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U.S. Office of Special Counsel

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Washington, D.C. 20036-4505


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    The U.S. Office of Special Counsel (OSC) today announced that the Department of Energy (DOE) has entered a comprehensive settlement agreement with eighteen special agent nuclear material couriers of the Oak Ridge, Tennessee section of DOE’s Transportation Safety Division (TSD) who had filed retaliation complaints with OSC. In light of the settlement agreement, OSC has closed its investigation of the complaints.

    DOE’s nuclear couriers are responsible for transporting and safeguarding nuclear materials and weapons, including live warheads, between DOE and Defense Department sites. The Oak Ridge couriers filed complaints with OSC in May and June of 1998, alleging that they had suffered retaliation for engaging in various protected activities. These activities included, among others, providing information to management and outside review teams concerning potential dangerous radiation exposure and security risks arising out of driver fatigue.

    Several of the couriers alleged that they had suffered retaliation for testifying or otherwise assisting another courier, James Bailey, who had appealed his removal to the Merit Systems Protection Board (MSPB). Mr. Bailey, who had lost his infant daughter to a rare form of brain cancer, believed that the cancer was related to on-the-job radiation exposure. DOE removed Mr. Bailey because he was unwilling to resume his courier duties after a detail to an administrative position, unless DOE either put into place stricter radiation monitoring procedures or provided the couriers with protective clothing.

    The eighteen couriers alleged that DOE retaliated against them for engaging in these protected activities when it placed them on administrative leave (with pay) beginning May 1, 1998, after they either refused to undergo or failed to conclusively pass polygraph examinations as part of an FBI investigation of suspected security violations. All couriers in DOE’s Southeast section were required to undergo polygraphs as part of the investigation.

    DOE denied that its actions were retaliatory and asserted that the FBI investigation was initiated because DOE suspected that ABC News had been provided with confidential information regarding the departure time and routes of some nuclear shipments made during February of 1998. DOE suspected that the information had been disclosed because an ABC news crew had filmed a shipment when the couriers made a stop on Interstate 40, 60 miles west of Knoxville. The news crew was apparently working on a report related to Mr. Bailey’s allegations and his removal. 

    The couriers further alleged that during the course of the FBI investigation, certain DOE managers had violated their First Amendment rights to secure the assistance of legal counsel. The couriers alleged that they were being harassed and warned that they would not be reinstated to their jobs unless they not only took the polygraphs, but also dropped their attorneys.

    DOE ultimately concluded that its initial suspicion that ABC News had been provided with confidential information was likely incorrect. Thereafter, DOE and counsel for the couriers, with the assistance of OSC (which had been investigating the complaints) began settlement discussions aimed at bringing the couriers back to work.

    The settlement OSC announced today provides for, among other things, over $600,000 in backpay to be distributed amongst the group of complainants, representing lost overtime since May, 1998. It also provides for payment of the couriers’ attorney fees. Under the agreement, the couriers who wish to be reinstated to their positions will be required to undergo security interviews and possibly narrowly focused polygraphs, conducted in accordance with mutually agreed-upon procedures. 

    The agreement also contains important systemic provisions. DOE has agreed to implement a training program for the Oak Ridge section of the TSD, in consultation with OSC, which will address whistleblower protection and employees’ rights to counsel. Further, the parties have agreed to engage an outside mediator within 90 days, to permit couriers to raise issues related to the safety, security, and the functioning of the TSD. High level DOE officials will participate in the mediations to evaluate and take necessary follow-up action.
    Under the agreement, DOE does not admit any liability or fault; nor do the couriers concede that their OSC complaints were without merit. OSC itself had not completed its investigation and legal analysis, and so had not yet determined whether the couriers’ complaints were meritorious. 

    Special Counsel Elaine Kaplan praised the couriers and the Department of Energy for their “hard work and cooperation in hammering out this excellent settlement of these complaints.” Special Counsel Kaplan observed that the agreement “was fair and comprehensive.” “Further,” she said “the agreement should create a good basis for restoring mutual trust between DOE and the couriers.” “Its provisions for neutral review of future safety and security complaints,” she said “are very promising, and might serve as an example to other federal agencies facing similar issues.”

    The U.S. Office of Special Counsel is an independent federal agency created to protect merit system principles in the federal government. OSC receives, investigates and prosecutes before the MSPB allegations of prohibited personnel practices, particularly retaliation for whistleblowing.