1. Adding specific organizational segments to NRC by title either through executive order or by legislation is undesirable for the same reasons this type action in the Energy Reorganization Act of 1974 caused problems leading to Three Mile Island. It prevents required management flexibility in administering the agency and, indeed, perpetuates shortcomings of the past when the organization cannot readily be updated to meet changing times. (Reference subsection 1(b)(1) of the March 27th Plan.) 2. The designation of the NRC Chairman or in the alternative, other Commissioners, to function as person in charge during nuclear emergencies fails to account for two things: (a) The Commissioners may or may not be qualified to perform such a task by their knowledge of the technology or other factors significant during the critical hours following event notification. (b) Various phases of "emergencies" exist, some of which cannot tolerate the time it might take to locate the Chairman or other Commissioners. (Reference subsection 3(a) and 3(b) of the Plan.) 3. Allowing "The head of any component or organization within the Commission (to) communicate directly to the Commission, or to any member of the Commission . . ." unduly encourages "end run" communications which, again, was one of the managerial difficulties preceding TMI. As my report pointed out, the Commission has already implemented an excellent procedure to accomplish the intent of what is proposed in the Plan, while realistically preserving organizational discipline essential to any agency. Το place such a broad statement in an executive order or statute is to invite the same chaotic communications that preceded TMI. (Reference subsection 4(a).) 4. The role of the Executive Director for Operations (EDO) remains relatively undefined in juxtaposition with the heads of the line offices... a problem meriting considerable criticism by both the Kemeny and Rogovin investigations. The flexibility so provided, in and of itself, is not bad for reasons implicit in (1) above. However, to imply that the heads of line offices may report directly to the Chairman as is done in subsection 4(c) of the Plan just begs the issue. What is not clear from the Plan is whether the EDO is to be a senior line official or essentially an administrator not concerned with substantive project management as distinguished from administrative matters. 5. Having the heads of "Commission level offices" report to the Commission vis-a-vis the Chairman violates one of the most basic tenants of management organization theory. The General Counsel, Secretary to the Commission et al are staff offices as distinguished from line offices such as the Office of Nuclear Reactor Regulation. To have line functions reporting to one person and the staff function to five people is ludicrous. This will do nothing but amplify the traditional staff-line interface problems which are difficult for even a single common manager to resolve. 6. Neither the Reorganization Plan nor any proposed legislation to my knowledge addresses a key problem in any competent organization discussion, namely, qualification requirements of the key personnel. These requirements can be met through selection of personnel and/or training and indoctrination. Suffice to say, requiring organizational concepts without specifying the type of people who are expected to occupy the positions is incomplete application of management principles. My report as referenced in the first paragraph of this letter speaks to most of the issues raised above. It also provides recommendations as I am prepared to do personally now if you feel any of my comments are of sufficient interest. I would close this letter with something about the law attributed to one Fred Rodell in 1938. "The Law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backwards because it didn't care where it was going but was mightily interested in where it had been." I trust Congress' review of the Reorganization Plan and any related legislation will look to see how resultant actions will prevent problems, not just solve those of the past. Or, don't be a killy-loo bird! COM: bf Respectfully, CoMuller C. O. Miller 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 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 3/ 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). о DEPOSIT JUL 09 1980 SHIPPED |