U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE
Tuesday, March 11, 2014
Frances Perkins Building
200 Constitution Avenue, N.W.
Diversified Reporting Services, Inc.
(202) 467 9200
EMILY SPIELER, Northeastern University School of Law
JONATHAN BROCK, University of Washington
RICHARD MOBERLY, University of Nebraska College of Law
DAVID EHERTS, Sikorsky Aircraft Corporation
GREGORY KEATING, Littler Mendelson P.C.
MARCIA NARINE, St. Thomas University School of Law
AVA BARBOUR, International Unions, UAW
BILLIE GARDE, ESQ., Clifford & Garde LLP
NANCY LESSIN, Steelworkers' Charitable and Educational Organization
ERIC FRUMIN, Change to Win
STATE PLAN REPRESENTATIVES:
CHRISTINE DOUGHERTY, State of Minnesota
FEDERAL AGENCY REPRESENTATIVES:
RINA TUCKER HARRIS, Consumer Financial Protection Bureau
ADAM MILES, Office of Special Counsel
ED BAIRD, DOL Solicitors Office
MEGAN GUENTHER, DOL Solicitors Office
BOB SWAIN, DOL Solicitors Office
ANA LAURA BENNETT, DOL Solicitors Office
MARK WINNER, DOL Solicitors Office
DEREK BAXTER, DOL Solicitors Office, MSHA
CHARLIE LORD, DOL Solicitors Office, MSHA
LAFE SOLOMON, National Labor Relations Board
ANDREA HYATT, BNSF Railway
SID HOLCOMB, Senate Help
JASON ZUCKERMAN, ESQ.
JOSEPH SIRBAK, ESQ., Buchanan Ingersoll & Rooney
KATHLEEN HUGHES, ESQ., Union Pacific
SUSAN LINDQUIST, Union Pacific
HILARY BENSON, Congressional Office of Compliance
RICHARD RENNER, ESQ.
SARAH ZIELINSKI, F&H Solutions Group
SHANNA DEVINE, Government Accountability Project
PETER COCHRAN, ESQ., Morgan Lewis
RON JOHNSON, ESQ., Jones Day
DAVE BROWN, BLET
VINCE VERNA, BLET/Teamsters
TOM HEBERT, BLET
DAVE HARB, BLET
ORLANDO PENROD, BLET
BRUCE WATSON, Bloomberg writer
CONNIE VALKAN, ESQ., Canadian National
LARRY MANN, ESQ., Alper & Mann
RICK INCLIMA, Brotherhood of Maintenance of Way Employees Division, IBT
VINCE MURRAY, FAA
BARBARA VINO, FAA
ADAM MILES, Office of Special Counsel
Report of 11(c) Work Group and Discussion
Lessons Learned from Whistleblower Processes in Other Agencies
Mine Safety and Health Administration
National Labor Relations Board
Federal Aviation Administration
Richard Renner, Esq.
MS. SPIELER: Good morning. My name is Emily Spieler. I'm the Chair of the Whistleblower Protection Advisory Committee, which as you know is a Federal advisory committee to the Department of Labor and OSHA.
I'd like to first ask Rob Swick from the Directorate to just give us a few logistical instructions.
MR. SWICK: Thank you, Emily. Good morning, everyone. I'm Rob Swick from the Directorate of Whistleblower Protection Programs. It is nice to see you here this morning. We thank you for your service.
Real quickly, we have two kind of conditions with regard to this building status, if there is a safety event, there is something called "a shelter in place," and there is something called "evacuation."
In shelter in place, we're going to stay right here. If there is an evacuation, the nearest exit is right there, we will go out that door in single file and exit the building.
The bathrooms are located on either side of this space. There is a cafeteria on the sixth floor that serves pretty good food, and the snack bar is on the fourth floor, and I dare you to find it, and actually a soda machine that one of you went looking for yesterday.
If you need anything, just contact me or Meghan Smith or any of the other OSHA staff in the back. Thank you.
MS. SPIELER: Thank you. This is the second meeting of this Advisory Committee. It was originally chartered in June of 2012. Our first meeting was in January, about 14 months ago.
As the members of the Committee know, we, like many other advisory committees, got caught in the challenge of sequestration. This is the first time we have been able to meet again.
I will talk in a minute about what we have been doing in the interim but first, just a reminder, the charter for this Committee charges us as follows: The WPAC advises the Secretary of Labor and the Assistant Secretary of Labor for OSHA on ways to improve the fairness, efficiency, and transparency of OSHA's whistleblower investigations.
Then there is a long list of specifics regarding what we should be helping the Department do, including better customer service, improvement of investigatory and enforcement processes, improvement of regulations, cooperative activities with other Federal agencies and other matters of fairness, efficiency and transparency, as identified by the Secretary or Assistant Secretary.
Our job in the end is to help to improve the situation for whistleblowers with the long term goal of allowing people to come forward regarding their concerns without any fear of retaliation, and when retaliation occurs, to be able to rely on OSHA to help them.
The Department as a whole and OSHA in particular have taken this responsibility to improve the investigation of whistleblower cases very seriously, and I'm sure Dr. Michaels will tell us more about that.
It is clear from the commitment of new resources, the establishment of the Directorate in the Central Office, the continuing focus on improving the investigatory process at the regional level, and the responses to the GAO and IG reports, that the staff within the Department of Labor has taken this challenge very seriously.
In fact, in his budget, the President has proposed a significant increase for the whistleblower program, underscoring the importance of the program for OSHA and the Department of Labor.
Our role, the role of this Committee, is to help this commitment to continuous improvement by bringing shareholders formally into the conversation with ideas that will help the agency achieve shared goals.
To that end and when we were faced with the sequestration problem, Dr. Michaels and I worked together with the Directorate staff to set up three work groups, focusing on issues in the transportation industry, on defining best practices across industries, and specifically on Section 11(c), the OSHA section on retaliation.
The Chairs of these work groups are respectively Eric Frumin, Jonathan Brock, and David Eherts.
The work groups were each given a charge by Dr. Michaels. They have been working independently from the meetings of the full Committee, almost exclusively telephonically, but transparently. These meetings have been noticed publicly and the minutes are being posted.
Today, after introductions and welcomes and a report from the Interim Director, Rich Mendelson, we have allocated 90 minutes for the report and discussion from each work group. Part of that is designed for the full Committee to hear the work in progress of all the work groups and also for the full Committee to give input into the work groups regarding issues they think the work groups should be taking up, in addition to whatever they report.
Later this afternoon we will hear reports from three agencies outside OSHA that deal with claims of retaliation, the National Labor Relations Board, the Mine Safety and Health Administration, and the FAA, and later, there will be time for public comments, and we will discuss next steps for the Committee.
Before we go ahead, what I'd like to do is have everyone introduce themselves, and then I will be turning the mike over to Dr. Michaels.
Before I do that, I want to publicly thank the staff of the Directorate and of the front office of OSHA. I know this has been a challenge to have an advisory committee at the same time you are really trying to address programmatic issues that are deeply important to people around the country.
We know these work groups take time, and we thank you for all the staffing that you have done, both the Interim Director and the Deputy, and also the staff. I particularly would like to thank Meghan Smith who has been my contact at the staff level.
Going around the room, I'm going to ask the members of the Committee first to introduce themselves, and then Dr. Michaels and the staff, and then everyone else in the room. If you could just say a sentence about your affiliation so that the people who don't know you can understand the make up of the Committee.
MR. BROCK: I'm Jonathan Brock, Emeritus Professor at the University of Washington here as a public member. I chair something called the Hanford Concerns Council, which is a special mediation mechanism for whistleblowers at the Hanford nuclear site.
MR. BAIRD: My name is Ed Baird and I'm not a member of the Committee. I am with the Labor Solicitors Office. I'm counsel to the Committee, so my job is to make sure the Committee stays on the right side of all the applicable laws, including FACA. You might see me jump in once in a while, and I will be marking things, documents, reports, for the record, so you might hear me do that once in a while.
MR. KEATING: My name is Greg Keating. I am a management representative to the Committee, one of them. I am also a shareholder at the law firm of Littler Mendelson, and I chair the Whistleblower and Retaliation Practice Group there. Glad to be here.
MS. DOUGHERTY: Christine Dougherty. I am a principal discrimination investigator for the State of Minnesota, and I am the one representative for the OSHA state plan states.
MS. GARDE: I'm Billie Garde. I'm a partner in the law firm of Clifford & Garde, and I'm an employee representative.
MS. BARBOUR: I'm Ava Barbour. I am an attorney at the International Union UAW, and I'm a labor representative on the Committee.
MS. HARRIS: Good morning. I'm Rina Tucker Harris. I work for the Consumer Financial Protection Bureau. I'm an enforcement attorney. I'm a Federal agency representative.
MR. MENDELSON: Good morning. My name is Richard Mendelson. I'm the Deputy Regional Administrator for OSHA Region II, and I'm the Acting Director for the Directorate of Whistleblower Protection Programs.
MR. ROSA: Good morning. I'm Anthony Rosa. I'm the Assistant Regional Administrator for the Whistleblower Protection Program in Region IV in Atlanta, and currently the Acting Deputy Director for the Directorate of Whistleblower Protection Programs here in Washington.
MR. EHERTS: I'm Dave Eherts. I'm Chief of Safety at Sikorsky Aircraft and an Adjunct Professor at New York Medical College, and I head the 11(c) Subcommittee.
MS. NARINE: Marcia Narine, former Deputy General Counsel and Chief Compliance Officer at Ryder Transportation Logistics, now Assistant Professor of Law at St. Thomas University in Miami. I'm on the Transportation Subcommittee and the Best Practices Subcommittee, a management representative.
MS. LESSIN: I'm Nancy Lessin. I'm senior staff for Strategic Initiatives at the United Steelworkers Union's Tony Mazzocchi Center. I've worked in the field of occupational safety and health for 35 years and began dealing with whistleblower issues in 1979.
MR. MOBERLY: I'm Richard Moberly. I'm a Professor of Law at University of Nebraska College of Law and Associate Dean for Faculty, and I'm here as a public representative.
MS. LESSIN: I'm a labor representative.
MR. MILES: I'm Adam Miles with the Office of Special Counsel. I'm the Deputy Special Counsel for Policy and Government Affairs, and I'm a Federal agency representative.
MR. MICHAELS: I'm David Michaels. I'm Assistant Secretary of Labor for OSHA.
MR. WATSON: I'm Bruce Watson, a writer at Bloomberg, the Occupational Safety and Health Report.
MS. SMITH: Meghan Smith, Directorate of Whistleblower Protection Programs.
MS. SWANN: Gail Swann, management analyst, Directorate of Whistleblower Protection Programs.
MS. WENDELL: Katelyn Wendell with the Directorate of Whistleblower Protection Programs.
MS. SEEMAN: Laura Seeman, Directorate of Whistleblower Protection Programs.
MR. BROECKER: Brian Broecker, also with DWPP.
MR. BLAKOTO: Phil Blakoto, DWPP.
MS. GIVENS: Laura Givens, also DWPP.
MR. WHEELER: Good morning. Young Wheeler, Office of the Assistant Secretary here in Washington.
MR. GOULD: Elliot Gould, I'm a program analyst with the Directorate of Whistleblower Protection Programs.
MS. LINDQUIST: Susan Lindquist, Union Pacific.
MS. BENNETT: Ana Laura Bennett, Solicitors Office here at the Department of Labor.
MR. SOLOMON: I'm Lafe Solomon. I'm on detail from National Labor Relations Board to the Solicitors Office.
MR. ATHA: Good morning, Ken Atha, Regional Administrator for OSHA in San Francisco, Region IX, and also a member of the Executive Steering Committee for Whistleblowers.
MR. RENNER: Richard Renner, Attorney-at-Law.
MR. WINNER: Mark Winner, Solicitors Office, Division of Occupational Safety and Health.
MR. SWICK: Thank you.
MS. SPIELER: Thank you. Please note before I turn this over to Dr. Michaels that this is a public committee. The law requires and we are committed to a very fully transparent process. There are detailed minutes prepared for all of the work group meetings that are being posted on the Whistleblowers.gov website.
If people have concerns about the issues of transparency, you should get in touch with me or with Ed Baird or with Rich Mendelson at this point. As a committee, we are very committed to the notion that the more we can provide a pathway for discussion about policy level issues, the better off we will all be.
With the caveat, of course, that individual complaints are not something that are within the purview of the Committee, and although we have received some correspondence from individual complainants, we always simply forward those onto the staff to deal with appropriately.
Thank you, and I'm turning this over now to Dr. Michaels.
WELCOME FROM ASSISTANT SECRETARY DAVID MICHAELS
MR. MICHAELS: Thank you, Chairman Spieler.
MS. SPIELER: One minute. Is Eric on the phone?
MR. SWICK: Not yet.
MS. SPIELER: Let me just note that one member of the Committee who actually chairs one of the work groups, Eric Frumin, is ill and could not come to Washington, but will be on the phone, and certainly for the presentation for his work group. Okay.
MR. MICHAELS: Thank you. Good morning. It's lovely to see all of you. First, let me begin by thanking you for giving us these two days and all the work you have done up to this point. I know people have spent a tremendous amount of time, and it goes without saying this is unpaid. We are grateful and the Obama Administration is grateful that you give us this time, your wisdom and expertise.
I don't need to remind this group of the importance of the mission of this Committee and also the whistleblower protection programs.
In terms of worker safety, employers report about three million injuries a year. We know from various studies done from the Bureau of Labor Statistics that is an under estimate. There could be four million or five million workers who are injured on the job every year, of course, about 4,000 of them are killed, about 12 a day.
OSHA's mission is to prevent those injuries from occurring, to prevent those fatalities. Workers in workplaces play a very important role. We are a small agency. We can't be in many workplaces at any one time. We do about 40,000 inspections a year, our state partners do 60,000 inspections a year. There are between seven and eight million workplaces covering 130 million workers.
The way the OSHA law was written is to say workers are the eyes and ears of OSHA. Workers have to be able to raise concerns when they see them, to make sure they are safe and their co-workers are safe, and for that to happen successfully, they have to do that without fear of retaliation.
OSHA's job among other things is to protect them from retaliation, but we have limited abilities to do that, so the charge we have and the charge you have is how do we encourage workplaces to be designed and function in a way that workers can raise concerns about safety without fear of retaliation.
I know that is something that we are all grappling with and something you are helping us with.
Of course, our Whistleblower Protection Office and this Committee goes far beyond worker safety. We have been given responsibility to investigate concerns about fear of retaliation, concerns about retaliation, under 21 additional statutes that protect not just workers but the health, safety and well being of all Americans.
Those statutes include protecting workers who report violations under various airline, commercial motor carrier, consumer products, environmental, financial, food safety, health care, nuclear, pipeline, public transportation and maritime laws. Quite a wide scope that we have.
We know under all these laws, either health, safety or well being, sometimes the financial well being, of individuals can be affected by activities that take place in these workplaces, and we want to encourage workers to be able to raise concerns with either their employer or with the appropriate Federal agency.
To ensure that workers do have this right, this voice in the workplace, we have really tried to strengthen our Whistleblower Protection Program. As you heard from Chairman Spieler, we have increased our staff. We have elevated the office to its own Directorate. We have established its own budget. Before this Administration came in, it didn't have an individual budget. We made the program a priority within the Labor Department.
However, it has been a very challenging year since we last met. As you heard, the sequestration had a big impact on us and it impacted our work in the field and hampered the ability of this Committee to meet again during the last fiscal year.
We had the Government shutdown, which also had a very impact on our work, both nationally and in the field.
Additionally, we have had some significant personnel changes. I'm very pleased that I think we have a very strong active leadership right now. I want to thank Rich Mendelson, who is coming from New York, and Anthony Rosa, who is coming from Atlanta, to be the acting heads of the program.
I also want to thank Bill Donovan. Many of you may have dealt with Bill, who is the previous Acting Director. He came in from Chicago and did an excellent job.
The three of them brought a tremendous amount of field experience which has been very useful for us at the National Office to understand how we can work most effectively across the country.
I also want to thank Ken Atha whom you met briefly, who is part of our Executive Steering Committee, which is a structure we set up to help coordinate activities across the country.
Obviously our concern is doing our work effectively, efficiently and consistently across the country. Having an executive structure involving some of our senior leadership here in the National Office and from around the country that oversees the program, I think, will be effective in making sure we do that.
We are also very fortunate to have as our Secretary of Labor, Tom Perez, who has now been the Secretary of Labor for a little more than half a year. He has made very clear his commitment to whistleblower protection from the very beginning of his term here at the Labor Department and has been very supportive of this program, and is working with us on the same issues you are working on, to figure out ways to improve our work.
Through all these changes and the challenges of the budget, I think we have had a very successful year. I will get to some of the successes but it is worth noting, as Chairman Spieler noted, that we have seen significant budget increases. This is the only agency I'm familiar with that has seen budget increases anything like this in the last few years.
Our fiscal year 2014 budget, the year we are in now, the budget of this office, Whistleblower Protections Directorate, is $17 million with 131 FTEs, full time equivalents. That is an increase of 16 FTEs and over $1 million over the previous fiscal year. It is an 12 percent increase in staff and a slightly lower increase in budget.
The President's budget, which was just released last week, requests an increase from $17 million to $21.2 million, an increase from 131 FTEs to 158 FTEs. That is an increase of over $4 million and an increase of 27 FTEs over our current year. It's a 20 percent increase in budget and 17 percent in FTEs.
We are very grateful. This program has very strong bipartisan support in Congress. We enjoy the bipartisan recognition of the importance of this program, and certainly your work is a piece of that.
In the last year, among our successes, first of all, we have helped award more than $24 million to whistleblowers across the country last year. We also launched a new on line complaint form for workers who face retaliation.
In the category of no good deed goes unpunished, this will of course mean we will get more complaints. In fact, we are already seeing them. That's okay. We just have to figure out how to do our work more efficiently and better. We certainly do not want to discourage people from raising these allegations.
Some of the allegations may not be well founded and we may have to dismiss them, and that is more work for us, but people should feel they have that voice. We think the on line complaint form will help us get there.
We have had several very significant cases of interest. One of the most notable ones was last month, we filed a case against AT&T on behalf of 13 workers who were suspended for reporting workplace injuries.
Our complaint alleges that in 13 separate instances, AT&T employees were disciplined and given unpaid suspensions for reporting injuries that occurred on the job.
We investigated and found that their suspensions were the result of workers reporting their injuries. This was taking place mostly in Ohio, but we have cases elsewhere. Our Regional Solicitors Office in Cleveland is actually litigating this case right now.
We think that sends a very important message out, that workers shouldn't be suspended or otherwise suspended for reporting injuries. The impact of doing that discourages people from reporting injuries. If injuries aren't reported, they can't be investigated. If they are not investigated, then future injuries can't be prevented.
We will see where those cases go and we will certainly keep you informed.
Last November, we ordered Gaines Motor Lines and two individuals there to compensate four former truck drivers who were fired in violation of the whistleblower protection provisions of the Surface Transportation Assistance Act.
In that case, we ordered payment in back wages, interest and compensatory and punitive damages.
We have a number of cases like that. This is just one example. We have had a number of large cases, which I think also send a very important message.
We also won a very important Court case last year. We received a complaint from a teacher, actually a theater arts technician, at a school in Florida, who raised concerns about electrical hazards. This was in Region IV. That teacher was retaliated against. He was terminated by a charter school for raising those concerns. That's what we found in our investigation.
We issued an 11(c) violation. The school obviously disagreed. We went to Court. We had a trial. The verdict was calling for the school and the principal to pay the worker $55,000 in back wages and $120,000 in punitive damages.
We think those cases also send a very important message.
I believe our program is strengthening as a result of the advice we are getting from the interactions with you. I know yesterday you had a very successful series of meetings, and we are already getting good feedback and ideas that come from what you are doing.
We need your help. We need your advice. We know that through this, we can improve our work and strengthen the protections for workers across the country. I can't tell you how appreciative I am personally about the time you have put into this. I'm very grateful.
Let me thank all of you. I want to thank specifically, in addition to Chairman Spieler, who puts a tremendous amount of time into this, I don't know if she had any idea how much time this would take her, but we're grateful for it -- the three Chairs, Dave Eherts of the 11(c) Work Group, Eric Frumin, the Transportation Industry Work Group, and Jon Brock, Best Practices and Corporate Culture.
These three groups and your work on them is very important to us. I really can't underscore that enough.
11(c) remains our greatest challenge. The majority of our cases come from the 11(c) program. We are very eager to hear your thoughts and recommendations on how we can have a larger impact protecting workers from retaliation after they raise their health and safety concerns.
We have a long way to go in making this program function well. We really are looking to your advice on ways we can improve this program.
After 11(c), our largest volume of cases come from the transportation industry. There are a lot of reasons for that. The laws in the area of transportation are quite different than 11(c), which gives us an opportunity to look at things differently, to identify different approaches.
Of course, these issues in transportation in particular impact not just workers but also the public, the driving public, the flying public. I think your work in that area is also vitally important and I'm grateful you have taken that on.
Finally, and in some ways the broadest challenge is really around best practices and corporate culture. This is an area that OSHA has not worked in in the whistleblower framework at all.
When we think about worker safety, we talk about safety health management systems, we talk about injury and illness prevention programs. We know there are approaches that can be implemented by employers in workplaces that will reduce injuries. They are tried and true methods. They are effective in ensuring workers are safe.
(Mr. Frumin joining meeting telephonically.)
MR. MICHAELS: Eric, welcome.
MR. FRUMIN: Hi. Sorry I'm late.
MR. MICHAELS: No problem. I'm just wrapping up my talk, and I haven't said anything that you don't already know.
When we think about how to help an employer where there is a high injury rate, reduce injuries, prevent fatalities, we can tell them here is the sort of program you should implement. Here is your injury and illness prevention program. This works. We have recognition programs, our voluntary participation programs, our shop program for small employers. Get involved in one of these programs.
We know you will reduce injuries. You will actually become a more efficient company, a more productive company, and you will succeed because you manage for safety. There is lots of evidence for that.
What we haven't done is consider how to do that sort of work, if it can be done, in the realm of whistleblower protection and anti-retaliation, and to develop what are the programs that will be most effective that we can tell employers do this, and you will hear the concerns. Workers will feel comfortable raising those concerns, and I would like to know whether that would help the employer as well. I believe it does, but I haven't seen the empirical evidence.
We are embarking on a whole new area here, and I'm looking forward to your input on this.
Right now, all we can do for employers is say don't do this. What you are doing is against the law. While obviously that is a very important message, we are not going to walk back from that message, I think we want to offer a positive message as well, say here are things you can do that will be effective, that will mean we will not have to invest in you, we don't have to take you to Court, we will save you these fines and make you a better company.
We are looking for your thoughts on how to do that, are there programs that really do work, how do we evaluate them. Are there benchmarks we can look at. It's very exciting.
None of this is going to be easy. We didn't choose you because we thought any of you were pushover's, we think this will be a very interesting and important discussion. You come from very different perspectives. We expect to see differences. We leave it to you to figure out how you want to resolve them, and maybe they can't be resolved, we hope they can be.
We think we have a fabulous group of advisors here who bring wisdom from many different parts of the country, from industries, from backgrounds, from training. I am confident that together we can develop ways to help us move forward, and this will be effective not just for OSHA but it will be effective for the workers, for the employers, and for the people of the United States of America.
With that very modest charge --
MR. MICHAELS: I wish you best of luck, and I look forward to your deliberations today and into the future.
MS. SPIELER: If anyone has any questions for you, would you be willing to take them?
MR. MICHAELS: Certainly.
MS. LESSIN: Nancy Lessin. Thank you, David, for all of your work. I have just a couple questions.
It appears you are entering into the possibility of an MOU now with the Department of Transportation.
MR. MICHAELS: Actually, several. We have a Memorandum of Understanding with the FAA, and our plan is to -- we are actually in discussions with great progress with other agencies within the Department of Transportation, because the laws are different and the requirements are different between say the motor carriers and railroad, for example. Yes, we are moving toward several MOUs.
MS. LESSIN: You have one already, is this true, with FRA?
MR. MICHAELS: I think we have one with FRA and FAA.
MS. LESSIN: Can you talk a little bit about what you think has changed since the MOU? I'm asking this because I've spent a lot of time with those who work in the rail industry, all different carriers, different Unions, but I'm hearing the same story, that things actually are not changing, that the kind of practices that they have been experiencing for years, which is brutal, injury discipline, when workers report injuries is still happening.
As you enter into these other Memorandums of Understanding, is there an evaluation with the ones that have existed and what you think has changed and what hasn't changed and why. Has that been looked at in terms of what was actually produced out of these relationships?
MR. MICHAELS: I may turn this over to our staff who are more deeply involved. My understanding is the MOUs are primarily information sharing. For us to do the investigations, we need certain information. We are eager to share the information that we gather back with the agency.
The MOUs don't change agency policy. The FRA doesn't ask us to change our policy and we don't ask to change the FRA's policy.
In terms of evaluating the impact of the MOU on what's going on outside the agencies, I'm not sure that is the focus of the MOUs.
It is worth a discussion and perhaps you want to give us some advice whether we should think about a different MOU. That would certainly be worth involving those other agencies as well in those discussions.
MS. SPIELER: Let me intervene and just suggest that maybe if it is specifically about transportation, we can take it to the Transportation Work Group, and perhaps the staff could bring people up to speed on what is and isn't contained in MOUs and whether there is advice from the Committee that might be useful.
MS. LESSIN: The other question I have -- certainly tracking the cases, recent cases, with AT&T, and other cases under the FRSA, and I know there have been in several of the statutes some large awards -- my understanding is a lot of what we have seen in the press release doesn't actually end up in the pockets of workers who have been retaliated against because there are appeals through the Court system.
Is there anything that tracks how many years it takes to actually win a case and end up getting to the workers who have been retaliated against and what those awards actually end up being?
I'm asking this because the issue of the kind of retaliation that we see in some sectors, and rail would be among them, is a chilling effect that happens when workers get fired or disciplined.
There is a momentary blip when there is a great press release with this award, but I think people in these industries, the workers, are well aware there is another story.
I am just wondering if in the Directorate at all there is any kind of follow up to see what actually happens, how many years it takes, what ends up actually going to workers.
I think the large issue that I'm looking at is a chilling effect that continues to chill. It is very disturbing.
MR. MICHAELS: You certainly raise an important concern. One of the issues in terms of our system is once we issue a finding, it leaves our authority. There is no system for us to easily track cases that go to the ALJ or Court. We can attempt to gather the information and we do. We have no formal system to do that. We can't give you well validated empirical evidence.
I know that's an issue that sometimes academic researchers take on, and I'm looking at Professor Moberly, who has done this for securities cases. Certainly, we would encourage someone to take that on.
The issue you raise, the way the law takes, it takes a long time to reach -- it can take a long time to reach final settlement, which is in fact one of the reasons we do our best to settle cases early.
While that sometimes makes it look like we're not issuing findings for workers and the amounts are much lower, our objective is to make people whole, to get their job back as soon as we can. Those cases get no press.
We are very pleased, for example, after our agreement with BNSF -- BNSF signed a voluntary agreement to change their policy -- we also settled a lot of cases, to the acceptance of both the claimants and BNSF.
That is what we would like to do, to get these cases out of our system because they are settling and everybody is happy.
Alternatively, we issue a finding, sometimes with punitive damages, which sends a message, and hopefully begins to move toward getting that worker the justice we found they deserve. There are limits to what we can do in that case. Once it leaves our authority, it is just out there.
There is little we can do in terms of speeding that up, other than if we could settle it before we issue our finding.
For many reasons, we are eager to settle quickly, if we can get someone their job back, the pay they have lost, that may not send a message to not do this again, but it does take care of that worker. We want to do that.
That is sort of the back and forth we have on a regular basis.
MS. NARINE: Marcia Narine. I know that Emily did a great job reciting our charge and also talking the sequester. The question is I guess we have six months left on our charge, is there an extension of our period of time? What do you reasonably expect from us at the end of our term, whenever that is?
MR. MICHAELS: Thank you for that question. First, we fully expect this Committee to be re-chartered and to continue. All Federal advisory committees have a two year charter.
We hope that most or all of you will continue. One of the issues that ongoing advisory committees face is our policy to try to stagger the terms. You have to begin at one moment, everyone is appointed at the same time.
What we hope to do is reappoint half the members one year and reappoint the other half the next year to make it easier when we do reappointments in the future.
Other than that logistical issue, we expect this Committee to go on and continue this work. The charge will remain the same. It really is to help us improve our effectiveness, improve our transparency, but to think also about these policies that will impact not just our effectiveness but the way anti-retaliation policies exist in workplaces across the country, to change that culture.
I look at it as trying to move from addressing these issues retail to wholesale, to have a bigger impact on more workplaces.
As long as we are a relatively small staff, a small group of investigators, a small national office, we can have a limited impact, and whatever message we put out with our cases will be quite limited.
We have to think about ways this small but mighty band, and I include all of you here, can really change the concerns of workers around health and safety, the products they are producing, are treated in workplaces. It is quite a challenge. I don't mean to minimize it at all.
