[Federal Register Volume 69, Number 198 (Thursday, October 14, 2004)]
[Notices]
[Pages 61049-61058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23005]
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NUCLEAR REGULATORY COMMISSION
Proposed Generic Communication; Establishing and Maintaining a
Safety Conscious Work Environment
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of opportunity for public comment.
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SUMMARY: The U.S. Nuclear Regulatory Commission is proposing to issue a
regulatory issue summary (RIS) to provide the guidance for licensees on
establishing and maintaining a Safety Conscious Work Environment
(SCWE): that is, an environment in which employees are encouraged to
raise safety concerns both to their own management and to the NRC
without fear of retaliation. The agency's expectations regarding
licensees establishing and maintaining a SCWE are described in the 1996
NRC Policy Statement, ``Freedom of Employees in the Nuclear Industry to
Raise Safety Concerns Without Fear of Retaliation.''
In a March 26, 2003 staff requirements memorandum, the Commission
directed the staff to develop further guidance, in consultation with
stakeholders, that identifies ``best practices'' to encourage a SCWE.
The guidance document is based on the existing guidance provided in the
1996 Policy Statement, including the elements and attributes described
therein of a healthy SCWE, and expands the guidance or adds new
guidance where additional information would help describe practices to
meet the intent of each SCWE attribute. In addition, the NRC staff held
a public workshop to discuss the draft guidance document, on February
19, 2004.
On February 12, 2004, the NRC staff published an outline of this
guidance document for public comment. The Commission received input
from the public, in response to the Federal Register Notice, expressing
general agreement concerning the content of the outline. However, some
improvements were suggested, and the NRC staff has incorporated many of
these suggestions into the guidance document developed from the
outline. The NRC staff's response to each of the individual comments on
the outline published on February 12, 2004, is included under
``Supplemental Information--Staff Response to Comments,'' below.
The February 12, 2004, Federal Register Notice emphasized that the
NRC's 1996 Policy Statement was directed to all employers, including
licensees and their contractors, subject to NRC authority, and their
employees. Therefore, the guidance document also applies to this broad
audience. The Federal Register Notice also clarified that the practices
outlined in the guidance document may not be practical or necessary for
all employers. Rather, the purpose of the guidance is to provide
information on practices which have been effective at some larger
licensees to maintain or improve the work environment and ensure its
employees feel free to raise safety concerns. The scope of the guidance
document remains broad and the NRC staff continues to believe that not
all the practices outlined in the guidance document will be practical
or effective for all licensees. The guidance, in the form of a RIS, is
provided below for comment. It is also available on the NRC's Web site
at: http://webwork:300/what-we-do/regulatory/allegations/scwe-
guide.html, well as in ADAMS at ML042800027.
DATES: Comments on the guidance document may be submitted on or before
November 15, 2004. Since: (1) A detailed outline of the guidance
document has previously been published for comment; (2) the NRC staff
has evaluated and responded to these comments below; and (3) the
Commission approved, in an August 30, 2004, Staff Requirements
Memorandum, issuance of the guidance, the staff requests that any
comments provided in response to this Federal Register Notice relate to
the content of the document rather than the appropriateness of issuing
the document. The staff plans to issue a final RIS containing the
information in the document after reviewing and addressing any
additional comments.
ADDRESSES: Submit written comments to: Michael T. Lesar, Chief, Rules
and Directives Branch, Division of Administrative Services, Office of
Administration, Mail Stop: T-6D59, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001. Hand deliver comments to: 11555 Rockville
Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m., Federal
workdays. Copies of comments received may be examined at the NRC Public
Document Room, Room O-1F21, 11555 Rockville Pike, Rockville, Maryland.
Publically available documents created or received at the NRC after
November 1, 1999, are available electronically at the NRC's Electronic
Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this
site, the public can gain entry into the NRC's Agencywide Documents
Access and Management System (ADAMS), which provides text and image
files of NRC's public documents. If you do not have access to ADAMS or
if there are problems in accessing the document located in ADAMS,
contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737, or
email to [email protected].
You may also e-mail comments to [email protected]. Fax comments to:
Chief, Rules and Directive Branch, U.S. Nuclear Regulatory Commission
at (301) 415-5144.
FOR FURTHER INFORMATION CONTACT: Lisamarie Jarriel, Agency Allegations
Advisor, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, (301)-415-8529, email [email protected].
SUPPLEMENTARY INFORMATION:
Staff Response to Comments
The NRC received 17 submittals providing comments suggesting
changes or expressing concerns in response to the outline of the
proposed industry guidance for establishing and maintaining a SCWE
published in the Federal Register on February 12, 2004. Although most
stakeholders, including representatives from both the industry and
whistleblower advocates, were in general agreement concerning the
content of the outline, some improvements were suggested and many have
been incorporated into the draft document. The most significant
comment, however, addressed whether the Agency should be producing such
a document at all. Industry representatives commented that the
industry, rather than the NRC, should develop the guidance. The
following specific comments related to the topic of whether it is
appropriate for the NRC to issue the guidance, and the NRC staff's
[[Page 61050]]
response to these comments, are as follows:
Comment: The May 1996 Policy Statement clearly set the NRC staff's
expectations for development of a SCWE and placed responsibility for
establishing and maintaining a SCWE on the licensees. Therefore, it is
not appropriate for the NRC staff to assume responsibility for
development of a ``best practices'' document in the area of SCWE.
Response: The staff notes that the Commission more recently (March
26, 2003) issued a staff requirements memorandum that specifically
requested that the staff develop more guidance regarding ``best
practices'' to encourage a SCWE. The 1996 Policy Statement did in fact
place the responsibility for establishing and maintaining a SCWE on
licensees, and this responsibility remains with licensees. The guidance
document does not transfer the responsibility for establishing and
maintaining a SCWE from licensees to the NRC; rather, the guidance
document provides some tactics for establishing and maintaining a SCWE
which have been successful at some licensees and may be of use to other
licensees in upholding the responsibilities described in the 1996
Policy Statement.
Comment: ``Best practices'' are not enforceable nor useful for NRC
inspectors.
Response: The NRC staff plans to issue the attached guidance in the
form of a RIS, which is not a regulatory requirement but is an
established method of providing guidance to the industry. The purpose
of the document is to provide guidance to the industry, rather than to
dictate regulatory requirements or to serve as a required standard for
use during NRC inspections.
Comment: Several comments were received that expressed a concern
that any guidance developed by the NRC would be ``defacto'' regulatory
requirements in this area, and that guidance from the NRC on ``best
practices'' for establishing and maintaining a SCWE would create the
impression that the guidance provided by the NRC would become the
standard for an acceptable program. One commenter indicated that a
requirement that surveys and interviews be performed on a regular basis
would provide little benefit and would demand a substantial use of
licensee resources.
