc.gov>; Kravetz, Joel <Joel.Kravetz@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>; Sewell, Margaret

<Margaret.Sewell@nrc.gov>; Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc.gov>; Peduzzi, Francis

<Francis.Peduzzi@nrc.gov>

Subject:

ACTION: Request for Data of Reprisal for Raising Differing Views Importance: High As you may be aware, OE currently has the lead for activity 3 in the Agency Action Plan:

(b)(5) 2

(b)(5)

We are currently working on a report for senior management's consideration as part of the response to action 3, so we woul_<;l appreciate yoyr ,response to Renee P~ersen l:?Y C.O.B Mond~y April 10th.

We sincerely appreciate your support of this important request.

Thanks, Trish Patricia K. Holahan, Ph.D.

Director Office of Enforcement, MS 014A50 U.S. Nuclear Regulatory Commission Washington, DC 20555

{301) 287-9527 (office)

!(b)(6)  !(cem patricia.hoiahan @nrc.gov 3

Happy Friday!!

It's been a long process, but OE has completed a comprehensive report on the topic of reprisal and chilling effect at the NRC. We sincerely appreciate the valuable feedback and insights you provided to support this report. Your role in this activity is discussed in the background section and the multi-office focus group discussion in the methodology section of the report.

We wanted to share the report with you for information and to ensure that we accurately reflected the existing framework within the agency. We wanted to maximize potential strategies and activities for senior management's consideration on this important topic. As such, the report notes that it does not reflect a consensus view of the group on all considerations. It also states that it was developed by OE based on insights from the multi-office focus group as well as other information and benchmarking activities.

Trish intends to circulate the draft report on Monday to OCHCO, SBCR, and OGC managers for awareness before we send it to the EDO/DEDOs.

Although we worked diligently to create an accurate and balanced report, if we erred, we apologize and would appreciate feedback on any inaccuracies by June 30th.

Thanks again for your support!!

Jennifer Golder, Mark Maxim, Pam Baker, OIG Good afternoon, OE has completed a draft report on the topic of reprisal and chilling effect at the NRC. The report is in response to activity 3 of issued the Agency Action Plan.

We wanted to share the report with you for information and to ensure that we accurately reflected the existing framework within the agency. We shared the report last Friday with members of a multi~office focus group that provided insights for the report. We wanted to maximize potential strategies and activities for senior management's consideration on this important topic. As such, the report notes that it does not reflect a consensus view of the group on all considerations.

OE attempted to provide a comprehensive and balanced report on historical data for context, the existing environment, and a broad range of insights from the focus group as well as insights from a variety of sources and benchmarking activities. It Includes quantitative data as well as qualitative Insights. The report identifies that the collected data indicate that perceptions of reprisal can inhibit employees from raising mission-related concerns and differing views and impact employee engagement. Although data does not conclusively identify that reprisal is pervasive at the agency or that there is a chilled work environment, it does indicate that there is room for improvement.

Although we worked diligently to create an accurate and balanced report, if we erred, we apologize and would appreciate feedback on any inaccuracies by June 301h.

OE plans on briefing the EDO/DEDOs and issuing the report in July.

Thank you for your support.

Potential Strategies & Initiatives Harassment for EEO-based issues and harassment for raising concerns and differing views have similar themes and concerns. Either type of workplace harassment affects all workers, and can lead to decreased productivity, increased turnover, reputable harm, and the ability to ensure we fulfil our mission. Given the long history and legal standing of EEO-based harassment as an actionable form of discrimination, it may be prudent to review the EEO-based harassment area for possible strategies and best practices.

Harassment and discrimination for raising nuclear issues is an area that the operating reactor community has historical experience in addressing. It may be prudent to benchmark for possible strategies and best practices.

Review the June 2016 Select Task Force on the Study of Harassment in the Workplace and consider recommendations for applicability.

Consider expanding the current harassment policy to include harassment for raising mission-related concerns and differing views or establishing a policy/process to address harassment before it would reach a legal level under whistleblower laws modeled after existing NRC harassment policy.

Establish an advisory panel (OCHCO, OGC, OE (for NCP/DPO cases)) as a resource for supervisors to use to seek advice on preventing reprisal, addressing concerns of chilling effect.

Examine training and consider enhancing, adding, or replacing. Consider audience (all employees vs. first-line supervisors, vs. all supervisors and managers). Consider merits of required training. Examine opportunity to infuse key messages into existing training .

• Consider conducting Safely Speaking for offices:

• Consider workplace "civility training" and bystander intervention training that goes beyond the behaviors that might be "legally actionable" under EEO and whistleblower provisions and promotes respect and civility and emphasizes individual accountability for healthy culture.

Consider additional outreach.

Develop and issue key messages from the EDO to managers.

Develop on-time job aids for supervisors and employees participating in the NCP and DPO Program.

Anti-Harassment Policy for Raising Concerns & Differing Vi~ws Pros:

• Explicit/published policy and procedures for reporting, investigating, and resolving allegations of harassment. Agree

• Proactive approach-below legal limits. Agree and would have strong impact if management agreed to establish a separate policy.

• Provides employees with another option to address concern. Agree

• Builds trust-supports healthy environment for raising concerns. Agree

• Holds employees accountable. If a separate policy was established and its use was tracked, there would be greater expectations for management to be accountable for their actions and ensure that harassment is prevented.

Cons:

• Providing resources to implement procedures (e.g., staff would need training, where would it reside). Agree that training would be needed and the policy would need to be housed and managed in an independent environment. However, I think this can also be viewed as a "Pro." The Task Force study by the EEO Commission emphasizes that leadership and accountability are critical in preventing harassment and that making efforts such as a distinct policy to do this should be given the necessary time and resources to be effective. I think it would give more credibility to management, which would be a "proin Not sure if additional resources would even be required ... at least initially?

• Possible confusion on which policy to use. If training was mandatory and the policy was clearly identified and accessible, it would reduce any possible confusion.

• May not be viewed as credible if it isn't independent. Agree, which is why it's important for a policy like this to be independent.

Speaker Notes for EDO briefing on Reprisal & Chilling Effect Study Background & Introduction

• OE was tasked with lead for Activity 3 and it includes 2 pieces:

1. Continue to develop and enhance activities that address concerns of retaliation and chilling effect for raising concerns ...

2. . ..support continuous improvement of the Open Door Policy (ODP), Non-Concurrence Process (NCP), and the Differing Professional Opinion (DPO) Program.

• Study focuses on (1) and is NOT an assessment of differing views processes or any other processes. (OE has NCP & DPO assessments scheduled for later this year and next year.)

• Activity is important because it supports the overall focus of the plan: "desire to foster a greater climate of trust" and the 3 goals: (1) Strengthen the positive environment for raising concerns (2) Promote a culture of fairness, empowerment, and respect across the agency (3)Establish clear expectations and accountability for NRC leaders

• "NRC needs to ensure that it has a positive environment for raising concerns without fear of reprisal to ensure sustained employee engagement. Employee engagement is necessary to support informed decision-making to help ensure we fulfill our mission.

What can we do to reduce the fear of reprisal for raising concerns and differing views?"

• The strategic approach was to examine "where we've been," "where we are," and "where we want to go.n

• Although we've made improvements in this area, data indicates failure to make additional progress. If it was an easy fix-we wouldn't be here.

Summary Sheet: 2014 Non-Concurrence Process Assessment (2/26/2014) (ADAMS #: ML14056A294)

Purpose Determine if the Non-Concurrence Process (NCP) is operating as intended, identify potential areas of improvement, and support fina!ization of NCP Management Directive (MD).

Background

• NRC established an agency-wide NCP In 2006

• NCP guidance included in d1raft MD 10.158

• NCP MD issued as a draft to provide an opportunity to gain experience with the new process and make process improvements based on employee feedback

• NCP compliments the Open Door Policy {MD 10.160) and Differing Professional Opinions Program (MD 10.159)

• NCP allows NRC employees to be heard, understood, and responded to on concerns associated with draft documents in concurrence.

• This NCP assessment considered:

o Formative, ongoing evaluation from employee feedback o An audit conducted by the Office of the Inspector General (OIG-11-A-02) o NRC's Safety Cultur,e and Climate Survey (SCCS) o An external benchmarking study o A targeted survey of employees involved In the process o Office, Union, and employee comments on the revised guidance for the process o Review of NCP records o Additional guidance on reviewing differing views within NRC Results

• The NCP is sound and is a valuable asset to the decisionmaking process

• Since 2006, 80 non-concurrences have been submitted under the process, with an average of 11 cases per year

• Based on the results of the SCCS:

o 88% of employees are aware of the process (up from 43% in 2005) o 49% of employees consider the process effective, 37% have no opinion, and 14% believe it is not effective (large " no opinion" response likely because process is not frequently used-this represents opportunity for improvement through outreach and education) 1

• Based on the responses from a voluntary targeted survey:

o 77% of submitters believed that their views were heard by management o 73% of submitters believed the reasons for non-concurrence was well understood o 64% of submitters received verbal praise from coworkers o 48% of submitters perceive that their management is supportive of the process o 75 % of submitters believed their performance evaluations were adversely affected o 63% of submitters felt excluded from certain work activities o 25% of submitters thought they were passed over for career development opportunities o 52% of respondents (submitters and participants) !believe the process adds value and 86% would use the NCP.

• There is room for improving the process based on experience gained during its first 8 years. Many employees who have participated in the process over the years have commented that the process was not always implemented in the spirit in which it was intended and that following the process can be an emotional journey. Actual or perceived negative consequences can have a chilling effect and inhibit employees from raising concerns through the process

• The assessment highlighted four high-level themes and opportunities for improvement

1. Demonstrate leadership commitment.

2. Issue improved guidance and dedicate centralized process support.

3. Increase understanding (including roles and responsibilities) through training and communication.

4. Address concerns about potential negative consequences.

Next Steps

• Issue and implement the final NCP MD 10.158 (3/14/2014)

• Issue a Yellow Announcement on the availability and expectations for using the revised process

• Take actions to address the four themes identified in the assessment

• Enhance t he Intranet webpages to help facilitate employee use of the process

• Share the NCP Assessment with all employees

• Develop and execute a communications plan and make the assessment public

• Conduct voluntary outreach sessions on the NCP

• Provide on-line, on-demand training (responsive to OIG recommendation)

• Welcome feedback, monitor survey results, and continue to improve 2

Summary Sheet: 2014 Differing Professional Opinions Program Assessment (9/29/2014)

Purpose Determine if the Differing Professional Opinions (DPO) Program is operating as intended and identify potential areas of improvement: Insight s will support revision of DPO Management Directive (MD).

Background

• DPO Program established in 1980

• Agency-level guidance issued in Manual Chapter in 1987

• DPO Program periodically reviewed and revised over the years

• DPO MD 10.159 last revised and issued on May 16, 2004

• MD created DPO PM position and EDO assigned oversight for DPO Program to OE

• The DPO Program compliments the Open Door Policy (MD 10.160) (at one time combined with DPO) and the Non-Concurrence Process (MD 10.158) (established in 2006)

• The DPO Program allows NRC employees and contractors to raise concerns on mission-related, established positons to the highest levels of management , including input from an independent panel

• This DPO Program assessment considered:

o Formative, ongoing evaluation from employee feedback o Previous program reviews o NRC's periodic Safety Culture and Climate Survey (SCCS) o A targeted survey of DPO submitters, panel members, and decisionmakers o A Business Process !Improvement {BPI) study o External benchmarking activities o Feedback on proposed revised DPO MD o DPO record reviews o Additional agency guidance on differing views Results

• The DPO Program is sound and is a valuable asset t o the decisionmaking process

• Since 2004, 28 DPOs have been submitted (with an average of 2-3 DPOs per year), 24 decisions have been issued, and 10 DPOs have been appealed

• Based on the results of the 2012 SCCS:

o 91% of employees are aware of the process (up from 82% in 2005 vs. 88% for NCP) o 69% of employees indicat ed that they would be willing to use it o 36% of employees don' t think it will have a negative effect on career {up from 27% in 2005) o 46% of employees don't have an opinion on career Impact (this represents an opportunity for improvement through outreach and education) 1

• Based on the results of a 2013 targeted survey of past participants since 2004:

o 100% of submitters believed that their views were heard by management (vs.n% from NCP targeted survey) o 89% of submitters believed the reasons for the DPO were well understood (vs.73% from NCP targeted survey) o 89% of submitters believed that they were treated fairly (vs. 50% from NCP targeted survey) o 22% percent of submitters believed that they were relocated or reassigned to a different job (vs.12.5% from NCP targeted survey) o 22% percent felt they were excluded from work activities (vs. 63% from NCP targeted survey) o 11% percent believed that their performance evaluations were adversely affected (vs.75% from NCP targeted survey)

• Some of the results are more positive than comparable results from the NCP Assessment. This may be attributed to the fact that the DPO Program includes an independent review and engagement by the highest levels of management (i.e., office directors, regional administrators, and the EDO (or the Commission for those offices reporting to the Commission)). Conversely, the NCP typically Includes engagement, evaluation, and resolution with the employee's immediate supervisor, and the immediate supervisor has direct Impact on the employee's work activities, training opportunities, and performance evaluation.

• The assessment identified four high-level themes and corresponding planned actions:

1. Demonstrate leadership commitment.

2. Issue improved guidance and dedicate centralized process support.

3. Increase understanding (including roles and responsibilities) through training and communication.

4. Address concerns of potential negative consequences.

• The planned actions are consistent with the goals and activities included in the agency-level action plan from the SCCS and with the planned actions included in the NCP Assessment.

Next Steps

• Develop project plan for planned actions

• Complete comment resolution on revised DPO MD

• Forward proposed revised DPO MD to OEDO

• Forward to Chairman for signature and issuance

• Issue a Yellow Announcement for revised DPO MD

• Post DPO Assessment on the DPO Web site when DPO MD Is Issued

• Develop and execute a communication plan and make the DPO Assessment public

• Conduct voluntary outreach sessions on the revised DPO MD

• Welcome feedback, monitor survey results, and continue to improve 2

NCP Submitter Survey Did you experience any ofthe following consequences as a result of using the Non-Concurrence Process? (select all that apply)

I was relocated or reassigned to a different job by...

I was passed over for career development...

I received a poor performance appraisal I was verbally abused by a manager outside of my...

I was verbally abused by my supervisor or another...

Other employees gave me the "cold shoulder" Coworkers excluded me from work activities, ...

Management excluded me .from work activities, ...

0% 20% 40% 60% 80% 100%

1

DPO Feedback Survey: Submitters Did you experience any of the following consequences as a result of participating in the DPO Program? (select all that apply) 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Management excluded me from work activities, ...

Coworkers excluded me from work activities, ...

Other employees gave me the "cold shoulder11 I was verbally abused by my supervisor or another...

I was verbally abused by a manager outside of my...

I received a poor performance appraisal I was passed over for career development opportunities I was relocated or reassigned to a different job by ...

11

History of Reprisal Concerns for Raising Concerns and Differing Views The NRC has conducted voluntary surveys over the years to determine whether the agency has an organizational climate that is conducive to raising concerns or expressing differing viewpoints without fear of reprisal.

For example, in a 1994 survey to assess the DPO process, 25% of respondents answered positively, 40% did not find the climate favorable, and 33% had no opinion. (1994 Special Review Panel http://pbadupws.nrc.gov/docs/ML 1204/ML12048A734.pdf) From the same report:

They also believe there is a culture within the NRC that does not want to expose any weakness or en-or in previous NRC decisions or positions. Employees responding to the suNey aired beliefs that submitting a DPV or DPO was "suicidal to your career" and that a filer would be "considered a troublemaker or non-team player."

Starting in 1998, the OIG started conducting periodic Safety Culture and Climate Surveys (SCCS). Although the agency has seen improvement, 2015 results indicate an opportunity for improvement. Although 64% of employees believe the agency has a climate where truth can be spoken up the chain of command without fear of reprisal, 19% answered unfavorably and 17%

did not know. There has been no significant change on this question since 2009.

SCCSs have also asked employees about the NCP and the DPO Program. In 2015, the majority of employees responded that they are uncertain about the process's negative effect on career development. Of those employees who indicated that they would not be willing to use the processes, 82% indicated that it was because of concerns of negative consequences.

2014 NCP and DPO Program assessments have also included participant feedback (including anonymous surveys). Many employees indicated that they have experienced negative consequences for using the processes. For example, 75% of employees who used the NCP believed that they received a poor performance appraisal.

Concerns about retaliation for raising concerns and expressing differing viewpoints has also been raised from external stakeholders (Congress, interest groups, and media). For example, UCS raised concerns in 7/26/2016 stakeholder meeting. http://www.nrc.gov/reading-rm/doc-collections/commission/slides/2016/20160726/lochbaum-20160726.pdf. In 2012, the Wall Street Journal noted a letter from NRC employees to Re. Markey that indicated that a manager was suppressing concerns and that several employees had been retaliated against.

Fear of raising concerns within the agency can result in:

• employees raising issues outside of the agency (Congress, interest groups, or media);

• employees engaging in disruptive behaviors; or

• employees declining to raise issues at all.

Existing Policies & Procedures Open Door Policy (ODP), Non-Concurrence Process (NCP), and Differing Professional Opinion (DPO) Program MDs:

Policy ...

The NRC strives to establish and maintain an environment that encourages all NRG employees and contractors to raise concerns and differing views promptly without fear of reprisal through various mechanisms.

Supervisors/Managers ...

Must ensure proposed action not in retaliation for use of process. Required to take action in response to an allegation of reprisal.

All employees...

Reprisal against individuals who engage in the ODP, NCP, and DPO Programs is specifically prohibited as described in the Management Directives for those processes.

MDs do not cover authority to investigate or take action to address reprisal. MDs point to other sources.

No FEAR Act: NRC employees receive whistleblower protection from the Whistleblower Protection Act and Enhancement Act of 1989 and 2012, the Ins ector General Act of 1978, and the Ener Reor anization Act ERA of 1974, as amended. (b)(5)

(b)(5)

(b)(5) Multiple options for pursuing complaint: MSPB, OSC, CBA, OSHA.

http://www.whistleblowers.gov/wb fllinq time limits.html MD 10.99: http://www.internal. nrc. gov/policy/directives/cataloq/md 1O.99. pdf Provides that disciplinary and adverse actions are not taken for whistleblowing activity or differing professional opinion. Also provides guidance on actions to initiate " ... based on conduct or combined conduct/performance reasons ... "

MD _7.4, "Reporting Suspected Wrongdoing and processing OIG Referrals" http://www.internal.nrc.gov/policy/directives/toc/md7.4.htm Although retaliation from management is identified as an issue that should be reported, it does not address reprisal or harassment from a co-worker as an issue that should be reported. Allegation analysis guidance may not be well suited to address concerns related to raising concerns or differing views or chilling effect. Allegations may be referred to the management if they are viewed as performance vs. misconduct issues. OIG is not obligated to notify Differing Views Program Manager of allegations related to NCP or DPO Program nor provide reports of investigation.

OIG not obligated to notify DO of harassment allegation, unless it determines prompt action is warranted. OIG provides EDO with reports of Investigations. EDO can share with management.

NRC Policy and Procedure for Preventing and Eliminating Harassing Conduct in the Workplace (Harassment Policy) http://www.internal.nrc.gov/HR/pdf/eliminatinq-harassment.pdf The policy DOES NOT cover harassment for raising concerns, differing views, or engaging in a differing view process because of the definition of harassing conduct.

Harassing conduct is defined as any unwelcome verbal, visual, physical or other conduct based on race, color, religion, sex (whether or not of a sexual nature), national origin, age, disability, sexual orientation, or retaliation for participation in protected EEO activities.

