Healing Hanford

hen it comes to whistleblower allegations in the federal government, the Energy Department is, unfortunately, in a class by itself. At DOE sites across the country, employees of the department and its contractors have lodged a steady stream of complaints alleging widespread health and safety violations at nuclear facilities.

For example, The Washington Post reported in August that workers at the Paducah, Ky., Gaseous Diffusion Plant were exposed to plutonium-laced dust brought into the plant for more than 20 years. Workers said radioactive waste was deliberately dumped in nearby fields, abandoned buildings and a landfill.

At Paducah, the story is just emerging. But at another DOE complex, the Hanford Nuclear Site in Washington, such tales are all too familiar.

Tom Carpenter, director of the Government Accountability Project (GAP), which represents whistleblowers at DOE and other agencies, calls Hanford "the largest toxic and radiological mess in the nation, with more high-level nuclear waste stored there than at all other defense sites combined, and more that has leaked from its storage tanks than from all other site tanks combined."

Since 1988, GAP has helped whistleblowers file dozens of complaints at Hanford. No matter who ultimately prevailed in the cases, the scorched-earth conflicts usually were lose-lose situations, and they certainly were public relations disasters for DOE and its contractors. Many of those close to these conflicts sought another way to handle disputes.

In 1992, a University of Washington study recommended the creation of an alternative dispute resolution mechanism at Hanford. Two years later, Westinghouse Hanford Co., then the prime contractor at the site, signed an agreement with public interest groups to create an independent dispute resolution organization. DOE approved the arrangement, and by the end of 1995, the Hanford Joint Council was operating with a grant from DOE to ensure its independence.

Since then, the council has handled about two dozen cases in a formal fashion, making recommendations in about three-quarters of them, all of which have been accepted. The remaining cases, says council chairman Jon Brock, were resolved without the need for formal recommendations. The council has also handled more than 20 other cases informally, by referring them elsewhere or by putting people in touch with individuals or groups who could resolve disputes without formal action.

"The council is set up to handle both technical and personal issues," says Brock, the head of the Cascade Center for Public Service at the University of Washington. "Knowing that people who come forward with problems usually have the experience of being beaten down, the council seeks to see if there is a misunderstanding or if a career trajectory is threatened. If so, we work on restoring the career of the employee, as well as the often-damaged reputation of managers."

While not everyone at Hanford endorses the new approach, most agree that it provides several lessons for other DOE organizations and other federal agencies about how to handle whistleblower complaints before they get out of control.

A New Way

Officials associated with the Hanford Joint Council say that for reasons of confidentiality, they can't discuss the specifics of any of the cases they've handled. But typically a case comes before the council when an employee is on the verge of being fired for insubordination as a result of allegations of safety violations.

In most such cases, the employee has been unable to resolve his or her issue through the regular chain of command and established reporting channels. Both the employee's supervisor and the supervisor at the next level up have dismissed the allegations and, often, labeled the employee as a troublemaker. The employee has filed a claim with an administrative agency that could lead to years of legal wrangling, costing hundreds of thousands of dollars.

A 1995 study by the National Academy of Public Administration, undertaken at DOE's request, estimated that there were more than 100 such unresolved cases by 1994, many of them more than a decade old.

At that time, then-Energy Secretary Hazel O'Leary has observed, "there was already in the department a structure which even the people who were running it admitted simply did not have either the muscle, the manpower or, they believed, the perceived commitment to get things done. . . . We needed a system in place to both review the allegations raised, past and present, and try to find a way to avoid the hostile relationships existing between the so-called whistleblowers and the people within DOE."

That way turned out to be the Hanford Joint Council, which started as a project of DOE's office in Richland, Wash., the Washington State Department of Ecology, and the Environmental Protection Agency's regional office in Seattle. The council addresses any issue involving rules and practices on health, safety or the environment. A number of issues remain outside its charter, such as collective bargaining grievances or cases involving contractors that haven't signed onto the council's charter. Hence, GAP remains busy litigating disputes.

But GAP's Carpenter was committed enough to the new approach that he helped form the council and occupies one of its seven seats. The rest of the council includes another community/public interest repre-
sentative, two contractor managers, a former whistleblower and current whistleblower attorney, and two community leaders from outside the Hanford site. No one from DOE sits on the council because it was designed to solve problems at the contractor level.