Response: As noted above, the NRC staff plans to issue the guidance
document on establishing and maintaining SCWE as a RIS, which is not a
regulatory requirement, but provides guidance to the industry on this
important topic. While a perception may exist that such guidance
documents are ``defacto'' requirements, the NRC staff clarified in the
document that some of the practices outlined in the guidance may not be
practicable or appropriate for every NRC licensee or contractor
depending on the existing work environment and the size, complexity, or
hazards of licensed activities. This statement should clarify that the
information in the guidance document is not a requirement.
Comment: The industry has developed and is using guidance from
Nuclear Energy Institute (NEI) 97-05 \1\; therefore, additional
guidance from the NRC is not necessary.
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\1\ NEI 97-05, ``Nuclear Power Plant Personnel-Employee Concerns
Program-Process Tools In A Safety Conscious Work Environment,'' Rev.
1, January 2002.
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Response: The NRC staff has reviewed NEI 97-05, Revision 1 and a
draft of Revision 2, and concurs that both revisions contain elements
that are important to establishing and maintaining a SCWE. However, the
staff noted some important distinctions in comparing the NEI document
to the proposed NRC guidance on establishing and maintaining a SCWE,
including: (1) A difference in the scope of the documents' emphasis on
problem identification and resolution processes, in that the NEI
document focuses on the effectiveness of the Employee Concerns Program
while the NRC document more broadly addresses the effect of all problem
identification and resolution processes on the SCWE; (2) additional
details in the NRC document regarding several practices, such as
management behaviors and oversight of contractor activities, which may
impact the SCWE at licensed facilities; (3) additional details in the
NRC document regarding the content of SCWE training; (4) inclusion of a
discussion of several important and complex issues in the NRC document
which are not contained in the NEI document, such as the effect of
incentive programs and 360 degree appraisal programs on the SCWE; and
(5) guidance in the NRC document with respect to processes to help
detect and prevent discrimination, or mitigate perceptions of
discrimination, which is not included in the NEI document.
In addition to the above comments which generally related to the
appropriateness of the NRC staff issuing a guidance document on
establishing and maintaining a SCWE, the following comments were
received:
Comment: Several comments were received regarding a concern that
issuance of a guidance document on best practices to establish and
maintain a SCWE may give the impression that the practices in the
document are all inclusive, when in fact additional practices may be
effective or necessary at some sites, and some intangible issues, such
as trust and management turnover, may significantly impact the SCWE. In
addition, a concern was raised that issuing a best practices document
for establishing and maintaining a SCWE may give the impression that
the practices in the document have been objectively demonstrated to be
effective when in fact they have not.
Response: The NRC staff agrees that not all of the practices
outlined in the guidance document may be practicable or appropriate for
every licensee or contractor and that practices not included in the
guidance may also be effective in establishing and maintaining a SCWE.
The NRC staff also agrees that additional licensee efforts beyond the
practices in the guidance may be necessary to establish or improve a
SCWE. The staff has revised the title of the document from one that
refers to ``best practices'' to further emphasize the unique nature of
each licensee's work environment and has added language to emphasize
that the practices in the document may not be practical or effective at
all licensees, and that additional practices may be helpful or
necessary to establish or maintain a SCWE at some facilities. In
addition, several comments requested the addition of specific items to
the outline. The specific comments were:
Comment: More emphasis needs to be placed on the interpretation of
data obtained and its impact on safe operations.
Comment: More emphasis needs to be placed on the effectiveness of
communications and teamwork as effective tools for the resolution of
identified problems.
Comment: The results of industry benchmarking (positive and
negative attributes) should be included in the guidance.
Comment: Industry Lessons learned should be included in the SCWE
training.
Response: Emphasis was added to the guidance document as requested
in the first of these comments, but for the others the NRC staff
determined that the guidance already adequately addressed these topics.
Comment: Two comments were received which indicated that the NRC
staff should develop a SCWE performance indicator or minimal acceptable
standards for SCWE.
[[Page 61051]]
Response: The NRC staff has considered developing an inspection
process and assessment tools to evaluate the broader area of safety
culture, which, as described in the guidance document, relates to a
``safety-first focus''. SCWE is an attribute of safety culture. In an
August 30, 2004, staff requirements memorandum, the Commission
indicated that the staff should consider developing tools that allow
inspectors to rely on more objective findings in the area of Safety
Culture. The Commission specifically approved enhancing the reactor
oversight process' treatment of cross-cutting issues to more fully
address Safety Culture, and to allow for more agency action as the
result of the identification of a cross-cutting issue regarding Safety
Culture. Implementing this direction from the Commission may involve
development of some form of a performance indicator for SCWE or Safety
Culture. However, the Commission to date has not approved development
of a regulation or ``minimal acceptable standards'' in the area of
safety culture or SCWE.
Comment: A question was posed in one comment regarding whether the
guidance was intended to address only SCWE or the broader topic of
Safety Culture. The commenter pointed out that the Commission did not
specifically direct that the staff develop guidance about Safety
Culture, but requested that the staff monitor developments abroad to
ensure that the Commission remains informed about these efforts and
their effectiveness.
Response: The guidance document only addresses the topic of SCWE,
rather than Safety Culture, and the NRC staff clarified this point in
the draft guidance document. The staff notes that the commenter was
correct in stating that the Commission did not direct that the staff
develop guidance about Safety Culture, but requested that the staff
monitor developments abroad to ensure that the Commission remains
informed about these efforts and their effectiveness.
Comment: The NRC has not previously issued ``best practices''
documents for other areas where it has a regulatory requirement or
other interest.
Response: While the NRC staff has not routinely issued ``best
practices'' documents for other areas where its has a regulatory
requirement or interest, the staff notes that the Commission
specifically directed the staff in the March 26, 2003 staff
requirements memorandum, to develop further guidance that would
identify ``best practices'' to encourage a SCWE. While issuing
documents which identify ``best practices'' is not routine for the NRC
staff, it is also not prohibited by NRC policy, and many NRC guidance
documents, while not titled ``best practices'', incorporate industry
practices which have been effective.
The following two comments were received regarding a concern that
the NRC guidance related to a review of lessons learned/case studies
may involve privacy and attorney-client privilege information:
Comment: The Draft Best Practices document suggests that licensees
conduct self assessments of SCWE by periodically evaluating and
assessing information from areas/organizations that may contribute or
negatively effect the SCWE, including from legal counsel. Any such
assessment that seeks information contained in attorney's files could
compromise the attorney-client privilege.
Comment: The Draft Best Practices document suggests that licensees
provide continuous training for employees, managers, and supervisors.