It is very exciting. I am hoping you continue to do that.
MR. KEATING: Dr. Michaels, Greg Keating. I'm delighted to hear there have been more resources sent your way. I know in addition to an increase in funding and staff, you have taken some efforts to revise the Whistleblower Manual for investigators.
I practice all over the country, and my experience has been the experience of those in the field, the investigators, is varied in the sense that some are starting to really find their stride with the necessary resources, while others continue to be buried with very high docket and case law and what not.
I guess my question is with the increase this year and the anticipated increase next year in FTEs, is a lot of that going to be in the field, the investigators?
As a follow up, one of the things one investigator recently said to me is we do over 23 or 24 stat sheets, and to train someone to get up to speed, not just on one statute but 20 something, is a mighty big task.
MR. MICHAELS: Actually, both of those questions are related. Most of the staffing will go to the field but we will take some of the increase and actually use it for dedicated whistleblower training, whistleblower protection staff training positions in our Chicago, Arlington Heights, Illinois, OSHA Training Institute. We have never had dedicated training staff.
Rich, will you be addressing this at all? Some of these budget issues and allocation issues are going to be addressed shortly by Richard Mendelson. I am going to hold that.
We're quite aware of that. We're concerned about consistency and making sure all our offices approach cases the same way. Certainly having field staff as the acting leadership of the program has made a big difference, something we have seen and we think we will see real improvement around that.
We are looking at issues of backlogs and we have had some successes. Training, we recognize as being a very important area, certainly some of the resources will go into training, both to hire trainers and to get people to the training center where we will do that training.
MS. SPIELER: Terrific. Thank you very much. We are running a little bit behind. I am going to ask Rich Mendelson to provide his report. That was very helpful, Dr. Michaels. Thank you very much.
DIRECTORATE OF WHISTLEBLOWER PROTECTION PROGRAMS REPORT
MR. MENDELSON: It is my pleasure to be here. Thank you to Dr. Michaels for his powerful message and for leaving me a few things to talk about, he's so involved in the program, and he really does believe in this stuff.
Just as Dr. Michaels said to Secretary Perez, I think it's incumbent on us to thank him for his leadership and his dedication to protecting workers, including whistleblower rights.
In my 25 plus years with OSHA, it is fair to say his level of dedication on this issue is unprecedented, and while our work is still cut out for us, we have also accomplished a lot under his watch.
As I said before, I am the Acting Director for Whistleblower Protection Programs but my actual position is the Deputy Regional Administrator for OSHA's New York Regional Office. In that capacity, I oversee whistleblower protection programs, but I'm certainly a novice in this room, and I'm not an expert on whistleblower issues.
I'd like to extend my thanks to the Chair, Ms. Spieler, and of course, the Chairs of the Subcommittees, Mr. Eherts, Mr. Brock, and on the phone, Mr. Frumin, and to the incredibly dedicated staff behind me, who introduced themselves before.
They do all the work year round and are completely dedicated, the DWPP staff, and especially the points of contact, Meghan, Rob and Katelyn, and to my colleague, Mr. Atha, who also serves with me on the Executive Steering Committee and is normally out in San Francisco.
Over the past five years, OSHA has experienced an increase of new whistleblower complaints every year. An additional 154 in 2010, 377 in 2011, 202 in fiscal year 2012, and 27 in fiscal year 2013.
Last year, we completed more investigations than we received new complaints. We received 2,920, and we completed 3,081, a decrease of 134 from our backlog. That still leaves a backlog of 2,384 cases.
We are looking at the make up of those cases. OSHA 11(c), FRSA, SOX cases combined equal 90 percent of the cases completed in fiscal year 2013. We add AIR21, EPA, ERA, and Food Safety, that makes up 98 percent of the cases completed in fiscal year 2013.
This is important in terms of how we manage our program and how we train our investigators. Currently, the only measure that we report out is our total cases completed measure. Our target in fiscal year 2012 was 2,180 cases or 545 per quarter. We failed to meet that in the first two quarters of the year. After some internal process streamlining, we exceeded the targets in the third and fourth quarters, and in the end, we completed 2,767 cases that year.
In 2013, our goal was 2,700, and we exceeded that goal by completing over 3,000 cases. Our target remains at 2,700, and while we did not make our quarter one goal, remember that we lost two weeks to the Government shutdown at the beginning of that quarter.
We are also looking at other measures and statistics to improve management and tracking of the whistleblower program. Centralizing statistical reporting will help ensure that all regions are measuring data the same way.
Here at the National Office in July of 2011, the Office of Whistleblower Protection Programs was moved out of the Directorate of Enforcement Programs and became a free standing office.
In 2012, that office was reorganized as the Directorate with two divisions, Operations and Policy and Planning. The Directorate is still growing, and we continue to reassess the distribution of duties and assignments. We are also going to be adding some additional staff this fiscal year.
To put this in perspective, in 2011, we had six staff. In 2012, we had nine. In 2013, we were up to 14, more than doubling the size in two years, and we continue to grow.
Compared to the other Directorates, DWPP might be small but it's full of spirit and energy, and its staff is incredibly dedicated to the mission. We have improved our communication process with the field and we are working diligently on many projects.
The largest operational deliverable for DWPP is 11(c) appeals. In 2013, we received 114 appeals and completed 96, with the average days to complete 249. In fiscal year 2014, we already have our appeals inventory. At the end of fiscal year 2013, we had 117 pending cases. As of last week, there were only 43 pending cases.
By way of comparison, in June 2011, OSHA had over 140 cases on appeal, some pending for more than three years.
DWPP did this by revising internal processing procedures, their regularly held appeals committee and pre-appeals committee meetings, to relieve the bottleneck of appeals waiting second level review. DWPP now moves to discuss questions and issues with the regional managers before deciding to remand or reverse a case.
It is important to note we are not sacrificing quality in this process. In fact, multiple staff members review each case separately in parallel, and any differences are moved up the line. Remanding cases that are only a few months old means that an unsatisfied complainant has a better opportunity than when an appeal is years old.
The on line complaint form, which Dr. Michaels mentioned, was launched in December 2013, and as of last week, we received 742 on line filed complaints.
The Directorate sent a questionnaire to the field asking for feedback on the new system and the quality of information received on that form. We are going to use this feedback to evaluate the system.
Again, we are trying to manage our system strategically using data while also improving customer service and ease of entry into the system.
We are developing an outreach plan, which is new for whistleblower, working to identify stakeholders, such as alliance members and subject matter experts such as the Committee members, to assist us with distribution of program information to employers and employees.
Retaliation complaints are by their nature reactive, but stopping retaliation before it ever happens is the best outcome for employees and employers. We need to find methods to get our message out to workers and employers. DWPP is also responsible for promulgating regulations specifying the procedures and handling of retaliation complaints under our 22 statutes. There are 13 regulations, 11 existing, two in draft, that address the OSHA whistleblower statutes.
Since the Committee met last year, DWPP has issued interim final rules in the Seaman's Protection Act, Affordable Care Act, and Food Safety Modernization Act. In the coming months, we will publish the IFR for the Consumer Financial Protection Act and final rules for the Federal Railroad Safety Act, SOX, Seaman's Protection Act, and ACA.
So much of our work in statutes address non-OSHA issues that it is critical that we strengthen interagency relationships. As Dr. Michaels was just addressing a question from Ms. Lessin, we have an MOU in progress with the Federal Motor Carriers Safety Act, and that MOU is going to address FMCSA referring employees who complain of alleged discrimination to OSHA, and in turn, OSHA providing FMCSA with copies of the staff complaints and Secretary's findings.
FMCSA will provide OSHA with information from their information management systems upon request, and this process is ongoing, and the MOU should be finalized soon.
We are continuing our working relationship and cooperation with 11 other Federal agencies, although not necessarily having new MOUs. We have good lines of communications with these agencies or in some cases, existing MOUs.
These include NHTSA, Federal Transit, Federal Air, and Nuclear Regulatory Commission, the Coast Guard, Pipeline Safety, Federal Rail, Centers for Medicaid, FDA, Consumer Product Safety and the SEC.
As much as DWPP does, remember that the bulk of investigative work occurs in the field. We are experimenting with several pilots and we are moving to institutionalize those that are successful.
The first and foremost of these is the new Assistant Regional Administrator for Whistleblower Protection Programs. This structure was piloted in Regions IV and V, and both regions had overwhelmingly positive results. We have already expanded this structure to Region II, and our plan is to roll it out to all ten OSHA regions this year.
The ARA model helps provide strategic leadership and guidance to the program. The supervisory investigators will manage the caseload and supervise the investigators, but someone needs to look at the big picture, manage resources, coordinate priorities with the Solicitors, and manage the program.
This model also provides subject matter expertise throughout the chain of command, from the investigator all the way up to regional management. It allows for a more manageable supervisor to investigator ratio, leaving the supervisor attentive and available to both the investigators and the complainants.
This is what we do in Enforcement, and it works there. This is what we will now be doing in Whistleblower. It also parallels the Whistleblower Protection Program being elevated from an office to a full Directorate. Whistleblower will now be managed consistently in every region and report directly to the Regional Administrator.
We have also piloted an alternate dispute resolution or ADR program in Regions V and IX with great results. We tried two different models. The more successful was the early resolution where the ADR Coordinator works and directly assists the parties with settlement talks. It produced dozens of settlements in Region V, reduced 36 cases in fiscal year 2013, and in Region IX, 18 cases.
Basically, the ADR Coordinator completed as many cases, the equivalent amount to a full time investigator, the difference is that all of these cases had settlements.
Mediation was another option that we explored where we tried one day sessions with Federal mediation reconciliation service mediators. They were not as successful. Our goal is to expand the ADR model to all regions and we are going to be rolling out specialized training as well.
We are also working, as you heard Dr. Michaels say, on developing a distinct whistleblower training track at the OSHA Training Institute or OTI. We are establishing a permanent whistleblower coordinator at OTI, and we are working to develop a track that might potentially have up to six whistleblower training courses. There is a subgroup working on that meeting the first week in April.
Recall what I said about the allocation of our workload, almost all of our cases are made up from less than half of our statutes. We are also looking to build consistent investigative skills and core competencies, and we are exploring new avenues to provide additional training.
We are also studying other streamlining and process improvement options, examining several other pilots. We are also going to be strengthening our internal audit program working through our existing management accountability program.
Last but certainly not least, the WPAC Advisory Committee request for nominations' Federal Register Notice will be posted for public inspection tomorrow, March 12, and published in the Federal Register on Thursday, March 13.
OSHA will seek to fill 12 Committee positions that will become vacant January 1, 2015. The agency is initiating staggered terms whereby six members will be appointed for one year terms and six for two year terms. We will fill again one public, one state plan, two management, two labor terms to one year, and two management, two labor, and two public rep's to two year terms. We will again have three non-voting members selected by the Secretary from Government employees among other Federal agencies. Current members may be re-nominated.
As Dr. Michaels said, as required by the Federal Advisory Committee rules, the Committee itself is in the process of being re-chartered for two more years.
That is a lot. While my time here might be short as Acting Director, the work is cut out for the dedicated permanent staff of DWPP. With your assistance and guidance, we look forward to further improving worker protection.
As Dr. Michaels said, workers' ability to complain without fear of retaliation is central to a safe and healthful workplace.
Thank you for helping us reach that noble goal.
MS. SPIELER: Thank you very much, Mr. Mendelson. Would you also be willing to take a few questions or should we hold them through the course of the day? Will you be able to be with us?
MR. MENDELSON: I will be here all day.
MS. SPIELER: My suggestion would be if you have questions that relate to the work of a Work Group, we should hold them until that part of the discussion, but if there is something more global you would like to ask about now, but I'm going to come back at some point so we can get back on track.
MS. DOUGHERTY: Christine Dougherty. You talked about the numbers, you are just talking about the Federal investigation numbers, not including state plans?
MR. MENDELSON: Correct.
MS. DOUGHERTY: My understanding is none of the increase in whistleblower money is being passed onto the state plans.
MR. MENDELSON: Right, the line items are different. The state plan grants come out of a different budget pool.
MS. DOUGHERTY: The state plans are still static in terms of money?
MR. MENDELSON: Yes. I believe there was a request in fiscal year 2015 in the President's budget to increase state plan funding overall, not directed to whistleblower.
MS. NARINE: Can we get those stats sent to us? I was trying to write things down, it was a little difficult to follow.
MR. MENDELSON: Yes, the staff will get that to the Committee.
MS. NARINE: Thank you.
MR. MOBERLY: Thank you for all that information. I was curious about the settlement versus mediation programs. Could you describe the differences between those?
MR. MENDELSON: The challenge is identifying or flagging cases that would be right for that, and that is part of the issue that we are going to be doing additional training on, to identify those cases, find that there is an interest on the part of both the respondent and complainant to seek early resolution, and then to bring that forward.
FMCS, the goal was to actually go before a mediator for one day and have the parties present themselves, and OSHA is really just flagging that case. In the early resolution, we actually take an active role and seek to hammer out a settlement.
That ended up being a better model for the settlements, and early resolution, while it ends up with some settlements, everyone might be slightly unhappy or slightly happy, but everyone walks away at the end of the day, which is better than us just issuing findings and passing it along into the judicial system or ALJ.
MR. MOBERLY: Do you have any sense of why the early resolution worked better than the Federal mediation?
MR. MENDELSON: I think because the way our staff was involved, we have acknowledged the program and an interest in working that system through, and that is why we are looking to build this training and we are going to take that and train the coordinators in every region.
We are going to expand that pilot to two additional regions this year, so we will have four regions in the pilot. We will have people trained in every region to start flagging cases and working them through the system.
MR. MOBERLY: Thank you.
MS. SPIELER: Nancy?
MS. LESSIN: That actually goes to my question. You mentioned that there were other pilots, looking at streamlining. Is that what you just talked about or are there other pilots? Can we get some information about the different kinds of pilots that are being tried, what are they, how are they working?
MR. MENDELSON: Sure. Some are we are expanding that existing pilot, roll out ADR, but still consider it a pilot before we roll it out to all the regions.
We are trying some other things on streamlining. We have ten regions out there so we have ten labs, so to speak. We can try programs in different regions and see if we can get things streamlined. Can we streamline processing of paperwork. Can we streamline inputting of data, doing things like that.
We can take that, assess it, see was it worth the pay off of time, did we lose any quality, and if it's good, we will roll it out to the rest of the National Office and regions.
MS. LESSIN: The other question had to do with the alternative dispute resolution. Who gets to choose which path? Is it the affected worker who gets some options laid out and they choose? How is that done?
MR. MENDELSON: Settlement is always voluntary, so nobody is ever forced to settle a case. We flag a case when we think there might be a potential to settle, and the earlier we can get into that, the better it is for all the parties involved. That is why we want to increase that training.
The sooner we can do that, we do that, but if the parties are not interested, it will stay in the traditional track. No one is forced into a settlement they are not pleased with, either the complainant nor the respondent.
MS. LESSIN: Thank you.
MS. SPIELER: If you could include in the data that you give us on the 11(c) appeals, the rate at which they were remanded or reversed, that would be helpful.
MR. MENDELSON: Sure.
MS. SPIELER: Thank you.
MR. EHERTS: One last question. On the outreach program, usually when you put a program like that out, the immediate effect is an increase in the number of claims coming in. Have you seen that?
MR. MENDELSON: We are still working on the plan. We haven't gotten the product out there yet. We are aware that there might be a bump up.
MR. EHERTS: Long term, it is exactly the thing to do.
MR. MENDELSON: Right.
MS. SPIELER: Terrific. Thank you very much.
MR. MENDELSON: Thank you, Ms. Spieler.
MS. SPIELER: The next item on the agenda is the report and discussion of the first of the Work Groups, the Transportation Group. Eric Frumin is on the phone.
There are members of that Work Group who are not members of the Advisory Committee who are in the room today. I wonder if I could ask you to come up to the table, sit with us, and identify yourselves, those of you who are here.
There is a written report that all the Committee members should have. I think there were copies made for members of the public as well. If you don't have it, put your hands up.
MR. BAIRD: Let me just say for the record, I'm going to mark the agenda as WPAC Exhibit 1, and then the Transportation Work Group Report as WPAC Exhibit 2.
(Exhibit No. 1 & 2 were marked for identification.)
MS. SPIELER: Thank you, Ed. Would the three of you who are members of the Work Group and not members of the Advisory Committee identify yourselves?
MS. VALKAN: Good morning. Connie Valkan from CN. I work in the railroad industry as in-house counsel.
MR. MANN: I'm Lawrence Mann with the law firm of Alper & Mann. I represent the rail labor unions.
MR. INCLIMA: Hello. I'm Rick Inclima, Director of Safety, Brotherhood of Maintenance of Way Employees Division of the Teamsters, members who do all the construction, maintenance, repair of the railroad track infrastructure in the United States.
MS. SPIELER: Let me just say for a minute, this Work Group was set up in part in response to requests that were made at our first meeting, and in particular, concerns that while this is an industry broadly, the transportation industry, in which there are many concerns about both safety and retaliation, there was inadequate representation on the full Committee to address the concerns in this industry.
Therefore, after significant conversations at our last meeting and then consultation with Dr. Michaels, we concluded that there should be a work group and we would establish a work group as we are able under our charter that would include full membership on the Work Group of people both from the industry and labor side in that industry, because we lacked that representation on the full Committee.
Thus, the Work Group has fewer members of the Advisory Committee and more outside members than the other work groups, where the expertise on the issues resided within the Committee itself.
I am going to turn this over to Eric, who I think is going to try to do this in his disembodied form.
TRANSPORTATION INDUSTRY WORK GROUP REPORT AND DISCUSSION
MR. FRUMIN: Good morning, everybody. I can hear pretty well, so I appreciate the technology and people's willingness to speak up. Thanks to Emily for her patience here.
You have a copy of the report. I'm not going to read over all of it. It does have some two draft recommendations for the Advisory Committee to consider and another one that we did not agree on that you should be aware of.
Take a glance at that if you haven't looked at it while I'm talking, and I'll walk you through the parts where you need to be aware of the details.
First of all, I want to thank all the Work Group members for their time, their cooperative spirit, their insights, which were invaluable.
Can everybody hear me including the people in the public seating session?
MS. SPIELER: Yes.
MR. FRUMIN: Great. The membership of the group covers a range of industries, primarily rail and trucking, but also air transport. It was primarily a labor/management divide but I think we also had the ability to step out of our narrow roles and look at the broader public interest in general.
I want to thank Marcia Narine, who is the other Advisory Committee member who served on it with me, for helping to keep us focused on the broad issues that our full Committee is concerned about and how that applies in a work group.
We did lose a member of the Work Group early on, Jack Van Steenburg, the Chief Safety Officer for the Federal Motor Carrier Safety Administration, who resigned from the full Advisory Committee. That was a significant loss, I think, for the Work Group and for the overall Advisory Committee. I'll say more about that in a minute.
The other members of the Committee, the people in the room and others, certainly made a contribution, and I wanted to thank them for it.
Of course, also thank the staff, particularly Rob Swick, for their help in keeping us moving forward and handling the logistics and so forth.
We met several times, I think three times by teleconference, courtesy of the sequester, but actually that was probably a good thing because it made it easy. We met in fairly rapid succession, I think, December, January, February, pretty much monthly. Of course, the group met in person yesterday, and we are able to bring forward this report.
As I said, our focus was primarily on the rail sector, the largest Work Group members were from rail. We had a few people from trucking, including Marcia, but also Mike Manley from the Teamsters and Todd Jadin from Schneider National, a very large logistics trucking company.
We did have some discussion on air transport issues. Rob DeLucia from the Transport Association was helpful. He couldn't participate in our meeting yesterday. Ed Watt as well from Amalgamated Transit Union.
It became clear that the status of the situation in the trucking industry -- in the air transport industry and the information available to us about it really didn't work well with our charge.
Our charge was primarily to look at the obstacles to reporting, rather than best practices. We were looking at the glass being half empty, not half full. There was not a large information base on this question, this aspect of the issue, obstacles reporting in the air transport, not much on what the obstacles are. We are still open to looking at that and hopefully we will be able to do some work in that sector at some point.
Early on, we did try to get a handle on the overall information base for our work, including the gap pertaining to the different major sectors. This continues to be a major issue for us, both at the sectoral level, information gaps in rail and in trucking, but I think also more broadly for the work of the whistleblower protection program generally.
I am going to discuss the sectoral versions of the information gaps when I review the specific draft recommendations in a few minutes.
I just wanted to note that I think we have a serious information challenge regarding the overall whistleblower protection program, regarding program enforcement activities.
If any of you are familiar with the way OSHA keeps its enforcement records for its compliance inspections, the old innovative management information IMIS system or the new one, IOS, it is night and day different between that and what the whistleblower protection program monitors, publishes, and so forth.
If OSHA is to promote the kind of broad understanding about this program, in order to grow the program, get the support for it, get the word out, it is going to need to really re-think how it collects this information and shares it with people.
An editorial note here, but I think that is a critical question that at some point our Committee needs to come to grips with in terms of a recommendation, not today, obviously, but I am just editorializing based upon our recent experience in trying to apply these questions to the transport sector.
With that introduction, first, let me just ask Marcia if you have any other introductory comments beyond what I have said before I go into the report regarding the overall work of the Work Group.
MS. NARINE: No, you're doing fine so far. Nothing to add.
MR. FRUMIN: Thank you. We have two specific draft recommendations to consider. The first deals primarily with rail and then the other covers the broad range of statutes.
The first in the rail sector concerns whether or not OSHA is adhering to its own existing policies in a consistent way regarding providing information to workers and employers.
What emerged during our discussions was the concern, initially from the employer side but shared as well on the workers' side, claimants' side, that there were inconsistent practices regarding disclosure by investigators in the midst of investigations, even at the point of informing the employer about a specific complaint, even a merit finding.
This was a shared concern. Again, I want to reiterate what was not really an issue was the policies, OSHA's own policies regarding disclosure. That wasn't a problem, it was more execution.
In the middle of page two of your document is a recommendation which our Work Group is proposing that the Advisory Committee approve and send to OSHA. I will just read it.
(Greater transparency in investigations. Information flow from OSHA investigators to the parties is inconsistent across regions. OSHA's investigators should share information gathered during the course of their investigations with both parties in accordance with the laws, regulations, and OSHA's internal guidelines."
We did have some discussion about the inconsistency part of it was region to region, examples that people could offer were inconsistency in investigation techniques and some other things, but this was the primary issue.
We can come back to this recommendation.
MS. SPIELER: Why don't you finish your report and then we will discuss it and at the appropriate time, we will take up the specific recommendations in terms of a vote of the Committee.
MR. FRUMIN: Okay. In my comments a second ago, I was mixing two different subjects. You have the one on transparency.
The second recommendation has to do with this question of inconsistency across different regions. I mentioned that a second ago in regard to the transparency question. Let me step back a second.
This is really the genesis of a second recommendation about inconsistency of application, and this is not limited to the rail sector. Among the problems that were offered as examples by no means inclusive, were things like investigative techniques, investigators' understanding of the statute, and we have already discussed that this morning with regard to the staffing issue, the investigators' responsibilities, notwithstanding that 90 percent are covered by three or four laws. They have 22 statutes to deal with.
It is not surprising, but nonetheless, this was a concern to the group. In preparing the report, I went back and looked at some of the prior reviews of this issue and noted that the GAO in a major review of the program specifically pointed to the problems with the regional inconsistencies in the program and difficulties with the regional administration.
We have a second recommendation on consistency of application which we would like the Advisory Committee to consider and approve, and I'll read it quickly.
(Consistency in application. Consistent application of the various whistleblower laws and regulations is necessary to give the parties clear guidance as to the requirements of the various statutes.
To that end, the Whistleblower Protection Advisory Committee should recommend to OSHA that OSHA take steps such as internal training programs to improve consistency in the application of laws, regulations, and statutes subject to OSHA's jurisdiction."
That is the second one. It is certainly consistent with Rich's report. We are happy to hear we are pointed in the same direction but it is a significant question for the regulated industries and the workers.
Finally, we took up a draft recommendation which is on the next page regarding the value of training programs by employers, in other words, training programs not necessarily by OSHA.
There was a lot of agreement that those were important for internal compliance activities by employers. Not much disagreement about that. There was an interest within the group in linking the provision of training programs internally by employers to some mitigation of sanctions in enforcement cases.
That question of those two things, provision of training by employers and OSHA consideration of that provision of training in making enforcement decisions, that linkage became quite a topic of discussion yesterday. We were not able to reach agreement on it.
One of the ways that discussion floundered a bit was we felt we really didn't have adequate information about the extent to which, for instance, OSHA already considers taking into account employer training activities when it is making its decisions.
We did get help from Ed Baird on the way that employer knowledge is considered in punitive damage decisions but that is not really relevant to this. That is on the flip side.
We were unable to reach consensus on it. You have a copy of the draft recommendation. It basically is saying training is a good thing, OSHA should do it, employers should do it, and then this notion of consideration being given by OSHA to employers in enforcement cases.
We couldn't separate them out, and together as an unit, we couldn't approve it.
Finally, leaving rail or in regard to the consistency question, or multi-sector recommendation, we looked at the trucking sector. We don't have a draft recommendation unfortunately. We did suffer from the absence of FMCSA involvement. We found out only yesterday that the MOU was in the works, which was a bit of a surprise I have to say. We did try, make efforts, Rob Swick, thank you very much, made repeated efforts to get more FMCSA involvement in our discussion. We had a little bit of help but not much.
It's apparent that we are going to have to get some help from FMCSA, and someone can correct me if I'm wrong, as I understand it as of yesterday, FMCSA is trying to identify someone to join the Advisory Committee and then to serve on our Work Group, which would be great. One way or another, we are going to have to have a closer relationship with them in order to tap into their considerable information resources and inform our work.
Todd Jadin from Schneider also pointed out that presence in our work would also FMCSA pay more attention to whistleblower issues, which generally it doesn't pay much attention to. That would probably help their program quite a bit as well.
We look forward to getting their involvement, and hope both with the MOU being wrapped up and other important developments, like getting a person delegated to do this from FMCSA, we can interact with them in a more robust way and do it quickly enough to get some kind of an initial recommendation back to the Advisory Committee within the next six months.
Finally, we had three other issues that we took up as being important, which needed to be addressed, that are closely related to whistleblower issues, the hours of service question, the question of over weight and poorly maintained vehicles. It doesn't take much imagination to see where those would become important questions from a whistleblower standpoint.
Also, of course, the whole issue of incentive programs regarding the non-reporting of injuries, that arose as well as a concern by the Work Group, particularly in the trucking sector. I'm sure we will hear more about that from the 11(c) Committee today as well. We don't have a handle on it, but we just noted it is of concern. We'd like to keep an eye on that issue and see if there is some way we can contribute to the debate about that.
There you have it. I hope that is clear. Thanks again to everybody for their work. I now want to ask Marcia or any of the other Work Group members who are in the room if they have anything briefly they would like to add.
MS. NARINE: Thanks, Eric. This is Marcia. I will add that after we met, the Best Practices Group met, and we talked about the Fairfax Memo, which you don't mention by name but you do talk about the employers' incentive programs issue, which is kind of code for the Fairfax Memo, which was distributed later in the day to our group, which was not distributed to the Transportation Committee group.
It appears as though all three of the groups are talking about it, the 11(c) group has also been talking about that, so one thing that we will have to talk about is whether there will be a division of labor, no pun intended, among the three groups as to how we will each deal with that issue.
Clearly, it is an issue that touches on all the groups, and the question is whether we will all deal with it in a different way without duplicating efforts, and whether there is something specific that each of the groups needs to address.
Obviously, to the extent we talked about kind of the CSA regulations yesterday in our group and whether that is something that are drivers going to be trying to either under report any number of issues or people in rail, or anyone else, trying to report any number of issues so that they can avoid having to deal with issues, so they can continue to work, and how does that affect the Fairfax Memo.
In the Best Practices Group, we talked about whether people are going to be under reporting issues or whether employers are going to have to change their incentive programs, and obviously the 11(c) Group is going to be dealing with it.
One thing we need to think about either today or in some subsequent meeting is what will each work group tackle as it relates to the Fairfax Memo, which is now two years out, to look at this and how we can get back to OSHA about what recommendations we have.
That is just one thing I would add because that happened after our group met.
MS. SPIELER: Are you there, Eric?
MR. FRUMIN: I'm still here. I followed the instructions.
MS. NARINE: Did you hear everything I just said?
MR. FRUMIN: I heard everything you just said.
MR. MANN: Eric, first I want to commend you for chairing the working group. You did an excellent job. By the way, you can send me the money later.
MR. MANN: The one thing that I want to point out is the recommendations you have are consensus recommendations. There are a number of problems which is not coming to your attention.
I've been on the front lines of this issue since the law was passed in the rail industry. I can tell you there are many problems involved. I'm not sure how to get that to you.
The railroad management would disagree with me on certain issues, of course, and I understand that. There are some major issues that should be addressed, and I'm not sure how we need to get that to your attention.
