The Albuquerque Journal

Whistleblower Wins Case Against Lab

Ruling Protects Rights Of Workers To Report Concerns

Friday July 2, 1999
Journal Staff Writer

Workers in the U.S. nuclear weapons complex are free to report public health and safety threats to Congress, the media and activist groups without fear of reprisal, a U.S. Department of Labor judge has ruled. In a sweeping confirmation of whistleblower rights, the judge found Los Alamos National Laboratory illegally penalized a worker who publicized is health and safety concerns.

"People will perhaps look at this and they'll be more comfortable because there is more protection and people are winning cases," said the worker, Joe Gutierrez, an internal lab assessor. "There is more hope."

Lab officials say they may appeal the ruling.

"The laboratory thinks it is correct on this issue," said spokesman James Rickman. Los Alamos officials say the ruling may "chill" its internal audits and assessments if lab managers fear their problems will be aired publicly.

The ruling comes as Congress investigates whether the weapons labs retaliated against workers who reported security problems. Congressional and White House panels concluded recently that lax security at the labs may have allowed Chinese spies to acquire U.S. nuclear weapons secrets.

Gutierrez felt Los Alamos managers downplayed or failed to correct problems with lab security, safety and environmental protection that he found as an internal lab assessor. For example, one internal assessment f the lab's Business Operations Division in 1994 found uncleared employees could access computers containing detailed classified information on the timing, destination and security arrangements for transport of nuclear-weapons materials to the laboratory. Lab managers say the computers are now secure in locked vaults. But they did not issue an assessment report until 1996 and downgraded the finding of lax computer security to a less-important "observation."

"All they did was try to hush it up," Gutierrez said "They never tried to address the systemic problems." In 1996, Gutierrez began reporting similar problems to federal lawmakers, to a nuclear watchdog group suing the laboratory and to three New Mexico newspapers. At least five lab managers were angered on reading newspaper reports that quoted Gutierrez and demanded that he be removed from inspections of their work. The judge found

Gutierrez's manager pulled him off those projects and gave him a lesser raise than fellow workers.

"The bottom line at LANL is management is dysfunctional," Gutierrez said Thursday. "We don't have a security problem or a safety problem. What we have is a management problem. We have inept management at the laboratory."

Administrative law judge David W. Di Nardi found the Los Alamos lab operator, the University of California, wrongly reduced Gutierrez's raise in 1997 after complaints from lab managers about the newspaper reports.

Di Nardi's June 9 ruling, which must be approved by a federal review panel to be final, recommended the University of California pay $15,000 in emotional dam-ages to Gutierrez and retroactively award him a higher raise, plus five vacation days he used in pursuing his whistleblower claim.

Gutierrez asked Di Nardi to force Los Alamos to adopt stronger whistleblower protections. The judge found this beyond his judicial authority. However, Di Nardi ruled whistle-blower protections under the Energy Reorganization Act supersede Los Alamos policies against lab workers having unauthorized communication with government officials and the media.

Gutierrez attorney Carol Oppenheimer said: "This upholds Joe's right to go to Congress, to the media, to federal agencies or public interest groups such as Concerned Citizens for Nuclear Safety without the need to go up the chain of command inside the laboratory or to comply with policies that prohibit that."

Lab executives re-emphasized those policies in a June 18 memo, nine days after Di Nardi's ruling.

Los Alamos director John Browne reminded all lab employees they are free to deal with state and federal lawmakers on personal matters or heir private opinions on national and local issues. But communicating with lawmakers on lab issues could be construed as lobbying or could otherwise harm the lab, Browne warned.

"All interactions with the Congress on matters that directly affect the laboratory and its pro-grams must be carefully considered and coordinated through our Government Relations Office. Indiscriminate discussions with the Congress... could cause overall injury to the laboratory by working at cross purposes to other responses to Congress," Browne's memo said.

Gutierrez sees the memo as a management effort to restrict his whistleblowing activities.

"When I overfly address an issue, I'm being told I can't talk to you," he told a reporter.

Gutierrez decided to publicize his concerns about health and safety in July 1996, when the lab issued a news release announcing it was fully in compliance with the federal Clean Air Act.

Gutierrez knew from his work that the laboratory had lost records of radioactive air pollution from one facility for an entire year. There were disagreements inside the lab about the proper method for calculating its air emissions. Those two factors meant the laboratory could be certain of its compliance with the Clean Air Act and so was deceiving the public, Gutierrez said.

"My concern was, why is it acceptable for the laboratory to go to the media and be lying and not acceptable for me to challenge that?" Gutierrez said.