Senator Thompson, Committee members, I am Ed Slavin. Thank you for inviting my testimony. Some 19 years ago, as a new East Tennessee weekly newspaper editor, I began investigating Department of Energy Nuclear Weapons Pollution, winning in 1983 DOE’s declassification of a dirty “national security” secret: the largest mercury pollution event in world history, now said to involve 4.2 million pounds. Oak Ridge is smeared, bleared and teared in a “witches’ brew” of toxics. For ten years, I have advised and represented DOE site workers. I was counsel for the plaintiff, Sherrie Graham Farver, in a medical malpractice case where an Anderson County jury awarded $600,000 last year against Dr. Kenneth Carpenter, M.D., DOE’s consultant psychiatrist, for his misdiagnosing an Oak Ridge worker health activist as “paranoid, delusional and psychotic.”

DOE, its managers and contractors are probably guilty of federal and state crimes, including environmental and workplace air, water and land pollution and routine retaliation against whistleblowers. Congress long ago identified DOE sites like Oak Ridge as “pockets of resistance” to whistleblower laws.^[1] After years of empty promises, DOE is still a national disgrace.

Oak Ridge’s treatment of whistleblowers has been recognized as at best “sadistic.”^[2] DOE and its contractors still function as a “hate group,” with a network of blacklisting, intimidation and harassment. In terming Oak Ridge and other DOE sites “pockets of resistance” to whistleblower law in 1992, Congress was acknowledging the fact that there is a climate of fear and repression at DOE sites^[3] Eight years later, federal administrative remedies for whistleblower retaliation are not being enforced adequately. Attempted government intervention in the bomb factory management “culture” of retaliation, intimidation and surveillance is a model of failure, a farce without force. Retaliators grow bolder and the chilling effects grow colder as we all grow older. The DOE complex has not changed.

DOE now admits toxic materials have killed workers^[4] at its facilities. In response to the Oak Ridge health crisis, DOE proposes only flummery. DOE’s “pilot” compensation bill, S. 1954 and H.R. 3418, the Energy Employees Beryllium Compensation Act is, at best, a Kafkaesque nuclear compensation bill that is defective by design -- long on rhetoric and short on fairness, with no medical benefits, no independent health clinics, no hearings, no Administrative Procedure Act rights, no independent Administrative Law Judges, no appeal rights, and no Due Process. DOE proposes a flawed and phony form of “alternative dispute resolution.” DOE does so without the decency of an apology in its bill, as is set forth in Rep. Kanjorski’s bill, H.R. 674, the proposed Beryllium Exposure Compensation Act. The DOE bill is a snare and a delusion, not Due Process.^[5] It should be rejected by the United States Senate. The Senate should draft a fair bill modeled on Black Lung and Longshore compensation legislation. The Senate should also reform the whistleblower laws to provide genuine protection, not just empty promises.

1.1 WHY DOES DOE WANT TO “RATION JUSTICE” AND TO DENY OPEN PUBLIC HEARINGS OR APPEALS ON WORKERS’ COMPENSATION?

Oak Ridge is a “Company Town,” one with employment dominated by one major employer.”^[6]

Anderson County DA Jim Ramsey has testified that Oak Ridge has a complex hierarchical, military-style management, one where workers fear to raise concerns out of fear, reluctance and second thought. As DA Ramsey testified, "Oak Ridge is known to have excreted quite a lot of waste in the process of ingesting materials to make nuclear products."^[7] Ironically, in 1995 DA Ramsey was publicly pressured by a DOE attorney in an Oak Ridge church over his 1994 “Company Town” testimony, thereby proving the point beyond doubt.^[8] In 1998 testimony, Lockheed Martin Energy Systems Medical Director Dr. Daniel Conrad denied that Oak Ridge is a “Company Town” because there are subcontractors there and a department store and a mall.^[9] This is specious.

There is a great deal of irrationality in Oak Ridge regarding matters of toxic pollution. This allows problems to persist while failing to protect legitimate national security secrets. In response to the mercury declassification, Oak Ridge’s first response was to assert that national security exempted all of Oak Ridge’s pollution, a proposition that Judge Robert Taylor roundly rejected in a decision from which DOE did not appeal.^[10]

As DOE longtime consultant psychiatrist in Oak Ridge put, people have known about Oak Ridge toxics “for a long time” -- it is “not news to anyone.”^[11]

This is an obvious statement.^[12] Yet workers have been retaliated against for raising concerns. They have been fired and transferred and demoted and sent to psychiatrists and security clearance hearings. They have been obliged to struggle for medical care from the Company Town’s physicians, enduring ostracism and harassment. They have been frustrated in getting information.

In that Company Town, DOE’s powerful multinational corporate contractors brag of their influence over government policy decisions. Lockheed Martin, for example, contributed $2.5 million to Democrats and Republicans in 1996 -- its Oak Ridge managers openly boast and brag that their PAC contributions result in Oak Ridge funding decisions.^[13]

Until 1991, there was not even a DOE representative stationed at Oak Ridge sites. The year the Cold War ended is also referred to in Oak Ridge as “when DOE came on site.” Until the DOE “Tiger Teams” and Resident Inspectors were appointed, DOE did not know (or even want to know) how bad things were.

For years, DOE, contractors and friends at Oak Ridge Associated Universities (ORAU) maintained a mask for their “Company Town,” a proverbial “Potemkin village.” “A little nukie never hurt anybody,” was the myth that the DOE complex promoted. Oak Ridge K-25 and other DOE site workers were told they could eat uranium with no ill health effects.

Workers and citizens at DOE nuclear installations were told that radiation was no worse than riding in an airplane, or lying on a beach. Meanwhile, pollution was pumped into the air, land and water without monitoring or controls. Workers and residents breathe that pollution every day. People are sick and dying as a result of that pollution.

DOE and its contractors lied to Congress. They lied to the President. They lied to the American people. They lied to the workers in these unsafe facilities. They kept medical information from workers as a matter of government orders.^[14] They probably violated the False Claims Act, the Racketeer-Influenced and Corrupt Organizations Act (RICO) and other federal criminal laws. DOE’s recent admissions now render all the decades of AEC/DOE sophistry “inoperative,” as Ron Zeigler put it during the Nixon Administration. As former Senator Howard H. Baker, Jr. puts it best, “coverups never work!”

DOE’s chickens are coming home to roost. The Nashville Tennessean has exhaustively catalogued illness, disease and death surrounding DOE’s Oak Ridge and other facilities, and the nature of the badly-run Superfund Site. See http://www.tennessean.com/special/oakridge/part3/frame.shtml Still, the

Oak Ridge special interests have attempted to attack or ignore the sick workers.

Local politicians have joined plant managers and the Oak Ridge Chamber of Commerce in an effort to isolate, minimize and marginalize the sick workers and residents.^[15] . This disdainful effort has been unsuccessful: efforts to silence dissent and frustrate prevent change failed.^[16] The City of Oak Ridge has bought and aired fancy TV commercials with bucolic scenes, while engaging in denial when it comes to sick workers and residents.

The Oak Ridge boosters’ oft-expressed assumption is that criticism of DOE is “bad for business,” and that this is Oak Ridge’s “darkest hour.”^[17]

As the former editor of a local newspaper and longtime observer, it is my considered opinion that what we have seen is Oak Ridge’s finest hour.

Where else in the world does one find such a diverse group of local community members from all walks of life thinking for themselves about toxic materials and their sequelae -- researching, investigating, organizing and activating others to protect public health and the environment from dangerous depredations?^[18] Why do people who never worked a day in their life in the Oak Ridge plants insult and ignore the people who worked there and played by the rules, only to get sick?

Such public scrutiny is precisely what the Appalachian Observer sought to encourage over twenty years ago. I am delighted on every return visit to see that the Berlin Wall has indeed finally fallen in Oak Ridge.

Like Big Tobacco, the Nuclear Weapons industry has lots of influence. The Nuclear Weapons industry hires former members of Congress. It hires “prestigious” law firms. It has a seat at the cabinet table, held by a Secretary of Energy under active consideration to be Al Gore’s vice presidential running mate. In fact, if it were a single company with combined assets, the U.S. Nuclear Weapons industry would be the Nation’s 20th largest corporation. Like the tobacco and asbestos industries, the Nuclear Weapons industry carefully and skillfully cultivated “uncertainty” about health effects through interminable scientific studies, seeking to baffle workers and lawyers and judges in the fog.

For a long time, toxicological, epidemiological and technological termagants spewed misleading data. They censored critics. They skewed debate on public issues. They even tried to shout down and silence dissent in public meetings.

The Mangano study was published in 1994, identifying statistically higher levels of cancer in counties near Oak Ridge. A public presentation on the Mangano report was made at the Oak Ridge Public Library. A rump group led by “Friends of Oak Ridge National Laboratory -- a group of ORNL Ph.D. retirees and elected Oak Ridge public officials -- peppered the lone Ph.D. presenter with hostile technical questions, mostly obscure statistical questions, attempting to monopolize the discussion. Their manner of speaking (and dominating) was similar to the ways in which political meetings were overtaken by the extremists in the 1930s. I had to speak out to tell the gang of Ph.Ds. to let the workers get a word in edgewise. That unruly gang of Ph.D.s in the Oak Ridge Public Library -- and their friends’ prior studies -- have one common theme: “surely we never hurt anyone or made anyone sick -- you must believe us.” But we don’t.

The citizens of the Oak Ridge area no longer believe DOE. ORNL Director Dr. Alvin W. Trivelpiece said in his State of the Laboratory Address in 1992 -- the year of the Varnadore case at ORNL, which was widely covered by local news media and initially by the New York Times and CBS Evening News:

The American public is more concerned about the environment than ever before. Today, the public does not trust DOE. Members of the public want independent verification of the many facts we generate, and their demand for more audits and oversight will continue. Such audits are intrusive, invasive and a fact of life. We are going to have to learn to work in this climate and compete for scientific and technical programs at the same time. It is not easy now, and it is not likely to get any easier.

As Dr. Trivelpiece admits, DOE has no credibility. DOE has now admitted the Nuclear Weapons industry killed Americans.

Yet DOE and the Justice Department want to sweep sick Oak Ridge workers under the rug, while ignoring sick Oak Ridge residents with illnesses caused by toxics. In proposing S. 1954, they set their agenda: they want to deny workers Due Process, in hopes of minimizing the scope of the problem and minimizing the effects upon their budget and prestige.

Meanwhile, DOE and DOJ managers don’t want anyone in the DOE Complex to be prosecuted for homicide, assault and bribery, conspiracy, perjury and pollution. Defense Department managers at the Aberdeen Proving Ground were convicted of crimes involving water pollution. Oak Ridge DOE managers and their friends in Washington have long felt that they have nothing to worry about: their influence will “fix” the problem and prevent prosecution.

Judge Learned Hand said, "If we are to keep our democracy, there must be one commandment: thou shalt not ration justice." Rationing justice is what DOE proposes to do. DOE proposes to “give” nuclear weapons workers very few rights -- rights that are vastly inferior to those Congress has granted to coal miners, longshoremen and offshore oil workers under Longshore and Harbor Workers’ Compensation legislation dating back to 1928.

DOE, Justice Department and Office of Management and Budget (OMB) lawyers’ purpose in drafting the Administration compensation bill, S. 1954 and H.R. 3418, is to “ration justice.” These are cruel bills, with cynical goals.

1.2 DOE CONTRACTORS MUST PAY FOR COMPENSATION AND POLLUTION AND STOP SUPPRESSING DISSENT

Seattle plaintiffs lawyer Leonard Schroeter writes:

Much like the tobacco industry, the nuclear industry, which was wholly indemnified by the United States government, has a policy of full-scale war against any person with the temerity to suggest that radiation might be bad for their health. Thus, despite the new O’Leary policy of disclosing what a half century of nuclear secrecy, questions still remained as to whether the United States government continued to be committed to no accountability, no responsibility, and no compensation for the powerless victims. (Emphasis added)^[19]

The late Dr. Karl Z. Morgan, the father of health physics, writes that anyone who challenges the nuclear industry:

must be prepared to withstand political, economic and professional attacks. For example, when I publicly criticized the majority of health physicists (for not stepping forward to assist injured workers in cases during a keynote speech in 1985 before union workers, Dr. Clarence Lushbaugh promptly responded in the Oak Ridger by equating that with the lowest species of “animals that befoul their own nest.”^[20]

Mr. Michael Mitchell, Lockheed Martin Energy Systems’s late Vice President of Compliance Evaluation Policy, Environment, Safety and Health, stated to toxicologist Ms. Ann Walzer that raising concerns about health effects of toxics had “implications,” to wit, “He said if we tell DOE that there’s something out here making people sick, they’re going to lock up the doors and we can all go home.”^[21] This statement was after Ms. Walzer requested to be moved and was denied. Ms. Walzer stated, “It started to become very clear to me that that statement was his way of telling me that I needed to be quiet about it.”^[22] Other workers were told that their actions were going to close the plant.^[23] Former Lockheed Martin Fire Dept. Commander J.D. Hunter testified, “It’s notorious for Lockheed Martin to move people around when layoffs are coming around. So they could get rid of some of the other people that they don’t like or whatever.”^[24]

Those who retaliate against whistleblowers threaten public health and welfare and destroy democratic values.^[25] Retaliation is Oak Ridge’s legacy. Ordinarily, a legacy is something that we leave our children. In DOE argot, a “legacy” is defined as old radioactive contamination that has been around for a long time. Another legacy of Oak Ridge is retaliation against whistleblowers and unkept promises of reform, repeatedly made by both public officials of political parties.