MR. FRUMIN: We will continue to have these opportunities to identify issues and work on them during our sessions and communicate with each other.
Larry certainly has a point here. This is a consensus operation. That is going to eliminate the development of recommendations to the Advisory Committee on a whole host of issues. As you can see, I just gave you one example of one that floundered yesterday on this question of linking employer training to the sanctions by OSHA enforcement.
There are a whole range of issues. Things were quite contentious in some early discussions. I tried to get us toward the idea of getting consensus recommendations, but these are very contentious issues. There is a lot at stake here.
OSHA has been extremely active in the rail sector, maybe more active there in some respects than others. We had quite a bit of interest in our meetings from the rail sector.
We know there is a lot at stake here and if we didn't need to be reminded of it, I opened up the paper this morning to learn that an IBW member was killed on a track bed in the Bronx Sunday night.
There is a lot of debate that we are not going to get agreement on and we will just do the best we can to air those issues and get consensus where we can.
Rick or Constance, do you have anything you want to add?
MR. INCLIMA: Eric, thank you very much. I wanted to just echo our appreciation for your chairing of the Subcommittee. I think it has been very well done and very helpful to progress.
I also want to thank my colleagues on the Committee for the collegial way we have been able to work and identify issues. There are and will continue to be areas of contention and disagreement. Obviously, we will put our best efforts forward to come to consensus on those items.
I wanted to just mention to the full Committee and thank the Chair for allowing us to speak here today, that the training draft on page two of the report is just that. I think we are close. We will continue to work on that proposal and flesh out the issues as we gather more information about current practices, and hopefully we will be able to bring a consensus recommendation to the full Committee in the next go around.
MS. VALKAN: Eric, I think everyone has addressed the issues and the topics we have covered. I agree, there needs to be discussions on this draft and other things. I like to think of it as lively debates more than contention.
I think there is going to be more good discussion on these topics. I look forward to the work.
MS. SPIELER: I'd like to thank the Work Group and suggest a way to proceed, and then if the Committee disagrees, I'm willing to take input. I would suggest the two consensus recommendations are very clear and probably I suspect not highly controversial on the full Committee, and perhaps we could take those up immediately. If they are going to be a formal recommendation, I think it is appropriate for us to have a vote on the record.
I've never actually discussed this with staff. I assume that is correct.
MR. BAIRD: Yes.
MS. SPIELER: Our lawyer says yes. I would propose that we do that, and then we have a broader conversation with the Work Group about the areas that the members of the Committee might like to see the Work Group take up in addition to the things you have already mentioned.
I'm making a list of things that we are going to have to discuss quickly at the end of the day. I have put two on the list already just from this conversation. One is this overarching question of incentive programs and how we can manage that conversation.
Second, I'm sitting here thinking about the issue if a Work Group has a disagreement and therefore can't come forward with a consensus recommendation, would it be appropriate for the Work Group -- and people care deeply about the issue -- would it be appropriate for the Work Group to bring the issue forward for a fuller Committee conversation at a subsequent meeting, and then we can decide how to manage it.
Those are two things that I would like to put off until the end of the day, take up the specific recommendations immediately, and then move to a more general discussion about the Work Group before the break.
Is that satisfactory to everyone?
I have a question for Ed. When a Work Group comes forward with a consensus recommendation, does it come to the Committee as a motion made and seconded, or do we need it formally put before the Committee by Committee members?
MR. BAIRD: I think we could do it either way. It is before the Committee as part of the report. I think that's fine for purposes of presentation.
MS. SPIELER: I am going to open up discussion on the first --
MS. NARINE: Can I just add one thing? I think on the issue that we don't have consensus on, I don't really think it's a knock down/drag out kind of issue. I don't know if I can speak for the Committee. I think it's probably something that probably needs about 20 minutes more.
MS. SPIELER: Yes, as someone sat in on the Committee meeting, they ran out of time is why it is not included. I think we should allow you to conclude that conversation and come back with a formal recommendation.
My sense was there was room for compromise and consensus on that discussion that was not --
MS. NARINE: For the record.
MS. SPIELER: Yes, for the record. Let's take up the first one. The first one was labeled "Greater transparency in investigations and information flow from OSHA investigators to the parties is inconsistent across regions.
OSHA investigators should share information gathered during the course of their investigations with both parties in accordance with laws, regulations, and OSHA's guidelines."
Is there discussion on this? It comes as a motion made and seconded.
MS. SPIELER: All those in favor of the recommendation. How do we do this, put hands up?
MR. BAIRD: You can do it by voice.
MS. SPIELER: All those in favor, say aye.
(Chorus of ayes.)
MS. SPIELER: Opposed?
MS. SPIELER: Abstentions?
MS. SPIELER: Thank you to the Committee. That will go forward from the Advisory Committee to the Assistant Secretary.
The second, consistency in application. "Consistent application of the various whistleblower laws and regulations is necessary to give the parties clear guidance as to the requirements of the statutes. To that end, WPAC should recommend" -- it will say WPAC recommends to OSHA "That OSHA take steps such as internal training programs to improve consistency in the application of laws, regulations, and statutes."
Any discussion of that recommendation?
MS. SPIELER: All those in favor?
(Chorus of ayes.)
MS. SPIELER: Opposed?
MS. SPIELER: Abstentions?
MS. SPIELER: Let's move on to a more general discussion of the work of the Work Group, issues that the other members of the Committee would like to see the Work Group explore more fully, ideas for the Work Group that they can take back for their further work between our Advisory Committee meetings.
MR. EHERTS: I'm interested in training, especially the sentence that says "In addition, the Work Group recognizes that internal training on the topic of whistleblower laws may assist company managers, supervisors, and employees to understand their rights and responsibilities under the whistleblower laws."
Can we recommend that be taken up by Best Practices? It seems like that is an area that some companies have already presented on. I think there are good programs in place out there. Maybe we could bring them back to Best Practices.
MS. SPIELER: I guess the question would be is there something specific in the transportation industries that the Work Group wants to take up, or would you feel comfortable seeding that to a committee that is looking across all industries and all types of whistleblower matters.
MS. NARINE: They worked on this.
MR. INCLIMA: We worked on this, on the draft together. There are obviously some challenges. The law is basically new in the rail industry. It has only been in play for about five years.
The information flow, both from labor and management, has not been the best, because the railroad industry is so dispersed, it is not like you have a shop in an area where you can gather all your people.
That is one of the challenges. We think the more labor and management understand the laws, the responsibilities and the parameters of what constitutes retaliation, we think that will go a long way towards reducing the incidence of retaliatory behavior and therefore, whistleblower filings.
That is our goal, at least my goal. I would love to see nothing more than to have whistleblower cases coming out of the rail labor. That might be pie in the sky, but I certainly think we can move forward through education and good faith on both sides.
To the question of seeding that to another committee, I'm just not sure. Perhaps there aren't railroad folks on that Committee, and if the Committee was going to take that up, I would suggest that maybe we might have to expand that Committee to bring the railroad industry specific perspectives to the Committee.
MS. SPIELER: It might make sense -- I don't think there is a problem if we have parallel recommendations come from Committees, rather than having additional people have to serve on multiple Committees. That might be easier.
I actually think we should try not to worry too much about jurisdictional issues of Work Groups at this point. I hope in the end, at least at the end of my tenure as Chair, and I am hoping I am reappointed for a second round, but at the end of my tenure as Chair, I would to sort of have some kind of consolidated report from the Advisory Committee.
Right now, as we go through piecemeal recommendations from the Work Groups, I think we should allow the Work Groups to have some leeway in their work.
MR. EHERTS: I was looking at duplication.
MS. SPIELER: I totally agree with you.
MR. EHERTS: If there is energy around it, let's leave it where it is.
MS. SPIELER: Yes.
MR. MANN: I just wanted to point out that both Rick and I have submitted to the Best Practices Committee proposals that are in effect in the rail industry, two different types of proposals, but they have been very effective.
MS. SPIELER: Great. Thank you.
MS. LESSIN: A couple of things. One, very quickly. The shorthand that is now being used for employer practices that discourage the reporting of injuries and illnesses has been "incentive programs." I just want to point out that incentive programs, where you get prizes for not reporting, is just one of a broad group, many of which, and I would contend most of which are not incentives at all, they are brutal retaliatory practices where workers get fired or punished in other ways.
If we could use the term "employer practices that discourage the reporting of injuries and illnesses" rather than "incentive programs," I think that encompasses what we are dealing with.
Second, I have an idea and suggestion that I thought of in terms of transportation, particularly rail and trucking, but I think it's relevant for perhaps the larger group, and I'm not sure it is even possible.
OSHA, since 1978 or perhaps before that, I think, has run a grant program. It used to be called the New Directions Program. It is now called Susan Harwood. It provides funds. It's a competitive grant program for employers, unions, academics, worker centers, others, to get funds to develop and conduct training and education.
In this case, it's on health and safety and how to prevent injuries and illnesses and how to have good effective programs.
It seems to me in this arena of whistleblower protection that there should be training programs. It should be promoted. Employers should be doing it but so too could unions for their members and other organizations.
I am wondering if at some point, either the Transportation Group or the full group could talk about a possible recommendation to OSHA to have the kind of program they have now in terms of the competitive grant program on health and safety, but have it specifically to develop whistleblower education materials, training, education.
That would give multiple parties the chance to develop really good programs that could go beyond whoever the initial group is and perhaps further the issue of training and education.
I would certainly like to think about that in the rail sector for the reasons, Rick, that you talked about, that this a newer statute and some new laws. I think it is probably relevant to all sectors. I was just going to put that out there and I'm not sure when and where it could be discussed.
MS. SPIELER: I'll put that not only for the Work Group but I think that is a very interesting suggestion and it probably would be helpful if we could put that on the agenda for our next meeting. You can bring us the information about the history of New Directions and the Harwood Program. That would be great.
MS. LESSIN: One last thing was -- I think this is something that you flagged for later discussion. Again, in light of my understanding of kind of long-standing and brutal retaliatory practices that have happened in the transportation sector, I think rail, trucking, elsewhere, but just looking at rail in particular, there was a whole congressional hearing in 2007. There was a report from Congress called "Hidden Tragedy, the Under Reporting of Injuries and Illnesses," that devoted a whole section to the rail sector because of that situation.
The idea of just doing a report that has consensus rather than if there are issues where there is the divide that Eric talked about, the labor/management divide, that there be a place for the labor folks to talk about the issues they are most concerned about and their recommendations, and then there would be a section for the management representatives to say whatever it is they are going to say, but that even if there isn't consensus, the idea of advising OSHA on what's happening and what should happen shouldn't be stifled by feeling like a document just has to present the areas where we have agreement.
I think advice from the different sectors is important to come out. I'm just wondering if reports could be crafted in a way that if there are burning issues, even though there isn't consensus, if different groups have recommendations about what could make this better, I would sure like a way for that to get on the table, and for those ideas and recommendations to be heard by OSHA.
MS. SPIELER: I actually agree with that. I'm kind of sitting here pondering this because it will come up not only in this Work Group but in others and in future ones.
I think it is important for the full Committee to be able to take up the issues that are important for advice to OSHA. I'm a little worried about a situation where we allow important issues to die in a Work Group without a full Committee discussion.
We can talk about this again towards the end in terms of the Work Group functioning. My feeling is it is much better to air those in a full Committee meeting and see if there are ways the full Committee can help us reach a place where the Committee as a whole can make a recommendation.
If it turns out we can't operate by consensus, my hope is we never split along labor/management lines, but even if we do, I think it's appropriate for us to say to the Assistant Secretary we split along these lines, and here is the view of the different sides, because we provide the outside anchor for the conversations about these issues.
I do think it is important for us to be a conduit for those ideas as well as a recommender of specific practices.
MS. NARINE: Rick, do you have the authority to speak on behalf of the Union or are you here as an expert?
MR. INCLIMA: I can speak on behalf of the BMWE; yes.
MS. NARINE: I agree completely with Nancy's recommendation. I think to the extent that we say this was the consensus but there were some important disagreements and we think it is important that OSHA be aware of them, whether or not we would be speaking on behalf of the Union or his experience.
For example, let's say we don't reach a consensus on the last sentence of the training issue. The disagreement is important but it is not going to lead to the destruction of the Committee. It is an important philosophical issue about what management thinks -- companies think is an important incentive and what labor thinks, why would this be an important incentive.
That is actually a very important philosophical issue that I think it is important for OSHA to understand. That could dictate how OSHA chooses to -- my favorite word -- "incentivize" corporations in the future. It is important for labor to understand why corporations think that is important, and it is important for corporations to understand why labor doesn't think that is important.
We may never reach consensus with 42 hours of discussion, but it is important for those discussions to be public.
MR. MANN: I want to point out that I wear a few hats. I can speak on behalf of the Transportation Trades Department of the AFL-CIO on this issue. I am counsel to the Academy of Rail Labor Attorneys, which represent the rail employees in whistleblower cases. I am Rail Safety Coordinator for the United Transportation Union.
I can speak on behalf of most of the rail unions on this issue.
MS. VALKAN: I think in terms of the working group, I think like any group where you have different perspectives, you are not always going to have parity in opinions or in perspectives.
I just want to say I understand there are certain members that have made some characterizations about the Transportation Committee. I'm not going to debate those. It's a good example of where there may not be parity or agreement.
I think with respect to the subject matter, I'm here because I'm working in the industry, and while I have some subject matter expertise apparently that I could bring to the group, but I can't speak on behalf of the industry I don't think.
That might be a good conversation for you to have if you want industry representation. There can be perhaps some discussion about who would be appropriate.
MS. SPIELER: Okay; great. The appointment of the external people for these Work Groups is something that is handled by Dr. Michaels and staff. I actually think that is an important issue and I will take it back and follow up.
I'm not necessarily suggesting, by the way, that the members of the Work Group have to speak on behalf of large groups, but that each of you because of the expertise you have from the work you have done and the people you talk to bring particular perspectives on the issues. We value those perspectives. We learn from each other. I think this issue of whether everything has to reach consensus to reach this Committee is something that perhaps we need to re-think a little.
I do think we are very much in a learning stage functioning as a full committee and work groups. It was unfortunate there were 14 months where we never saw each other face to face. We were on telephone calls and probably couldn't remember half of the people whose voices we were hearing.
The fact that we had these two days and we came together and we are sort of working through some of these process issues, I think it is very important for the future work of the Committee.
I do hope that most of you will stay on so we don't have to have a groundhog day experience.
MS. NARINE: I didn't mean to put anybody on the spot, but just because I don't want Eric to have to say labor said, you know.
MS. SPIELER: No, I think it is by individuals.
MS. NARINE: People may want to have attribution or they want to say they can't have attribution.
MS. SPIELER: Absolutely.
MR. FRUMIN: Emily, I would like to weigh in on a couple of the points here. One is we were acutely aware from the beginning that this was a very small group of people wrestling with complicated subjects in which there were a zillion stakeholders.
It was a challenge certainly to make sure that at the outset, the key concerns of the people on the Work Group were aired. In the first couple of calls, there was any number of discussions as Larry said, what are somebody's burning issues.
We tried to put them out there but with an eye towards coming to the Advisory Committee with a product that would conform with our charge and give the Committee some ability to speak to OSHA itself.
That is compounded by the difficulty of firming up our information base in general, the lack of useful data coming out of the whistleblower protection program, just on the process issues, the whole issue of delays we discussed as a terrible disincentive for workers to file whistleblower complaints, never mind reporting injuries or incidents in the first place.
These were complicated questions and we understood in the limited time we had it was quite difficult to structure an information flow that would cast a broad net, filter that information in some way that would be actionable and bring it to the Advisory Committee.
That said, if we really want to be serious about tapping into the broad range of information, opinion, whatever else, the stakeholders from labor, management, enforcement, whoever, that they can usefully bring to the table here, that would be an interesting question.
Someone proposed to me a while ago well, why don't we host a conference, bring everybody together. The idea didn't appeal to me at the time because I thought that was way out of our ability and we had other things we could more manageably do.
I think if we are serious about trying to tap into this very active interest in this issue in the transportation industry, it is an industry which has a tremendous track record for better or worse on these issues, then I think we ought to do that in a structured way. I think that is something the Advisory Committee ought to consider, whether there is a structured way to try to reach out very broadly.
This group has its hands full just dealing with the issues that the members are concerned about. Doing something like that would be quite a challenge, but it might be worth it for the reasons people have said.
MS. SPIELER: I'm not sure. I hear what you are saying. I think it might be worth following up in some way that expands the input for the Work Group.
As you will hear, the Best Practices Work Group has done that by inviting people to address the group. It has been done telephonically. It is time consuming. It is an alternative to trying to organize a single moment, people in the same place kind of conference. It may be something that is more within the resources of the Advisory Committee and the Directorate.
I do think we might want to follow up after this meeting on how best to assist the Transportation Group to address what a couple of you have now called "burning issues" that may not have shown up in the specific recommendations, and is there a way to bring those burning issues forward to the Advisory Committee so that perhaps we can discuss them and think about how best to address them.
Unfortunately, the Advisory Committee only meets every six months. It may be that the Work Group in addition to the specific recommendations that you are already considering might consider some open telephonic meetings between now and the next meeting in order to sort of focus that discussion and see where we can take it.
MR. FRUMIN: Yes. I also want to point out I'm not necessarily saying a "in person conference" is the best way to do that by any means. It was pointed out, for instance, that at DOT, there is an advisory committee structure to FRA, to FMCSA. A number of people on our group are members of those advisory committees.
There are a number of information channels that exist or could be tapped into to broaden the information to our group.
I think we need to explore that in a structured way to avoid being trapped into the problem which is evident here, if we are only really focusing on consensus recommendations, it is a very narrow discussion.
MS. SPIELER: Maybe the best way to do that would be on the next telephone call to have time specifically allocated to the question of should we and how should we expand the conversations we are having.
There were a couple of other hands up. Greg, you had your hand up. Dave?
MR. EHERTS: To expand upon that, the 11(c) Committee actually has a slide coming up.
MR. FRUMIN: Greg, could you speak a little louder, please?
MR. SPIELER: It is Dave Eherts who is talking.
MR. FRUMIN: I'm sorry.
MR. EHERTS: I was just going to kind of expand upon Emily's comment in that the 11(c) Committee has kind of a busy slide we are going to present, talking about sources of information, that in a very transparent way, we are going to reach out to try to get subject matter experts to come speak to us on topics.
Richard and Anthony have been very good about giving us access to folks and their opinion about things. I think you don't need a conference, but you can invite folks to come speak to you and answer questions our Committee has, as long as it is done in a very transparent way, I think that will be okay.
MR. KEATING: I'm actually going to jump back in. I just had one follow up question. I thought I heard Eric say with regard to this last sentence of the proposed draft, and I may have heard this wrong, but that things sort of fizzled because they wanted to get more information about what OSHA's view was on whether they in fact do consider whether employers do training when they are reaching their findings, and how that might impact the amount that gets sanctioned or whatever.
Am I right, that is the kind of stumbling block? If so, is there any chance now or at some point in the future we could hear from OSHA about their view on this particular topic?
MS. NARINE: The stumbling block, that was part of the stumbling block. The bigger stumbling block was whether that should even be relevant. This is where the labor/management divide was.
Part of the stumbling block was what OSHA did consider and the answer we got back was didn't really know, we got an answer back that there was a punitive damages issue, which really went towards the knowledge of what employers knew.
I won't speak for labor. I'll let Rick kind of talk about it. The "management people" said we believe there should be some kind of "credit" or "mitigation" to the extent that there is some recognition that the employer is training people, managers, employees, on what their responsibilities are, keeping a workplace safe, et cetera, similar to how there are affirmative defenses in the harassment area, et cetera.
To the extent that you should obviously train people, that is the right thing to do, employers often don't do anything unless there is an incentive or penalty to do so. That is just the way of the world.
The position that labor had, and I'll let them speak for themselves, the way I understood it was they should do this anyway, why would you need to add this in. The way I responded was just because sometimes you have to basically beg and force people to do things.
The sentence doesn't hurt, it only can help, and to the extent you can have some incentive for employers to do something that they don't already have to do, then the sentence is only going to help, especially for those smaller and mid-sized companies that won't necessarily put in any kind of training if they don't have to, then it is going to be a help.
That was basically where the kind of stumbling block went, and then we ran out of time.
Rick, do you want to add a little bit more?
MR. INCLIMA: Yes, thank you. Very quickly, the position that labor put forward was essentially look, we all have to comply with the law. There shouldn't be an incentive or disincentive to that.
Just like we all have to know the safety rules, the safety laws, the regulations, no matter what they are or what they cover, there is a built in incentive for employers to reduce whistleblower complaints, and they do that by reducing retaliation.
In that sense, the incentive is already there, and I didn't feel it was necessary to call out training because there is this issue, you have training and you have corporate culture or safety culture, and they don't always align.
You could have a really great training program and run your people through a great training program, but then the practice is more or less a reign of terror when you get down to the rank and file, where the boots are on the ground.
I'm not saying explicitly that is the case, but that certainly is a possibility. You can't look at a training program on paper and say look at how great this is, therefore, there should be some reward.
It is really you have to look at the whole of the case, the whole of the corporate behavior in the bigger picture, and then decide -- I think OSHA already has that discretion to decide -- based on these circumstances and these conditions, we will up the punitive's or reduce the punitive's or come to some finding at the end of the day. I think they already weigh those things.
That was really my concern, well, training equates to some favorable consideration, it doesn't necessarily connect the dots.
MS. NARINE: We want some more information about what they had, and I think we were going to have more discussion. Obviously, we wouldn't think any kind of paper training program would suffice, kind of similar to the Federal guidelines, where you have to have clearly something more than a paper program to suffice.
We have to have obviously a lot more discussion.
MR. BAIRD: Can I just jump in one second? Both Eric and now Marcia -- I clearly didn't communicate exactly correctly yesterday, so let me clarify what OSHA does currently think about in this context.
In the punitive damages area, there are kind of two theories that the agency can proceed under. One is that the actor or the management official knew the law and broke it anyway, and that would be grounds for punitive damages.
The other one is where maybe there wasn't knowledge of that law but the conduct was so reckless or wanton, that it didn't really matter.
What OSHA's whistleblower manual says is on that first prong, where a company official retaliates with knowledge that what he's doing is illegal or what she is doing is illegal, the employer has a defense that says if the employer can show they have a training program and they implement it, that is something that is taken in mitigation or punitive damages.
To that extent, OSHA's written policies do consider training programs, just so that is clear.
MR. FRUMIN: I'd like to just weigh in here for a second. It is an interesting discussion to be had about the use of the incentive to promote compliance in enforcement situations. There is an interesting discussion to be had about the promotion of training within corporate entities, within the employer side, as well as by other people, whether it is unions, OSHA, whoever.
We might well have been able to come to grips with both of them, the hang up in this discussion was about linking them. I think it is critical that we get the information we need, Ed touched on a few things, but we need a lot more than that in order to understand better and factually what actually are the policies, not only policies but practices regarding OSHA's use of credits or mitigating factors, et cetera, in enforcement decisions.
Training, we are probably able to handle ourselves, but until we figure out a way to look at these separately, I don't think we are going to be able to even come close to grips in terms of linking them.
It will be an interesting discussion. Unfortunately, it points to the difficulty again of assessing the practices and the whistleblower protection program based upon the current information base in the program, the kind of record the program keeps.
MS. VALKAN: If I may, I just have one question. I recall in yesterday's meeting you did read from the manual. I don't recall anything specifically about training. Something about an employer having an internal policy prohibiting retaliation could be used as a mitigating factor, and there is a separate section for training. I know you were trying to look at that quickly yesterday.
MR. BAIRD: My recollection is the words used would encompass "training."
MR. FRUMIN: I think it would be better to again defer the detailed discussion of this until we get a comprehensive review of this from OSHA or the Solicitors Office. We are kind of struggling now to deal with scrapes of information.
I'm not sure that the mitigating factors and punitive damages' question even is relevant.
I'd just like to ask if we could put this one to the side. It's a good example of what it is like to try to work through some of these issues when you get close to the ground and yet trying to understand agency policy.
This problem is not unique to whistleblowers. Look at the field operations manual for OSHA on compliance. It has chapter and chapter and chapter with lots of interesting things to discuss along the same lines.
MS. SPIELER: I agree, I think since the Committee was in the middle of their conversation about this yesterday, that we should defer this to the Work Group for further discussion, and you should let Ed and members of the Directorate, staff of the Directorate, know what kind of information you need.
I'd like to ask you a different question. You noted some of the advisory committees of other agencies are not particularly active and there is sort of interagency information that you would benefit from in terms of your future deliberations.
I just would like to make sure that if there needs to be some request through the Directorate to other agencies, that it be clear that request is made not just by the Work Group but also by the full Advisory Committee on behalf of the Work Group, so that to the extent possible, we can really deal actively and effectively with this industry, which has been of particular concern.
MR. FRUMIN: First, I want to say perhaps you misheard me. The advisory committees that are run by the DOT agencies are indeed active.
MS. SPIELER: Okay, I did mishear you.
MR. FRUMIN: Several of our Work Group members serve on those advisory committees. What I was concerned about was again, there was not the interagency contact and collaboration, whether it's on advisory committees or information sharing or even membership on our Advisory Committee.
If we can get someone from FMCSA, for instance, to serve on our Advisory Committee, that will help open up an active line of communication with DOT that could be very helpful.
I agree with you, it would be good for our full Advisory Committee to second the request that we have already made and that OSHA is already working on to enhance this relationship with DOT. If we don't get a stronger relationship there, both DOT and OSHA's programs are going to suffer or continue to suffer.
MS. SPIELER: Okay, thank you. That was clarified for me. Is there anything else?
MR. FRUMIN: I have one question which is how long should this Work Group stay in existence? Because we have non-WPAC members on it, I think it is not necessarily fair to assume they should have the same trajectory as the rest of the Advisory Committee.
We didn't really talk about it. I tried to project out that we could get some work done in the next six months, but I don't think anyone was ever given a term, so to speak, to sign up for.
MS. SPIELER: Good point. It is true, we haven't. It is a different formation than the other Work Groups. The other Work Groups are essentially only members of the Advisory Committee.
I actually think it would be helpful to me and therefore I hope to the Interim Director and the Assistant Secretary if you at your next meeting could discuss the issues you would like to address and what kind of time line you feel comfortable with.
If the members of the Work Group would like to close down after the next Advisory Committee meeting, then we need to put together a work plan that is doable in that period.
If there are issues that you would really as a group think need to be dealt with by the Advisory Committee and need further conversation, then I would appreciate a recommendation to me and to Dr. Michaels regarding what the time line would look like and whether those of you who have agreed to serve as outside members would be willing to continue your work.
For example, you might come back and say we think we really need a year and this is what we would do in the first six months and this is what we would do over the 12 month period, and then we think we should disband.
The other Work Groups, I think, are coming back for time lines that go as far as 18 months.
MR. EHERTS: Twelve months.
MS. SPIELER: Twelve months on 11(c). The other Work Groups are coming back with a specific time line proposal. Perhaps on the next Work Group telephone call, I will try to be on it and we will discuss that specific issue on the call so we can get over that, I agree, unfortunate and inappropriate lack of clarity.
Does that work for you, Eric?
MR. FRUMIN: Yes, that's fine.
MS. SPIELER: I apologize. I actually think just before we close this out, we asked Eric to take on, I think, a very difficult task, much more difficult than the other Work Groups because it involved trying to bring in people from outside, trying to figure out how we will address issues coming into it with some discomfort from the outside about the lack of representation on the full Committee.
The Committee has worked incredibly well together despite the fact that people had never met. Unlike the other work groups, people were not at the first Advisory Committee. I really want to applaud the work you have done, and in particular, thank Eric for the work he has done in bringing the Committee together.
Having sat in on the conversations and listened to how well you all listen to each other, I think there actually is some room for further work that would be meaningful for this Advisory Committee and for the Department of Labor.
I do hope you will continue.
Is there anything else with regard to this Work Group? If not, it is break time. It is a 15 minute break. We will reconvene at 11:00 and talk about Best Practices.
(A brief recess was taken.)
MS. SPIELER: Before we go forward, many of you arrived after we did introductions this morning. I asked that everybody in the room introduce themselves.
I'm going to ask Rob to pass a mike, and if you could say your name and what your affiliation is, if you have not previously introduced yourselves to the group.
I also wanted to ask that everyone who is sitting in the public section, because of the transparency, we would appreciate it if you would sign up on the list in the back of the room.
MS. GUENTHER: Megan Guenther, Office of the Solicitor.
MR. SWAIN: Bob Swain, Office of the Solicitor.
MS. DEVINE: Charlotte Devine, Government Accountability Project.
MS. HYATT: Andrea Hyatt, BNSF Railway.
MR. COCHRAN: Pete Cochran, Morgan Lewis.
MR. JOHNSON: Ron Johnson with Jones Day.
MS. ZIELINSKI: Sarah Zielinski, F&H Solutions Group.