The policy requires that the DO notify the OIG of allegations. OIG may decline and DO determines who will conduct inquiry, including DO.

Observations:

Although many Commission/EDO communications have been issued to support differing views, no formal policy exists that addresses the issue of reprisal (harassment, intimidation, retaliation, and discrimination) for raising concerns or differing views outside of ODP, NCP, or OPO Program.

No discreet, specific process or procedure exists to prevent, identify, investigate, and address reprisal for raising concerns or differing views.

There is no centralized point of contact or source to determine how many complaints of reprisal for raising concerns/differing views or using ODP, NCP, or DPO Program are made per year, whether (and how) they are reviewed, how many cases are substantiated, and what (if any) corrective actions are taken.

OE does not definitively know how many retaliation complaints have been filed or substantiated. It is our understanding that no retaliation complaints have been substantiated-but this is based on Inquiry to OCHCO and OIG several years ago.

Employees may not be willing to report allegations of reprisal. Current processes may not have "independent" element that could be viewed as necessary for credibility (e.g., grievance process goes to supervisor, OCHCO viewed as supporting management, OIG may not investigate and just refer to management.} Employees may be concerned that they will not be believed or fear retaliation.

Perceptions of reprisal can be just as damaging as actual cases of reprisal because perceptions and attitudes can impact behaviors of employees and influence culture, which can ultimately impact employee engagement. One case of perceived or actual reprisal can resonate for years!

Current Practices No FEAR Act: The agency requires biennially training to all employees. The training was revised to highlight that raising nuclear concerns and using ODP, NCP, and DPO Program is considered protected activity. Scenario 4 was revised to address concerns for using NCP.

NCP & DPO Program: Voluntary training for all employees; required training for reactor inspector certification. Online in ilearn covers basic policy: "The NRC strives to establish and maintain an environment that encourages all NRC employees and contractors to raise concerns and differing views promptly, without fear of reprisal, through various mechanisms."

Organizational Culture & Values: Required training for new supervisors, voluntary course for employees. Instructor lead one hour segment addresses NRC's culture and differing views.

Covers that culture is everybody's responsibility, that reprisal is not tolerated, provides limited advice to address potential reprisal and notes multiple ways to pursue allegation (see slide 15).

This course is scheduled to be revised beginning in September. OE has already requested additional time to address expanded discussion on reprisal.

New Employee Orientation: Will be addressed in pre-arrival guide. "We support an environment that encourages all employees to raise concerns and differing views promptly, without fear of reprisal." Includes references to ODP, NCP, and DPO Program.

OCWE (aka environment for raising concerns without fear of retaliation): Since 2007, public web site includes goal, expected behaviors (NRC Team Player poster), and links to ODP, NCP, and DPO Program. http://www.nrc.gov/about-nrc/values.html#open Internal and web site Includes similar information, in addition to list of ways to raise mission-related concerns and how to* nominate someone for the NRC Team Player award.

http://www.internal.nrc.gov/HR/ocwe/index.html Periodic Announcements: NCP and DPO MDs require EDO and ODs/RAs to periodically communicate the value of NCP and DPO. ODs/RAs use newsletters, all-hands meetings, brown bag lunches to communicate value and showcase success stories.

Recognition and Success Stories: NCP and DPO MDs require that ma*nagers consider recognizing employees whose use of process resulted in an improved outcome or made a valuable contribution to the agency decision (e.g ., performance award, special act, time off, NRC Team Player award, etc.). NRC Team Player award: Employees can nominate other employees or supervisors whose behaviors support a positive environment for raising concerns.

Award presented by EDO and story included in NRC Reporter.

Calculations based on # of Respondents Calculations based on OPM's Percentage Rates Q3 + -  ? NIA Q3 + -  ? NIA 2015 67% 16% 18% 2015 66% 16% 18%

2016 65% 17% 18% 2016 64% 17% 19%

Q4 + -  ? NIA Q4 + -  ? N/A 2015 66% 18% 16% 2015 66% 18% 16%

2016 65% 19% 15% 2016 64% 20% 16%

05 2016 I +41% 1 -12%1 1

19%1 N/A 27%:

I I 05 2016 I \e%1 -17%1 1

21%1 N/A 06 I

1 NIA I 06 1 NIA 2016 +40%1 -13%1 20%1 27% I 2016 I +55%1 -17%1 28%' *

• OPM did not calculate

• NtA" responses which is probably why other calculations are off by larger magins.

NCP Submitter Survey QS: Did you experience any of the following consequences as a result of using the Non-Concurrence Process? (select all that apply)

My work schedule was not approved or was revised (e.g., telework) 0.0%

My training or travel was cancelled Management revised and/or excluded me from work activities.

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

DPO Submitter Survey QS: Did you experience any of the following consequences as a result of using the DPO Program? (select all that apply)

Other h.0%

My work schedule was not approved or was revised (e.g., telework) C,.0%

My training or travel was cancelled Management revised and/or excluded me from work activities.

rs~

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

I can disclose a suspected violation of any law, rule or regulation without fear of retalaitlon 2016 2015 2014 2010 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D?

• Unfavorable

I believe I can raise concerns or different opinions without fear of negative consequences.

2016 15%

2015 16%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D 7

• Unfavorable My agency creates a work environment that encourages different opinions and viewpoints 2016 18%

2015 18%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D?

• Unfavorable

The Non~concurrence process is a successful tool for raising differing views.

2016 19%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D ?

• Unfavorable

• N/ A The Differing Professional Opinions Program is a successful tool for raising differing views.

2016 20%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

a Favorable o ? aunfavorable

• NIA

Study of Reprisa l and Chilling Effect for Raising M ission-Relat ed Concerns and Differing View s at NRC Office of Enforcement July 31, 2017

Background & Introduction

• Agency Action Plan - Activity 3

• Maintain healthy environment for raising concerns & sustain engaged workforce to support mission

• Opportu.nity for improvement vs. assessment of existing processes

• Perception is as important as reality 2

Methodology

• Multi-office focus group

• NRC employee & NCP & DPO surveys

• OIG NCP audit

• Reprisal data

• Regulations, policies, procedures, & practices

• Training & communications

• Additional information/benchmarking 3

V, C

0

+-'

ro

~

QJ V,

..c 0

V)

C 0

V)

C 0

u

Path Forward

• Send study to Commission & Office Directors, Regional Administrators - August 14, 2017

• Announce study in EDO Update

• Evaluate, identify actions, establish implementation plan (EDO may w ant to establish working group)

• Issue action plan in EDO Update

• Announce significant actions to staff 6

Study of Reprisal and Chilling Effect - Path Forward 8/7/17: Share comparative text with OE management 8/14/17: OE provides comments on study 8/18/17: Incorporate OE comments 8/22/17: OE met with members of focus group (OCHCO, OGC, SBCR, NTEU) to listen to any additlonal concerns and comments on study 8/23/:17: Sent revised study, list of revisions, & comparative text to focus group and POC managers 9/11/17: Comments due from OCHCO, OGC, SBCR & NTEU 9/18/17: OCHCO requested additional time to comment 10/2/17: EDO/DEOO briefing (11:00-12:00)

j - -- ~------ ------ ---

Sort1n1 Reportin1 Numberof Completed I Numberof Surveys I

Agency & Subagency Name Surveys Administered Response Rate Govemmentwide * *- *- - * *- - * - - - - - - - -- !GOV Nide 486,105 1,068,151 45.5%

~ uclear Regu~ry Commission __ .. _ __ __ _ __ __ _ ~ - - _ _ _ __ _ _ '.!'4~

• Agency 2,442 _ _ 3,223 _ I ~ .8% _ I Office of Nuclear Material Safety and Safeguards NU02 level 1 221 287 77.0%

PRGM PLANNING, POLICY DEV & PRGM ANALYSl5 STF NU0201 Level 2 16 19 84.2%

Financial Management Team NU020101 *Level 3 <10 -- -

Operations Management Team NU020102 level 3 <10 - ---

DIV OF MATERIALS SAFETY, ST, TRIBAL & RULEMAKING PRGMS NU0202 level 2 I 48 73 65.8%

Materials Safety Licensing Branch NU020201 level 3 <10 -- --

Medical Safety and Events Assessment Branch NU020202 Level 3 <10 I -- -

Agreement States Program Branch NU020203 Level 3 10 12 83.3%

Federal, State, and Tribal Liaison Branch NU020204 Level 3 <10 *- -

Source Management and Protection Branch NU020205 Level 3 10 14 71.4%

Rulemaking and Project Management Branch NU020206 Level 3 <10 -- -

Division of Spent Fuel Management NU0203 Level 2 58 I 66 87.9%

Criticality, Shield, and Risk Assessment Branch NU020301 Level 3 11 12 91.7%

f--- Containment, Structural & Thermal Branch NU020302 level 3 <10 -- -

Renewals and Materials Branch NU020303 level 3 <10 - --

Spent Fuel Licensing Branch NU020304 I Level 3 13 15 86.7%

Inspections and Operations Branch NU020305 Level 3 10 10 100.0%

long Term Spent Fuel Management Branch NU020306 level 3 <10 - --

DIV DECOMMISSIONING, URANIUM RECOVERY WASTE PRGMS NU0204 level 2 51 68 75.0%

Performance Assessment Branch NU020401 Level 3 <10 -** ---

Uranium Recovery Licensing Branch NU020402 Level 3 <10 -- -

Materials Decommissioning Branch NU020403 Level 3 10 14 71.4%

• Reactor Decommissioning Branch NU020404 Level 3 12 12 100.0%

Low-Level Waste Branch NU020405 Level 3 <10 *** --

DIV OF FUEL CYCLE SAFETY, SAFEGUARDS, & ENVRMNTL REVIEW NU0205 Level 2 46 58 79.3%

Material Control and Accountability Branch NU020501 Level 3 <10 -- -

Environmental Review Branch NU020502 Level 3 <10 -- --

NU020503 Level 3 10 12 83.3%

Program Oversight and Regional Support Branch Fuel Manufacturing Branch NU020504 Level 3 <10 -- -

Enrichment and Conversion Branch NU020505 Level3 <10 -- -

INU03 I Levell 221 292 75.7%

Office of New Reactors Level 2 33 43 76.7%

Division of Safety Systems & Risk Assessment NU0301 I 90.9%

REACTOR SYSTEMS, NUCLEAR PERFORMANCE & CODE REVIEW BR NU030101 Level 3 10 11 Plant Systems Branch NU030102 I Level3 <10 - --

Containment & Ventilation Branch NU030103 Level 3 I <10 - -

PRA and Severe Accidents Branch NU030104 Level3 <10 - *-

NU0302 Level 2 58 81 71.6%

DIV OF ENGINEERING, INFRASTRUCTURE, AND ADV REACTORS Advanced Reactor & Policy Branch NU030201 level 3 <10 -- -

NU030202 Level 3 <10 ... -

New Reactor Rulemaking & Guidance Branch Structural Engineering Branch NU030203 Level 3 <10 - -

- Materials & Chemical Engineering Branch Instrumentation, Control & EE Br Mechanical Engineering Branch NU030204 NU030205 NU030206 I

Level 3 Level 3 Level 3

<10

<10

<10 NU030207 Level 3 <10 - -*

L- Planning Optimization Branch Division of Site Safety & Environmental Analysis NU0303 Level 2 50 53 94.3%

NU030301 level3 10 10 100.0%

Hydrology & Meteorology Branch Hydrology &-Meteorology Branch 2 NU030302 Level3 <10 - -

Geosclence & Geotech Engineering Branch NU030303 level3 <10 -- -

Environmental Technical Support Branch NU030304 Level3 <10 -- -

INU030305 Level 3 10 10 100.0%

Radiation Protection & Accident Consequences Branch Division of New Reactor Licensing NU0304 Level 2 25 49 51.0%

Licensing Branch 1 Licensing Branch 2 Licensing Branch 3 NU030401 NU030402 NU030403 I

I Level 3 level 3 Level 3 Level 3

<10

<10

<10

<10 I -

Licensing Branch 4 I NU030404 *-

82.6%

Div of Construction Inspection & Operating Pgms NU0305 Level 2 38 46 Construction Inspection Program Branch NU030S01 Level 3 <10 -- -

Human Performance, Operator licensing, & ITAAC Branch NU030502 Level 3 I 10 11 90.9%

Quality Assurance Vendor Inspection Branct, 1 NU030503 Level3 I <10 I - --

Q.ua!itv Assurance Vendor Inspection Branch 2 iNU030504 Level 3 I <10 -- --

Quality Assurcmce Vendor Inspection Branch 3 NU030505 Level 3 <10 - -- I Program Mgmt, Policy Development & Analysis Branch NU0306 Level 2 13 16 81.3%

Business SeNices Management Branch NU030601 Level 3 <10 I --- - *-

Financial & Performance Management Team NU030602 Level3 <10 -- -

Office of Nuclear Reactor Regulation NU04 Level 1 I 384 494 77.7%

Division of Safety svstems NUD401 Level 2 48 58 82.8%

Reactor Systems Branch NUD40101 Level3 <10 -- --

Nuclear Performance & Code Review Branch NU040102 Level 3 I 12 14 85.7%

Balance-of-Plant Br.mch NU040103 Level 3 <10 - -

Safety Issue Resolution Branch NU040104 Level 3 <10 *- -

Technical Specifications Branch OMslon of Engineering NU040105 NU0402 Level3 Level2

<10 53 70 75.7%

SG Tube Integrity & Chemical Engineering Branch NU040201 Level 3 <10 I *- -

Component Performance, NOE, & Test Branch NU040202 Level 3 11 13 84.6%

Vessels & Internals Integration Branch

- NU040203 Level3 <10 -- --

Mechanical & Civil Engineering Branch NU040204 Level 3 <10 *- --

Instrumentation & Controls Branch NU040205 L.evel 3 <10 -- ... *-

Electrical Engineering Branch NU040206 Level3 13 17 76.5%

Program Mgmt, Policy Development & Analysis Branch NU0403 Level 2 I 17 24 70.8% I INFORMATION TECHNOLOGY & INFRASTRUCTURE SERVICES BRANCH NU040301 Level3 <10 -- - - -

Financial, Human Capital, and l\nalysis Support Branch NU040302 Level3 <10 -- --

Division of Risk ASsessment NU0404 L.evel 2 45 54 83.3%

PRA Licensing Branch NU040401 I Level 3 14 15 93.3%

PRA Operations & Human Factors P.ranch NU040402 Leve13 11 15

- 73.3% I Fire Protection Branch NU040403 Level 3 <10 -- --

Radiation Protection & Consequence Branch NU040404 Level 3 <10 Division of License Renewal Projects Branch 1 NU0405 INU040501 Level 2 Level 3 40

<10 50 I 80.0%

Aging Management of Reactor Systems Branch NU040502 level 3 <10 - -

AGING MANAGEMENT Of STRUCTURES, ELECTRICAi. & SYS BRANCH NUD40503 I.eve! 3 <10 -- -*

Subsequent Renewal Guidance & Operations Branch NU040504 Level 3 <10 - -

Environmental Review & Guidance Update Branch NU04050S Level 3 <10 I --- --

• Division of Operating Reactor Licensing NU0406 Level 2 51 68 75.0%

Plant Licensing Branch 1-1 NU040601 Level 3 <10 -- -

Plant Licensing Branch 1-2 NU040602 Level 3 <10 l - --

Plant licensing Branch 11-1 NU040603 Level 3 <10 1 - --

P~nt Ua,n,ing Branch IJ.2 1""040604 le~l3 <10 - -

Plant Licensing Branch 111-1 Plant Licensing Branch l l l - 2 N U 0 4 0 6 0 6 Plant Licensing Branch IV-1 NU040605 NU040607 I Level 3 Level 3 Level 3

<10

<10

<10 I

Plant Licensing Branch IV-2 - INU040608 Level 3 <10 - --

Division of Inspections & Regional Support NU0407 Level 2 41 ) 60 68.3%

Reactor Inspection Branch NU040701 Level 3 <10 --- -

Portonnaare ""'~""'" Branch INU040702 I te,,,13 10 I 11 90.9*

,_ Operator licensing & Training Branch NU040703 I Level 3 I <10 --- --

Operating Experience Branch NU040704 Level 3 <10 -- --

Financfal Analysis & International Projects Branch NU040705 Level 3 <10 - -

Division of Policy & Rulemaking NU0408 Level 2 46 65 70.8%

Rulemaking Branch NU040801 _ Level 3 <10 I --- -

Generic Communications & Power Uprate Branch NU040802 level 3 <10 -- -

Licensing Processes Branch NU040803 I Level 3 <10 -- -

Reactor Licensing Branch NU040804 Level 3 11 I 12 91.7%

Reactor Oversight Branch NU040805 level 3 <10 -- I -

Japan Lessons Learned Division _ _ NU0409 level 2 36 38 94.7%

Program Management; Policy & Support Directorate NU040901 Level 3 23 23 100.0%

Technical Support Directorate NU040902 I Level 3 11 12 91.7%

Office of Nuclear Security and Incident Response Cyber Security Directorate Program Mgmt, Policy Development & Analysis Branch NUOS NUOSOl

/NuOS02

i

~

l Level 1 Level 2 Level 2 l 133

<10

<10 I --

176

- __J 75.6%

_J I

Division of Security Policy NUOS03 Level2 31 I 41 75.6%

Reactor Security Branch NU050301 Level 3 <10 --- ---

Materials & waste Security Sranch NU050302 Level 3 10 12 83.3.%

Fuel Cycles & Transportation Security Branch NUOS0303 Level 3 10 I 12 83.3%

Division of Security Operations NU0504 Level 2 43 52 82.7%

Seculity Performance Evaluation Sranch NUOS0401 Level 3 10 15 66.7%

Information Security Branch NUOS0402 Level 3 10 12 83.3%

Intel Liaison & Threat Assessment Branch NU050403 Level 3 <10 I --- --

Security O.,erslght and Support Sranch NU050404 Level3 12 13 92.3%

Division of Preparedness & Response NUOSOS Level 2 43 57 75.4%

Operations Branch NUOSOSOl Level 3 11 15 73.3%

Coordination Sranch NU050502 Level 3 12 14 85.7%

Policty and Oversight Br,nch NUOS0503 Level 3 <10 --- -- -

Reactor licensing Branch NU050504 NU06 Level 3 Level 1

<10 192 203 94.6%

Office of Nuclear Regulatof)I Research Program Mgmt, Policy Development & Analysis Branch NU0601

- Level 2 18 19 94.7%

Human Capital & Communications Team NU060101 Level3 <10 International Programs Team . NU060102 Level 3 <10 -- ---

Financial & Performance Management Branch NU060103 NU0602 Level 3 Level 2

<10 -- --

Division of Engineering 61 65 93.8%

Component Integrity Branch NU060201 Level 3 12 12 100.0%

Corrosion & Metallurgy Branch NU060202 Level 3 10 10 100.0%

Regulatory Guidance & Generic Issues Branch NU060203 Level 3

- <10 --- -

Structural, Geotech & Seismic Engineering Branch NU060204 Level 3 10 12 83.3%

INSTRUMENTATION CONTROLS & ELECTRICAL ENGINEERING BR NU060205 Level 3 13 15 86.7%

Division of Systems Analysis NU0603 Levell 56 57 98.2'6 Reactor Systems Cooe Development Branch NU060301 Level 3 10 10 100.0%

