Monday, July 26, 2010

NRC Decision on FPL (Part 1)

NRR Director’s decision addresses FPL Retention Bonus Agreement and ECP.

A decision by the NRC’s Director of NRR (DD-10-01) was released last week addressing certain contentions raised in a petition to the NRC Chairman by a former FPL nuclear employee.*  While there appears to be a long history between FPL and the petitioner, there are certain aspects of the Director’s Decision and the actions taken by the NRC and FPL that are pertinent to our dialogue on safety culture.

The petitioner raised two general issues: weaknesses in FPL’s employee concerns program due to fear of retaliation and an employee retention bonus agreement used by FPL containing language that he asserted violates 10 CFR 50.7(f).  We will discuss the retention agreement in this post and the employee concerns issue in a followup post.

The retention bonus agreement in question includes the following language:

3.d “Employee shall not, at any time in the future and in any way, disparage Company, its Related Entities, or its current or former officers, directors, and employees, orally or in writing, make any statements that may be derogatory or detrimental to Company's good name or business reputation or that of its Related Entities.”

The Director’s Decision states the following:

“The purpose of 10 CFR 50.7(f) is to ensure that licensees do not enter into employment agreements that would prohibit, restrict, or otherwise discourage an employee or former employee from providing the NRC with information of regulatory significance. ‘Nondisparagement’ clauses similar to the one in FPL's retention bonus agreement are common in employment agreements. As a general matter, employers and their employees are free to formulate agreements in the context of their employment relationship and within the parameters of the lawful right of parties to contract with each other. For this reason, the NRC should not interfere with these agreements unless it finds such a clause violates 10 CFR 50.7(f), or a clause that does not violate 10 CFR 50.7(f) on its face is applied in a fashion that prevents or retaliates against an employee for engaging in protected activities such as communicating with the NRC.

“The NRC has reviewed the FPL employee retention bonus agreement referenced by Mr. Saporito [the petitioner]. The language of the agreement makes no mention of providing information to, or cooperating with, NRC or any other governmental agency. Similarly, it makes no reference to engaging in activity that is protected by NRC enabling statutes. For these reasons, the NRC has determined that the agreement does not violate 10 CFR 50.7(f). However, the agreement strays from the guidance the NRC has provided licensees for drafting employment and settlement agreements, available on the NRC Office of Enforcement Web site at http://www.nrc.gov/about-nrc/regulatory/enforcement/examples-of-restrictive- terms.pdf, [The third example in the above linked reference appears to be the applicable portion of the guidance.] because it does not include specific language making clear that employees can freely engage in protected activities. While not required by 10 CFR 50.7(f), settlement agreements that contain language reinforcing employees' rights to raise safety concerns and communicate with the NRC avoid the possibility of being construed in a way that could violate 10 CFR 50.7(f). The NRC has learned that FPL has discontinued use of the bonus agreement referenced by Mr. Saporito, and that future FPL employment agreements will contain language specifically addressing employees' rights under 10 CFR 50.7, "Employee Protection," in order to avoid any perception that employees are prohibited, restricted, or discouraged from raising safety concerns.” (pp. 14-15)

So it appears that FPL was “convinced” by the NRC to change the language in its agreement to be consistent with NRC guidance.  Aside from this bit of Kabuki theater, I thought there was another aspect of the retention agreement language worth considering.  Reading it certainly lends a certain chill to the atmosphere - perhaps one that is warranted but could it be sending conflicting signals with regard to the “environment”, safety conscious and otherwise, that is desired for nuclear operations?  The NRC seems to be sensing this possibility with their suggested “improvements” to such language.  It strikes us that environment and trust, intrinsic to safety culture, are rather delicate states and can be undermined in very subtle and implicit ways.

*ADAMS Accession Number ML101790315

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