MR. SIRBAK: Joseph Sirbak from Buchanan Ingersoll & Rooney.
MR. PENROD: Orlando Penrod, BLET.
MR. HEBERT: Tom Hebert, Brotherhood of Locomotive Engineers and Trainmen.
MR. HARB: Dave Harb, BLET.
MR. BROWN: Dave Brown with the BLET.
MR. VERNA: Vince Verna, BLET/Teamsters.
MS. BENSON: Hilary Benson, Congressional Office of Compliance.
MR. ZUCKERMAN: Jason Zuckerman, of my own law firm, and I represent employees.
MS. SPIELER: Thank you very much. Before the break, after the initial presentations from Dr. Michaels and Interim Director Mendelson, we had a report and discussion of the first Work Group, the Transportation Work Group.
We are now moving to the second Work Group discussion. It is the Best Practices Work Group chaired by Jon Brock, who will make the initial presentation.
We will follow the same process. We will have the Chair of the Work Group do an initial presentation, members of the Work Group add whatever they would like. If there is a specific recommendation, which I don't think there is from this Work Group, but if there is a specific recommendation, we will take up any specific recommendations from Work Groups, and then we will to a more general discussion of issues that the full Advisory Committee would like to discuss with regard to the Work Groups' activities.
MR. SWICK: Madam Chairperson, we have one more person.
MS. HUGHES: Kathleen Hughes, Union Pacific.
MR. SWICK: Thank you.
MS. SPIELER: Thank you.
BEST PRACTICES AND CORPORATE CULTURE WORK GROUP REPORT AND DISCUSSION
MR. BROCK: Thank you very much. I will present a brief summary report on the progress of the Best Practices Work Group, which consists of Greg Keating, Billie Garde, Dave Eherts, Marcia Narine, Nancy Lessin, and Ken Wengert, who is not here at the meeting today and sends his regrets.
I want to begin just by referencing the charge the Assistant Secretary gave. He summarized that this morning very nicely with his hopes for our discovering beneficial best practices that could make a difference in reducing incidents of retaliation against whistleblowers and other goals that he discussed.
I took some excerpts here that I put up on the slide. I'd like to just for emphasis read a few sentences, so I'll take excerpts from the excerpts.
(The agency is at a point where we need to adopt strategies that will better discourage employers from retaliating against employees that engage in protective activities. He goes on to name some of whom are protected."
He goes on to say "One potentially fruitful strategy would involve expanding our message." This is part of what he said this morning. "Not only to tell employers that retaliation is against the law, but that there are structures, policies and programs that an employer can adopt that will protect whistleblowers and thereby ensure the employer is following the law.
I would like this work group to identify, investigate and evaluate programs, policies and practices currently in use in private and public enterprises that best ensure prevention and cultural discouragement of retaliation against whistleblowers.
OSHA would like the WPAC's advice on the effectiveness and impact of these programs, any gaps that are identified in the effectiveness of existing programs, and the best methods for dissemination of information regarding identified best practices."
We tried to take that seriously. While I think our specific goal or what we think is possible, I'll just put here as a placeholder a goal that really just refers back to the Assistant Secretary's charge, which I just read excerpts from, that we want to provide a report for consideration by this full Committee to serve as a basis for recommendations to the Assistant Secretary along the lines that he has asked for, articulately and clearly.
The Subcommittee report, as he indicated, may have administrative, regulatory or policy recommendations, as well as suggestions regarding dissemination.
We began with that. We have learned a tremendous amount since this fairly general goal statement was developed back in December.
What have we done so far? We have tried to follow that charge by making sure we reviewed it and understood it, developed a work plan and some protocols to govern our work in terms of working well together, hearing from outside experts and others, people with examples and so on, that we would listen carefully and take in the information.
We then began to proceed with the work plan. I think we are doing reasonably well in tracking what we said we would do back at the December meeting. We have met exclusively, as was indicated in some of the earlier comments by our Chair, by phone until yesterday. The phone calls have been remarkably productive. I think it is very difficult as all of us know to be able to talk about difficult issues in that invisible format.
Everyone really stepped up and listened to each other well, acknowledged the points that were being made, argued, pushed back, debated. I think the difference, if I may say so, in each of our individual perceptions, and then building to a collective perception now encompasses much more in the way of problems, issues and opportunities that are there for discovering and assembling information on best practices that could be useful.
We also learned in more specific terms what some of the challenges were, which I'll talk about in a moment.
We decided that we would begin with a set of initial presentations by each of the Work Group members, recognizing that we had individuals who have serious experience from the different perspectives represented on the Committee and represented by their experience, which comes sometimes under different laws that OSHA is responsible for.
We had a tremendous amount of resources right there on the Committee. It was a way for us to get introduced to each other and to find out what knowledge people had that they could potentially bring to the table, and also to begin to establish a vocabulary and understanding of issues, and an understanding of the concerns and possibilities that people brought from their experience.
We have completed that round. We will move on to beginning to invite other people who have knowledge and expertise that we have identified so far as being important to our continued work, and I'm sure a list of issues and people will evolve as we learn more about what we know and what we need to know.
We had some opportunity in the course of the phone calls with the members to look across and compare some of the things that had been said, and it led us to identify what we think are some important challenges.
We have identified a pretty substantial list, which I'm sure we will expand and change, of things we think we need to know more about. We project to have some recommendations early in the Fall.
I will take you to some examples of the key challenges. This is not everything that will be challenging, you can be sure. This will give you a flavor of the kinds of things we have come up against.
It is certainly clear and probably obvious to everyone who works in this arena that not one size fits all, one kind of program will not be appropriate for all companies.
We have had some very useful discussions about the possibilities and challenges for coming up with recommendations that would be generically valuable and applicable, recognizing there are different sizes of companies, different laws people are under, different histories, different kinds of problems and issues, and that it would be necessary to have recommendations that made it possible for individual enterprises and perhaps workplaces to be able to adopt policies that made sense.
This was not in a way discussed to give anyone a pass on benefits of adopting best practices, but what got adopted, how it got adopted, what could be applied, how it would apply, would depend on some of these other aspects of scale, what laws you were under, what difficulties or problems might have been present or could be predicted.
We know clearly that is going to be a challenge to make sure we come up with things that can recognize those differences.
We have also identified that even a program that would appear on paper and in manuals to be matching up to what we could call "best practices," there are numerous issues with implementation, perceptions by those implementing the program, that it is really excellent, and finding out people are not really reporting, that there are aspects of the program that discourage reporting or that are inadequate in one way or another.
That led us to some useful discussions that we recognize need to be expanded and delved into on how one goes about auditing these programs, validating that they are doing what they are supposed to do, and being able to get information that allows you to improve and make changes in the programs, and the importance of consistent response, and the difficulties of getting consistent response to the requirements of these programs or to issues that come up, whistleblower issues or retaliation issues that come up, despite the best of programs.
We know we need to learn more about how one audits and validates and that will be an important part of best practices and ensuring the best practice someone is trying to implement actually can and does get implemented.
We had quite a robust discussion in our last call, and it had come up in earlier calls, but a more focused discussion on what I have listed here as practices, traditions and metrics that encourage under reporting of safety issues, and those kinds of forces that lead to under reporting seems can often lead to more retaliation and difficulties.
This is something we flagged and we will learn more about that we identified as an important issue and problem.
There are some differences of opinion of exactly where it comes from, how widespread it is, but it clearly is an issue that is recognized that needs attention.
We also had some interesting discussions about making a business case for why it is important for companies to be interested in having issues reported.
Assistant Secretary Michaels this morning talked about his hope that we would come up with good recommendations that would protect employees from retaliation and increase their capacity to come forward.
He described that he had the hope that these practices might also be good for the business.
We have had quite a lot of discussion led by contributions from some of the management representatives on the Committee about the benefits they see, and I think it would be fair to say that more businesses could be encouraged to see but maybe they already do, and that by providing useful guidance on program possibilities, program components, and making this -- I'll call it the "business value case" -- that we would be able to make more inroads and there would be more benefits.
Perhaps that hope of Secretary Michaels will turn out to be fulfilled more than he might have expected, and I'm sure he would be pleased about it.
We also identified the importance of affecting front line supervisory behavior because as we discussed quite a bit, it is really through supervisors and management that people tend to raise most of their issues. Certainly, those are the people in the best position to address the issues and should be addressing the issues.
Any kinds of best practice recommendations need to look carefully at how those behaviors, those skills, and the support for appropriate responses can happen. Numerous barriers and difficulties were identified as well as potential tools. The importance of it, I think, is not particularly controversial.
Obviously, we want to produce recommendations that actually get adopted. There was a comment from a member of the public yesterday asking us to provide recommendations that could really be used and could make a difference. We certainly had that prominent in our conversations, and it was good to be reminded.
Going from those challenges and other aspects of our discussion, this is, I guess, a partial list of areas where we intend for the present to seek additional information. As I said, this list could expand the more we find out about what we think we know, what we think is good, and when we find out there are things we don't know and we need to learn more about.
I won't read off the list, but just to give you a sense of what's between the lines here, a desire to really understand the worker experience so that in making recommendations, we are making recommendations that could really affect the capacity, the opportunity, the freedom to raise issues and to have issues handled in a way that reinforces that right, that brings good information forward, and that the information is acted upon.
We certainly had in our discussions a very useful perspective provided from the worker perspective, but we think we need to learn more about that experience in these kinds of systems, which will help us learn more about other factors that interfere, some of the metrics and measurements.
Some of that was talked about in the Transportation Committee's report. There are a lot of traditional measures that provide monetary rewards, and this is not news to anybody here, for low injury rates. We have had some very useful discussion and we need to look into how that happens and make recommendations about the best ways to provide incentives.
We have talked a lot about the common phrase "what is measured is treasured," and part of our further discussions and recommendations I am sure will talk about what people can most usefully measure and what impacts that will have.
That is part of understanding the worker experience and the way companies use measurements. There is quite a lot of knowledge around the table about it. Not full agreement but a lot of knowledge and information. I think we will do well with it.
I have identified the company size, the auditing, and those kinds of things.
We want to tap into the knowledge of vendors, non-profits and others that track trends and tools. We identified we want to know more about what tools were out there being used that could be potentially characterized and recommended as best practices. We are going to try to find out more about what people are using, what people know about.
In yesterday's discussion, a point that had not been part of our discussions before but very important, to try to understand more about the experience of immigrant and other vulnerable workforces that might tend to have more difficulty in bringing issues forward and having their rights protected. We will attempt to learn more about that.
Yesterday, as Marcia noted, the Fairfax Memo was placed on our agenda as well. We will have to have some discussion to figure out how our Work Group can help with that.
We identified because OSHA has the multiplicity of statutes, in order to make our recommendations, to get over the one size fits all, we need to get more knowledgeable about those different programs. Each of us tends to have worked in a few of the areas, but no one has a full picture, especially since some of the laws are new. We want to be sure we are briefed enough so that we can do a good job with that.
With some difficulty, I managed to get a time line slide to pop out of my computer. This just gives you a sense of how we will incorporate additional learning and discussion into the calendar.
I have put it month and month. The Committee has been very good about putting time aside for these lengthy conference calls to try to substitute for meetings where people can talk substantively and have presentations and questions and discussion.
Assuming we can continue to call on people's time in these conference calls, we would be placing these topics into those calls. These are placeholders. Some of it will depend on who is available to come talk to us, things we identified we might want to link together.
You will see in here the auditing topic, talking to vendors, other tools, the front line response, other things that I've mentioned, and moving on towards topics that give us the opportunity to perhaps then develop recommendations in the Summer, when everyone really loves to be on conference calls indoors, assuming all the budget discussions that happen in this town will allow us to meet when we intend to, and I'm sure the Chair will convene us appropriately, and we hope to be ready perhaps in the Fall with some very useful recommendations.
I again repeat my own sense of encouragement on the progress that we have made, by the candor that has been in the discussions, and by the high degree of substance offered and quality of the questioning, and the willingness around the table/on the phone to acknowledge the importance of issues and possibilities that each of the other Work Group members are raising.
That is the progress report that I offer on behalf of the Committee, on behalf of the Work Group. I would like to invite Work Group members to add perspectives and background on anything that I said or on anything I failed to say.
Marcia, would you like to start?
MR. BAIRD: Let me just jump in with a housekeeping thing. The PowerPoint slides that Mr. Brock used to support his presentation has been marked as WPAC Exhibit 3, and will be in the record.
(Exhibit No. 3 was marked for identification.)
MR. BROCK: Thanks.
MS. NARINE: You didn't leave anything out. I am just going to add a comment, which is I think the biggest struggle I am going to have as a participant in this Work Group is trying to help figure out or add to the discussion about the value proposition for employers and trying to figure out the benefit of a safety culture, which I know is a bad word for some members on the Committee.
While I think as I said yesterday this is pretty much a selective group of people who think this is an important issue. David and I have talked about it is obvious to us that keeping costs low and retaliating is a stupid thing to do, but it is not obvious to everybody.
To the extent that Dr. Michaels talked about large fines for companies that have tremendous reputations, like AT&T and others, clearly companies don't always get it.
We could talk about why would anybody want to pay Workers' Compensation costs, the companies are self insured, obviously not everybody gets it. Nancy, Billie and others that represent labor have done a really good job of educating the Advisory Committee of what's going on on the ground.
What do we do or how do we really make sure small and mid-sized and large companies understand that value proposition. I think that is going to be a really difficult struggle for us. It is not obvious to everybody. It is not going to make financial sense to everybody. For some people, it is going to make more sense to cut corners, not to the people on this Committee and not to everybody in this room.
I think when we are looking at best practices, it is going to have to be financially much more punitive to break the law. It is going to have to be legally more difficult to break the law. It is not going to be a best practice. It is going to be just much harder to break the law.
For some people, a best practice is going to be a good thing. For some people, it is going to be a moral thing. For some people, a best practice is not going to be enough.
I think we need to think of a range of things and that best practices are going to be good for some people but that is not going to be enough for everybody.
MR. BROCK: Thank you, Marcia.
MR. EHERTS: I agree completely. I kind of look at the work product from this group as a tool kit. That could be a set of best practices that we could deliver to the outreach program of OSHA we discussed earlier, that they could bring out to industry and say here are some best practices from leading companies that have been very successful, not just in running these programs, but in business, and it might be valuable to you to emulate this culture at your company because you should therefore get the same results.
I'd like to point out there is a very good book out right now by Stephen Covey called "Business at the Speed of Trust." I think there are a lot of great lessons in that book about what I call the "macro or strategic business case."
I can give you one example. We had a CEO that says very publicly, in fact, only two things matter in our business, and that's every aircraft lands where and when the public wants to land, the time and place, the choosing of the pilot, and every employee goes home the way their families sent them to us in the morning. He said everything else is corporate hoo-haw. In public, he says that. In private, he uses a different word.
He said if those two corporate requirements are met, every other corporate requirement will be met in his mind, including EBIT, profit, cash flow, and all those other things.
When I read Covey's book, Covey has a lot of very concrete examples, the one he uses is Best Buy. He says for every 0.1 percent increase in employee loyalty, he calls it "engagement," they can measure $60,000 of increased sales per associate.
Basically what Covey is trying to say is if you have the trust and respect of your employees, productivity, quality, sales, everything is going to go up, and the same thing for your customers. If your customers trust your product, it is the best one out there, they are going to buy it, even if it costs a little bit more and delivery takes a little longer. This trust is that important.
I would recommend that to the Committee as something we should maybe include in the OSHA materials for outreach. It is a very powerful argument that there is value to safety and there is value to a strong corporate culture around ethics.
MR. BROCK: Greg?
MR. KEATING: I just wanted to chime in here. First of all, I found this process to be incredibly collaborative and incredibly productive. I think Jon has done a phenomenal job of keeping the ship sailing in a very productive direction.
I just wanted to echo something that I had referred to in the initial Advisory meeting, and that ironically one of our audience members, Kathy Hughes, had eloquently stated yesterday, which is on behalf of management, one of my goals, and I think it was echoed by Dr. Michaels this morning in his introductory remarks, is we have had a lot of deterrents, we have had a lot of punishments that have exacerbated and increased in recent years and perhaps for good reason, to try to strengthen the teeth of the whistleblower laws.
As Kathy said, she is sort of a little tired of getting whacked in the back and would rather be sort of guided forward.
One of my overarching goals that I feel is very attainable, especially in light of the chemistry of this group and the resources that are out there, is to try to identify a series of best practices which if a company adopts and implements in order to create a truly compliant culture, then that should be considered and employers should frankly be given carrots instead of sticks and rewarded for really going above and beyond.
In that regard, the last thing I will say is I think we did identify, and Jon, correct me if I'm wrong, there are meaningful differences between the safety area that Nancy has educated a lot of us on, myself included, and the area of general wrongdoing, someone who comes forward and has the courage to identify -- fill in the blank -- fraud, various things that are wrong.
I think there are some very practical best practices, especially in that latter area, that we can come up with going forward, which if an employer expends the time and resources to implement, I think should inure to their favor going forward.
MR. BROCK: Thank you.
MS. NARINE: Let me just add to that. As a former compliance officer, I love incentives. I love to trot out in front of the audit committee here are all the things and if we do this, these are all the credits we will get, all the mitigation, so I think that is important.
I think you need to have a lot of carrots, but I think you need to have meaningful sticks as well because to the extent you don't have any meaningful sticks, then no one is going to pay attention to anything.
I remember about a year or so ago, there was a multi-page article in the New York Times about OSHA. I can't remember where it was, but it was about how difficult it was for OSHA to enforce a number of penalties. It was a very sad story about how the workers weren't able to get any relief because of a lack of resources that OSHA had.
I remember showing it to my class when I was teaching at the time, and they were very sad about the fact that this agency that was meant to protect workers didn't have the resources that it could to be able to do its job.
I remember I had students in my classroom that said yeah, my dad works in a factory, they don't think OSHA can do anything. That is the problem. That is what I am worried about.
To the extent that his dad's boss didn't have any worry that OSHA could do anything, that's the problem. You need incentives so that employers will go beyond and below. That is the best practices' part. That is the mitigation. That is the stuff we talked about in the last Work Group.
You need some meaningful penalties that have some teeth that will say if you don't choose to take advantage of these incentives that we are going to give you, then there is a big stick that will be used, we will punish you often and we will punish you severely.
MS. SPIELER: I'm wondering if there are other members of the Work Group that want to chime in at this point.
MR. BROCK: We haven't heard from Nancy or Billie yet.
MS. GARDE: I would like to comment. We heard from Dr. Michaels this morning, I think a really fundamental piece of our project, which is because of the resource problem at OSHA, it is the workforce that is going to be the eyes and ears to protect the rest of us.
I feel like our work is to give as many tools as possible to companies big and small about what that means.
Retaliation is often not a common sense. How you deal with retaliation isn't intuitive. Human nature is to retaliate against people who buck the system, who reveal things that embarrass you, who bring shame on your company.
We are bucking against human nature and trying to create a reason to act correctly and a framework of how to do that for a lot of companies who if you ask them directly, even small companies, would you retaliate against somebody, no, but when you say this is what retaliation is and this is what you did, it lines up. There is a tremendous amount of education and incentives that go with this.
I think one of the things our Committee can do and I talked about this is look for opportunities for the Department of Labor across the board to include in all its programs and processes ways to incentivize, to recognize -- for example, I talked yesterday about the VPP.
A VPP program star status is incredibly important to companies. If a company wants to get that, why not put in there they have to have training on anti-retaliation, they have to have a program for employees to raise concerns.
All the things OSHA does, we need to look across the board to see where there are opportunities and tools to insert this relatively narrow piece of work that is so critically important.
We go from disaster to disaster and as a professional in this area, as soon as I see the disaster, I know there was some worker that was trying to stop that from happening. I know that. Finding who that person was and what the issues were that prevented them from raising the concern or preventing the disaster, it is really all part of the learning. No company wants to be responsible for the next big mistake or bury their workforce.
They don't have the tools from the Department of Labor. They don't have the money a lot of times to put together the right kind of program. Frankly, there is not a lot of anti-retaliation training off the shelve out there.
This is a relatively narrow scope of activities. I'm hoping our Subcommittee is able to take what is out there and take the tools that are out there and really get in depth about what is it going to take to incentivize companies to make a difference.
I think that's a challenge that we have. I think it's going to start a lot from hearing from both workers and small companies about what it will take to do that. I think we need some other eyes on the Committee from the Department of Labor of where are the other opportunities we can piggy back to do some of those things.
MR. BROCK: Thank you.
MS. LESSIN: I do have something I wanted to say. I think the issue of metrics is going to be a real challenge. Right now, just in the arena of health and safety, the metric that is used is reportable injuries, lost time injuries. Those metrics have not served this arena well, I think. There are way too many ways to game the system to get low reported injuries and low lost time.
We have employers that have what we call the "rubber room," where if you break two legs, the supervisor will pick you up, bring you into the workplace, and you play tiddlywinks or do something and then they bring you home, and that is not then a lost time injury because you are in the workplace.
All kinds of things happen out there to make the numbers look good. As long as the injury number is the metric used, I think we are going to see continuing pushing the reporting down rather than fixing the workplace so it is healthy and safe and people don't have injuries and illnesses.
It is interesting of late looking at this arena. There used to be something in rail called the Harriman Award. That was for carriers, they got the award when there were low injury, work related injury experience. One of the things that was matching up was those carriers who were getting that award and the amount of retaliation claims coming out of that carrier that OSHA was pursuing in terms of trying to deal with the retaliation that was happening and getting people not to report injuries and illnesses.
One of the things that happened in the last couple of years is this award that had been going on for 98 years in rail was kind of quietly put away. There is no more Harriman Award, and in my opinion, because of the embarrassment that was coming out.
In mines, they had Sentinels of Safety. Some of the big winners of Sentinels of Safety Award was Upper Big Branch, and there are many others. MSHA has recently decided to pull out of that award process.
I think it is going to be a lot more than not doing these kind of big recognition programs for low injury rates. I think it is going to really take some thinking about how to set up metrics that support real health and safety, metrics such as how many hazards have you identified, how many hazards have you eliminated, how many hazards have you reduced according to the proper hierarchy, and how many days did it take from when a hazard was identified to when it got corrected.
There are many different kinds of metrics but right now, the injury/illness is the most prevalent one, and I think it is problematic for the arena we are talking about in whistleblower.
MR. BROCK: Good; thanks.
MS. NARINE: I don't know if the EEOC still does this, but they used to have something where the local EEOC District Director would recommend that companies nominate themselves for a national reward. I don't know if they still do that.
Maybe it is something that OSHA could consider. Perhaps companies could be awarded maybe based on a committee that's made up of labor and management. Obviously, if management was only on it, it probably would be something labor would not accept.
Maybe that is something we could think about for best practices, so if company nominated themselves for their best practices, maybe there is a committee that is made up of Nancy, and maybe a couple of other people, but it's something to think about.
If you think you have something that you think you have done to reduce injuries, maybe this Committee considers some metrics that are appropriate, maybe along the lines you thought of, and that is something that gets things out there in the future that other companies could consider.
It is something that is not just rubber stamped by other companies. It is not something that OSHA has to sit there and think about what the metrics are. It would be something that is really considered a best practice.
Not something we would have to do this year, but something in the future that would be a pretty objective measurement of recognition, this is something that is not used universally but something that is considered really a best practice, something that is judged. It is not a cash prize, but some kind of recognition.
I don't know how labor would feel about that. It might be something that is completely out of the industry. Rail wouldn't be judging rail because that could cause a conflict of interest.
It is something to think about, to have companies say this is what we are doing, this is what we think is something people should think about, but it is another way to get some recognition out there.
MR. BROCK: Call attention to the practice.
MS. NARINE: Call attention to the practice.
MS. SPIELER: Let me open this up so we are not only the Committee talking to itself.
MR. BROCK: We like to.
MS. SPIELER: I know. Three hour telephone calls are unusual. We don't have a recommendation from this Committee but we have a recommendation regarding process, and to some extent, although still not fully defined goals -- I'm interested in hearing from the rest of the Advisory Committee about ideas you have, reactions you have, things you think might be missing, concerns you have that you want to make sure the Work Group addresses.
MR. EHERTS: I think metrics, and I know Jon has it on his time line for June, but metrics is a big issue. It has come up in almost every group. How do you measure the best performance. I know 11(c) is talking about it.
Looking at the state plans, and we want to get best practices from the state plans. We have 24 different experiments out there, all different programs running, some have better results than others. What is a good result.
I know we have been talking about metrics. I think that is one of the first things, leading indicators and a recommendation back to OSHA. The bottom line is that for all the work we do on leading indicators and how we should measure ourselves, it all goes back to how OSHA measures us, and that is reportable incident rate.
In fact, now they are proposing that we publish these rates so that the general public can look across all these different companies and decide who is the better one based on the lower rate.
I think it is a bit self defeating here that we talk about these grandiose plans on getting better metrics and leading indicators that really change culture in a company, and we always have to fall back on reportable incident rates.
MS. SPIELER: Let me suggest this, this is actually something I am personally interested in. There are broad sets of metrics that I think both Nancy and Dave have now alluded to about rather than using counts of injuries, and I think a number of us have examples like Nancy's that we could share with you about how that didn't seem like that would be the company with the lowest injury rate.
Leaving that aside for a moment, I think there is a separate but related question about how you measure effectiveness of practices, best practices intended to encourage reporting and discourage retaliation.
I have been sitting in on all three Work Group meetings. I have been very struck by the sophistication of this group in thinking about this. Everybody, I think, understands, for example, that having fewer people coming forward might not be the right measure of a successful program that is encouraging people to come forward.
How do you measure on the same track, you get more complaints and less retaliation, and genuinely lower injury rates, how would you figure that out. Those are three separate and different tracks.
Kind of what is interesting I think about this Work Group is that the people who have come forward with I think some very interesting programs believe in their programs. The appropriate question back is other than I know it works, whether the ways in which we can advise OSHA that here is what we think are the best practices, and as you go forward and you utilize these and perhaps you encourage NIOSH to do some research on this and they do some research, what would be the questions that need to be asked about effectiveness of best practice programs.
I want to ask that question here, and I'd like the staff to participate in this conversation. I think taking it back to the Work Group, any ideas that this full group has on that question would be very useful.
MS. NARINE: Do we know how other countries and analogous OSHA groups or agencies look at this issue? Do they use reportable injuries? What is the metric they use? Not every country in the world.
MS. SPIELER: Rich, do you know if there is comparative information on that?
MR. MENDELSON: I don't know that offhand. I know the Work Group with the U.S. and EU.
MS. SPIELER: It might be interesting to pursue that as a sort of area of question. I work with the Institute for Work and Health in Toronto. I think they have looked at some of these questions.
One of the things they do that I think is instructive, not just for this Committee but for thinking about these kinds of issues is they do research, both qualitative and quantitative research, across a wide range of issues that have to do with the intersection of work and health. They always have a component of that research that has to do with the translation of the research for use outside.
They do in fact develop tool kits for physicians or tool kits for unions or tool kits for management on how to address a problem.
For example, I know they did that on the issue of return to work, which is a huge issue in the Workers' Comp and work injury world, not before this Committee. Those kinds of products, I think, are something the Committee as a whole in the long run may want to look at.
MS. NARINE: I would be particularly interested in countries that have large unionized workforces. That actually might be more helpful.
MR. BROCK: OECD might be a source.
MR. EHERTS: ILO.
MS. LESSIN: In this whole arena of best practices being perhaps in the eye of the beholder, because it is generally the workforce that we are talking about being impacted by whistleblower retaliation, I think it is very important that if we hear something that sounds really good from somewhere, we need to be checking in with representatives of the workforce to see if they experience this the same way.
What can look good and have all kinds of very nice elements can in fact not be good from the experience of workers. I think getting those perspectives and really coming forward with programs and practices that have the endorsement of both sides, if we are looking to the best practice being the carrot part or the good thing or whatever, then we need to make sure to do that.
MR. EHERTS: I would second that strongly. One fantastic measure I think is employee opinion. We do a survey every year where we ask the workers do you feel hazards are being abated in the workplace. It is an anonymous survey. It is given to Teamsters. They tell you what they think, especially when it's anonymous.
We also ask them can you report without fear of retaliation. That is one of the ethics questions we ask. We are looking for higher and higher scores in those areas.
We do some internal research showing the departments that do very well on those scores also have the highest productivity and the highest quality. We are kind of validating our own metrics that way.
MR. KEATING: I would just echo part of what my presentation when we did it with the group in terms of one of the actual best practices is to go out and do these. This is an example of some of the concrete things we are recommending be done.
Your point isn't lost on me, Nancy, and in fact, I don't know if you remember, my presentation started by pointing out that the surveys show that the rank and file don't trust management. Management says we are committed to a culture of compliance, but the surveys, and they are robust, they are based on real data, show that a huge majority of people say one thing but they do the other.
Part of the best practices that we are suggesting is to roll out these employee surveys and really understand what are your people thinking, and then take appropriate action.