Such training, according to the Draft Best Practices Document, should
include ``lessons learned/case studies''. However, in the past the NRC
has expressed concern that training involving cases studies might
compromise the confidentiality of complainants who made allegations or
engaged in litigation at that facility. The NRC should clarify its
expectations with respect to the use of case studies.
Response: The NRC staff acknowledges that information in licensees'
attorney's files and some information in case studies could contain
attorney-client privilege or privacy information and that review of
such information by individuals completing self assessments or release
of the information in a report of a self assessment would not be
appropriate. Nonetheless, the NRC staff continues to believe that
review of some legal documentation and case studies may be beneficial
during self assessments of SCWE and training. As such, the NRC revised
the sections of the guidance document which discuss review of legal
documentation and inclusion of case studies in training to reflect that
licensees should take into consideration privacy and attorney-client
privilege considerations during such reviews.
Comment: The Draft Best Practices document suggests that SCWE be
reinforced by demonstrated management behavior that promotes employee
confidence in raising and resolving concerns, including incentive
programs. The use of incentive awards may be inappropriate in a SCWE
toolbox and the use of this tool needs to be left to individual
licensees.
Response: As indicated in the guidance document on establishing and
maintaining a SCWE, the NRC staff recognizes that some of the practices
outlined in the guidance may not be practicable or appropriate for
every NRC licensee. The information in the guidance is provided for
licensees' consideration when developing or enhancing existing SCWE
programs, or attempting to identify and correct potential problems with
a program. As indicated in the guidance, the NRC staff believe that
incentive programs may encourage reporting of safety concerns, and the
guidance specifies that licensees should ensure that incentive programs
do not inadvertently discourage raising safety concerns.
Comment: The Draft Best Practices document suggests that the volume
and trend of such statistics as NRC allegations, NRC retaliation
allegations, anonymous concerns, and of internally raised concerns be
used as performance indicators. Reliance upon such statistics may be
misleading. As the NRC has previously recognized, allegers bring
concerns to the NRC for various reasons, including self-serving reasons
and reasons unrelated to the work environment at a nuclear plant.
Response: While allegers raise concerns to the NRC for differing
reasons, the NRC staff believes that, in general, the volume and trend
of NRC allegations, anonymous concerns, and internally raised concerns
can be used as performance indicators. While some individuals may bring
concerns to the NRC and the licensee for reasons other than problems
with the work environment, statistics such as the number and type of
allegations received involve the total licensee alleger population and
therefore may be a reflection of the status of the general work
environment. Clarification was added to the guidance document to
indicate that no single indicator is sufficient in identifying
weaknesses in the SCWE, nor are there absolute measures that indicate
an unhealthy environment. This clarification emphasizes that while such
information may be indicative of the status of the work environment,
further analysis is needed to identify the causes of changes in the
number and types of allegations received.
Comment: Certain language in the Draft Best Practices document
encourages licensees to encroach on contractors' areas of
responsibilities regarding SCWE. For example, it suggests that a
licensee should oversee contractor SCWE-related matters,
[[Page 61052]]
including contractor SCWE-related programs, procedures, and training.
In addition, the Draft Best Practices document suggests that licensee
management should be involved in contractor proposed changes to
employment conditions. Such actions could be an inappropriate
encroachment on a contractor's ability to manage its own employees and
could expose licensees to liability. NRC should clarify that
contractors, and not licensees, are responsible for the content and
effectiveness of the SCWE program within the contractor's organization.
Response: The NRC staff disagrees that licensee oversight of a
contractor's SCWE activities is an inappropriate encroachment on a
contractor's ability to manage its own employees. Rather, the
Commission's long-standing policy has been to hold licensees
responsible for compliance with NRC requirements, regardless of whether
the licensee uses a contractor to complete licensed activities. Since
the actions of contractors can affect the SCWE at NRC licensed
facilities, licensees are responsible for ensuring that their
contractors maintain an environment in which contractor employees are
free to raise concerns without fear of retaliation. While the NRC staff
agrees that contractors are responsible for the content and the
effectiveness of the SCWE within the contractor's organization,
licensees are also responsible for overseeing contractor activities
which may impact the SCWE at NRC licensed facilities.
Comment: The Draft Best Practices document suggests that senior
management review proposed employee actions (above oral reprimand)
before they are taken to confirm that there are no elements of
retaliation involved. Requiring senior management to review every
disciplinary action would pose an unnecessary burden upon management.
Response: As noted in the response above, the staff plans to issue
the document on establishing and maintaining a SCWE as guidance for the
industry rather than as a regulatory requirement. In addition, the NRC
staff clarified in the document that some of the practices in the
outline may not be practical or appropriate for every licensee,
depending on the work environment and/or the size, complexity, and
hazards of licensed activities. As such, the guidance does not require
that senior management at every NRC licensee review every disciplinary
action. Rather, the guidance suggests that review of disciplinary
actions, such as those above an oral reprimand, may be beneficial at
some licensed facilities. Review of disciplinary actions has benefited
the work environment at some licensee facilities. The NRC staff also
revised the language to the guidance document to provide disciplinary
actions above an oral reprimand as one potential threshold to consider
rather than as the suggested threshold. This language should further
emphasize that licensees should customize SCWE practices to suit the
needs of the facility.
The comments are available in their entirety on the Office of
Enforcement's Web page at: http://www.nrc.gov/what-we-do/regulatory/allegations/scwe-comments.html.
Supplementary Information--Draft NRC Regulatory Issue Summary: Guidance
for Establishing and Maintaining a Safety Conscious Work Environment
Addressees
All U.S. Nuclear Regulatory Commission (NRC) licensees, applicants
for licenses, holders of certificates of compliance, and their
contractors.
Intent
Although not required by regulation, licensees and other employers
subject to NRC authority are expected to establish and maintain a
safety conscious work environment (SCWE, pronounced ``squee''). The NRC
is issuing this regulatory issue summary (RIS) to supplement guidance
for fulfilling this expectation. The guidance describes a number of
practices that may facilitate the efforts of licensees and others in
developing and maintaining a SCWE. The NRC recognizes that some of the
practices described in this document may not be practical for every
licensee, depending on the existing work environment and/or the size,
complexity, and hazards of the licensed activities. Although this RIS
requires no action or written response, all NRC addressees are
encouraged to review and consider the contents of this RIS when
evaluating whether a SCWE exists at their facility.
Background Information
In April 2000, the Nuclear Regulatory Commission's Executive
Director of Operations chartered the Discrimination Task Group (DTG) to
evaluate issues associated with matters covered by the NRC's employee
protection standards, including SCWE. The DTG recommendations were
provided to the Commission in September 2002 in SECY-02-0166. In a
March 26, 2003, staff requirements memorandum (SRM) for SECY-02-0166,
the Commission directed the staff to take certain actions in the area
of SCWE and safety culture, including providing the guidance herein.