Reactor Systems Analysis Branch NU060302 Level 3 <10 - -

Radiation Protection Branch NU060303 Level 3 I <10 -- --

Fuel &. Source Term Code Development Branch NU060304 Level 3 10 10 100.0% l Accident Analysis Branch NU060305 Level 3 11

- 11 100.0% I

[

I I-Division of Risk Analysis Probabilistic Risk Assessment Branch NU0604 NU060401 level 2 Level3 53 11 S7 12 93.0%

91.7% -II

'I E- Fire & External Hazards Analysis Branch Performance & Reliability Branch Human Factors & Reliability Branch Region I NU060402 NU060403 NU060404 NU07 level3 level3 Level 3 Levell 12 12 13 165 13 14

• 1 3 207 92.3%

85.7%

100.0%

79.7% I I

Regional Admin, Allegations, and Enforcement Staff NU0701 level2 10 12 83.3% I Division of Reactor Projects NU0702 I level2 56 76 73.7%

Projects Branch #1 NU070201 level 3 <10 -- -

-- Projects Branch #2 NU070202 level 3 . <10 - --

Projects Branch #3 NU070203 level 3 <10 -- --

Projects Branch #4 NU070204 level3 11 13 84.6%

Projects Branch #5 NU070205 level 3 <10 -- --

Projects Branch #6 NU070206 Level 3 <10 -- -

Technical Support & Assessment Branch NU070207 I level3 <10 -- -

Division of Reactor Safety NU0703 Level 2 48 I ss 87.3%

Engineering Branch 2 NU070301 Level 3 10 10 100.0%

Operations Branch NU070302 Level3 11 11 100.0%

i Plant Support Branch 2 NU070303 I level3 <10 - -*

Plant Support Branch 1 NU070304 Level 3 <10 -- --

Engineering Branch 1 NU070305 Level3 <10 - -

Division of Nuclear Materials Safety NU0704 Level 2 36 40 90.0%

Decommissioning & Technical Support Branch NU070401 Level 3 <10 -- -

Medical Branch NU070402 Level3 I

<10 -- --

Commercial, Industrial, R & D & Academic Branch NU070403 Level3 11 12 91.7%

Division of Resource Management

- NU0705 Level2 15 24 62.5%

- Human Resources Staff NUD70501 Level3 <10 - --

Financial Resources Branch NU070502 Level 3 <10 - *-

I Information Resources Branch NU070503 Level3 <10 - --

Region II NU08 Levell 213 269 79.2% 1 REGL ADMIN, ENFRCMNT & INVSTGTN COO RD STF . NU0801 Level 2 10 13 76.9% _j

Division of Construction oversight NU0802 Level 2 43 48 89.6%

Inspection Branch 1 NU080201 Level3 I 10 12 83.3%

Inspection Branch 2 NU080202

- Level 3 u 12 100.0%

Inspection Branch 3 NU080203 Level 3 11 12 91.7%

Inspection Branch 4 NU080204 I Level 3 <10 --- -

Ohllslon of Reactor Projects NU0803 Level2 63 86 73.3%

Reactor Projects Branch #7 NU080301

- Level3 <10 -- -

Reactor Projects Branch #1

• -- - NU080302 Level 3 10 13 76.9%

Reactor Projects Branch #2 NU080303 Level 3 <10 - -

Reactor Projects Branch #3

- NU080304 Level3 <10 - --

Reactor Projects Branch #4

- NU08030S Level 3 <10 -- --

Reactor Projects Branch #5 NU080306 Level3 <10 - --

Reactor Projects Branch #6 NU080307 Level 3 15 15 100.0%

Division of Reactor Safety NU0804 Level 2 51 68 75.0%

Engineering Branch 1 NU080401 1-evel 3 <10 -- -

Engineering Branch 2 NU080402 Level3 <10 -- -

Engineering Branch 3 NU080403 Level 3 <10 --- -

Operations Branch 1 NU080404 Level3 <10 - -

Operations Branch 2 NU080405 Level3 <10 -- -- I Plant Support Branch 1 Plant Support Branch 2 NU080406 NU080407 Level 3 Level 3

<10

<10 Division of Fuel Facility Inspection NU080S Level2 23 28 82.1%

Projects Branch 1 NU080501 Level 3 <10 -- -

Projects Branch 2 NU080502 Level 3 I <10 --- --

Safety Branch NU080503 Level3 <10 -- -

Division of Resource Management & Administration NU0806 Level 2 23 26 88.5%

Human Resources Sranch NU080601 Level 3 <10 - -

Financial Management Branch NU080602 Level3 <10 I - --

Information Resources Branch NU080603

- Level 3 <10 I - -- -

Region Ill ' NU09 level 1 158 194 81.4%

REGL ADMIN, ENFRCMNT & INVSTGTN COORD STF I NU0901 Level2 <10 - --

Division of Reactor Projects NU0902 level 2 I 53 67 79.1%

Branch 1 NU090201 Level 3 11 12 91.7%

Branch 2 NU090202 leve/3 10 13 76.9%

Branch 3 NU090203 level3 <10 - *-

Branch 4 NU090204 I Level3 <10 - -

Branch 5 NU090205 level 3 10 13 76.9%

Division of Reactor Safety NU0903 Level 2 54 I 58 93.1%

Health Physics & Incident Response Branch NU090301 level3 <10 - - I Operations Branch NU090302 Leve/3 <10 *- -

Engineering Branch 1 NU090303 Level3 10 10 100.0%

Engineering Branch 3 NU090304 Level3 <10 - -

Plant Support Branch NU090305 leve/3 <10 ... -

Engineering Branch 2 NU090306 Level3 <10 - -

Division of Nuclear Materli:!ls Safety

- NU0904 . Level i 26 35 74.3%

Materials Licensing Branch NU090401 level 3 <10 - *-

Materials Inspection Branch NU090402 I Level 3 <10 - *-

Materials CNT-ISFSI & Decomm* MCID Branch NU090403 I level3 <10 - -

Division of Resource Management & Administration NU0905 Leve/2 16 21 76.2%

Financial and Human Resources Branch NU090501 Level 3 <10 - -*

Technology and Information Resources Branch NU090502 Level 3 <10 -- --

Region IV Regional Admin, Response Coordinati on Branch Division of Reactor Projects NU10 NU1001 NU1002 I Level 1 Level 2 Level2

' 149 19 47 I 180 22 S6 82.8%

86.4%

83.9%

Reactor Projects Branch A NU100201 Level3 10

- 12 83. 3%

Reactor Projects Branch B NU100202 Level 3 12 15 80.0%

Reactor Projects Branch C NU100203 Level 3 11 11 100.0%

Reactor Projects Branch o Reactor Projects Branch E NU100204 NU100205 Level3 Level3

<lO

<10 I

I -

Division of Reactor Safety NU1003 Level2 . 46 I 57 80.7%

Engineering Branch 1 NU1D0301 Leve/3 I <10 +/- -- -

t= Operations Branch NU100302 Level 3 <10 - --

I --- --

Plant Support Branch 1 Plant Support Branch 2

- NU100303 NU100304 Level 3 Level 3

<10

<10 -- -- -

Engi neering Branch 2 NU100305 Level 3 <10 -- -

Inspection Programs and Assessment Team NU100306 Level3 <10 -- --

Division of Nuclear Materials Safety NU1004

- Level 2 22 30 73.3%

Fuel Cycle and Decommissioning Branch NU100401 Level 3 <10 -- -

Nuclear Materials Safety Branch A NU100402 Level 3 <10 - --

Nuclear Material Safety Branch B NU100403 Level3 <10 -- --

Division of Resource Management & Administration NU1005 Level 2 15 15 100.0%

Administrative Management Team NU100501 l evel 3 <10 -- --*-

Financial Resource Management Team NU100502 Level 3 <10 -- --

Human Resources Team NU100503 i.evel3 <10 -- -

Information Technology Team NU100504 Level 3 <10 I -- -

Office of the Chief Human Capital Officer NU11 Level 1 80 105 76.2%

Associate Director for HR Operations & Polley NUllOl Level 2 22 36

- 61.1%

Operations and Benefits Branch NU110101 Level3 <10 - --

Workforce Management Branch NU110102 Level 3 <10 - -- *-

Quality Control & Processi ng Team Policy, Labor and Employee Relations Branch NU110103 NU110104 Level 3 Level 3 I <10

<10 Associate Director for HR Training & Development NU1102 Level 2 45 55 81.8%

ADHRTD Headquarters NU110201 Level 3 16 18 88.9%

ADHRTD Technical Training Center NU110202 Level 3 21 29 72.4%

Human Capital Analysis Branch NU1103 Level 2 11 12 91.7%

Office of ttte Chief Informati on Officer NU12 Level 1 92 160 57.5%

IT/IM Portfolio Management & Planning Division NU1201 Level2 20 32 62.5%

IT/IM Strategic Planning Branch NU120101 Level 3 <10 -- --

Investment & Program Management Branch NU120102 Level 3 <10 ---- --

IT/ IM Policy Branch JNU120103 Level 3 <10 -

Financial Planning Branch Solutions Development Division NU120104 NU1202 Level 3 Level 2 I

<10 19 33 57.6%

t--

Project Management Branch INU120201 Level 3 I <10 ~

Enterprise Solutions Branch NU120202 I Level 3 __L ~

NUU0203 , Level 3 I <10 I I I Infrastructure Solutions Branch Production Integration Branch Operations Division NU120204-

- -- -- -- * - - - - -- -- - - - ' 1 -N_U_l_2_

03_____ -

1* Level 3 Level 2 I <10 18

• 39 46.2~

Infrastructure Operations Branch NU120301 Level 3 I <10 _,__ _ _ _ I Applications Operations Branch NU120302 Level 3 I <10