MS. SPIELER: Let me ask another question of the Work Group but also the full Committee. As I think Greg has sometimes pointed out, the safety concerns, which are the primary focus of a number of the statutes, 11(c), and several others, have some different qualities, and I'm going to suggest three buckets.
There are financial statutes, which require a level of sophistication of the workforce and a kind of different place within the workforce, and the third bucket is kind of what I think of as the external safety, consumer, environmental, things that require a level of kind of altruistic commitment because it is not about me, it's about others, although I have to say the rest of the world does react with considerably more alarm when there is a consumer safety issue than when there is a worker safety issue.
Those are three somewhat different buckets in terms of what I think the nature of what our expectations are of people coming forward, not necessarily in terms of retaliation itself, but in terms of the dynamic of someone coming forward and raising a concern.
Does the Committee think -- this is a sub-question of does one size fit all, but a different one from the small and large or industry -- does the Committee think those are different programs or are they all the same thing?
Dave, you work primarily in the safety arena.
MR. EHERTS: And product safety.
MS. SPIELER: Greg, you work primarily in the financial arena. I'm just wondering whether we can think about this as a single question or whether actually we need to think about it as separate questions.
MS. GARDE: I think that it is primarily a cultural issue, and then if you encourage employees to raise concerns, they are going to raise all the concerns.
As your culture expands to a speak up culture or more transparency, you are going to get more of all those kinds of issues. From my experience, programs that work to change a culture in which workers can raise concerns is going to raise everything from Title 70 EEOC issues to being bullied to safety concerns to financial irregularity.
I think changing a culture changes the way people think about their willingness to speak up about things. That takes years. It takes a lot of commitment.
In answer to your question, I don't think they are different programs. I think it is a program to change the willingness of the workforce to speak and the willingness to management to hear.
MR. FRUMIN: One of the analogies that I have often found helpful in looking at the question of worker involvement in a management function is the question of quality assurance.
It has some of the same features of safety and health management functions that we are talking about, obviously directly, some of the other buckets, to use Emily's term, external concerns, consumer concerns and so forth.
We had to go through a wrenching experience in the American management systems for decades because of the management's unwillingness to give up their command and control philosophy. Jimmy couldn't find an audience here and he had to go to Japan, and the Japanese companies beat the pants off the American ones on quality assurance until we figured out they were on to something.
I'm not going to speak for all the pro's and con's of the Japanese version, but my experience with a cooperative approach between workers and managers on quality assurance tells me there are really critical indicators of whether or not managers actually have a stake in whether workers are going to be encouraged to speak up, whether their views are going to be considered seriously and acted upon.
To Billie's point, yes. If you create a structured situation, and we didn't go through the quality assurance here in the U.S. haphazardly, when it worked, if it worked, a lot of times, it didn't, a lot of times it was just a lot of hot air. When it worked, it worked because managers had to re-learn their jobs, workers had to be supported. Unions had to change the way they approached this. Then you saw very broad implications.
There were good metrics along the way. Speaking of metrics, there was lousy accounting, but good metrics. I mean accounting for the benefits of it.
I guess I would just say when you are thinking about a number of these issues on best practices, one of the things that could be helpful to look at, if you could allow yourself to think creatively, is whether in these organizations managers have a structured approach to taking very seriously workers' understanding and views on how things are working out, how they need to change, and for whose benefit.
Of course, even who gets paid for that benefit, who actually gets the benefit in monetary terms, which of course is sort of the ultimate test of whether an organization cares about it.
Something to add to the mix here. Dave and I talked about this when we were looking at his program in Connecticut. I think it is a fairly well understood concept by people who have been in both health and safety and quality management functions.
MR. KEATING: Just a really quick follow on to what Billie said. I think to make your buckets a little simpler, I think you can reduce them down to two.
I would agree with Billie that I think we can come up with some suggested best practices that would encompass both the financial and the safety with regard to an individual's identification of wrongdoing or concerns of wrongdoing, and how a company can be better prepared for fielding those responses.
How they can be better in responding to those responses and investigating, and how they can be better about remedying the underlying issue and building morale within the organization on the follow through.
What I do think is different is the issue that Nancy points to, which is more of a process issue with regard to certain systems that are in place, which I know in her view are inherently retaliatory by their design.
It could be something we are going to have to work through, but I think they are definitely separate issues.
MS. LESSIN: I agree with that. I want to put a question on the table for OSHA. A lot of these whistleblower claims dealing with workers who get retaliated against when they report an injury, illness, accident, I would love to look at the numbers in particular FRSA and 11(c) of which are the complaints coming in for I raised a safety issue and I got retaliated against or a health issue and I got retaliated against versus I reported an injury.
I think some of them are going to come together but I think some of them are going to be distinct. I would like to see that experience broken out to see where we are getting the claims filed in those two arenas in particular and maybe STAA as well.
I do think and I said it in the Work Group yesterday, I used a statute that we don't have, sexual harassment. We generally don't have a program from the top that is supporting a harassing environment and trying to get everybody to harass. You don't have that.
In the arena of retaliation against workers who report injuries and illnesses, there are a massive number of programs from the top that are instituted, that are reward programs or punishment programs or both. That is very different, and I talked about it, by design. When something is by design from the top, it's very different from we just need better training to make sure that our supervisors encourage people to raise issues that we think can be environmentally damaging.
It is just a very different thing. I don't agree with Billie that once you have some kind of situation where everybody reports everything. I think there is this arena where there is designed policies, programs and practices that needs to be looked at differently.
MS. DOUGHERTY: I don't think with the whole concept of best practices that if somebody reports a violation, there is generally no incentive in an employment situation to say if we don't have any sexual harassment cases filed this year, you all get a bonus. If their Workers' Comp rates are down, you get a bonus.
I think there is a real different type of incentive between those kinds of practices.
MS. NARINE: I agree with the three buckets. In my past job and in the consulting work I do now, I see all three of them. I do agree with Billie to the extent that the issues are generally the same, but I think there are some nuances. I also agree with Billie that there is some benefit to defining "retaliation."
Your average person is going to understand if you're fired, that is retaliation. If you're in the finance world, if you don't get the overseas stretch assignment, that is retaliation to you. If you are the hourly worker and you don't get your Christmas break off so you can't stay home with your kids, if you take those two weeks off and you do that without pay where you lose your job, that is retaliation to you.
When you are doing that training, there is no one size fits all training. You have to define for that supervisor this is retaliation, this is what it looks like for your workforce.
If you don't get to go to that certain meeting where the really important stuff is being discussed, then you miss out on critical information that is going to get you to know what is happening, that critical knowledge that is not written down any place.
There are very specific issues. There is the tone at the top but there is also the tone at the middle and there are also people who take their cues from what their supervisor does. It doesn't really matter what is in the manual. It doesn't matter what the CEO says. All that matters is what the supervisor does.
Those are all very important issues. That is the culture that happens in that plant and there is the culture that happens in the plant that is ten miles away.
Those are all very important issues where when we are talking about best practices, it is company culture and also location culture.
I think while the issues are similar across industries, we have to kind of be thinking about when we are talking about training programs, we have to get clearly at the macro level but at some point we have to recognize some kind of micro issues as well.
There are some that are going to go across worker safety, financial, and consumer safety, but there are also some that we have to recognize to be able to get the companies to buy in, we are going to have to speak to things at their level as well because if we're talking to the financial industry, they are not going to get some of these issues. They are going to say this doesn't relate to me at all.
MR. EHERTS: Just along those lines, Jon, maybe adding to our agenda, there is a concept called "just culture," and it stands for fair. I think it comes from aviation and I think it is an U.K. initiative. I would recommend it.
I know we talked about the carrot and the stick, and often times you do have to punish behavior you don't want in the workplace.
What just culture says have you punished people for breaking that rule who didn't get hurt, so they weren't wearing safety glasses and had an eye injury, you can punish them for not wearing safety glasses, but did you punish other people that were not wearing safety glasses that did not get an eye injury. If you did it across the board, it's better.
If somebody stands on the top of a ladder and falls off and gets injured because they were trying to complete something just in time for the end of the quarter and get a delivery done. They do something called a "substitution test," where they take ten Teamsters and say confidentially, would you have done the same thing.
If they say yes, it's the end of the quarter and our management wants us to get this aircraft delivered, and therefore we would have broken that rule, then you can't punish the individual that was injured breaking the rule.
I think it is a best practice, and maybe the FAA folks will know about it. We should bring that in, too.
MS. DOUGHERTY: We see that on the compliance side now a lot with employee misconduct. One of the standards is how you discipline the other employees for doing the same thing, you say this person didn't have fall protection, we trained on fall protection, they didn't have it that day, but if no one has ever worn fall protection, their misconduct defense falls apart. That is the way we see it.
MS. SPIELER: To continue the conversation on Jon's presentation, are there other suggestions about groups or individuals that the Work Group should be talking to or are there specific recommendations within those categories, particularly from people who aren't in the Work Groups, so that they can take that back with them.
MS. SPIELER: Nancy made a specific request about data. Is that doable?
MR. ROSA: It is probably something we can look at.
MR. FRUMIN: Can you speak up a little bit?
MR. ROSA: I'm sorry. It is probably something we can look at. Our database is very limited, but we can try to pull out FRSA, 11(c) and STAA cases, and then look in the system for each of those cases whether it was a safety report or an injury report. We can try to see if we can get that information for you.
MR. FRUMIN: Could I comment on this?
MS. SPIELER: Go ahead, Eric.
MR. FRUMIN: This limitation in the database regarding the genesis of complaints is an extremely serious problem for our Committee, for the agency, and other people.
It came up as a repeated question in our discussions, what was the reason rail workers, workers covered by FRSA, were filing complaints. Was it about an injury. Was it about a safety hazard.
Apparently, according to rail employers and others, that had a major impact or that ignorance on our inability to answer had a major impact on our ability to then try to address what the underlying problems were in the industry that discouraged workers from reporting problems in the first place.
I don't want to take up more time about it now. I'll be a broken record on the subject over the course of my time on the Committee. If OSHA doesn't fix this problem and fix it soon, we're just going to be digging ourselves deeper into a hole of ignorance, and I suggest we pay attention to that in a future meeting in the not too distant future.
MS. SPIELER: I actually had that on my list of things for us to think about for the future. I think with the new Directorate, not as new as it was 14 months ago, but with the new Directorate and much more attention to the whistleblower questions, that it might be useful for this Committee to have a conversation about what might be useful, with the understanding some of it may be achievable and some of it might not be achievable.
I think it might be useful internally for you to hear some of the concerns about the available data, and this is one subset of a number of things I've heard along the way.
At a minimum, I would like us to think about putting that as an agenda item in six months at the next Committee meeting. I do agree, and I have many questions, but unfortunately mine often have to do with what happens next. That is even more difficult for OSHA to put together.
Yes, I think the data issue has to be addressed.
MS. LESSIN: I just wanted to comment on the issue of just culture very quickly. The spirit of Brent Churchill just came down upon me. Brent Churchill was an utility lineman in New England. He went up to fix power lines and did not put on his insulated gloves, grabbed onto the 7,600 volt line and was electrocuted.
In this case, the glove was right there and he was well trained, he just didn't put it on. The employer said what a terrible tragedy but what a careless worker.
In fact, Brent Churchill had worked 55 of the last 60 hours because it was an ice storm in New England, and this utility company had laid off 37 linemen a couple of years ago, so when there was an ice storm, the only way they could get the power back on was to have people work those kinds of hours.
The issue of whether or not this utility company would or would not have disciplined anybody that they saw not wearing a glove is irrelevant to the fact that they had a work process which was inhumane. Human beings are not made to work 55 over the last 60 hours. We think the last time he went up, he was probably asleep. He had wanted to go home and was basically told if you go home, don't bother punching back in. He tried to soldier through.
There are many, many issues, have people been properly trained, did they break a rule because they just didn't have good training on it, or were they fatigued, any number of issues.
If we are ever going to think about just culture, it is much more than does everybody get disciplined if they do a certain thing.
MR. EHERTS: Just to sum this up a little bit, I agree with all that. In fact, we look at fatigue management, especially in aviation where I come from. It is a big deal for us. We look at proper training.
I think the bottom line is the way just culture works is you exhaust every other thing before you blame the individual. There are cases where the individual is to blame. You have to exhaust every other avenue and make sure management has given them all the tools they need to work safely first.
MR. SPIELER: Anything else with regard to the Best Practices Committee?
MS. SPIELER: I would suggest that we break for lunch now and reconvene at 1:30. Thank you very much.
(A luncheon recess was taken.)
MS. SPIELER: We are now back from lunch.
MR. MURRAY: Vince Murray with the Federal Aviation Administration.
MS. VINO: Good afternoon, Barbara Vino with the Federal Aviation Administration.
MR. BAXTER: Derek Baxter, Office of the Solicitor, Mine Safety and Health Division.
MR. LORD: Charlie Lord, also with the Solicitors Office, Mine Safety and Health Division.
MR. SWICK: Thank you.
MS. SPIELER: This afternoon we are going to hear a report and have a discussion of the third Work Group that has been working under the auspices of this Committee by working telephonically since our last meeting in January, over a year ago, the Work Group that is looking at 11(c).
After that, we are going to take a break and hear from some of these people who are in the room right now from the FAA, Mine Safety and Health Administration, and the report on the National Labor Relations Board processes.
At 4:00, we will be open for public comments. If you haven't already given your name to a member of the staff but would like to make a public comment, please make sure that you talk with Rob, so we make sure we allocate the time. Appropriately, we will close with a discussion of next steps for the Committee, a number of which have already come up this morning.
What we have been doing for those of you who were not in the room before, the Work Group Chair gives a report, supplemented by comments from the Work Group members, and then we open it up for discussion.
If there is a specific recommendation, which there was from the Transportation Work Group, and there will be, I believe, from the 11(c) Work Group, we will take that recommendation up first, and have a discussion, and if possible, a vote on it, and then move on to the more general and longer term plans.
Dave Eherts is the Chair of that Work Group. I'm turning the Chair over to him for the report.
REPORT OF THE 11(c) WORK GROUP AND DISCUSSION
MR. EHERTS: I would like to thank the Chair for this right after lunch slot.
(Exhibit No. 4 was marked for identification.)
MR. EHERTS: Ed, I think this is Exhibit 4.
MR. BAIRD: I have a copy of the PowerPoint slides that Dave Eherts is going to base his presentation on, and they will be marked as WPAC Exhibit 4 and entered into the record.
MR. EHERTS: I want to welcome the FAA. I' Chief of Safety at Sikorsky Aircraft. We make the Black Hawk and VIP aircraft.
As communicated to us by Dr. Michaels, it is clear what the work products are and where we should be looking for information, data and benchmarking.
I will just reads points one and two. The work products are (1) to provide strategic advice regarding enforcement policies and practices, and (2) provide analysis of any shortcomings in the current statute that need to be addressed in order to provide effective protection to employees.
We met and after some long discussions we coalesced that charge into a series of questions and follow up questions. Let me quickly read down the list.
Number one, how does the 11(c) provision differ from provisions of other whistleblower statutes. Which statutes are most effective in providing strong and effective protection of whistleblowers. We list some areas for comparison.
Number two, how does OSHA currently investigate 11(c) complaints, approach settlement of cases, including punitive damages, train investigators, and refer them to the Solicitor, and similar issues.
Item three, how does this investigation process compare to the processes used under other statutes, both within OSHA and for other similar laws.
Four, how does OSHA's approach compare with the approach to whistleblowers under OSHA state plans. We think there is a wealth of information there vis-a-vis best practices and results. I think we are going to spend quite a bit of time looking at state plans.
Finally, number five, what are OSHA's current staffing levels and needs with regard to 11(c) enforcement.
I was very interested to hear in the President's budget, there are proposals for increases, which we think are very necessary.
We also recognized there may be some relatively quick win's, understanding the usual Government complexity, and coming from the private sector, we have something called "public sector speed." We know that doesn't always apply to the Government. These are recommendations that we believe lead to some immediate improvements in whistleblower protection.
Two of these we refer to phase one, urgent issues, and our plan is to communicate these to the full Committee immediately when we have consensus, and we will do that today.
As part of that process, we will pass these to OSHA in an iterative way to make sure we avoid any unintended consequences or propose something that is clearly infeasible.
Phase two issues are those we feel are relatively easier to implement and they don't require statutory changes. Finally, phase three, recommendations we have for statutory change. We know that will take a lot more study and a lot more time.
We did reach consensus in fact by unanimous vote yesterday, and we have one recommendation for the full Committee. If the full Committee agrees, we will make a recommendation to OSHA.
That is the reporting of an injury or illness by an employee is a protected activity under the Act. That is true.
Building on the Fairfax Memo, we recommended OSHA adopt mechanisms that prohibit directly the use of employer practices, policies and programs that may discourage workers from reporting illnesses and injuries, so OSHA can use its full complement of enforcement options in addressing this issue.
As I said, I don't think it's a motion but we will talk about this when we complete the presentation.
Phase two. In the phase two bucket, we anticipate we will have recommendations for the full Committee within about six months dealing with adoption of some best practices, do our analysis of all the state plans. What works and what doesn't work, including metrics, the correct metrics, to drive the right priorities.
We may also have some recommendations in the medium term dealing with improving the process for referral to the Solicitors Office and use of remedies including punitive damages and preliminary reinstatements.
We may have a recommendation for reestablishing the link with the NLRB and for more appropriate staffing levels in the Whistleblower Directorate.
Finally, we plan to investigate the referral process between the whistleblower investigators and the compliance officers. From speaking with OSHA, it appears that it works right now, but we think it is an informal way, and maybe we ought to make it more formal.
Again, these recommendations will be given in about six months.
Finally, we have some recommendations for statutory changes based upon potentially further analysis and comparison of the other statutes dealing with anti-retaliation, EEOC and SOX. Our goal would be to have all this complete within 12 months.
We had lengthy discussions concerning where we might find the data and information we need to make these recommendations. We have listed them all here.
The very capable staff at OSHA has already begun identifying and cumulating the resources for us on the left-hand side, the written resources. On the right-hand side, Richard and Anthony have offered to assist us with subject matter experts from the OSHA Office and Lafe can certainly help us identify SMEs within the NLRB process. Nancy is here from the labor perspective. We have Richard and Jason being particularly helpful in proposing some plaintiff side and employer attorneys that can help us understand their issues.
If anyone has any further suggestions for data sources, I'd like to open that up when the full Committee starts a discussion.
We are all ears to everybody else's opinions and we are good with e-mail, too. If you would like anything else considered, please send us a note and we will make sure it gets in the record and gets reviewed.
MS. SPIELER: Before you turn it back to me, why don't you find out whether other members of the Work Group have anything they would like to contribute.
MR. EHERTS: Very good. They are not shy, I know that.
MR. MOBERLY: We have talked a lot this morning about effectiveness and when we look at employer programs and effectiveness in that realm, one of the things we struggled with yesterday is thinking about statutory effectiveness and what type of metrics we could use to evaluate not only 11(c) but other whistleblower protections and whether they were effective and what that might mean beyond whether employees win or how much they get in settlement.
I would be interested in anyone's thoughts on that as we go forward, how can we evaluate these statutes to figure out whether they are doing the job we want them to do.
MS. LESSIN: For the record, the labor experience is going to be a lot more than Nancy. There's a rich experience out there with different industries and different practices and different ideas and suggestions.
MR. EHERTS: Nancy is here to advise us on who we should speak to, who may be the subject matter expert in different areas.
MS. SPIELER: There may be other ideas about people we should be talking to. We will come back to that. First, the Work Group came forward with a recommendation that we consider endorsing and sending on to the Assistant Secretary with regard to the issue of workplace policies, practices, and programs that discourage workers from reporting illnesses and injuries.
Let me just take a moment to sort of give a little background here. What we have come to be kind of lumping under the Fairfax Memo is a memorandum that came out of the Enforcement Directorate, that specifically endorsed using Section 11(c) of OSHA to consider it to be a violation if someone was being disciplined as a result of an employer practice, program or policy that would discourage reporting.
That is the sort of context of the Fairfax Memo. That only addressed OSHA's jurisdiction over this with regard to specifically when there was an 11(c) complaint filed.
The question that came up in the Subcommittee was well, is there any way for OSHA to think about when that should be a violation outside of 11(c) proceedings. As I read this, it is a kind of generic why don't you think about that and come up with strategies for addressing it that would be sent to the Assistant Secretary.
What we did before, despite the fact that Dave said this is not a motion, I'm going to take it in order to have an appropriate conversation about it as we did the other Work Group recommendation, as a motion that is on the table, made and seconded, since it comes from a consensus recommendation from a work group, open it up for discussion for the full Committee.
If there is agreement on the Committee and we move to a vote, then we will do that. If there are questions or concerns that need to be addressed, we can have a discussion about it and see if it needs to be amended. I'm going to, to the extent I remember them, I'm pretty good at it, to adhere to Robert's Rules. Whatever kinds of motions you want to make.
MS. NARINE: I have a question. I'm assuming, and maybe I shouldn't assume, you read it as programs that discourage but it says programs that may discourage workers. My question is about the word "may." Did you use the word "may" to track the intent of the Fairfax Memo?
The Fairfax Memo quotes the Burlington Northern decision. Is that the reason for the word "may," or you thought "may" was the appropriate language?
MR. EHERTS: We're not that good. This memo has gotten a lot of attention in my field. The paragraph which starts with "There are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of Section 11(c) and other whistleblower protection statutes," we just wanted to bring that back to OSHA and say on their face, we think they would.
MS. NARINE: "May" and "would" are different. Did you want "may," "could" or "would?"
MR. EHERTS: I would argue the gist of it is he has identified poor practices, and we think those poor practices, would they be place constitute a violation.
MS. SPIELER: Let me intervene here because it is actually a little bit more confusing even than that. There is the issue of may, could, would, but there is also a question about exactly what the scope of OSHA's powers are in this arena, what they are without regulatory change, what they would be with regulatory change.
I took the conversation to mean that we are asking OSHA to think about how to move the process outside the 11(c) process and consider having it be in their more interventive mode, where they actually can take action without having a retaliation complaint.
I'm not sure having sat in on the Committee and actually done some of the writing it was crafted with the level of attentiveness, Marcia, that you are inquiring about. I don't know whether the Work Group feels capable of sort of parsing that piece. I don't know exactly how the Work Group would like to proceed.
MR. EHERTS: I think we meant for OSHA to figure that out.
MS. NARINE: You also have the words "prohibit directly," which is really strong. It almost doesn't matter to me -- it matters, but because the words "prohibit directly" are so strong, "may" might be right, but I think it would have to be precise. It is a very strong directive from OSHA to managers or to the workforce.
Whatever the intent is of the Committee, whatever we are going to vote on, I think it has to be clear. Whatever the 11(c) Committee wants us to vote on, I plan to vote on, I just want to know what the intent was.
MS. SPIELER: That's fair.
MR. MOBERLY: I think we used "may" on purpose because I think we respected the ability of employers to come up with practices, policies and programs that maybe we hadn't thought of. "May," I think, was open-ended on purpose, at least from my perspective. It was for me.
MS. SPIELER: I think "prohibit directly" meant not through the 11 (c) process. I think if you have alternative language that says the equivalent of that, my guess is that the members of the Subcommittee would be open to it.
MR. EHERTS: Nancy has a litany of practices that she has delineated for us that would fall in this group.
MS. LESSIN: Indeed.
MS. NARINE: I wouldn't necessarily think "prohibit directly" means without the use of the 11(c) process.
MS. SPIELER: Does anyone else on the Work Group want to discuss the language?
MR. MOBERLY: I would take that as an offer of a friendly amendment to clarify. Beyond the 11(c) for me is the full complement of enforcement options. I think that is the language we wrote yesterday to perhaps obliquely hint that it was more than 11(c).
Maybe we should just make that clear and say use this full complement of enforcement options in addressing this issue, including but not limited to the 11(c) process, or beyond its 11(c) powers, something to that effect.
MS. SPIELER: Katelyn, are you capable of typing that up on the screen?
MS. WENDELL: Yes.
MS. SPIELER: I don't think it was just at the end is the problem, that's why I was having trouble. Why can't it say we recommend that OSHA use its full complement of enforcement options in addressing the issue of employer practices, policies and programs that may discourage?
MS. LESSIN: Here's my question at this point. Right now, an employer can have a practice. For example, at one of our workplaces in Iowa where everybody's name was in a hat and periodically names would get drawn out of the hat, and that person would go home with a big screen t.v.
If you had an OSHA recordable injury, your name was taken out of the hat and you were not eligible.
That is one set of things. There is the accident repeater program, if you have had two injuries, you are in the program. The next injury, you get counseling on how to be a safer worker. For subsequent injuries, it is a verbal warning, written warning, suspension, termination.
Right now under OSHA, they have no ability to deal with those practices. The only way they can deal with them is having the person whose name was taken out of the hat and not eligible for the prize to file an 11(c) complaint.
There is no tool where OSHA can say this practice is not legal. I want to make sure that what this says means exactly that OSHA is able to look at practices whether or not somebody has been retaliated against by not getting a prize or by getting disciplined, and say the practice on its face discourages injury and illness reporting, and therefore, violates wherever this is put. It will be something that is enforceable through citation for having that practice and there can be fines.
I want to make sure that the language in this allows for that, and that is what is being recommended. I am going to see what this is turning into to make sure that is what is communicated.
MR. FRUMIN: Emily, can I add something here?
MS. SPIELER: Yes, go ahead.
MR. FRUMIN: One of the key aspects of this is a little broader, outside, I think, what I understand to mean an "enforcement option." An enforcement option depends on what the authority is. Right now, the only authority OSHA has immediately that is applicable in the real world is Section 11(c). There is nothing right now to enforce.
There is guidance. There is urging. There is whatever. There is no actionable authority.
In order to achieve that Nancy, I and others are so urgently concerned about, OSHA needs to be able to enforce under a different authority. We believe under the statute, under the law, it has the ability to exert that authority probably through a regulatory stage to establish it as a matter of regulatory policy that these practices are in violation of the OSHA Act, rather than simply stating it as an interpretation of 11(c) and leaving it up to the 11(c) enforcement process to serve as the basis for that action.
I think we also have to be careful about the use of the term "enforcement option" and consider actually expanding it to regulatory and enforcement options.
If the authority doesn't change, the enforcement itself is going to be restricted to the existing authority, and that is not sufficient.
In a nutshell, OSHA needs the regulatory authority, and I think it has the statutory authority under the Act, but what is lacking is the regulatory authority which prohibits these actions and which can be enforced in the way that OSHA enforces its other regulations.
That would conform with what I understand from the discussion to be the intent here, which is for OSHA to go beyond its authority under 11(c) and use other kinds of authorities that sounds like the full complement of enforcement options.
MS. SPIELER: Let me just say I have taken over the secretarial role here. I have an alternative. I'm not endorsing it. It's a reflection of what I think this conversation was, and I am putting it up here for discussion. You can't see it, Eric, but you didn't see that I had already put "regulatory" in.
It says "The reporting of an injury or illness by employees is a protected activity, although under the Fairfax Memo, we recommend that OSHA utilize its full complement of enforcement and regulatory options in addition to 11(c) retaliation cases to address the use of employer practices, policies and programs that may discourage workers from reporting illnesses and injuries."
MR. EHERTS: I've read this memo a million times now. He actually points out that such a policy is inconsistent with the employer's obligation to establish a way for employees to report injuries, and it cites a regulation, 29 C.F.R. 1904.35(c). He is citing the recordkeeping regulations.
I think he is suggesting that is where OSHA would enforce it. We may have a mechanism already in the recordkeeping regulation to do that.
MS. SPIELER: I would ask the Committee -- I was personally reluctant to get into the business of telling OSHA where to do its regulatory work. I think there are lots of legal questions we could then get into about where the authority lies and how it should be utilized.
I was imagining as Chair that our recommendation, when I was listening to this conversation, was more at the policy level. We think you ought to think about this, and you should write a section into that part of the regulations that would do this versus that.
That is my own feeling about it. There are too many lawyers on this Committee. We all have an opinion about where and whether it could be done. I'm going to leave that up there and go back to my chair.
MR. EHERTS: One other point, I agree with Eric, this does intend to cover all the statutes, but I think it is a very good first step. I would propose it that way.
MS. NARINE: I have a broader question for the Committee. Was there any discussion of whether there are any employer practices, policies or programs that would be acceptable under the Fairfax Memo as rewards or incentives or anything like that that would pass muster?
MR. EHERTS: I think rewarding the submission of a near miss report, rewarding information on hazards they found in the workplace, behavior based safety type places where they rewarded people who took the right actions. Right? I said it that way, not the opposite.
MS. LESSIN: You had me with the first two and you lost me with the last one.
MR. EHERTS: If you reward the good actions, not the bad.
MS. NARINE: I think it is important with the Best Practices Committee. My concern is with this policy, as we look at how do we give guidance to employers as to what you can do, let's say we endorse this. There are going to be some employers who say what in the world are we allowed to do.
MR. EHERTS: Encourage.
MS. NARINE: Right. I just think we need to be able to give guidance as to what are you going to be able to do now. That's all.
