Nuclear Employee Safety Concerns: Allegation System Offers Better
Protection, but Important Issues Remain (Letter Report, 03/31/97,
GAO/HEHS-97-51).

Pursuant to a congressional request, GAO provided information on the
Nuclear Regulatory Commission's (NRC) and Department of Labor's
implementation of legislation pertaining to the protection of nuclear
power industry workers who raise health and safety issues, focusing on:
(1) how federal laws and regulations protect nuclear power industry
employees from discrimination for raising health and safety concerns;
(2) the implementation status of recommendations made in recent NRC and
Labor internal reviews and audits of the system for protecting workers;
and (3) the resulting changes to the system.

GAO noted that: (1) NRC has overall responsibility for ensuring that the
nuclear plants it licenses are operated safely, and the Department of
Labor also plays a role in the system that protects industry employees
against discrimination for raising health and safety concerns; (2) the
Atomic Energy Act, as amended, gives NRC responsibility for taking
action against the employers it licenses when they are found to have
discriminated against individual employees; (3) NRC can investigate when
a harassment and intimidation allegation is filed with NRC or when it
receives a copy of a discrimination complaint filed with Labor; (4)
NRC's Office of Enforcement may use the results of the NRC investigation
or a decision from Labor to support enforcement action; (5) in addition,
the Energy Reorganization Act, as amended, authorizes the Secretary of
Labor to order employers to make restitution to the victims of such
discrimination; (6) restitution can include such actions as
reinstatement to a former position, reimbursement of all expenses
related to the complaint, and removal from personnel files of any
adverse references to complaint activities; (7) concerns raised by
employees about a lack of protection under the existing process led to
studies begun by NRC and Labor in 1992; (8) these concerns included the
inordinate amount of time it took Labor to act on some discrimination
complaints and NRC's lack of involvement in cases during Labor's
decision process; (9) in response to recommendations in reports from
these groups, both NRC and Labor have taken actions intended to improve
the system for protecting employees; (10) for example, NRC has
established a senior position to centrally coordinate and oversee all
phases of allegation management, and it has taken other actions to
improve overall management of the system, such as establishing
procedures to improve communication and feedback among employees, NRC,
and licensees; (11) it has also increased its involvement in allegation
cases through several actions, including investigating a greater number
of allegations; (12) while NRC and Labor have been responsive to these
recommendations, other recommendations, which could be implemented
through administrative procedural changes and would further improve the
system, still need to be addressed; (13) in addition, NRC and Labor have
yet to complete action on recommendations requiring statutory and regul*

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  HEHS-97-51
     TITLE:  Nuclear Employee Safety Concerns: Allegation System Offers 
             Better Protection, but Important Issues Remain
      DATE:  03/31/97
   SUBJECT:  Whistleblowers
             Discrimination
             Occupational safety
             Labor-management relations
             Administrative remedies
             Investigations by federal agencies
             Health hazards
             Interagency relations
             Restitution
             Nuclear powerplant safety
IDENTIFIER:  NRC Allegation Management System
             
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Cover
================================================================ COVER


Report to Congressional Requesters

March 1997

NUCLEAR EMPLOYEE SAFETY CONCERNS -
ALLEGATION SYSTEM OFFERS BETTER
PROTECTION, BUT IMPORTANT ISSUES
REMAIN

GAO/HEHS-97-51

Nuclear Employee Safety Concerns

(205314)


Abbreviations
=============================================================== ABBREV

  ALJ - administrative law judge
  ARB - Administrative Review Board
  ERA - Energy Reorganization Act
  NRC - Nuclear Regulatory Commission
  OAA - Office of Administrative Appeals
  OALJ - Office of Administrative Law Judges
  OIG - Office of Inspector General
  OSHA - Occupational Safety and Health Administration
  TVA - Tennessee Valley Authority

Letter
=============================================================== LETTER


B-270675

March 31, 1997

The Honorable John D.  Dingell
Ranking Minority Member
Committee on Commerce
House of Representatives

The Honorable Joseph I.  Lieberman
United States Senate

A nuclear power plant accident could result in severe harm or death
not only for workers but also for thousands of people living in the
surrounding area.  Although the Nuclear Regulatory Commission (NRC)
is directly responsible for monitoring the nation's more than 100
nuclear power plants, as well as over 6,000 individuals and
organizations licensed to possess and use nuclear materials and
wastes,\1 it is physically impossible for NRC inspections to detect
all health and safety hazards.  For this reason, it is critical that
nuclear plant employees feel free to raise health and safety concerns
without fear of retribution. 

Federal laws prohibit retaliation by power plant operators
(licensees) or their contractors against employees who "blow the
whistle" by surfacing health and safety issues.  Protection is
provided as follows:  If discrimination occurs, employees are to
receive restitution and sanctions may be imposed against employers. 
If employees believe the system established by these laws adequately
protects them, they will be more willing to report hazards. 
Similarly, if licensees believe they will receive burdensome
sanctions or other negative consequences when they discriminate
against these employees, they will be unlikely to retaliate and the
atmosphere at their plants will be one in which employees feel free
to raise these concerns. 

You expressed concern that these laws, as they have been implemented
by NRC and the Department of Labor, may not adequately protect
nuclear power industry workers who raise health and safety issues. 
Your concern was based, in part, on problems surfaced in several
recent studies that recommended improvements to the system.  For
these reasons, you asked us to

  -- describe how federal laws and regulations protect nuclear power
     industry employees from discrimination for raising health and
     safety concerns and

  -- determine the implementation status of recommendations made in
     recent NRC and Labor internal reviews and audits of the system
     for protecting workers and assess the resulting changes to the
     system. 

To do our work, we reviewed the provisions of the Energy
Reorganization Act (ERA), as amended, pertaining to protection for
employees who raise health and safety concerns and related
legislation; the Code of Federal Regulations sections pertaining to
processing allegations of discrimination;\2 and pertinent NRC and
Department of Labor internal directives.  We discussed the processes
for protecting these employees with (1) cognizant NRC and Labor
officials in both headquarters and field offices, (2) employees who
had alleged discrimination and filed complaints with NRC and Labor,
(3) managers at three licensees who had been involved in resolving
numerous discrimination allegations, (4) attorneys who had
represented both employees and licensees in these proceedings, and
(5) advocates for both employees and licensees.  We obtained and
analyzed databases on discrimination allegations from all NRC and
Labor offices involved in investigating and resolving these cases. 
We reviewed studies pertaining to allegations issues performed by the
NRC program staff and by the NRC and Labor Offices of Inspector
General (OIG) and obtained information on changes that are being made
to improve the process.  (See app.  I for details of our scope and
methodology.)


--------------------
\1 Another 15,000 individuals and organizations licensed to use
nuclear materials and wastes are regulated by state agencies under
agreements with NRC. 

\2 "Harassment and intimidation allegation" and "discrimination
complaint" are NRC's and Labor's respective terms for what this
report calls discrimination allegations. 


   RESULTS IN BRIEF
------------------------------------------------------------ Letter :1

NRC has overall responsibility for ensuring that the nuclear plants
it licenses are operated safely, and the Department of Labor also
plays a role in the system that protects industry employees against
discrimination for raising health and safety concerns.  More
specifically, the Atomic Energy Act, as amended, gives NRC
responsibility for taking action against the employers it licenses
when they are found to have discriminated against individual
employees.  NRC can investigate when a harassment and intimidation
allegation is filed with NRC or when it receives a copy of a
discrimination complaint filed with Labor.  An NRC review panel
discusses whether an allegation warrants investigation and recommends
the investigation priority.  Once the panel and NRC's Office of
Investigations complete initial inquiries, the Investigations staff,
in coordination with the regional administrator, decides the case's
priority and whether they will do a full investigation.  NRC's Office
of Enforcement may use the results of the NRC investigation or a
decision from Labor to support enforcement action. 

In addition, the ERA, as amended, authorizes the Secretary of Labor
to order employers to make restitution to the victims of such
discrimination.  Restitution can include such actions as
reinstatement to a former position, reimbursement of all expenses
related to the complaint, and removal from personnel files of any
adverse references to complaint activities.  At Labor, an order for
restitution usually comes at the end of a three-stage process:  (1)
an investigation by the Occupational Safety and Health Administration
(OSHA); (2) a hearing before an administrative law judge (ALJ) if the
OSHA determination is appealed; and (3) a review of the recommended
decision by the Administrative Review Board (ARB), which issues the
Secretary of Labor's final decision.  Settlements may occur at any
point in the process and often are made to minimize the cost and time
of continuing a case for both employee and licensee. 

Concerns raised by employees about a lack of protection under the
existing process led to studies begun by NRC and Labor in 1992 and by
a review team established by the NRC Executive Director for
Operations in 1993.  These concerns included the inordinate amount of
time it took Labor to act on some discrimination complaints and NRC's
lack of involvement in cases during Labor's decision process.  In
response to recommendations in reports from these groups, both NRC
and Labor have taken actions intended to improve the system for
protecting employees.  For example, NRC has established a senior
position to centrally coordinate and oversee all phases of allegation
management, and it has taken other actions to improve overall
management of the system, such as establishing procedures to improve
communication and feedback among employees, NRC, and licensees.  It
has also increased its involvement in allegation cases through
several actions, including investigating a greater number of
allegations.  Within Labor, responsibility for two of the three
stages--the initial investigation and the Secretary's final
decision--has been transferred from one organizational unit to
another.  Transfer of responsibility for the initial investigation
from the Wage and Hour Division to OSHA as of February 1997 was part
of an exchange of responsibilities to better use program expertise
and resources, while delegation to ARB of the authority for signing
the final order was expected to improve timeliness.  Additionally, a
backlog of cases that had been awaiting a final decision in the
Secretary's office for an average of 2.5 years--which included 129
discrimination complaints by employees that were based on health and
safety concerns--has been eliminated, as recommended by the Labor
OIG. 

While NRC and Labor have been responsive to these recommendations,
other recommendations, which could be implemented through
administrative procedural changes and would further improve the
system, still need to be addressed.  These recommendations pertain to
overall timeliness of decisions at Labor; an automated system for
tracking both individual allegations and aggregate trends, such as
settlements; and knowledge of whether nuclear plant employees feel
free, given their work environments, to raise health and safety
concerns.  In addition, NRC and Labor have yet to complete action on
recommendations requiring statutory and regulatory changes.  These
include recommendations to reduce the financial burden on workers
with cases pending and to increase the dollar amount of civil
penalties. 


   BACKGROUND
------------------------------------------------------------ Letter :2

NRC is an independent agency of the federal government.  Its five
commissioners are nominated by the president and confirmed by the
Senate, and its chairman is appointed by the president from among the
commissioners.  The current Chairman was sworn in as a commissioner
in May 1995 and became Chairman that July.  NRC's mission includes
ensuring that civilian use of nuclear materials in the United
States--in the operation of nuclear power plants and in medical,
industrial, and research applications--is done with adequate
protection of public health and safety.  NRC carries out its mission
through licensing and regulatory oversight of nuclear reactor
operations and other activities involving the possession and use of
nuclear materials and wastes. 

Because it is impossible for NRC's inspections to detect all
potential hazards, NRC must also rely on nuclear licensee employees
to help identify such problems.  Actions taken to respond to employee
concerns raised in the past have significantly contributed to
improving safety in the nuclear industry.  Although most employee
concerns are raised directly to licensee managers and are resolved
internally by licensees, employees may choose to bring allegations
directly to NRC.  An employee generally raises a concern with NRC if
he or she is not satisfied with the licensee's resolution of the
concern or is not comfortable raising the concern internally. 
Employees may be discouraged from raising these issues internally if
they believe their employer discriminates against those who do so. 
This phenomenon in the working environment is termed the "chilling
effect."

