SPSE Newsletter #3, September 1999
Editor: P. Weidhaas
P.O. Box 1066, Livermore, CA 94551
925-449-4846
Contents:
Editor's Corner
In the community that deals with lie detectors or "polygraphs," the phrase for undergoing a polygraph test is "going on the box." We scientists at the national labs better become familiar with this phrase and with the facts (and fiction) surrounding polygraphs: we are about to experience "the box."
To learn more about polygraphs,
we have sifted through a formidable mixture of stories, hearsay,
laws, and scientific information. In addition, we have received
numerous letters from readers, most of who voiced opposition to
polygraph testing. Those in favor felt that a Q-clearance is a
privilege for which a person should be prepared to give up certain
rights and to submit to polygraph tests. Still, they admitted
that reliability was a problem, and cautioned that questions should
be restricted to security issues, and should not enter into lifestyle
issues.
Those opposed to polygraphs quoted unreliability as the main reason. Interestingly, most shared two common thoughts. First, if polygraph testing comes to the labs, to avoid abuse it should be administered across the board. Secondly, they called for a "top down" approach: start testing members of Congress and their staffers who hold clearances, work downward to the DOE secretary and all cleared DOE officials, then the lab's directors and managers before the workers "go on the box."
On August 13, armed with plenty of information and opinion letters, SPSE formulated a statement, "SPSE Speaks Out on Polygraphs." The statement reflects the sentiments of many--certainly not all--lab employees. Even one of our local newspapers, the Tri Valley Herald, endorsed many of its key points in an editorial.
On August 18, the DOE announced the proposed polygraph policy in the Federal Register, http://www.access.gpo.gov/su_docs/aces/aces140.html. In that document, DOE acknowledges that concern exists about the reliability, but dismisses that concern saying, "DOE is aware of no scientific studies that establish that polygraph examination results are unreliable for use as an investigative tool." I don't get it. There are plenty of scientific studies showing the unreliability of polygraph exams (some found reliability as low as 61%). If you use a calculator that is wrong up to 39% of the time as a tool to balance your checkbook, don't be surprised if your checks bounce.
Widespread concern over polygraphs has existed for some time. For example, in 1988, the United States Congress passed the Employee Polygraph Protection Act, http://www.compliance.gov/poly.html, prohibiting polygraph exams in the private employment sector. Why protect employees from a machine unless that machine can cause harm due to its failure rate? Why do courts have problems admitting the polygraph, and why has the Senate Intelligence Committee asked the FBI and CIA to explore alternatives to polygraph testing?
DOE apparently has no problem with polygraphs and strongly advocates its use to "deter unauthorized disclosures of classified information and to provide a means for possible early detection of disclosures." How did the polygraph deter Aldrich Ames? The KGB rewarded Ames handsomely for the information he disclosed. His lifestyle became so lavish that coworkers became suspicious and alerted the security people. They ordered a polygraph test and Ames passed it. Verdict: the polygraph says, Ames is not a spy. The polygraph is accurate. Therefore, Ames is not a spy. Case closed! This chain of events is reported in the Unclassified Abstract of the CIA Inspector General's Report on the Aldrich H. Ames Case, http://nsi.org/Library/Espionage/Hitzreport.html.
How many times have we heard from Secretary Richardson and General Habiger that four questions would be asked, all pertaining to national security? Indeed, the DOE states that the exams would address "the narrow topics of espionage, sabotage, terrorism, unauthorized disclosures of classified information, unauthorized foreign contacts." Lately, we hear that sexual contacts with persons from sensitive countries may be included in these "narrow topics." Should you fail any questions, you have the right to request a second, "exculpatory" exam in which case the restriction to "narrow topics" no longer applies. By the way, you have the right to refuse the exam. However, refusal to take the exam, or failure to complete the exam, results in denying the individual "access to the information and involvement in the activities that justified conducting the exam."
A final thought: think of the polygraph as an unreliable witness who might not tell the truth as often as four out of ten times. Would you assent to have the DOE interview such a witness as part of you clearance investigation? Of course not, and therefore, none of us should be asked by DOE to "go on the box."
On June 30, 1999, members of a task force visited the Lab on a fact-finding mission. Appointed by DOE Secretary Bill Richardson, the task force was formed to address the special concerns of employees of Asian descent. John Robinson, leader of the delegation said, "We're here to re-assert and reiterate Energy Secretary Bill Richardson's commitment to fair treatment in the workplace for everyone."
The delegates attended two meetings with employees at LLNL. The first meeting was limited to Asian American employees. The second was a forum open to all employees. According to Robinson, "We're here for everyone. We're here in a humble spirit of collaboration." SPSE President William J. O'Connell addressed the delegation during the second meeting. On July 7, 1999, Bill sent the following letter with additional comments to the commissioners: John M. Robinson, Yvonne Lee, and Thomas Tamura.