MS. DOUGHERTY: When the Memo first came out, I had a lot of calls from Union rep's and business agents about what does this mean and does this apply to our workplace. We had a lot of conversations around that.
One of the suggestions that came up was instead of the employer always at the end rewarding, let's have a big safety kick off, let's talk about it is to have safe practices, all those things at the beginning of a year and go forward, without any thought of a reward later, just let's make everybody safe.
That idea was kicked around from some of the Union rep's that I talked with.
MR. KEATING: I want to echo what Marcia said and also something you said, Emily, which is on the one hand, what I think I heard you saying, what I see when I look at this, to me this represents a seismic change in sort of OSHA's ability to bring actions against employers, instead of just when prompted by 11(c), if we go the full route of what Eric suggests, they have the regulatory and enforcement options to come after any employer they want for any policy they suspect is or may be problematic.
At the same time, we are giving employers no guidance as to sort of what is okay. To emphasize something Dave said, at least the Fairfax Memo was helpful because it came out and gave employers four concrete examples of things OSHA felt were problematic.
I have a grave concern about giving this broad an edict that OSHA can just go out now and whatever reason there "may," another word, be a problem, they are going to bring in enforcement or some sort of citation action against an employer.
I don't think this is wholly consistent with what I thought was sort of the task of this Committee, to both look at ways we can improve whistleblower protections but in the same spirit, figure out ways we can let employers know what is okay and reward them if they do it right.
I just view this as a little bit one dimensional in that regard.
MS. LESSIN: Can we get a copy of this for everybody? The data that I asked for just shows one of the biggest if not the biggest category of complaints that are coming in, where workers are getting retaliated against for reporting injuries. This is huge.
What Dr. Michaels talked about earlier was the kind of link between whistleblower and health and safety. If workers are not feeling free to report their injuries, then the hazards don't get identified and then you are absolutely degrading workplace health and safety.
It is so important, it is essential for workers to feel they can not only say there is a hazard here but I got injured, so they can be looking at how did that happen and what needs to be fixed.
The pervasive chilling atmosphere out there where workers are not reporting injuries is making for extremely dangerous workplaces right now. Those that do report that get retaliated against is setting up the chilling effect because co-workers sees what happens to them.
The issue of what can employers do, there is a whole part of OSHA right now within the agency, and we are just talking about 11(c) here, that is compliance assistance. It helps employers figure out how to identify what problems they have and how to correct it.
OSHA is looking at how to move forward with a comprehensive injury and illness prevention program that enables employers to identify and correct hazards.
In terms of what employers can't do, right now under the Fairfax Memo, it is really clarifying some arenas where OSHA has said we're going to look at this as retaliation. They have identified the practices.
With something like this that says okay, workers, you don't have to wait to be injured, we can take care of this hazard, meaning this practice that is retaliating against you, I think that is very consistent with OSHA practice.
If what is needed was something like this, to have OSHA talk not just about what we can't do, which is have a practice that discourages injury reporting, but what you can do, I think what you can do is have a safe workplace. That is what the law requires. There are enormous kinds of tools that OSHA has to assist employers in having a safer workplace.
I'm not sure. I guess I'm not sure when you talk about what can employers do, employers can do what they were supposed to be able to do since the Act came into being, which is provide a workplace that is free of recognized hazards that are causing or likely to cause death or serious physical harm. That is what they can do. There are a lot of tools to help employers do that.
MS. SPIELER: I just want to draw a box around this conversation because it's complex. This only has to do when we are talking about retaliation. This grows out of the 11(c) program because it has to do with OSHA's enforcement powers that are coextensive with the 11(c) program and have nothing to do with the other retaliation statutes.
MR. EHERTS: It says from reporting illnesses and injuries.
MS. SPIELER: That is the first thing. The second thing is I'm fairly certain this would require some kind of regulatory process. As I think we all know, the regulatory process, the development of regulations, is a very open process.
That is not to say necessarily that this recommendation should come from this Committee. I just want to make sure we understand what its implications are, that the Committee would be endorsing a process where OSHA would try to figure out how they might be able to do this. It is not OSHA taking our recommendation could go out and cite employers.
I'm pretty sure they couldn't get away with doing that under the general duty clause and other than that, you would need a regulation that would have to go through the full administrative process.
It isn't go out and do citations. It's more a policy level recommendation that because 11(c) waits for, as it were, the cow to leave the barn, is there some way for OSHA to address this problem before waiting for the retaliation complaint.
That's just to provide context. Again, I leave to the Committee how you want to handle it.
MR. KEATING: In response to that, I understand the dilemma that exists, the problem that exists, in that right now, it's only when an employee makes a report that OSHA technically can get involved.
I think I could even be comfortable with a recommendation that OSHA explore ways in which it could, with the use of its regulatory power, strengthen its initiatives in this regard.
I just read this language as utilize its full complement, this is almost a directive that we are giving to OSHA that it should mobilize and marshal behind this and do whatever it can. I think it reads a little bit too strong.
Bathed in the absence of any employer guidance --
MS. SPIELER: I don't even know if this is a friendly amendment, if it was and since it is the Committee as a whole, this is a complex process, Dave, if you felt this was a friendly amendment, perhaps Greg, you could offer an amendment to it that would be acceptable to the Committee that would lead us closer to consensus.
MR. KEATING: I would suggest the word "explore" instead of "utilize its full complement of."
MS. WENDELL: How about "Explore how best to utilize" or "Explore how to address enforcement and regulatory options?"
MR. EHERTS: I take Greg very seriously. I know from my own analysis, if you do a sensitivity analysis of accident rates, the real variation comes in reporting, not recordkeeping. OSHA has page after page telling you precisely what is recordable and what is not. I think we have become very, very good at that.
If I compare rates across companies, the real difference is whether they are reporting them or not. I think these practices do lead to under reporting, and therefore, the numbers don't mean anything. That's why it is so important to me.
MS. NARINE: Just based on the words you just used, they do lead to under reporting, I still have an issue with the word "may." I probably have less of an issue with the word "could," although "may" and "could" are very close together. There is a difference to me.
You keep using the word "do," and that is more definite. I guess I could vote for it if you kept the word "may" in, but that is the word that struck out to me the first time you used it and it is always going to rankle me because of the strength, it's not as strong as before.
MS. SPIELER: We have a moving target up on the screen.
MS. LESSIN: I wanted to talk to the issue of "may." This is a huge problem. Again, I'll cite steelworkers' statistics. These practices are present, the last survey we did, in over 90 percent of steelworker represented facilities, and in talking to other Unions, talking to worker centers, talking to workers, talking to my brothers and sisters in rail, it is the way things are done these days, and it is very problematic.
I wouldn't want a situation, and this is something that happened just a couple of years ago, we had an employer that had an incentive program. Every month there was no OSHA reportable injury, everybody got $10. The next month, they got $11. The next month, they got $12. It went up and up.
If there was an OSHA reportable injury, nobody got any money that money and the next month it would start with $10 again, and then this employer decided to add a new element, which was that should there be an OSHA recordable, everything I just said was true, but that person would be required to come to work for one week in a florescent orange vest, the person who had an OSHA recordable.
This is real. I would not want a situation where when this played out through whatever mechanism, somebody said well, we haven't had an OSHA reportable yet, so we don't know if this would discourage anybody from reporting their injuries, so we have to wait until we see that happen to be able to say it will suppress reporting.
I want reasonable people to look at these kinds of practices where you get prizes if you don't report or are threatened or punished if you do report on their face, and not have to wait for the case that says oh, look, this is what happened.
However we craft this --
MS. NARINE: I would see as what you just said as the "did" discourage it. The policy is so blatant, I think that is the issue. Maybe it is the combination. If OSHA comes out with something, really practical guidance of here are the do's and here are the do not's, where it is really easy for employers to understand, this is what we find a problem with, here are 20 examples of really clearly problematic things, here are things we really think are acceptable, good practices that are going to make it a safer workplace and a better place for your employees.
I would probably have less of a problem with the language with "may." "May" is so vague and so subject to misinterpretation. I think on the flip side, will discourage employers from trying to put in practices that can help.
While you are worried, legitimately so, about discouraging reporting of injuries, I'm worried there might be employers that might be trying to think of innovative ways to make the workplace safer, even getting input from employees saying let's try to do this, and that might be getting stifled because they are saying well, we can't do this because OSHA now has all these new powers, and because this "may" discourage, we can't do it.
MS. SPIELER: Let me intervene here because somehow we have to sort out next steps. We are not writing a regulation here. We are asking OSHA to consider writing a regulation. I think we are having a tendency -- whether "may" is in there or not, OSHA is going to have to write something that will then go through a public hearing process, and then will be refined, and refined again.
I think the question really before this body is do we want to make a recommendation of this sort to OSHA and if so, is the language we have currently on the board acceptable or are there amendments you would like to make. We have to make a decision about this "may" discourage versus "discourage."
We have three options really. I don't have motions really for any of them since we have entirely new language up on the board. We can move and second the current language and vote it up or down with the "may." We can move and second the current language without the "may." We can table the issue and send it back to the Committee for further crafting and bring back to the full Committee.
This is the prerogative of the Chair having failed entirely to adhere to Robert's Rules, I think we don't have currently an actual motion that has been made and seconded. The Committee's recommendation was actually sufficiently different from what we are now looking at on the board.
I would ask if somebody would make a motion and somebody second it, and we then vote up or down. If people want to change the language, we will make a decision as to whether the language suggested is a friendly amendment or not.
MR. BAIRD: Just for the record, why don't we read what is up on the Board? I'll just read that.
What is currently up on the screen reads as follows: "The reporting of an injury or illness by an employee is a protected activity under the Act. Building on the Fairfax Memo, we recommend that OSHA explore how best to address the use of employer practices, policies, and programs that" -- the word "may" appears in parentheses -- "discourage workers from reporting illnesses and injuries through its enforcement and regulatory options "in addition to Section 11(c) retaliation cases."
MS. NARINE: Emily, I could live with the "may" based on your extensive explanation. Take the parentheses out.
MR. BAIRD: There are no parentheses around "may."
MS. SPIELER: It's not the most artfully drafted thing. Is there a motion?
MEMBER: So moved.
MS. SPIELER: Is there a second?
MS. DOUGHERTY: Second.
MS. SPIELER: Is there further discussion about this now moved and seconded language as a recommendation from this Advisory Committee to OSHA? Jon?
MR. BROCK: I think this is really an important issue and a good one for this Committee to try to move forward on and to say some wise things about.
As I'm hearing the discussion about the language and what does this mean and what does that mean if we change this word, it could mean this, the issues around what could or would OSHA actually do, whether this is parallel or not to other things that already get done, doesn't have to be, but without experience it could raise issues about what to expect or how it would get done.
I also have a concern about having something on such an important issue come out early, with even the people around this table who are fairly like minded, at least in my view, about the importance of the issue and the benefit of doing something about it.
If we can't easily answer the question about exactly what this means or what we think OSHA should do about it or acknowledging some of the complexities, as we turn it over to OSHA, even for rulemaking or consideration, I think we don't start off all that well with people that will be watching other things that we do.
My own sense is like the earlier Committee that you have talked about this a lot, and with this kind of input, a little more working on the words and what do we mean, what is it we really want OSHA to do, and what kind of responses and criticisms might we get so we can try to anticipate that, I think it would really strengthen what you are trying to do here if you just went back.
I think this is terribly important and I think you are on a good track. It doesn't seem like it is quite ready just based on the questions and discussions here, at least that is my sense of it.
MS. SPIELER: Is that a motion to table?
MR. BROCK: I would support a motion to table.
MS. SPIELER: Technically, it is not supposed to be a debatable motion, is my recollection. Is there a second on the motion to table?
MR. EHERTS: Second.
MS. SPIELER: It is an up and down vote. The motion to table, as I understand it, is a suggestion to go back to the Committee for further exploration.
MR. BROCK: I hope it emerges really well.
MS. SPIELER: All those in favor of the motion to table?
(Chorus of ayes.)
MS. SPIELER: We are going to have to do hands.
(Show of hands.)
MS. SPIELER: Opposed?
(Show of hands.)
MS. SPIELER: The motion to table carries.
MEMBER: Did Eric vote?
MS. SPIELER: Eric? Eric is not on the phone and there was a 5-4 vote in favor of tabling it and sending it back to the Committee. I did not vote. The motion carries and it goes back to the Committee for further work. I'm assuming the Work Group will bring it back to the full Committee next time.
I doubt I'm going to be able to continue to go to every Work Group.
MR. FRUMIN: Sorry, I hate to bust up the party. I just realized my phone was on mute and you didn't hear my answer. It is a tie vote, guys.
MS. SPIELER: Your vote is against table?
MR. FRUMIN: Afraid so; yes.
MS. SPIELER: I actually do not know what to do in a tie vote. Frankly, and maybe this is the prerogative of the Chair at this point, unless somebody else knows Robert's Rules on a tie vote on tabling -- do you know?
MR. BAIRD: No.
MS. SPIELER: I don't know either. I'm actually going to, with all due respect to the urgency that I think the labor people feel -- given the discomfort that I feel coming from a number of people in the room right now, that I would like the Committee to take it under advisement and bring it back next time.
I would suggest that -- I do worry. I think the Work Group needs to be able to explain to the full Committee exactly, with the assistance of OSHA staff, what the OSHA options are if we make this recommendation, and perhaps to explore what the concerns on the other side are going to be so we can be prepared to discuss them.
I would ask that we do that. I apologize if you all go out and research Robert's Rules and I got it wrong. Next time, I will bring my copy.
MR. BAIRD: I will, too.
MS. SPIELER: It actually never occurred to me we would have a split vote down the middle on anything. Although not our total commitment to operate by consensus but our hope to operate by consensus, I would hate to have a split vote on this important issue at this meeting.
One of the reasons I would like to see it go back to Committee is to avoid that and see if we can hammer something out that would be supported across the board by the Advisory Committee.
MR. EHERTS: I'm in favor of the initial recommendation in general, but I want to get the wording exactly right, because I do think it is that important.
MS. SPIELER: I'm not going to continue the discussion about this issue at this point. It is already 2:30. I want to make sure we have at least a few minutes of discussion about the rest of the 11(c) report, and in particular, whether there is any guidance that the members of this Committee would like to give to the Work Group on how they proceed on the rest of their work.
Are there particular groups or people that the Work Group has not thought about talking with, are there resources the Work Group should be looking to, are there other agencies that the Work Group should be studying that would have a sufficient parallelism with the 11(c) process that would be useful and so on.
I want to move on and open it up to that conversation. We are a bit behind schedule now. We will see if we can wrap this up in 15 minutes.
MS. NARINE: What states are you looking at when you are looking at state plans? How have you decided which ones to look at?
MR. EHERTS: We have not even started yet.
MS. DOUGHERTY: Basically, you would have to look at all of them because they are going to be different.
MR. FRUMIN: Can I ask a question about the state plan issue?
MS. SPIELER: Yes, go ahead, Eric.
MR. FRUMIN: Did you discuss how you would approach learning the lessons that were obtained by OSHA's review of all the state plan 11(c) programs in their state plan reviews last year? That is a matter of record. I don't think they have ever compiled it in any kind of systematic comparison. Maybe they could.
MR. EHERTS: We will definitely ask some questions.
MR. FRUMIN: I was just wondering if you talked about those reports and the evaluation they did last year on 11(c) in details.
MS. SPIELER: That is a great suggestion.
MS. NARINE: The SEC's is relatively new, but are you going to look to see how they have done?
MR. EHERTS: Yes.
MS. NARINE: I didn't see it on the list.
MS. BARBOUR: The state plans and some of these other issues on effectiveness, which we have talked a little bit about, as a working group we had some discussion, I think on two sort of issues with effectiveness.
One is just comparing what do the different statutes say, what are the statute of limitations, is there a kick out provision. All those things versus how effective are they actually in practice.
I think that is the part we struggled with, what metrics do you use and how do you measure that. That is going to be an issue for us that we are continuing to look at it, and if anybody has suggestions. That is an issue for the state plans as well as these other programs.
MS. NARINE: We were talking yesterday about the ones like the SEC aren't going to be totally analogous, but some of the initial issues might be similar.
MR. BROCK: Just a question. Is it on your list to look at some of the case processing procedures? These guys talked earlier today about the value and efforts to reduce the backlog, and that has a lot to do with perceptions of whether OSHA is doing what it is supposed to do. Are you looking at some of those issues?
MR. EHERTS: Specifically, the settlement process and mitigation. I think we will put that in.
MR. BROCK: Thank you.
MS. SPIELER: Anything else? Dave?
MR. EHERTS: I'm good.
MS. NARINE: When you look at the 22 whistleblower statutes, are you going to prioritize them, I assume, based on the number of claims?
MR. FRUMIN: Emily, one other quick comment. I know that on one of your slides at the end, you listed the anticipated sources of information, and you highlighted additional data from OSHA.
I know it's on the agenda. I'm just noting this is another example of the urgency of changing the way OSHA keeps its information on the 11(c) process so there is actually much more meaningful data collection and analysis than we are now able to get. Just bear that in mind when we start talking about the ever popular data issue next.
MS. SPIELER: Anything else?
MS. SPIELER: We actually were scheduled for a break at the end of the 11(c) Committee report. Why don't we take it now. We will reconvene in 15 minutes.
MR. BAIRD: Before we do, so we are altogether on the record, I just want to indicate the Committee has been handed out a form called "Investigative Data, 10/1/12 and 9/30/13." I am going to mark that as WPAC Exhibit 5.
(Exhibit No. 5 was marked for identification.)
I am going to virtually mark that slide that Katelyn did that had the text of the revised recommendation that was tabled as WPAC Exhibit 6.
(A brief recess was taken.)
(Exhibit No. 6 was marked for identification.)
MS. SPIELER: Before we get started, it has been suggested -- two things. The data that was handed out and made part of the record hasn't been fully cleaned, and in particular, some of the terms on it may not be actually correct. As an example, the one includes all settlements, both what usually is called "settlements" and what is usually called "settlements, other."
It is a first coloring of some data. It should be taken as that. It's not clear that we can draw conclusions from it, but it is an example of the kind of work they are doing to try to respond to requests for data. We look forward to having a data discussion.
Second, in the next session, we are going to be hearing from representatives of three different agencies. It has been suggested to me that we hear three relatively brief consecutive presentations and then you will take questions together.
I could go either way on this, but I see our MSHA representatives sitting up here alone, or I will just time keep.
Do any of you who are presenting have any strong feelings about this one way or the other?
MR. SPIELER: Why don't we do ten minute presentations from each of you and then have all three of you sit at the table so you can answer questions. Is that okay with you?
I'm going to turn it over to you, would you please introduce yourself and tell us about the Mine Safety and Health Act process.
LESSONS LEARNED FROM WHISTLEBLOWER PROCESSES -
MINE SAFETY AND HEALTH ADMINISTRATION
MR. BAXTER: I'm Derek Baxter from the Mine Safety and Health Division of the Office of the Solicitor here at DOL. I will be speaking from my perspective from a practicing lawyer who works on some of these cases.
My colleague, Charlie Lord, is here in the audience, too. He may participate in some of the questioning. He is a prosecutor in a number of these cases.
We call it Section 105(c) of the Mine Act that we deal with. It is a very important provision that MSHA administers. When the Mine Act was passed in 1977, the Senate went out of its way to flag this provision and to say that for our mine safety and health program to work, miners really have to play an active role.
MSHA, as you might know, is a safety agency that is at every mine in the country, at least twice, maybe four times a year, depending on the type of mine. The inspectors are there a lot.
Still, mining conditions are very volatile. Once the inspector is gone, conditions can change. We have to give every incentive to miners to come forward and to speak out about conditions they see.
When that doesn't happen, we can see the consequences. I am sure we all remember Upper Big Branch, the mine in West Virginia, where there was a tremendous explosion. Twenty=nine miners lost their lives, back in 2010.
In MSHA's report, they flagged incidences of miners who had noticed these conditions. They weren't hidden. MSHA didn't get a single complaint before then. In this particular mine, miners didn't feel comfortable about coming forward.
The report has quotes from miners saying they knew not to say anything because they would probably get fired. They have a very poignant interchange from a purchasing agent at the mine whose job it was to report conditions and explain why the mine was down and not running coal and not getting production. When he would actually make those phone calls, his hands would literally be trembling. The mentality was not to listen to the safety problems and what was going on underground. That was a very preventable accident there.
That's why MSHA takes this provision very seriously. Section 105(c), it is on the screen. This is 30 U.S.C. 815(c). I won't read the full language there. It does say that no person shall discharge or in any other manner discriminate against, and it goes on to say in a different clause, that is very interesting, or otherwise interfere with the exercise of statutory rights of any miner.
It goes on to list some of the examples of the protected activity that is covered.
In terms of discrimination under the Mine Act, this is similar to a lot of other discrimination statutes in terms of the elements, we look for protected activity. MSHA has published guidance in terms of what constitutes protected activity or examples of it.
That includes making complaints to MSHA, talking to an inspector at the mine, making internal health and safety complaints to the company. Even if they never talk to MSHA, it is important obviously to make sure that miners talk about conditions they see. Even under certain circumstances, refusing to work under unsafe conditions.
We also have to show employer knowledge of the protected activity, adverse action, and a nexus between the protected activity and the adverse action.
Aside from the discrimination prong, as I mentioned a minute ago, we also have this interference prong. There have been some cases over the years which MSHA has found that employer policies or employer actions have interfered with the exercise of statutory rights.
For example, threatening a miner, telling a miner don't talk to the inspector when the inspector arrives on the property. Telling miners they can't leave the section without explicit permission even if they see a very rigid safety problem that they feel they need to report.
MSHA recently filed an Amicus Brief in a Commission case that sets out our view of the test, which is drawn from these Commission cases in the past, and which also both the Commission and MSHA over the years have looked to the NRA, which has a very developed case law, of course, on interference.
We argue interference includes an action by someone that under the totality of the circumstances tends to interfere with the exercise of protected rights. If it does that, then the person fails to justify the action with a legitimate and substantial reason that outweighs the harm caused to those protected rights.
An important difference between our cases and OSHA cases is they are before Administrative Law Judges, not in District Court. That is right there in the statute itself.
There are currently 18 Administrative Law Judges in the Federal Safety and Health Review Commission. They are experienced, specialized judges that are used to these cases. That probably helps the cases move along.
It may be a little hard to read on the screen, but it should be in your materials, about the deadlines for pushing these cases forward. The deadlines on the screen there are from the statute. MSHA also has a whole series of internal deadlines that they put in a handbook, which is on their website, if you are interested. I think that is very important.
We have different deadlines. I will start at the top. The complainant has to file their complaint with MSHA within 60 days of the adverse action, although there is also language in the legislative history and elsewhere that says that is not jurisdictional. Certainly, we want them to do, but that is not always fatal to the case if for some reason they miss the 60 day deadline.
After that, MSHA investigates. MSHA has 18 different district offices and a number of field offices throughout the country. Each district office will have typically several what we call "special investigators."
These are investigators that have gone through specialized training, they investigate these whistleblower 105(c) cases. They also investigate other particularly sensitive cases.
They report their findings to their district manager and the case is eventually reviewed by MSHA Headquarters and by the Office of the Solicitor if it is going to be filed.
The statute says this investigation must begin within 15 days of receiving the complaint. In reality, it begins almost instantaneously when MSHA gets the complaint. That is in part because they have cascading internal deadlines, within 20 days, they are actually supposed to complete the investigation and give it to the solicitors to review.
One thing that I think is very important is communication. We have that. Special investigators will talk to the solicitors and flag problems or talk through how the case looks as it goes.
If you see that second box on the left, the Secretary of Labor has to decide whether to file for temporary reinstatement, and I'll talk more about what that means later. That is basically preliminarily putting the miner back to work.
The internal deadline MSHA has targeted for that is within 30 days of the complaint being filed or the Secretary will either file it or decline it if in fact finding it to be frivolously brought.
If we do file for particular reinstatement, the Mine Commission has certain procedural rules also that kick in in terms of moving the case forward. We don't automatically get reinstatement.
We have to get an Order from an Administrative Law Judge, and the operator may request a hearing. The operator has to do that within ten days. The Judge then has ten days to schedule a hearing, and then has to issue his or her decision within seven days of the hearing. It is a pretty quick, fast moving process.
If you see the box below that, while this whole temporary reinstatement issue is going on or not, if the miner didn't request temporary reinstatement, MSHA is investigating the case on its merits, trying to decide if we want to file, ultimately if we think there is discrimination, interference or not. MSHA has an internal deadline of 60 days to do that.
Below that, there is a statutory deadline of 90 days for the Secretary of Labor to file a complaint on the merits if we think it is meritorious or decline it. If we decline the case, we tell the complainant that, and they have 30 days, they have a private right of action, so they can independently go before the Administrative Law Judge with their own case. That does happen.
I think because of these deadlines and because MSHA has stated in recent years they have put more resources into looking at these cases, and they have also put more outreach materials up on the web, and they have tried to really take this very seriously.
The number of discrimination cases has gone way up. From 1993 to 2008, there was an average of six temporary reinstatement cases filed per year. In the last three years, it went up to an average of 25 per year. In 2012, we filed 47 temporary reinstatements, which was a record for MSHA. Last year we filed 45 cases on the merits, which is also a record for MSHA.
The cases, I think, are moving faster and there are a lot more of them. They are really trying to make that work.
Typically, reinstatement, that is a very important provision, I think, and part of the statute. The Senate said in their report when Congress passed the law that temporary reinstatement was essential, it was an essential protection. These miners, they can lose their job and be out of work. That is a disincentive obviously to come forward with safety complaints.
Also in the Senate report they talked about how mining can occur in some remote areas, and there are just not a lot of other jobs out there.
They put that provision in. If a miner has a non-frivolous case, they don't even have to have a prima facie case, but for a temporary reinstatement hearing, they have to have evidence to show that they could put on a prima facie case on the merits later. It is a very limited in scope hearing.
The Commission rules say it is just limited to the issue of whether this complaint appears frivolous or not, and it is not intended to test all the affirmative defenses that an employer would have or to test the credibility of the witnesses. Again, it is just seeing whether there is reasonable cause to believe that this miner could prevail later.
On the merits, as I mentioned, the Secretary can file or eventually the miner has a private right of action under 105(c)(3).
Finally, if the miner and the Secretary win the case, there is good statutory language that says they must take affirmative action to abate the violation, and in another place in the statute it talks about granting all appropriate relief.
That relief can take a number of forms. We always have a civil monetary penalty as part of the case, and also make whole remedies, back pay, other compensatory damages, so we have had different cases over the years just kind of exploring just what remedies are available. That is part of it.
That is an overview. I look forward to your questions.
MS. SPIELER: Great. Thank you.
MR. BAIRD: Let me just jump in and say I have a copy of this PowerPoint that Mr. Baxter presented, and I will mark that as WPAC Exhibit 7.
(Exhibit No. 7 was marked for identification.)
LESSONS LEARNED FROM WHISTLEBLOWER PROCESSES
NATIONAL LABOR RELATIONS BOARD
MR. SOLOMON: Good afternoon. I'm Lafe Solomon. I've spent my professional career at the National Labor Relations Board, and from June of 2010 until October of 2013, I served as Acting General Counsel.
In 1935, Congress passed the National Labor Relations Act, and for our purposes here today, they made unlawful discharge or other forms of retaliation against workers for engaging in Union activities or other protected concerted activities.
The Act has always applied to non-Union workplaces as well as unionized workplaces' protected concerted activities, and in its most simplest form, it protects two or more workers for talking to each other about terms and conditions of employment.
Obviously, health and safety concerns are covered under the National Labor Relations Act as are many other types of terms and conditions of employment.
I just thought I would give you an overview of our investigative process. In fiscal year 2013, we had 21,000 complaints. We have 26 field offices around the country. We don't really keep track of how many of those cases are retaliation cases as opposed to other types of unfair labor practices. My guesstimate would be 40 to 50 percent of those do involve retaliation.
As an agency, we have set very simple or straightforward strategic goals. One has to do with the holding of elections, which is part of what we do, and the other is our goal to investigate, prosecute and remedy unfair labor practice cases impartially and promptly.
Under that strategic goal are two overarching goals having to do with unfair labor practice charges. One is to resolve all unfair labor practice charges within 120 days of the filing of the charge. We set a percentage goal each year. For fiscal year 2013, it was 72 percent.
The other goal in this area is that we would close meritorious cases within 365 days of the filing of the charge. For that goal, it was 80 percent.
I'm happy to say that we did meet our goals in fiscal year 2013, sometimes we came a little bit short.
The way we are able to implement these, because we really do believe in the prompt resolution of workplace disputes -- it doesn't help the worker, it doesn't help the employer. It helps no one if these disputes fester.
Our entire metrics and evaluation system from the very top of the agency to the very beginning of the agency are evaluated obviously on quality and thoroughness of investigations, but also on timeliness. These measures are closely monitored. We have a whole Division in Washington, the Division of Operations, that oversees the field offices.