~~;:~;t~~:~:~: ~:r;;:;:::;~;:eering Branch Customer Service Division

~~~~::

NU1204

-~

-:-:e e

Level 2

=i=-:-~-~ I 1 20 I 35 I

I 57.1%

I Customer and Communcations B r ~ --- INU120401 Level 3 ----t- <10 I --

User Services Branch NU120402 I Level 3 I <10 I - - - - -- -

a I

FOIA, Privacy, & Information Collection Branch NU120403 Level 3 I <10 Information Security Directorate INU120S Level 2 I <10 CYBER SITUATION.A l AWARENESS, ANALYSIS AND RESPONSE TEAM jNU120501 I Level 3 __jL._ <10 I Polley, Compliance, and Training Team NU120502 Level 3 I <10 1 - . -_

!- Office of Administration Program Mgmt, Policy Development & Analysis Branch NU13 NU1301 * - -_

Level 1 Level 2 I <10 +/-

~ _L_ 156 41.0%

Information Technology Team Budget Execution & Planning Team Division of Facilities & Security _

1 NU130101 NU130102 NU1302 Level 3 Level 3 - -* L Level 2

<10 O

15

~

I I 34 3 + 0.0%

44.1%

Personnel Security Branch NU130201 Level 3 j <10 I Facilities Security Branch - - _ __ _ _ JNU130202 Level 3 - - - <10 ~ -- -+--

Facilities Management Branch *NU130203 Level 3 <10 I Acquisition Management Division ,NU1303 Level 2 18 52 34.6%

I--- Acquisition Policy and Systems Branch __ INU130301 I Level 3 <10 Support and Planning _ _ _ INU130302 I Level 3 ~

Operations Branch A NU130303 I Level 3 <10 Operations Bra.r,ch.f! NU130304 I Level3 <10 Division of Administrative Services I

- ,NU1304 I Level 2 ____2_1_.J_ 42 I 50.0%

Rules, Announcements & Directives Branch NU130401 Level 3 I 10 I 15 L 66.7%

Administrative Services Center INU130402 _ _ _ _ _J_ Level 3 J <10 I -- _ _.L

~

Publications Branch j NU130403 Level 3 <10 Directorate for Space Planning & Consolidation NU130S Level2 <10 --- --

- Space Design &ranch NU130501 Level 3 0 3 0.0%

Property Management Branch NU130502

• - - Level 3 <10 --- --

Headquarters Consolidation Branch NU130503 Level3 0 3 0.0%

Office oi the Chief Financial Officer Resource Management Team NU14 NU1401 - Level 1 Level2 62

<10 I 105 59.0%

Division of Planning and Budget NU1402 Level 2 23 40 57.5%

Budget Operations Branch :2 NU140201 Level 3 <10 --- --

~

Funds Control Branch NU140202 Level 3 <10 -- --

Budget Operations Branch l NU140203 Level 3 <10 -- *-

Internal Control & Planning Branch NU140204 Level 3 <10 -- --

NU140205 I Level 3 <10 - -

l License Fee Policy Team Division of the Controller NU1403 Level 2 34 58 58.6%

Financial Systems Branch NU140301 Level3 <10 -- -

Travel and Financial Operations Branch NU140302 Level 3 <10 -- - --

Financial Reporting & Analysis Branch NU140303 Level 3 <10 -- --

A.ccounu ReceiVab\e Branch NU140304 Level 3 <10 --- --

Payroll & Payments Branch NU140305 Level 3 <10 --- --

Office of the General Counsel NUlS Level 1 61 100 61.0%

Program Support Branch NU1501 Level 2 <10 --- --

Assoc GC for licensing & Regulation NU1502 _Level2 22 36 61.1%

Asst GC, Legal Counsel, Legislation & Special Projects NU1S0201 Level 3 <10 - --

A.sst GC for Reactors & Materials Rulemaking NU150202 Level 3 I 10 13 76.9%

ASST GC FOR HIGH LEVEL WASTE, FUEL CYCLE & NUCLEAR SEC NU150203 Level 3

-- <10 ...... --

Assoc GC for Hearings, Enforcement & Admin NU1503 Level 2 I 28 48 58.3%

A.sst GC, Materials litigation & Enforcement NU150301 Level 3 <10 -- --

Asst GC for Operating Reactors NU150302 Level 3 <10 --- --

Asst GC for New Reactor Programs NU150303 Level 3 I <10 -- --

A.sst GC for Administration Office of the Inspector General

-- -- NU150304 NU18 Level 3 Level 1

+/- <10 38 I 52 73.1%

I Resource Management & Operations Support NU1801 Level 2 i <10 I --- -- --

Assist<Jnt Inspector Generij/ for Aud/ts NU1802 level2 21 29 72.4%

Financial & Administrative Audits NU18020l Level 3 <10 -- --

J Security & Info Management Audits NU180202 Level 3 <10 I -- --

Nudear Materials & Waste Safety Audits NU180203 Level 3 I <10 I -- --

Nuclear Reactor Safety Audits Assistant Inspector General for Investigations Team A

- - NU180204 NU1803 NU18030l Level 3 level 2 Level 3 I

I

<10 11

<10

+/-

I 16 I --

68.8%

I

~

TeamB NU180302 Level 3 <10 I Office of Congressional Affairs NU31 Levell <10 -- -

Office of Commission Appellate Adjudication NU32 Level 1 <10 -- --

Office of the Secretary of the Commission NU33 Level 1 17 I 18 94.4%

History Staff NU3301 Level 2 0 l 0.0%

Operations Staff NV3302 Level2 <10 I. -- --

,__ Correspondence & Records Staff Rulemaklng & Adjudication Staff

- NU3303 NU3304 Level2 Level 2 I

<10

<10 Office of International Programs NU34 Level 1 32 36 88.9%

International Operations Branch International Cooperation & Assistance Branch NU3401 NU3402 Level 2 Level 2 I

<10 10 I 10 100.0%

Export Controls & Nonproliferation Branch NU3403 Level 2 <10 **- --

Atomic Safety and Licensing Board Panel NU35 Level 1 15 17 88.2%

Program Support & Analysis Staff NU3501 Level2 <10 --- -

Advisory Committee on Reactor Safeguards NU36 Level 1 18 25 72.0%

Reactor Safety Branch-A NU3601 Level2 0 l 0.0%

Technical Support Branch NU3602 Level2 12 13 92.3%

PROGRAM MANAGEMENT, POLICY DEVEl.OPME/llT & ANALYSIS BR NU3603 level2 <10 --- --

Office of the Executive Director for Operations NU37 Level 1 17 21 81.0%

Assistant for Operations NU3701 Level2 15 19 78.9% - i Office of Enforcement NU38 Level 1 33 33 10~ 0% .

Concerns Resolution Branch NU3801 Level 2 <10 : - 1I Allegation Team I NU3802 level 2 <10 - -

Enforcement Branch NU3803 Level 2 11 11 100.0%

Office of Investigations NU39 I Level 1 34 I 35 97.1%

Philadelphia Field Office NU3901 l Level2 <10 - -

Level2 <10 - --

I Atlanta Field Office NU3902 Chicago Field Office NU3903 Level 2 <10 - --

Dallas Field Office NU3904 Level 2 <10 - -*

NU40 Level 1 18 18 100.0%

Office of Small Business and Civil Rights SMALL BUSINESS, OUTREACH & COMPLIANCE COORDINATION DIR NU4001 I Level 2 <10 -* - *-

Civil Rights & Diversity Directorate NU4002 level2 <10 -* -

Office of Commission Support NU41 Levell <10 *-* -

Office of Public Affairs NU42 Level 1 12 16 75.0%

Reg 1Public Affairs Field Office NU4201 level 2 <10 ... -

Reg II Public Affa irs Field office NU4202 level 2 <10 *- -

Reg Ill Public Affairs Field Office NU4203 Level 2 0 2 0.1)%

- Reg lV Public Affairs Field Office NU4204 Level2 <10 ... --

POP for 10/23/'17 EDO & DEDO Briefing on Reprisal & Chilling Effect Study

Purpose:

OE to brief EDO & D:EDOs on study.

Objective: Get approval to issue study.

Process: Brief the study and follow on with next steps, including discussion of possible adjustments.

Opening remarks (Trish) (5 minutes)

Brief the results of study (Renee) (30 minutes)

Differing views (OCHCO, SBCR, OGC) (10 minutes)

Questions & open discussion (ALL) (10 minutes)

Next steps (Renee) (5 minutes)

• Send study to Commission & Office Directors, Regional Administrators - November 6, 2017

• Announce study in EDO Update

• Evaluate, identify actions, establish implementation plan (EDO may want to establish working group)

• Issue action plan in EDO Update

• Announce significant actions to staff

POP for 10/23/17 EDO & DEDO Briefing

Purpose:

Brief senior management on the Study of Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC.

Objective: Get senior management direction on next steps.

Process: Brief the study and follow on with next steps, including discussion of possible adjustments.

Opening remarks (Trish)

Brief the results of study & proposed next steps (identified in Agency Action Plan) (Renee)

Differing views (OCHCO, SBCR, OGC)

Questions & open discussion (ALL)

Next steps (senior management)

OE response to OGC 9/20/17 commcats (b)(5)

(b)(5)

J

(b)(5)

SBCR Comments on the OE's Revised Study of Reprtsal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC (b)(5)

(b)(5)

(b)(5) 9 Considerations based on 15 observations:

Demonstrate management commitment and accountability.

Benchmarking identified the importance for success. OSHA #1.

Consider actionable, tangibl e activities beyond communications to build trust.

Consider additional strategies for accoutability.

Survey all employees to ask whether they believe they have experienced reprisal for raising a mission-related concern or differing view.

Having data would help understand extent of issue.

Could also consider followup reporting question.

Questions could be included in upcoming 2018 SCCS.

Establish and maintain a comprehensive policy and procedures to prevent, Identify, Investigate, and address reprisal for raising mission-related concerns or differing views.

OSHA best practice. Key component of holistic prevention effort.

OE believes that the existence of an Anti-Harassment Policy for protected class/EEO-type issues does not preclude the agency from considering an Anti-Harassment Policy for raising mission-related concerns and differing views (protected activity/disclosure).

OE believes the current policy is a really good model and could be emulated.

Consistent with staff commitment in 2014 project plan to Chairman.

Opportunity to build trust- something tangible that can resonate with employees.

Benefit of one visible intake point-2 policies.

3

Establish an ARP to review proposed employment actions on an as-needed basis before the actions are taken to determine whether any of the factors of retaliation are known to be present and to advise on mitigation strategies to address the potential for the actions to cause a chilling effect and, if already alleged, respond to concerns of chilling effect and chilled work environment.

OE ls not aware of any legal prohibition on this type of group. This pro-active strategy (similar to the practice included in the NRC's RIS on SCWE) could support supervisors and managers who may lack the expertise in recognizing, understanding, and responding to potential reprisal and chilling effect issues and could promote consistency.

The ARP would serve in an advisory capacity and would not usurp or replace existing authorities or processes.

We envision that this advisory group would engage early in discussions with supervisors most likely prompted by use of a job aid.

Help supervisors avoid problems and give them support to do what they want to do.

Details of the charter & roles & responsibilities & cautions (due process attorney/client) would be clarified in the event the EDO might want to pursue this or establish it on a trial basis.

OE believes there is value in a more formalized ARP that can be identified as a resource, greater chance supervisors will seek guidance on an as-needed basis & it is better to avoid problems than have to respond to them later.

That having been said, ARP could help with mitigation strategies after the fact and things to do to avoid chilling effect.

NAECP-case studies with similar concept.

Examine existing training and consider enhancing, adding, or replacing.

Diverse strategy considering audience, timing, and delivery methods.

Include focus on chilling effect. (Just because we may not have a chilled work environment does not mean that behaviors are and can cause chilling effect.)

Training with specific examples of conduct that is considered reprisal and unacceptable.

Guest speakers, ELS, all-supervisor, all-employee.

Job aid or any training that includes guidance on the four elements of reprisal (prima facle showing of discrimination).

Infuse key messages in related training.

Consistent with staff commitment in 2014 project plan to Chairman.

4

Enhance communications on whistleblower rights and protections.

Consider annual YA (last YA in 2014).

Hang posters.

Update Issues Resolution Matrix.

Consider issuing YA for unsettled nature of ERA protection.

Improving/clarifying discussion of the "whistleblower" term.

OE not sure how enhanced communications on whistleblower rights and protections can be if you don't expand/clarify the "whistleblower" term.

Opportunity to build trust-something tangible that can resonate with employees.

Continue to communicate the value of raising mission-related concerns and differing views and that the agency does not tolerate reprisal for speaking up or using the differing views processes.

EU-Make it matter, make it simple, make it stick.

link and leverage employee commitment to safety & security mission.

Establish an agency-level advisory committee on environment for raising mission-related concerns and differing views.

Similar to EEO-based groups. Benefit of including staff & maangement.

Establish an annual Meritorious Service Award.

Trip Rothschild-State Department award for dissent.

Demonstrates commitment.

Similar to EEO award.

Focus group: Marge Sewell OE; Jason Using, Yvonne Weed, OCHCO; Joel Kravitz, SBCR; Jack McKimm, OGC; Melissa Ralph, OEDO; Maria Schwartz, NTEU 5

~ U.S.NRC Unlccd Smcs Nuclear Rcgu l11ory Commission Protecting Peopk and the Environment Study of Reprisal and Chilling Effect for Raising Mission-Relat ed Concerns and Differi ng Views at t he NRC Office of Enforcement November 20, 2017

Background & Introduction

• Agency Action Plan - Activity 3

- Continue to develop and enhance activities that address concerns of retaliation and chilling effect for raising concerns, as well as support continuous improvement of the Open Door Policy (ODP}, Non-Concurrence Process (NCP}, and the Differing Professional Opinion (DPO} Program.

• OE was tasked with leading activity in partnership with OCHCO, SBCR, OGC, OEDO & NTEU

• Focused on protected activity/disclosure vs. protected class/EEO-based issues

• Study does NOT conclude chilled work environment

• Study does indicate opportunity for improvement

• Fear of speaking up (real or perceived} can impact environment for raising concerns, employee engagement &

ability to fulfill mission 2 ~ U.S.NRC

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Methodology

• Multi-office focus group

• SCCS, FEVS, NCP & DPO targeted surveys

• 2014 OCWE Assessment

• OIG NCP audit

• Reprisal data

• Regulations, policies, procedures, & practices

• Training & communications

• Additional information/benchmarking (15 sources)

-OSHA -INPO - Clifford & Garde

-EEOC - SCWE 2005 RIS - LinkVisum

- ELI - Speed of Trust -OPM, FEI 3 ~t u.S.NRC U*I-, Senn Ni.dnt lt.lJ.vfNOrYCoounh,1- .

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Considerations

• Demonstrate management commitment and accountability.

• Survey all employees to ask whether they believe they have experienced reprisal for raising a mission-related concern or differing view.

• Establish and maintain a comprehensive policy and procedures to prevent, identify, investigate, and address reprisal for raising mission-related concerns or differing views.

• Establish an ARP to review proposed employment actions on an as-needed basis before the actions are taken to determine whether any of the factors of retaliation are known to be present and to advise on mitigation strategies to address the potential for the actions to cause a chilling effect and, if already alleged, respond to concerns of chiUing effect and chilled work environment.

4 C1tU.S.NRC Unlw4$nrinh"*""'*~CoMNdoa 1+,--,rw,lt""",,,,E,n,i,.,.,,,.,,,

Considerations

• Examine existing training and consider enhancing, adding, or replacing.

• Enhance communications on whistleblower rights and protections.

• Continue to communicate the value of raising mission-related concerns and differing views and that the agency does not tolerate reprisal for speaking up or using the differing views processes.

• Establish an agency-level advisory committee on environment for raising mission-related concerns and differing views.

• Establish an annual Meritorious Service Award.

)

s ~ U.S.NRC UnltN Sotin N..Jn, RrpiJNOrr Com,nluiM

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MEMORANDUM TO: Victor M. Mccree Executive Director for Operations FROM: Anne T. Boland, Director Office of Enforcement

SUBJECT:

STUDY OF REPRISAL AND CHILLING EFFECT FOR RAISING MISSION-RELATED CONCERNS AND DIFFERING VIEWS AT THE NRC This memorandum transmits the results of a study conducted by the Office of Enforcement (OE) in response to the tasking identified in the third action item in the June 9, 2016, Agency Action Plan. The focus of the study Is on developing and enhancing activities that address concerns of reprisal and chilling effect for raising mission-related concerns and differing views (i.e.,

protected activity/protected disclosure). The study does not assess the agency's existing differing views processes or any other agency processes. The goal was to gain a better understanding of the issues and maximize potential strategies for improvements to support employee engagement and ultimately, the agency mission.

The comprehensive study reviews historical data for context, examines the existing environment (including agency processes and practices), and reflects a broad range of insights from a multi-office focus group as well as insights from a variety of sources and benchmarking activities.

OE coordinated with multiple offices to ensure an accurate representation of the existing processes and practices, including the Office Chief Human Capital Officer (OCHCO), the Office of Small Business and Civil Rights (SBCR), the Office of the General Council (OGC), the National Treasury Employees Union (NTEU), and the Office of the Inspector General (OIG).

OE also established a multi-office focus group with employees from OCHCO, SBCR, OGC, OEDO, and NTEU to*maximize potential strategies and activities for senior management's consideration. The study captures the essence of all considerations that were identified by the group, however, it does not reflect a consensus view from the group on all observations or considerations.

The observations and considerations in the study reflect OE's analysis of the data and Insight from a broad range of sources to maximize potential strategies for improvement in a historically challenging area.

CONTACT: Renee Pedersen, OE (301) 287-9426

Although the agency has seen significant improvement in this area from when the OIG's Safety Culture and Climate (SCCS) was first issued in 1998, (where data showed that around 40% of employees had concerns of reprisal for speaking up); since 2009, data shows that we have plateaued to around 20% of employees having concerns of reprisal for raising concerns and differing views. The collected data indicate that perceptions of reprisal may inhibit employees from raising mission-related concerns and differing views and impact employee engagement.

Although data does not conclusively identify that reprisal is pervasive at the agency or that there is a chilled work environment, it does indicate that there is room for improvement.

The study identifies nine considerations that reflect a proactive, holistic approach to address the observations of concern.

1. Demonstrate management commitment and accountability.

2. Survey all employees to ask whether they believe they have experienced reprisal for raising a mission-related concern or differing view.

3. Establish and maintain a comprehensive policy and procedures to prevent, identify, investigate, and address reprisal for raising mission-related concerns or differing views.

4 . Establish an ARP to review proposed employment actions on an as-needed basis before the actions are taken to determine whether any of the factors of retaliation are known to be present and to advise on mitigation strategies to address the potential for the actions to cause a chilling effect and, if already alleged, respond to concerns of chilling effect and chilled work environment.

5. Examine existing training and consider enhancing, adding, or replacing.

6. Enhance communications on whistleblower rights and protections. .

7. Continue to communicate the value of raising mission-related concerns and differing views and that the agency does not tolerate reprisal for speaking up or using the differing views processes.

8. Establish an agency-level advisory committee on environment for raising mission-related concerns and differing views.

9. Establish an annual Meritorious Service Award .

The considerations aim to provide senior management with a range of opportunities that could be pursued to create effective, lasting improvements to the workplace that align with the focus of the Agency Action Plan (i.e., foster a climate of trust; strengthen the positive environment for raising concerns; promote a culture of fairness, empowerment, and respect across the agency; and establish clear expectations and accountability for NRC leaders).

Used purposefully, the insights from this study can help identify strategies, refocus our attention, and reenergize our efforts to fulfill NRC's important safety and security mission, while continuing to nurture an environment that reflects the characteristics of a strong safety culture in which people feel free to speak up without fear of reprisal, knowing they will be heard, understood, and responded to in a respectful manner.

Enclosure:

As stated ADAMS Package: ML MEMO: ML

Enclosure:

OFFICE OE: DVPM NMSS OE: D NAME RPedersen PHolahan ABoland DATE 12/ /2017 12/ /2017 12/ /2017 OFFICIAL RECORD COPY

High-level Themes and OE Responses (b)(5)

(b)(5)

(b)(5)

Concerns of Reprisal - Consolidated Questions from 2015 SCCS

'17 I believe I can raise any concem without fear of retanallon. 8

• -. _ _.,.,.1-~,..""'--- *- - ~ -*-*- ~ - - - ~- -:!""!.---£ - *~ - -;1'!:~ ss<- 4 ,.~ q; L , . -~

~Total Favorable J ? J Total Unfavorab le Difference NRC OVERALL 2015 &8 11 20 NRC OVERALL 2012 r= 73* .5*

NRC OVERALL 2009 '!o, .:0.'li;;:\it,O~

78 During the past year. I have heard of someone who has experienced a negative reactton for having raised a mission-related dlfrertng view from t3 their supeNlsor.

~-,,~-~------ - ~~~---~ -~! Yes I D~n't*~ ;:;;---=~ --~*,*----~. 1 --

• Olfferel'\ce~ - -

NRC OVERALL 2015

\._

f.

59

...J.,

20

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-.;,;;;;a:,--p::;;,.fl ..

I NRC OVERALL 2012 ~1* 23" NRCOVERALL 2009 _ I' &4" 1 15.:. * ****"*~ *~_j j tT S) -5*

• -~------*- ------------------------- -----------

37 This Agency has established a climate where the truth can be taken up the chain of command wtt11out fear of reprlsal. (3

_----*** ... _____ ______ ____ _ :1ota1 Favorable l ?) Total unfavorable - - -- ....,, _ -.. ----

Difference NRC OVERALL 2015 NRC OVERALL 2012

- ----- - ~--

&t*

5,4

- ~--~-,. . .-~~~

- --.. ~ . =~

'~~~I 27 19

--*- - - I 4*

NRC OVERALL 2009 82 if 20 2

- -- ----------*-------*---------ft -  :!

--~-

21 Most of the time it is safe to speak up in the NRC. 8

• • - - - = - - - - " " ' - ~ " - . . . . . ~ ~ ~ ~ '

,Total Favorable \ ? \ Total Unfavorable

--~----------=----------------------

,.....- -- -~

Difference NRC OVERALL 2015 n a ,, 15 NRC OVERALL 2012 78 9 16

'==== ~ j

• -----***- ----------------- - -- .,.. - -,, I NRC OVERALL 2009 n 9 13

30 My Office/Region management actively seeks to detect and prevent retaliation for raising concems. 8

- =* *-~-- --*_....._ ** *- - - ~~ b l e I? I Total Unfa~~le Difference NRC OVERALL 2015 41 15 NRC OVERALL 2012 !fT" 14 .7*

NRC OVERALL 2009 .-.ct Avai!sl:l!e 9 Employees are positively recognized for raising differing views. 8

___..__,..,. ..... * *- -- ~~... -~.~ i~---~ ,,a --*~ -~ ~ -----~ ~~ - =--~- ~ * ~

tTotal Favorable I ? I Total Unfavorable Difference NRC OVERAll 2015 58 NRC OVERALL 2012 .... 23 r l .

NRC OVERALL 2009 l 58 11"

59b Re;a.~ the. Non-Ccncurrence Precess: Ii has no negative effe:t on ca,TeeT dewlopme!lt at the NRC Ta,al Favmable I? I Tc1al Umavc:rable Di1ferenoe NRC OVERALL 201e L *- __:__-33 - ;;;..--:---c--=.-_,:-* . - -.:* - - -.. r NRC OVERALL 2012 Net Av~ i.lable

- - ~'-- 16 NRC OVERALL 20DQ

---

Nat Av-ailab9e

. -- *--~ .... -...- - -- . - - - ------ ---**--- --- - *-***-- ----

Negative trend, but big unknown (51%) can be opportunity for improvement.

60b Repro".-n.g the Differing Pm."essimia1Opinions (D'PO} Program: ilt bas no negatjYe effect on csreer development at 1he NRC Total F:awrable I? 1Ta1al Unfa.va:able Oifferenoe NRC OVERALL 201~ .  :, -:- . i, -. - ~~;.,~* ***==---,.:J; _~. "'-=-- \[ 'lG L NRC.OVERALL 2012 .. .

--~*1

• -*- I - I 36*

L i .l

-- 46* :

... JC 18 T l al~-5*

~- * - - -*---~- -

• NRC OVERALL 2DOg 3P 1 -.

-- nzc - *..!!!_I t

_: -6"'----*-*---

• 72

--*--l 1<<l~

n~ be 'f&illing to use1h Noo~rrence PTOCess irt appropri.!ecin:mnsrances.

To,al Favorable I? I To1al U:mfa.vma.ble Di1fefence

-*NRc-ovERALL-201i_____;: - 63 L=-.if -1L.ll l ---------*

- NRC ~RALL-2CJ12 =~---~-----~-_--

_NRC OVERALL2009 - -- - * ;____________ ___

!f.~ Air~~~!;_ -

NctAvai!ab!a

--~ [

f

~  : -*-- - ;

The

--- - 13%

73

-- who .._...

disagreed

._.. - *-with... Item... .72

~ -- - - --~-*

answered item 73:

. ~----....~-----------~-

I woutd not be Wimng to use the Non-Conamence Process bec3USe U)Jease ch~ all that c11>1>1Y}:

0% 20% 40% 60% 80% 100%

1teµocessoosrn~tomy\\01< 11%

_ _ _ 18%

Thepooessisdffirutbuse lheprocessistiJre¥

• 8%

_ _ _ _ _.., 40%

~Y4trot~oor~m,oormra Treproce$ismt~~mt l'm<ma:rrejof~~uust,Jtreporess 82%

---

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,~

Fll'Offl .,,bat I knl'JYf or have heani. the Nun-Ccmcummce- Plrocess i5 effemve..

O'her 11%

T o!!al Fawable I ? I T~I UnfavO'r.lble Di1fetenoe di ------,.---

--~RC O~E~L~~15 _____

N!R C OVERAI.L 2D12

• -r.aRc"ovERALL20DQ* ____

I_ _

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51 - .

49 ii JI

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70 l flt'!\\ I ~ be willing tD use 1he Differing~ Opinions \D?O} Program in appcpiale circumstances.

NRG OVERALL 201E Ta!al Favcrable I ? I Total Unfavorable h

_ __ /Oiferenoe

~ - --i,- . . - - - - * * -- -. . . - - -- --

_N~c*:~~e~.;:~~~~1~_-**---- .l 69* L-J~ j L 15 11 I . i- _.,.

N RC OVERALL 2DOQ 0

1 70*

• • • • *-------*- *--*~*-- -*-- -

Th! 16o/o who disag~ed with item 70 ans_w_e_re_d_ lte _m _ 7_1_:_ _ _ _ _ _ _ _ _ _ __

71 I woul~ not be wffling to use the Differing Professional Opinions (DPOJ Program becaUse {please cheek all !hat apply):

• ~ p

• 0% 20% 400A, 60% 80% 100%

The~<b!stU~ DITTyv,ak - 13%

Theprocessisdfficuthme _ _ _ 19%

lheproressis timy - 10%

_ _ _ ___, 37%

Maage,ient~ rotfa'tycmsm"rrt(<Dltl:fflS l"he~iSrd.~ i ~ ~ 35%

fmaJ ttanedof nega1i\lecmsequffi(l5D"l9glre~ 8.2%

~ . 8%

16 From what I !lcnaw or have heaA!I. 1he Differing Pr'a&!ssiicma1 Opimons. (O?O] Program is ell'ectM!.

Taral Fawta.ble I ? ITc1al UMa.VCrable O~nce NRC0VERALL2D1E . 4-7.-. ~ . ... JO- --_jj ___ ]C 17 *1* --- *------*----

~RC.OVERALL-2012* ----- ***- j -

-- ~-** * ......-** - - ..- * -*------*-----..**-~, - . - ,21- -* -"'1[ C:

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- - ll t&* Ii a si -4~

NRC O~~~L_2 ~~~ -- ----- _.-!- - -*---- ---*-- -~ ~--- -- - - - - lb = . __ IL _, _J 1Y_J; ~ -----*-*

Nuclear Regulatory Commission Policy and Procedure for Preventing and Eliminating Harassing Conduct in the Workplace

[ Preventing and Eliminating Harassing Conduct in the Workplace Reference Sheet J I. Purpose This Policy is intended to ensure that the Nudear Regulatory Commission (NRC) takes appropriate action to accomplish the following:

Prevent sexual harassment and other forms of harassing conduct based on race, color, religion, sex, national origin, age, disability, sexual orientation, and retaliation for engaging in protected Equal Employment Opportunity (EEO) activity in the workplace; Ensure that employees, supervisors, and managers are aware of their rights and responsibilities in maintaining a work environment that is free from harassing conduct and the options available for reporting claims of harassing conduct; Provide an expedited, fair, and impartial process for reviewing allegations of harassing conduct as defined in this Policy; Correct harassing conduct, as defined in this Policy; and Administer corrective action, which may include disciplinary action, to any employee who violates this Policy.

This Policy updates the agency's long-standing policy on the prevention of sexual harassment in the workplace. It is separate and apart from any collective bargaining agreement (CBA) or statutory complaint process, or other agency policy involving harassment. (See Section X.] Furthermore, this Policy does not alter the right of an employee to report harassing conduct to the Office of the Inspector General (OIG) or to file a complaint with the Office of Small Business and Civil Rights (SBCR).

II. Authorities Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16 (Title VII); the Age Discrimination in Employment Act of 1967, 29 U.S.C. 633a (ADEA); the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791; Executive Order (E.O.) 11478, as amended by Executive Order 13087, May 28, 1998; Equal Employment Opportunity Commission's (EEOC) Model EEO Programs Must Have An Effective Anti-Harassment Program (2005); EEOC's Manual Directive 715 (2003); EEOC's Enforcement Guidance:

Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999); Faragher v.

Boca Raton, 514 U.S. 775 (1998); and Burlington Industries, Inc. v. El/erlh, 524 U.S. 742 (1998.)

Ill. The Definition of Harassing Conduct For purposes of this Policy, harassing conduct is defined as any unwelcome verbal.

visual, physical or other conduct based on race, color, religion, sex (whether or not of a sexual nature), national origin, age, disability, sexual orientation, or retaliation for participation in protected EEO activities. To constitute harassing conduct under this Policy, one of these two conditions must be present:

A The behavior reasonably can be considered to affect the work environment adversely; or

8. An employment decision affecting the employee is based upon the employee's acceptance or rejection of such conduct.

Examples of unwelcome prohibited conduct under part A of the definition include, but are not limited to offensive remarks or comments; ridicule; offensive and derogatory words, phrases, epithets, or jokes; suggestive comments and unwelcome requests for sexual favors; exposure to offensive photographs, explicit drawings, cartoons, e-mails, or internet transmissions; touching; pinching; grabbing; gesturing; or stalking.

Examples of unwelcome prohibited conduct under Part B of the definition include, but are not limited to promoting or not promoting an employee; or taking or not taking a personnel action affecting the employee's conditions of employment based on the employee accepting a date or sexual favor.

IV. Polley It is the Policy of the NRC that harassing conduct by anyone in the workplace is unacceptable and will not be condoned. NRC will maintain a work environment free from the harassing conduct described above. The NRC has determined that the most effective way to maintain such a work environment is to Inquire promptly into allegations of harassing conduct and, if proven true, treat the offense as misconduct, even if It Is not sufficiently severe or pervasive to constitute discriminatory harassment actionable under the civil rights laws.

The current EEO complaint process provides employees specific remedies for unlawful harassment that has already occurred. This NRC Policy, however, is focused on stopping harassing conduct at its earliest stage. A hostile environment that violates EEO law usually requires a showing of a pattern of offensive conduct. Under this Policy, however, the NRC wlll not wait, nor should the employee wait, for such a pattern to emerge. The NRC will, where possible. act to stop and correct harassing conduct before it becomes unlawfu I; that Is, before it becomes so pervasive or severe as to create an unlawful hostile work environment. Accordingly, the NRC encourages all employees to report any incident of harassing conduct forbidden by this Policy immediately so that complaints can be resolved quickly and fairly. If the NRC is not made aware of harassing conduct, it cannot stop it.

In addition, NRC will not tolerate retaliation against any employee who makes a good faith report of harassing conduct under this Policy or any other policy or procedure, or for assisting in any inquiry about such a report. Allegations of retaliation will be handled In accordance with the procedures outlined in this Policy.

2

Allegations of harassing conduct will be addressed as promptly as possible. Employees found to have violated this Policy will be held accountable for their actions and may be appropriately disciplined in accordance with 5 U.S.C. Chapter 75.

V. Roles and Responsibilities A. Agency Employees Each agency employee is responsible for creating and maintaining a work environment that is free from harassing conduct and is expected to do the following:

1. Comply with the Policy;

2. Attend a briefing on this Policy and Procedures;

3. Refrain from exhibiting harassing conduct;

4. Promptly report any incident of harassing conduct in accordance with the Procedures in Section VI.; and

5. Cooperate with any inquiry conducted under this Policy.

8. Managers and Supervisors In addition to the requirements in A. above. each agency manager and supervisor is responsible for the following activities:

1. Handling allegations of harassing conduct promptly and appropriately in accordance with the proceduresSection VII.;

2. Implementing interim measures to protect alleged victims of harassing conduct pending the outcome of the inquiry and to ensure that further alleged misconduct does not occur;

3. Administering appropriate corrective action, including disciplinary action, to employees who engage in harassing conduct or who do not carry out their responsibilities under this Policy;

4. Taking action to prevent retaliation against individuals who make good faith reports of an allegation of harassing conduct or participate in any inquiry into an allegation of harassing conduct; and

5. Consulting with the agency Designated Official (DO) with respect to all appropriate actions under items B. 1. through 4. above.

C. Director, Office of Human Resources 3

The Director, Office of Hurnan Resources (OHR) is responsible for the following actions:

1. Ensuring that employees are informed of this Policy and the procedures to follow in connection with reporting harassing conduct by disseminating this Policy statement periodically to all employees and posting it on the NRG intranetwebsite;

2. Ensuring that managers, supervisors, and employees are provided appropriate training on this Policy;

3. Identifying the Designated Official (DO); and

4. Ensuring that the identity of the DO is prominently displayed throughout the agency and on the NRC intranet and the identities of the Regional Personnel Officers are prominently displayed in the Regions.

D. Agency Designated Official The agency's Designated Official {DO) is responsible for the following actions:

1. Assisting the Director, OHR, in ensuring that employees are informed of this Policy and the procedures in connection with reporting harassing conduct;

2. Receiving allegations of harassing conduct reported in accordance with Section VII., below; 3 Determining whether an allegation falls within the jurisdiction of this Policy or otherwise interpreting and implementing this Policy;

4. Referring allegations received under this Policy to the Office of the Inspector General (OIG) for possible investigation;

5. Conducting or overseeing prompt, fair, and impartial inquiries into any allegation of harassing conduct, where appropriate. If the OIG decides not to make an inquiry on a referral received under this Policy, the DO has the authority to determine who will conduct the inquiry into any allegation of harassing conduct, including him/herself;

6. Advising managers and supervisors on implementing Interim measures to protect alleged victims of harassing conduct pending the outcome of the inqui ry and to ensure that further harassing conduct does not occur;

7. Advising managers and supervisors on administering appropriate corrective action, including disciplinary action, to employees who engage in harassing conduct or who do not carry out their responsibilities under this Policy; 4

8. Advising managers and supervisors on taking action to prevent retaliation against individuals who report alleged harassing conduct or participate in any inquiry into an allegation of harassing conduct;

9. Deciding whether to arrange for mediation services to resolve a dispute arising under this Policy. Mediation services may be offered from a variety of sources including the DO, the Federal Mediation and Conciliation Service, Office of Small Business and Civil Rights (SBCR), a contract mediator, and the HHS Sharing Neutrals Program;

10. Making the Director, SBCR aware of all allegations of harassing conduct under this Policy and actions taken to address such allegations; 11 . Providing technical assistance and support, to ensure compliance with this Policy;

12. Maintaining records of all allegations of harassing conduct brought under this Policy in accordance with the Privacy Act 5 U.S.C. 552a; and

13. Informing all persons reporting allegations that filing a report of harassing conduct under this Policy does not satisfy the requirements to initiate an EEO complaint, a Merit Systems Protection Board (MSPB) appeal or a grievance; nor does it delay the time limits for initiating those procedures.

E. Regional Personnel Officer The Regional Personnel Officer (RPO) is responsible for the following actions:

1. Assisting the Director, OHR, in ensuring that employees are Informed of this Policy and the procedures in connection with reporting harassing conduct;

2. Receiving allegations of harassing conduct reported in accordance with Section VII.;

3. Promptly advising the DO and the Regional Administrator of any allegations reported under this Policy;

4. In coordination with the DO, conducting or overseeing prompt, fair and impartial inquiries into any allegation of harassing conduct;

5. In coordination with the DO, advising managers and supervisors on implementing interim measures to protect alleged victims of harassing conduct pending the outcome of the inquiry and to ensure that further harassing conduct does not occur;

6. In coordination with the DO, advising managers and supervisors on administering appropriate corrective action, including disciplinary action, to employees who engage in harassing conduct or who do not carry out 5

their responsibilities under this Policy;

7. In coordination with the DO, advising managers and supervisors on taking action to prevent retaliation against individuals who report alleged harassing conduct or participate in any inquiry in an allegation of harassing conduct; and

8. Maintaining records of all allegations of harassing conduct brought under this Policy in accordance with the Privacy Act, 5 U.S.C. 552a.

F. Director, Office of Small Business and Civil Rights (SBCR)

The Director, SBCR is responsible for the following actions:

1. Processing any EEO complaint of discrimination filed under 29 CFR '

1614;

2. Providing technical assistance and support, to assure compliance with this Policy;

3. Assisting the Director, OHR, in ensuring that employees are informed of this Policy and the procedures in connection with reporting harassing conduct;

4. Assisting the Director, OHR, and DO in providing training under this Policy; and

5. Informing the DO of allegations of harassing conduct, to the extent permitted by law and EEO regulation.

G. Office of the Inspector General (OIG)

The OIG is responsible for:

1. Cases referred from the DO: for allegations that it decides to investigate, OIG will conduct an appropriate inquiry; if substantiated, OIG will refer the findings of the inquiry to NRC management for appropriate action;

2. Cases not referred from the DO:

A. For allegations that it decides to investigate, the OIG will conduct an appropriate inquiry; if substantiated, the OlG will refer the findings of its inquiry to NRC management for appropriate action; B. For cases it decides not to investigate, the OIG will refer the matter to the DO for action, if any; and C. For record keeping purposes, at the end of any investigation, the OIG will report allegations of harassing conduct to the DO.

6

3. For all cases in which the OIG conducts an inquiry into harassment allegations or misconduct, the OIG will report situations which it determines warrant prompt NRC management action to the DO.

VI. Reporting Harassing Conduct The procedures for reporting harassing conduct are as follows:

A. A headquarters employee who believes that he or she has been the subject of an incident of harassing conduct or who has witnessed harassing conduct and/or retaliation in violatlon of this Policy must report this matter to anyone in his/her management chain or to the DO;

8. A regional employee who believes that he or she has been the subject of an incident of harassing conduct or who has witnessed harassing conduct and/or retaliation in violatlon of this Policy must report this matter to anyone in his or her chain of command, to the DO, or to the Regional Personnel Officer (RPO). The RPO is then responsible for reporting this matter to the DO; C. The employee reporting such conduct will be asked to provide details of the lncident(s), Including but not limited to: what occurred, when the incident(s) occurred; name of the alleged harasser and names of any witnesses. Once a report of harassing conduct is made under this Policy, the agency has a duty to conduct an inquiry where appropriate, stop harassing conduct if found, and to take appropriate action, including disciplinary action; D. Nothing in this Policy is intended to discourage an employee from telling the alleged harasser to stop the harassing conduct; E. Nothing in this Polley is Intended to require that an employee communicate with the alleged harasser; F. Nothing in this Policy affects the right of an individual to contact the OIG regarding alleged harassing behavior: nor does it affect the right of an Individual to participate in the EEO complaint process, file an appeal with the MSPB, an agency administrative grievance, or for bargaining unit employees, initiate a grievance under the NRC-NTEU CSA. Filing a report of harassing conduct under this Policy does not satisfy the requirements associated with any complaint, appeal or other statutory or regulatory process that may apply, nor does it delay the time llmlts for initiating those procedures.Section X. provides further information on statutory and collective bargaining claims; and G. All information will be maintained in compliance with the Privacy Act, 5 U.S.C.