Some observers believe that certain developments in the nuclear power
industry increase the vulnerability of power plants to hazards, which
would increase the importance of employee vigilance in noting and
reporting hazards.  For example, the electrical power industry may
soon face deregulation, which would allow customers to choose a
supplier and create competition in the industry that did not exist
before.  This has led to increased concern by NRC about safety
because of the potential pressure on utilities to minimize operating
costs.  Preparation for deregulation has already resulted in
downsizing at some nuclear plants and the closing of others because
of their comparatively high operating costs.  Furthermore, the
nation's over 100 nuclear power plants are aging (most were built
before 1980), which puts them increasingly at risk for certain kinds
of hazards. 

Labor administers a variety of laws affecting conditions in the
nation's work places, including laws to protect employees who report
work place hazards.  OSHA's responsibilities include investigating
employee discrimination complaints under these laws, including the
ERA.\3 Investigations of employee discrimination cases are performed
by a cadre of about 60 investigators.  ERA cases make up a small
percentage of the investigators' workload. 

In response to complaints by employees who raised health and safety
concerns that they were not being protected from discrimination, NRC
has studied and reported on the employee protection system.  In 1992,
NRC's OIG initiated a review to examine and better understand the
nature of the complaints and the magnitude of this problem.  In a
July 1993 report, the OIG noted that employees who had raised
concerns believed NRC did little to protect them from retaliation or
to investigate in a timely manner their allegations of retaliation.\4
In response to hearings before what was then the Subcommittee on
Clean Air and Nuclear Regulation of the Senate Committee on
Environment and Public Works, the NRC OIG issued a report in December
1993 that found NRC was primarily reactive to harassment and
intimidation allegations and did not have a program to assess the
work environment at licensees' facilities except when serious
problems occurred.\5 On July 6, 1993, NRC's Executive Director for
Operations formed a review team to reassess NRC's process for
protecting against retaliation those employees who raise health and
safety concerns.  The review team solicited input from employees who
had alleged discrimination, licensees, and the public and, in a
January 1994 report,\6

concluded that the existing NRC and Labor processes, as then
implemented, did not provide sufficient protection to these
employees. 

In addition, in a May 1993 report, the Labor OIG referred to the
office responsible for preparing the Secretary of Labor's final
decisions as a "burial ground" for cases on which the Secretary and
other Labor officials did not issue a final decision.  The oldest 26
cases had been pending at this final stage for an average of 7.5
years, and there was a backlog of 178 cases--129 of them involving
complaints under the several laws Labor enforces pertaining to
discrimination of workers who raise health and safety concerns--that
had been in that office for an average of 2.5 years.\7


--------------------
\3 Until February 3, 1997, responsibility for investigating
complaints under a number of such laws, including the ERA, rested
with the Wage and Hour Division in Labor's Employment Standards
Administration. 

\4 NRC, OIG, NRC Response to Whistleblower Retaliation Complaints,
Case No.  92-01N (Washington, D.C:  NRC, July 9, 1993). 

\5 NRC, OIG, Assessment of NRC's Process for Protecting Allegers From
Harassment and Intimidation, Case 93-07N (Washington, D.C.:  NRC,
Dec.  15, 1993). 

\6 NRC, Reassessment of the NRC's Program for Protecting Allegers
Against Retaliation (Washington, D.C.:  NRC, Jan.  7, 1994). 

\7 Department of Labor, OIG, Audit of the Office of Administrative
Appeals, Report No.  17-93-009-01-010 (Washington, D.C.:  Department
of Labor, May 19, 1993). 


   SYSTEM FOR PROTECTING EMPLOYEES
   INVOLVES MULTIPLE STEPS IN TWO
   AGENCIES
------------------------------------------------------------ Letter :3

NRC has the overall responsibility for ensuring that the nuclear
plants it licenses are operated safely.  This entails informing
licensees and individual employees about the discrimination
prohibitions of the law and of the steps an employee can take if he
or she feels unjustly treated, and ensuring that employees are
comfortable raising health and safety concerns.  Once an employee
raises an allegation of discrimination or harassment, however, both
NRC and Labor have roles in processing the allegation.  Under the
Atomic Energy Act, as amended, NRC may take action against the
employers it licenses when they are found to have discriminated
against individual employees for raising health and safety concerns. 
Accordingly, NRC has established a process for investigating
discrimination complaints and, if appropriate, taking enforcement
action against licensees.  The ERA, as amended, authorizes the
Secretary of Labor to order employers to make restitution to the
victims of such discrimination, and Labor has instituted a process
for investigating and adjudicating discrimination complaints.  In
1982, NRC and Labor entered into a Memorandum of Understanding that
recognized that the two agencies have complementary responsibilities
in the area of employee protection. 


      LAWS ESTABLISH SEPARATE
      RESPONSIBILITIES FOR NRC AND
      LABOR
---------------------------------------------------------- Letter :3.1

Under the Atomic Energy Act, NRC has implied authority to investigate
cases in which an individual may have been discriminated against for
raising health or safety concerns, and to take appropriate
enforcement action against licensees for such discrimination.  The
act does not, however, specifically authorize NRC to order
restitution, such as reinstatement or back pay, for an employee who
has been subjected to discrimination. 

It was not until 1978, when the Congress enacted section 211\8 of the
ERA, that statutory remedies were provided for individuals when
discrimination occurs.  Section 211 prohibits employers from
discriminating against employees who raise health or safety issues to
NRC or its licensees and authorizes the Secretary of Labor, after an
investigation and an opportunity for a public hearing, to order
restitution.  According to Labor, restitution can include
reinstatement of the complainant to his or her former position with
back pay, if warranted; award of compensatory damages; payment of
attorney fees; and purging personnel files of any adverse references
to the complaint.  The Secretary is required to complete an initial
investigation within 30 days and issue a final order within 90 days
of the filing of the complaint.  Federal regulations allow for
extensions, which, in effect, waive the 90-day time frame. 

In 1982, NRC issued regulations implementing section 211.  These
regulations notify licensees that discrimination of the type
described in the law is prohibited and incorporate NRC's implied
authority to investigate alleged unlawful discrimination and take
enforcement action, such as the assessment of civil penalties.  The
regulations also require licensees to post notices provided by NRC
describing the rights of employees. 

As part of the Energy Policy Act of 1992, section 211 was amended to
give employees more time to file a complaint, modify the burden of
proof in Labor administrative hearings by requiring the complainant
to show that raising a health and safety concern was a contributing
factor in an unfavorable personnel practice, specifically protect
employees who raise health or safety issues with their employers, and
allow the Secretary of Labor to order relief before completion of the
review process that follows an ALJ finding of discrimination. 


--------------------
\8 Originally enacted as section 210. 


      MEMORANDUM OF UNDERSTANDING
      EXPLAINS HOW LABOR AND NRC
      COORDINATE ACTIVITIES
---------------------------------------------------------- Letter :3.2

NRC and Labor recognized that in view of Labor's complementary
responsibilities, coordination was warranted.  Consequently, Labor
and NRC entered into a Memorandum of Understanding in 1982.  Under
the memorandum, NRC and Labor agreed to carry out their
responsibilities independently, but to cooperate and exchange timely
information in areas of mutual interest.  In particular, Labor agreed
to promptly provide NRC copies of ERA complaints, decisions, and
orders associated with investigations and hearings on such
complaints.  NRC agreed to assist Labor in obtaining access to
licensee facilities. 

Working arrangements formulated to implement the memorandum specified
that NRC will not normally initiate an investigation of a complaint
if Labor is already investigating it or has completed an
investigation and found no violations.  If Labor finds that a
violation has occurred, however, NRC may take enforcement action. 
Normally, NRC considers Labor's actions before deciding what
enforcement action, if any, to take. 


      JOINT PROCESS TO INVESTIGATE
      DISCRIMINATION ALLEGATIONS
      INVOLVES SEVERAL STEPS
---------------------------------------------------------- Letter :3.3

The joint process for investigating discrimination allegations is
shown in figure 1.  A series of steps involving three components in
Labor can lead to restitution for an employee discriminated against
for raising health and safety concerns.  A separate set of steps in
NRC can lead to enforcement action against a licensee who
discriminates. 

   Figure 1:  Joint NRC-Labor
   Process for Action on
   Allegations of Discrimination
   by Nuclear Power Industry
   Employees Who Raise Health and
   Safety Concerns

   (See figure in printed
   edition.)



   (See figure in printed
   edition.)

The three components in Labor's allegation process perform the
following activities.  Settlements between the parties may occur at
any point in this process and are often made to minimize the expense
and time involved for both the employee and the licensee in
continuing a case.  (The actual times for these steps are discussed
in the next section under timeliness standards.)

  -- OSHA:  To receive restitution for being discriminated against by
     a licensee, an employee must file a complaint with OSHA within
     180 days of the alleged discriminatory act.  OSHA must complete
     the initial investigation within 30 days, under the law. 
     However, under Labor procedures, when necessary and preferably
     with the agreement of both parties, the 30-day limit may be
     exceeded.  If either party does not agree with the OSHA
     decision, it may be appealed to Labor's Office of Administrative
     Law Judges (OALJ) within 5 calendar days. 

  -- OALJ:  Within 7 days of the appeal, the ALJ assigned to the case
     is to schedule a hearing.  All parties must be given at least 5
     days notice of the scheduled hearing.  Federal regulations state
     that requests for postponement of the ALJ hearing may be granted
     for compelling reasons.  The ALJ is required to submit a
     recommended decision within 20 days of the hearing. 

  -- Office of the Secretary:  The ALJ's recommended decision is
     automatically reviewed by the ARB within the Secretary of
     Labor's office.\9 Either party may appeal the final Labor
     decision to the appropriate federal court of appeals within 60
     days.  Pursuant to the ERA, a final decision is not subject to
     judicial review in any criminal or other civil proceeding. 

For discrimination allegations filed directly with NRC or Labor, an
NRC review panel, located in each regional office and headquarters,
decides whether to request an investigation by NRC's Office of
Investigations.  The Investigations staff, in coordination with the
regional administrator, decides the case's priority and whether they
will do a full investigation.  If Investigations determines that a
violation occurred, or if a final determination of discrimination is
received from Labor, NRC assesses the violation in accordance with
its enforcement policy, which defines the level of severity and the
appropriate sanction.  Severity levels range from severity level I
for the most significant violations to severity level IV for those of
lesser concern.  Minor violations are not subject to formal
enforcement actions.  One factor that determines the severity of a
discrimination violation is the organizational level of the offender. 
For example, discrimination violations by senior corporate management
would be severity level I, whereas violations by plant management
above the first-line supervisor and by the first-line supervisor
would be severity levels II and III, respectively.  Another factor
that might determine severity level is whether a hostile work
environment existed. 

There are three primary enforcement actions available to NRC:  Notice
of Violation, civil penalty, and order.  The Notice of Violation is a
written notice used to formalize the identification of one or more
violations of a legally binding requirement.  The civil penalty is a
monetary fine.  Orders modify, suspend, or revoke licenses or require
specific actions of the licensee. 