Dear Commissioner:
As other speakers did, I thank you as members of Secretary Richardson's Commission for gathering the employees' concerns and reporting them back to Washington DC. This letter summarizes and adds detail for my spoken comments in your meeting with LLNL employees on June 30th.
First, I urge you to ask the Contractor, the University of California, to publish its summary data on how well they are doing on equity in professional employment for minorities and women professionals. The University has made some efforts in this area and has the basic data on their progress. It would be helpful to all concerned to see the aggregated data on progress and on where challenges remain. In particular, we would like to see the statistics on recruitment, pay scales, pay raises, and promotions to management levels.
Second, I ask you to rebuke the efforts toward "insider" suspect profiling. Our visiting FBI instructor during the recent security training mentioned insider profile characteristics such as having money problems, inexplicably having too much money, or being a "disgruntled" employee. In fact, he mentioned General Benedict Arnold as our new country's first spy and first disgruntled employee. These profile descriptors are too broad to be useful, and can have a chilling effect on getting real problems aired and resolved, and a disruptive effect on employee cohesiveness and morale. The comment later during the June 30 meeting by Bill Cleveland, LLNL's director for counter-intelligence, was very useful. The trend toward promoting profiling, however, has not been put to rest by one good response at one National Lab. Your efforts in this area would be appreciated.
Third, I ask you to look into ways to hold managers accountable for their actions in individual personnel cases as well as in generic situations. Sometimes employees have been treated unfairly; in particular, counter to federal laws and University policies. There is validation of this statement from external bodies, such as the U.S. Department of Labor in a recent whistleblower retaliation case, and from independent arbitrators in grievances within the University's grievance procedure. For further evidence you might also look into how many employees or former employees have pursued suits against the University. To my knowledge the management at LLNL as a collective body always defends managers' decisions, and does not take steps to narrow the potential for recurrent instances to occur. This is an accountability problem for the Contractor as a coherent entity; similar to the problems we have heard so much about from congressional committees recently on accountability for fixing security problems.
The recent whistleblower case I refer to has been in the newspapers, and is a matter of public record. The initial matter was an incident investigation of an exceedance of a safety limit at the Lab's Plutonium Facility. An engineer on the investigation team refused to sign the report because his safety concern was not put into the report. Restriction from challenging work, and other restrictions, and an unfavorable performance review followed. The Lab's internal Whistleblower Protection Program, within the Human Resources Department, did not provide any significant protection. The DOE Oakland Field Office observed the situation, but did not initiate action. The Department of Labor heard the case under a federal Whistleblower Protection law, found that retaliation had occurred, and ordered certain limited remedies within its powers. The Livermore Lab's Public Affairs Office announced that UC and the lab would accept the ruling and not appeal, to save taxpayer money, but said that there was no problem with the Lab's Whistleblower Protection Program, and there was not a safety problem at the Plutonium Facility. The whistleblower is suing UC at present, and is still an employee.
You mentioned during the meeting that you would gather "best practices" in the Labs for dissemination to all the DOE Labs. You might beneficially also look at the Whistleblower program practices in the commercial nuclear power plant industry.
Lab employees are being trained in something called Integrated Safety Management, or ISM. A key premise of ISM is that workers must know how, and feel free, to raise concerns about safety. Before running off to report problems in the workplace, Lab employees would do well to reflect on the following observations.
The very first Guiding Principle of ISM states, "Line Management Is Responsible For Safety." Most Lab employees are matrixed employees; they don't have "line" management. They have project (e.g., NIF, NAI, D&NT) managers and they have administrative (e.g., Engineering, Computation, Chemistry) managers. Some ISM training has defined "line management" to be what Lab employees know as "program" or project management; i.e., the folks who control the money. Of course, those are the same people who constantly cave in to cost and schedule demands. Far better would be to put safety in the hands of the administrative organizations. Whatever the case, the choice of the "line management" terminology makes clear the Lab is not plunging toward accountability on safety matters. Strike one.
ISM training materials make repeated distinction between "managers" and "supervisors." For example, Guiding Principle #3 states, "If you feel you are not properly trained, talk to your supervisor. If you do not receive a satisfactory response, ask your manager." Clear as mud, right? Most Lab employees can't tell the difference between a "manager" and a "supervisor." For example, is a group leader a "manager" or a "supervisor"? The net effect, again, is confusion and hackneyed redefinition of entrenched terminology. Strike two for ISM.
The issue of reprisal is addressed in ISM training under "Resolving Safety Issues", where we find "Keep in mind that the University of California will protect you if you report safety violations at LLNL. Retaliation or discrimination against you is strictly prohibited, even if it is later determined that the activity was safe." Also, one SPSE member taking the web-based ISM test was met with this question: "Discipline for reporting safety problems is prohibited by LLNL and UC policy. True or false." The purported answer is "true."
These ISM assertions raise some interesting questions. First, SPSE has been told repeatedly by UC that Lab employees are subject only to LLNL policy. Why then does ISM training refer to both LLNL and UC policy?