Regarding these two terms, SCWE and safety culture, there has been some
confusion historically. Many use the terms interchangeably. They are,
in fact, distinct, but related concepts. In the Commission's January
24, 1989 ``Policy Statement on the Conduct of Nuclear Power
Operations,'' safety culture is described as ``the necessary full
attention to safety matters'' and ``the personal dedication and
accountability of all individuals engaged in any activity which has a
bearing on the safety of nuclear power plants.'' A strong safety
culture is also often described as having a ``safety-first focus.''
Attributes include the principles of safety-over-production, procedural
adherence, and conservative decisionmaking. The willingness of
employees to identify safety concerns, i.e., SCWE, is also an important
attribute of a strong safety culture.
In July 1993, the agency reassessed the NRC's program for
protecting allegers against retaliation. Retaliation is prohibited by
NRC regulations in Parts 19, 30, 40, 50, 60, 61, 63, 70, 72, 76, and
150. It was recommended that an agency policy be developed to emphasize
that licensees and their contractors are responsible for achieving and
maintaining a work environment which is conducive to the reporting of
concerns without fear of retaliation. In May 1996, the NRC issued such
a policy, ``Freedom of Employees in the Nuclear Industry To Raise
Safety Concerns Without Fear of Retaliation (61 FR 24336 or
www.nrc.gov/what-we-do/regulatory/allegations/scwe-frn-5-14-96.pdf). A
SCWE is defined by the NRC as an environment in which ``employees feel
free to raise safety concerns, both to their management and to the NRC,
without fear of retaliation.'' The NRC also recognizes that, aside from
fear of retaliation, other matters can affect an employee's willingness
to identify safety concerns, such as the effectiveness of the
licensee's processes for resolving concerns and senior management's
ability to detect and prevent retaliatory actions. The NRC policy
statement, therefore, addresses these attributes of a SCWE as well. The
guidance provided by this policy, however, is very broad.
In SRM-SECY-02-0166 the Commission directed the staff to develop
further guidance, in consultation with stakeholders, that would
identify ``best practices'' for encouraging a SCWE. The Commission
indicated that the proposed guidance should emphasize training of
managers on their obligations under the employee protection regulations
and should make
[[Page 61053]]
recommendations about the content of the training in this important
area. In the 1996 policy statement, the NRC acknowledged that although
the statement and principles, described therein, apply to all licensees
and other employers subject to NRC authority, some of the suggestions,
programs, or steps that might be taken to improve the quality of the
work environment (e.g., establishment of a method to raise concerns
outside of the normal management structure such as an employee concerns
program) may not be practical for every licensee or other employer,
depending on factors such as the number of employees, complexity of
operations, potential hazards, and the history of allegations made to
the NRC. Similar to the suggestions and principles in the 1996 policy
statement, the practices described in this document may not be
practical for every licensee, depending on the existing work
environment and/or the size and complexity and hazards of the licensed
activities. For example, some of the practices in this guidance
document may not be applicable for very small licensees or other
affected employers that have only a few employees and a very simple
management structure.
Summary of Issue
An environment where employees feel free to raise safety concerns
may contribute to a reduced risk associated with licensed activities
and the use of radioactive materials. Attachment 1, ``Establishing &
Maintaining a Safety Conscious Work Environment,'' is provided as
guidance to licensees, applicants, and contractors on developing and
maintaining a SCWE in response to the Commission's March 2003
directive. Current industry guidance, Nuclear Energy Institute (NEI)
97-05, ``Nuclear Power Plant Personnel--Employee Concerns Program--
Process Tools In a Safety Conscious Work Environment'' (www.nei.org/documents/Nuclear_Employee_Concerns_Tools.pdf) contains elements
that are important to establishing and maintaining a SCWE as well, and
complements the guidance provided by this RIS. However, NEI 97-05
primarily focuses on establishing an effective employee concerns
program (ECP), an alternative process for reporting safety concerns.
Attachment 1 addresses SCWE more broadly as it applies to all problem
identification and resolution processes.
The NRC recognizes that some of the practices outlined in this
guidance may not be practicable or appropriate for every NRC licensee
or contractor, depending on the existing work environment, and/or the
size or complexity, and the hazards of the licensed activities. In
addition, practices not included in this guidance may be equally
effective in establishing and maintaining a SCWE. The NRC staff
emphasizes that licensees are responsible for establishing and
maintaining a SCWE and that implementation of the guidance may not
improve a SCWE without additional efforts by site management. However,
the NRC believes that the elements in this guidance could be helpful to
NRC licensees, applicants, and their contractors.
The guidance in Attachment 1 is intended to supplement existing
information that was communicated in the 1996 policy statement. The
supplemental elements of a SCWE summarized in this attachment were
developed utilizing information obtained from reactive inspections of
problematic licensee programs, as well as reviews of successful
progressive SCWE programs, and insights obtained during discussions
with nuclear industry professionals in this field.
The attached document provides guidance with respect to (1)
encouraging employees to raise safety concerns, including incentive
programs and communication tools, (2) SCWE training content and
periodicity, (3) ECP and ombudsman programs, (4) tools to assess the
SCWE, including performance indicators, behavioral observations, and
surveys, (5) contractor awareness of SCWE principles and expectations,
and (6) processes to help detect and prevent discrimination, or
mitigate perceptions of discrimination.
Backfit Discussion
This RIS requires no action or written response and is, therefore,
not a backfit under 10 CFR 50.109, 70.76, 72.62, or 76.76.
Consequently, the staff did not perform a backfit analysis.
Federal Register Notification
A notice of opportunity for public comment on this RIS was
published in the Federal Register (xx FR xxxxx) on {date{time} .
Comments were received from {indicate the number of commentors by
type{time} . The staff considered all comments that were received. The
staff's evaluation of the comments is publicly available through the
NRC's Agencywide Documents Access and Management System (ADAMS) under
Accession No. ML042800027.
Small Business Regulatory Enforcement Fairness Act of 1996
The NRC has determined that this action is not subject to the Small
Business Regulatory Enforcement Fairness Act of 1996.
Paperwork Reduction Act Statement
This RIS does not request information collections and, therefore,
is not subject to the requirements of the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). 44 U.S.C. 3501 et seq.).