DOE and its contractors must be held accountable for their massive pollution and suppression of dissent, using layoffs, security clearance reprisals and psychiatric referrals. Vice President Gore has compared environmental whistleblowers to World War II anti-Nazi “resistance fighters” in Europe.^[26]

DOE security clearance reprisals will not be swept under the rug. For over ten years, DOE has been on notice of Congressional concerns about security clearance reprisals using psychiatry, and previously admitted before Congress that it did not use a system of precedents in deciding security clearance cases.^[27] Such disrespect for constitutional rights led the American Bar Association to pass resolutions in 1989 and 1990 calling for protection of whistleblowers and protection of employees’ Due Process rights on security clearances.

As a 20 minute CNN special report concluded in 1993 -- which your Committee ought to take the time to view during these hearings -- Oak Ridge suffers from a “Poisoned Atmosphere” -- it is a place where pollution, workplace contamination, disease and death are a part of life.

Oak Ridge is a place where there has been frequent retaliation against both employees and physicians for raising concerns about environmental health and safety concerns. The DOE Company Town’s management routinely threatens and fires workers for raising concerns or in the words of management about at least one employee it disciplined, “leaking information to DOE.” Likewise, Hanford whistleblower Ed Bricker was termed “a spy for the government” by Rockwell and Westinghouse.^[28]

Prejudice is “an avertive or hostile attitude” toward perceived members of a group, based on perceived characteristics of members of that group.^[29] Despite token attempts at “diversity,” discrimination and tyranny still reign. Diversity has to do not just with external characteristics, but overcoming internal prejudices against who people are, what people think, their right to think, and their right to express their differing views publicly, particularly on scientific and technical matters that can affect human health and the environment. Whistleblower retaliation is an illegal form of management mind control: it must be banished at last from Oak Ridge and other DOE sites.

President Franklin Delano Roosevelt promised “freedom from fear.” Fear is a fact of life in Oak Ridge. Lack of “academic freedom” in Oak Ridge was noted by the New York Times in 1983, when Dr. Stephen Gough compared Oak Ridge to an “intellectual ghetto” where one could not criticize management. Even Ph.D.s fear to criticize the DOE/contractor “party line.” Whistleblower retaliation is rampant in Oak Ridge. Dr. Karl Z. Morgan, the father of health physics wrote before his death:

No society that severely restricts freedom of speech will ultimately survive.^[30]

My father is 86 years old and is alive in no small part due to the role of Oak Ridge in winning World War II. He jumped three times in combat in the 82nd Airborne and was awarded three bronze stars; he gets VA benefits as a result. He would likely have jumped in Japan were it not for Oak Ridge, “Fat Man” and “Little Boy.” Like my father, Oak Ridge and other Manhattan District/AEC/DOE workers have sacrificed for our country. Unlike my father, Oak Ridge workers receive no honors; they don’t get VA benefits.

Like my client Sherrie Graham Farver of Oak Ridge, some nuclear workers have been called “paranoid” by DOE and its contractors. All these sick workers have gotten for their efforts in our national defense is a kick in the teeth, and an insulting $100,000 bribe offer from DOE.^[31] The sick workers have rejected the insulting proposal. So should the United States Senate.

Few workers can testify at today’s hearing. Some are submitting written testimony, probably to gather dust like the testimony I gave when I first I testified on Oak Ridge, nearly 17 years ago, before then-Rep. Albert Gore, Jr.

The Tennessee Supreme Court last year wrote in Jordan v. Baptist Three Rivers Hospital, (January 25, 1999) at p. 10 rejecting an appeal to stare decisis (the legal notion that “we’ve always done it this way):

The defendant urges this Court to decline revisiting the issue of the availability of [spousal and parental] consortium damages [in wrongful death actions] under Tenn. Code Ann. § 20-5-113 on the basis of stare decisis. "Were we to rule upon precedent alone, were stability the only reason for our being, we would have no trouble with this case. . . . In so doing we would have vast support from the dusty books. But dust [from] the decision would remain in our mouths through the years ahead, a reproach to law and conscience alike. Our oath is to do justice, not to perpetuate error." Montgomery v. Stephan, 101 N.W.2d 227, 229 (Mich. 1960).:

DOE’s “error[s]” are known around the world. On May 17, 1983, I won declassification of the Oak Ridge mercury losses, as the then-Editor of the Appalachian Observer, then a weekly newspaper in Clinton, Tennessee, in Anderson County, upstream from Oak Ridge. It turns out that this was the largest loss of mercury in world history. In my July 11, 1983 testimony before then-Rep. Albert Gore, Jr., I called for Congress to prevent a potential environmental health disaster. Those words gathered dust. The workers are sick. They have been abused by DOE and their employers. They need your help. They need the thoughtful consideration of every member of the Senate.

As you know, I represent some of the victims of DOE Oak Ridge Operations, including workers like Mrs. Sherrie Graham Farver, who I hope will be testifying live on the day of the hearing. Mrs. Farver has eight (8) times as much cyanide in her as a healthy non-smoker should have. Yet these workers have been treated as objects by DOE and its Chamber of Commerce allies, vilified, maligned, and marginalized, with the aim of running them out of town, too. Their free speech rights must be protected.

1.3 WORKPLACE FREE SPEECH MUST BE PROTECTED AND ENCOURAGED AMIDST DOE’S HISTORY OF TOXIC EXPOSURES AND CONCEALMENT OF INFORMATION

Firings, transfers, demotions, retaliatory fitness for duty examinations, investigations, surveillance and other reactionary practices must stop. They are a restraint upon the human spirit in the mist of the world’s largest Superfund Sites. Dr. Karl Z. Morgan, the father of health physics, writes in his 1999 memoirs about how free speech was (sometimes) treasured in the early days of Oak Ridge, as when Dr. Alvin Weinberg was Director of Oak Ridge National Laboratory. The late Dr. Morgan writes that Dr. Weinberg

“not only tolerated but sought employees who had the guts to disagree with them. They did not behave like so many other [ORNL] directors who only want to look in the mirror and see a reflection of their own views.”^[32]

(Emphasis added). Sadly, the AEC/DOE/ORNL system did not follow Dr. Weinberg’s example. DOE prefers “yes people” who will not disagree or report problems. Even top-level ORNL officials must be “team players” and toe the line or be fired for disagreeing with nuclear industrial management. In 1969, Dr. Weinberg wrote that “We in Oak Ridge [are] living in a sheltered and pleasant scientific lotus-land.”^[33] In 1972, Dr. Alvin Weinberg raised concerns about nuclear reactor safety in a meeting with then-Representative Rep. Chet Holifield, a nuclear industry zealot, who said:

“Alvin, if you are concerned about the safety of reactors, then I think it may be time for you to leave nuclear energy.” Dr. Weinberg succinctly states, “I had never been fired before.”^[34]

When Dr. Karl Morgan prepared an unclassified talk discussing the pros and cons of the Liquid Metal Fast Breeder Reactor (LMFBR) and nuclear proliferation concerns, his paper was withdrawn, destroyed, censored and resubmitted by Oak Ridge National Laboratory management without his permission, while he and his wife were on vacation.^[35] Dr. Morgan was told he was “jeopardizing the welfare of the laboratory” by criticizing management and thereby risking contracts for LMFBR work.^[36] Dr. Morgan was retaliated against by ORNL directors for criticizing the LMFBR: they continued their blacklisting campaign even when he left Oak Ridge and taught at Georgia Tech: they wrote the President, “deploring my stand and shaming the university for having me on its faculty.” The next day, Dr. Morgan was told his contract was not being renewed, denying him his pension after 9.5 years teaching graduate engineering, on six months short of pension eligibility.^[37]

Consistent with Dr. Morgan’s experience are the September 1997 remarks of ORNL Director Dr. Trivelpiece to the Tennessee legislature to the effect that if the State of Tennessee pushed too hard for environmental cleanup in Oak Ridge, it could mean less money for research projects and cost jobs. State Senator Lincoln Davis (D-Pall Mall), stated “That sounded somewhat like a threat... I don’t know if it was a threat. It just didn’t sound right.^[38]”

In 1997, Oak Ridge National Laboratory Director Dr. Alvin W. Trivelpiece, Ph.D., President of Lockheed Martin Energy Research, gave his State of the Laboratory Address, in which he used the word “threats” some seventeen (17) times in discussing the “threats” to the future of Oak Ridge National Laboratory.

Too many Oak Ridge managers like Dr. Trivelpiece perceive all internal and external criticism as “threats.” Dr. Trivelpiece’s main concern was losing his own highly paid position and perquisites, e.g., in the event that the Department of Energy selected another organization to operate Oak Ridge National Laboratory. Dr. Trivelpiece stated his view of criticism and debate about Oak Ridge institutions, which reflects the views of Oak Ridge management:

We must collectively and aggressively defend ORNL against those forces that would seek to diminish or destroy it.

(Emphasis added). Whether the concern is “jobs” or criminal law violations, the “old culture” in Oak Ridge exists to suppress information about environmental, safety and health problems.

1.4 “EQUITY DELIGHTS TO DO JUSTICE, AND NOT BY HALVES”

It is an ancient equitable maxim that “equity delights to do justice, and not by halves.”

DOE nuclear weapons plant victims are frozen out under current law. DOE’s charade of a compensation bill, S. 1954 and H.R. 3418, requires a total redraft, as discussed in § 2 of my testimony. Congress should enact remedial legislation,^[39]not DOE’s masquerade. This is neither the first or the last hearing on Oak Ridge pollution and its effects. Future hearings should be held on DOE-related issues.

Health care independent of DOE must be assured, as discussed in § 3, infra, to make Oak Ridge and other DOE sites more like “normal communities.”.

Whistleblowers are not provided with full and fair remedies when they come forward with information and engage in protected activity. Government funds are being extravagantly doled out to fight whistleblowers.

Meanwhile, whistleblower laws are not working well at DOL: this must be changed, as discussed in §§ 4 & 5 of my testimony. In fact, DOE and its entrenched contractors are the major beneficiary of the Department of Labor’s ongoing refusal to enforce whistleblower laws (desuetude). The reorganization of both investigative and appellate functions in the Department of Labor since 1996 has been a disaster, resulting in:

(a) inept OSHA investigators instead of experienced Wage-Hour investigators handling cases filed by East Tennesseans; and

(b) continuing long delays in appeals from Department of Labor Administrative Law Judge decisions..

Environmental and nuclear whistleblower cases are supposed to take 90 days under federal law. DOE treats the law as precatory, and that never happened.

Finally, State and Federal crimes have probably committed involving pollution in Oak Ridge: those crimes should be investigated, indicted and prosecuted, as discussed in § 6 of my testimony, as it was in my 1983 testimony before then-Reps. Gore and Lloyd.

2 DOE’S FLAWED “FIRST DRAFT” PROPOSAL FOR COMPENSATING TOXIC VICTIMS OF NUCLEAR WEAPONS PRODUCTION

2.1 INTRODUCTION

In August 1986, I was sworn in as a law clerk for the United States Department of Labor Office of Administrative Law Judges. After a few months, I was assigned to spend most of my working and waking hours assisting The Chief Administrative Law Judge, the Honorable Nahum Litt. Chief Judge Litt was responsible for assuring that American workers received the full benefit of Due Process adjudications under whistleblower statutes and the DOL compensation system for coal workers’ pneumoconiosis (Black Lung) and Longshore and Harbor Workers. Other federal agencies -- like Social Security -- often violated Due Process due to pressures during the Reagan years.^[1] At DOL, Chief Judge Litt protected workers’ rights under the Administrative Procedure Act, standing as a bulwark of democracy against the worst the Reagan and Bush Administrations had in mind. One could not ask for a better mentor than Chief Judge Litt, or a better introduction to the attempted pressures of agency officials and the need for independent adjudications, guaranteed by the Administrative Procedure Act.

I have studied the Administration proposal on workers’ compensation for nuclear workers and compared it to the rights available to coal miners and Longshore workers. The Administration’s proposal envisions a compensation system like the Office of Workers’ Compensation Programs (OWCP) and its Federal Employees Compensation Act (FECA) cases, which has no Administrative Law Judges and no appeals. DOE refuses to follow the precedent of the Black Lung and Longshore Programs, also administered by OWCP, which have hearings before independent Administrative Law Judges and full rights to appeal. It is my considered opinion that the DOE would deny Due Process, and lacks protections for worker rights. The Administration’s proposal is deeply flawed, at best, and fails to guarantee the basic Due Process provided to American coal miners and longshoremen. There is no principled reason why two Tennessee brothers should have differing rights when one gets sick from beryllium disease at the Y-12 Nuclear Weapons Plant in Anderson County, and the other gets lung disease from working in a neighboring Scott County coal mine.