Second, precisely where in either LLNL or UC policy are these prohibitions against reprisal found? Good luck finding any explicit wording in the Lab's policy manuals.
Third, why was the word "discipline" used, which implies some formal action against an employee? In fact, most "reprisal" is obscurely accomplished. Even Lab managers aren't arrogant enough to tell an employee in her appraisal that her rank is being dropped because she reported safety problems. Her rank will be dropped because her "job performance degraded" or because she has "interpersonal problems."
Clearly prohibiting reprisal is one thing; providing effective mechanisms for employees to allege reprisal and get a fair hearing is something altogether different. ISM doesn't seem to be accompanied by any changes to the Lab's Personnel Policies and Procedures Manual that look anything like real protections against reprisal. Without genuine enforcement, a mountain of prohibitions won't matter to an employee when management is squeezing him. As one employee who's been through the complaint/reprisal wringer advises, "you'd better first get yourself a damned good attorney before you raise safety concerns at the Lab."
Amen and strike three--ISM is OUT. (Ostentatious but Useless Trash.)
With all the changes to our place of work, such as the closure of AVLIS, and the upcoming DOE reorganization, there are two rights available to us, which could be very useful should the need arise.
Weingarten Rights
Those who belong to a labor organization
such as SPSE, have the right to request representation in a meeting
that may lead to disciplinary action. Also time must be allowed
to confer with a representative in advance of the pre-disciplinary
meeting. These are referred to as Weingarten Rights and are named
after a precedent-setting case.
Practically speaking, this means that you have the right to ask supervision before the meeting begins if the meeting is being held to determine facts to be used to decide on whether disciplinary action is warranted. In order to be protected by the right, workers must request the representation when the meeting begins or before it begins.
Skelly Rights
Workers in government have special
rights under the US Constitution. The 14th Amendment precludes
any state from taking property without due process. And in Skelly
vs. California State Personnel Board, it was opined that public
positions constitute property. As such, discipline must be preceded
by a written communication of what the person is accused of, the
discipline proposed, a right to respond, and to be heard. In essence,
there is supposed to be an opportunity to present evidence from
both employer and employee perspectives and the proposed penalty
offered in advance for a review to determine appropriateness of
the proposed discipline.
SPSE Website Reference
SPSE has linked several useful reference
sources together to assist LLNL employees in learning more about
their rights. As SPSE members we clearly have Weingarten Rights
and Skelly Rights. There have been many examples where public
employees have asserted these rights and been successful at reducing
or all together dismissing proposed unwarranted or excessively
harsh disciplinary action. /Lee McVey
We all look forward to retirement, and when this happens we hope to enjoy all the benefits we have worked hard over several years to achieve. Most of us are aware that we must retire under the UC basic retirement plan within 120 days of termination of UC employment to be eligible for continuation of our health benefits, and for our unused sick leave to be counted towards service credit in the calculation of our retirement income. Some of us may not realize an anomaly that reduces benefits for a lump sum cashout taken on our birthday.
An alternative to the basic retirement plan allows us to take a lump sum cashout instead. This alternative excludes us from eligibility for continuation of health benefits and counting unused sick leave towards service credit. Still in some circumstances it may be a plausible choice.
We usually assume our expected retirement income will increase the longer we wait to retire, at least until age 60 when the age factor reaches its peak. This assumption may be valid for the basic retirement plan, but if you are considering taking the lump sum cashout you should be aware of an annual adjustment that reduces its amount by about 1% each year ON YOUR BIRTHDAY. For example, if you were to receive a lump sum cashout of $500,000 the day before your 60th (or 59th, or 61st, ...) birthday, it will be about $5,000 less if you wait until the next day to retire. Actually the penalty for age 61 increases to about 2% (or $10,000 in the above example). In any case this amounts to a pretty costly birthday present.
Since basic retirement income increases every month including the month of your birthday, this adjustment for the lump sum cashout could go unnoticed until it's too late. When I questioned UC Benefits about this they blamed it on actuarial projections which they claim do not follow a predictable pattern. They agree this is a case where life expectancy increases with age resulting in a lower cashout value at an older age. Still I am assured the formula used in their estimator on the web accurately reflects the anomaly described above.
To calculate your expected retirement income, find the estimator on the web at http://www.ucop.edu/bencom, then follow the Retirement Plan Benefit Estimator link to http://www.ucop.edu/bencom/rs/ucrpcalc/estimator.html , and fill in the blanks with your projected retirement information. Please don't sell yourself short; use this to evaluate all your alternatives before you make an irrevocable decision on how and when to retire. /Sandra Brewer
[Webmaster's Note: For additional details on this anomaly, see Bill O'Connell explanation.]
In our March Newsletter, we reported on our December 1998 request that LLNL personnel policies be placed on a publicly accessible website. To date, the Lab has not complied even though they said that project was "in the queue." Surely this is not such a big job that it takes over nine months! We encourage the Lab to expedite this project.
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