--------------------
\9 Prior to May 1996, ALJs' recommended decisions were reviewed by
the Office of Administrative Appeals, and the final decision was
signed by the Secretary.  Since that time, the final decision has
been signed for the Secretary by the Chairman of the ARB. 


   MANY RECOMMENDATIONS HAVE BEEN
   IMPLEMENTED, BUT SOME IMPORTANT
   ISSUES REMAIN
------------------------------------------------------------ Letter :4

Complaints by current and former nuclear licensee employees about,
among other things, the allegations process led NRC and Labor to
study the system for protecting employees who raise health or safety
concerns.  In response to recommendations and concerns raised in
NRC's January 1994 review team report and NRC and Labor OIG reports,
many changes have been made in an effort to improve the employee
protection system.  Employees we spoke with who had made allegations
of discrimination for raising safety issues generally supported these
changes to improve protection.  However, several recommendations that
could significantly improve protection, and the perception of
protection, for employees have not been implemented. 


      RECOMMENDATIONS IMPLEMENTED
      SHOULD IMPROVE THE SYSTEM
---------------------------------------------------------- Letter :4.1

Many of the implemented recommendations from these studies led to
actions at NRC to improve monitoring of cases, expand communication
with employees about their cases, and increase the agency's
involvement in allegation investigations; they also led to changes at
Labor to improve its timeliness in processing allegation cases. 
These recommendations addressed concerns expressed by many of the
allegers we interviewed. 

Regarding case monitoring, NRC has designated a full-time, senior
official to centrally coordinate allegation information from NRC and
Labor, and oversee the management of and periodically audit the
allegation process at NRC.  NRC established the position of Agency
Allegation Advisor in February 1995, and since then, two rounds of
audits of the allegation process have been completed.  In September
1996, the Agency Allegation Advisor issued the first annual report on
the status of the allegation system, which addressed issues
previously identified through audits and data gathered on
allegations.  These actions give NRC a focal point for gathering and
publishing information on how its allegation process is working and
enable it to recognize problems. 

Some recommendations implemented by NRC should improve communication. 
One of these recommended improving feedback to employees on the
status of their cases.  As of May 1996, new procedures established
time frames for NRC to periodically report case status to employees. 
The procedures required NRC to inform the alleger in writing of the
status of his or her case within 30 days of NRC's receipt of the
allegation, every 6 months thereafter, and again within 30 days of
completing the investigation.  NRC has also established a hotline
through which employees can report problems and issued a policy
statement emphasizing the importance of licensees maintaining an
environment in which employees are comfortable raising health and
safety concerns.  These new procedures address issues allegers raised
with us about not being informed on the status of their cases. 
However, some allegers told us that because the policy statement is
directed only at the licensees' responsibilities for maintaining a
good work environment and does not include specific responsibilities
for NRC, it is not adequate. 

To increase NRC's involvement in the allegation process, the January
1994 study recommended that NRC revise the criteria for selecting
complaints to be investigated in order to expand the number of
investigations.  Before October 1993, NRC had investigated few
discrimination complaints and usually waited for the Labor
Secretary's final decision, which generally took longer than an NRC
investigation, before taking enforcement action.  In October 1993,
NRC Investigations' policy was changed to require that field offices
open a case and conduct an evaluation of all matters involving
discrimination complaints, regardless of Labor's involvement.  In
April 1996, NRC issued a policy statement directing its Office of
Investigations to investigate all high-priority allegations of
discrimination, whether the Labor Secretary's final decision has been
made or not, and to devote the resources necessary to complete these
investigations.  As a result, the number of high-priority
investigations NRC opened has increased significantly.  By applying
the new criteria, the percentage of cases opened that were high
priority increased from 37 percent in May 1996 to 81 percent in July
1996.  These actions should address the dissatisfaction employees
expressed to both NRC's OIG and us about NRC's lack of involvement in
the investigation of cases.  However, NRC has identified a need for
more resources at the Office of Investigations to handle the greater
number of investigations, and as of December 1996, this need had not
been addressed.  Therefore, it is unclear whether the investigations
can be completed as quickly as hoped. 

Labor has also improved its timeliness in processing cases, as
recommended in the Labor OIG's May 1993 report.  Labor has eliminated
a backlog of cases awaiting decision in the Office of the Secretary
and has developed and implemented a management information system to
monitor case activity.  Since these changes were implemented, the
average time for the Secretary's office to decide cases has been
reduced from about 3 years in fiscal year 1994 to about 1.3 years in
fiscal year 1996.  A Labor official told us that as of December 1996,
the average case took only about 4 months to clear the Office of the
Secretary, due partially to the elimination of the backlog. 

In addition, to better use program expertise, Labor has transferred
responsibility for investigation of allegation cases from the Wage
and Hour Division to OSHA, which has a staff with experience
investigating allegations of discrimination against employees who
raise health and safety concerns.  The Assistant Secretary of Labor
for Employee Standards commented that the primary purpose of
reassigning initial investigations from Wage and Hour to OSHA was
part of an exchange of responsibilities.  Prior to the reassignment,
OSHA had responsibility for the employee protection, or
"whistleblower," provisions of certain laws and the staff devoted to
the enforcement of these provisions.  The Wage and Hour Division was
responsible for certain employee protections affecting farm workers
and would be able to make field sanitation inspections as part of its
regular investigations.  These responsibilities were exchanged in
order to better use program expertise and promote effective and
efficient use of resources.  This transfer was effective February 3,
1997. 


      SOME RECOMMENDATIONS NOT
      IMPLEMENTED COULD
      SIGNIFICANTLY IMPROVE
      PROTECTION
---------------------------------------------------------- Letter :4.2

In spite of NRC's and Labor's overall responsiveness to the reports'
recommendations, some recommendations that address concerns raised
not only by the NRC review team but also by other NRC staff, the OIG,
and allegers we interviewed have not yet been implemented.  Some
recommendations, which could be implemented through administrative
procedural changes, could significantly improve the system; these
address timeliness standards, case monitoring, and NRC's knowledge of
the employee environment in licensees' facilities.  Other
recommendations, which require statutory changes or are controversial
as to their effectiveness, have also not been implemented. 


         TIMELINESS STANDARDS
-------------------------------------------------------- Letter :4.2.1

When allegation cases take several years to complete, significant
negative effects accrue.  Lengthy cases increase attorney fees,
prolong the time an employee may be out of work, and have a chilling
effect on other employees.  Under past policies, which provided for
few NRC investigations, long cases delayed NRC's ability to impose
enforcement actions as they waited for Labor decisions.  Some cases
that allegers have filed have continued for over 5 years, and during
that time the employee may be out of work, paying attorney fees, and
exhausting his or her financial resources.  Furthermore, the January
1994 NRC report noted that delays in processing cases at the Office
of the Secretary of Labor had, in some cases, prevented NRC from
taking enforcement action against licensees because the time limits
under the statute of limitations had run out.\10

The Labor OIG report recommended that Labor establish a timeliness
standard for the issuance of Secretary of Labor decisions and conduct
an analysis to determine operational changes and resources necessary
to meet the new standard.  Establishing a standard was intended to
provide a means to objectively measure Labor's performance during the
final step of its process and help meet legal requirements and
customer service expectations.  In September 1995, in its closing
comments on this review, the OIG stated that Labor would need time to
develop data on which to base a realistic timeliness standard and
that the standard would be developed in the future when the data are
available.  A Labor official told us the standard is now being
developed and that Labor expects to have a standard soon, although no
date for implementation has been established.  According to the
Chairman of the ARB, the ARB is continuing to work on putting
procedures in place to collect data that could be used to establish a
standard. 

In addition, the NRC review team report recommended that Labor
develop legislation to amend the law to establish a realistic
timeliness standard for the entire Labor process.  As of December
1996, NRC was drafting legislation for Labor's approval that would
establish a new timeliness standard of 480 days to complete the Labor
process.  This would allow 120 days for the administrative
investigation, 30 days to appeal the decision to the OALJ, 240 days
for the OALJ to recommend a decision, and 90 days for a final
decision from the Secretary.  According to NRC, the intent in
proposing more realistic timeliness standards is that there is more
incentive to try to meet standards that are achievable than those
that normally cannot be met.  These proposals were based on
comparisons with baseline data from investigations done under other
related statutes and proposed legislation considered in the 101st
Congress.  For example, the review team reported that OSHA
investigations under other employee protection statutes took, on
average, 120 days.  Labor officials have indicated that they would
support this legislation. 

Our review of processing times in each of Labor's three offices
showed that meeting the new standards would require a significant
change in how these cases are processed.  For cases processed in
fiscal year 1994 through the first 9 months of fiscal year 1996, the
proposed time frames were not met for all cases in any of the three
offices.  For 164 cases investigated by the Wage and Hour Division
during this period,\11 only 16 percent of the investigations were
completed within the 30 days currently mandated by law and an
additional 46 percent would have met the proposed time frame of 120
days.  (See fig.  2.) These investigations took an average of 128
days, with a range of 1 day to over 2 years, to complete.  OSHA
officials said that during the pilot study for transferring the
initial investigative responsibility to their office from Wage and
Hour, they found it very difficult to meet the 30-day mandate and had
to ask for extensions in several cases. 

   Figure 2:  Percentage of Wage
   and Hour Division
   Investigations Completed Within
   the Current and Proposed
   Statutory Time Frames in Recent
   Years

   (See figure in printed
   edition.)

During this same period, 56 percent of OALJ's recommended decisions
and orders would have met the proposed time frame of 240 days.  OALJ
took an average of 271 days (9 months) to issue 118 recommended
decisions and orders.  The time for these decisions ranged from less
than 30 days to over 3 years.  Currently, there is no time frame
specifically for the OALJ step of the process.  Even though the act
provides for a 90-day time frame for moving from initial
investigation to a final decision, extensions were requested by the
parties in virtually all cases we reviewed.  One reason for this is
that the OALJ hearing is de novo--it essentially starts the process
over again because it does not consider the results of the Wage and
Hour investigation.  In addition, Labor officials told us that these
extensions were necessary to allow additional time for discovery and
review of evidence by legal counsels of both parties in preparation
for the hearing.  In commenting on a draft of this report, Labor's
Chief Administrative Law Judge stated that 240 days is an achievable
goal if the following factors are addressed: 

  -- establishment of a mechanism to extend the time frame in
     appropriate circumstances,

  -- recognition that existing case law conflicts with a strict time
     limit on discovery and hearing, and

  -- availability of adequate staff. 

   Figure 3:  Percentage of OALJ's
   Recommended Decisions Completed
   Within the Proposed Statutory
   Time Frame in Recent Years

   (See figure in printed
   edition.)

For the final step in the process, our data showed significant
improvement in the time it took to obtain decisions from the
Secretary of Labor, but even in the most recent year we analyzed,
only 37 percent would have met the proposed 90-day time frame.  (See
fig.  4.) The average time to decide 217 cases in the Secretary's
office decreased from about 3.3 years in fiscal year 1994 to about
1.3 years (16 months) in fiscal year 1996.  In commenting on a draft
of this report, the Chairman of the ARB noted that the current policy
gives the parties 75 days to file all the briefs.  In most cases, an
extension is requested by at least one of the parties.  Therefore, in
his opinion, a 90-day timeliness standard is unrealistic unless ARB
severely restricts the parties' ability to properly brief the issues
pressed. 

   Figure 4:  Percentage of
   Secretary of Labor Decisions
   Completed Within the Proposed
   Statutory Time Frame in Recent
   Years

   (See figure in printed
   edition.)


