6.5.4.1 Chilling Effect Letter (CEL)

a.

A chilling effect letter (CEL) is a regulatory tool whose goal is to ensure that the licensee is taking appropriate actions to ensure that its workplace fosters an environment where employees feel free, and are encouraged, to raise safety concerns. The identification of situations potentially warranting the issuance of a CEL is discussed in Sections 6.5.4.1.f and 6.5.4.1.i below. The purpose of the CEL is to:

1. Publicly notify the licensee and inform the workforce of NRC's concern about and increased focus on the licensee’s SCWE at its facility;
2. Request information about the licensee’s assessment of its employees’ willingness to raise safety concerns at the facility;
3. Request information about the licensee’s corrective actions taken or planned to address any identified weaknesses as a result of its assessment; and
4. In the case of an OSHA or DOL ALJ finding of discrimination, request information about the licensee’s position with regard to whether or not discrimination occurred.

b.

If the region or program office identifies a situation where a CEL should be considered, that office shall consult with OE (Allegation program) and coordinate the drafting and planning for issuance of the CEL. If OE identifies such a situation, it shall notify the region or program office responsible for the licensee.

NOTE: On occasion

1. Except as discussed in sub-part b.3 below, the region OE may take the lead in drafting the

or program office shall schedule an enforcement

CEL in coordination

panel and draft the enforcement action worksheet,

with the region or

discussing the basis and the rationale for the issuance

program office.

of the CEL. The enforcement action worksheet should include how the recommended action (i.e. issuance of a CEL or not issuance of a CEL) is in accordance with the factors outlined in Section 6.5.4.1.i of this manual.

1. Representatives from OE’s Enforcement and Allegation programs must be present at the enforcement panel.
2. In instances where OSHA, a DOL ALJ, the ARB or any federal court issues a finding of discrimination in violation of Section 211 of the Energy Reorganization Act (ERA), OE’s Concerns Resolution Branch shall take the lead to draft the enforcement action worksheet, convene the enforcement panel and draft and issue the CEL, if the enforcement panel so determines.

ENCLOSURE

c.

If the enforcement panel decides that a CEL is to be issued, OE will develop the strategy form and open an Enforcement Action (EA) number for the CEL in order to track all related documents. The EA number should appear on all related NRC correspondence. The EA number should not be closed until a letter is issued acknowledging NRC acceptance of the licensee’s response (see Section 6.5.4.1.k.5).

d.

For instances other than those involving an OSHA or DOL ALJ finding of discrimination, the Director of the Office of Enforcement, or his/her designee, will be in the concurrence chain for the CEL. Once OE and other appropriate staff concur on the CEL, the region or program office (as the case may be) shall issue the CEL under the signature of the applicable Division Director with courtesy copy to OE.

e.

If a licensee or related event is of high Commission or Congressional interest, OE will communicate the decision to issue a CEL to the Commission through the Office of Executive Director of Operations.

NOTE: Although a separate CEL

f. Except in the following two scenarios or as ^{is not necessary in the case of} an NRC finding of discrimination,

otherwise determined by an enforcement panel,

the Choice Letter prepared by

the NRC will normally issue a CEL if OSHA or a

the staff should include the

DOL ALJ issue a finding of discrimination (violation

information described in Section

of Section 211 of the ERA).

6.5.4.1.j.

1. If the licensee settles the case soon after the NOTE: An OSHA finding

OSHA finding and takes the initiative to take

becomes effective if neither party

prompt and decisive action to mitigate any

requests a hearing within 30

chilling effect, a CEL would normally not be

days of receipt of findings.

issued.

2. If the licensee settles the case soon after a DOL ALJ finding of discrimination and takes the initiative to take prompt and decisive action to mitigate any chilling effect, a CEL would normally not be issued.

NOTE: The ALJ reviews the case “de

g. The NRC may await the DOL

novo.” This means that the ALJ will

Administrative Review Board (DOL ARB)

disregard the OSHA findings and consider

decision (through its action or inaction, if

the facts anew. The ALJ documents his/her the ALJ decision is appealed to the DOL

opinion in a “Recommended Decision and

ARB) or a U.S. District Court decision (if Order” (RDO). The ALJ’s RDO is not a final

the case is removed to the District Court DOL agency decision unless neither party

by the complainant) before considering appeals it to the Administrative Review

Board within 10 business days of the

taking other enforcement action based on issuance of the ALJ decision. The ARB

the finding of discrimination. OE will

review of the ALJ decision is discretionary

have the lead for such action.

and not a matter of right. If the ARB reviews the RDO, the ARB renders the final

h. Once the DOL process is complete, the

agency decision for DOL either by affirming

NRC will:

the ALJ decision or by reversing it.