552a, as stated In Section IX. of this Policy.

VII. Conducting an Inquiry A. A supervisor or manager who receives an allegation or witnessed harassing 7

conduct shall immediately:

1. Inform the DO of the allegation;

2. In consultation with the DO, take appropriate action to stop any potentially harassing conduct and prevent further alleged incidents while the allegations are being investigated, (i.e., providing appropriate interim measures); and

3. Document the allegation received or witnesses and his/her efforts to address it.

• B. Jf the RPO receives an allegation of harassing conduct, he/she will promptly notify the DO and the Regional Administrator and provide further assistance as requested by the DO.

C. When the DO receives an allegation of harassing conduct, either directly from the complainant; through a supervisor, manager, or RPO; or from other sources, the DO will take the following actions:

1. Ensure that the OIG is immediately provided all pertinent information regarding the allegat!on;

2. In the event that the OIG elects not to investigate the matter, as appropriate the DO shall ensure that a prompt, vigorous, impartial and appropriate inquiry is conducted and designate the person(s) who will conduct such an inquiry. (This inquiry may be conducted by the DO, the supervisor, the RPO, an outside contractor, or any other impartial individual delegated this responsibility by the 00); and

3. Contact appropriate agency officials in the alleged harasser's chain of command who are not involved in the allegations of harassment and recommend appropriate action to stop any harassing conduct and prevent further harassing conduct while the allegations are being addressed, (i.e.,

providing appropriate interim measures).

D. The inquiry will consist of appropriate fact~finding in order to obtain the information relevant to the allegation. As part of the inquiry, the complaining employee may be interviewed regarding the basis of the allegations. Additionally, the alleged harasser as well as other witnesses who may have knowledge of the circumstances of the allegations may also be interviewed. The determination as to the appropriate steps to be followed during the inquiry will be determined by the person conducting the inquiry with oversight by the DO. All individuals contacted in the course of an inquiry will be advised that any retaliation or reprisal against an individual who is an alleged target of harassing conduct, who has made a complaint under this Policy, or who has provided information in connection with a complaint, constitutes a separate violation of this Policy. The Inquiry will be completed promptly absent extenuating circumstances.

8

E. An inquiry is a neutral, fact-finding process needed to determine whether harassing conduct has occurred. An inquiry shall not, in and of itself, be construed as evidence that the allegations of harassing conduct are true.

F. When an inquiry by management discloses new, significant information regarding allegations of misconduct by management or employees, the OIG will be notified of these additional facts and provided an opportunity to assume jurisdiction over the matter. However, this is not intended to preclude NRC management from taking appropriate immediate action to carry out its responsibilities to maintain a safe and orderty workplace or to otherwise protect agency interests associated with this Policy.

G. Upon completion of the inquiry, the individual conducting the inquiry will prepare a written summary of the inquiry. The DO shall determine whether sworn declarations will be taken. The summary will be prepared promptly after completion of the inquiry. The summary, along with all of the documentation compiled during the inquiry, will be provided to the DO (if he/she did not conduct the inquiry) and generally the first level supervisor of the alleged harasser, unless such supervisor is involved in the allegation. In this situation, the summary and documentation will be provided to the lowest level supervisor/manager in the alleged harasser's chain of command who is not a subject of the inquiry.

H. All information will be maintained on a confidential basis to the greatest extent possible and in compliance with the Privacy Act, 5 U.S.C. 552a, as stated in Section IX. of this Policy.

VIII. Action To Be Taken Upon Completion Of The Inquiry A. Upon receipt of the report of inquiry, including summary and supporting documentation, the appropriate supervisor/manager will promptly evaluate all of the documentation and determine the appropriate action. This responsibility normally will rest with the first line supervisor of the employee alleged to have engaged in the harassing conduct, unless such supervisor is involved in the allegation. The supervisor/manager should consult with the OHR, including the DO, the servicing Labor and Employee Relations Specialist, and the Office of General Counsel as needed to determine the appropriate action.

B. Where the inquiry establishes that an employee did engage in harassing conduct under this Policy, he/she will be subject to appropriate corrective action; disciplinary or otherwise, in accordance with 5 U.S.C. Chapter 75.

C. Where the inquiry establishes that a supervisor or manager did not properly carry out the responsibilities under this Policy, he/she will be subject to appropriate corrective action, disciplinary or otherwise, in accordance with 5 U.S.C. Chapter 75.

D. The DO should notify SBCR and the OIG of the outcome.of the agency inquiry, including whether the allegation was substantiated, what corrective action was 9

taken; and any other action taken to address the matter.

IX. Confidentiality The maintenance of records and disclosures of information from records shall be in complete compliance with the Privacy Act, 5 U.S.C. 552a. All information obtained under this Policy, including but not limited to, reports of harassing conduct, will be maintained confidentially to the greatest extent possible. Such information, however, may be required to be disclosed in connection with proceedings resulting from the harassing conduct, (e.g., disciplinary action). Further, information may need to be disclosed to those officials and employees within the agency with a need to know in order to carry out the purpose and intent of this Policy.

X. Statutory and Collective Bargaining Claims This Policy is in addition to statutory and collective bargaining prohibitions [NRC-NTEU CBA, Article 2] against harassment and the procedures and remedies they provide for addressing unlawful harassment. Filing a report of harassing conduct under this Policy does not satisfy the requirements to initiate any complaint, appeal or other statutory or regulatory process that may apply, nor does it delay the time limits for initiating those procedures. An employee who chooses to pursue statutory or collective bargaining remedies for unlawful harassment must:

1. Initiate the EEO complaint process pursuant to 29 C.F.R. 1614.105 (available for all claims of unlawful harassment other than those based on sexual orientation) by contacting an EEO counselor in the SBCR within 45 calendar days from the date of the alleged harassment (or personnel action if one is involved); or

2. File a grievance under the CBA, Article 51 or agency grievance procedure; or

3. File an appeal to the MSPB within 30 days of an appealable action as defined in 5 C.F.R. Section 1201.3.;

4. If an employee pursues a claim of harassment through the formal EEO process (including EEO counseling), an MSPB appeal, a union grievance, or an administrative grievance, the agency official who receives the information about such a claim will promptly notify the DO, unless inconsistent with applicable requirements. Because the agency has an obligation to comply with the terms of this Policy regardless of whether a statutory or collective bargaining procedure has been invoked, the DO will promptly Initiate an inquiry into the matter if an appropriate management official has not already done so. Similarly, the DO will provide the Office handling the statutory or collective bargaining claim the record of actions taken under this Policy.

JO

2016 FEVS Q3. My agency creates a work environment that encourages different opinions and viewpoint s 2016 18%

2015 18%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D ? B Unfavorable Q4. I believe I can raise concerns or different opinions without fear of negative consequences.

2016

--~

l 2015 *1

. . --- ........ J 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D?

• Unfavorable

QS. The Non-concurrence process is a successful tool for raising differing views.

2016 19%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D ?

• Unfavorable

• N/A Q6. The Differing Professional Opinions Program is a successful tool for raising differing views.

2016 20%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

• Favorable D? II Unfavorable

• N/A

FEVS - Historical Comparison Question 2013 2014 2015 2016 Q12. I know how my work relates to 82.5% 89.7% 90.1% 89.8%

the Agency's goals & priorities Q13. The work I do is important 90.0% 89.2% 89.2% 88.4%

Q39. My agency is successful at 74.4% 88.7% 88.9% 87.6%

accomplishing its mission.

Q40. I recommend my organization 63.2% 78.7% 79.0% 74.1%

NRC Participation Rate 69.7% 68.1% 74.5% 61.8%

From: Baker, Pamela Sent: Tuesday, April 11, 2017 6:17 PM To: Holahan, Patricia Cc: Pedersen, Renee; Fopma, Melody; Kravetz, Joel

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views Trish, Sorry for missing this email, we had an off site that day and then the week got away from sis I headed off on leave last week. Per a brief discussion with Joel, the Civil Rights program manager, we have had a couple of cases where a complainant cited reprisal or discrimination per a differing view. Our best guess without going through each case is approximately 2 per year for a total of 6 over a three year period. It would be difficult to ascertain whether any stemmed from use of a specific differing views process without an extensive review of the case file which would be highly labor intensive. I would venture that all them were investigated. None referred to OCHCO or manger as that is not our process. Because we've only have one finding of discrimination which did not involve reprisal for a differing view, none were technically substantiated either because the complaint was either settled or still pending. Hope this helps, again sorry for the delayed response.

Pam From: Holahan, Patricia Sent: Tuesday, March 28, 2017 12:04 PM To: McMillan, Joseph <Joseph.McMillan@nrc.gov>; Golder, Jennifer <Jennifer.Golder@nrc.gov>; Maxin, Mark

<Mark.Maxin nrc. ov>* Baker Pamela <Pamela.Baker@nrc.goV>; Schwartz, Marla <Marla.Schwartz@nrc.gov>

Cc: (b)(6) @nrc.gov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>; Using, Jason

<Jason.Lising@nrc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Rallph, Melissa <Melissa.Ralph@nrc.gov>; Kravetz, Joel <Joel.Kravetz@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>; Sewell, Margaret

<Margaret.Sewell@nrc.gov>; Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc.gov>; Peduzzi, Francis

<Francis.Peduzzi@nrc.gov>

Subject:

ACTION: Request for Data of Reprisal for Raising Differing Views Importance: High As you may be aware, OE currently has the lead for activity 3 In the Agency Action Plan:

(b)(5) 1

(b)(5)

We are currently working on a report for senior managemenfis cons1derat1on as part ofthe r_esp9n§!:3 to ~fti.9n

~. so we \VOUI~ apprer,ja~e your re~pon~ to R~n~ P~rsen_by C.O,B M9n9ay J\pril 191t1; We sincerely appreciate your support of this important request.

Thanks, Trish Patricia K. Holahan, Ph.D.

Director Office of Enforcement, MS 014ASO U.S. Nuclear Regulatory Commission Washington, DC 20555 (301) 287-9527 (office) 2

From: l<b)(6) I Sent: Wednesday, April 12, 2017 7:46 PM To: Holahan, Patricia; Pedersen, Renee Cc: McMillan, Joseph

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views I am also surprised. We have a higher number of allegations that pertain to retaliation claims made under the harassment policy and EEO process.

Let me know if you want to discuss.

From: Holahan, Patricia Sent: Wednesday, April 12, 2017 5:50 PM To:!(b)(6) t Pedersen, Renee <Renee.Pedersen@nrc.gov>

Cc: McMillan, Joseph <Joseph.McMillan@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raisin\ Differing Views Thank.you. It is somewhat surprising that you had such a low number

_:..** Original From:' (b)(6)

Messa:***--*  !@nrc.gov>

Date: Jec1, 2 April 12, 17 5:02 PM -0400 To: ,;Holahan, Patricia" <Patricia.Holahan@nrc.gov>, "Pedersen, Renee" <Renee.Pedersen@nrc.gov>

CC: "McMillan, Joseph" <Joseph.McMillan@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views The following .information _is_prov.ided.in response to.y_our_belo_w_refer_enced _email:

1. From October 2014 to date, OIG received 4 allegations pertaining to reprisal for raising concerns or differing views.

• Three of these allegations were closed administratively. Of the three allegations, one was reported to SBCR and OCHCO, one was reported to OCHCO, and one was reported to SBCR.

• The remaining fourth allegation was investigated by OIG. While the investigation did not substantiate retaliation, a report was issued to management regarding the staff's release of predecisional information.

• Two of the four allegations referenced either the DPO or non-concurrence process, although these*

processes wer.e not used. The third allegation referenced using the non-concurrence process; the fourth allegation did not reference any of these processes, including the Open Door Policy.

Please let me know if you have any questions.

1

From: Holahan, Patricia Sent: Tuesday, March 28, 201712:04 PM To: McMillan, Joseph <Joseph.McMillan@nrc.gov>; Golder,' Jennifer <Jennifer.Golder@nrc.gov>; Maxin, Mark

<Mark.Maxin@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Schwartz, Maria <Maria.Schwartz @nrc.gov>

Cc: (b)(6) nrc. ov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>; Lising, Jason

<Jason . 1sin nrc. ov>; c 1mm, ack <Jack.McKimm@nrc.gov>; Ralph, Melissa <Melissa.Ralph@nrc.gov>; Kravetz, Joel <Joel.Kravetz@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>; Sewell, Margaret

<M argaret.Sewell @nrc.gov>; Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc.gov>; Peduzzi, Francis

<Francis.Peduzzi@nrc.gov>

Subject:

ACTION: Request for Data of Reprisal for Raising Differing Views Importance: High As you may be aware, OE currently has the lead for activity 3 in the Agency Action Plan:

(b)(5) 2

(b)(5)

We are currently working on a report for senior management's consideration as part of the response to action t9 sE3 R~!!~ Peders~n Q}' 9.Q~B _Monq~y April 1Qth..

3, so w_e "!'9l!ld ~ppreci~te Y<?l:l.r r~~p~n_

We sincerely appreciate your support of this important request.

Thanks, Trish Patricia K. Holahan, Ph .D.

Director Office of Enforcement, MS 014ASO U.S. Nuclear Regulatory Commission Washington, DC 20555 301 287-9527 (office)

(b)(6) (cell\

3

From: Weed, Yvonne Sent: Monday, April 17, 2017 2:41 PM To: Pedersen, Renee Cc: Sanford, Barbara

Subject:

RE: Anti-Harassment Policy Activity Hello Renee, We average about RO claims a year and all are subject to an inquiry. As for who performs the inquiry, it varies depending on the specifics of the case and the allegations. At times of significant workload for the Branch, we have started utilizing outside contractors, again on case by case basis. I checked with Barbara and we have about 1 FTE dedicated to the policy.

Yvonne M.L. Weed Polley. Labor and Emp loyee Relations Branch Three White Flint North; Room 3D16 Mail Stop: 3A12 11601 Landsdown Street North Bethesda, MD 20852 Office Phone: 301-287-9463 From: Pedersen, Renee Sent: Friday, April 14, 2017 11:21 All.1 To: Weed, Yvonne <Yvonne.Weed@nrc.gov>

Cc: Sewell, Margaret <Margaret .Sewell @nrc.gov>

Subject:

Anti-Harassment Policy Activity

Yvonne, We are continuing to make progress on the reprisal & chilling effect report. I apologize if this request is redundant, but we want to make sure we are looking at similar timeframes for data collection activities. Can you please provide the following information?

Over the last three years (2014, 2015, 2016), on average:

How many complaints are made though the anti-harassment policy?

How many are the subject of an inquiry?

What is the breakdown of who performs the inquiries? (e.g., OIG, DO, Regional Personnel Officer, or independent contractor) (The guidance notes "impartial inquiries," so we're particularly interested in whether the DO relies on support from an independent contractor).

I understand that you have other duties, are there others that support the policy as collateral duty?

Do you know the resource budget for the policy? (1 .FTE?)

Renee 1

From: Bowden Berry, Elva Sent: Tuesday, April 18, 2017 11:22 AM To: Pedersen, Renee Cc: Maxin, Mark

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing-Views-Renee, Below in purple are OGC's responses.

Thanks, Elva Bowden Berry, Sr. Attorney OWFN 15-A-51 elva.bowdenberry@nrc.gov 301-287-0974 From: Pedersen, Renee Sent: Tuesday, April 18, 2017 8:46 AM To: Bowden Berry, Elva <Etva.BowdenBel'ry@nrc.gov>

Cc: Sewell, Margaret <Margaret.Sewell@nrc.gov>; Maxin, Mark <Mark.Maxin@nrc.gov>; Holahan, Patricia

<Patricia.Holahan@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views-Elva, We apologize, but we are trying to gain a better understanding of how reprisal issues are addressed at the NRC. We'd appreciate some clarification.

(b)(5) 1

As previously noted, we do not want to know about the particulars of individual cases, but seek insight to support our report to the EDO. Perhaps a discussion would help? I think I understand your questions.

Renee From: Bowden Berry, Elva Sent: Monday, April 17, 2017 5:33 PM To: Pedersen, Renee <Renee.Pedersen@nrc.goV>; Holahan, Patricia <Patricia.Holahan@nrc.gov>

Cc: Sewell, Margaret <Margaret.Sewell@nrc.gov>; Maxin, Mark <Mark.Maxin@nrc.gov>; Holahan, Patricia

<Patrlcia.Holahan@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views-Renee, I believe OGC was involved in these cases.

Thanks, Elva Bowden Berry, Sr. Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel elva.bowdenberry@nrc.gov 301-287-0974 6fficial tJse euly Atto111e y Slieiil h1Fo11natio11 01 \ 1/a.J, P1odbet effieiel.1:JJc Oulp Not fen public disclosaa e From: Pedersen, Renee Sent: Thursday, April 13, 2017 4:25 PM To: Bowden Berry, Elva <Elva.BowdenBerry@nrc.gov>; Holahan, Patricia <Patricia.Holahan@nrc.gov>

Cc: Sewell, Margaret <Margaret.Sewell@nrc.gov>; Maxin, Mark <Mark.Maxin@nrc.gov>; Holahan, Patricia

<Patricia.Holahan@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views-

Elva, Thanks for the response. As noted in mv orevious email we'd be interested in the context. J (b)(S)

I Renee From: Bowden Berry, Elva Sent: Thursday, April 13, 2017 3:59 PM To: Holahan, Patricia <Patricia.Holahan@nrc.gov>

Cc: Pedersen, Renee <Renee.Pedersen @nrc.gov>; Sewell, Margaret <Margaret.Sewell@nrc.gov>; Maxin, Mark

<Mark.Maxin @nrc.gov>

Subject:

FW: ACTION: Request for Data of Reprisal for Raising Differing Views-

Trish, 2

Mark asslgned me to gather the information you requested in order to answer your questions. Below are OGC's .answers:

(b)(5)

Please contact me if you need any further information.

Thanks, Elva Bowden Berry, Sr. Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel elva.bowdenberry@nrc.gov 301-287-0974 8Hiciel l:lsc 8r,ly Atte11;c9 Clic11t lr,fe,Metiel'I er Werle Prea1:1et 9ffi!!!iel l:Jse 9Aly

= Not for public elis,loseece From: Holahan, Patricia Sent: Tuesday, March 28, 2017 12:04 PM To: McMIiian, Joseph <Joseph.McMillan@nrc.gov>; Golder, Jennifer <Jennifer.Golder@nrc.gov>; Maxin, Mark

<Mark.Maxin@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Schwartz, Marla <Maria.Schwartz@nrc.gov>

Cc:!(b)(6)  !@nrc.gov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>; Using, Jason

<Jason.lising@nrc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Ralph, Melissa <Mellssa.Ralph@nrc.gov>; Kravetz, Joel <Joel.Kravetz@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>; Sewell, Margaret

<Margaret.Sewell@nrc.gov>; Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc.gov>; Peduzzi, Francis

<Francis.Peduzzi@nrc.gov>

3