--------------------
\10 The government has 5 years from the date a violation occurs to
bring an action to enforce a civil penalty against a licensee.  (See
28 U.S.C.  2462.) Since 1992, NRC's enforcement policy has been to
initiate enforcement action after an ALJ finding of discrimination. 
However, when the ALJ does not decide in favor of the complainant,
but the Secretary's final decision does find discrimination, if NRC
does not find discrimination based on its investigation, NRC has no
reason to take enforcement action until the Secretary's decision has
been issued.  Delays in the Secretary's decisions in such cases have
precluded civil penalties when the Secretary's determination occurred
more than 5 years after the violation. 

\11 Includes 11 investigations performed by OSHA investigators under
a pilot program. 


         MONITORING OF ALLEGATION
         CASES AND TRENDS
-------------------------------------------------------- Letter :4.2.2

Both monitoring of individual cases and monitoring trends in
allegations are important oversight activities.  Monitoring the
individual cases as they progress is a way to determine whether cases
are being resolved in a timely way.  Monitoring trends in allegations
would help NRC's Agency Allegation Advisor in overseeing the system's
effectiveness. 

The NRC report recommended that NRC improve its Allegation Management
System to be able to both monitor allegations from receipt to the
completion of agency action, and to analyze trends.  It could also
help improve agency responsiveness, such as when monitoring reveals
sudden increases in the time for cases to be resolved, and helps
identify licensees who may warrant closer scrutiny, such as a
licensee that shows a sharp increase in the number of cases against
it or settled by it.  NRC agrees with the recommendation and has
implemented a new system in its regional offices and in the two
headquarters offices with direct regulatory oversight, which
officials say will have the capability to track cases through each
step of the process.  However, at the time of our review, the system
did not yet include data from the Offices of Investigations and
Enforcement, nor did it include on-line Labor investigation data. 

Our findings highlight the need for the data tracking system to
include the period of time that a case is at Labor.  For example,
Labor has separate databases and case identifiers at Wage and Hour
and OALJ, and the cases cannot easily be matched.  As a result,
neither Labor nor we can describe the total time it takes cases to be
resolved at Labor.  In addition, of the 217 cases for which the
Secretary of Labor had made a final determination, 22 had no such
decision recorded in NRC files.  While only one of these cases
resulted in a decision of discrimination, this is significant because
NRC's policy is to hold open its enforcement action on complaints
until notified that the Secretary has made a final determination. 
However, without an NRC investigation or an ALJ finding of
discrimination, the 5-year limit on civil penalties could be
exceeded.  NRC officials told us that they have contacted Labor and
requested copies of the 22 decisions to update their files. 

The number of settlements found in our analysis also underscores the
significance of the NRC review team report's recommendation that NRC
should track trends in cases closed with a settlement without a
finding of discrimination.  NRC currently has no systematic way of
knowing the extent to which settlements are made by individual
licensees or when in the process they occur.  Yet, our data showed
that numerous settlements occurred at all steps in the process:  Wage
and Hour settled 22 of its 164 cases; the OALJ recommended settlement
approval for 49 of the 118 cases on which it issued recommended
decisions; and the Secretary of Labor approved settlements in 74 of
the 217 allegations on which final decisions were issued.  Labor's
policy is to attempt to conciliate allegations in every case; only if
conciliation fails does it proceed with a fact-finding investigation. 


         NRC KNOWLEDGE OF WORK
         ENVIRONMENT
-------------------------------------------------------- Letter :4.2.3

NRC acknowledges that employee identification of problems is an
important part of its system to ensure nuclear power plant safety. 
NRC also recognizes that the perception of discrimination may be even
more important than actual findings in terms of affecting employees'
willingness to report health and safety concerns.  Therefore, NRC
needs not only factual findings of discrimination but also a way to
measure employee perception of discrimination. 

NRC's December 1994 OIG report, however, noted that although NRC's
management of discrimination issues focuses on encouraging licensees
to foster a retaliation-free work environment, NRC has no program to
assess licensees' work environments except when a serious problem
such as a discrimination suit has already occurred.  At about the
same time, NRC's review team also concluded that NRC did not have a
quantitative understanding of the number of employees who were
hesitant to raise these kinds of concerns.  Consequently, the review
team commissioned Battelle Human Affairs Research Center to study
methods for credibly assessing employee feelings about raising health
and safety concerns.  The Battelle study recommended a three-part
strategy for development, implementation, and follow-up validation of
the results of a mail-out workforce survey of a sample of nuclear
power plants.  This approach was then reflected in the NRC review
team report's recommendation that NRC develop a survey to assess a
licensee's work environment. 

The review team report's recommendation was prompted, in part, by its
recognition of the limitations of some of the assessments NRC had
done in the past, such as one-on-one interviews of licensee employees
conducted by NRC inspectors.  The problem with having NRC inspectors
conduct such interviews was illustrated by a September 1996
NRC-chartered study\12 of how employee concerns and allegations are
handled at the Millstone power plant.  This study concluded that NRC
inspectors, in general, understated the extent of the chilling effect
at plants and therefore are not qualified to independently detect or
assess the work environment at licensee facilities.  The Millstone
report concluded that NRC's efforts to gain information on the work
environment had not been effective and furthermore cited NRC's
failure to develop a credible survey instrument as one example of the
lack of progress toward this end that has lowered public confidence
in NRC's commitment to improve its performance in addressing employee
concerns. 

Nevertheless, NRC's September 1996 annual report on the status of the
allegation system stated that NRC had decided not to implement the
recommendation to develop a survey instrument.  The report cited a
staff recommendation made in November 1994 to not develop a survey
because of the cost to develop and process it and the expectation
that other actions implemented as a result of the review team report
would yield the needed information on work environment. 

Because employees' feelings about how NRC handles its allegations
process would also affect their willingness to raise health or safety
concerns, the review team report recommended that NRC develop a
standard form and include it with alleger close-out correspondence to
solicit feedback from employees on the way NRC handled their
allegations.  NRC developed the form and conducted a pilot in
December 1995 in which it sent the form to 145 employees; it received
feedback from 44.  It analyzed comments and acted to address concerns
raised.  An NRC official said the agency plans to again send the form
in 1997 to another sample of employees.  After analyzing the 1997
responses, NRC will decide whether to routinely include the form in
all close-out correspondence and thereby fully implement the
recommendation. 

In addition, when a finding of discrimination results from an
administrative investigation at Labor, NRC issues a "chilling effect"
letter asking the licensee to describe actions it has taken or plans
to take to remove any chilling effect that may have occurred.  The
review team and OIG reports both noted that NRC does little follow-up
on the actions reported by licensees in response to these letters. 
This follow-up is necessary not only to verify a licensee's actions
but also to enable NRC to learn the effect of the discrimination
finding on the plant's work environment.  Both reports also noted
that guidance is needed on when additional NRC action may be
necessary if a licensee receives more than one chilling effect letter
over a relatively short period of time because this may indicate a
serious problem at the plant.  NRC has issued guidance that each
chilling effect letter should carry an enforcement number so that it
can be tracked, but systematic tracking is not currently done.  NRC
has not developed guidance on how it will follow up on licensee
actions or on what actions it should take when a licensee receives
multiple chilling effect letters.  NRC officials told us they intend
to fully implement the recommendation to establish follow-up
procedures for chilling effect letters, but they have no schedule for
doing so. 


--------------------
\12 Millstone Independent Review Group, Handling of Employee Concerns
and Allegations at Millstone Nuclear Power Station Units 1, 2, & 3
From 1985 - Present (Waterford, Conn.:  Sept.  1996). 


         RELIEF OF FINANCIAL
         BURDEN
-------------------------------------------------------- Letter :4.2.4

Allegers and agency officials expressed strong concern about the
financial burden on employees in the current protection process. 
They attributed this burden to the extensive time it took to obtain a
final decision, during which the alleger must pay attorney fees and,
in some cases, go without pay. 

One NRC review team report recommendation would provide relief
through a statutory change to provide that Labor defend its findings
of discrimination from the initial investigation at the ALJ hearing
if Labor's decision is appealed by the employer.  The review team
noted that this would avoid the perception that the government is
leaving the employees to defend themselves after being retaliated
against for raising health and safety concerns.  After soliciting
comments on this proposal in the Federal Register in March 1994 to do
by regulation what the recommendation proposed be done by statute,
Labor again stated in a March 26, 1996, letter to NRC that it
supports having this authority.  But Labor also stated that because
of the resources needed to meet this added responsibility, if it is
granted, Labor expects to exercise this authority selectively and
cautiously. 

The NRC review team report also recommended that the law be amended
to allow employees to be reinstated to their previous positions after
the initial investigation finds discrimination, even if the case is
appealed to the OALJ.  Currently, section 211 provides that Labor may
order reinstatement following a public hearing.  As of January 1997,
NRC was drafting legislation that would implement this
recommendation. 

In addition, the review team report recommended that, in certain
cases, NRC should ask the licensee to provide the employee with a
holding period that would maintain or restore pay and benefits until
a finding is issued.  A holding period would basically maintain
current pay and benefits for the period between the filing of a
discrimination complaint and an initial administrative finding by
Labor.  NRC ultimately decided not to require licensees to establish
holding periods.  However, a May 1, 1996, policy statement on
licensees' responsibilities for maintaining a safety-conscious work
environment stated that if a licensee does provide a holding period,
NRC would consider such action as a mitigating factor in any
enforcement decisions if discrimination is found to have occurred. 
Allegers we interviewed generally had mixed responses to the holding
period recommendation.  Although they generally supported the
financial relief that would be provided, some expressed concern that
licensees could misuse the holding period to remove an employee from
operational duties when this is not warranted.  Both the report and
allegers believed safeguards should be established for the proper
implementation of this recommendation.  Licensees also again had
reservations about being required to retain an employee who could
later be found to be justifiably dismissed.  While NRC officials told
us the agency is considering requesting the holding period under some
conditions, the original position not to implement the recommendation
has not changed. 


         INCREASED PENALTIES
-------------------------------------------------------- Letter :4.2.5

The NRC review team report recommended that NRC seek an amendment to
the Atomic Energy Act to increase the civil penalty from $100,000 to
$500,000 a day for each discrimination violation.  The maximum
penalty in effect at the time of the report was $100,000,\13
established in 1980.  This recommendation was meant to make the civil
penalty a more effective deterrent to licensee discrimination.  In
May 1994, NRC ordered a review of the agency's enforcement process,
part of which focused on civil penalty increases in the context of
enforcement.  This review concluded that increasing incentives for
strong self-monitoring and corrective action programs would be better
accomplished by revising the overall civil penalty assessment process
than by raising the penalty amounts and that therefore no increase
was needed.\14

Recommendations made by the review team report to revise the
assessment process were accepted and implemented through agency
directives.  NRC agreed with the report's conclusion and decided not
to seek an increase in civil penalties. 

Allegers and some others we interviewed agreed with the review team
report that a $100,000 penalty was not an effective deterrent.  They
had mixed opinions, however, as to whether even an increase to
$500,000 would be a sufficient deterrent.  Some said the only
sanction that really had an impact on licensees was shutting down a
plant.  Others said that negative publicity had a stronger impact
than a civil penalty. 