1. Evaluate whether to take enforcement action based on a violation of the applicable employee protection regulation (e.g. 30.7, 40.7, 50.7, 76.7 etc.); and
2. If enforcement action is initiated, the NRC will normally issue a choice letter, instead of a CEL, since the choice letter, like the CEL, requires the licensee to

address the violation and corrective actions, including any necessary to address a potential chilling effect.

i. In addition to the two circumstances where a CEL is normally issued (discussed in Section 6.5.4.1.f), there may be other circumstances involving allegations or other indications of a chilled work environment where no finding of retaliation has been issued, but nevertheless the issuance of a CEL is appropriate. The issuance of a CEL would be appropriate if (a) the NRC has concluded that there is a chilled environment; or (b) the NRC is aware of indications that there may be a reasonable potential for a chilled environment for a group of employees.

In consultation with OE (Allegation program), each case must be evaluated on its own merit; however, past examples with similar facts and circumstances should be considered to ensure consistency and predictability relating to the issuance of CELs. Given that there is no quantitative threshold for issuing a CEL (except for the circumstances discussed in Section 6.5.4.1.f), no one factor is considered to be inherently determinative of a chilled environment. Accordingly, the following factors should be considered collectively rather than in isolation. In addition, on a case-by-case basis, a factor may weigh differently in different cases depending on the facts and circumstances.

1. The following is a non-exclusive list of factors that should be considered when evaluating whether the issuance of a CEL is warranted:

(a) Regarding allegations, consider the following:

A. The number of allegations coming from onsite sources¹ compared to the industry median and the rate they are received over the review period. Typically for reactors and fuel cycle facilities, a volume of greater than three times the medium over the review period, or two times the median with a corresponding fifty percent increase over the previous review period, warrants further consideration. At a smaller facility, however, fewer allegations of a specific nature may warrant additional attention by the NRC;

B. The nature of the concerns raised. Of interest is:

a.

any concern specifically indicating fear or reluctance to raise concerns (e.g., claims of discrimination, chilled environment concerns, or indications of fundamental problems with the licensee’s problem identification and resolution process);

b.

any concern that may have a significant impact on safety;

C. The source of the allegations. Of interest are trends in a particular functional organization. An organization’s direct impact on plant safety should be taken into consideration and the percentage of anonymous allegers;

¹ Onsite sources of allegations include current or former licensee employees, current or former contractor employees, or anonymous allegers. For the purpose of this analysis, the NRC assumes anonymous allegations are submitted by onsite personnel.

D. Any substantiated chilling effect concern.

(b)

Consider SCWE observations made during previous problem identification and resolution (PI&R) inspections (for power reactor licensees). Appendix 1 to Inspection Procedure 71152 for power reactors provides a list of questions that can be used for all licensees assessing whether there are impediments to raising concerns. The questions are designed to address the primary elements of a SCWE; namely, a) the employees’ willingness to raise concerns and management behaviors to encourage raising concerns, b) employee perception of the effectiveness of the corrective action program as the primary avenue to raise concerns, c) employee perception of the effectiveness of an alternative program if one exists, such as an employee concerns program, and d) employee perception of the effectiveness of management actions to detect and prevent retaliation and chilling effect.

(c)

Consider any licensee programs or processes relied on to establish, maintain, or assess the SCWE, such as:

A. Self-assessments of the SCWE. Of interest is the scope of the assessment, significant findings (e.g., functional area pockets of concern), and actions taken by the licensee to address SCWE weaknesses identified, etc.; B. SCWE policy statements. Of interest is language describing expectations for management behavior to encourage employees to raise concerns, unrestricted access to multiple avenues for raising concerns, and prohibitions on retaliation; C. SCWE Communications. Of interest is the media used to communicate management SCWE expectations and their frequency; D. SCWE Training. Of interest is who is being trained (e.g., all supervisors), the content of the training (e.g., employee rights, avenues for raising concerns, related policies and supervisor expectations) and if refresher training is offered and on what frequency; E. Employee Concerns Program (ECP). Of interest is the ECP data as it compares to allegation program data trends e.g. the number of concerns raised within the program, their rate over the review period, the nature of the concerns, their safety significance, the sources of concerns, any substantiations, and anonymity percentage, or; F. Corrective Action Program. Of interest is any changes in usage trends, or what restrictions, if any, the procedure places on writing a condition report.