This Committee should demand answers to key questions: Who pays? Who gets benefits? Who controls the program? What is being paid? What rights are being taken away? Are benefits reduced based on other workers’ compensation benefits? Who decides? Is there any appeal? What physical and mental conditions are being compensated? How many would receive benefits. Answers to these questions ineluctably lead to the conclusion that Congress should write its own proposal, based upon legal principles established in the Longshore and Harbor Workers Compensation Act (LHWCA) of 1928 and in the Black Lung Benefits Act of 1969.

2.2 DOE’S ILLUSORY COMPENSATION BILL: QUESTIONS AND ANSWERS

Who would pay?

DOE does not propose Congress enact a tax on DOE’s contractors to pay for compensation, as Congress did on coal companies in passing Black Lung compensation. Instead, the benefits will be paid out of general revenues, making budget concerns tower over public health ab initio, and using the budget mechanism to effectively limit the number of persons awarded benefits.

This is an unfair, regressive subsidy from every American to DOE’s contractors. Shame on DOE for its insensitive approach, which makes compensation look more like a bribe or welfare than compensation for workplace injuries. This sends the wrong message to government contractors: make enough workers sick and the Government creates a bailout. This is obscene and absurd.

Vice President Al Gore has long favored a pollution tax to “internalize external costs.” A pollution tax should be levied upon every DOE operating contractor ever to operate a DOE site. The tax should be proportionate to the pollution and sick workers left behind. Funding should be based on taxing DOE’s contractors, not innocent Americans. Then Congress will be more likely to grant full rights to fair benefits for all injured workers and residents (and less to trying to limit the number of beneficiaries). The Black Lung program is a pay-as you go program, based on the Longshore and Harbor Workers’ Compensation Act of 1928.^[2] As Gene Joyce has suggested, Black Lung should be our model here.

By making compensation part of DOE’s budget -- instead of taxing contractors -- DOE managers ask Congress to create a built-in conflict of interest: budgetary pressures that would be known to decisionmakers who lack judicial independence.

DOE sites have a history of conflict of interest^[3] -- environmental monitoring, radiation protection, self-policing -- leading to legislation calling for “external regulation.”

Supreme Court Chief Justice Earl Warren and the Bible both agree on one thing: "A [person] cannot serve two masters."^[4] Conflict of interest standards are intended to “prevent dishonor.”^[5] To do so, the DOE budget should not be tapped for nuclear worker benefits, because this would give DOE personnel an incentive to deny benefits for their own agency’s benefit. DOE contractors should be taxed to pay for the benefits, with a tax system taking its cue from the Black Lung Benefits Act per ton coal tax or Vice President Al Gore’s proposed pollution tax.

Who would receive benefits?

In DOE’s first draft, only a subset of the most activist sick workers -- the beryllium workers, Oak Ridge and Paducah workers -- would receive benefits. Local residents and all of the workers and residents from all of the other sites are left behind.

Why?

DOE has targeted the most vocal workers, hoping it won’t have to do anything if they take its bait. This is a cynical approach to workers compensation and public health. Not even the coal industry lobby dared propose such a cynical bill. No coal company ever proposed that only those persons active in the Black Lung Associations (BLA) should have received compensation in 1969. Buying off DOE weapons site pollution critics is not an appropriate basis for writing legislation. In America, we call it bribery.^[6] The sick workers see through this plan, and have roundly rejected it -- every single one of them. DOE should apologize for this attempted manipulation.

Who would control the program?

DOE and not DOL. This is the “control game.” This control by DOE over its own compensation program is contrary to the now well-established principle of “external regulation” of every aspect of DOE. What other organization has its own in-house workers’ compensation system? Would outspoken DOE critics be targeted for benefit denials in retaliation for criticism? Why should DOE being given a choice by “contracting” with DOL to have DOL run the program. External regulation should be assured and assumed.

What would be paid?

$100,000 per person, tax-free. There is no strong commitment for money for lifetime medical care and treatment. Legal fees come out of awards, and are limited to 10%. In contrast, under the Black Lung legislation, monthly benefits are paid to the miner and his or her surviving spouse and children, along with lifetime health care and attorney fees based on hours worked and reasonable hourly rates. By capping legal fees and making them come out of the awards, DOE seeks to discourage zealous legal representation. In a true “compensation” system, workers should not have their awards reduced by any percentage for fees -- legal fees should be calculated separately. (Under the Federal Tort Claims Act, fees are capped at 25% of awards). Total Black Lung compensation can reportedly reach $500,000, including medical bills, in a typical Black Lung case.

What would be taken away?

All rights to sue DOE, the United States, DOE contractors and subcontractors and employees, by the employee, representative, spouse, dependents, survivors, next of kin, hospitals, doctors and insurance companies in any civil action. DOE retains the right to sue whoever made you sick to recover its costs, but you give up all rights.

Would benefits be reduced based on other workers’ compensation benefits?

YES. Benefits would be reduced by payments under any state or federal workers compensation system, excepting medical expenses.

Who would decide who gets paid?

DOE and DOE doctors. This is a blatant conflict of interest, and “tempts dishonor.”^[7] DOE doctors getting DOE performance reviews will perform what should be an adjudication function performed by independent Administrative Law Judges appointed pursuant to 5 U.S.C. § 3105. Why should the polluter’s own personnel decide who the polluter has made sick? This is an outrage.

Under the legislation, DOE could hire DOL to do its decisionmaking for it (presumably, a contract to pay the DOL Office of Workers Compensation Programs to handle paperwork). In contrast, Black Lung benefits are decided by independent Administrative Law Judges, protected by lifetime tenure, free to decide cases based on medical evidence and legal precedent.

Government physicians have bosses and would serve on “panels.” This is reminiscent of the NRC Atomic Safety and Licensing Board (ASLIB), where “panels” of technical “experts” were presided over by “judges” who are not independent Administrative Law Judges. The purpose of those panels was to approve every nuclear powerplant license ever placed in front of them by the NRC staff. This is not “science.” It is “junk science.”^[8] This is not “adjudication.” It is yet another administrative law “kangaroo court.”. This is not democracy -- it is autocracy, or what Max Weber first called “bureaucracy” or “technocracy.” Congress should find that it would violate Due Process^[9] and reject the DOE bill.

DOE’s bill sets up not an administrative-judicial process but a medical lottery. Government physicians have been harassed and intimidated in the past for their outspokenness on medical conditions ranging from Gulf War Syndrome to the Tuskegee, Alabama syphilis experiment. The “panels” could be filled by DOE clone physicians who pretend that there is not enough “data” -- after DOE for years concealed death rates by epidemiological flummery.

DOE employee should ever be involved in making compensation decisions. If DOE decides who gets compensation, it could use its power to punish those who are its most vocal public critics, while buying off persons who agree to gag orders. See infra. It is a conflict of interest for DOE employees who gets compensation at DOE sites.

The bill provides no principles of balance or neutrality in selection of government physicians to sit in judgment on workers’ compensation claims, which are ultimately legal, not medical, determinations for Congress to make, just as in the Black Lung interim presumption. Government physicians vary in quality and integrity. Dr. Michaels will not always be there: his successor could be Dr. Philip Edelman, M.D. who examined workers for Lockheed Martin without testing their blood or urine, and who arrogantly opines in workers’ compensation cases about data not being available. Whoever hires, pays, evaluates and promotes the physicians can influence the number of decisions awarding benefits be paid.

It is all too common in Government for agencies to try to influence the awarding of benefits to save money. In the 1980s, the Social Security Administration kept sending its “independent” judges back to what U.S. Rep. Barney Frank (D. Mass.) called “remedial judging school” if they ruled too often for disabled workers. Congress wrote the Administrative Procedure Act in 1946 to protect citizens’ rights to fair treatment by their Government in administrative law. DOE asks Congress to exempt DOE from these provisions.

Any worker seeking compensation for injuries from working at DOE sites should have an absolute right to an open, public hearing before truly independent Administrative Law Judges from DOL -- where workers’ witnesses can testify about actual working conditions while they are all still alive, putting the facts on the record forever. In contrast, DOE’s bill shows a marked preference for “kangaroo courts,” which is all that federal employees have under the FECA compensation system. (Ask a DOE or TVA employee how they like FECA).

Would there be any appeal?

No. In DOE’s bill, DOE’s decision is final and unappealable. Why? DOE wants to maintain control, and despite lawyers and courts.

In contrast, DOL has appeals to the Benefits Review Board (BRB). BRB is subject to change with administrations, but bases its decision on precedents and evidence. Anyone dissatisfied with a BRB decision can go to the Court of Appeals and the Supreme Court, which has actually decided a few Black Lung appeals in the past 25 years. This assures a uniform body of precedents that the Government will have to follow. DOE’s purpose in denying worker appeals is to “ration justice.” As Judge Learned Hand said, "If we are to keep our democracy, there must be one commandment: thou shalt not ration justice."

Under DOE’s unfair “alternative dispute resolution” system for compensating sick nuclear workers, DOE’s contractors would have more Due Process rights to appeal from an unreimbursable party expense than a worker and his/her family would from denial of compensation for sickness and death.

In contrast, DOE could deny one worker benefits while giving benefits to another with the same condition from the same plant, with no right of appeal. This is the litigation system DOE preferred for years in security clearances, eschewing Anglo-American system of precedents for “secret law.”^[10]

If anyone believes this autocratic, no-appeal system will produce just and fair decisions, s/he has not been paying attention. DOE’s almost diabolical opposition to appeal rights shows that DOE expects “the control game” to continue. DOE wishes to run the system the same way it runs nuclear weapons plants. (Of course, under DOE’s no-appeals system if you get cancer or die, you or your heirs could always request reconsideration and reopen your claim.)

What physical or mental conditions would be compensated?

Only a very few of the conditions known to be associated with nuclear weapons plants, namely certain beryllium disease, leukemia, multiple myeloma, lymphomas (but not Hodgkin’s disease), primary cancer of the bone and lung (except for heavy smokers), and a list of other cancers with other words of limitation. No mental conditions are listed, not even depression due to chemical exposure. The bill has, in effect, adopted the idea of an “interim presumption,” entitling people to benefits based on specified conditions, as under the Black Lung benefits law. Yet not enough conditions are listed. It is a narrow “interim presumption.” This is a start for discussions, not an finished work product.

Congress should draft a more humane “interim presumption” to benefits. It should be not unlike the early Black Lung “interim presumption,” but applied to a complex set of chemical and radiological conditions. Physicians should help refine the accompanying DRAFT interim presumption, which is my conceptual approach to the problem, but does not reflect the doctors’ knowledge and expertise that will be required to make it FINAL.

How many people would receive benefits?

Probably not very many people. This is a public relations device without a conscience. It creates false hopes, is intended to divide sick workers into groups with different interests, and to “reward” with minor amounts of money only those who have been most active in raising concerns, apparently in hopes that a real reform will never be adopted. This bill could help a few workers with a few conditions in a few places. But it would not help any of the sick local residents. It would not help most sick workers. It would not help people in most places.

Meanwhile, the DOE compensation bill would (like zero in math) be a “placeholder.” This bad bill would occupy the field, and allow Congress to say it passed a “reform” when it did no such thing. This is known as “political pandering.” It is an insult.

Why should two disabled brothers with lung diseases have radically different federal rights and benefits, based merely on the fact that one worked in the coal mines and the other worked at K-25?

DOE is cruelly rejecting 30 years of experience with Black Lung benefits, proposing to give sick nuclear workers unequal rights to benefits, health care, Due Process, independent judges, a fair appellate process, legal fees and an “interim presumption” based upon medical science.

A fair compensation system would apply the valuable lessons learned from Black Lung disease compensation, rather than invent the proverbial “camel designed by [DOE] committee.” This is not a reasonable proposal. This bill is a political football intended to solve political problems -- environmental concerns about nuclear weapons plants and sick and dying workers. It is inadequate.

Who would choose physicians?

Following the DOL OWCP Federal Employee Compensation Act model, doctors would be picked by government employees and government contractors, not workers, and workers would be shuttled on a “Grand Tour” of biased physicians attempting to argue that they should not receive compensation. In contrast, California law recognizes the right of workers to have medical examinations before doctors of their own choice, with full reimbursement of expenses establishing entitlement to benefits.

Who would pay lawyers and how?

Lawyers would receive up to a 10% contingency for representing claimants, capping fees at $10,000 under the $100,000 payoff plan. This reduces workers’ recovery to only $90,000, while paying lawyers very little for what could be development of complex medical evidence and causation. This provision discourages lawyers from taking DOE workers’ cases while reducing the amount of work that they can afford to do proving occupational disease causation.

In contrast, under Black Lung and Longshore, DOL pays Claimants attorneys a reasonable hourly rate for a reasonable number of hours’ work. Not one penny of benefits is taken away from workers’ compensation claimants to pay their lawyers. Lawyers are assured that if they take and win a complex occupational disease case, they will be paid fees that compensate them for their work. That is the preferred alternative, to encourage lawyers to take occupational disease cases. The other alternatives -- a 20% or 25% contingency as in state workers’ compensation or Social Security disability cases -- is harsh, taking away the workers’ benefits to pay lawyers fees.

Would “gag orders” be allowed on settlements?

