Grassley to seek protection for Capitol whistle-blowers

A senior Senate lawmaker plans to introduce legislation that would give employees of the legislative branch the same whistle-blower protections provided to federal employees.

Sen. Chuck Grassley (R-Iowa) expressed concern in an e-mail yesterday that Capitol employees could be victimized by the lack of protection, which serve as a check against the temptation to cover up misdeeds.

The Occupational Health and Safety Administration (OSHA) rules covering whistle-blower protection do not apply to the legislative branch because they are excluded from the Congressional Accountability Act (CAA), which applied other OSHA rules to the Congress.

“Unfortunately, whistle-blowers continue to be treated like skunks at a picnic,” Grassley said. “The legislative branch should be no exception to protecting whistle-blowers. …

“It’s simply not fair, nor is it good governance, for Congress to enact whistle-blower protections on the other branches of government without giving its own employees the same consideration.”

A spokeswoman for Grassley said there is no timetable for the legislation.

Grassley’s move could prove crucial for the 10 men who alerted lawmakers to their hazardous working conditions inside crumbling utility tunnels and have since said they felt harassed and intimidated by their superiors.

The CAA was enacted in 1995 to bring Congress and many of its agencies under the same labor, civil-rights and workplace-safety laws that are followed by businesses and the federal government, but whistle-blower protections have been left out.

“Although the Congressional Accountability Act applies some of the provisions of the Occupational Safety and Health Act, it does not apply OSHA’s anti-discrimination and retaliation provisions,” said Tamara Chrisler, acting executive director for the Office of Compliance (OoC), the agency that ensures legislative-branch agencies follow federal safety and health standards.

The CAA has a general anti-discrimination provision that protects employees who report a practice that is illegal, she said.

“This anti-retaliation provision is separate from protection provided under the Whistleblower Protection Act, which only applies to the executive branch and the Government Printing Office,” Chrisler said. 

The OoC board’s December 2004 report to Congress reiterated its recommendation that lawmakers incorporate Whistleblower Protection Act safeguards. The board has made the recommendation in several reports, which are issued every two years.

The executive branch has administrative and enforcement authority for OSHA statutes applicable to the legislative branch, causing a potential separation-of-powers issue, according to the 2004 report.

“Still to be addressed are many statutes, already applied to the legislative branch, which contain so-called ‘whistle-blower’ protections designed to protect from retaliation those who help in the statutes’ enforcement,” the OoC board wrote. “We urge that Congress act to move enforcement authority from the Department of Labor to the Office of Compliance to eliminate the separation of powers conflict they currently represent.”

OSHA identifies discrimination against whistle-blowers as involving firing, blacklisting, denying overtime or promotion, demoting, denial of benefits, reassignment affecting prospects for promotion, intimidation or reducing pay or hours.

Members of the tunnel crew say that since telling Congress of the crumbling underground infrastructure they have been repeatedly harassed and intimidated by senior management. The crew is in charge of maintaining the pipes that run inside the asbestos-lined tunnels and provide steam and chilled water from the Capitol Power Plant to the campus.

The tunnel shop’s supervisor, who asked not to be identified by name, said that shortly after he and the other tunnel employees notified members of Congress his supervisor informed him that Architect of the Capitol (AoC) upper management was considering revoking his hazardous-duty pay, an increase given to employees who work in dangerous conditions.

“They didn’t do it, but I had to fight it,” he said.

The supervisor said the verbal intimidation directed at him and his staff from management as well as other AoC employees is relentless.

“We made a huge inconvenience for a lot of people by reporting the problem to Congress,” he said.

The Government Accountability Office (GAO) relayed some of the frustrations of the tunnel crew during a recent hearing.

“There is quite a bit of hostility and fear of retaliation from the tunnel crew,” Terrell Dorn, the GAO’s director of physical infrastructure, testified at a Senate Appropriations Legislative Branch Subcommittee hearing last month. “There’s a lot of distrust going on there.”

Subcommittee Chairman Wayne Allard (R-Colo.) told Architect of the Capitol Alan Hantman during the hearing, “Whatever it takes, AoC management must establish a positive relationship with the group of employees.” Hantman’s agency maintains the Capitol complex.

On March 29, Sen. Barbara Mikulski (D-Md.) wrote to Hantman and warned him that retaliation against the 10 men would not be tolerated.

“The issues they raise are extremely important. It took courage for them to buck the system, but your failure to address these important workplace-safety issues left them no choice but to do so,” she said. “Needless to say, any retaliation or adverse action against them for coming forward will not be tolerated.”

Eva Malecki, a spokeswoman for the AoC, said reprisals are not tolerated inside the agency. The agency issued a memo May 25 reiterating that to staff and provided information how to report such behavior, she said.

Malecki said the tunnel workers were not being intimidated.

“The tunnel-shop personnel are respected and valued for their expertise,” she said. “Management relies on the information they provide about the tunnels and their advice on how to prioritize and correct the issues in the utility tunnels.”