Su~ject: ACTION: Requ~st for Data of Reprisal for Raising Differing Views Importance: High As you may be aware, OE currently has the lead for activity 3 in the Agency Action Plan:

"Continue to develop and enhance activities that address concerns of retaliation and chilling effect for raising concerns, as well as support continuous improvement of the Open Door Policy (CDP), Non-Concurrence Process (NCP), and the Differing Professional Opinion (DPO) Program."

(b)(5) 4

(b)(5)

We are currently working on a report for senior management's consideration as part of the response to ~ction

3, so. Vtlf3 woul<:t appreciate your response to Renee Pe<:tersen by C.O.B Mon<:tay April 101h.

We sincerely appreciate your support of this important request.

Thanks, Trish Patricia K. Holahan, Ph.D.

Director Office of Enforcement, MS 014ASO U.S. Nuclear Regulatory Commission Wash ington, DC 20555 C

(office)

(celll p n@nrc.gov 5

From: Golder, Jennifer Sent: Tuesday, May 09, 2017 4:56 PM To: Holahan, Patricia; Pedersen, Renee Cc: Sanford, Barbara; Weed, Yvonne; Using, Jason; Salter, Susan

Subject:

FW: ACTION: Request for Data of Reprisal for Raising Differing Views Trish, Renee, See below for a summary of Barbara's review of the employees who raised DPO's - ratings. Since that is sensitive data we are not providing you any specifics, but she has summarized below.

Let us know if you have any questions.

Thx Jennifer Golder Deputy Chief Human Capital Officer Office of the Chief Human Capital Officer United States Nuclear Regulatory Commission (301) 287-0741 From: Sanford, Barbara Sent: Monday, May 08, 2017 3:01 PM To: Golder, Jennifer <Jennifer.Golder@nrc.gov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views Hi Jennifer, Here is a quick summary of what the data showed for the ratings - I looked at summary rating overall not rating by each element as those tend to fluctuate for most people cycle to cycle.

• Bottom line, I don't think the data supports the perception (ie I don't see a problem between filings and ratings). Also those that increased or decreased did so by only one level (e.g. outstanding to excellent or FS to E).

For the lists - total of 79 people:

• 56 *; ad rating stay the same or no data for those years

• 6 Had ratings increase

• 8 Had ratings decrease prior to the time the NCP was filed

• 9 had ratings decrease after NCP was filed (but most were in group of filers with others in group who either increased or stayed the same and for those who used DPO the decrease was more than 2-3 years after filing).

Thanks, Barbara From: Golder, Jennifer Sent: Friday, April 21, 20171:46 PM To: Weed, Yvonne <Yvonne.Weed@nrc.gov>; Sanford, Barbara <Barbara.Sanford@nrc.gov>

Subject:

FW: ACTION: Request for Data of Reprisal for Raising Differing Views 1

Jennifer Golder Deputy Chief Human Capital Officer Office of the Chief Human Capital Officer United States Nuclear Regulatory Commission (301) 287-0741 From: Pedersen, Renee Sent: Friday, April 21, 201711:32 AM To: Holahan, Patricia <Patricia.Holahan@nrc.gov>; Golder, Jennifer <Jennifer.Golder@nrc.gov>

Cc: Sewell, Margaret <Margaret.Sewell@nrc.gov>

subject: RE: ACTION: Request for Data of Reprisal for Raising Differing Views

Jennifer, Here are the names of employees with closed NCP & DPO cases within the 3-year timeframe that we looking for. Please keep in mind that we are interested in any cases of alleged reprisal for raising concerns or differing views, regardless of whether or not an employee was using one of these processes or the Open Door Policy.

Please let us know if you have any additional questions.

Renee From: Holahan, Patricia Sent: Friday, April 21, 2017 10:53 AM To: Golder, Jennifer <Jennifer.Golder@nrc.gov>

Cc: Pedersen, Renee <Renee.Pedersen@nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views Thanks. We'll get you the names and specifics of what we are looking for.

Renee - can you get Jennifer the names of the people that have filed DPOs and NCPs and the years we are looking for.

Thank~. T~ish From: Golder, Jennifer Sent: Friday, April 21, 2017 10:41 AM To: Holahan, Patricia <Patricia.Holahan @nrc.gov>

Subject:

RE: ACTION: Request for Data of Reprisal for Raising Differing Views Hi Trish, My apologies that OCHCO hasn't worked this yet. In order.for OCHCO to analyze and provide data we do need the names of the individuals who have filed DPO's and NCPs. Could you please provide that and we will look into providing more data. Also, can you please specify what years you are *1ooking for. I do have concerns about releasing information on ratings to staff who don't really have a need to know. So we would look to provide aggregate data that is not attributable to individuals.

If there is other data you think you need that OCHCO would have, please let me know.

Thanks so much 2

Jennifer Golder Deputy Chief Human Capital Officer Office of the Chief Human Capital Officer United States Nuclear Regulatory Commission (301) 287-0741 From: Holahan, Patricia Sent; Tuesday, March 28, 2017 12:04 PM To: McMIiian, Joseph <Joseph.McMillan @nrc.gov>; Golder, Jennifer <Jennifer.Golder@nrc.gov;>; Maxin, Mark

<Mark.Maxin@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Schwartz, Maria <Maria.Schwartz@nrc.gov>

Cc: !(b)(6)  !@nrc.gov>; Weed, Yvonne <Yvonne.Weed @nrc.gov>; Using, Jason

<Jason.Lising@ nrc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Ralph, Melissa <Melissa.Ralph @nrc.gov>; Kravetz, Joel <Joel.Kravetz@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>; Sewell, Margaret

<Margaret.Sewell @nrc.gov>; Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc.gov>; Peduzzi, Francis

<Francis.Peduzzi@nrc.gov>

Subject:

ACTION: Request for Data of Reprisal for Raising Differing Views Importance: High As you may be aware, OE currently has the lead for activity 3 in the Agency Action Plan:

"Continue to develop and enhance activities that address concerns of retaliation and chilling effect for raising concerns, as well as support continuous improvement of the Open Door Policy (ODP), Non-Concurrence Process (NCP), and the Differing Professional Opinion (DPO) Program."

(b)(5) 3

(b)(5)

We are currently working on a reporffor senfor management's consideration as part of the response.to action G, so we would appreciate your response to Renee Pedersen by C.0.8 Monday April 1ot":

We sincerely appreciate your support of this important request.

Thanks, Trish Patricia K. Holahan, Ph.D.

Director Office of Enforcement, MS 014ASO U.S. Nuclear Regulatory Commission Washington, DC 20555 301 287-9527 (office)

(b)(6) cell) oatricia.holahan @hrc.gov 4

2016 Federal Employee Viewpoint Survey Data in table for:

Agency: Nuclear Regulator y

Gommissi on Year of survey 2010 administration: 2011 2012 2013 2014 2015 2016 Year of survey administration (YEAR)

Col Pct 2010 2011 2012 2013 2014 2015 2016 Total Strongly Disagree 4.00% 3.80% 5.50% 5.00% 6.10% 6.30% 6.40% 5.30%

Disagree 4.40% 5.20% 5.40% 6.50% 5.50% 6.50% 7.10% 5.80%

Neither Agree nor Q17) I can disclose a Disagree 11.50% 12.70% 13.00% 13.40% 13.30% 12.40% 13.60% 12.80%

suspected violation of any Agree 34.60% 35.80% 35.20% 37.90% 37.50% 36.20% 35.60% 36.10%

law, rule or regulation Strongly without fear of reprisal. Agree 45.60% 42.60% 40.90% 37.20% 37.60% 38.60% 37.30% 40.10%

(Q17) Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%

Strongly Disagree 5.30% 7.20% 9.90% 8.20% 9.30% 9.30% 9.60% 8.30%

Disagree 6.30% 7.80% 9.30% 11.50% 10.50% 10.30% 10.30% 9.40%

Neither Agree nor 037) Arbitrary action, Disagree 18.30% 17.60% 18.90% 18.30% 19.80% 19.00% 18.10% 18.60%

personal favoritism and Agree 37.00% 37.50% 34.70% 38.00% 36.90% 36.40% 36.60% 36.70%

coercion for partisan political Strongly purposes are not tolerated . Agree 33.00% 29.90% 27.30% 24.00% 23.60% 25.10% 25.40% 27.00%

(037) Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%

038) Prohibited Personnel Strongly Practices (for example, Disagree 3.40% 3.50% 4.50% 4.10% 5.30% 4.70% 5.10% 4.30%

illegally discriminating for or Disagree 3.00% 3.30% 4.40% 4.90% 4.30% 5.20% 4.90% 4 .20%

against any Neither employee/applicant, Agree nor obstructing a person's right Disagree 12.20% 12.90% 14.80% 14.50% 14.80% 14.00% 14.20% 13.90%

to compete for employment, Agree 37.20% 39.10% 38.40% 41.10% 40.70% 40.20% 40.70% 39.60%

knowingly violating veterans' Strongly preference requirements) Agree 44.30% 41.30% 38.00% 35.40% 34.80% 35.90% 35.10% 38.00%

are not tolerated. (Q38) Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%

Very Dissatisfi ed 4.40% 3.90% 6.70% 6.00% 6.10% 6.40% 7.20% 5.80%

Dissatisfi ed 9.10% 10.60% 12.30% 13.80% 14.00% 13.40% 12.60% 12.20%

Neither Satisfied nor Dissatisfi ed 15.60% 15.00% 17.00% 18.40% 18.20% 18.00% 20.10% 17.40%

065) How satisfied are you Satisfied 38.40% 40.50% 38.20% 40.00% 40.10% 38.20% 37.60% 39.00%

with the recognition you Very receive for doing a good Satisfied 32.50% 29.90% 25.80% 21.80% 21 .60% 24.00% 22.50% 25.60%

job? (065) Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%

Very Dissatisfi ed 6.50% 6.60% 11.00% 10.60% 12.10% 12.70% 17.20% 10.80%

Dissatisfi ed 11.40% 14.50% 16.60% 19.70% 17.70% 17.40% 21.00% 16.80%

Neither Satisfied nor Dissatisfi ed 21.90% 24.20% 25.60% 26.30% 24.30% 25.30% 25.40% 24.70%

Q67) How satisfied are you Satisfied 34.00% 32.60% 29.30% 27.00% 30.20% 27.90% 24.00% 29.40%

with your opportunity to get Very a better job in your Satisfied 26.20% 22.10% 17.40% 16.40% 15.70% 16.80% 12.40% 18.30%

organization? (Q67) Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%

Strongly Disagree .% .% .% .% .% 6.00% 7.00% 6.40%

Disagree .% .% .% .% .% 9.90% 10.30% 10.10%

Neither Agree nor NRG My agency creates a Disagree .% .% .% .% .% 17.90% 18.50% 18.20%

work environment that Agree .% .% .% .% .% 41.30% 41.80% 41.50%

encourages different Strongly opinions and viewpoints. Agree .% .% .% .% .% 25.00% 22.40% 23.70%

(NU Q3) Total .% .% .% .% .% 100.00% 100.00% 100.00%

Strongly Disagree .% .% .% .% .% 7.70% 8.20% 8.00%

Disagree .% .% .% .% .% 10.40% 11.50% 10.90%

Neither Agree nor NRG I believe I can raise Disagree .% .% .% .% .% 16.20% 15.80% 16.00%

concerns or different Agree .% .% .% .% .% 37.60% 37.90% 37.70%

opinions without fear of Strongly negative consequences. Agree .% .% .% .% .% 28.10% 26.50% 27.30%

(NU Q4} Total .% .% .% .% .% 100.00% 100.00% 100.00%

Strongly Disagree .% .% .% .% .% .% 7.20% 7.20%

Disagree .% .% .% .% .% .% 9.40% 9.40%

Neither Agree nor Disagree .% .% .% .% .% .% 27.10% 27.10%

NRG The Non-Concurrence Agree .% .% .% .% .% .% 40.60% 40.60%

Process is a successful tool Strongly for raising differing views. Agree .% .% .% .% .% .% 15.70% 15.70%

(NU Q5) Total .% .% .% .% .% .% 100.00% 100.00%

Strongly Disagree .% .% .% .% .% .% 7.50% 7.50%

Disagree .% .% .% .% .% .% 9.70% 9.70%

Neither Agree nor NRG The Differing Disagree .% .% .% .% .% .% 28.10% 28.10%

Professional Opinions Agree .% .% .% .% .% .% 39.10% 39.10%

Program is a successful tool Strongly for raising differing views. Agree .% .% .% .% .% .% 15.70% 15.70%

(NU Q6) Total .% .% .% .% .% .% 100.00% 100.00%

FEVS 2016 Dataset, 04/24/2017 11 :37:27

From: Schwartz, Maria Sent: Friday, May 19, 2017 9:29 AM To: Pedersen, Renee Cc: NTEU, Chapter 208

Subject:

I think I just sent you the beginning of my message. My computer is doing strange things Anyway, regarding your question. We have had probably S grievances in the last 6 month or a little more where the employee Is sure that retaliation underlies the grievance. the grievance may even state this but we generally are grieving the "consequences" which normally come in the form of a reduced performance appraisal or change to work schedule for no apparent reason.

We have more "luck" with the work schedule issues up front without filing a grievance. The problem with the performance appraisal is that management always responds witth how much they value the employee, but that the employee just doesn't make the case. Since this can be subjective, unless it was egregious (an Oto a FS, for example), OCHCO knows we, won't go to arbitration and bring in issues of retaliation.

I can tell you that there is a growing chilled environment at the agency from the comments that several employees brought up about a meeting that occurred last week where the IG, OGC, and IP (making a presentation to a group) were very unprofessional, bullying in their responses to questions from the group, and talked about "prison time" etc with regards to spills of PII. NTEU will be working on that but the folks who either were at the meeting or those that heard about it, are horrified.

Maria 1

From: Sanford, Barbara Sent: Thursday, June 29, 2017 11:37 AM To: Holahan, Patricia; Pedersen, Renee Cc: McKimm, Jack; Baker, Pamela; Fopma, Melody; Maxin, Mark; Golder, Jennifer; Weed, Yvonne; Cohen, Miriam; Kravetz, Joel

Subject:

OCHCO, OGC, and SBCR Comments on Draft Report on Reprisal and Chilling Effect for Raising Differing Views Attachments: OCHCO and OGC and SBCR comments on Draft Report.docx Note: The ?-page attachment is withheld in its entirety under FOIA exemption 5.

Good morning, (b)(S)

-Barbara Sanford Barbara Jaffe Sanford Branch Chief Policy, Labor & Employee Relations Branch Office of the Chief Human Capital Officer (OCHCO)

U.S. Nuclear Regulatory Commission Three White Flint North 11601 Landsdown Street North Bethesda, MD 20852 301-287-9260 Office 03 008 1

From:

Sent:

To:

Cc:

Subject:

The Office of the Inspector General has no additional comments at this time. If there are significant revisions to this document. please forward them prior to publication.

rb)(6)

U.S. Nuclear Regulatory Commission From: Holahan, Patricia Sent: Tuesday, June 20, 2017 8:56 AM To: M axin, Mark; Golder, Jennifer; Cohen, Miriam ; Baker, Pamela; Fopma, Melody Cc: Using, Jason ; Weed, Yvonne; McMillan, Joseph ;!(b)(6) I;Schwartz, Maria ; Araguas, Christian ; Kravetz, Joel ; McKimm, Jack

Subject:

Draft report on evaluation of reprisal and chilling effect for raising Differing Views Good morning, OE has completed a draft report on the topic of reprisal and chilling effect at t he NRC. The report is in response to activity 3 of issued the Agency Action Plan, which states "Continue t o develop/enhance concerns of retaliation and chilling effect for raising concerns, as well as support continuous improvement of the following: ODP, NCP and DPO."

(b )(5)

OE plans on briefing the EDO/DEDOs towards the end of July.

1

Thank you for your support.

Trish Patricia K. Holahan, Ph.D.

Director Office of Enforcement, MS 014ASO U.S. Nuclear Regulatory Commission Washington, DC 20555 f3Ql I 287-9527 (office)

(b)(6)  !(cell) patricia.holahan@nrc.gov 2

From: Holahan, Patricia Sent: Wednesday, September 20, 2017 9:52 AM To: Pedersen, Renee

Subject:

FW: Draft Comments to OE for OCHCO Attachments: Study of Reprisal and Chilling Effect for Raising Differing Views 8-23-17 HRTD and HROP.docx; OCHCO and OGC and SBCR original comments on Draft Report.docx Importance: High From: Golder, Jennifer Sent: Tuesday, September 19, 2017 2:36 PM To: Holahan, Patricia <Patricia.Holahan@nrc.gov>

Cc: Peduzzi, Francis <Francis.Peduzzi@nrc.gov>; Cohen, Miriam <Miriam.Cohen@nrc.gov>; Sanford, Barbara

<Barbara.Sanford@nrc.gov>; Maxin, Mark <Mark.Maxin@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Fopma, Melody <Melody.Fopma@nrc.gov>

Subject:

Draft Comments to OE for OCHCO Importance: High (b)(5)

(b)(5)

Jennifer Golder Deputy Chief Human Capital Officer Office of the Chief Human Capital Officer United States Nuclear Regulatory Commission (301) 287-0741 2

From: Maxin, Mark Sent: Wednesday, September 20, 2017 12:32 PM To: Holahan, Patricia Cc: Peduzzi, Francis; Pedersen, Renee; Baker, Pamela; Golder, Jennifer; McKimm, Jack

Subject:

RE: ACTION: revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC (b)(5)

(b)(5)

From: Holahan, Patricia Sent: Monday, September 18, 2017 7:16 PM To: Golder, Jennifer <Jennifer.Golder@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Maxin, Mark

<Mark.Maxin@nrc.gov>

Cc: Peduzzi, Francis <Francis.Peduzzi@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>

Subject:

Re: ACTION: revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC Thank you. I know you have been swamped with other priorities but I really appreciate it

---

Original Message --------

From: "Golder, Jennifer" <Jennifer.Golder@nrc.gov>

Date: Mon, September 18, 2017 7:11 PM -0400 To: "Baker, Pamela" <Pamela.Baker@nrc.gov>, "Holahan, Patricia" <Patricia.Holahan@nrc.gov>,

"Maxin, Mark" <Mark.Maxin@nrc.gov>

CC: "Peduzzi, Francis" <Francis.Peduzzi@nrc. gov>, "Pedersen, Renee" <Renee.Pedersen@nrc. gov>

Subject:

Re: ACTION: revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC I spoke to Barbara. We will Try to get you comments by Wednesday.

On: 18 September 2017 18:06, "Baker, Pamela" <Pamela.Baker@nrc.gov>

wrote:

Trish, Yes SBCR has comments . I shared with Paul when we met last week that we would be delayed per some office priorities. I should have something to you midday week.

Thank You, 2

Pam From: Holahan, Patricia Sent: Monday, September 18, 2017 5:14 PM To: Golder, Jennifer <Jennifer.Golder@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Maxin, Mark

<Mark.Maxin@nrc.gov>

Cc: Peduzzi, Francis <Francis.Peduzzi@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>

Subject:

RE: ACTION: revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC We have the meeting scheduled for October 2.

Pam, Mark - do you have any comments?

From: Golder, Jennifer Sent: Monday, September 18, 2017 5:03 PM To: Holahan, Patricia <Patricia.Holahan@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Maxin, Mark

<Mark.Maxin@nrc.gov>

Cc: Peduzzi, Francis <Francis.Peduzzi@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>

Subject:

Re: ACTION: revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC Hi Trish So sorry we have been busy with Giving RIF notices, some sensitive personnel issues, and now planning for surge capacity. My staff is devoting considerable time to reviewing the report which was quite lengthy. We are behind on completing this and are finalizing our comments this week. We will have them to you by Monday. I will call you tomorrow to discuss them in advance.

My apologies for being late.

Regards.

On: 18 September 2017 16:52, "Holahan, Patricia"

<Patricia. Holahan@nrc.,gov> wrote:

We sent the revised study on reprisal and chilling effect for raising mission related concerns and differing views at the NRC out to you for comment on August 23. We had asked for comments by September 11 but OCHCO 3

asked if they could have until September 18. We have not received any comments yet. Please provide any comments as soon as possible to support a meeting with the EDO at the beginning of October or let us know if you have no comments.

Thanks, Trish 4

From: Holahan, Patricia Sent: Wednesday, September 20, 2017 5:47 PM To: Pedersen, Renee; Jarriel, Lisamarie; Figueroa Toledo, Gladys

Subject:

Fwd: RE: ACTION: Please review revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC Attachments: SBCR Comments on Reprisal Study.docx

---

Original Message --------

From: "Baker, Pamela" <Pamela.Baker@nrc.gov>

Date: Wed, September 20, 2017 4:56 PM-0400 To: "Holahan, Patricia" <Patricia.Holahan@nrc.gov>

CC: "Golder, Jennifer" <Jennifer.Golder@nrc.gov>, "Maxin, Mark" <Mark.Maxin@nrc.gov>, "Fopma, Melody" <Melody.Fopma@nrc.gov>, "Peduzzi, Francis" <Francis.Peduzzi@nrc.gov>

Subject:

RE: ACTION: Please review revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC (b)(5)

Respectfully, Pam Baker Director, Office of Small Business and Civil Rights (301 )415-3415 1

From: Holahan, Patricia Sent: Wednesday, August 23, 2017 4:41 PM To: Maxin, Mark <Mark.Maxin@nrc.gov>; Golder, Jennifer <Jennifer.Golder@nrc.gov>; Baker, Pamela

<Pamela.Baker@nrc.gov>; Cohen, Miriam <Miriam.Cohen@nrc.gov>; Fopma, Melody <Melody.Fopma@nrc.gov>

Cc: Peduzzi, Francis <Francis.Peduzzi@nrc.gov>; Using, Jason <Jason.Lising@nrc.gov>; Weed, Yvonne

<Yvonne.Weed@nrc.gov>; McMillan, Joseph <Joseph.McMillan@nrc.gov>; ~b)(6) I i(b)(6) ~ Schwartz, Maria <Maria.Schwartz@nrc.gov>;ravetz, Joel <Joel.Kravetz@nrc.gov>;

McKimm, Jack <Jack.McKimm@nrc.gov>; Barnes, Anthony <Anthony.Barnes@nrc.gov>; Pedersen, Renee

<Renee.Pedersen@nrc.gov>; Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc.gov>; Solorio, Dave

<Dave.Solorio@nrc.gov>; Araguas, Christian <Christian.Araguas@nrc.gov>

Subject:

ACTION: Please review revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC Good afternoon, OE has completed a revision of the Study of Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC. The study is in response to activity 3 of issued the Agency Action Plan, which states, in part, "Continue to develop/enhance concerns of retaliation and chilling effect for raising concerns ... ." This revision reflects comments and concerns that were provided in response to the earlier draft that was sent on June 20, 2017.