There is no provision in the legislation that prohibits DOE from asking for a “gag order” or confidentiality agreement in exchange for receiving benefits. DOE’s “bait-and-switch” whistleblower scheme has attempted to use “gag orders” to suppress information. In contrast, gag orders are prohibited by Department of Labor nuclear and environmental whistleblower precedents.^[11] Unless the DOE and the Justice Department want to make the case publicly for why gag orders should be allowed on bomb factory worker and neighbor compensation, Congress should find and declare that gag orders are illegal in nuclear worker compensation settlements, and make them a felony.

2.3 NUCLEAR WORKER COMPENSATIO SHOULD FOLLOW BLACK LUNG AND LONGSHORE COMPENSATION LAWS AND PRECEDENTS

Based on the foregoing comparisons, there is no contest: DOE nuclear workers should have the protection of the Department of Labor Longshore and Harbor Workers’ Act, which has been applied to offshore oil platforms, defense contractor employees in places like Vietnam, and coal miners who develop coal workers’ pneumoconiosis. There is no principled reason why an East Tennessee DOE contractor worker who develops lung disease should get nothing but empty promises, and not have equal rights with his neighbor the coal miner, who develops Black Lung should have a right to independent judges, administrative judicial appeals, and if found entitled to benefits, compensation for himself, his spouse and his children, and a lifetime of medical care.

The Department of Labor provides independent Administrative Law Judges, with an appeal to the Benefits Review Board. Instead of having no precedents under the DOE system, there would be a national system of precedent on who receives nuclear worker compensation, based upon thorough hearings and review of the medical evidence.

2.4 CONCEPTUAL DRAFT OF AN INTERIM PRESUMPTION FOR DOE WEAPONS WORKER COMPENSATION THROUGH DEPT. OF LABOR

What follows is a conceptual draft of language to consider on the Interim Presumption to Benefits, modeled after the Interim Presumption in Black Lung law. Of course, the Committee should thoroughly vet the proposal with comments from physicians before Committee Markup:

DEFINITIONS section -- definition of “interim presumption”

( ) An “interim presumption” in favor of eligibility to full benefits, final and rebuttable only by substantial evidence that the worker is not fully or partially disabled, arises IF the DOE nuclear worker or neighbor (or decedent) was:

n either employed in a listed nuclear plant or employment or lived in a surrounding community; AND

n worked or lived five years in or around such DOE employment or surrounding community;

AND qualifies under at least one of the following conditions:

n was found upon medical examination to have levels of one or more qualifying toxins in his or her body that are 2 standard deviations above the mean on hair samples;

n suffered two or more heart attacks before age 50;

n suffered one or more strokes before age 55;

n suffered loss of at least five IQ points after toxic exposures;

n suffered cancer or required surgery due to cancer;

n was found to have been exposed to toxics above safe limits;

n has dosimetry or medical records said to have been “lost” or “misplaced” for more than one week;

n has biopsy samples, surgical removals or other live or dead body parts that have been unaccountably destroyed, removed or lost;

n suffer from chemically induced depression;

n was hospitalized, or had his/her parent, spouse or child hospitalized, at a hospital conducting experiments for the AEC, NASA, ERDA or DOE without proper knowing and voluntary consent;

n died of cancer, heart disease, or stroke prior to age 60.

ALSO, PERHAPS THE LEGISLATION NEEDS TO DEFINE:

n SURROUNDING COMMUNITY

n NEIGHBOR

n QUALIFYING TOXIC MATERIAL

n HOSPITALIZED (?)

n LOST (?)

n MISPLACED (?)

3 NEED FOR INDEPENDENT HEALTH CARE FOR OAK RIDGE DOE SITES

It is now undisputed that Oak Ridge plants have caused disease and death. Sick Oak Ridge workers and residents require Independent health care. Their health care must no longer be under the thumb of DOE and its contractors. For too long, DOE and its contractors have used their clout to control medical information, diagnosis, treatment and care in Oak Ridge.

It is time that Oak Ridge become more like a “normal American community,” supposedly the Government’s goal^[12] -- e.g., one where independent physicians not under the thumb of the Nuclear Weapons industry are ready, willing and able to practice the scientific method without fear or favor, morally and intellectually capable of diagnosing and treat work-related diseases without fear of retaliation, blacklisting and recrimination.

In contrast to the Black Lung Benefits Act, DOE offers a flawed compensation bill with money payouts but no health care. While DOE proposes to spend money buying off individual sick workers in places like Oak Ridge, it has done nothing to provide treatment. It ignores the sick residents, who also require treatment. DOE and its contractors have long controlled health care in Oak Ridge, and they have done nothing to let up.

3.1 ATOMIC ENERGY COMMISSION HEALTH CARE FOR OAK RIDGE DOE SITES

Atomic Energy Commission Order 0521 required that anyone injured by radiation or “special hazards” (toxic materials) was not to be told the cause, but that AEC and contractor medical personnel were to follow the worker’s treatment and communicate with the worker’s doctors. There were even agreements with doctors, hospitals and funeral homes to obtain body parts to analyze for toxic materials. The purpose was to discourage litigation over toxic hazards, not to protect national security secrets. These facts were well documented by Cliff Honicker wrote in the New York Times Magazine over ten years ago.^[13] DOE has never disputed these facts.

Information on what toxicants made specific workers sick was tightly restricted. The word “mercury” itself was “classified” in Oak Ridge. Workers were not permitted to tell their spouses or doctors that they were working around mercury, for example. The only “national security” interest expressed in AEC memos was preventing litigation, not preventing the Soviet Union from using lithium to enhance atomic yields, since they already knew and used the process that required the huge quantities of mercury in Oak Ridge.

3.2 PLANT MEDICAL DEPARTMENTS AND LOCAL HOSPITALS ARE DOMINATED AND CONTROLLED BY DOE AND ITS OPERATING CONTRACTORS

For years, the Medical Department at Oak Ridge plants was under the thumb of DOE’s Oak Ridge prime contractor. In contrast, Hanford had the Hanford Environmental Health Foundation (HEHF), a non-profit paid by DOE to provide health care to DOE Richland Operations plant workers. While HEHF is by no means perfect, the use of a separate contractor is to be preferred.

A corporate Medical Department’s purpose is somewhat Orwellian to begin with: as the Wall Street Journal has documented, corporate medical departments document everything about a worker’s health to use in fighting later litigation (mainly workers’ compensation cases). If you smoke and get a lung disease, any occupational disease claim will be fought with your smoking history, dutifully told over the years to company medical personnel. If you hurt your back gardening and tell a Medical Department nurse, it will be duly noted on your patient chart. If you hurt your back at work several years later, expect to hear about the gardening injury in any workers’ compensation claim.

In Oak Ridge, the plant medical department concept went to extremes with its effort to control information, including destruction and concealment of evidence.

In Oak Ridge, sick workers’ medical files have a way of disappearing into lawyers’ offices for multiple months, endangering health and complicating care in the event of a stroke or injury.

In Oak Ridge, Lockheed Martin flexed its muscles with shocking results. In 1991, Dr. William K. Reid, M.D. came to Oak Ridge and was hounded out of town after he started asking questions about heavy metals and toxics.^[14]

Dr. Reid telephoned Dr. Daniel Conrad, Lockheed Martin Medical Director, asking about heavy metals. Though Dr. Conrad well knew they were a problem, he denied the existence of any problem or any studies. Then Dr. Conrad called Methodist Medical Center management and asked “who is this quack?” Dr. Reid was told, “you need to let more of your patients die” and “you spend too much money” on tests and computer research. A retaliatory peer review procedure persecuted Dr. Reid. The hospital’s profit-making Tennessee Medical Management subsidiary canceled his contract. As documented by CNN and NBC News Dateline, the pressures resulted in Dr. Reid having to work in Franklin while his family remained in Oak Ridge.

In 1992, DOE paid Lockheed Martin to pay the law firm of Baker, Donnelson to sue the Secretary of Labor, seeking to bar Dr. Reid from even having an Administrative Law Judge hearing. A Federal Judge in Knoxville denied this unseemly Lockheed request, but refused to order Rule 11 sanctions against Lockheed. [In contrast, in 1999, after Lockheed filed a SLAPP suit against a whistleblower lawyer for return of interim attorney fees in a case he seeks to reopen based upon new evidence and changed law, a Federal Judge wrote a pejorative order granting Rule 11 sanctions, ordering an apology to Lockheed and one of its lawyers, and excoriating him for criticizing Lockheed, DOE and DOL, and threatening a $10,000 penalty.^[15]]

Judge Jeffrey Tureck, the Department of Labor Administrative Law Judge, appointed to hear Dr. Reid’s case dismissed it without allowing any discovery or evidentiary hearing, supposedly on the basis that Dr. Reid was an “independent contractor.” This decision was upheld by Secretary of Labor Robert Reich, who pointedly refused to reach or discuss the issue as to whether it was protected activity for Dr. Reid to raise concerns about high levels of heavy metals and certain cancers among his Oak Ridge patients.^[16]

For years, Oak Ridge has been dominated by the former Army hospital, Methodist Medical Center, which controls some 30 medical practices through its profit-making subsidiary. Methodist is know owned by “Covenant,” which controls numerous other local hospitals, health care providers, HMOs and health insurance, including:

n Methodist Medical Center of Oak Ridge

n Fort Sanders Loudon Medical Center

n Fort Sanders West

n Fort Sanders Parkwest Medical Center

n Fort Sanders Sevier Medical Center

n MedCenters HomeCare

n Patricia Neal Rehabilitation Center

n Peninsula Healthcare

n Overlook Center

n Thompson Cancer Survival Center

n Fort Sanders School of Nursing

n PHP Companies, Inc.

n Cariten Healthcare

n Maternity Center of East Tennessee.^[17]

DOE and its contractors have and share computer data bases that enable them to follow workers’ medical care, learning whether workers believe their health problems are health related, and monitoring doctors’ treatment and testing. Workers are discouraged from seeing doctors or lawyers about work-induced medical problems.^[18] Physicians in Oak Ridge are run out of town if they diagnose and treat patients open to the possibility of Oak Ridge workplaces causing diseases. Workers have been “fired” for their physicians for persisting in seeking to learn the etiology of disease, or to have testing done for cyanide, heavy metals and other toxicants. Workers have been told that doctors “will not muckrake Lockheed Martin” or that they “don believe in heavy metals.”

When Dr. Reid was being harassed, three of twelve Methodist Medical Center of Oak Ridge directors were Lockheed Martin executives. There had never been a worker or a union leader on the Board of Methodist Medical Center in the entire history of Oak Ridge.

In discussing the formation of the Coalition for Healthy Environment, Lockheed Martin Energy Systems Medical Director Dr. Conrad said he had “no objection” to its forming, but labeled as “completely fallacious” the idea that there could be chronic environmental cyanide poisoning.^[19]

Referring to some of the very sick workers who would like to testify before this Committee, Dr. Conrad said “my main concern is that these folks are not obtaining the appropriate care that they should for whatever condition they have by wasting their time on this fictitious illness.”^[20]

There has been a great deal of turmoil among Lockheed Martin managers in Oak Ridge about their future under new contractual arrangements^[21], with Lockheed no longer the prime contractor at K-25 or ORNL. Dr. Conrad stated that Oak Ridge managers are “eager to try to come to a conclusion about whatever was going on” in Oak Ridge.^[22] Dr. Conrad stated, “I don’t think anyone likes to be criticized over a period of time. I don’t think our managers are any different from the rest of the human race, no.”^[23] Dr. Conrad was concerned that the cyanide issue persisted and did not go away.^[24] After Dr. Conrad limited the work of staff physician Timothy Oesch, the cyanide issue did not go away. Id. The issue did not go away after the NIOSH investigation.^[25] The issue was very much alive in August and September of 1996 at the time of the Coxes’ layoff notices.^[26] The issue remains alive today.

In the ordinary course of business, an employee filing a medical incident report needs to go to the medical department “[j]ust once.”^[27] Having to return to the medical three times to file a medical incident report is outside the ordinary course of business.^[28]

In the ordinary course of business, employees wishing to file outside medical reports on anything about their health would be placed in the Lockheed Martin medical file.^[29] Employees filing medical incident reports on cyanide in Oak Ridge on cyanide poisoning encountered “difficulties” in filing the reports.^[30]

Mr. Conner, the K-25 Plant Manager, “said repeatedly if we can identify an occupational exposure to a chemical that would cause a symptom for any worker that I would shut it down,” something the company would need to be doing if we’re hurting people.”^[31]

3.3 COVERUP OF K-25 CYANIDE AND OTHER TOXIC HAZARDS

It has been said that whenever there is a need for someone to blow the whistle, there has first been a failure of organizational ethics.^[32] Oak Ridge is a monstrous failure of organizational ethics, with even the TVA Chairman joining in blowing the whistle on Oak Ridge coverups. In 1983, after the Y-12 mercury losses were finally declassified, Tennessee Valley Authority Chairman S. David Freeman said, “there has been a damned coverup in Oak Ridge.”^[33] Noting much has changed in 17 years.

There has been another “damned coverup” in Oak Ridge, this time at K-25.

At least 55 employees at the K-25 plant in Oak Ridge, Tennessee filed medical incident reports as a result of cyanide being present in their bodies.^[34]

K-25 presents high risks of uranium, cyanide and hydrogen fluoride exposures.