The review team report also recommended that NRC make the penalty for
all willful violations\15 equal to the penalty currently reserved for
the most severe violations.  For example, under current procedures,
discriminatory actions by a first-line supervisor are considered
lesser violations, and receive lesser penalties, than violations that
involve a higher level manager, even if they are found to be willful
violations.  For the same reasons cited for not requesting an
increase in civil penalties, NRC decided not to implement this
recommendation. 


--------------------
\13 This amount was raised in November 1996 to $110,000 as a result
of a mandate by the Congress, which adjusts all civil penalties
periodically for inflation (P.L.  104-134). 

\14 NRC, Assessment of the NRC Enforcement Program, NUREG-1525
(Washington, D.C.:  NRC, Apr.  1995). 

\15 According to NRC, the severity level of a violation may be
increased if the circumstances surrounding the matter involve
careless disregard for requirements, deception, or other indications
of willfulness.  In determining the specific severity level of a
violation involving willfulness, consideration is given to such
factors as the position and responsibilities of the person involved
in the violation, the significance of the underlying violation, the
intent of the violator, and the economic or other advantage gained as
a result of the violation.  The level of penalty for various offenses
is established in NRC Enforcement Policy, NUREG 1600, July 1995. 


   CONCLUSIONS
------------------------------------------------------------ Letter :5

The joint NRC and Labor process for resolving allegations of
discrimination by nuclear licensees against employees who raise
health and safety concerns is intended to discourage discrimination,
thereby fostering an atmosphere in which employees feel free to
report hazards.  But it is unrealistic to expect employees to raise
such issues if they believe they may be retaliated against for doing
so, the process for seeking restitution will be expensive and
lengthy, and they will receive minimal attention and support from the
federal government.  In response to these concerns, both NRC and
Labor have acted on OIG and agency recommendations to enhance their
management of nuclear employee discrimination cases.  The resulting
changes should improve monitoring of the process, increase NRC
involvement, and augment licensees' responsiveness to employee
concerns.  However, recommendations that would establish standards
for timely decisions, permit monitoring of individual cases from
start to finish and assessment of overall trends, and enable NRC to
measure the work environment at nuclear plants for raising concerns
have not been implemented. 

Improvements in the timeliness of decisions would not only help
ensure that employees feel more comfortable in reporting hazards and
expedite information to NRC for enforcement actions, but also
decrease the financial burden on allegers.  At this point, it is
unclear whether the time standard recommended by NRC would decrease
that burden sufficiently or whether other recommendations for
decreasing the financial burden would also need to be implemented to
address allegers' concerns.  Nevertheless, establishing and meeting
some standard that prevents cases from languishing for many years
would greatly improve the present system. 

Many changes made by NRC were intended to increase its involvement in
the protection system and to make the agency proactive in its role. 
In order to do this, NRC needs more knowledge of the process than it
has had in the past.  For example, the Agency Allegation Advisor
needs a revised tracking system that will monitor trends so that the
agency can address problems suggested by those trends.  Although this
revised tracking system was recommended over 3 years ago and NRC has
begun its implementation, the system still does not incorporate vital
elements.  These elements include current data on cases in the Labor
process, data on all settled cases, and information on NRC
headquarters inspection and enforcement.  It is crucial that NRC
management follow through to full implementation of this system so
that it can develop trend data for better monitoring and make
better-informed decisions on investigations and enforcement actions. 
Including the Labor data, however, will also require commitment from
Labor as well as NRC, and effective coordination between the two
agencies. 

Because information from employees on health and safety problems is
critical for NRC to ensure public safety, NRC must know whether
employees at nuclear plants are comfortable raising such concerns. 
Determining the existence of a perception is not an easy task and may
require the use of more than one method of gathering information to
obtain such knowledge.  Several methods, including surveying,
developing indicators to flag possible problems, tracking cases and
settlements in individual plants, using feedback forms to find out
how employees believe their allegations have been handled, and
following up on chilling effect letters have been recommended to NRC,
but none of these methods have been implemented to date. 


   RECOMMENDATIONS
------------------------------------------------------------ Letter :6

To improve the timeliness of Labor's allegations processing, we
recommend that the Secretary of Labor establish and meet realistic
timeliness standards for all three steps in its process for
investigating discrimination complaints by employees in the nuclear
power industry. 

To improve NRC's ability to monitor the allegation process, we
recommend that the Chairman, NRC, complete implementation of the NRC
review team's recommendation to establish and operate the revised
Allegation Management System in all organizational components within
NRC.  We also recommend that the Chairman, NRC, and the Secretary of
Labor coordinate efforts to ensure that NRC's Allegation Management
System includes information on the status of cases at Labor. 

To improve NRC's knowledge of the work environment at nuclear power
plants, we recommend that the Chairman, NRC, ensure the
implementation of recommendations to provide information on the
extent to which the environment in nuclear plants is favorable for
employees to report health or safety hazards without fear of
discrimination.  This would include recommendations on tracking and
monitoring allegation cases and settlements, routinely providing
feedback forms in allegation case close-out correspondence,
systematically following up on chilling effect letters, and using a
survey or other systematic method of obtaining information from
employees. 


   AGENCY COMMENTS AND OUR
   EVALUATION
------------------------------------------------------------ Letter :7

In commenting on a draft of this report, NRC's Executive Director for
Operations stated that the report presents an accurate description of
the process for handling discrimination complaints and of NRC's
efforts to improve in this area.  He also provided some specific
concerns and observations and clarified several technical matters in
the draft report.  NRC's comments did not address the recommendations
included in the report.  NRC's comments appear in appendix IV. 

We did not receive comments from the Secretary of Labor on our draft
report.  The Chairman of the ARB, Labor's Chief Administrative Law
Judge, the Assistant Secretary for Employee Standards, and a senior
program official in OSHA did, however, provide comments.  Comments by
these officials addressed the report's recommendations about Labor's
timeliness standards only from the perspective of their individual
offices. 

The Chairman of the ARB stated that the ARB, as a first step in
establishing performance standards, is currently working with union
officials to overcome the concern that tracking the date an attorney
begins work on a case may constitute an attorney time-keeping
requirement.  He expects to resolve this concern soon.  The Chairman
added that the suggested timeliness standard of 90 days for ARB to
review ERA cases is not realistic unless the Board severely restricts
the parties' ability to properly brief the issues presented.  ARB's
comments appear in appendix V. 

Labor's Chief Administrative Law Judge stated that our draft report
appeared to provide a fair assessment of NRC's and Labor's handling
of ERA cases.  He agreed that the suggested timeliness standard of
240 days for ALJs to hear a case and issue a recommended decision is
a reasonable benchmark, but stated that, in designing any legislation
or regulation to implement the benchmark, several factors should be
addressed:  (1) in appropriate circumstances, there must be
provisions to extend the time limit, (2) existing case law conflicts
with a strict time limit on discovery and hearing, and (3) timeliness
standards are only reasonable if the responsible agency has adequate
staff.  He also pointed out that ALJs are currently directed to
provide NRC information on ERA discrimination cases, information on
all ALJ decisions is available on the OALJ Home Page on the World
Wide Web, and, if requested, OALJ will work with NRC to improve its
monitoring program.  OALJ's comments on our draft report appear in
appendix VI. 

The Assistant Secretary of Labor for Employee Standards commented
that the primary purpose of reassigning initial investigations from
the Wage and Hour Division to OSHA was part of an exchange of
responsibilities.  Before the reassignment, OSHA had responsibility
for the employee protection, or "whistleblower," provisions of
certain laws and the staff devoted to the enforcement of these
provisions.  Wage and Hour was responsible for certain employee
protections affecting farm workers and made field sanitation
inspections as part of its regular investigations.  These
responsibilities were exchanged in order to better use program
expertise and promote effective and efficient use of resources.  The
Assistant Secretary also clarified several technical matters in the
draft report.  The Employment Standards Administration's comments on
our draft report appear in appendix VII. 

A senior OSHA headquarters official responsible for overseeing OSHA
investigations of employment discrimination commented that, since
OSHA had only recently been assigned responsibility for conducting
these investigations, our report should state that almost all the
initial Labor investigations discussed were conducted by the Wage and
Hour Division. 

We have considered these comments and revised our report as
necessary. 


---------------------------------------------------------- Letter :7.1

As agreed with your office, we will make no further distribution of
this report until 15 days from the date of this letter.  At that
time, we will send copies to interested congressional committees, the
Secretary of Labor, and the Chairman of NRC.  We will make copies
available to others on request. 

If you have questions about this report, please call me on (202)
512-7014.  Other GAO contacts and staff acknowledgments are listed in
appendix VIII. 

Carlotta C.  Joyner
Director, Education and
 Employment Issues


SCOPE AND METHODOLOGY
=========================================================== Appendix I

To determine the legal protection afforded employees in the nuclear
power industry who claim they have been discriminated against for
raising health or safety concerns, we reviewed the employee
protection provisions of the Energy Reorganization Act (ERA), as
amended, and the Atomic Energy Act of 1954.  We also examined the
legislative history of these provisions.  We examined federal
regulations relating to Labor's handling of employee complaints under
the ERA, and to NRC's protection of employees from discrimination by
licensees.  We also examined the appropriate sections of NRC's and
Labor's procedure manuals and management directives.  We discussed
the provisions of these laws and regulations with NRC officials in
headquarters and NRC regions I, II, and IV and with Labor officials
in headquarters and in the Philadelphia, Atlanta, and Dallas regions. 
Finally, we obtained and examined regional directives for the
management of allegation cases from the three NRC regional offices we
visited. 

We asked NRC and Labor officials, as well as employees who had filed
discrimination complaints, licensees, and attorneys who represented
them, to identify studies of the process for resolving cases of
alleged discrimination.  We reviewed those generally acknowledged to
be the major studies related to the process.\16 We discussed the
status of the recommendations included in these reports with
cognizant officials in Labor and NRC and examined available
documentary support.  We did not independently assess the merit of
specific recommendations made in these reports nor audit actual
agency implementation of the recommendations. 

In order to measure the effects of the recommendations on the
timeliness of the system, we gathered information on cases closed at
each stage of Labor's process between October 1993 and June 1996.  We
chose to begin our analysis with October 1, 1993, since that would
cover the impact of changes made to the process as a result of the
studies we reviewed.  Furthermore, NRC's OIG had already reported on
cases through April 1993.  Specifically, we selected and analyzed the
cases as follows: 

  -- We obtained automated records from the Wage and Hour Division in
     Washington, D.C., on all "whistleblower" cases closed between
     October 1, 1993, and February 28, 1996.  We did not
     independently validate the accuracy or completeness of these
     records.  Since we could not always determine the whistleblower
     laws under which discrimination complaints were filed, we asked
     Labor to contact field personnel to identify the cases filed
     under the ERA.  We later obtained data covering a more recent
     period--March 1, 1996, through June 30, 1996.  We also obtained
     data on 11 ERA cases investigated by OSHA investigators in a
     pilot project during this period. 

  -- We obtained a listing of all ERA cases that had received a
     recommended order between October 1, 1993, and June 30, 1996. 
     We reviewed the timeliness and outcomes of these cases using
     information posted by the Office of Administrative Law Judges on
     the World Wide Web. 

  -- We compiled a listing of all cases that had received a Secretary
     of Labor decision by using information provided by Labor and NRC
     for the same period. 

