The National Treasury Employees Union (hereinafter "NTEU"), as exclusive bargaining agent for NRC employees, is concerned that Reorganization Plan No. 1 of 1980 may inadvertently be creating new problems in the area of employee rights while it strives to remedy other problems in the area of nuclear power safety. This latter problem of concern to NTEU deals with the apparent unbridled power of the Chairman of the NRC to take all personnel actions, including hiring and firing, with but a very few exceptions. It is the purpose of this memorandum to identify the problem, and to propose a solution for it.

Changes In Personnel Action Procedures
Caused By Reorganization Plan No. 1

It is our understanding that prior to the development of Reorganization Plan No. 1, the authority for making personnel action decisions pertaining to all NRC employees was vested in all five NRC Commissioners. This authority was, in practice, delegated down to subordinate officials of the agency. However, any employee against whom, for instance, disciplinary action was proposed would have some recourse to the five Commissioners to review the matter. This opportunity to obtain review of such actions from a collegial body, with the varying and moderating viewpoints it has to offer, is especially important for NRC employees, all of whom are in the excepted service. 1/ As you know, excepted service employees are not entitled in the area of adverse actions to any due process rights of notice, hearing, confrontation of witnesses, etc. 2/ 5 U.S.c. §7511, as amended by the Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. at 1135. This is so on the theory that excepted service employees have no "property interest" in their jobs. Cf..

1/

The "excepted service" refers to those positions in the Federal government to which employees are appointed without need of competitive examination or competition. NRC employees are all "excepted service" by virtue of the Atomic Energy Act of 1954, Pub. L. 83-703, 68 Stat. 919.

2/

The adverse action area is only one of the many types of personnel actions where in excepted service employees do not enjoy the same panoply of rights enjoyed by their competitive service colleagues..

Board of Regents v. Roth, 408 U.S. 564 (1972); Fiorentino v. U.S., 607 F.2d 963 (Ct.cl. 1979). For employees who are thus subject to summary dismissal the opportunity to have differing points of view, and concomitant balancing of any one individual's biases, prejudices, etc., is most valuable.

However, it appears to have been this diffusion of decision-making among Commissioners that has been pinpointed as a major operating problem within the NRC. See, e.g., Congressional Record, p. S 3185 (March 27, 1980). Accordingly, Reorganization Plan No. 1 serves to consolidate all hiring-firing and other personnel authority in the Chairman of the Commission. Reorganization Plan, Sec. 2(c). This is the focal point of NTEU's concern. It is our opinion that this step will serve to effectively eliminate one of the precious few protections NRC employees have against arbitrary personnel actions, particularly discharge -- namely, the varied view-points of several individuals. By concentrating all authority in one person it is inevitable that review of employee adverse action cases, for example, will be subject to a greater degree of unchecked whim, caprice, or personal bias. This is certainly not to impugn the motives of any given NRC Chairman; it is simply to recognize human nature.

A Suggested Resolution of the Problem

NTEU does not offer any significant challenge to the Plan as a whole. However, in order to safeguard against any further loss of employee rights in the area of personnel actions, NTEU proposes that any Congressional report prepared in connection with the Plan contain clear and express language to the effect that any and all personnel actions (but in particular disciplinary actions) be taken solely on the basis of merit, and for such cause as will promote the efficiency of agency operations. A proposed passage to be included in the report is as follows:

It is the intent of the Committee to make most clear
to the Chairman of the Commission that the added respon-
sibility he assumes under the Plan, as the sole source of
authority in the area of personnel actions, is to be borne
with the utmost concern for employee rights and principles
of fair play. No personnel action should be taken except
insofar as it is based on merit principles and promotion
of the efficiency of Commission operations. This is par-
ticularly so in the area of adverse and disciplinary
actions, where employees have so few procedural rights
to begin with. For whatever loss there has been of the
protections offered by the "checks and balances" of a
collegial review of personnel actions, it is incumbent
on the Chairman to ensure that consolidation of that
authority in him does not work an unfairness to employees.

3/

The only exception to this is the relative handful of employees on each of the Commissioners' own personal staffs. Reorganization Plan, Sec. 1(d).