DOE and Lockheed planned to test workers for cyanide, but mysteriously dropped their plans.^[35] The University of Alabama report of March 8, 1996 looked at cyanide concerns in the industrial hygiene context.^[36] Mr. Conner agrees with the findings of the report^[37], which included the statements that:

A. “The lack of a solution to the cyanide issue has been frustrating to all parties. Based on our interviews, we conclude that this frustration has been exacerbated by inadequate communication, miscommunication and/or no communication between employees, supervisors, managers, medical personnel and industrial hygiene representatives.”^[38]

B. There are “constraints” upon industrial hygiene at K-25, including “organizational factors [such] as the chargeback system, restricted methodologies and current mandatory workloads.”^[39]

C. “At least initially, the medical group refused to accept urine test results for thiocyanate for inclusion in the employee’s health file.”^[40]

D. “The physicians agree that the employees that have been seen are ill and that most have been in poor health for a number of years.^[41]

In 1997, then-K-25 plant manager Harold Conner and other Lockheed Martin managers testified that the cyanide issue had consumed and obsessed K-25 management. Dozens of people and millions of dollars have been spent.^[42]

Lockheed Martin never considered moving K-25 office employees to offices that are not located on a Superfund site while decontamination and decommissioning are occurring.^[43] During 1996 there were some 2500 to 3000 workers at the K-25 site.^[44]

Ms. Walzer is a toxicologist with a Master’s degree. Ms. Walzer was never informed that Oak Ridge and K-25 were Superfund site until a year after going to work for Oak Ridge National Laboratory. Id., Tr. 254. Though he worked in all areas of K-25 for twenty years, Commander Harry L. Williams did not learn that K-25 was a Superfund Site until circa 1995. Id., Tr. 293. When starting to work at ORNL, Ms. Walzer “was told that the Oak Ridge reservation was a 29,000 acre Environmental Research Park.”^[45]

Ms. Walzer was told by LMES manager Conrad Stair, later Lockheed’s Environmental Compliance Director, told her that she needed to get “tough” in response to her request to be moved.^[46] When Ms. Walzer got sick, Lockheed Martin Vice President Michael Mitchell and Mr. Stair told Ms. Walzer that “they were going to let me go offsite but that I was going to have to come back and they were going to see if I got sick.”^[47]

Ms. Walzer was laid off in January 1996, the only person in her division to receive a layoff even though she had received the highest level (“distinguished service”) of Lockheed Martin performance reviews and won numerous awards for superior performance.^[48] A DS rating (like Ms. Walzer earned) is rare in Lockheed Martin Energy Systems.^[49] For a time, Ms. Walzer’s layoff was extended. Ms. Walzer prevailed in a Department of Labor whistleblower complaint and settlement.

Ms. Walzer stated her informed conclusion that:

Definitely based on my situation, I think that Lockheed Martin deals with these issues in a retaliatory nature. I believe that they want their employees to be scared and fear for their jobs. In doing so, they could keep issues like this muddled.^[50]

Dr. Timothy R. Oesch, M.D. is a licensed physician employed by Lockheed Martin since 1987 at the K-25 plant as a staff physician.^[51] Dr. Oesch has read many scholarly and scientific articles regarding cyanide.^[52] Dr. Oesch is the former President of the Roane-Anderson County Medical Society and its disciplinary arm, the Board of Censors.^[53] Dr. Oesch believes that some physicians may be reluctant to share information with patients about environmentally caused diseases and might not share such information.^[54]

After seeing some 13 patients he believed had cyanide intoxication, and after a number of medical incident reports were filed regarding cyanide, Dr. Oesch was instructed in July 1995 by Lockheed Martin Energy Systems Medical Director Dr. Daniel Conrad, in the presence of Mr. Larry Perkins, not to use the word “cyanide” or share information on pain of serious job “repercussions.”^[55] Dr. Oesch was ordered under threat of termination:

not to test anyone for cyanide or treat anyone for cyanide and not to have an outside practice where I would treat anyone employed by Lockheed Martin or test anyone employed by Lockheed Martin.

* * *

Not to test any Lockheed Martin individuals for cyanide, not to treat any Lockheed Martin individuals for cyanide and not to, in any outside -- any outside practice, test or treat any persons employed by Lockheed Martin for cyanide, sir. ^[56]

Dr. Oesch was told he had used “poor judgement” in diagnosing cyanide intoxication among K-25 workers:

“To the best of my memory he indicated that it would be poor legal judg[e]ment to do so, sir.”

Dr. Oesch was told:

“that I should not let patients know about this or that was suggested, at that meeting I basically expressed that I thought it would not be wise to not at least let the patient know something might be suspected in some way. And in going back and forth it was decided at that very meeting that a patient could be informed about something environmental may be going on and that I could give information to their private physician, sir.”^[57]

Dr. Oesch testified that to an extent Dr. Conrad came to his defense against Mr. Perkins when Dr. Oesch “brought up my objection to not even letting a patient know I think they might be ill.”^[58] Dr. Conrad concedes that he told Dr. Oesch not to tell patients he thought they had conditions related to chronic exposures to cyanide.^[59]

Dr. Conrad admits that there is a “tension” between the company doctor’s duty to his patients and his duties to his employer.^[60] Dr. Conrad denies that he treated sick workers as objects.^[61] However, Dr. Conrad stated:

They’re not patients. They’re employees of whom I have a concern for their general health and well-being.... Patients is one that has a one-on-one relationship with me whom I’ve established a relationship so I can treat them on a one-to-one basis. That’s a patient.^[62]

This reveals bias, animus and shows Lockheed’s contempt for human rights of its employees. The dictionary defines a patient as “one who is under medical or surgical treatment.”^[63] Dr. Conrad’s definition is more narrow than the dictionary definition. Dr. Conrad admits personally treating some employees.^[64] Dr. Conrad’s odd semantics suggest that he has in mind the legal defense of medical malpractice actions, not answering questions candidly in this case.

Dr. Conrad states, “I expected [Dr. Oesch] to cease and desist treating any more employees.”^[65] There is “no need to be doing testing for a substance that supposedly was obtained in the plant if there was no exposure.”^[66]

Before the 1995 meeting with Dr. Oesch, Dr. Conrad’s reviewed the medical literature in a cursory manner, and did not include computer searches.^[67] Dr. Conrad “didn’t use” computer searches “very much.”^[68] “I didn’t feel any need to” conduct a literature search, Conrad admits.^[69] The provincial Dr. Conrad condescendingly noted that Dr. Oesch’s references included “foreign literature.”^[70]

Dr. Conrad complains that Dr. Oesch was “treating people on our (sic) company (sic) premises (sic) with sodium thiosulfate for a condition that had no basis in the scientific literature.^[71] Of course, Lockheed Martin does not own the K-25 “premises,” and the alleged “company premises” to which Dr. Conrad refers are owned by the people of the United States, through the Department of Energy.

“To the extent that it was possible in that short time I reviewed my test and I reviewed the -- my books on toxicology. And I found no evidence for such a condition as chronic environmental cyanide poisoning.

* * * *

I did not feel any need to follow up on this any further.”^[72]

Dr. Conrad admits that medical science will probably identify illnesses and causes of illness that are unknown today, and that people are probably suffering from conditions that are not in today’s medical textbooks.^[73]

Dr. Conrad claimed, “There was no exposure that we knew of. There was no need to do such samples.”^[74] Dr. Conrad stated, “I certainly wouldn’t have condoned his testing” for cyanide because “[t]here is no source. We had no source in our occupational setting.^[75] Dr. Conrad protests, “thiocyanate is a result of cyanide and thiocyanate occurring in lots of areas. You can get those in cabbage. You can find them in fruits. Beans..... smoking cigarettes.”^[76]

Workers at K-25 did not get their cyanide from fruits, beans, or smoking cigarettes. In fact, there were exposures, there was acetonitrile (a cyanide compound) burned at the TSCA Incinerator and there was cyanide and cyanide products present at the K-25 site.

The K-25 Hazardous Materials Information System shows that there was 9,876,543 pounds of acetonitrile present at K-25 on May 9, 1996. That is a “source.” Dr. Conrad may have committed perjury before DOL in his testimony.

In addition, a December 1999 report on K-25 by the DOE Office of Oversight for Environment, Safety and Health found that, at K-25:

n there is over 91,000 gallons of acetonitrile in mixed sludges; and

n K-25 worst case scenarios include the unmitigated release of “significant quanties of chlorine gas,” as well as nuclear criticalities from uranium remaining in process equipment.^[77]

These facts were concealed from the K-25 workers. This is fraudulent concealment, and should probably toll the statute of limitations on any criminal investigations or tort actions.

After discussion with Dr. Conrad and Mr. Perkins, Dr. Oesch wrote a paragraph about what he could say to patients he suspected of having cyanide intoxication. This paragraph is fully consistent with Dr. Oesch’s recollection that he was forbidden to use the word cyanide:

I believe there may be the possibility that you are suffering from symptoms secondary to exposure to a common environmental pollutant which is produced in vehicular exhausts, etc. I have experience with environmental pollutant research and would like to supply information to your private physician so that this may be considered in the differential diagnosis of your symptoms. I do no[t] know if you are suffering from exposures to pollutants but I believe it is a possibility which is worth considering. Would you like me to send information to your doctor?^[78]

Dr. Oesch was told to refer patients to outside physicians, and not to specialists.^[79] There are no written procedures that order doctors not to use the word cyanide, or to test for cyanide, or not to treat or diagnose cyanide intoxication.^[80] Dr. Oesch made a record of what he was told.^[81] Dr. Oesch was never previously barred from using any non-classified word in Oak Ridge. Dr. Oesch was never previously given general instructions not to test for any other substance or compound.^[82] However, he was once told in one specific case not to test for fluoride or fluorine.^[83]

Dr. Oesch was also told not to give medical or toxicological literature to patients.^[84] Dr. Oesch was informed “that might be -- implying that we are stating this is an occupational problem.”^[85]

During the disciplinary meeting, Mr. Perkins stated, “that perhaps if I had a patient I thought might be suffering with cyanide intoxication it might be best not to mention it.”^[86] These instructions were given at a specially called ad hoc meeting held in the K-25 medical department library.^[87] The meeting was disciplinary in character.^[88] Dr. Oesch had some concern about losing his job as a result.^[89] Dr. Oesch was told to consider it a “warning.”^[90] Dr. Conrad agrees.^[91] Dr. Oesch testified, “It seemed to be a warning that my services might be terminated, sir.”^[92]

Dr. Oesch was concerned about losing his job and having to move, with adverse effects on his children being able to attend their current school in Oak Ridge:

“I have children now and I like my job. I like my company, I like my location and I like the school they’re in, and I did not want to offend my management.”^[93]

Dr. Conrad was at the time the boss of Dr. Oesch’s boss, or his second level supervisor. Mr. Perkins was the third level supervisor, who was Dr. Conrad’s boss.^[94] Mr. Perkins reported to K-25 site manager Harold Conner.^[95] Dr. Conrad reported to Dr. Fred Mynatt, Executive Vice President of the company.^[96] Neither Dr. Mynatt nor Mr. Perkins are physicians.^[97] Dr. Conrad was responsible for supervising medical directors,^[98] at five sites under DOE Oak Ridge Operations, including three in Oak Ridge, one in Kentucky and one in Ohio, with a combined total of some 20,000 workers.^[99] Dr. Conrad is a team player. Id., Tr. 1512. The significance of a “team player” is that they will tolerate wrongdoing.^[100]

Dr. Conrad claims that Dr. Roberts was out of town on military maneuvers during the meeting, and so was not present.^[101]

The meeting had a “serious tone” and lasted some thirty minutes.^[102] Dr. Conrad said to consider this a warning.”^[103] Dr. Conrad claimed the treatment might be “considered experimental and result in large lawsuits.”^[104]

Dr. Oesch stated that “I was given the impression that this was a very sensitive and dangerous subject, sir, as far as my future employment went, sir.”^[105]

The only treatments Dr. Oesch ever considered are harmless agents such as vitamins and sodium thiosulfate.^[106] At the time, only one of the treatments required a prescription.^[107]

Dr. Oesch encountered a worker-patient at K-25 who had acute cyanide poisoning, as evidenced by bright red venous blood showing cyanide intoxication. Dr. Oesch was forbidden by K-25 Medical Director Dr. Ann Roberts to have the blood tested for cyanide.^[108] The cyanide poisoning patient was rushed by hospital to the emergency room.^[109] Meanwhile, measurement of the blood was hampered by virtue of the transport time to Oak Ridge Hospital (about ten minutes) short half-life of cyanide in the human body, some twenty minutes to one hour.^[110] Dr. Conrad claims not to recall being told about the event.^[111]

Dr. Conrad claimed that Lockheed does not “have that kind of equipment on site”^[112] required to analyze cyanide. Dr. Conrad concedes that electron mass spectrometers” at the K-25 site could have been used to analyze for cyanide.^[113] Dr. Conrad claims that “I did not lie” in saying that Lockheed “does not have that kind of equipment on site” required to analyze cyanide.”^[114]

K-25 Medical Director Dr. Robert Bernstorf stated of the cyanide issue, “There’s nothing to it.”^[115] Based on his knowledge and literature review, Dr. Oesch disagrees.^[116] Dr. Oesch heard the prior K-25 Medical Director, Ann Roberts, speaking with workers about cyanide issues and after such meetings noted that the workers were “upset.”^[117]

Dr. Oesch was never told by Lockheed Martin that he cannot be retaliated against as a result of his testimony before the Department of Labor. Id., Tr. 1248. After Dr. Daniel Conrad’s July 1995 cyanide medical censorship meeting, Dr. Oesch has received bad performance appraisals of “Needs Improvement” or NI, and has been denied raises.^[118] Dr. Oesch knows of no one else who was denied a raise that year.^[119] Dr. Oesch previously received “Consistently Meets” or “CM” performance appraisals and annual raises.^[120] Dr. Oesch was laid off by Lockheed Martin after his protected activity.