In addition, we discussed with numerous knowledgeable individuals
issues concerning protection of nuclear power industry employees who
have raised safety concerns.  We spoke with Labor and NRC officials
both in headquarters and in the field who had responsibilities
relevant to the discrimination complaint process.  To obtain the
perspective of employees and licensees, we visited two nuclear power
plants and, at those facilities and elsewhere, spoke with (1) 10
nuclear industry employees who had filed discrimination complaints
with Labor, NRC, or both, including members of the National Nuclear
Safety Network;\17 (2) 8 attorneys who have represented employees and
licensees in the process; (3) officials of 3 nuclear licensees that
have been the subject of numerous discrimination complaints; and (4)
officials of the Nuclear Energy Institute, a nuclear power industry
association. 

We performed our work between January and December 1996 in accordance
with generally accepted government auditing standards. 


--------------------
\16 Studies we reviewed included NRC, Reassessment of the NRC's
Program for Protecting Allegers Against Retaliation (Washington,
D.C.:  NRC, Jan.  7, 1994); Department of Labor, OIG, Audit of the
Office of Administrative Appeals, Report No.  17-93-009-01-010
(Washington, D.C.:  Department of Labor, May 19, 1993); NRC, OIG,
Review of NRC's Allegation Management System, IG/91A-07 (Washington,
D.C.:  NRC, Apr.  3, 1992); NRC, OIG, NRC Response to Whistleblower
Retaliation Complaints, Case No.  92-01N (Washington, D.C.:  NRC,
July 9, 1993); NRC, OIG, Assessment of NRC's Process for Protecting
Allegers From Harassment and Intimidation, Case 93-07N (Washington,
D.C.:  NRC, Dec.  15, 1993); and NRC, OIG, Implementation of
Recommendations to Improve NRC's Program for Protecting Allegers
Against Retaliation, Case No.  96-01S (Washington, D.C.:  NRC, Mar. 
5, 1996). 

\17 The National Nuclear Safety Network is a group of individuals
concerned about the safety of nuclear plants.  Members include
employees who have raised safety concerns and their attorneys, as
well as other interested parties. 


STATUS OF RECOMMENDATIONS IN THE
NRC REVIEW TEAM REPORT
========================================================== Appendix II

This appendix lists the recommendations from NRC's January 7, 1994,
report, Report of the Review Team for Reassessment of the NRC's
Program for Protecting Allegers Against Retaliation, and the agency
action taken on each.  The recommendations have been divided into
three categories:  implemented, partially implemented, and not
implemented.  The recommendations are identified with the same number
used in the NRC report, to allow for cross-referencing. 


   RECOMMENDATIONS IMPLEMENTED
-------------------------------------------------------- Appendix II:1


      RECOMMENDATION II.A-1
------------------------------------------------------ Appendix II:1.1

The Commission should issue a policy statement emphasizing that it is
important for licensees and their contractors to achieve and maintain
a work environment conducive to prompt, effective problem
identification and resolution, in which employees feel free to raise
concerns both to management and to NRC without fear of retaliation


         ACTION
---------------------------------------------------- Appendix II:1.1.1

A final policy statement implementing this recommendation was
published in the Federal Register on May 1, 1996. 


      RECOMMENDATION II.A-2
------------------------------------------------------ Appendix II:1.2

The Commission policy statement proposed in recommendation II.A-1
should include the following: 

  -- licensees should have a means to raise issues internally outside
     the normal process and

  -- employees (including contractor employees) should be informed
     how to raise concerns through the normal processes, alternative
     internal processes, and directly to NRC. 


         ACTION
---------------------------------------------------- Appendix II:1.2.1

The final policy statement implementing this recommendation was
published in the Federal Register on May 1, 1996. 


      RECOMMENDATION II.A-3
------------------------------------------------------ Appendix II:1.3

Regulations in 10 C.F.R.  part 19 should be reviewed for clarity to
ensure consistency with the Commission's employee protection
regulations. 


         ACTION
---------------------------------------------------- Appendix II:1.3.1

A final rule revising 10 C.F.R.  part 19 was issued in February 1996. 


      RECOMMENDATION II.A-4
------------------------------------------------------ Appendix II:1.4

The policy statement proposed in recommendation II.A-1 should
emphasize that licensees (1) are responsible for having their
contractors maintain an environment in which contractor employees are
free to raise concerns without fear of retaliation and (2) should
incorporate this responsibility into applicable contract language. 


         ACTION
---------------------------------------------------- Appendix II:1.4.1

The final policy statement implementing this recommendation was
published in the Federal Register on May 1, 1996. 


      RECOMMENDATION II.B-1
------------------------------------------------------ Appendix II:1.5

NRC should incorporate consideration of the licensee environment for
problem identification and resolution, including raising concerns,
into the Systematic Assessment of Licensee Performance process. 


         ACTION
---------------------------------------------------- Appendix II:1.5.1

The final revised Management Directive 8.6, which was issued on
January 27, 1995, includes consideration of the work environment in
the Systematic Assessment of Licensee Performance process.  However,
an independent agency team that reviewed NRC actions at the Millstone
plant looked at the results of NRC inspections on work environment
and reported that NRC inspectors generally are not qualified to
assess environment and that, therefore, the results of these
assessments were not reliable. 


      RECOMMENDATION II.B-2
------------------------------------------------------ Appendix II:1.6

NRC should develop inspection guidance for identifying problem areas
in the work place where employees may be reluctant to raise concerns
or provide information to NRC.  This guidance should also address how
such information should be developed and channeled to NRC management. 


         ACTION
---------------------------------------------------- Appendix II:1.6.1

NRC Inspection Procedure 40500 was revised accordingly in October
1994. 


      RECOMMENDATION II.B-4
------------------------------------------------------ Appendix II:1.7

Allegation follow-up sensitivity and responsiveness should be
included in performance appraisals for appropriate NRC staff and
managers. 


         ACTION
---------------------------------------------------- Appendix II:1.7.1

The elements and standards in NRC's employee performance appraisals
were revised to implement this recommendation as of October 1995. 


      RECOMMENDATION II.B-5
------------------------------------------------------ Appendix II:1.8

NRC should place additional emphasis on periodic training for
appropriate NRC staff on the role of allegations in the regulatory
process, and on the processes for handling allegations. 


         ACTION
---------------------------------------------------- Appendix II:1.8.1

Refresher training has been required annually since May 1996. 


      RECOMMENDATION II.B-6
------------------------------------------------------ Appendix II:1.9

NRC should develop a readable, attractive brochure for industry
employees.  The brochure should clearly present a summary of the
concepts, NRC policies, and legal processes associated with raising
technical and harassment and intimidation concerns.  It should also
discuss the practical meaning of employee protection, including the
limitations on NRC and Labor actions.  In addition, NRC should
consider developing more active methods of presenting this
information to industry employees. 


         ACTION
---------------------------------------------------- Appendix II:1.9.1

The brochure was issued in November 1996. 


      RECOMMENDATION II.B-7
----------------------------------------------------- Appendix II:1.10

Management Directive 8.8 should include specific criteria and time
frames for initial and periodic feedback to allegers, in order to
measure consistent agency practice. 


         ACTION
--------------------------------------------------- Appendix II:1.10.1

The criteria and time frames were incorporated in Management
Directive 8.8 as of May 1, 1996, and audits have been conducted to
ensure compliance. 


      RECOMMENDATION II.B-9
----------------------------------------------------- Appendix II:1.11

NRC should designate a full-time senior individual for centralized
coordination and oversight of all phases of allegation management as
the Agency Allegation Manager, with direct access to the Executive
Director for Operations, program office directors, and regional
administrators. 


         ACTION
--------------------------------------------------- Appendix II:1.11.1

The position of Agency Allegation Advisor was filled on February 6,
1995, and the Advisor issued the first annual report on the
allegation program to the Executive Director for Operations in
September 1996. 


      RECOMMENDATION II.B-10
----------------------------------------------------- Appendix II:1.12

All program office and regional office allegation coordinators should
participate in periodic counterpart meetings. 


         ACTION
--------------------------------------------------- Appendix II:1.12.1

Three meetings have taken place, and continued annual meetings are
planned. 


      RECOMMENDATION II.B-11
----------------------------------------------------- Appendix II:1.13

The Agency Allegation Manager should conduct periodic audits of the
quality and consistency of review panel decisions, allegation
referrals, inspection report documentation, and allegation case
files. 


         ACTION
--------------------------------------------------- Appendix II:1.13.1

Two rounds of audits have been completed, and audits will be
conducted annually to implement this recommendation. 


      RECOMMENDATION II.B-12
----------------------------------------------------- Appendix II:1.14

Criteria for referring allegations to licensees should be clarified
to ensure consistent application among review panels, program
offices, and the regions. 


         ACTION
--------------------------------------------------- Appendix II:1.14.1

The criteria were clarified in Management Directive 8.8, issued May
1, 1996. 


      RECOMMENDATION II.B-15
----------------------------------------------------- Appendix II:1.15

NRC should periodically publish raw data on the number of technical
and harassment and intimidation allegations (for power reactor
licensees, this should be per site, per year). 


         ACTION
--------------------------------------------------- Appendix II:1.15.1

A report containing these data, Office for Analysis and Evaluation of
Operational Data, Annual Report, FY 1994-95:  Reactors, was issued in
July 1996. 


      RECOMMENDATION II.B-16
----------------------------------------------------- Appendix II:1.16

NRC should resolve any remaining policy differences between the
Office of Investigations and the Office of Nuclear Reactor Regulation
on protecting the identity of allegers (including confidentiality
agreements) in inspection and investigation activities. 


         ACTION
--------------------------------------------------- Appendix II:1.16.1

Alleger protection was defined in the revised Management Directive
8.8 and in the revised NRC policy statement of May 1996, which
implemented the recommendation. 


      RECOMMENDATION II.B-17
----------------------------------------------------- Appendix II:1.17

Regional offices should provide toll-free 800 numbers for individuals
to use in making allegations. 


         ACTION
--------------------------------------------------- Appendix II:1.17.1

A toll-free number was activated on October 1, 1995. 


      RECOMMENDATION II.C-1
----------------------------------------------------- Appendix II:1.18

The Commission should support current consideration within Labor to
transfer section 211 implementation from the Wage and Hour Division
to OSHA. 


         ACTION
--------------------------------------------------- Appendix II:1.18.1

The order to transfer section 211 cases to OSHA was signed by the
Secretary of Labor in December 1996 for implementation on February 3,
1997; NRC supported this change. 


      RECOMMENDATION II.C-3
----------------------------------------------------- Appendix II:1.19

NRC should recommend to the Secretary of Labor that adjudicatory
decisions under section 211 be published in a national reporting or
computer-based system. 


         ACTION
--------------------------------------------------- Appendix II:1.19.1

Office of Administrative Law Judges (OALJ) and Secretary of Labor
decisions are now available on the World Wide Web. 


      RECOMMENDATION II.C-4
----------------------------------------------------- Appendix II:1.20

NRC should take a more active role in the Labor process.  Consistent
with relevant statutes, Commission regulations, and agency resources
and priorities, NRC should normally make available information,
agency positions, and agency witnesses that may assist in completing
the adjudication record on discrimination issues.  Such disclosures
should be made as part of the public record.  NRC should consider
filing amicus curiae briefs, where warranted, in Labor adjudicatory
proceedings. 


         ACTION
--------------------------------------------------- Appendix II:1.20.1

NRC's Executive Director for Operations issued the revised criteria
for use by the staff in October 1995.  Management Directive 8.8,
issued in May 1996, contains revised guidance on this issue. 