The council's recommendations on how to resolve conflicts are not binding. "But if management doesn't accept them, they do so at some peril, because the recommendations are well thought-out, from a diverse group that achieved a consensus," says John Wagoner, who was DOE's manager of the Hanford site for more than eight years before he retired in January.

Recently, the council's grant was extended for another five years. Fluor Daniel Hanford, succeeding Westinghouse Hanford as the main contractor, is also committed to the council approach.

According to Brock, since the council's formation "no whistleblower case within its reach has resulted in litigation or been a subject of public controversy." Brock estimates that DOE and its contractors have saved up to $10 million in avoided legal costs as a result of the council's actions.

Litigation costs of previous whistleblower cases at Hanford ranged from $500,000 to millions of dollars, depending on settlement awards and reimbursements of employees' expenses. And that doesn't include indirect costs that are hard to calculate, involving the time spent by top managers, in-house counsel, supervisors, managers and co-workers over several months dealing with an aggrieved employee.

The traditional method of resolving a case at Hanford can involve more than 100 people and take thousands of hours over several years. The council approach, on the other hand, involves only about 25 people for a few days each. The employee normally continues to work, and is back to full productivity in a matter of months. The average case the council takes on costs about $35,000 to process. In about half the cases, Brock says, there is another $10,000 to $15,000 in costs incurred by the contractor. On the other hand, "many cases have no funds changing hands, particularly when we get the case early," he says.

Better Dialogue

Managers at DOE facilities tell Brock the real savings from the council approach come from avoiding lingering problems, damage to employees' reputations and loss of public confidence in DOE operations. "Once you get people discussing in a professional manner the best ways to fix a given issue, many options are generated, and extreme statements and claims and estimates normally give way to reasoned professional dialogue," Brock says.

Carpenter agrees. Under the traditional system, he says, "too often, our clients won in name only-their careers ruined, their families split asunder and their lives effectively destroyed. I know that sounds dramatic and overstated, but I assure you it is not. Taking on your employer at a place like Hanford is very costly and difficult. Plus, the safety issues employees raised were lost in litigation over who said what, when, to whom, and why. I was interested in a process that protected the employee and resolved the underlying safety or environmental concern. The council has the tools to do this."

A. Lamar Trego, former president of the Westinghouse Hanford Co., also endorses the new approach. "The council did not prove to be a risk for management," he says. "Instead, I view it as a fundamentally new management technique that will surely become the approach of choice by forward-thinking organizations striving to achieve maximum productivity with due regard for the safety of their workers and the environment."

This is a sea change in attitude. Before 1994, Carpenter says, investigations of whistleblower allegations "were often viewed as vehicles for further reprisals, usually involving orders for workers to get psychological or psychiatric evaluations, campaigns of harassment and intimidation, being ostracized, undesirable job assignments and trumped-up charges leading to terminations."

The problem, says Brock, is that operations like Hanford aren't set up to deal effectively with safety complaints. "Safety or other whistleblower problems by definition have scientific or technical elements, and they often intertwine with elements of job status or evaluation, resulting in a personal shot at the individuals involved," he says. "Business organizations are set up for the technical side of the problem. Personnel takes the grievance side, but neither approach properly blends the two territories and properly copes with the very bitter conflict that can arise in a whistleblower issue." The council, Brock says, provides "a more imaginative approach that unravels the different elements."

The new approach hasn't eliminated all whistleblower problems at Hanford. For example, GAP recently filed a series of complaints against Fluor Daniel Northwest, a subcontractor to Fluor Daniel Hanford, alleging that five pipe fitters were fired in reprisal for raising safety concerns. But that case never came before the council, in part because of the transition from Westinghouse to Fluor Daniel.

In addition, while most of the major contractors at Hanford have signed onto the council approach, not all are on board. And some observers of the process say there is still steady resistance to alternative dispute resolution techniques from attorneys for DOE and the contractors. "Periodically we have to seek intervention from DOE headquarters officials to attempt to rein in their lawyers," says Carpenter.

Wagoner acknowledges there are instances when lawyers for management "don't want to accept council recommendations because they think more is being given up than would have been the result if a case was litigated." Lawyers, he says, sometimes view a case purely from the perspective of the likely outcome of litigation. Managers have to consider that not only the potential results of a trial, but even a win might result in employee attitudes that prove costly in the long run, and in the inability to salvage a skilled employee.