The K-25 and Lockheed Martin medical departments are governed by OSHA regulations.^[121] In the ordinary course of business, they accepts medical reports from patients on any subject.^[122] “Normally we would want that information n the records, even it we don’t treat it.”^[123] Mrs. Farver testified that she was interfered with in filing a medical incident report and told that:

“it had come down from Lockheed Martin Corporate that Dr. Oesch was not to be treating or discussing cyanide intoxication on the job and that this was a sensitive and controversial issue was the way that she phrased it.”^[124]

Likewise, Mrs. Ann Orick testified by deposition:

“I had results showing I had elevated levels of thiocyanate in my body. And I tried to work with the medical department, who refused to take my results and place them in my file like they had done everything else that had happened to me out there, or off-site or whatever. They would not accept them. They told me it was a sensitive issue and not to be discussed.”^[125]

When high levels of cyanide appeared in workers who filed medical incident reports, Dr. Conrad never repeated the tests.^[126]

Dr. Conrad is not an expert in toxicology, health physics, hematology, immunology or oncology.^[127]

In the Cox case, Lockheed and DOE managers failed to produce some 23 withheld Exhibits that help establish that they:

1. Knew of and disagreed with the protected activity^[128] and orchestrated a medico-legal “strategy” and spin control to manage cyanide issues by concealing and misrepresenting information.^[129]

2. Knew Oak Ridge plants, including K-25 and Y-12, had acetonitrile and other cyanide compounds in use for years,^[130]yet denied that there was any “source,” as Dr. Daniel Conrad, M.D., former Lockheed Martin Medical Director testified.

3. Consciously chose not to look for acetonitrile or test bodily fluids as planned. The University of Alabama study:

Only looked at hydrogen cyanide

Only looked at inhalation

Only looked at office space^[131]

4. Knew that the LMES management system created “Hazards Recognition Constraints”^[132] and did nothing about them. (The undated summary of the University of Alabama draft report on cyanide further admits the LMES Industrial Hygiene Department’s focus on looking only for hydrogen cyanide).

5. Know the accuracy of Dr. Oesch’s testimony regarding the disciplinary character of LMES management’s censorship of Dr. Oesch’s use of the word cyanide^[133] with LMES admitting in its “Fact Sheet” that Dr. Conrad’s warnings to Dr. Oesch was on referring patients to private physicians and not for “experimenting,” and that Dr. Oesch was given the first step of positive discipline by Dr. Conrad. This document contradicts the testimony of Dr. Conrad in several respects.

6. Kept detailed records on protected activity, down to the precise hour and minute that concerns were expressed, including on Mrs. Ann Orick and Mrs. Sherrie Farver, two radiation protection technicians who testified (by deposition and at trial, respectively) regarding their difficulties in filing a medical incident report and having to return to the medical department multiple times to do so (and being obliged to file an Ethics complaint to get the cyanide readings filed in the medical department). Mrs. Orick and Mrs. Farver are repeatedly discussed in the company’s history of the cyanide controversy.

7. Intended to lobby NIOSH to get NIOSH to appoint investigators to LMES’ liking.^[134] This shows Lockheed Martin Energy System’s consciousness of guilt and the desire for special interest influence.

8. Hired Doctors Lockey, Freeman and Byrd, et al. because workers continued to seek “legal and political redress,”^[135] with plans for the “physician(s) [to be] temporary (sic), independent (sic) part of our site health services to deal with the employees’ concerns and bring closure (sic) to the issue.” (Emphasis added). LMES admits in its own White Paper that its hiring Dr. Lockey et al. was in response to the employees’ protected activity in raising concerns and exercising “political and legal” rights to seek “redress.” Hiring the physicians with this intent shows the Respondent’s animus toward the workers raising concerns. Corporate “White Papers” are normally about an important matter affecting a corporation, and may reflect alarm and animus to employee protected activity.^[136] Here, DOE and Lockheed long withheld from DOL and the workers both their White Paper and Fact Sheets developed in response to protected activity, showing an intent to deceive, e.g., to target worker activists and keep them in the dark about monitoring of protected activity.

9. Failed to produce the “White Paper” and “Fact Sheets” in discovery, or under FOIA in response to a request made two years ago.^[137]This establishes Respondents’ state of mind to deprive DOL of the whole truth.

3.4 OCCUPATIONAL HEALTH MEDICAL ETHICS PRINCIPLES

Dr. Conrad’s curriculum vita shows an affiliation with the American College of Occupational and Environmental Medicine (ACOEM).^[138] The Code of Ethical Conduct of the American College of Occupational and Environmental Medicine (ACOEM):

This code establishes standards of professional ethical conduct with which each member of the American College of Occupational and Environmental Medicine (ACOEM) is expected to comply. These standards are intended to guide occupational and environmental medicine physicians in their relationships with the individuals they serve, employers and workers' representatives, colleagues in the health professions, the public, and all levels of government including the judiciary.

Physicians should:

1. accord the highest priority to the health and safety of individuals in both the workplace and the environment;

2. practice on a scientific basis with integrity and strive to acquire and maintain adequate knowledge and expertise upon which to render professional service;

3. relate honestly and ethically in all professional relationships;

4. strive to expand and disseminate medical knowledge and participate in ethical research efforts as appropriate;

5. keep confidential all individual medical information, releasing such information only when required by law or overriding public health considerations, or to other physicians according to accepted medical practice, or to others at the request of the individual;

6. recognize that employers may be entitled to counsel about an individual's medical work fitness, but not to diagnoses or specific details, except in compliance with laws and regulations;

7. communicate to individuals and/or groups any significant observations and recommendations concerning their health or safety; and

8. recognize those medical impairments in oneself and others, including chemical dependency and abusive personal practices, which interfere with one's ability to follow the above principles, and take appropriate measures.

Adopted October 25, 1993 by the Board of Directors of the American

College of Occupational and Environmental Medicine.^[139].

The 1989 Position Statement on Medical Surveillance in the Workplace of the American College of Occupational and Environmental Medicine (ACOEM) states:

“Medical Surveillance in the Workplace

The American College of Occupational and Environmental Medicine supports establishment of medical surveillance programs for employees exposed to hazardous agents and believes that, in addition to optimal engineering controls and personal protective measures, medical surveillance is a valuable tool for assuring and maintaining a healthful workplace environment. The primary activity of medical surveillance involves collection of specific exposure data, familiarity with routes of exposure and toxic doses, and selection and application of appropriate medical examinations. Special skills and knowledge are needed to formulate, interpret, and make recommendations regarding risk-based occupational medical surveillance. The College therefore adopts the position that:

· Medical surveillance should be done primarily for the benefit of the individual employee and immediate coworkers and employees should be informed by a knowledgeable medical professional of the surveillance results.

· Programs for medical surveillance should not be substituted for collection of exposure information.

· Medical surveillance should not be used for employment purposes such as hiring and firing.

· The employer should be responsible for the cost of medical surveillance and the conduct of the program to include maintenance of medical records.

In such circumstances the employer should be responsible for developing a unique medical program for related specific hazards and exposures utilizing a physician qualified and experienced in the practice of occupational medicine.”^[140]

3.5 NEED FOR REFORM OF PLANT AND COMMUNITY HEALTH CARE

DOE and its contractors must get out of the medical coverup business.

No longer should DOE and its contractor be permitted to control health care and obstruct care, diagnosis and treatment.

DOE’s plant physicians should be hired by another federal agency, and should work for a non-profit organization with scrupulous independence.

There must be an independent clinic to treat workers and residents, with no ties that bind to DOE or its contractors.

Those responsible for the medical coverup of K-25 health problems should be investigated by a Special Counsel appointed by the Attorney General in Washington, D.C. -- the Special Counsel should be thoroughly independent of the U.S. Attorney and local government offices with ties to DOE.

Doctors, nurses and all other medical personnel should have the full protection of DOL whistleblower laws for any concerns about environmental or health issues.

Never again should a physician in private practice be subjected to retaliation for diagnosing work-related conditions in his patients. The “independent contractor” loophole in whistleblower law must be ended.

Plant medical departments should be strictly regulated to protect against conflict of interest and abuses of power like those seen at the K-25 site.

4 Flawed Federal Administrative Remedies for DOE and Contractor Nuclear and Environmental Whistleblowers

DESUETUDE --

“Disuse, cessation, or discontinuance of use -- especially in the phrase, to fall into desuetude. Applied to obsolete statutes.”

Black’s Law Dictionary

“The state of being no longer used or practiced.”

Random House College Dictionary

You are an ethical employee who raise environmental or nuclear safety concerns, a “whistleblower,” working for a U.S. Government contractor. First you suffered workplace harassment, the slow torture of a hostile working environment. Now you are fired. If you seek justice from the Department of Labor, you may wait multiple years for one of its “90 day” whistleblower decisions, to see whether you might win a final order in your favor. You suffer greatly from stress: you wait and wait and wait.

The Department of Labor Inspector General (DOL IG) has found that DOL, the federal agency examining your case, has intentionally delayed whistleblower cases for most of its whistleblower adjudication history.^[141] The DOL IG condemns these delays as “unconscionable” and says they violate Due Process. As if to add insult to injury, all legal defense costs of your government contractor employer adversary is 100% compensated by Uncle Sam, a direct subsidy to the alleged discriminators.^[142]

Yet if a worker complains to DOL about delays today and DOL shrugs its shoulders and often gets a flippant response from the person responsible for the delays, not from DOL upper management. DOL follows “Total Quality Management,” a theme of which treats the worker as a “customer.” Yet where whistleblower cases are concerned, DOL seems to take the position that “the customer is always wrong.”

In passing the Clean Air Act whistleblower law, Congress said:

The best source of information about what a company is actually doing or not doing is often its own employees and this amendment will ensure that an employee could provide such information without losing his job or otherwise suffering economically from retribution from the polluter.^[143]

Representative William D. Ford (D. Mich), in supporting the Federal Water Pollution Control Act (FWPCA) whistleblower provision reinforced this view

Mr. Chairman, in offering this amendment we are only seeking to protect workers and communities from those very few in industry who refuse to face up to the fact that they are polluting our waterways, and who hope that by pressuring their employees and frightening communities with economic threats, they will gain relief from the requirement of any effluent limitation or abatement order."^[144]

Past Administrations whistleblower adjudication created delays by design. The current Administration has shown no great love for whistleblowers whistleblower laws, and may be doing the same thing, by default. This leads to the question, “is the whistleblower safety net “designed to fail?”

4.1 SWIFT “90 DAY WHISTLEBLOWER REMEDIES FOR DOE AND CONTRACTOR NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWERS

“Whistleblower protection” laws are supposed to protect workers from retaliation^[145] for reporting concerns to governments and their employer. Commencing with the Federal Coal Mine Health and Safety Act^[146], Congress has adopted strong legal remedies for persons reporting concerns under environmental, nuclear and trucking and government contracts whistleblower law. A covered employee is protected for expressing her concerns as well as for “doing his job too well,”^[147] for refusing to do improper work, and for refusal to work in unsafe working conditions.

In proposing environmental whistleblower laws, Senator Edmund S. Muskie (D-Maine), Senator Gary W. Hart (D-Colo.) and other sponsors of whistleblower laws chose to bypass busy U.S. District Courts. The sponsors set a “90 day” time limit, a queer novelty for U.S. administrative law, whose pace is often glacial, where long multi-year delays are commonplace and accepted by business and regulators.

The DOL environmental whistleblower law system was divided, like Caesar’s Gaul, into three parts: investigations, hearings and appeals. Thus, the “90 day” whistleblower statutes provide just 90 days for DOL to investigate, hold a hearing and hear an appeal. The reality is that DOL can take 5-7 years (or more) to adjudicate the worker’s case,^[148] without bona fide justification or excuse.

These long delays truly matter, because workers are fired and often lack adequate state law remedies. Only some whistleblowers (in nuclear and trucking whistleblower cases^[149]) have provisional remedies (which make them whole swiftly after OSHA or an ALJ rule). Much of the delay is waiting for DOL to act on Administrative Law Judge decisions. The DOL Inspector General (IG) agrees that these delays constitute desuetude^[150] and violate litigants’ Due Process rights Yet some other DOL managers vehemently deny that there is desuetude (if they know what it means). Why do whistleblower cases take years when the whistleblower laws each promise 90 days? The Reagan attack on government regulation hit the Labor Department particularly hard. DOL managers delayed whistleblower cases and sometimes intervened in particular case decisions.^[151]

For two decades, DOL has weakened its enforcement of laws against discrimination against working men and women, reducing manpower and funding. Workers have been denied prompt adjudications through deliberate choices made by former Secretary of Labor Elizabeth Dole and other Reagan-Bush era Labor Secretaries, also including Clinton Secretary Robert B. Reich. The morale, numbers and budgets of DOL adjudicators and investigators plummeted.