Attachment 1: Establishing & Maintaining a Safety Conscious Work
Environment
Background
In July 1993, the Nuclear Regulatory Commission's Executive
Director for Operations directed that a team reassess the NRC's program
for protecting allegers against retaliation. The team evaluated the
process that was in place in 1993 and sought comments from other NRC
offices, other Federal agencies, licensees, former allegers and the
public. One recommendation from the 1993 effort was the development of
an agency policy to emphasize that licensees and their contractors are
expected to achieve and maintain a work environment which is conducive
to the reporting of concerns without fear of retaliation.\2\
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\2\ ``Reassessment of the NRC's Program for Protecting Allegers
Against Retaliation, NUREG 1499, January 1994.''
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On May 14, 1996, the NRC issued a policy statement \3\ to express
the Commission's expectation that licensees and other employers subject
to NRC authority will establish and maintain safety-conscious
environments in which employees feel free to raise safety concerns,
both to their management and to the NRC, without fear of retaliation.
Licensees, contractors, subcontractors, and other employers in the
nuclear industry are responsible for maintaining a safety conscious
work environment (SCWE). This policy statement is applicable to the
NRC-regulated activities of all NRC licensees, certificate holders, and
their contractors and subcontractors.
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\3\ ``Policy Statement for Nuclear Employees Raising Safety
Concerns Without Fear of Retaliation,'' Federal Register Notice May
14, 1996, (Volume 61, Number 94).
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In April 2000, the Nuclear Regulatory Commission's Executive
Director for Operations chartered the Discrimination Task Group (DTG)
to evaluate issues associated with matters covered by the NRC's
employee protection standards, including SCWE and SCWE training for
managers--the subject of a petition for rulemaking, PRM-30-62,
submitted on August 13, 1999. The DTG
[[Page 61054]]
recommendations \4\ were provided to the Commission in September 2002.
In a March 26, 2003, staff requirements memorandum,\5\ the Commission
directed the staff, in consultation with stakeholders, to develop
further guidance that identifies best practices for encouraging a SCWE.
On February 19, 2004, the staff met with stakeholders to discuss an
expanded outline of best practices prepared by the staff based on the
guidance contained in the 1996 policy statement. Comments on the
outline were also solicited in a February 12, 2004, Federal Register
notice. The comments that were received during the meeting and in
response to the Federal Register notice were considered in preparing
this guide.
---------------------------------------------------------------------------
\4\ SECY-02-0166, ``Policy Options and Recommendations for
Revising the NRC's Process for Handling Discrimination Issues,''
September 12, 2002.
\5\ Staff Requirements--SECY-02-0166--``Policy Options and
Recommendations for Revising The NRC's Process for Handling
Discrimination Issues'', March 26, 2003.
---------------------------------------------------------------------------
Introduction
The guidance in this document is intended to supplement existing
information that was communicated in the 1996 policy statement. The
supplemental elements of a SCWE summarized in this document were
developed using information obtained from reactive inspections of
problematic licensee programs, reviews of successful progressive SCWE
programs, and insights obtained during discussions with nuclear
industry professionals, including individuals who provide training to
the industry on the subject and attorneys who have represented
licensees and whistleblowers in proceedings.
The NRC recognizes that some of the practices outlined in this
guidance may not be practicable or appropriate for every NRC licensee
or contractor, depending on the existing work environment and/or the
size, complexity, and hazards of the licensed activities. In addition,
practices not included in this guidance may be effective in
establishing and maintaining a SCWE. The NRC staff emphasizes that
licensees are responsible for establishing and maintaining a SCWE and
that implementation of this guidance may not improve a SCWE without
additional efforts by site management. However, the NRC believes that
the elements in this guidance could be helpful to NRC licensees and
their contractors when developing or enhancing existing SCWE programs,
or when attempting to identify and correct potential problems in a
program.
Elements of a Safety Conscious Work Environment
Effective Processes for Problem Identification and Resolution
Effective processes for problem identification and resolution are
essential to ensuring the safe use of nuclear materials and operation
of facilities. The following guidance discusses attributes of the work
environment that encourage individuals to look for and articulate
safety concerns and effectively and efficiently address and resolve the
concerns. The approach taken to develop the SCWE and to implement the
appropriate processes described below will depend on several factors,
including the size of the licensee, applicant, or contractor.
A. Employees Are Encouraged To Raise Safety Concerns
SCWE Policy. A SCWE policy statement which (a) is applicable to
employees and contractors, (b) asserts that it is everyone's
responsibility to promptly raise concerns, and (c) makes clear that
retaliation for doing so will not be tolerated helps establish a SCWE
and helps communicate senior management's expectations for maintaining
it. In addition, the policy may include:
A statement that, to the extent appropriate, employees are
allowed and encouraged to use work hours to report concerns;
Sanctions for retaliation by supervisors, managers, or
peers;
Expectations for management behavior that fosters employee
confidence in raising concerns;
Information on the various avenues available for raising
concerns;
The rights of employees to raise concerns externally; and
A commitment to provide SCWE training.
SCWE Training. SCWE training for managers, supervisors, and
employees helps reinforce the principles outlined in the licensee's
SCWE policy. The training given to managers and employees should
include applicable laws, regulations and policies underlying SCWE
expectations.
Managers and employees should know what ``protected
activities'' are, besides raising safety concerns.
The term ``protected activity'' has been broadly interpreted by the
Department of Labor and the U.S. Courts. A protected activity is
defined by NRC regulation as including, but not limited to:
[cir] Providing the Commission or employer information about
alleged or possible violations of the Atomic Energy Act, the Energy
Reorganization Act, or requirements imposed under either statute;
[cir] Refusing to engage in any practice made unlawful under either
statute or the requirements, if the employee has identified the alleged
illegality to the employer;
[cir] Requesting the Commission to institute action against the
employer for the administration or enforcement of these requirements;
[cir] Testifying in any Commission proceeding, or before Congress,
or at any Federal or State proceeding regarding a provision of either
statute;
[cir] Assisting or participating in, or being about to assist or
participate in, these activities.
Managers and employees should also know what an ``adverse
action'' is. An ``adverse action'' is generally defined as an adverse
change of the terms, conditions, or benefits of the employee's work.
Adverse employment actions may include changes in employment status,
regardless of whether the individual's pay is affected, and threats to
employment.
They also need to know the meaning of ``retaliation''
under the NRC's regulations.
An adverse action is deemed retaliatory if it is taken because the
individual was engaged in a protected activity.
The training given should also include the consequences for
deviations from applicable laws, regulations, and policies underlying
SCWE expectations.
The training should identify appropriate gateways for employees and
contractors to identify concerns (manager, quality assurance programs,
corrective action programs, appeal processes, alternative processes for
raising concerns such as a licensee Employee Concerns Programs or an
ombudsman program, NRC, and DOL). The training should include a
description of how each program works, and the role of the manager in
each program.
The training should include expectations for management behavior.