When a case is docketed, and we are a little unlike OSHA, every one is docketed. The moment it is docketed, we have three buckets. We call it "impact analysis," and we have Category 1, Category 2, and Category 3. Category 3 are the most serious unfair labor practice charges.
All discharges are automatically in Category 3, other forms of reprisal could be in Category 2 or 3, depending on what is alleged in the case.
Category 3 cases are given a time line of seven weeks to investigate. Obviously, the investigator starts with the charging party and the charging party's witnesses, but in that seven week period, we also expect to take evidence from the charged party as well.
Category 2 cases are nine weeks and Category 1 cases are 11 weeks.
What happens after the investigation is finished and there is a supervisor that is deeply involved with the investigator, they present the case with the Regional Director, and the Regional attorney will be there, and other personnel.
The Regional Director makes a decision as to whether the case has merit or not. Generally speaking, one-third of the cases filed with us are bound to be meritorious. The two-thirds, the Regional Director says I don't think there's merit, so the charging party is asked to withdraw it or else it is dismissed.
If the charge is found to be meritorious, the Regional Director will issue a complaint. The complaint then goes to an Administrative Law Judge. Just like the Department of Labor, we have Administrative Law Judges that hear our cases. The General Counsel has an attorney that represents the charging party. There is no private right of action. We bring the charge and we prosecute the case as the General Counsel.
The Administrative Law Judge issues a decision. That decision is appealable to the five member Board in Washington, who at some point will issue their decision, and the important part there is that Board decisions are not self enforcing, so we have to go into a Court of Appeals around the country to get the case enforced.
The respondent always has the option of filing in the D.C. Circuit. The Board files wherever the unfair labor practice charge occurred.
At all stages, from the very beginning through even when it's before the Board, we have a very active settlement program. We settle over 90 percent of the cases, and they can settle at any one of the stages. Obviously, we would prefer early settlement. We will never shut that door.
I also wanted to say that because we don't have preliminary reinstatement as Mine and Safety does -- when we issue a complaint, the Regional Director will decide whether we should seek injunctive relief. We do have the power under 10(j) of the Act to bring an injunctive action in a District Court.
However, the way the case law has developed under the National Labor Relations Act, we cannot go in just because there has been a discharge or discharges. There has to be more for us. The discharges have to have thwarted the Union campaign, the election campaign, or it has stifled the first contract negotiations. Unfortunately, it isn't enough or isn't sufficient for us to seek injunctions for all discharges.
I think I'm going to stop there and I'll wait for questions.
MS. SPIELER: Thank you, Lafe. We will hear about the FAA, and then we will ask all three of you to come back up.
LESSONS LEARNED FROM WHISTLEBLOWER PROCESSES FEDERAL AVIATION ADMINISTRATION
MR. MURRAY: Good afternoon. My name is Vincent Murray. I'm currently the Acting Manager and Chief Investigator for the FAA's Office of Audit and Evaluation, Audit and Analysis Branch, which handles the primary coordination for all of the FAA's whistleblower efforts.
Thank you for the opportunity today to come and discuss some of the unique aspects of the whistleblower law that we deal with, and more importantly, the coordination efforts that we have developed with OSHA to ensure that both the safety aspects of a complaint and the retaliation aspects of a complaint are properly investigated.
The notes that were passed out is just a quick high level data overview. As was mentioned before, this has not been thoroughly validated. Most of the data is secondhand to us from OSHA.
Take it with a grain of salt if we happen to be off a few numbers here or there. It does give you a sense of the activity that occurs in the whistleblower program in the aviation industry.
On January 21, 2000, Alaska Airlines Flight 261 lost control and crashed into the Pacific Ocean off the coast of California, killing all souls on board. The NTSB determined the probable cause of the accident to be related to the lack of lubrication of one of the primary flight control surfaces causing the aircraft to lose pitch control.
Contributing to that was some of the maintenance practices at Alaska Airlines. A former employee of Alaska Airlines subsequently filed suit claiming they had raised these very safety issues with the company years prior to the accident.
That same year, Congress passed the Wendell H. Ford Aviation and Investment and Reform Act for the 21st Century, known as AIR21, establishing the first whistleblower protection laws for the aviation industry. It was codified in Title 49, United States Code, Section 42121.
The FAA has general regulatory authority over aviation under Title 49 anyway. This particular whistleblower law generally empowers OSHA to enforce any retaliation, correct any retaliation that may have occurred, related to safety complaints that were raised by an employee of a contractor, subcontractor, or employee of an air carrier.
One of the important things to understand, while the aviation industry is very large, the whistleblower protection laws only apply to air carrier operations. That would apply to your general 121 type air carriers such as the Delta's/United's of the world. It would also apply to your commuter and on demand type air carriers, which are certificated under Part 135 of our regulations. It would not apply to say an air tour operator or a pilot school or other types of aviation activities. Just keep that in mind.
As you see from some of the statistics, we certainly didn't have the 21,000 complaints that you would see from the National Labor Relations Board. However, the FAA does investigate thousands of safety complaints annually. We get those through a number of different avenues, and the vast majority of them are never related to any sort of claimed retaliation.
You will see there was a spike in 2013 where we investigated almost 100 whistleblower type complaints. We actually in took about 165 complaints but many of those either did not meet AIR21 criteria or had already been investigated by some other complaint method.
When we intake a complaint -- let me talk about notification first. When an employee believes they may have been retaliated against for raising a safety complaint, they may bring it to the FAA first. We have local offices they can go to. We have oversight offices. There are internal reporting mechanisms.
Often we may get the first complaint of a whistleblower type case. When we do, we immediately notify OSHA of that complaint because they may be getting one shortly thereafter, and we want to make sure they are tied together.
However, there are certainly occasions where OSHA is the first to know of a whistleblower complaint, most likely because someone has taken it to an employment attorney and the attorney is then filing a complaint with OSHA on their behalf, and it is something that the FAA has not known about before.
It is very important that OSHA notify us so we can investigate the relevant safety aspects of that complaint.
Initially, some of the hurdles that we had up to a year ago in our coordination efforts with OSHA, the FAA has a centralized whistleblower oversight process at headquarters, and then we will refer those investigations out to the field.
OSHA is more regional centric, I believe it is eight regions. All eight of them would be sending us complaints. Some were better at sending those complaints to us than others. Another thing that we found was those complaints were often being transmitted back and forth by U.S. mail.
I don't know if you realize this or not, but U.S. mail is not 100 accurate, and there was no feedback loop between us and OSHA. Consequently, when we started to increase our coordination efforts, we realized there were safety complaints that OSHA had transmitted to us that never got to us and had never been addressed by the FAA. That was one aspect that we definitely had to take care of.
One of the things we have done since then is we have created an organizational e-mail box, and we now communicate with Rob Swick, a single point of contact within OSHA. One hundred percent of the complaints we get go to OSHA if they didn't come from OSHA to begin with and vice versa.
Secondly, in order to make sure that the ball doesn't get dropped anywhere, we also do a monthly reconciliation between their AIR21 cases and our AIR21 cases, to make sure there is not some sort of safety complaint out there that has not been properly investigated.
Our intake processes are a little bit different. We coordinate activities, but what OSHA is investigating related to the retaliation is very different from what we are investigating related to compliance with the Federal aviation regulations.
Consequently, even at the intake level, OSHA may find that something does not meet timely filing requirements, 91 days or greater. That doesn't matter to the FAA. We don't care if it was a year ago. If it has to do with a safety complaint, we want it, we want to be able to investigate it.
If it was related to a claim of retaliation, we will investigate it under our whistleblower process.
Conversely, just because the FAA doesn't find that a Federal regulation related air carrier safety was violated does not necessarily mean there is not merit for OSHA's purposes.
For example, if a pilot feels she was pressured to fly while ill or fatigued, contrary to Federal regulations, and refuses to fly, then no Federal aviation regulation has been violated because no operation occurred. However, the OSHA ALJs and the Administrative Review Board have held that by failing to do that, if they are retaliated against, then that is in fact a violation of AIR21.
Although the investigations are similar, there is not a 100 percent overlap.
One of the unique aspects of AIR21 at the end of the investigation is there is an opportunity in the law that the employer, if they are found to have violated AIR21, the Secretary's findings can come back to the FAA and we can then initiate a civil penalty against that organization, just for having violated AIR21, even if there was no prior violation of any other regulatory requirements.
That gets a little bit complicated because at what point in the appeal process do you determine the violation of AIR21 has occurred. Is it just when the Secretary issues the findings or is it after the appeal to the ALJ or the ALJ decision, or the appeal to the ARB or potential appeal even to a court?
Those are issues that we have to work out, but it is simple communication back and forth to ensure that gets covered.
That is generally the coverage of AIR21 and the coordination process with OSHA. I think at this time it is appropriate to open it up for questions.
MR. BAIRD: Let me just say for the record that Mr. Murray handed out a sheet called "FAA/OSHA Fact Sheet," which I will mark as WPAC Exhibit 8 for the record.
(Exhibit No. 8 was marked for identification.)
MS. SPIELER: It is open for the full Committee questions. Marcia?
MS. NARINE: I have questions for MSHA. How many mines are under your jurisdiction? Second question is how many inspectors do you have? A third question is how did funding change if any after the Upper Big Branch disaster?
MR. BAXTER: I would have to get the precise data from MSHA on that, which we can, following this. I think roughly there are 2,000 coal mines and 14,000 other types of mines in the country. In terms of funding, I don't really have the budget data. I know there were increases for certain things for MSHA following Big Branch for certain programs. What was the other?
MS. NARINE: How many inspectors.
MR. BAXTER: Again, we can find the exact data. It's less 1,000, somewhere in the range of 600-700, something like that. We can clarify that.
MS. SPIELER: I don't know if everyone knows this. Under the Mine Safety and Health Act, the mines have to be inspected on a regular basis, which makes it very different from OSHA. Underground mines need to be inspected four times a year. Above ground mines need to be inspected at least twice a year. They actually see inspectors in the mining industry as opposed to in general industry where you might or might not.
MS. GARDE: For FAA, do you take enforcement action or do you investigate the retaliation itself?
MR. MURRAY: FAA does not investigate any aspect of the retaliation whatsoever.
MS. GARDE: You rely on the Department of Labor?
MR. MURRAY: That is entirely assigned to the Department of Labor.
MS. GARDE: If you are aware of a safety concern, which has a retaliation piece of it that didn't go to the Department of Labor or didn't meet the Department of Labor statute of limitations, is that just a freebie?
MR. MURRAY: I'm not exactly sure I know what you mean by "freebie."
MS. GARDE: Any enforcement action or any disciplinary action or anything that you do with the airlines about retaliation itself, not the safety issue.
MR. MURRAY: Not about the retaliation, no.
MS. GARDE: What about Mine and Safety, do you investigate retaliation?
MR. BAXTER: Yes.
MS. GARDE: Internally? You have your own retaliation investigators?
MR. BAXTER: Yes.
MS. GARDE: If you find retaliation, what enforcement action can you take?
MR. BAXTER: In terms of retaliation of a miner?
MS. GARDE: Yes.
MR. BAXTER: You can remedy the conduct, reinstatement of the miner. There is language about cease and desist orders as referred to in the legislative history. A penalty that would deter the conduct from happening in the future.
MS. GARDE: How many retaliation complaints do you receive directly that your agency investigates?
MR. BAXTER: Again, I will have to get precise data for you. I would say it's under 200 a year.
MS. GARDE: How many investigators -- do all your investigators -- are they qualified to investigate retaliation claims?
MR. BAXTER: Yes, there's training that special investigators go through. At the Mine Academy in West Virginia, there is a course of training. They have a number of classes. It is a graduated program. It takes a while, while they are working in the field at the same time, to finally get their credentials. Lawyers play a role in the training as well.
MS. GARDE: When you find retaliation has occurred with a miner, are those publicly published decisions? If it is against a worker, can he appeal in front of an ALJ?
MR. BAXTER: For us to bring the case, if we bring the case before an Administrative Law Judge, yes, that is going to be a published decision.
MS. GARDE: You said you bring the case. Does a worker have a private right of action?
MR. BAXTER: They ultimately do if we decline to bring the case. They have private right of action. That also would be a published decision.
MS. SPIELER: Can they intervene individually in the cases that MSHA brings?
MR. BAXTER: Under the Commission rules, they are parties to the case themselves. We are working in effect in a joint representation setting with them. They are parties to the case. Quite often they will have private counsel participating.
MS. GARDE: Do you know off the top of your head what section of the statute refers to this remedial relief?
MR. BAXTER: Sure. Section 105(c)(2).
MS. GARDE: Those are my questions. Thank you.
MR. FRUMIN: Emily?
MS. SPIELER: Go for it, Eric.
MR. FRUMIN: Lafe, could you tell us something about how OSHA and the NLRB sort out who moves if a complaint is filed with OSHA and a charge is filed with the Board, similar sets of facts that are relevant? From your standpoint, how do you look at the question of parallel action?
MR. SOLOMON: Back in the 1970s, there was a Memo of Understanding that was published in the Federal Register between OSHA and the NLRB. That Memo of Understanding was that basically the NLRB would stay its hand and OSHA would take over.
That Memo of Understanding is little known at this point, I think, either at OSHA or at the NLRB. In practice, I think both agencies just do their own thing, unless someone calls it to the other's attention. One reason I'm on this detail is to change that practice. I believe there does need to be coordination and communication between the two agencies. That is something that is a work in progress.
MR. FRUMIN: Thank you.
MS. BARBOUR: I just wanted to add to that. I brought that issue up yesterday at the 11(c) Work Group meeting. It is something that is on that working group's agenda to explore more and perhaps hopefully come up with some recommendations on it.
MR. KEATING: For the FAA, you mentioned there is no jurisdiction over retaliation claims; right?
MR. MURRAY: Correct. The section of the law, 42121, that created the whistleblower protections assigns sole responsibility to the Department of Labor through OSHA for investigating and correcting or ordering any relief based on the retaliation.
MR. KEATING: I think you also said just because OSHA does not have jurisdiction, for example, because 90 days has passed, you will take on the investigation of safety. My question is is there any statute of limitations for how long you have to do that or is it open-ended?
MR. MURRAY: No, there is absolutely no statute of limitations. When we started increasing the coordination efforts between OSHA and the FAA about a year ago, we actually found some cases up to three or four years prior that OSHA knew about but we never knew about.
We conducted a full intake analysis on those, and if those were issues of an alleged violation of a regulation, order or standard, we went ahead and investigated them.
MR. KEATING: What are the remedies against carriers to the extent there are deemed to be safety violations? Are there fines?
MR. MURRAY: Generally speaking, for a certificated operator like an air carrier, it would be a civil penalty. There is the option if it is very egregious of actually suspending or revoking their operating certificate, but that would be a very egregious last ditch kind of situation.
MR. EHERTS: It has to be a safety complaint?
MR. MURRAY: It has to be related to a safety violation; that's correct.
MS. SPIELER: I am actually interested in these relationships between the agencies, leaving the Board aside for a moment. At MSHA, the relationship between the retaliation and the safety issues, I don't know if you know this because this is on the agency side, if somebody files a retaliation complaint with MSHA that has an underlying safety issue, how is that handled in terms of going out to the mines to inspect for the potential safety violation?
MR. BAXTER: It would be referred from the special investigator to an inspector in the field office.
MS. SPIELER: Is that in the field manual, is it just practiced? Is it in the regulations anywhere?
MR. BAXTER: I don't know if it's in a manual. I know it is certainly the practice, if a safety issue is raised, they are going to look into it.
MS. SPIELER: At the FAA, you said something and I'm not sure I heard it right. You said if OSHA finds merit in the AIR21 retaliation case, you can issue a civil penalty against the carrier because of the retaliation finding?
MR. MURRAY: That's correct. For example, let's take the case I used where the pilot refused to fly because it would have violated duty time regulations. Because they refused to fly, no operation occurred. Because no operation occurred, there was no violation of an FAA regulation at that point.
OSHA can do their retaliation piece and say if this person was retaliated against because they refused to fly, because they refused to violate a regulation, that company has therefore violated AIR21. That Secretary's findings letter comes back to us and then we can initiate a civil penalty just based on the violation of AIR21.
MS. SPIELER: Okay. That is very interesting.
MR. KEATING: In effect, there would be a double penalty against the employer?
MR. MURRAY: There could be a penalty for the safety violation if one occurred, and then there could separately be a penalty for violating AIR21 if the Secretary found that.
MS. SPIELER: At MSHA and the Board, when someone brings a complaint, are they always docketed? If I phone the agency and say I think I've been retaliated against, whatever language someone would use, does it somehow get docketed?
MR. BAXTER: Yes, it's tracked internally.
MS. SPIELER: Even if it is ultimately deemed frivolous?
MR. BAXTER: Yes, it is tracked internally and investigated.
MS. SPIELER: What about at the Board?
MR. SOLOMON: We have information officers in every office that handle phone calls and visits. Every one of those contacts is recorded. If the person files a charge, and that requires a signature from a person, then all of those charges are docketed.
MR. MOBERLY: Mr. Baxter, you were asked about relationships between special investigators when they found out about underlying safety violations, that would report that to an inspector who could then deal with the safety part of it.
There are a group of inspectors that deal with the safety part and special investigators that deal with the retaliation part; is that accurate?
MR. BAXTER: Yes. The special investigators typically had been inspectors prior, they deal with the discrimination issues. They also do other kinds of investigations, for example, should there be civil liability of a high level supervisor for violations. That is another big portfolio they have. They are separate from the inspectors in the field who deal with health and safety issues.
MR. MOBERLY: My question is does it go the other way, does it go from safety inspectors who might find out about retaliation issues talking to the special investigators about those?
MR. BAXTER: We need the complainant to actually instigate the case and bring it forward to us. That is the trigger for us. They have materials that can be provided, they can explain how the process works. The complainant needs to start the process for us.
MS. SPIELER: There is also an inspection process in MSHA, right? There are workers involved in the inspection process.
MR. BAXTER: Exactly. There is a provision, 103(f) of the statute, that provides for miner representatives. They can be designated at the mine. They can accompany the inspector on the mine visit. They can have some participation in the inspection as well.
MR. FRUMIN: I wanted to ask all three agencies, is there a difference between someone who complains about a violation of a safety rule and someone who complains and then suffers retaliation as a result, or someone who files a complaint about retaliation but they have never been a complainant to the agency. I'm wondering whether in your investigation and enforcement protocols there is any consideration given to heightened sanctions in the event the employer retaliates against someone who has begun his involvement by filing a safety complaint of some kind with the agency?
In other words, we are now dealing with someone who is an informant with the agency and part of the agency's enforcement process, and now is being retaliated against as an informant to the agency, not retaliated against for other reasons within the workplace, does that kind of retaliation against agency informants trigger any particular special treatment or action by the agency?
MR. BAXTER: From MSHA's standpoint, all of the incidences you mentioned are covered. They are all going to be treated =- I don't know if any would have a particular priority that the agency would give. They are all covered by the statute.
Those scenario's could play into the civil penalty that the agency assesses. It could be more egregious conduct if someone was fired for participating in a Mine Act proceeding, for example.
MR. FRUMIN: That is what I am wondering. Do you have a policy, for instance, on increasing the penalty calculation under those kinds of conditions? Is that somewhere in policy already?
MR. BAXTER: Our penalties are especially assessed. They look at each penalty individually in this context, and that is a factor that goes into it, what type of protected activity occurred.
A type of protected activity like participating in a proceeding, all things equal, might result in a higher civil penalty.
MR. FRUMIN: Could you provide us at some point with that policy?
MR. BAXTER: I will get with the agency on that.
MR. FRUMIN: Not today, but thank you. How about the other agencies?
MR. MURRAY: From the FAA, it's not required that we have an enforcement policy that affords a higher penalty if they were a whistleblower because we would have a separate civil penalty if they were found to have violated AIR21, so it's already covered.
MR. FRUMIN: The Board?
MR. SOLOMON: The remedies under the National Labor Relations Act are quite limited. We can't fine, we can't issue penalties. All we can do is make whole. I don't think the predicate for your question is going to apply for us.
MR. FRUMIN: Thank you.
MS. NARINE: Since Eric has asked you for something very specific, Mr. Baxter, I did ask you for information. I don't actually need you to get it for me. I know you were being polite saying you would get something, but now that Eric has asked you for a specific deliverable, I want to be clear that I don't need you to get me statistics about your funding or anything like that.
MR. FRUMIN: Marcia, you're making me look bad.
MS. NARINE: No, not at all.
MR. BROCK: I just have a brief question for the gentleman from the FAA. Looking at the sheet you passed out, could you say a little bit more about the findings of merit? You have the category that says "OSHA Findings of Merit." Could you talk about sort of the equivalent for the complaints that you investigate at the FAA?
MR. MURRAY: In the FAA, we don't use the term "merit" or "no merit." We either find a violation of a regulatory requirement or we don't. It is a simple preponderance of the evidence, and based on that and based on our sanction guidance table, we determine what enforcement posture we would take based upon that violation.
For example, we could find a violation but if it was a very low risk kind of violation, it can actually be handled with a verbal reprimand and simply recorded in a database.
If it was a little bit higher risk, it could be handled with a written warning or perhaps some sort of designated corrective action which would be documented.
If it is a higher risk kind of thing or if it was an intentional act, then it would warrant either a civil penalty or some sort of certificate action if that was called for.
MR. BROCK: This 41 percent, is that relative to the AIR21 complaints on your first line?
MR. MURRAY: The 41 percent is of the allegations that a regulatory requirement -- I should say a regulation, order or standard related to air carrier safety, in 41 percent of the cases we substantiated that a violation of some sort occurred.
One of the unique aspects, we obviously can only take enforcement action if a specific regulatory requirement has been violated. When we conduct our safety investigations, we also look for, under the law, whether there was a violation of a safety standard that may not be a specific regulatory requirement.
An example might be our engineers get it because they deal with all sorts of National Institutes of Standards and Technologies, and there is all sorts of standards that go into metallurgy and things like that.
In the operational world, it might be something like an advisory circular. In an advisory circular, we teach our inspectors it is advisory, it is one way but not necessarily the only way to meet an outcome, whether it is to comply with the regulations or meet a specific safety standard.
An air carrier would have the option to either do it exactly the way the advisory circular says or do it in some other way that meets an equivalent intent.
If we do an investigation, if there is an allegation and we do an investigation and determine they are not doing it in accordance with the advisory circular nor are they doing it in any other way that meets the same safety standard, we will substantiate that allegation.
The corrective action that follows may be different than a regulatory enforcement. It may be a simple notification to the air carrier that we found they did not meet the standard. It may be some sort of follow up action required by the oversight office. They might have to change their policy, change their manuals, something of that nature, which would not necessarily be regulatory in nature.
In 41 percent of the cases, we found that some sort of standard, regulation or order was not followed.
MR. BROCK: Thank you.
MR. MOBERLY: This is actually for Mr. Baxter and Mr. Solomon, MSHA and NLRB. If you heard some of our other presentations, we are looking at 11(c), a very old statute, and ways we might improve that to protect whistleblowers and make their complaints more effective.
I'm curious as you look at your statutes, what do you think in your statute is essential for whistleblower protection that you would keep and what would you like to see if you ruled the world to improve your statute to better protect whistleblowers?
MR. SOLOMON: I have to be a little cautious because this is an open meeting.
MR. SOLOMON: I certainly think the statute of limitations for 11(c) being 30 days has to be a deterrent.
MR. MOBERLY: You can talk about 11(c). I'm interested in your thoughts on your statute.
MR. SOLOMON: In our statute, we have 180 days. I think the biggest weakness in the National Labor Relations Act and certainly a lot of people have commented on this, is the lack of remedies. We can only do make whole. That is reinstatement with back pay. We are limited in the use of injunctive relief.
Obviously, there is a long delay that is possible, and the other part of this being the Board decisions are not self enforcing, so to go through the whole process of the Administrative Law Judge, the Board decision, Court of Appeals, and then you can go to the Supreme Court, it can be a quite lengthy drawn out process.
MR. MOBERLY: Thank you.
MR. BAXTER: I won't go so far as to say what we need or don't need, but I will say as I mentioned earlier MSHA has been having a lot of success with the temporary reinstatement provision of the statute. Often the number of cases that we filed under that has gone up. I think that encourages miners to pursue their claim on the merits at the same time.
I mentioned earlier the time frames that MSHA has to focus on moving their cases, and yet they are not necessarily fatal to the case if they miss them. That is also lenient for us.
In terms of the remedies, we do have a penalty. We do have a good range of make whole compensatory remedies as well.
MR. MOBERLY: I think you gave us the number of cases for temporary reinstatement that you brought, a huge increase recently. Do you have numbers on how many you win of those when you bring those cases?
MR. BAXTER: A temporary reinstatement, it's a very high number. There has only been a handful of temporary reinstatement cases that we have actually taken to hearing and lost in recent years. There have been more cases that we found, many more cases we found to be frivolous and haven't gone ahead and filed.
Given the low bar, and there was a 2009 case or January 2010 case, I think, from the Commission that clarified that it is a very low bar to meet. Given that, we win the vast majority of those cases.
MR. MOBERLY: Thank you very much.
MR. MILES: I'm just going to jump in here and give you the OSC perspective. In the Federal Government context, just on those three issues, statute of limitations, available remedies and injunctive relief, OSC has no statute of limitations.
A Federal employee can file a complaint with us whenever they want. It's not a huge issue, to be honest. We are still very good at weeding out frivolous complaints, 90 percent of them don't get an investigation of the 3,000 we get, and the bulk are alleged prohibited activity that occurred within the last year or so. It is not a huge problem to have that.
The Federal Government is a little bit different because the presumption is there should be absolutely no retaliation, the taxpayer shouldn't be paying for that. That's one difference.
On available remedies, until recently, it was just make whole remedies, where consequential damages, which wasn't very well defined in the case law, but now there is compensatory damages, and I really see it as an obstacle to us being able to settle cases.
Now complainants are looking for paydays rather than just trying to get back on their feet. In the bad cases, in the very blatant retaliation cases, we were able to settle them very creatively when the agency wanted to, so the availability of compensatory damages doesn't necessarily make a huge difference.
I'm at a public forum. I'm sure I'm going to get in trouble for that one.
Injunctive relief has been critical to OSC's enforcement efforts, especially in the last two and a half years since there has been a new Special Counsel. We have made much greater use of our ability to seek stays, to allow us to investigate cases.
Formally, through the Merit Systems Protection Board, and that is really where we have tried to advance the law on retaliation, just because the burden is very easy to get a stay and we can at least get some Board non-precedential decisions on kind of interesting questions, but also just the fact that we can seek that stay formally has convinced agencies to play ball with us when we ask them to hold off on a suspension or hold off on a termination so we can complete our investigation.
I would say that piece is really critical in our enforcement efforts.
MR. FRUMIN: To the MSHA representative, the lack of worker complaints at the Upper Big Branch mine was quite a startling finding to a lot of observers.
I wonder whether there were any particular top line take home lessons to MSHA and the mining industry about the significance of the fact that notwithstanding the extensive rights miners have, the presence of MSHA at the mines, that you didn't get any complaints about those horrific conditions literally for years.
MR. BAXTER: I suppose it's really up to Joseph Main, the Assistant Secretary, to address that. He has addressed that and he testified before Congress following Upper Big Branch, and he made that point, that at this particular Massey mine, there was a culture of intimidation and miners were not comfortable in terms of coming forward with safety complaints.
The kind of complaints at Upper Big Branch, the conditions and problems there were very obvious. There was a lack of rock dust which would prevent or mitigate a coal explosion from going through the mine. That would have been very easy to remedy and certainly was apparent.
This is not at all to fault the miners. Mr. Main's testimony showed it wasn't a place where people would speak out. MSHA actually held a public hearing in West Virginia to hear from friends and family of the affected miners, and the accident investigator of Upper Big Branch interviewed about 260 people who had been involved at the mine.
This theme came through that there wasn't the comfort level of raising those issues.
That is a take away that we need to focus and we do focus on this statute very seriously and try to prosecute it very vigorously.
MR. MURRAY: If I might go back for just a second. When the discussion took place with my colleagues about their statutes and what changes might be beneficial, I initially thought I was off the hook because our statute basically speaks to the Department of Labor, not FAA.
MR. MOBERLY: That is why I didn't ask you the specific question.
MR. MURRAY: Yes. Unfortunately, I recalled a recent ALJ decision which may in fact have bearing on that. Obviously, it was Congress' intent that air carrier employees, contractors and subcontractors be able to freely report safety concerns without fear of retaliation.
There was a recent case -- it's a matter of record but I'll use some generic's -- large air carrier, international air carrier, in which a worker who lived and worked in a foreign country reported some pretty serious safety violations, falsification of maintenance documents and things like that.
We substantiated virtually everything that he reported. When it went to the ALJ, the ALJ determined that under extraterritoriality law, because Congress did not specifically extend coverage of AIR21 internationally, that worker was not covered.
I don't know where it will go in the appeal process from here. That was definitely one that caught me as a safety investigator by surprise, wow.