"If a company president decided to go with the council recommendation, I always supported that decision even if various counsel argued otherwise," Wagoner says. "I've never seen a matter of the council unduly enriching someone. When there was a dispute, there were legitimate reasons for it."

Sometimes, Wagoner says, managers and lawyers for DOE and the contractors believed that the public interest groups involved in the council lacked objectivity in dealing with allegations they had a hand in exposing. On the other hand, he notes, "I've seen cases where Tom [Carpenter] has been very objective in advising an employee to move toward an appropriate position."

Other Options

Since the creation of the joint council, Hanford has launched a series of other initiatives to handle employee complaints. "When the council started, there were no avenues for those with whistleblower concerns to express those concerns to management," says Susan Brechbill, chief counsel at DOE's Richland Operations Office. "An impartial body to mediate employee concerns is a good concept. Today at the site, a whole panoply of avenues are open."

Brechbill directs a new conflict resolution program known as Appropriate Dispute Resolution. Depending on the specifics of each case, techniques used under the program include mediation, partnering, ombudsmanship, neutral evaluation, non-binding or binding arbitration and mini-trials.

In addition to addressing internal workplace conflicts-personnel issues, interpersonal and intergroup conflicts-the ADR program addresses potential lawsuits (including contractual litigation), claims against the government and allegations of whistleblowers.

Brechbill also oversees another new program called Differing Professional Opinions at the Richland office. The program "works different technical viewpoints that are in conflict through a process with an independent panel," she says. "It looks at employee opinions and proposed processes, and makes recommendations to managers. We view this as a good thing, bringing these opinions forward for full discussion early in the decision process." For now, the program only involves DOE employees, but contractors are looking at it as well.

Finally, Brechbill notes, new Employee Concerns and Staff Concerns programs provide additional avenues, including hot lines, for employees to raise safety-related issues. "Contractors are embracing these programs for cost-effective and timely resolution," she says. "The move toward these programs is healthy and the wave of the future."

At Hanford, Brechbill says, "the importance of the joint council has diminished over the years, from the only tool to one tool in a whole toolbox available." The council, she argues, has handled relatively few cases and may involve more people in solving problems than is necessary. "The council played a major role in sensitizing people to the need for different ways to handle conflicts, and will continue with a small role, but it will be eclipsed by other tools," Brechbill says. "If we just hired Brock as a mediator, he might do as well, and be cheaper."

But Brock's experience has led him to very different conclusions. "As a mediator myself, I initially thought the council would take cases and deputize mediators to handle them. We found out quickly that wouldn't lead to resolution.

"The kind of whistleblower cases we are handling have usually failed many attempts at resolutions by well-intentioned and talented people. At this point, the council system's feature of making a recommendation to top management and going to the employee with the endorsement of top leaders in the interest group community provides a more powerful likelihood of resolution than sitting down only with those usually assigned to case settlement."

Since the council has a mandate to make recommendations, rather than simply to see if the parties are interested, Brock says there "are powerful incentives to finally resolve the case. An arbitrator, which neither the government, the companies, nor most employees are willing to entertain, would be able to compel resolution, but wouldn't provide anywhere near the degree of realism and texture that the combined council membership and charter can provide."

In complex cases, particularly if there is an intent to address safety issues, Brock says the council offers the advantage of being constantly available for a rapid response that prevents escalation, and always can contact the necessary company officials to get information or initiate action.

Wagoner acknowledges that "there haven't been many cases when the council went all the way through the process and made final recommendations." But, he argues, "just starting the process and asking the questions often prompts satisfactory results by getting one or more players to open their eyes and see things in a different light."

"The council mechanism may not be something for every workplace or every DOE site," Wagoner adds. "But at Hanford, there was a bad history and a lot of employees with concerns. The council has been a safety valve. If a matter is handled by the joint council, it is definitely going to be highly visible at top levels, and that gives it more credibility with employees. My current position is to want to keep it going, but I believe it should be examined each year in comparison with how robust the alternative systems become."

Carpenter, too, says that while the council may have yet to hit its peak efficiency, DOE, the contractors and Hanford employees should stick with it. "The council is the only truly effective resolution mechanism that I know of, flat out," he says. "No other mechanism works as effectively, or holistically, as the council. When it works right, it really has preserved careers, fixed problems and improved the work environment in a way that makes it safe for employees to raise concerns without fear of reprisal."