For example, managers should be expected to make themselves available
to the workforce by various means, including an ``open-door'' policy in
the office and when managers are in the field. Managers also need to be
sensitive to employees' potential reluctance to raise concerns and may
need to protect employees' identity or the identity of others involved.
Basic listening skills, effective ways to seek input, and
[[Page 61055]]
expressions of appreciation to those who raise concerns are other
behaviors to be encouraged in managers. Managers should be
knowledgeable of and periodically use various media instruments to
communicate their SCWE principles. Management should establish
timeliness goals for responding to concerns, commensurate with safety
significance, and provide periodic updates to the individuals who
identified the concerns. Managers should evaluate the effectiveness of
their responses to determine whether the responses adequately addressed
employees' concerns. Managers should ensure that operational or
maintenance goals do not make supervisors less receptive to safety
concerns, particularly concerns which may result in significant costs
or schedule delays. Finally, training for managers should include
information to help them identify and address signs of a ``chilled
environment,'' that is, an environment in which employees are afraid to
raise safety concerns for fear of retaliation.
Managers who model positive traits of availability, receptiveness,
sensitivity, encouraging communications, timeliness, and responsiveness
associated with a SCWE will promote employee confidence in identifying
and resolving concerns. Managers who have exhibited success in this
area should consider training or mentoring other mangers in an effort
to duplicate the success.
Similarly, expectations for employees' behavior should also be
included in the employees' training. Consider emphasizing the following
employee behaviors during training:
Individual responsibility for reporting concerns;
Clear communication of the concern and confirmation of
understanding with the person receiving the concern;
Willingness to suggest resolutions to concerns and
participate to in their resolution;
Followup to ensure the concern is adequately addressed;
Need for every employee to demonstrate respect for others
who identify concerns.
Initial training of recently hired employees or recently promoted
managers should be conducted as soon as practicable and refresher
training for existing staff should be conducted annually or more
frequently, as determined by the needs and complexity of the
organization. Annual refresher training for employees and managers
should review key points from initial training and include lessons
learned, as appropriate, from successes and/or problem areas.
SCWE Incentive Programs. An incentive program can be developed
which provides recognition and rewards for individual and team efforts
in identifying and/or resolving safety issues. In addition,
implementation of site-wide bonus and incentive programs which reflect
safety objectives over production goals may also encourage reporting of
safety concerns. However, some care should be taken to ensure that
incentive programs do not inadvertently discourage reporting concerns
(e.g., some employees may not want recognition).
Employee errors can have a detrimental effect on safety and efforts
should be made to reduce the frequency and significance of errors. An
environment that is conducive to the self-reporting of errors will
allow errors to be identified more quickly and can reduce the potential
significance of some errors. While it is important to hold employees
accountable for their errors, licensee personnel management practices,
to the extent practicable, should consider that actions against
personnel who self-report errors can, in some circumstances, discourage
employees from raising concerns, near misses, etc. Consider using self-
identification and prompt, effective corrective actions as mitigating
circumstances for consideration when addressing personnel matters
involving self-identified errors.
B. Management Is Promptly Notified of Concerns
Aside from the practices discussed above concerning policies,
training, and incentive programs designed to create a work environment
where employees feel free to raise safety concerns without fear of
retaliation, there are other behaviors and processes which may help
employees promptly identify and notify management of concerns.
Employees and management that demonstrate an open and questioning
attitude by asking ``why'' and ``what if'' type questions help to
ensure concerns are promptly identified. Processes for identifying
concerns should be accessible and user-friendly. A corrective action
program which is flexible in its use of paper forms and/or terminals,
conveniently placed throughout the facility, also helps ensure prompt
notification of safety concerns. An accessible and approachable
management team further motivates employees to report concerns,
including communications that ensure an understanding of the concerns
prior to their proposed resolution and inspection. As appropriate,
employees should be allowed and encouraged to spend needed work hours
to report concerns.
C. Concerns Are Promptly Prioritized and Reviewed
Safety should be a primary factor in the concern prioritization
scheme and in determining the breadth and depth of the evaluation.
Effective communication plans should ensure the sharing of information
between affected departments so that the potential impact of the
identified concerns on safety can be appropriately assessed. In
addition, management and employees should develop expectations
concerning timeliness to complete the evaluation and resolution of
issues. The process for screening issues should include a review for
operability and reportability as applicable. For significant conditions
adverse to quality, the evaluation should be sufficient to identify the
root and contributing causes of the issue. In addition, the root cause
analysis should address both the extent of the condition and the cause
of the issue.
D. Concerns Are Appropriately Resolved
Timeliness of the corrective actions should be commensurate with
the safety significance of the issue. Processes should be in place to
ensure that appropriate actions are taken in response to all conditions
adverse to quality. For significant conditions adverse to quality,
corrective actions should be taken to address the root causes,
contributing causes, and the extent of the condition caused by the
identified concern.
E. Timely Feedback Is Provided to the Concerned Individual
Timely feedback should be provided at appropriate points during the
concern resolution process. The individual receiving the information
may need to discuss the concern with the employee raising the concern
in order to understand the issue and its safety significance.
Additional feedback may be necessary during the evaluation when it is
apparent that resolution may take longer than anticipated. When the
evaluation is complete, it is important to followup with the concerned
employee to share proposed actions to address the issue, if
appropriate. The most effective feedback process is one which is
sufficiently flexible to permit a concerned employee who wants
anonymity to obtain feedback.
[[Page 61056]]
F. Appeal Process for Concerns
An appeal process to ensure that issues were thoroughly addressed
(e.g., differing professional opinion or alternative dispute resolution
processes) can provide added assurance that concerns are appropriately
resolved.
G. Self-Assessments of Problem Identification & Resolution (PI&R)
Processes
It is a good practice to periodically evaluate the adequacy and
timeliness of responses, as well as the satisfaction of the concerned
individual with the response and process. In addition, a self-
assessment should address whether employees feel free to raise issues
using the various processes employed by the licensee and whether these
processes are viewed as effective, and why or why not. An assessment
should include an appraisal of the effectiveness of the root cause
analyses for significant issues and the effectiveness of associated
corrective actions. Management should have a plan to promptly review
the findings of such self-assessments and implement appropriate
corrective actions.
H. An Alternative Process to Line Management
To address the situation where an individual wishes to raise a
concern to someone other than their management or through the
corrective action program, an alternative process, such as an employee
concerns program, can be useful. Given the nature of many of the issues
one may wish to raise outside of line management, such a process should
ensure identity protection and/or anonymity to the extent appropriate.