4.1.1 Evisceration of DOL Labor Law Enforcement Since 1981

DOL was eviscerated under Presidents Reagan and Bush and has not recovered under President Clinton. The Lawyer’s Committee for Civil Rights Under Law reported in 1993 that DOL “made a mockery” of the DOL Office of Federal Contracts Compliance Programs (OFCCP) during twelve years marked by “a climate of official hostility” to civil rights.^[152] A 1998 USA Today investigation found DOL is still greatly reducing child labor law fines, even after deaths occur: a DOL manager told one family that a higher fine would not bring back their son.^[153] Secretary of Labor Alexis Herman has stated that while the economy is booming and unemployment is “the lowest in a quarter century” --

occupational fatality rates remain unchanged. Over 6200 working men and women died on the job [in 1997]. No workers should be forced to choose between their lives and their livelihoods.^[154]

4.1.2 DOL’s “Unconscionable Delays”

The Department of Labor Inspector General and U.S. General Accounting Office have found that DOL whistleblower cases take too long to adjudicate. This results in DOL’s inability to protect “First Amendment values” in the workplace.^[155] Delays help make any DOL remedy meaningless, often years after the fact.

The DOL IG found that the DOL Office of Administrative Appeals was a graveyard for discrimination cases, with cases up to 10 to 20 years old found by the DOL IG. Amidst these delays, what once were one day or half-day whistleblower “mini-trials” are now turning into week-long and longer trials, with large organizations spending millions of dollars on lawyers to fight reinstatement, backpay and damages for fired whistleblowers, taxing the resources of whistleblowers and their counsel. After often complex whistleblower trials, there are often multi-year waits for appeals DELAYED BY DESIGN! The undisputed evidence of this fact comes from the DOL IG.

The Reagan Administration’s first Labor Secretary was Raymond Donovan, formerly of Schiavone Construction Company. Under Secretary Donovan and his successors, corporate interests were exalted in DOL. Under Secretary Donovan, the DOL whistleblower case appeals process became biased and political, openly and notoriously biased in favor or employers. Secretaries of Labor Ray Donovan, Elizabeth Hanford Dole, Lynn Martin, Ann Dore McLaughlin, William E. Brock III and Roderick D’Arment were all involved in DOL’s oppression of whistleblowers. The same can be said for President Clinton’s first Secretary of Labor, Robert Reich, 1993-1997. Finally, under Alexis Herman the current Secretary of Labor, very few final whistleblower decisions have been issued, and the Administrative Review Board has taken to posting its briefing orders on the Internet to give the illusion of activity.

4.1.3 DOL Inspector General Found Intentional Delays of Whistleblower Cases

The DOL Inspector General found intentional political appointee orders not to issue decisions in pending DOL worker rights adjudications.

In the 1980s, the Tennessee Valley Authority (TVA) was the most frequent defendant in DOL nuclear powerplant whistleblower cases: at one point, 90% of all cases in the country were filed against TVA. In 1985, a former TVA lawyer, Ms. M. Elizabeth Culbreth, was named DOL Office of Administrative Appeals (OAA) Director. Soon thereafter, a Tennessee Valley Authority lawyer allegedly bragged, “we’ve got someone right outside the Secretary’s door.”

TVA and other employer lawyers could count on OAA delays to coerce lowball settlements. A deliberate “tilt” against whistleblowers was implemented by M. Elizabeth Culbreth, controversial Director of OAA during 1985-93. During Ms. Culbreth’s years, political appointees delayed decisions by design. The DOL IG found that several Secretaries of Labor gave orders that Ms. Culbreth willingly carried out. Ms. Culbreth was fingered by her Deputy, Gresham Smith, another Schedule C appointee. Mr. Smith wrote a memorandum purporting that DOL OAA staff wanted to protect workers and was unable to do so.

Employers delighted in the delays in whistleblower cases during Ms. Culbreth’s reign, as well as her series of very narrow rulings on statute of limitations and evidence. Ms. Culbreth is now a whistleblower law adviser for Lockheed Martin. Ms. Culbreth’s career at DOL from 1985-1993 left American whistleblower law careening in its wake, saddled with an enormous backlog of decisions delayed by her design as the willing spear carrier for the political agendas of successive Secretaries of Labor.

4.2 DOL’S HISTORY OF MISHANDLING APPEALS

DOL has fumbled appellate adjudications of all kinds for decades, unwilling and unable to provide either prompt decisions or independent decisionmakers.

4.2.1 Lack of Independence and Competence

In 1986, the DOL Inspector General recommended moving the Office of Administrative Appeals out of the Solicitor’s office “for reasons of independence.”^[156] By comparison, the Interior Department made this change in its Office of Hearings and Appeals in the 1970s.^[157] The IG also found that OAA lacked a docket system and adequate case management reporting system. Id. As a result of that report, the OAA was moved under the Secretary of Labor.^[158] DOL ALJ decisions were still being reviewed by staff attorneys, not ALJs whose independence is protected.^[159]

4.2.2 IG Found Cases Shoved In “Burial Ground”

Critical 1993 and 1994 Inspector General audits found that the Secretary of Labor’s Office of Administrative Appeals had “served as a burial ground for cases on which the Secretary and other Departmental officials did not issue a final decision.”^[160] The DOL IG found that OAA “functioned to keep some matters from ever reaching final decisions.”

Looking at the 26 oldest cases, DOL IG found that “the average elapsed time for these cases from receipt by OAA to the time of our audit work was 7.5 years and the range was from 5.3 years to 10.5 years.”^[161] In a number of cases, draft decisions were written and never issued, one as early as 1984,^[162] but no final decision was issued.

In the Honeywell sex discrimination case, over 1000 defense contractor employee women waited a fifth of a century for the Secretary of Labor and OAA to act: “This case is 20 years old,” the IG reported in 1994.^[163] The case began in 1972 and was decided by Reich in 1994. The women worked in Minneapolis-St. Paul area offices, warehouses and factories making guidance systems for aircraft, weapons and other weapons systems as well as HVAC controls. The women were subjected to a workplace in which there were men-only jobs and a denial of fair promotions.^[164]

4.2.3 Poor DOL Management Response To Audit

The DOL Inspector General (IG) contends that OAA management failed to respond responsibly to the 1993 audit, leading to a critical DOL IG 1994 memorandum to the Secretary of Labor.^[165] The DOL IG found “major deficiencies” in OAA workload management and productivity “to a degree that constitutes denial of due process to some parties awaiting final decisions from the Secretary of Labor and other Departmental officials.”^[166]

4.2.4 Lack of Timeliness Standards

In May 1993, the DOL IG recommended that OAA establish “timeliness standards,” develop workload management information and “focus the planning and budgeting processing on identifying the operational changes and the resources required to meet the standards.” OIG maintains OAA did not do so.

4.2.5 OAA Admits Need To “Restore Integrity” to DOL Administrative Process

In the view of the IG, after the IG’s 1993 OAA findings and request for action, OAA did a desultory job for months coming up with an action plan to address all of the IG’s findings. OAA noted in the short “plan” its perennial Reagan-Bush era budget, personnel and “morale” problems,^[167] and the lack of a permanent OAA Director^[168], protesting that OAA employees:

are conscientious, and dedicated to the vindication of employees’ rights in our cases and were not responsible for the decision to delay work on some of the oldest cases. I believe that I can represent that they were uniformly thrilled about the issuance of Honeywell and the prospect that these other old cases will be issued.^[169]

Eleven days after Acting OAA Director Gresham Smith’s memo, Secretary Reich responded in writing:

“... Beginning June 18 and biweekly until completion of the last case, please submit a status report of case progress.

In response to issues raised in your June 4 memo, Betty Bolden, Associate Deputy Secretary will be your direct contact in the Secretary’s Office secondly, you and [DOL Solicitor] Tom Williamson should prepare a joint recommendation concerning delegation of signature authority for OAA cases.”^[170]

Mr. Smith thereupon bragged to his staff that OAA’s winning the Secretary’s “delegation of authority” was “an arduous struggle,” claiming it was:

“for the benefit of the parties and the restoration of the integrity of the administrative adjudicatory process, to wit justice delayed is justice denied. I know this may sound corny, but I am even more confident that every one of us is firmly committed to the goal of expeditiously vindicating individuals’ rights in cases where the records supports that conclusion.”^[171] (Emphasis added).

4.2.6 Labor Secretary Rober Reich Brags About His Progress “Disposing” of Cases

In 1994, Secretary of Labor, Robert Reich issued a glowing 1994 public press release claiming that OAA made “commendable progress” in OAA’s “effort to guarantee swift and efficient results.”^[172] This release was materially false and misleading. The IG found later that year that OAA had an “absence of responsible management” that will “tragically impact its customers, with the continuing prospect of substantial prejudice to the parties involved in the cases.”^[173] The DOL OIG said that DOL OAA “demonstrated a high disregard for service” to its “customers,”^[174] with no “significant change,”^[175] causing “unconscionable delays in providing justice to American workers.”^[176]

Secretary Reich’s 1994 news release lauded DOL OAA’s work “disposing” of cases.^[177] After years of directed DOL OAA delays directed by the Secretary, this was an unfortunate choice of words. This is particularly insensitive language by a Rhodes Scholar and published author on labor economics^[178], speaking about workers’ discrimination cases. It was not only insensitive and bureaucratic -- it was perhaps a Freudian slip, for on the whole, Secretary Reich proved to be just as pro-business as his predecessors, with labor law enforcement still not pursued and emphasis placed on appeasement of employers.

4.2.7 Unkept Promises for Timely Decisions

In 1995, DOL OAA and the DOL Solicitor promised Oak Ridge National Laboratory (ORNL) whistleblower Bud Varnadore a decision on his 1991 whistleblower case, where the cancer patient was placed next to radioactive waste barrels, mercury and toxins in retaliation for raising environmental concerns. The case was fully briefed to OAA in 1993 and involved an eight foot record. DOL OAA missed its promise to decide the case by October 1. Mr. Varnadore sued for a writ of mandamus and DOL broke its promise to the Court. Then Secretary Reich issued a decision that extravagantly twisted the law on statute of limitations against Mr. Varnadore, on January 26, 1996, a partial decision on part of his claims, leaving the rest to be decided by his newly created ARB on June 14, 1996.

4.2.8 DOL Administrative Review Board (ARB) Created in Secrecy in 1996

In April 1996, an Administrative Review Board (ARB) was established on Secretary of Labor orders.^[179] DOL then ignored whistleblowers’ request to utilize notice and comment rulemaking regarding ARB.^[180] With no public involvement whatever, with no notice-and-comment rulemaking, with no legislative hearings, Secretary Robert Reich handed off whistleblower cases to the Administrative Review Board. Secretary Reich created ARB in secrecy and appointed its first members without benefit of legislation, rulemaking or Senate confirmations. Reich substituted a political board of short-timers to sign decisions signed by the Secretary for twenty years. It appears that this was merely an effort to make a structural-functional change to temporarily divert criticism. (Reich stepped down in 1997.)

After being scolded by the DOL IG to take “customer views” into consideration, top DOL managers did not do so. Instead, Reich created the ARB in 1996, proceeding from his 1993 memorandum ordering work on delegation of authority.

There was a 100% turnover of the ARB membership from 1996 to 1998, with none of the first three political appointees staying for a second term.

For the most part, ARB lacks open governance and healthy debate -- dissents are rare, oral arguments have not been held, and basic information such as a detailed biography or photographs are not available.^[181]

ARB has jurisdiction over Administrative Law Judge and Wage Hour decisions under over 40 federal laws.^[182] Not one of these laws is subject to the military exemption from the Administrative Procedure Act. None of these laws requires secrecy. The secretive creation of the ARB was a reflection of DOL’s diffidence toward worker free speech and whistleblowers. The secrecy was an insult to workers, failing to give them a chance to comment, with DOL taking the position before the Sixth Circuit that creating ARB was merely “procedural” and hence required no public comment. DOL is still withholding information on the creation of ARB,^[183] and it is also loathe to provide detailed biographical information on Board members or their photographs.^[184]

ARB was created in secrecy. Documents on the circumstances of secrecy still being kept secret. This reshuffling of deck chairs on the Titanic deck of DOL’s notorious case “graveyard” is unconvincing as to DOL’s intentions. DOL whistleblower law enforcement will lack reliability until it has a Congressional charter and becomes a permanent institution with Senate-confirmed, Presidentially-appointed personnel -- independent agencies.

Secretary Reich compared this administrative appeals function to being “an appellate judge.”^[185] Yet the members of the ARB are not judges. They are not selected like judges, but like politicians. Not one of the ARB members since 1996 has been an Administrative Law Judge. Each ARB member has come from outside DOL -- with the sole exception of Ms. Cynthia Attwood, a career government lawyer and manager, whose ARB service is very troubling.