      RECOMMENDATION II.C-5
----------------------------------------------------- Appendix II:1.21

NRC should designate the Agency Allegation Manager as the focal point
to assist people in requesting NRC information, positions, or
witnesses relevant to Labor litigation under section 211 (or state
court litigation concerning wrongful discharge issues).  Information
on this process, and on how to contact the NRC focal point, should be
included in the brochure for industry employees (see recommendation
II.B-6). 


         ACTION
--------------------------------------------------- Appendix II:1.21.1

This responsibility was given to the Agency Allegation Advisor
through Management Directive 8.8 as of May 1996. 


      RECOMMENDATION II.C-7
----------------------------------------------------- Appendix II:1.22

NRC should revise the criteria for prioritizing NRC investigations
involving discrimination.  The following criteria should be
considered for assigning a high investigation priority:  (1)
allegations of discrimination as a result of providing information
directly to the NRC; (2) allegations of discrimination caused by a
manager above first-line supervisor (consistent with current
Enforcement Policy classification of severity level I or II
violations); (3) allegations of discrimination where a history of
findings of discrimination (by Labor or NRC) or settlements suggests
a programmatic rather than an isolated issue; and (4) allegations of
discrimination that appear particularly blatant or egregious. 


         ACTION
--------------------------------------------------- Appendix II:1.22.1

Management Directive 8.8, issued in May 1996, implemented this
recommendation. 


      RECOMMENDATION II.C-8
----------------------------------------------------- Appendix II:1.23

NRC investigators should continue to interface with Labor to minimize
duplication of effort on parallel investigations.  Where NRC is
conducting parallel investigations with Labor, Office of
Investigations procedures should provide that its investigators
contact Labor on a case-by-case basis to share information and
minimize duplication of effort.  Labor's process should be monitored
to determine if NRC investigations should be conducted or continued,
or priorities changed.  In that regard, settlements should be given
special consideration. 


         ACTION
--------------------------------------------------- Appendix II:1.23.1

This recommendation was implemented through the Investigation
Procedure Manual, section 3.2.2.10.1. 


      RECOMMENDATION II.C-9
----------------------------------------------------- Appendix II:1.24

When an individual who has not yet filed with Labor brings a
harassment and intimidation allegation to NRC, NRC should inform the
person (1) that a full-scale investigation will not necessarily be
conducted; (2) that Labor and not NRC provides the process for
obtaining restitution; and (3) of the method for filing a complaint
with Labor.  If, after the Allegation Review Board review, the Office
of Investigations determines that an investigation will not be
conducted, the individual should be so informed. 


         ACTION
--------------------------------------------------- Appendix II:1.24.1

Guidance in Management Directive 8.8, as of May 1996, implemented
this recommendation. 


      RECOMMENDATION II.C-10
----------------------------------------------------- Appendix II:1.25

The Office of Investigations should discuss cases involving section
211 issues with the Department of Justice as early as appropriate so
that a prompt Justice declination, if warranted, can allow
information acquired by the Office of Investigations to be used in
the Labor process. 


         ACTION
--------------------------------------------------- Appendix II:1.25.1

The Investigation Procedure Manual, section 8.2.3, implemented this
recommendation. 


      RECOMMENDATION II.C-11
----------------------------------------------------- Appendix II:1.26

The implementation of the Memorandum of Understanding with the
Tennessee Valley Authority (TVA) Inspector General should be
reconsidered following the completion of the ongoing review. 


         ACTION
--------------------------------------------------- Appendix II:1.26.1

The Memorandum of Understanding with TVA was terminated on August 30,
1994. 


      RECOMMENDATION II.D-1
----------------------------------------------------- Appendix II:1.27

For cases that are appealed and result in Labor administrative law
judge (ALJ) adjudication, NRC should continue the current practice of
initiating the enforcement process following a finding of
discrimination by the ALJ.  However, the licensee should be required
to provide the normal response required by 10 C.F.R.  2.201. 


         ACTION
--------------------------------------------------- Appendix II:1.27.1

This recommendation was implemented through a revision to the
Enforcement Policy on December 31, 1994. 


      RECOMMENDATION II.D-2
----------------------------------------------------- Appendix II:1.28

Additional severity level II examples should be added to the
Enforcement Policy to address hostile work environments and
discrimination in cases where the protected activity involved
providing information of high safety significance.  The policy should
recognize restrictive agreements and threats of discrimination as
examples of violations at least at a severity level III.  It should
also provide that less significant violations involving
discrimination issues be categorized at a severity level IV. 


         ACTION
--------------------------------------------------- Appendix II:1.28.1

This recommendation was implemented through a revision to the
Enforcement Policy on December 31, 1994. 


      RECOMMENDATION II.D-5
----------------------------------------------------- Appendix II:1.29

The Enforcement Policy should be changed, for civil penalty cases
involving discrimination violations, to normally allow mitigation
only for corrective action.  Mitigation for corrective action should
be warranted only when it includes both broad remedial action as well
as restitution to address the potential chilling effect.  Mitigation
or escalation for correction should consider the timing of the
corrective action. 


         ACTION
--------------------------------------------------- Appendix II:1.29.1

A final revision of the Enforcement Policy in November 1994
implemented this recommendation. 


      RECOMMENDATION II.D-6
----------------------------------------------------- Appendix II:1.30

For violations involving discrimination issues not within the
criteria for a high priority investigation (see recommendation
II.C-7) citations should not normally be issued nor NRC
investigations conducted if (1) discrimination, without a complaint
being filed with Labor or an allegation made to NRC, is identified by
the licensee and corrective action is taken to remedy the situation
or (2) after a complaint is filed with Labor, the matter is settled
before an evidentiary hearing begins, provided the licensee posts a
notice that (a) a discrimination complaint was made, (b) a settlement
occurred, and (c) if Labor's investigation found discrimination,
remedial action has been taken to reemphasize the importance of the
need to be able to raise concerns without fear of retaliation. 


         ACTION
--------------------------------------------------- Appendix II:1.30.1

The Enforcement Policy was revised on November 28, 1994, to implement
this recommendation. 


      RECOMMENDATION II.D-7
----------------------------------------------------- Appendix II:1.31

In taking enforcement actions involving discrimination, use of the
deliberate misconduct rule for enforcement action against the
responsible individual should be considered. 


         ACTION
--------------------------------------------------- Appendix II:1.31.1

This recommendation was implemented through a revision to the
Enforcement Policy on December 31, 1994. 


      RECOMMENDATION II.E-1
----------------------------------------------------- Appendix II:1.32

Regional administrators and office directors should respond to
credible reports of reasonable fears of retaliation, when the
individual is willing to be identified, by holding documented
meetings or issuing letters to notify senior licensee management that
NRC (1) has received information that an individual is concerned that
retaliation may occur for engaging in protected activities; (2) will
monitor actions taken against this individual; and (3) will consider
enforcement action if discrimination occurs, including applying the
wrongdoer rule. 


         ACTION
--------------------------------------------------- Appendix II:1.32.1

This recommendation was implemented through guidance in Management
Directive 8.8 issued in May 1996. 


      RECOMMENDATION II.E-2
----------------------------------------------------- Appendix II:1.33

Before contacting a licensee as proposed in recommendation II.E-1,
NRC should (1) contact the individual to determine whether he or she
objects to disclosure of his or her identity and (2) explain to the
individual the provisions of section 211 and the Labor process (e.g.,
that it is Labor and not NRC that provides restitution.)


         ACTION
--------------------------------------------------- Appendix II:1.33.1

This recommendation was implemented through guidance in Management
Directive 8.8 issued in May 1996. 


      RECOMMENDATION II.E-3
----------------------------------------------------- Appendix II:1.34

The Commission should include in its policy statement (as proposed in
recommendation II.A-1) expectations for licensees' handling of
complaints of discrimination as follows:  (1) Senior management of
licensees should become directly involved in allegations of
discrimination.  (2) Power reactor licensees and large fuel cycle
facilities should be encouraged to adopt internal policies providing
a holding period for their employees and contractors' employees that
would maintain or restore pay and benefits when the licensee has been
notified by an employee that, in the employee's views, discrimination
has occurred.  This voluntary holding period would allow the licensee
to investigate the matter, reconsider the facts, negotiate with the
employee, and inform the employee of the final decision.  After the
employee has been notified of the licensee's final decision, the
holding period should continue for an additional 2 weeks to allow a
reasonable time for the employee to file a complaint with Labor.  If
the employee files within that time, the licensee should continue the
holding period until the Labor finding is made on the basis of an
investigation.  If the employee does not file with Labor within this
2-week period, then the holding period would terminate. 
(Notwithstanding this limitation on the filing of a complaint with
Labor to preserve the holding period, the employee clearly would
retain the legal right to file a complaint with Labor within 180 days
of the alleged discrimination).  The holding period should continue
should the licensee appeal an adverse Labor investigative finding. 
NRC would not consider the licensee's use of a holding period to be
discrimination even if the person is not restored to his or her
former position, provided that the employee agrees to the conditions
of the holding period and that pay and benefits are maintained.  (3)
Should it be determined that discrimination did occur, the licensee's
handling of the matter (including the extent of its investigation,
its effort to minimize the chilling effect, and the promptness of
providing restitution to the individual) would be considered in any
associated enforcement action.  While not adopting a holding period
would not be considered an escalation factor, use of a holding period
would be considered a mitigating factor in any sanction. 


         ACTION
--------------------------------------------------- Appendix II:1.34.1

An NRC policy statement published in May 1996 implemented this
recommendation. 


      RECOMMENDATION II.E-4
----------------------------------------------------- Appendix II:1.35

In appropriate cases, the Executive Director for Operations (or other
senior NRC management) should notify the licensee's senior management
by letter, noting that NRC has not taken a position on the merits of
the allegation but emphasizing the importance NRC places on a
quality-conscious environment where people believe they are free to
raise concerns, and the potential for adverse impact on this
environment if the allegation is not appropriately resolved;
requesting the personal involvement of senior licensee management in
the matter to ensure that the employment action taken was not
prompted by the employee's involvement in protected activity, and to
consider whether action is needed to address the potential for a
chilling effect; requiring a full report of the actions that senior
licensee management took on this request within 45 days; and noting
that the licensee's decision to adopt a holding period will be
considered as a mitigating factor in any enforcement decision should
discrimination be determined to have occurred. 

In such cases, prior to issuing the letter the employee should be
notified that (a) Labor and not NRC provides restitution and (b) NRC
will be sending a letter revealing the person's identity to the
licensee, requiring an explanation from the company and requesting a
holding period in accordance with the Commission's policy statement. 


         ACTION
--------------------------------------------------- Appendix II:1.35.1

NRC's policy statement and the revision of Management Directive 8.8
in May 1996 implemented this recommendation.  Regarding the 45-day
time limit of this recommendation, although NRC has not established
this requirement in the Management Directive, an official told us the
agency does, in fact, give licensees a time limit within which they
must reply. 


      RECOMMENDATION II.E-6
----------------------------------------------------- Appendix II:1.36

A second investigative finding of discrimination within an 18-month
period should normally result in a meeting between the licensee's
senior management and the NRC Regional Administrator. 


         ACTION
--------------------------------------------------- Appendix II:1.36.1

The Enforcement Manual was revised on December 31, 1994, to include
this wording. 


      RECOMMENDATION II.E-7
----------------------------------------------------- Appendix II:1.37

If more than two investigative findings of discrimination occur
within an 18-month period, NRC should consider stronger action,
including issuing a Demand for Information. 