(d)

Consider any specific events with the potential to chill the SCWE. Of interest is the number of individuals witnessing the event or potentially impacted, the notoriety of the event, the position and responsibility of the

individual(s) causing the chilling effect, and how egregious the behavior appears.

(e)

Consider the number of reporting avenues impacted by the chilling effect (i.e., management, corrective action program, employee concerns program, NRC, etc.).

j. If the staff determines that a CEL is warranted, it should include the following

information: NOTE: The letter should describe the specifics of the NRC concerns and the

1. Discuss the NRC’s concern and its basis.

considerations that led NRC to issue the CEL, recognizing the need to protect the

2. Reference the May 14, 1996, policy

identities of any allegers if involved.

statement on SCWE to make the licensee aware of NRC’s expectations in this area.

NOTE: The nature of the requested

3. Request that the licensee respond to _{response may differ depending on the}

the NRC’s concerns. extent of the SCWE concern. For example, the letter may include a

4. If individuals are surveyed or interviewed request for a management meeting as

by the licensee as part of its review, well as a written response, or for broader more significant issues,

instruct the licensee to provide the basis

request that the licensee conduct an

for determining that the number and

independent assessment of the SCWE.

the cross-section of those interviewed or surveyed, as well as the scope of the interviews and surveys, was appropriate.

1. If the CEL is in response to a finding of discrimination by OSHA or a DOL ALJ, the licensee’s response is mandatory under the provisions of the AEA, 10 CFR 2.204, “Demand for Information” and the appropriate provisions of Title 10 implementing Section 182 of the AEA, and the CEL should include such language.
2. Request that the licensee provide information on the assessment of associated corrective actions, and effectiveness measures.
3. Request that the licensee notify the affected (or potentially affected) members of the workforce of the issuance of the CEL and NRC’s concern and focus on the SCWE.
4. The CEL should end with the paragraph from the Enforcement Manual explaining that the response will be made public.

k. After the CEL is issued and the licensee responds, the region or program office, in collaboration with OE, will review the scope of the licensee’s assessment of the work environment, the independence of those involved in the evaluation, and the adequacy of any corrective actions proposed or taken.

1. If surveys or interviews were conducted, evaluate the results and conclusions by considering the following:

(a)

Review the interview or survey questions to determine whether they capture employee reluctance to raise concerns.

(b)

Evaluate the survey/interviews to understand if the questions examined other aspects such as reluctance to self-identify problems, awareness of others who have experienced negative consequence for raising concerns, management support for raising concerns, and the effectiveness of the licensee’s corrective action program in addressing concerns.

(c)

Evaluate the sample size of the surveys and/or interviews and whether it included participants from the appropriate cross-section of the plant population (e.g. management/non-management, bargaining unit/nonbargaining unit, shift and organizations, part time/full time workers, etc.) and is representative of the population being assessed.

2. If the licensee’s assessment indicated areas of weakness, then the licensee’s corrective actions should be examined for appropriateness in addressing the areas of weakness.

(a)

Consider if the actions address the underlying problems and if they are of sufficient scope and depth.

(b)

Examine the adequacy of the effectiveness measures for monitoring the results of the corrective actions.

1. If any aspect of the licensee’s response is not satisfactory, the licensee should be contacted to discuss the need for additional information.
2. If the licensee has committed to taking corrective actions and has provided measures of effectiveness for those actions, the region or program office should follow up, as appropriate, on the results of those measures to monitor the licensee’s progress in improving the SCWE.
3. After reviewing the licensee response, if the region or program office, in consultation with OE, determines the licensee’s response to be acceptable and there is no need for additional information, the region or the program office shall issue a letter acknowledging NRC acceptance of the licensee response and, if appropriate, indicate the NRC’s intent to monitor the licensee’s progress in improving the SCWE. Another enforcement panel is not necessary to make the determinations in this sub-part k.5.