Ms. Attwood’s Administrative Review Board service violates the Secretary of Labor’s 1996 order requiring that ARB members be “Public Members.” Ms. Attwood should be asked to step down as an ARB member, because she is a Government lawyer, not a public member. ARB members are required to be “Public Members.”^[186] Ms. Attwood does not meet the requirements because she is a Government employee. Ms. Attwood’s ARB service violates the Secretary’s Order. DOL knows better. DOL knows the difference between a public member and a Government employee, as under the prior Wage Appeals Board and Board of Service Contract Act Appeals. The term “public member” means non-Government employee. This term has been specifically defined, as with “Public Members” of the Administrative Conference of the United States, 1962-1994.^[187] Ms. Attwood is thus not qualified by Secretary of Labor to be an ARB member. Ms. Attwood’s ARB appointment was improper, is in violation of the Secretary’s authority and she should be terminated. Ms. Attwood’s serving as a “public member” is extremely troubling, and requires full and candid disclosures and a hearing and answers to questions that ARB has refused to answer since June 10, 1999.^[188] Cynthia Attwood’s ARB membership as a “public member” is illegal and must end. The Secretary of Labor should declare Ms. Attwood’s seat to be vacant. The 70 questions of June 10, 1999 must be answered in a public forum, e.g., a hearing for ARB’s “customers” -- the parties in all DOL ARB cases.

No Complainant should be required to drink from a poison well. Ms. Attwood’s illegal service has "poisoned the water in the reservoir."^[189] ARB members should either be Administrative Law Judges or persons appointed with the advice and consent of the United States Senate. Environmental and nuclear whistleblower cases should not be heard by a political body lacking in judicial independence, when other workers have cases heard by independent agencies.

Whistleblowers are entitled to a “working instrument of government.”^[190] Instead, DOL is trying to return to the days before 1986, when the Inspector General recommended moving OAA out of the Solicitor’s office, which decided appellate adjudications in-house.^[191] Ms. Attwood’s presence on the ARB shows the Solicitor’s attempt to control the ARB. There is no evidence that DOL has ever advertised or posted ARB vacancies: instead they are used as political patronage, like any other Schedule C job. This is unacceptable.

Like his predecessors, Secretary Reich was an unjust steward of whistleblower law. Secretary Reich placed adjudication of Department of Labor whistleblower cases on an inferior basis and an unequal plane compared to other agencies adjudicating protected activity, namely the National Labor Relations Board (NLRB), Federal Labor Relations Authority (FLRA), Federal Mine Safety and Health Review Commission (FMSHRC), Occupational Safety and Health Review Commission (OSHRC), and Merit Systems Protection Board (MSPB). Every members of those five protected activity adjudication agencies are confirmed by the Senate after appointment of the President.^[192]

Secretary Reich assigned whistleblower cases to a “temp” organization staffed by the Solicitor’s office and decided without oral arguments or dissent by political appointees -- all non-judges, with two year terms (ARB members actually serve at the Secretary’s pleasure under the Secretary’s Order creating ARB). DOL’s shoddy, disparate treatment of whistleblower cases with lack of independence shows continuing disrespect for or lack of interest in whistleblower cases. This lack of statutory independence has not been justified by DOL or industry groups.

ARB succeeds to the OAA, Wage Appeals Board, Board of Service Contract Appeals, two of which had no expertise on discrimination. ARB is at best a hastily created political creature that lacks respect by the Administration and the whistleblower community. The first constitutional challenge to the creation of ARB failed in the Sixth Circuit.^[193] Further challenges are possible and oversight and investigation are required of the surreal and secretive circumstances through which this allegedly unconstitutional and illegal body was created.

ARB has received mixed reviews from the whistleblower bar. On its first day it issued a setback for whistleblowers^[194] and a major whistleblower victory.^[195] On the one hand, the Clinton Administration took steps to reduce the backlog, which was intentionally created under Reagan and Bush. On the other hand, the quality, compassion and depth of DOL whistleblower appellate decisions are uneven and inconsistent, despite OAA’s 1994 Mission Statement to produce “a large number of well reasoned, high quality decisions while complying with mandated deadlines and giving special emphasis to reducing the average amount of time a case is on the docket.”^[196]

Some decisions show real understanding and legal scholarship. Other decisions are based on a minimal reading of the record and written in an administrative judicial fog of unfairness and pique at being bothered, occasionally with a tone of smarminess to boot. The outcome before OAA and ARB reflects the personality of the holdover DOL staff attorney assigned to write the case. For years OAA was used as a dumping ground for unwanted lawyers who DOL wanted to keep on its payroll but out of litigation: these included a Carter-appointed Benefits Review Board Chair fired for being too pro-worker and a Bush appointed BRB Chair who encumbered an OAA position while on sick leave for two years: DOL’s choice of slot for the lawyers’ sinecure contributed to the delay in whistleblower cases.

Whether before ARB or OAA, whistleblowers still wait for years for often inscrutable decisions by the Secretary of Labor’s unvetted political appointees and their staff. ARB’s first crew of political appointees began with its first Chair, the former Director of Iowans for Clinton (David O’Brien) and the man who recently provided the third vote in the Federal Election Commission (FEC) to reject a staff audit finding Democrats and Republicans abused corporate soft money (Karl J. Sandstrom). Mr. Sandstrom was noted as the swing vote among three FEC members voting not to regulate soft money (the only Democrat to do so). Mr. Sandstrom and his Republican colleagues were termed “political hacks” by Wall Street Journal reporter Albert R. Hunt in a CNN “Outrage of the Week.”^[197] A new group of ARB members was appointed in 1998 and there has not yet been enough work produced to judge their performance.^[198] One of the three 1998 ARB appointees is Cynthia Atwood, former Associate Solicitor in charge of defending the Occupational Safety and Health Administration and the Mine Safety and Health Administration.

4.2.9 Broken Presidential Promises On Protecting Whistleblowers

DOL ARB is not the “office” President Clinton called for in 1992:

“Workers who come forward with reports of violations of the law should be protected. .... The worker needs to have an assurance that somewhere in the federal government is an office that will act effectively to protect the worker. Swift action ... to ensure that reprisals will not be tolerated will send a clear message on this issue..... I will send a very clear message to senior officials throughout the federal government.... employees must feel comfortable in sharing their concerns with their own [employer]. We must view these internal criticisms as something to learn from and to gain from, not as attacks that must be quashed..... Whether it concerns the safety of drugs or food, the dangers of hazardous waste at a certain site, or which particular projects most deserve[] federal funds, we are better served as a nation if dissenting views are given a full and fair hearing. Credible positions by scientists should be able to withstand dissenting views of other scientists.”^[199]

Presidents Reagan and Bush also praised and promised to protect whistleblowers. No one should take any of these promises seriously. DOL whistleblower adjudications have been decided by proverbial “team players,” persons lacking in independence.

To date, President Clinton’s 1992 promise remains just “pie in the sky in the sweet bye and bye,” as the late UMW and CIO President John L. Lewis put it best. President Clinton has not yet kept his 1992 promise on whistleblower protection. Similar mellifluous whistleblower protection promises were made about whistleblowers by Presidents Reagan and Bush and their cabinet members and managers. Despite these promises, government managers continue to abuse whistleblowers, which at so many large employers is an expected part of their management culture. Such Presidential promises are viewed by some whistleblowers as no more reliable than the promises that were contained in numerous broken United States treaties with Native Americans (or every broken treaty ever signed by the former Soviet Union). Whistleblower laws are too weak and are being weakened daily by delay and desuetude.

4.2.10 DOL’s Negligible/Negligent Dol Whistleblower Law Enforcement

“What kind of place is this?

Where you almost mean what you say?

Where your laws almost work?

How can you live like that?”

-- The African Cinque, in Steven Spielberg’s film, Amistad

By law, DOL must enforce anti-discrimination laws. By law, DOL must follow its own rules, including the 90 day time limit.^[200] This DOL delay has consequences for everyone. Taking multiple years with administrative delays denies equal justice, making a mockery of the “90 day” whistleblower remedy. Whistleblower law is now slow and unresponsive to crises involving violations of freedom of speech at dangerous facilities, ranging from nuclear powerplants and weapons plants, incinerators, construction sites, military bases, NASA facilities and hospitals. If whistleblower law kept its promise and DOL issued final orders swiftly, it would give workers the information they need to know in real time before ever considering whether to risk a career by disclosures of environmental, safety and health concerns. Under current cumbersome procedures, it can take seven years and longer from start to finish -- longer than World War II -- to decide whether one worker was discriminated against in one workplace for raising environmental, health or safety concerns!

Under three consecutive Presidential Administrations and their Secretaries of Labor refused to enforce basic worker protection laws, with orders given under Reagan and Bush not to issue decisions. That’s what the DOL Inspector General found in 1993 and 1994. The DOL IG recommended to the Secretary that DOL change its procedures in response to “customer concerns.” There is no evidence DOL has ever done so.

Whistleblower rights to remedy discrimination with backpay, reinstatement and damages are not being enforced adequately by the Department of Labor. The public is at risk due to systematic lax-enforcement of laws meant to encourage protected disclosures (whistleblowing) about nuclear powerplant, trucking and environmental problems. Laws on the books are not being enforced and are inadequate. Congress has not passed reforms recommended by the American Bar Association, which found whistleblower laws protect the environment and public health and safety.

To this day, doctors, nurses, pilots, ground crews and other essential workers are not covered, while nuclear workers and truck drivers are covered: there is no rhyme or reason. Since the 1970's; under a random, ad hoc patchwork quilt of statutes supposedly protecting “whistleblower” worker rights to raise environmental health and safety concerns, the Department of Labor, Department of Energy and Nuclear Regulatory Commission, and corporate and government lawyers have erected a series of barriers that defy description. A tragic combination of delays and outright hostility by the last three Presidential Administrations has left whistleblowers bereft of meaningful protection. The result is a clear and present danger to public health and safety. Laws are not enforced. Nonenforcement of whistleblower law enforcement results in a chilling effect that lets employers fire, harass, intimidate and coerce protected activity at dangerous plants and management offices around the Nation.

It is no secret that powerful people in business and industry hate whistleblowers. President Richard Nixon fired whistleblower A. Ernest Fitzgerald, who got his job back in large part because the discriminatory conspiracy was caught on Nixon’s taping system. The anti-whistleblower policies under Presidents Reagan, Bush and Clinton have been contrary to the publicly stated aims of those Administrations, all of which make statements about their purporting to support and treasure whistleblowers. The truth is the reverse: despite rhetoric. DOL and DOE process delays and paperwork, with little of the swift justice that the late United States Senator Edmund Muskie’s amendments to environmental laws contemplated.

Since 1981, DOL has failed to make corporate and governmental wrongdoers accountable for discrimination and intimidation, and encourage power law firms to spend huge amounts of money defending against what they purport to be “small” claims, with the purpose of crushing whistleblowers, as Ralph Nader so eloquently writes.^[201]

Under Presidents Reagan and Bush, environmental whistleblower decisions were deliberately delayed, the result of a covert policy, as found by the Department of Labor Inspector General in a 1993 report. Whistleblowers like Carolyn Larry, a Detroit Edison Company security employee, waited five years and longer for decisions that are supposed to take 90 days from filing to Secretary of Labor decision.^[202] This was not always the case -- it appears as late as 1983, whistleblower cases were being adjudicated promptly.^[203] Then came Elizabeth Culbreth and the “graveyard” of whistleblower cases.

Secretary of Labor Robert Reich “passed the buck.” In a stroke of the pen in April 1996, Secretary of Labor Reich undid 20 years of whistleblower law. In June of 1996, a politically appointed DOL Administrative Review Board was appointed to decide whistleblower cases on appeal from Administrative Law Judge decisions. With this ill-advised stroke of the pen, Secretary of Labor Reich substituted a faceless board for the Secretary himself as the reviewer of ALJ decisions. The Secretary ended his role in whistleblower cases without notice and comment rulemaking^[204] or appointment by the President and confirmation by the Senate.

4.2.11 EMPLOYERS’ HARDBALL TACTICS

Hardball defense of whistleblower litigation is common, as Ralph Nader argues. Employers that pollute and retaliate are bullies. They behave that way. Many Respondents in whistleblower cases show emotional problems toward worker protected activity. Some engage in controversial, rude and crude “hardball” tactics. DOL typically shrinks from taking any actions on alleged ethical lapses of attorneys who represent rich and powerful corporations. Yet DOL regulations do not allow the disqualification of house counsel for an employer.^[205] Hardball employer tactics in DOL whistleblower cases include:

n illegal inducements, including EPA Inspector General John Martin’s offer to pay for the cost of his deposition if Mr. Robert E. Tyndall yielded his right to have the deposition videotaped;

n advising managers not to sign statements made to DOL investigators and to request “confidential” treatment of such statements to keep them from use by whistleblowers in their DOL OALJ trials;

n workplace harassment of whistleblowers and witnesses, including assigning employees to hazardous duties in hazardous locations without relief;

n soliciting untrue statements about the whistleblower by fellow employees;

n provocative employer lawyer and management contacts with employees represented by counsel, denying the right to have an attorney present, including an improper interview with an employee during document copying, although the employer knew he was represented by counsel^[206];

n assigning several managers to meet with the employee to intimidate him or her during performance evaluations, etc.