Such an alternative process should be accessible in multiple ways
(e.g., walk-ins, hot lines, drop boxes) to the extent practical, given
the size of the organization. In considering the physical location of
the personnel operating the alternative process, one should consider
both their accessibility to the workforce and their visibility. An
overly visible office may not allow discreet visits. Personnel training
programs, advertising posters, and facility news articles help provide
notification of the process. Like concerns brought to the corrective
action program, concerns brought to the alternative program must
receive appropriate operability and reportability reviews and be
properly prioritized using safety as a primary factor for determining
the breadth, depth, and timeliness of the evaluation. While independent
from line organizations involved in the concerns, the process is most
effective if the personnel doing the evaluations are directly
accountable to senior management. Senior management provides
appropriate support and resources, including staffing and access to
necessary documents and materials to conduct inspections. The process
should provide timely feedback on the status and resolution of concerns
and status reports to senior management with analyses of program data
and observations.
Tools To Assess the SCWE
Information gathered from the following tools should be considered
for program enhancements, training enhancements, coaching and
counseling opportunities, organizational changes, and survey topic
suggestions. As with the processes for problem identification and
resolution, discussed above, the choice of tools and their usefulness
will depend on several factors, including the size of the licensee,
applicant, or contractor, and the complexity and hazards of the
licensed activities.
A. Lessons Learned Evaluations
It may be useful to periodically evaluate information from
pertinent organizations and processes which may contribute to or
negatively affect the SCWE to identify enhancements or adjustments to
the organizations and processes. The organizations and processes with
pertinent information may include the primary process for raising
concerns (e.g., correction action program), an alternative process for
raising concerns (e.g., employee concerns program, or ombudsman), human
resources (regarding work environment concerns, etc.), legal counsel
(regarding Department of Labor files, etc.), and/or regulatory affairs
(regarding NRC findings or observations). Discussions about specific
documentation or events should take into consideration privacy and
attorney-client restrictions. Lessons learned from external
organizations can also be useful
B. Benchmarking
Participation in applicable industry forums or peer-group
assessments of other SCWE programs where ideas and practices are
exchanged and various SCWE elements compared can also provide valuable
insights.
C. Performance Indicators
Parameters that help indicate the effectiveness of the SCWE
training and problem identification and resolution processes should be
identified and monitored. For example, the number and trend of NRC
allegations \6\ (available only for large licensees) compared to the
number and trend of internally raised concerns may be an indication of
employee willingness to raise concerns internally. Similarly, the
percent of anonymous concerns raised may indicate employee willingness
to raise concerns without fear of retaliation.
---------------------------------------------------------------------------
\6\ Although the NRC makes statistical information regarding
allegations publicly available and available to some licensees, this
information does not include information that could be used to
identify a concerned individual who has raised their concern to NRC.
---------------------------------------------------------------------------
Licensee effectiveness in preventing retaliation claims may be
indicated by the number and trend of NRC retaliation allegations
(available only for large licensees) compared to the number and trend
of internally raised retaliation concerns.
The percent of employees with a questioning attitude and a
willingness and ability to raise safety concerns may be indicated by
comparing the number of risk-significant concerns that are self-
revealed, self-identified, or externally identified by INPO, NRC, OSHA,
etc., to the total number of concerns.
Finally, the backlog and age of concerns may indicate the
effectiveness of processes for resolving concerns.
No single indicator is sufficient in itself to identify weaknesses
in the SCWE, nor are there absolute measurements that indicate an
unhealthy environment. Nonetheless, monitoring the trends in various
characteristics of the SCWE with performance indicators like those
mentioned above may provide insights into the strengths and weaknesses
of the SCWE at a site.
D. Survey and Interview Tools
Survey instruments and interview questionnaires implemented by
organizations independent of the groups being surveyed or interviewed
can be useful tools and complement other tools used to assess the SCWE.
Pre-survey or pre-interview communications are a very important
part of such tools. Communications with the workforce prior to the
implementation of the survey or interview should include a request for
participation, a statement of the need for input, a promise to protect
participants' identity, the intended use of the gathered information,
and a promise to share the results with the workforce.
Regular employee business hours should be made available to conduct
surveys or interviews.
The scope of SCWE surveys should include the following:
[[Page 61057]]
Awareness of company policies and practices with regard to
raising safety concerns and avenues available for raising concerns;
Management behaviors encouraging the workforce to raise
safety concerns;
Workers' willingness to raise safety concerns;
Effectiveness of the processes available (normal and
alternative) for raising concerns;
Management's ability to detect and prevent retaliation for
raising safety concerns.
Space should be provided on surveys for written comments.
Survey or interview follow-up action plans should be developed to
address findings that are specific to work groups or generic to the
facility. In addition, management should commit to share the results
with the workforce and share action plans to address findings. The
results of surveys or interviews may indicate employee beliefs,
attitudes, and satisfaction with key SCWE attributes, as well as ways
to improve the SCWE.
E. Direct Observations
Direct observations of individuals' behavior provides information
regarding the effectiveness of any SCWE training. Management behaviors
observed may indicate whether a supervisor is receptive to concerns and
supports and rewards employees for raising concerns. Direct observation
of employees in the work environment can provide valuable insights into
the employees' questioning attitude and willingness to challenge
perceived unsafe behavior.
F. Exit Interviews and Surveys
Exit interviews and surveys, conducted to facilitate the
identification of safety issues from exiting employees, provide an
opportunity to capture concerns an individual may not have been
comfortable raising while working at the facility. These activities
should include follow-up mechanisms for exiting employees who want to
be informed of the resolution of their concerns. Employees' identities
should be protected.
G. 360-Degree Appraisals
Consideration should be given to the implementation of a ``360-
degree'' appraisal program, where employees are asked to provide
feedback on manager SCWE behavior.
Improving Licensee Contractor Awareness of SCWE Principles
The Commission's longstanding policy is to hold its licensees
responsible for compliance with NRC requirements, even if licensees use
contractors for products or services related to NRC-regulated
activities. Thus, licensees are responsible for ensuring that their
contractors maintain an environment in which contractor employees are
free to raise concerns without fear of retaliation. In considering
whether enforcement action should be taken against licensees for the
actions of their contractor, the NRC considers, among other things, the
extent and effectiveness of the licensee's involvement with and
oversight of the contractor's environment for raising concerns.
A. Communicating Licensee SCWE Expectations to Contractors
Licensee SCWE expectations of contractor responsibilities as they
relate to creating and maintaining a SCWE should be communicated to
contractors providing components, equipment, materials, or other goods
and services related to NRC-regulated activities. It should be the
licensee's expectation that the contractors and their subcontractors
are aware of applicable regulations. Furthermore, a licensee may want
to communicate to its contractors and subcontractors that the licensee
expects them to demonstrate that either an effective program exists
that prohibits discrimination against contractor employees for engaging
in protected activity and fosters a SCWE, or they adopt and comply with
the licensee's SCWE program for their employees.