For your convenience, we are attaching a list of revisions and clarifications that were made to the study in response to the comments that we received. We are also sending a comparative text between the latest draft and the June 20th version and a clean version.

In an effort to improve our ability to respond to comments and stay on track with our timeliness goal, we ask that each office submit any specific comments and suggested language to OE by September 11 1h. OE plans on scheduling a briefing for the EDO/DEDOs towards the end of September or early October.

Thank you for your support.

Trish Patricia K. Holahan, Ph.D.

Director Office of Enforcement, MS 014A50 U.S. Nuclear Regulatory Commission Washington, DC 20555 301 2 7- 27 (office)

(b)(6) (cell) 2

Agency-Specific Questions

1. Constructive and tlmelyfeedtx,ck Is provided when decisions In my work unit are made.

1. of Respondents Percent 2017 2016 2015 2017 2016 2015 Strongly Agree 533 434 571 21.7% 20.4% 21.4%

Agree 1091 921 1176 44.9% 43.4% 45.2%

Neither Agree nor Disagree 426 388 470 18.6% 18.9% 18.2%

Disagree 255 254 291 10.7% 12.4% 11.4%

Strongly Disagree 93 99 102 4 .1% 4.8% 3.9%

Total 2398 2096 2610 100.0% 100.0% 100.0%

2. The environment within my work unit is one of trust.

1. of Respondents Percent 2017 2016 2015 2017 2016 2015 Strongly Agree 624 539 687 25.3% 25.3% 25.6%

A$ree 1036 868 1083 43.2% 40.8% 41.6%

Neither Agree nor Disagree 345 288 386 14.8% 14.4% 15. 1%

Disagree 243 240 292 10.2% 12.0% 11.5%

Stron&I~ Oisasree 141 159 157 6.4% 7.5% 6 .2%

Total 2389 2094 2605 100.0% 100.0% 100.0%

3. I NI/eve I can raise concerns or dlU.erent oeJnlons without fear of ne11atlve conseguences.

1. of Respondents Percent 2017 2016 2015 2017 2016 2015 Strongly Agree 755 569 753 30.1% 26.5% 28.1%

A$ree 911 800 975 38.3% 37.9% 37.6%

Neither Agree nor Disagree 331 319 411 14.4% 15.8% 16.2%

Disagree 227 239 265 9 .4% 11.5% 10.4%

Stron11~ Oisa1ree 179 169 197 7.8% 8.2% 7.7%

Total 2403 2096 2601 100.0% 100.0% 100.0%

4. I would be willing to use the Nort+Concurrence Process to raise missiott-rt!lated differing views.

1. of Respondents Percent 2017 2017 Strongly Agree 539 24.2%

11$ree 970 45.0%

Neither Agree nor Disagree 337 16.9%

Disagree 176 8.3%

Strongly Dis.agree 115 5.6%

I do not know enough about this program to respond 254 Total 2391 100.0%

Note: "I do not know enough about this program to respond* responses are not Included In percentage calculatlons.

5. I would be willing_ to use the Differing Professional Opinion Propram to raise mission-related differing views.

1. of Respondents Percent 2017 2017 Strongly Agree 515 23.1%

Agree 968 44.8%

Neither Agree nor Disagree 355 17.7%

Disagree 168 7.9%

Strongly Disagree 135 6.5%

I do not know enough about this program to respond 242 Total 2383 100.0%

Note: "I do not know enough about this program to respond* responses are not Included In percentage calculations.

6. I can easily find and obtain the information I need to do my iob.

1. of Res pondents Percent 2017 2016 2015 2014 2017 2016 2015 2014 Strongly Agree 551 501 810 664 22.2% 23.6% 30.9% 27.3%

Agree 1318 1129 1337 1285 55.6% 54.3% 52.1% 53.8%

Neither Agree nor Disagree 325 256 256 252 13.9% 12.3% 9.9% 10.6%

Disagree 153 161 137 162 6.4% 1.1% 5.3% 6.6%

Strongly Disagree 47 46 43 40 1.9% 2.1% 1.7% 1.6%

Tota l 2394 2093 2583 2403 100.0% 100.0% 100.0% 100.0%

7. The NRC provides the technology Infrastructure (PC, software, mob/le devlce(s/, accesslb/1/ly} I need ro work e/fectlvely.

1. of Respondents Percent 2017 2016 2015 2014 2017 2016 2015 2014 Strongly Agree 522 469 734 671 21 .3% 22.4% 28.0% 27.6%

Agree 1201 993 1245 1246 50.6% 47.6% 48.3% 52.1%

Neithe r Agree nor Disagree 271 254 247 192 11 .5% 12.0% 9.4% 8.0%

Disagree 265 244 267 225 10.9% 11.4% 10.2% 9.3%

Strongly Disagree 138 140 107 76 5.7% 6.6% 4.1% 3.1%

Tota l 2397 2100 2600 2410 100.0% 100.0% 100.0% 100.0%

8. The agency change that primarily influenced my survey input was:

1. of Res pondents Percent 2017 2017 Job security and/or the likelihood of a reduction-in-force 114 5.5%

Project Aim lnitfatives 123 4 .9%

The changing nucl ea r landscape 87 3.5%

Opportunities for career advancement 285 12.0%

Opportunities for training and development 53 2.2%

All of t he above 766 32.8%

None of the above 752 30.8%

Other change(s) 197 8.4%

Tota l 2377 100.0%

For all tables on this worksheet:

Percentilges ilre weighted to represent the Agency's populi;ition.

Source: Federal Employee Viewpoint Survey

In 2016, OE became aware of several instances where NRC employees were told by OSHA representatives that NRC employees do not have whistleblower protection under the ERA. In one instance, an employee was encouraged to retract their formal complaint because they were told they were not covered under ERA.

In 2017, OSHA formally responded to two NRC retaliation complaints and dismissed the claims based on the conclusion that it did not have reasonable cause to believe that a violation of ERA occurred because the NRC is not a covered employer under the ERA. Both NRC employees subsequently filed objections and hearing requests with an Administrative Law Judge (AU).

A hearing is currently scheduled for May 23, 2018, in one case. The NRC filed a motion to dismiss this case on October 19, 2017.

On July 13, 2017, the AU issued an Order https://www.oalj.dol.gov/ Decisions/ AU/ ERA/ 2017/ PECK MICHAEL v NUCLEAR REGULATORY C 2017 ERAOOOOS (JUL 13 2017) 164445 CADEC SD.PDF (Summary Decision as to Jurisdiction) dismissing the claim and cancelling the hearing for the other case.

The Order noted that the NRC is an instrumentality of the U.S. Government which through the laws of the U.S. permits certain actions under a waiver of sovereign immunity. The Order also noted that the U.S. has not waived sovereign i mmunity for ERA whistlebiower actions.

On July 27, 2017, the employee filed a petition for review to the Administrative Review Board (ARB).

The ARB is responsible for issuing a final agency action for DOL.

According to ARB staff, the ARB final agency action could take up to 2 years to issue. The decision could subsequently /.)e appealed to the Court of Appeals. In addition, if agreed to by both parties, the specific claim could be addressed through the alternative dispute resolution program administered by the Office of the AU.

From : Sanford. Barbara Note: The first attachment is the final version To: Shay lasoo of the study itself. The second and third

Subject:

Fl/v: Report on Reprisal and Chilling Effect attachments are included in the study. In Date: Monday. June 19, 2017 8:42:50 AM response to a prior FOIA request (NRC-2018 Atta chments: Reoort on Reorisal and Chilling Effect for Raising Differing Views.docx. -000318). the NRC released the final version Aooendix D OSHA.od{ of the study. including these two appendices, Appendix E- ELI Civilit~ules...pdf with a few redactions, as ML18179A032.

Importance: High From: Pedersen, Renee Sent : Friday, June 16, 2017 11:23 AM To: Lising, Jason <Jason Lising@nrc.gov>; Weed, Yvonne <Yvonne.Weed@nrc.gov>; Kravetz, Joel

<Joel.Kravetz@nrc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Ralph, Melissa

<Melissa.Ralph@nrc.gov>; Sc hwartz, Maria <Marja,Schwartz@nrc,gov>

Cc: Figueroa Toledo, Gladys <Gladys.FigueroaToledo@nrc,goy>; Solorio, Dave

<Dave Solorio@nrc gov>; Holahan, Patricia <Patricia.Holahan@nrc gov>

Subject:

Report on Reprisa l and Ch illing Effect Importance: High Happy Friday!!

It's been a long process, but OE has completed a comprehensive report on the topic of reprisal and chilling effect at the NRC. We sincerely appreciate the valuable feedback and insights you provided to support this report. Your role in this activity is discussed in the background section and the multi-office focus group discussion in the methodology section of the report.

(b)(5)

Trish intends to circulate the draft report on Monday to OCHCO, SBCR, and OGC managers for awareness before we send it to the EDO/DEDOs.

Although we worked diligently to create an accurate and balanced report, if we erred, we apologize and would appreciate feedback on any inaccuracies by June 301h.

Thanks again for your support!!

Renee P.S. Sorry if the format is a little off. I'm working at home today and Citrix ca n mess wit h your documents! In addit ion, I'm sending two of t he appendices separately for easier document handling.

Have a great weekend!

From: Lisio~. lasoo To: Salter Susan; Abraham Susan* Reid Patrjce; Cochrum Steven Cc: weed Yvonne: Sanford Barbara Subj ect: RE: ACTION: Please review revised Study on Reprisal and Chilling Effect for Raising~M_is_

sio_n_-R_el_at_ed_C

_o_nc_e_

rn_s _ _ _ _ _ __

and Differing Views at the NRC Note: The 67--page draft, with marginal Date: Wednesday, September 13, 2017 4:28:46 PM comments throughout, is withheld in its Attachments: Study of Reprisal and Chilling Effect for Raising Differing Views 8-23-lZ HRTD docx entirety under FOIA exemption 5.

Hi Susan A.

Hope this helps. Anyone please feel free to chim in.

Thanks, A. Jason Lising Sr Organizational Development Specialist Office of the Chief Human Capital Officer US Nuclear Regulatory Commission jason.lising@nrc.gov I 301-287-0569 I 3WFN-2-C25 From: Salter, Susa n Sent: Monday, August 28, 2017 4:37 PM To: Abra ham, Susan <Susan .Abraham@ nrc.gov>; Using, Jason <Jason.Lising@nrc.gov>; Reid, Patrice

<Patrice.Reid@nrc.gov>; Coch rum, Steven <Steven.Cochrum@nrc.gov>

Subject:

RE: ACTION: Please review revised Study on Reprisa l and Ch illing Effect for Raising Mission-Related Concerns and Differing Views at the NRC I reviewed the report. Below are my comments:

(b)(5)

(b)(5)

Susan From: Golder, Jennifer Sent: Wednesday, August 23, 2017 4:54 PM To: Sa nford, Barbara <Barbara.Sanford@nrc.gov>; Shay, Jason <Jason.Shay@nrc.gov>; Abraham, Susan <Susan Abraham@nrc gov>; Salter, Susan <Susan Salter@nrc.gov>; Weed, Yvonne

<Yvonne Weed@nrc gov>; Lising, Jason <Jason Using@nrc gov>

Subject:

FW: ACTION: Please review revised Study on Reprisal and Chil li ng Effect for Ra ising Mission-Related Concerns and Differing Views at the NRC HROP, HRTD, See below and attached for the draft report. We will need to review and provide comments on this version. I did send Trish an email with a cc only to Miriam letting her know we will need until September 18 to provide comments given other competing priorities.

Therefore, can you please provide me comments (one set from each division) by Thursday, September 14th_ This gives me 2 days to review them, discuss with Miriam as needed and get back to OE.

Jennifer Golder Deputy Chief Human Capital Officer Office of t he Ch ief Human Capital Officer United States Nuclear Regulatory Commission (301} 287-0741 From: Holahan, Patricia Sent: Wednesday, August 23, 2017 4:41 PM To: Maxin, Mark <Mark.Maxin@nrc.gov>; Golder, Jennifer <Jeooifer.Golder@nrc.gov>; Baker, Pamela <Pame!a.Baker@nrc.gov>; Cohen, Miriam <Miriam.Cohen@nrc.gov>; Fopma, Melody

<Melody.Fopma@nre.gov>

Cc: Peduzzi, Francis <Francis.Peduzzi@nrc.gov>; Lising, Jason <Jason.Lising@nrc.gov>; Weed, Yvonne

<Yvonne.Weed@nrc.gov>; McMillan, Joseph <Joseph.McMj!lan@nrc.gov>; Grodin, Maryann

<Maryann Grodin@orc gov>; Schwartz, Maria <Marja Schwartz@nrc gov>; Kravetz, Joel

<JoeLKravetz@nrc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Barnes, Anthony

<Anthony.Barnes@nrc.gov>; Pedersen, Renee <Renee.Pedersen@nrc.gov>; Figueroa Toledo, Gladys

<Gladys.FigueroaToledo@nrc.gov>; Solorio, Dave <Dave.Solorio@nrc.gov>; Araguas, Christian

<Cb rjstia n.Ara guas@nre.gov>

Subject:

ACTION: Please review revised Study on Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC

Good afternoon ,

OE has completed a revision of the Study of Reprisal and Chilling Effect for Raising Mission-Related Concerns and Differing Views at the NRC. The study is in response to activity 3 of issued the Agency Action Plan , which states, in part, "Continue to develop/enhance concerns of retaliation and chilling effect for raising concerns .... " This revision reflects comments and concerns that were provided in response to the earlier draft that was sent on June 20, 2017.

For your convenience, we are attaching a list of revisions and clarifications that were made to the study in response to the comments that we received. We are also sending a comparative text between the latest draft and the June 20th version and a clean version.

In an effort to improve our ability to respond to comments and stay on track with our timeliness goal, we ask that each office submit any specific comments and suggested language to OE by September 11th. OE plans on scheduling a briefing for the EDO/DEDOs towards the end of September or early October.

Thank you for your support.

Trish Patricia K. Holahan, Ph.D.

Director Office of Enforceme nt, MS 014A50 U.S. Nuclea r Regulatory Comm ission Wash ington, DC 20555 (301 ) 287-9527 (office)

!(b )(6)  !{ eel I) patricia holahao@orc ~ov

From: Salter. susao To: Sanford Barbara Note: The 57-page draft, Cc: Cochrum Steven: Reid Patr;ce: us;ng lasoo: Steger Christine; Golder 1enn;fer: Abraham Susan with marginal comments

Subject:

FW: Draft report on evaluation of reprisal and chilling effect for ra ising Differing Views Date: Friday, June 23, 2017 1:01 :36 PM throughout, is withheld in Attachments: HRTD comments - Report on Reor;sal and Chilling Effect for Raising Differing y;ews PAR.docx its entirety under FO IA exemption 5.

(b)(5)

(b)(5)

Thanks Susan From: Sanford, Ba rbara Sent: Tuesday, June 20, 2017 10:00 AM To: Sa lter, Susan <Susan Salter@nrc gov>

Subject:

RE: Draft report on evaluation of reprisal and ch illing effect for raising Differi ng Views ok From: Salter, Susa n Sent: Tuesday, June 20, 2017 9:59 AM To: Sa nford, Barbara <Barbara.Sanford@nrc.gov>; Shay, Jason <Jason.Shay@nrc.gov>; Abraham, Susan <Susan .Abra ham@nrc.gov>; Coch rum, Steven <Steven .Coch rum@nrc.gov>

Cc: Cohen, Miriam <Miriam.Cohen@nrc gov>; Golder, Jennifer <Jennjfer.Golder@nrc.gov>

Subject:

RE: Draft report on evaluation of reprisal and chilling effect for raising Differing Views Hi Barbara - we may need a few more days since Jason is on vacation this week and I'd like to get his perspective and comments. Maybe next Tuesday?

Susan Salter Chief, Professional Development Branch/HRTD/OCHCO 301 -287-0545 MS 3WFN 02C28

---

Original Message --------

From: "Sanford, Barbara" < Barbara,Sanford@nrc.gov>

Date: Tue, June 20, 201 7 9:54 AM -0400 To: "Shay, Jason" <Jason.S hay@ nrc gov>, "Salter, Susan" <$usan.Salter@nrc.gov>,

"Abraham, Susan" <Susan.Abraham@ nrc.gov>, "Cochrum , Steven"

<Steven.Cochrum@nrc.gov>

CC: "Cohen, M iriam" <Miriam.Cohen@ nrc.gov>, "Golder, Jennifer"

<Jennifcr.GoJder@nrc.gov>

Subject:

RE: Draft report on evaluation of reprisal and chilling effect for raising Differing

Views Good morning, (b)(5)

- Barbara From: Golder, Jennifer Sent: Tuesday, June 20, 2017 9:01 AM To: Sa nford, Barbara <Barbara Sanford@nrc gov>; Shay, Jason <Jason Shay@nrc gov>; Salter, Susan

<Susan.Salter@nrc.gov>; Abraham, Susa n <Susan.Abraham@nrc.gov>; Cochrum, Steven

<Steven.Cochrum@nrc.gov>

Cc: Cohen, Miriam <Miriam Cohen@nrc gov>

Subject:

FW: Draft report on evaluation of reprisa l and chilling effect for raisi ng Differing Views l(b)(5)

Thanks!

Jennifer Golder Deputy Chief Human Capital Officer Office of the Ch ief Human Capital Officer United States Nuclear Regulatory Commission (301) 287-0741 From: Hola han, Patricia Sent: Tuesday, June 20, 2017 8:56 AM To: Maxin, Mark <Mark.Maxin@nrc gov>; Golder, Jennifer <Jennifer.Golder@nrc gov>; Cohen, Miriam <Miriam .Cohen@nrc.gov>; Baker, Pamela <Pamela.Baker@nrc.gov>; Fopma, Melody

<Melody. Fopma@nre.gov>

Cc: Using, Jason <Jason Ljsjng:@nrc gov>; Weed, Yvonne <Yvonne Weed@nrc gov>; McMillan, Joseph <Joseph McMil lan@nrc gov>; Grodin, Maryann <Maryann Grod jn@nrc gov>; Schwa rtz, Maria <Maria.Schwartz@nrc.gov>; Araguas, Christian <Christian.Araguas@nrc.gov>; Kravetz, Joel

<Joel Kravetz@nrc gov>; McKimm, Jack <Jack McKimm@nrc gov>

Subject:

Draft report on evaluat ion of reprisal and chill ing effect for raising Differing Views Good morn ing, OE has completed a draft report on t he topic of reprisa l and chil ling effect at the NRC. The report is in response t o act ivity 3 of issued t he Agency Action Plan, which states "Cont inue to develop/enhance concerns of retal iation and chill ing effect for raising concerns, as well as support continuous improvement of the followi ng: ODP, NCP and DPO."

(b)(5)

OE pla ns on briefing the EDO/DEDOs towa rds the end of July.

Thankyouforyoursupport.

Trish Patricia K. Holahan, Ph.D.

Di rector Office of Enforcement, MS 014A50 U.S. Nuclear Regulatory Commission Washington, DC 20555 (301) 287-9527 (office)

!<b)(6) I(cell )

patricia holahan@nrc gov

From: Golder 1ennifer To: ~ad V11anna

• Sanford Barbara

• fb211 l acon

Subject:

Re (b)(5)

Date: Thursday, J uly 27, 2017 7:00:57 AM l(b)(5)

On: 27 July 2017 06:13, "Weed, Yvonne" <Yvonne Weed @nrc.gov> wrote:

Good morn ing, l(b )(6) l<b)(5) l(b)(5)

Yvonne From: Golder, Jennifer Sent: W ednesday, July 26, 2017 10:46 PM To: Sa nford, Barbara <Barbara.Sanford@ nrc.gov>; Shay, Jason <Jason.Shay@nrc.gov>

Cc: Weed, Yvonne <Yvonne.Weed @nrc.gov>

I..._____________________.

Subject:

Re: !(b)(5) l<b)(5) l(b)(5)

On: 26 July 2017 19:50, "Sanford, Barbara" <Barbara.Sanford @nrc.gov> wrote:

(b)(5)

-Barbara From: "Weed Yvonne"< v v>

Sub*ect: RE: (b)(5)

(b)(5)

Yvonne M. L. Weed Policy, Labor and Employee Relations Branch Three White Flint North; Room 3D16 Mail Stop: 3A12 11601 Landsdown Street North Bethesda, MD 20852 Office Phone: 301-287-9463

---

Original Appointment -----

From: Sanford, Ba rbara On Behalf Of Bloomer, Tamara Sent: Wednesday, July 26, 2017 12:22 PM To: Weed, Yvonne Cc:Shay, Jaso....n .............................................................................................................................................................................................................

Subject:

Fwd:!(b)(S)

!(b)(5) j When: Th ursday, July 27, 2017 9:00 AM-10:00 AM (UTC-05:00) Eastern Time (US & Ca nada).

Where: HQ-OWFN-16D03-27P From: "Bloomer Tamara" <

Sub*ect: FW: (b)(5) ate: 26 u y 20 7 1: o To: "Sanford, Barbara" <Barbara.Sanford@nrc.gov>, "Using, Jason"

<Jason,Lisiog@nrc.gov>, "Salter, Susan" <$usan.Salter@nrc.gov>

l(b)(5) I

---

Original Appointment-----

From: Bloomer, Tamara Sent: Wednesday, July 26, 2017 10:40 AM To: Bloomer, Tamara; Golder, Jen nifer; Maxin, Mark; M cKimm, Jack; Pedersen, Renee; Holahan, Patricia

Cc: Peduzzi, Francis* 5aofacd Barbara

Subject:

FW: !(b..._)_(5_) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___.

When: Thursday, July 27, 2017 9:00 AM-10:00 AM (UTC-05:00) Eastern Time (US & Canada).

Where: HQ-OWFN-16D03-27P l(b)(5)

---

Original Appointment-----

From: Bloomer, Tamara Sent: Wednesday, July 26, 2017 9:29 AM To: Bloomer, Tamara; Maxin, Mark; McKimm, Jack; Pedersen, Renee; Hola han, Patricia Cc: Peduzzi Francis* Sanford Barbara

Subject:

(b)(5)

_,,__.....,._.,....,....,,.,,,....,,.""'"",..,..""""".,..,..,...,.,,,..,,.,,,..,..,..,...,..,,,,.,,..,,.,,..,,.,,.,..,,- -..,,...- - ~.,,..---,.....------'

When: Thursday, July 27, 2017 9:00 AM-10:00 AM UTC-05:00 Eastern Time (US & Canada).

Where: HQ-OWFN-16D03-27P Tammy From: Bloomer, Tamara Sent: Friday, July 21, 2017 10:51 AM To: Maxin, Mark <Mark.Maxin@n rc.gov>; McKimm, Jack <Jack.McKimm@nrc.gov>; Pedersen, Renee

<Renee Pedersen@nrc gov>; Holahan, Patricia <Patricia Holahan@nrc gov>

Cc: Peduzzi, Francis <Fraf cjs Pedyzzj@nrc ggy>

Subject:

FW: HEADS UP { b)(5)

(b)(5)

Thanks, Tammy From: Brown, Frederick Sent: Thursday, July 20, 2017 6:29 PM To: Weber, Michael <Michael.Weber@nrc gov>

Cc: Holahan, Patricia <Patricia Holahan@nrc gov>; Peduzzi, Francis <Francis Peduzzi@nrc gov>; Bloomer, Tamara

<Tamara Bloomer@nrc gov>

Subject:

RE: HEADS UP- ... ,(b_)_ (5_) _ _ _ _ _ _ _ _ ____.

Thanks Mike.

(b)(5)

Fred From: Weber, Michael Sent: Thursday, July 20, 2017 5:2 1 PM To: Brown, Frederick <Frederick.Brown@nrc.gov>

Cc: Holahan, Patricia <Patricia Holahan@nrc gov>; Peduzzi, Francis <Francis Peduzz j@nrc gov>

Subject:

HEADS UP 1._ (b__)__

(5__

) _ _ _ _ _ _ _ _ ___.

(b)(5)

From: Pedersen, Renee Sent: Thursday, July 20, 2017 1:05 PM To: Weber, Michael <Michael Weber@nrc gov>

Subject:

FW!(b

...._)_

(5_) _ _ _ _ _ _ _ _ _....,

Mike, (b)(5)

(b)(5)

From: Pedersen, Renee Sent: Wednesday, July 19, 2017 3:16 PM To: McKimm, Jack <Jack McKjmm@prc goy>

Subject:

RE:..

!(b_)_(5_)_ _ _ _ _ _ _ _ ___.

(b)(5)

From: McKimm, Jack Sent: Wednesday, July 19, 2017 2:08 PM To: Pedersen, Renee <Renee Pedersen@nrc BOY>

Subject:

RE:_j<b_)_(5_)_ _ _ _ _ _ _ _ _ ___.

(b)(5)

Thanks Renee!

Jack McKimm Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 287-9240 From: Pedersen, Renee Sent: Wednesday, Ju ly 19, 2017 1:44 PM To: McKimm, Jack <Jack McKimm@nrc gov>

Subject:

!(b)(5) lmporta-nc_e_: -Hi~g-h ____________________.

Hi Jack, (b)(5)

Ren?e