         ACTION
--------------------------------------------------- Appendix II:1.37.1

The Enforcement Manual was revised on December 31, 1994, to include
this wording. 


   RECOMMENDATIONS PARTIALLY
   IMPLEMENTED
-------------------------------------------------------- Appendix II:2


      RECOMMENDATION II.B-8
------------------------------------------------------ Appendix II:2.1

NRC should develop a standard form to be included with alleger
close-out correspondence to solicit feedback on NRC's handling of a
given concern. 


         ACTION
---------------------------------------------------- Appendix II:2.1.1

NRC developed a feedback form that it sent to a sample of allegers in
December 1995, and it plans to send the form again to another sample
in 1997.  After that survey, the agency will decide whether to
provide feedback forms routinely with close-out correspondence. 


      RECOMMENDATION II.B-13
------------------------------------------------------ Appendix II:2.2

NRC should revise the Allegation Management System to be able to
trend and monitor an allegation from receipt to the completion of
agency action. 


         ACTION
---------------------------------------------------- Appendix II:2.2.1

On November 1, 1996, NRC installed a revised Allegation Management
System in the regional offices.  The system is not yet linked to the
Office of Investigations and Office of Enforcement information
systems, but NRC plans to do this.  Because the system was so
recently installed and is not fully linked, monitoring trends through
the new system has not yet begun. 


      RECOMMENDATION II.B-14
------------------------------------------------------ Appendix II:2.3

Using the Allegation Management System, NRC should monitor both
harassment and intimidation and technical allegations to discern
trends or sudden increases that might justify its questioning the
licensee as to the root causes of such changes and trends.  This
effort should include monitoring contractor allegations--both those
arising at a specific licensee and those against a particular
contractor across the country. 


         ACTION
---------------------------------------------------- Appendix II:2.3.1

As described for recommendation II.B-13, the system was just recently
installed, and more time needs to pass before trends can be tracked
using the new system. 


      RECOMMENDATION II.C-2
------------------------------------------------------ Appendix II:2.4

The Commission should support legislation to amend section 211 as
follows:  (1) revising the statute to provide 120 days from the
filing of the complaint to conduct the Labor investigation, 30 days
from the investigation finding to request a hearing, 240 additional
days to issue an ALJ decision, and 90 days for the Secretary of Labor
to issue a final decision, thus allowing a total of 480 days from
when the complaint is filed to complete the process; (2) revising the
statute to provide that reinstatement decisions be immediately
effective following a Labor finding based on an administrative
investigation; (3) revising the statute to provide that Labor defend
its findings of discrimination and ordered relief in the adjudicatory
process if its orders are contested by the employer (this would not
preclude the complainant from also being a party in the proceeding). 


         ACTION
---------------------------------------------------- Appendix II:2.4.1

Legislation has been drafted by NRC and submitted for Labor's review
and approval before submission to the Congress for (1) and (2).  The
recommendation on Labor's defense of allegers at the ALJ hearing (3)
is awaiting the Secretary's signature, but implementation would be
selective, depending on resource availability. 


      RECOMMENDATION II.C-6
------------------------------------------------------ Appendix II:2.5

NRC should work with Labor to establish a shared database to track
Labor cases. 


         ACTION
---------------------------------------------------- Appendix II:2.5.1

This action was delayed pending the transfer of section 211 duties
from the Wage and Hour Division to OSHA.  The transfer took place on
February 3, 1997, and NRC and OSHA are currently discussing how to
implement this recommendation. 


      RECOMMENDATION II.E-5
------------------------------------------------------ Appendix II:2.6

NRC should usually issue a chilling effect letter if a licensee
contests a Labor area office finding of discrimination and a holding
period is not adopted.  A letter would not be needed if section 211
is amended to provide for reinstatement following a Labor
administrative finding of discrimination.  When a chilling effect
letter is issued, appropriate follow-up action should be taken.  (See
recommendations II.E-3 and II.C-2.)


         ACTION
---------------------------------------------------- Appendix II:2.6.1

A revision to the Enforcement Manual on December 31, 1994, requires
that NRC assign an enforcement number to each chilling effect letter
sent.  Systematic tracking by NRC has been started, but guidance for
follow-up actions and monitoring of trends in plants has not been
issued. 


      RECOMMENDATION II.E-8
------------------------------------------------------ Appendix II:2.7

NRC should consider action when there is a trend in settlements
without findings of discrimination. 


         ACTION
---------------------------------------------------- Appendix II:2.7.1

The Enforcement Manual was revised on December 31, 1994, to implement
this recommendation. 


   RECOMMENDATIONS NOT IMPLEMENTED
-------------------------------------------------------- Appendix II:3


      RECOMMENDATION II.B-3
------------------------------------------------------ Appendix II:3.1

NRC should develop a survey instrument to independently and credibly
assess a licensee's environment for raising concerns. 


         ACTION
---------------------------------------------------- Appendix II:3.1.1

This recommendation will not be implemented, according to NRC's
Annual Report on the Allegations Program, September 1996, because of
disagreement among NRC staff about its effectiveness.  A current
staff proposal, however, contains actions to partially implement the
recommendation. 


      RECOMMENDATION II.D-3
------------------------------------------------------ Appendix II:3.2

The Commission should seek an amendment to section 234 of the Atomic
Energy Act of 1954 to provide for a civil penalty of up to $500,000
per day for each violation.  If this provision is enacted, the
Enforcement Policy should be amended to provide that this increased
authority should usually be used only for willful violations,
including those involving discrimination. 


         ACTION
---------------------------------------------------- Appendix II:3.2.1

This recommendation will not be implemented because NRC believes that
increasing incentives for strong self-monitoring and corrective
action programs would be better accomplished by revising the overall
civil penalty assessment process than by raising civil penalty
amounts. 


      RECOMMENDATION II.D-4
------------------------------------------------------ Appendix II:3.3

Pending an amendment to section 234 of the Atomic Energy Act, the
flexibility in the enforcement policy should be changed to provide
that the base penalty for willful violations involving
discrimination, regardless of severity level, should be the amount
currently specified for a severity level I violation. 


         ACTION
---------------------------------------------------- Appendix II:3.3.1

This recommendation will not be implemented because NRC believes that
increasing incentives for strong self-monitoring and corrective
action programs would be better accomplished by revising the overall
civil penalty assessment process than by raising civil penalty
amounts. 


      RECOMMENDATION II.E-4(3)
------------------------------------------------------ Appendix II:3.4

The Executive Director for Operations or another senior official at
NRC should request, in appropriate cases, that the licensee place an
employee in a holding period as described in the Commission's policy
statement (see recommendation II.E-3). 


         ACTION
---------------------------------------------------- Appendix II:3.4.1

This part of recommendation II.E-4 will not be implemented, according
to NRC's Annual Report on the Allegations Program, September 1996;
however, a staff proposal is being considered that would implement
it. 


STATUS OF RECOMMENDATIONS FROM THE
LABOR OIG'S REPORT, MAY 1993
========================================================= Appendix III

This appendix contains the recommendations and their implementation
status from the Labor OIG's May 1993 report, Audit of the Office of
Administrative Appeals.\18

RECOMMENDATION

The Director of the Office of Administrative Appeals (OAA) should
conduct an immediate review of cases pending in OAA to resolve the
issues that have prevented these cases from being completed and bring
these cases to completion as quickly as possible. 


--------------------
\18 Report No.  17-93-009-01-010 (Washington, D.C.:  Department of
Labor, May 19, 1993).  As previously mentioned, the Office of
Administrative Appeals function is now performed by the
Administrative Review Board in the Department of Labor. 


      ACTION
----------------------------------------------------- Appendix III:0.1

OAA has cleared the backlog of cases, thus implementing this
recommendation. 

RECOMMENDATION

The Director of OAA should establish timeliness standards for OAA's
case processing and the issuance of decisions, which will meet the
requirements of due process, the intent of the Administrative
Procedures Act, and customer service expectations of the Secretary. 


      ACTION
----------------------------------------------------- Appendix III:0.2

Action on this recommendation is pending.  The Director is currently
involved in discussions to obtain agreement on timeliness standards. 

RECOMMENDATION

The Director of OAA should develop and implement management
information systems to include case management and time distribution
data. 


      ACTION
----------------------------------------------------- Appendix III:0.3

The agency has developed and implemented a management information
system for cases. 

RECOMMENDATION

The Director of OAA should conduct analysis to identify operation
changes and resource requirements necessary to achieve and maintain
compliance with the newly established case processing standards and
present that information in OAA's planning and budgeting documents. 


      ACTION
----------------------------------------------------- Appendix III:0.4

Action is pending.  Because timeliness standards have not been
established, resource needs cannot be evaluated. 




(See figure in printed edition.)Appendix IV
COMMENTS FROM THE NUCLEAR
REGULATORY COMMISSION AND OUR
EVALUATION
========================================================= Appendix III



(See figure in printed edition.)



(See figure in printed edition.)



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The following are GAO's comments on the Nuclear Regulatory
Commission's letter dated February 21, 1997. 

GAO COMMENTS

1.  Wording revised. 

2.  Figure revised as suggested. 

3.  Discussion of when civil penalties are imposed was deleted from
this section. 

4.  Comment not incorporated.  According to Labor procedures, NRC is
supposed to receive copies of settlement agreements.  We did not
obtain evidence on whether these procedures were followed. 

5.  Incorporated as footnote 14. 

6.  Corrections made. 




(See figure in printed edition.)Appendix V
COMMENTS FROM THE ADMINISTRATIVE
REVIEW BOARD, DEPARTMENT OF LABOR
========================================================= Appendix III



(See figure in printed edition.)




(See figure in printed edition.)Appendix VI
COMMENTS FROM THE OFFICE OF
ADMINISTRATIVE LAW JUDGES,
DEPARTMENT OF LABOR
========================================================= Appendix III



(See figure in printed edition.)



(See figure in printed edition.)




(See figure in printed edition.)Appendix VII
COMMENTS FROM THE EMPLOYMENT
STANDARDS ADMINISTRATION,
DEPARTMENT OF LABOR, AND OUR
EVALUATION
========================================================= Appendix III



(See figure in printed edition.)



(See figure in printed edition.)


The following are GAO's comments on the Assistant Secretary of Labor
for Employee Standard's letter dated February 27, 1997. 

GAO COMMENTS

1.  Wording revised. 

2.  Wording unchanged.  We believe that the description of the
process in the preceding paragraph adequately conveys that there may
be several actions involved at Labor. 

3.  Wording unchanged.  Although the regulation does not specifically
state that the 90-day time frame can be waived, current procedures
have the same effect as waiving the time frame:  Cases are not
completed in 90 days.  We do not disagree with the Assistant
Secretary's comment that the Wage and Hour Division completed the
investigative phase as quickly as possible. 


GAO CONTACTS AND STAFF
ACKNOWLEDGMENTS
======================================================== Appendix VIII

GAO CONTACTS

Larry Horinko, Assistant Director, (202) 512-7001
Bob Sampson, Senior Evaluator, (202) 512-7251

STAFF ACKNOWLEDGMENTS

In addition to those named above, the following individuals made
important contributions to this report:  Joan Denomme and Mary Roy
gathered and analyzed essential information and drafted the report;
Elizabeth Morrison contributed extensively to development and
presentation of the report's message; and Gary Boss and Philip Olson
provided technical advice concerning Nuclear Regulatory Commission
activities. 


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