U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES
SETTLEMENT OF WHISTLEBLOWER COMPLAINTS FILED BY NUCLEAR COURIERS AT
DEPARTMENT OF ENERGY’S OAK RIDGE NATIONAL LABORATORY
FOR IMMEDIATE RELEASE - 10/2/00
CONTACT: JANE MCFARLAND
(202) 653-7984
The U.S. Office of Special Counsel (OSC) today announced
that the Department of Energy (DOE) has entered a comprehensive settlement
agreement with eighteen special agent nuclear material couriers of the Oak
Ridge, Tennessee section of DOE’s Transportation Safety Division (TSD) who
had filed retaliation complaints with OSC. In light of the settlement
agreement, OSC has closed its investigation of the complaints.
DOE’s nuclear couriers are responsible for transporting
and safeguarding nuclear materials and weapons, including live warheads,
between DOE and Defense Department sites. The Oak Ridge couriers filed
complaints with OSC in May and June of 1998, alleging that they had suffered
retaliation for engaging in various protected activities. These activities
included, among others, providing information to management and outside
review teams concerning potential dangerous radiation exposure and security
risks arising out of driver fatigue.
Several of the couriers alleged that they had suffered
retaliation for testifying or otherwise assisting another courier, James
Bailey, who had appealed his removal to the Merit Systems Protection Board (MSPB).
Mr. Bailey, who had lost his infant daughter to a rare form of brain cancer,
believed that the cancer was related to on-the-job radiation exposure. DOE
removed Mr. Bailey because he was unwilling to resume his courier duties
after a detail to an administrative position, unless DOE either put into
place stricter radiation monitoring procedures or provided the couriers with
protective clothing.
The eighteen couriers alleged that DOE retaliated against
them for engaging in these protected activities when it placed them on
administrative leave (with pay) beginning May 1, 1998, after they either
refused to undergo or failed to conclusively pass polygraph examinations as
part of an FBI investigation of suspected security violations. All couriers
in DOE’s Southeast section were required to undergo polygraphs as part of
the investigation.
DOE denied that its actions were retaliatory and asserted
that the FBI investigation was initiated because DOE suspected that ABC News
had been provided with confidential information regarding the departure time
and routes of some nuclear shipments made during February of 1998. DOE
suspected that the information had been disclosed because an ABC news crew
had filmed a shipment when the couriers made a stop on Interstate 40, 60
miles west of Knoxville. The news crew was apparently working on a report
related to Mr. Bailey’s allegations and his removal.
The couriers further alleged that during the course of
the FBI investigation, certain DOE managers had violated their First
Amendment rights to secure the assistance of legal counsel. The couriers
alleged that they were being harassed and warned that they would not be
reinstated to their jobs unless they not only took the polygraphs, but also
dropped their attorneys.
DOE ultimately concluded that its initial suspicion that
ABC News had been provided with confidential information was likely
incorrect. Thereafter, DOE and counsel for the couriers, with the assistance
of OSC (which had been investigating the complaints) began settlement
discussions aimed at bringing the couriers back to work.
The settlement OSC announced today provides for, among
other things, over $600,000 in backpay to be distributed amongst the group
of complainants, representing lost overtime since May, 1998. It also
provides for payment of the couriers’ attorney fees. Under the agreement,
the couriers who wish to be reinstated to their positions will be required
to undergo security interviews and possibly narrowly focused polygraphs,
conducted in accordance with mutually agreed-upon procedures.
The agreement also contains important systemic
provisions. DOE has agreed to implement a training program for the Oak Ridge
section of the TSD, in consultation with OSC, which will address
whistleblower protection and employees’ rights to counsel. Further, the
parties have agreed to engage an outside mediator within 90 days, to permit
couriers to raise issues related to the safety, security, and the
functioning of the TSD. High level DOE officials will participate in the
mediations to evaluate and take necessary follow-up action.
Under the agreement, DOE does not admit any liability or
fault; nor do the couriers concede that their OSC complaints were without
merit. OSC itself had not completed its investigation and legal analysis,
and so had not yet determined whether the couriers’ complaints were
meritorious.
Special Counsel Elaine Kaplan praised the couriers and
the Department of Energy for their “hard work and cooperation in hammering
out this excellent settlement of these complaints.” Special Counsel Kaplan
observed that the agreement “was fair and comprehensive.” “Further,”
she said “the agreement should create a good basis for restoring mutual
trust between DOE and the couriers.” “Its provisions for neutral review
of future safety and security complaints,” she said “are very promising,
and might serve as an example to other federal agencies facing similar
issues.”
The U.S. Office of Special Counsel is an independent
federal agency created to protect merit system principles in the federal
government. OSC receives, investigates and prosecutes before the MSPB
allegations of prohibited personnel practices, particularly retaliation for
whistleblowing.
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