B. Licensee Oversight of Contractor SCWE Activities
Aside from communicating its SCWE-related expectations to their
contractors, licensees may wish to oversee contractor SCWE-related
activities. Such oversight may include:
Reviewing contractor programs and processes to prohibit
discrimination and foster a SCWE;
Assessing the contractor management's commitment to SCWE
principles through document review or behavioral observations;
Reviewing contractor training, both for content and for
effectiveness;
Monitoring the contractor's actions to address concerns,
such as reviewing contractor investigations to determine the need to
conduct independent licensee investigations;
Evaluating actions, if any, the contractor takes to
mitigate the potential impact of employment decisions or organizational
changes on the SCWE.
C. Licensee Management Involvement in Contractor Cases of Alleged
Discrimination
Given that the SCWE is most challenged when changes are made to the
employment conditions of the workforce, it can be very beneficial to
licensees to monitor such changes when proposed or executed by the
contractor. Licensee oversight in this area might include evaluating
contractor processes for making changes to employment conditions, such
as disciplinary policies or reduction-in-force plans, to ensure the
processes are well-defined, defensible, and communicated to the
workforce in advance of their implementation.
Furthermore, licensee management should evaluate contractor-
proposed changes to employment conditions to ensure the proposed
changes follow defined processes and are nonretaliatory. The licensee
can also assess whether the contractor has taken into consideration the
potential effect that their actions might have on the SCWE, and, if
appropriate, actions to mitigate the impact.
Finally, contractor changes to employment conditions that are
alleged to be or are likely to be perceived as retaliatory should be
reviewed to ensure the changes are not retaliatory or would otherwise
effect the SCWE adversely.
D. Contractor SCWE Training
Contractor SCWE training can be provided by the contractor or
licensee. As with the training given to licensee employees, the
contractor training should cover the laws, regulations, and policies
underlying the licensee's SCWE expectations; the licensee's governing
SCWE policy; the avenues available to contractor staff to raise
concerns; and the licensee's expectations for contractor management and
employee behavior regarding raising safety concerns. The contractor
training should also include an explanation of licensee contractual
rights to oversee the contractor's SCWE. Training should be conducted
during business hours.
Involvement of Senior Management in Employment Actions
Management should ensure that programs and processes involving
changes to employment conditions, such as disciplinary policies or
reductions-in-force plans, are well-defined, defensible, and
communicated to the workforce prior to their implementation. An
effective way for senior licensee management to prevent retaliatory
actions by their supervisory staff is to review proposed employment
[[Page 61058]]
actions, such as those above an oral reprimand, before the actions are
taken to determine whether any of the factors of retaliation are
present.
The factors of retaliation are as follows:
Protected activity--Has the individual against whom the
action is being taken engaged in a protected activity?
Adverse action--Is an adverse employment action being
proposed?
Licensee or contractor knowledge of protected activity--
Such knowledge can be attributed to other than the individual's direct
supervisor.
Relationship between the adverse action and the protected
activity--Is there evidence that the adverse action is being proposed
because of the protected activity?
Senior management review of such employment actions should ensure
that programs or processes are being followed to ensure actions are
well-founded and nonretaliatory. In addition, the review should ensure
that the proposed action comports with normal practice within the
limits allowed by the defined process and is consistent with actions
taken previously. The review should assess whether the supervisor
requesting the action exhibits any sign of unnecessary urgency. The
employee's prior performance assessments and the proposed action should
be consistent or inconsistencies should be justified and documented.
Finally, an assessment should be done to determine what, if any,
effect the employment action may have on the SCWE. If management
determines that the action, despite its legitimacy, could be perceived
as retaliatory by the workforce, mitigating actions should be
considered to minimize potential chilling effects on raising safety
issues.
Such mitigating actions may include (1) the use of holding periods
during which the proposed employment action is held in abeyance while
further evaluations are completed; (2) communicating with the workforce
about the action being taken, with appropriate consideration of privacy
rights; (3) reiterating the SCWE policy; and (4) explaining the action
to the affected employee(s) and clearly articulating the nonretaliatory
basis for the action. After an employment action is taken, management
should initiate a review of the facts and, if warranted, reconsider the
action that was taken. If retaliation is alleged, the licensee should
assure that the appropriate level of senior management is involved in
efforts to minimize a potential chilling effect that the employment
action may have on raising safety issues.
Definitions
Adverse action--An action initiated by the employer that
detrimentally affects the employee's terms, conditions, or privileges
of employment. Such actions include but are not limited to termination,
demotion, denial of a promotion, lower performance appraisal, transfer
to a less desirable job, and denial of access.
Alternative dispute resolution (ADR)--Refers to a number of
processes, such as mediation and facilitated dialogues, that can be
used to assist parties in resolving disputes.
Corrective action program (CAP)--A formal system for issues that
may require remedial action that are raised by employees that tracks
issues from their identification through evaluation and resolution. The
issues are usually prioritized according to the relative safety
significance.
Differing professional opinion (DPO)--A formal alternative process
which provides an avenue of appeal for an employee to disagree with a
position taken by management.
Employee concerns program (ECP)--An alternative process to line
management and the CAP for employees to seek an impartial review of
safety concerns. Many ECPs handle a variety of concerns and may act as
brokers seeking resolution on behalf of the employees.
Hostile work environment--An intentional discriminatory work
environment that is either pervasive and regular or acute but severe
and detrimentally affects the employee because of protected activity.
Memorandum of understanding (MOU)--A written agreement which
describes how organizations, offices, or agencies will cooperate on
matters of mutual interest and responsibility.
Performance indicators (PI)--A series of predetermined measured
items which usually provide managers with insight into what may be
occurring within an organization and give an early sign of problems
that, if acted upon, could relieve stress within an organization.
Protected activity--Includes initiating or testifying in an NRC or
DOL proceeding regarding issues under the NRC's jurisdiction,
documenting nuclear safety concerns, the internal or external
expression of nuclear safety concerns, and refusing to engage in any
practice made illegal under the Atomic Energy Act or the Energy
Reorganization Act if the employee has identified the alleged
illegality to the employer.
Safety conscious work environment (SCWE)--An environment in which
employees are encouraged to raise safety concerns both to their own
management and to the NRC without fear of retaliation.
Dated at Rockville, Maryland, this 7th day of October, 2004.
For the Nuclear Regulatory Commission.
Francis M. Costello,
Acting Chief, Operating Reactor Improvements, Division of Regulatory
Improvement Programs, Office of Nuclear Reactor Regulation.
[FR Doc. 04-23005 Filed 10-13-04; 8:45 am]
BILLING CODE 7590-01-P