As large as our air carriers are, particularly with the consolidation that has occurred within the industry, as many places as they fly and as much of their traffic that is in fact international, that could have a very large impact on safety reporting outside the United States.
MR. EHERTS: I have a question to kind of follow up on Eric's with Mr. Baxter. This culture of intimidation at the Branch mine, would it raised to the level of interference with the exercise of statutory rights? Would that be a violation of 105(c)(1)? Do you have to have something else happen?
MR. BAXTER: Certainly, threats, telling workers don't report this, don't talk to MSHA, that could be seen as interference with their statutory rights; sure.
MS. SPIELER: Would the individual have to bring a complaint then?
MR. BAXTER: Yes.
MS. SPIELER: This is actually interesting in terms of the conversation we were having earlier. If there is a situation of intimidation so that no one is willing to come forward, but the mine inspector is there and does a walk around and thinks there is significant intimidation, is there any way the mine can be cited outside of 105(c) for intimidation around safety issues?
MR. BAXTER: No, for interference cases, any discrimination case, you do need a complaint to be filed. There are other avenues for getting at health and safety complaints. Our statute provides under Section 103(g) what are called "hazard complaints."
MS. SPIELER: We are specifically interested in the question of intimidation, and if there is a way for the agency to get -- I know the Board can under 8(a)(1), but can MSHA get intimidation around safety without it being a specific safety complaint and without an individual alleging retaliation under 105(c)?
MR. BAXTER: If there is a miner complaint -- we do need that.
MS. GARDE: I have a question and an answer, although I don't speak for the NRC. The NRC does have that authority and they have shut down plants when they lost confidence that workers would raise concerns.
It wasn't a specific complaint. It really was just the conclusion that they no longer had reasonable assurance that workers would raise safety concerns, and then they had temporary loss of their license until they could demonstrate they had that confidence.
MS. SPIELER: Interesting.
MS. GARDE: They have exercised that authority.
My question to FAA, you started your discussion today about the Alaska Air accident. I actually knew a family that was on that flight and have followed that pretty closely.
When you receive a safety complaint about a valve or some piece of equipment, does the FAA ever look to see whether or not that concern was raised internally before it came to your attention in some form of an incident? Do you do that type of kind of cultural or human factors assessment?
MR. MURRAY: It's not written in any policy requirement in the inspector's handbook. It would be part of a thorough investigation of whatever incident occurred. We have a database that includes complaints and regular surveillance items that we have found on our own surveillance.
If those types of things had come up in prior complaints, then they should be available to whoever is conducting the investigation of a particular incident.
MS. GARDE: I've seen it in your FAA reports after an accident. My question is before an accident happens. Are you in any way tracking whether or not a safety concern that goes back to a company's culture and somebody attempted to raise it, it resulted in an accident, but you are looking for those to prevent that?
MR. MURRAY: That is in essence where FAA's safety model is today. Because the actual accident rate itself has gotten so low for so long, we don't have == we have had to change our business model from investigating accidents and trying to prevent those accidents from happening again to looking for the precursors to accidents.
MS. GARDE: Is that one of the things you are looking for?
MR. MURRAY: Absolutely. We have an entire integrated safety analysis system that is intended to do exactly that, to look for pieces of information that at first glance may be completely unrelated but when combined in aggregate, actually point to at least a risk if not a defined problem, it is at least something we can look at to quantify the likelihood and severity to determine whether mitigation is required or not.
MS. GARDE: Is that something I could find on your website or is it in an inspection manual?
MR. MURRAY: Yes, if you look under ASIAS, that is the overarching program designed to kind of collate at a high level individual pieces of data that may be unrelated.
MS. GARDE: Thank you.
MR. EHERTS: As a manufacturer, we keep that information also when it comes to critical parts and any issues we have internally.
MS. SPIELER: I would just like to ask one question because it's an issue that comes up around the statutes under OSHA's jurisdiction, particularly of MSHA and the Board.
How do you approach mixed motive cases? There are various ways in which the statutes at OSHA investigates written motivating factors, substantial factors.
I'm curious as to how under your statutes you approach that and to what extent you think it matters. That is my first question.
My second question is for Lafe, which is there is no private right of action under the Board, and there is an informal appeal of failure to issue a complaint, similar to the 11(c) process. If there is any time left after the first answer, I'm interested in knowing whether you have thought about the issues of lack of private right of action under the Board process.
MR. BAXTER: Under our statute at MSHA for mixed motive cases, it tends to come up more on the merits than the temporary reinstatement cases where we are just looking at whether it is not frivolously brought.
We do have a burden shifting provision. Ultimately, the complainant is going to have to show -- meet about four tests under some early case law that we have had, under Commission case from 1981 and 1982.
MR. SOLOMON: We also have a lot of case law, and there is a burden shifting. If it is a he said/she said type of case, we will issue a complaint and allow the Judge to sort out the factors.
On the appeal process, I now feel very strongly. After three years, I now have an agenda once a week for appeals from cases that were dismissed by the Regional Directors. I feel it is a very worthwhile process. There were cases that I disagreed with the Regional Director.
MS. SPIELER: Let me intervene because I'm not sure everyone understands what you are saying. Lafe is now talking about the cases in which there is essentially, as in 11(c), no finding of merit, so it goes up to the Central Office for review. I have a hard time thinking of it as an "appeal." For review, to see whether it was appropriately dismissed.
I wasn't really asking whether the review should happen, absolutely a review should happen. I was curious about what you thought about the fact that at the Board, unlike at the EEOC and under most of the statutes that OSHA is dealing with, there is no way out for the individual.
After the informal appeal, if there is an upholding of the dismissal, then that is it for the complainant.
I was curious how much you had thought about what the impact would be on Board process if there were a private right of action.
MR. SOLOMON: It would be a huge impact. If as under some of these statutes you have an automatic right to an ALJ hearing, that would be a huge change. All those people that filed an appeal would probably then want to go to an ALJ hearing. There would certainly be resource issues that would have to be addressed.
I haven't spent a lot of time thinking about whether if I were rewriting the National Labor Relations Act, would I put in a private right of action. It's only since I've been here I have even contemplated such a thing.
I think one reason the Act has been successful, if you are willing to call it that, is in the prompt resolution of disputes, and part of that promptness is if the General Counsel says it's not meritorious, that's the end of the game, then I think all of that would be changed under a private right of action.
MS. SPIELER: Anything else?
MS. SPIELER: Thank you very much. I think it is incredibly helpful for this Committee to get a sense of the world out there, how retaliation is being dealt with, and the three models, they are all different, they are different from 11(c), and from some of the other statutes OSHA investigates.
I think it is very useful for us and we really appreciate you having taken the time to do this. Thank you very much.
The next item on our agenda is time for public comment. Mr. Renner, were you planning to speak? If you could identify yourself fully, that would be great.
MR. RENNER: My name is Richard Renner. I'm an attorney at Kalijarvi, Chuzi, Newman and Fitch here in Washington, D.C.
I really just have a few remarks I wanted to make, things that I thought might be helpful to the Committee from what I have heard.
This morning, there was some issue about training and the availability of training in the whistleblower are. I wanted to let you know that as part of the National Employment Lawyers Association, I participated in a seminar here in Washington, D.C. last October. This is the brochure that we had for our program called "Shining the Light on Whistleblower and Retaliation Claims."
The materials from this two day seminar are available for purchase from NELA at NELA.org.
We had 150 whistleblower advocates from around the country and expert panels on a wide variety of whistleblower topics, including many that addressed the Department of Labor process, and our thoughts as advocates about how we work around some of the weaknesses in the law, such as those in 11(c), and the alternatives available to whistleblowers.
I would recommend those materials to people looking at this area.
At a previous NELA event, Kim Bobo of Interfaith Worker Justice, asked me if I could take all of whistleblower law and summarize it on one page for their low income worker clinics around the country. It turns out I could not.
I could do it on two pages, and I brought those two pages here. They are also available on my web page. There was a flyer designed to help those people doing intake, typically law students helping at the low income worker clinics, to help them identify the applicable laws and get the initial complaint filed on time.
Particularly for the 11(c) and environmental complaints, which have to be filed within 30 days -- this is a huge issue, in catching those issues in the field quickly and getting the complaint filed on time -- this is my flyer that intends to do that, on two pages.
MR. MOBERLY: What size font do you have on there?
MR. RENNER: 12 point. It is available on my personal web page, www.taterenner.com/whistleblowerflyerforclinics.pdf.
One thing that this slide tries to do is it encompasses not only the Directorate of Whistleblower Protection Programs Acts, but also the Fair Labor Standards Act and the Family Medical Leave Act, which are enforced through the Wage and Hour Division, and the NLRB process, which I think is really under utilized, particularly among low income workers who are non-unionized but still engaged in concerted activities. How to file and initiate those complaints is addressed here.
In preparing this, I noticed that one thing that Wage and Hour Division does that I do not see the Directorate of Whistleblower Protection Programs doing is providing for immigration certification for those undocumented employees who report violations of the law and would meet the requirements for an U Visa in immigration law.
Since Wage and Hour Division is part of the Department of Labor, it seems to me a fairly straightforward stroke of the pen type of policy change to make sure that undocumented immigrants who file whistleblower complaints get those same services that are available through the Wage and Hour Division.
Particularly with the enactment of the Food Safety Modernization Act, which covers 20 million American workers, many of whom are undocumented immigrants, I think this would be an important policy step to take.
I understand yesterday the 11(c) Work Group asked about getting a list of laws that protect whistleblowers but are not enforced through the Department of Labor. I have prepared such a chart. It is on my personal web page, www.taterenner.com/fedchart.php. There are about 90 Federal laws that I have collected so far.
My colleague, Ann Lugbill, of Cincinnati, started this list, through the National Employment Lawyers Association, I've helped maintain it. We keep a collection of those laws that protect whistleblowers. There are a wide variety of enforcement schemes that Congress has used among those various laws.
Finally, I have been working the last week on a Brief for the Fifth Circuit that compared the charge filing requirements of SOX with that of Title VII, enforced through the EEOC.
It gave me a renewed appreciation for the way in which the Department of Labor has structured in its whistleblower rules a very open-ended opportunity to initiate complaints and have cases decided on the merits. Really, keeping an eye to minimizing and reducing the impact of administrative hurdles that might prevent cases from being decided on the merits.
I just wanted to express my appreciation for that foresighted way in which the Department of Labor regulations are written.
MS. SPIELER: Can you be a little more specific about the differences between the EEOC process and the DOL process that you are referring to?
MR. RENNER: Absolutely. In the Department of Labor process, no particular form is required for the initial complaint. Indeed, they will accept oral complaints. Typically, I will fax in a letter to commence the proceedings. The adjudication of the case very specifically is based on an assessment of the original complaint and consideration of the additional information obtained from the complainant through the interview.
By making clear that the Department does not expect the initial complaint to provide all the required information for adjudication, that should be a very clear signal to the Federal Courts that in determining whether or not a complainant has met the traditional requirements of exhaustion, they should not be looking at the four corners of the complaint, because that is not what the Department of Labor does.
In a case called FedEx vs. Holowecki, the Supreme Court made clear that we do not impose the Federal Court pleading standards on administrative complaints, but we have to look at the rules of a particular agency. That gives added importance to the way in which the Department of Labor has framed its rules.
In the Title VII arena, EEOC, particularly for Federal employees, has required that a complaint set out the basis of the charge, and there has been a split of authorities on whether or not an employee who checked off race, sex, national origin, or religious discrimination, and later discovers they really had a retaliation claim because the true motivation turned out to be a reprisal for their protected activities.
There is a split of authorities about whether or not that claim will even be adjudicated if the right language wasn't used in the original charge.
In the Department of Labor, if a charge had a mistake in it or new information adds insight into the way in which it should be pled, the Department of Labor has something very similar to the Federal Rules, Civil Procedure 15, in 29 C.F.R. 18.5(e), which says that a complaint can be amended, and the complainant can do that once as a matter of right before an Answer is filed, and typically when we don't have Answers filed, that means at any time.
You get one free amendment. After that, you need to ask for permission, but that permission is usually allowed, when it assists adjudication on the merits.
In EEOC, claims are allowed to be amended or supplemented to add like or related claims. It doesn't sound like much, but it has been enough so that there is a divergence in the case law between the way cases are decided at the Department of Labor on amendment and pleading issues, and on the way they are decided under Title VII.
We had a number of very good decisions in the early 1970s under Title VII about the remedial purpose of the law. Since then, I've seen increasingly Federal Courts that take advantage of whatever requirements are set up in the rules and regulations to trip up a complainant from getting to a decision on the merits, to do precisely that.
MS. SPIELER: Thank you. Anything else?
MR. RENNER: Thank you very much.
MS. SPIELER: Thank you. I know others have not signed up, but if there is anyone else here from the public who would like to say anything, we are open to that.
MR. SWICK: No response.
DISCUSSION OF NEXT STEPS
MS. SPIELER: We are moving to the final discussion of next steps. I have some barely comprehensible notes here.
I think in the context of each of the work groups, that there was a conversation both about work plans and about issues that the Work Groups would like to continue to discuss.
I'm going to assume that we don't have to revisit and re-summarize that at this point, and the Work Group Chairs will take that and continue that work.
There are, however, a number of issues that came up in the course of our meeting that I thought were in one way or another cross cutting issues that perhaps it would be useful for us to touch on, and maybe just agree that we should have them on the next Advisory Committee agenda as separate items, apart from the Work Group reports.
Over and over again, we have discussed data issues and metric issues. I'm talking about data that would be useful to the Work Groups, data that would be useful in thinking about programmatically, and the question of what data is being collected by the Directorate going forward as the Directorate develops its data gathering mechanisms.
We had a brief conversation over lunch about this, and I suggested that we at least have -- I actually suggested two things. If each Work Group has specific data that you think would be useful to the Work Group activities, I would suggest you put that on a Work Group agenda and we communicate that to the Directorate.
I want to say on behalf of the Directorate and the Department of Labor, I am aware the data gathering capacity isn't necessarily what we think it should be. I would urge as we make these suggestions or requests, we understand that it may not be possible for them to provide those data in the short term, and I can't say about the long term.
Nevertheless, I think it might be useful for the Directorate to know what we would like to have so that it could be part of your thinking.
My inclination right now is to put the data question on the agenda as a separate agenda item at our next meeting, largely because I don't necessarily think that a fully thought out recommendation to OSHA about data would necessarily yield what we want given the limitations of the systems.
On the other hand, I do think it would be useful for OSHA to hear from us in a brainstorming session about the kind of data we would hope you would move toward collecting in the whistleblower arena, and for me, I have to warn you, that includes being able to track cases beyond what you think of as your jurisdiction.
It would be what happens when it goes to SOL and what happens when it goes to the ALJs. That creates a different issue, I think, for OSHA. I do think it would be worth having a conversation about that.
I am just going to run through these and then we can revisit them. The second cross cutting issue, and I don't have a solution for this one, maybe I have a suggestion, what I had under the rubric, not incentive programs, but under reporting challenges.
That is a theme that has clearly come up in all three of the Work Groups. I'm not sure it can be pulled out of any of the Work Groups. I think it has a different character in each of them. At some point I think it is important for us as a full Committee to have a full conversation on it from different vantage parts.
I think we got stuck in part on the recommendation that came from the 11(c) Committee because we don't have a shared understanding of some of the information.
Again, I would suggest -- I know there is an issue in Best Practices, there is an issue, for example, that the Best Practices Subcommittee may take up on the question of whether it should be part of VPP. There is the issue of what I think of as non-whistleblower enforcement, is there some way for OSHA to address this issue of pressure to under report independently of the retaliation process.
I thought it was interesting that MSHA can't and apparently didn't include that in their post-Upper Big Branch analysis.
That is an issue that I know 11(c) will continue to discuss. In any event, I think that issue we should bring back as a cross cutting issue for Committee conversation later. It may simply grow out of the Work Group reports, but it may require something more integrative.
Third, we haven't really grappled with the issue of training and we didn't set up a work group on training, although we had talked about that 14 months ago. It keeps coming up. It came up again also in Nancy's, I thought, very good suggestion about thinking about a grant program on training for this and that would expand the availability of training monies.
Again, I think maybe we want to put that on a future agenda and then decide how we would like to proceed with it. I don't think it necessarily fits under Best Practices, which would be external to the agency, and I don't think it fits under the other Work Groups.
There were two essentially what I think of as process issues that I'm pondering. One is this question of how to bring to the full Committee issues that don't really fit within the Work Groups but which the Committee as a whole is clearly interested in.
I'm suggesting that we start those conversations by having those issues on the agenda as separate issues, maybe just as brainstorming, where we can ask questions of OSHA, and we can then decide how we would like to proceed.
The second is this question that I think was interesting that came out of the Transportation Committee about the issue of how much consensus at the Committee level before something is surfaced -- at the Work Group level before something is surfaced to the full Committee.
I came away from that with the sense and I thought it reflected what I felt in the room, but that may be presumptuous, that there are times when there may be disputes within the Work Groups that should be surfaced to the full Committee for a fuller conversation.
That might result in referral back to the Work Group or it might result in some other outcome. We shouldn't having set up the Work Groups use them to keep important issues from the full Committee's education and deliberations as we go forward.
That, I would say is something that the Work Group Chairs need to think about.
Finally, I think there is this lurking question of interagency functioning, which comes up in different ways. We need some representation on the Transportation Committee in order for them to go forward on some important issues, as one example.
We need to understand better and perhaps you can help us with that, what MOUs are in place, which ones are currently undergoing revision. If you don't feel you can tell us what the revision is, okay, but we should at least know you are addressing these issues. Where can we be helpful in thinking about that.
I think we need to think with more clarity about this question, interagency intersections.
One last thing, it is clear to me in the course of this, I thought this was valuable use of however long, an hour. There are a number of agencies that have come up, again, from outside OSHA or outside DOL, that we have not talked to. I would include the SEC, the NRC.
I could be persuaded, although I'm not sure, to include EEOC and Wage and Hour, all of which handle different statutes in different ways, but I think it would be illuminating, particularly for those members of the Committee who have the tendency to work in one arena but not across arenas to hear the variability and sort of strengths and weaknesses of different programs.
I would suggest at our next meeting we again have some time to do a similar kind of session.
MR. EHERTS: In fact, a number of the questions asked by 11(c) were answered.
MS. SPIELER: They will be answered differently by each of the agencies.
MR. EHERTS: Exactly.
MS. SPIELER: I'm sure we will all rush to see the 90 statutes that Mr. Renner has cataloged.
MR. EHERTS: That was on our list in 11(c).
MS. SPIELER: Those are the issues I saw coming out of this meeting that need further thinking. I obviously will be talking to the Work Group Chairs. I would like the Committee's input in thinking about this.
We are going to come up with every six months, I hope -- Rob and I have discussed the fact that we are going to try to set up a future schedule, so we can actually have this on our calendars.
I assume we will be discussing whether we should do it in conjunction with Work Group meetings in the same way we did this time.
What would you like to expand on that I have not mentioned? Nancy?
MS. LESSIN: I'm in favor of everything you said. I wanted to take a little longer look at the issue of under reporting challenges. It is interesting to me that most of those who weren't prepared to move on were the same people as those who aren't on the Work Group. I think on our Work Group, we had a fuller, deeper conversation that others weren't privy to.
I'm wondering how to really address that. I think sort of in the thinking here, it's like let's get agencies in front of us, and what I'm thinking is let's get some of the victims in front of us.
I would like time for those who have experienced this kind of retaliation for reporting an injury to not be a statistic for this group. I think it is very important that we have some examples of people whose lives have been wrecked by this branch of retaliatory employer behavior.
I think at times this issue of retaliation for reporting an injury or illness has been characterized as narrow when we look at the 22 statutes, but I think when we look at the data that comes in in terms of the cases that are coming into the agencies under FRSA and OSHA 11(c), I think that says this is not a narrow issue, it is a huge issue.
It is what OSHA is spending a whole lot of time and energy on. It is what whistleblower investigators are spending a lot of time and energy on.
I would like to consider bringing some of those who have experienced this kind of retaliation to talk about what it looks like, what it feels like, what it is doing. I do think there isn't an universal experience with this kind of whistleblowing. I want to make that as a suggestion.
MR. EHERTS: With the caveat no open cases?
MS. LESSIN: No open cases.
MS. SPIELER: Other ideas, suggestions? We clearly have too long an agenda for our next Committee meeting.
MR. MENDELSON: Given that you have such an aggressive agenda and you don't even have a meeting schedule, my staff wanted to proffer that there seems to be some recommendations that the Work Groups are very close on and maybe just need a little more time, instead of waiting six months, if you wanted to have a telephonic meeting, giving whatever notice requirements were needed for that, in the interim, that might be something you might consider so you don't have to wait six months on things you are close on.
MS. SPIELER: I frankly have resisted the notion of trying to chair a full Committee meeting by phone. I think the Work Group meetings are sufficiently challenging, with a caveat.
If there is a very discrete and clear recommendation from a Work Group, and I think this is maybe the 11(c) recommendation didn't come with enough sort of explanation and background -- I think if we were going to do this telephonically, it would have to be on discrete recommendations, and there would have to be a background piece written, not 50 pages, that provided people with an understanding of what it meant, what it didn't mean, why the Work Group had gotten there, so it would be a feasible thing on the telephone. I appreciate the suggestion.
MR. BAIRD: Let me just say we should think about that. I'm not saying we can't do it. There are some things we need to think through.
MR. MENDELSON: Subject to the requirements, of course.
MS. SPIELER: Yes, I understand that. The reason I'm responding this way is when sequestration happened, it was suggested to me that we just do our meetings that way. I just said no. I did not consult the rest of you.
I just thought it was impossible, and we don't know each other well enough really. I just thought it would be untenable to have a complex conversation with 30 people on the phone, which sort of what it ends up being with staff.
MS. NARINE: As a recommendation, I really appreciate the level of discussion we had on the recommendation that we couldn't get through today.
I think that would need a lot of discussion because it is so important and could be so significant in the lives of workers and for employers.
I don't know if it would matter if I heard from 100 workers and 100 employers because the level of significance would be such that I would need to think about it, digest it, et cetera.
Perhaps if I had been in the room and heard all the discussion back and forth, I probably would have asked all the same questions.
Because I want to be able to have a deliberative informed vote -- the reason I said I could live with the "may" is because I know 100 other people would have asked the same question about the word "may," whether it is me or not. It's going to go through public comment. That is why I said I could live with it.
I do think it's important that something that I know you all put a lot of thought into gets the level of respect and debate that it deserves.
MS. SPIELER: Let me just say, I'm not sure it's a good practice to have something show up for consideration and vote without it being distributed in advance of a meeting.
Because we haven't been meeting and the Work Groups met yesterday, there really were no alternatives. I think as we go forward and we have a regular meeting schedule, and the Work Groups are not formed at least on these issues, the Work Groups need to think about that.
I don't think the report can arrive the day of the Committee meeting. I don't think the recommendations should arrive the day of the Committee meeting. I think I certainly would find it difficult when I show up at meetings and somebody gives me something to vote on without having a chance to think about it.
MR. EHERTS: How do we get around the FACA rules about sending stuff back and forth so freely between the Committee members? I can see where the Subcommittee is meeting and we are deliberating on all those things, we have those discussions.
How do we get the full Committee ready before a meeting with FACA?
MR. BAIRD: You can certainly send out background material before the meeting. That is no problem at all. We would enter that into the record at the meeting.
MR. EHERTS: Answering questions we had from Committee members before the meeting, that would be difficult one on one, wouldn't it?
MR. BAIRD: Yes, that would be difficult.
MS. SPIELER: Some of that can happen in Work Groups, and they are publicly noticed, and people are on the phone.
MS. NARINE: Maybe saying we have a pretty important proposal that we are going to be working on, you are welcome to join in the Work Group discussion, et cetera.
MR. FRUMIN: To Emily's point, to the extent there is a background document which is intended to be self explanatory and stand on its own, that could certainly help give people a greater sense of comfort with the proposal in advance so they are not just looking at the text, they are looking at the rationale and all that.
MS. SPIELER: Yes, exactly.
MR. FRUMIN: I wanted to suggest one other way of improving our process here. I think every time we have interacted with agency staff, whether it is OSHA staff or related agencies today, we have benefitted greatly from it.
While I appreciate the administrative help we have gotten from the Whistleblower staff, I think we have been losing some of that benefit by virtue of whatever limits there have been about their participation.
I would like to just suggest that going forward, where there is an opportunity either on paper or by inviting agency staff to actually participate in speaking roles, understanding they are under limits about what they can say and so forth, we should attempt to do that.
I have generally found it to be very helpful. I don't know how other people feel. I just wanted to offer that additional idea.
MS. SPIELER: Good. Richard?
MR. MOBERLY: I just have a question for Ed. Can you remind us what rules if any there are about circulating drafts of reports? If there is an open conference call of a Work Group and after that call, there are drafts circulated that will be presented to the entire Committee, what rules are there about that?
MR. BAIRD: That's fine. There is a provision that talks about preparatory work in the regulations, and that would fall within that, preparatory work.
MR. MOBERLY: Thanks.
MS. NARINE: What work?
MR. BAIRD: Preparatory.
MS. GARDE: I just have one other topic, on what Eric said, in terms of involving the Directorate staff. One of the things I don't think we have on any of our growing lists of things to consider and talk about are some of the real pragmatic suggestions that came out of the IG report and other reports, things like ideas on backlogs, ideas on timeliness, more efficiency.
I think that is part of our charter. I don't really want to suggest another subcommittee, I think it may very well be that the staff already has a lot of that under control or has some ideas or is doing things that I don't know about. It might be helpful for us to understand what those things are.
As I sit here, I had like six or seven which seemed to me fairly simple straightforward administrative fixes and things like that, but there really hasn't been time to talk about those. I don't want to talk about them if somebody is working on them.
It would be really helpful from my perspective to know what they are doing and what issues are on their plate to do, and then is there something we could do to be helpful.
MS. SPIELER: I think that is a terrific idea. When we met 14 months ago and the Directorate was really brand new, there was a feeling we should hold off and let them get on their feet and figure out responses to those reports.
I know a lot of thought has gone into that. We heard about successes of pilots we were told about. I think it might make sense -- I don't know how we are going to do all this in one day -- to have a report where you tell us where you are on some of these issues, answer some questions, and then we can figure out if within the Committee there is expertise that would be useful to you in addressing some of the administrative and operational issues.
We took that on a little bit with 11(c). We haven't really talked about it across the board.
MS. GARDE: Thank you.
MS. SPIELER: Are we allowed to have two day meetings?
MR. BAIRD: There is nothing in FACA that says you can't.
MR. KEATING: There is no reason why we couldn't potentially have a half day working group. Yesterday, we had the whole day.
MR. MENDELSON: There are obviously budget and policy issues the front office would need to clear on that.
MS. SPIELER: Right. I think in part what I am hearing and I feel it as well is there was such a long period of time since our last meeting that we didn't really have a chance to really kind of develop any rhythm at all.
We now have a very long list that we are going to have to sort out at the next meeting. I will talk to staff about some of the issues and how to prioritize them and stay on top of the Work Groups to figure it out. It may be now that everyone knows the direction of the Work Groups, that we should take up only recommendations and reports as opposed to progress reports.
Why don't we see how it goes over the next three months. I will be working with staff on scheduling issues, then we can figure it out.
Is there any other business?
MS. NARINE: It will be in six months or three months?
MS. SPIELER: The next in person full Committee meeting will be in approximately six months. We are going to try to figure out a schedule. If it turns out March threw us off in a way that we don't like, we may tweak it in some way. It would be September.
Before we adjourn, I again want to thank the staff. I was the transition team person on the Presidential Transition Team for the Department of Labor that looked at OSHA, and discovered that -- I knew some of the whistleblower laws that had been assigned to OSHA, but I had no idea, and then to discover there really was no attention being paid.
The amount of attention that has been paid in this Administration is a whole different order of magnitude. I think there are also congressional expectations about as increasingly we look to a whistleblower model to assist in regulatory enforcement.
I think the commitment the Administration has made on this issue is tremendous, but that kind of commitment never follows through unless you have people who are dedicated to making it work, and that includes the staff of the Central Directorate and the three members of that staff who worked with us directly on the Work Groups, Meghan Smith, Rob Swick and Katelyn Wendell.
Also the fact that there is a whistleblower sort of set committee that is working across OSHA, there is really an intent to deal with the regional variations, with the creation of new positions within the regions.
I think sometimes change takes a long time, but all of this really matters. I personally am delighted to be a part of it, but I really want to applaud the staff for wanting to make it right. Thank you.
MR. FRUMIN: Emily, can I also thank you for the amount of time and effort and creativity you have brought to your role here. I don't know if you knew what you were signing up for. In any event, I'm sure it has taken a lot of time, probably a few more frustrations than you banked on. I appreciate the help you have given all of us.
MS. SPIELER: Thank you. I hope you can be with us next time.
MR. FRUMIN: I certainly expect to be. Thank you.
MS. SPIELER: Thank you all. I think we can adjourn.
(Whereupon, at 4:45 p.m., the Committee meeting was concluded.)