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U.S. Department of Labor - OSHA

Whistleblower Protection Advisory Committee Meeting

1:34 to 5:17 p.m.
Wednesday, September 3, 2014

U.S. Department of Labor - OSHA
200 Constitution Avenue
Room C5517
Washington, D.C. 20210


Whistleblower Protection Advisory Committee:
EMILY SPIELER, Northeastern University School of Law, Chair
NANCY LESSIN, Steelworkers Charitable and Educational Organization
CHRISTINE DOUGHERTY, Principal Discrimination Investigator, State of Minnesota
RICHARD MOBERLY, University of Nebraska College of Law
AVA BARBOUR, International Unions, UAW
MARCIA NARINE, St. Thomas University School of Law
ERIC FRUMIN, Change to Win
JON BROCK, Emeritus Faculty Member, University Of Washington
KENNETH WENGERT, Kraft Foods Group
BILLIE GARDE, Clifford & Garde, LLP
GREGORY KEATING, Littler Mendelson, PC
DAVID EHERTS, Actavis Pharmaceuticals

ATTENDEES (continued):

DR. DAVID MICHAELS, Assistant Secretary of Labor for Occupational Safety and Health

Directorate of Whistleblower Protection Programs:
NANCY SMITH, Acting Director
ANTHONY ROSA, Deputy Director

ATTENDEES (continued):

Also Present:
RICHARD RENNER, Kalijarvi, Chuzi, Newman & Fitch
MARK LERNER, Solicitor's Office, OSHA
MEGHAN GUENTHER, Office of the Solicitor, Fair Labor Standards Division
RICK INCLIMA, Brotherhood of Maintenance of Way Employees Division, Teamsters Rail Conference
BRUCE ROLFSEN, Bloomberg BNA, Occupational Safety and Health Reporter
JOE SIRBAK, Buchanan Ingersoll
KIM NELSON, OSHA, Toledo Office
STEVE MITCHELL, United Auto Workers Local 974

ATTENDEES (continued):

Also Present:
ROB SWAIN, Department of Labor
ROBERT MILLER, U.S. Department of Transportation, Federal Motor Carrier Safety Administration
KIMBERLY DARBY, OSHA Office of Communications
MARY BRANDENBERGER, OSHA Office of Communications
DINKAR MODAKAM, Association of Flight Attendants
NICOLE COLEMAN, Nuclear Regulatory Commission
LISA JARRIEL, Nuclear Regulatory Commission
PHIL STAUB, Washington Metropolitan Area Transit Authority



(Exhibits Retained.)


MS. SPIELER: Hi. I would like to call this meeting to order. My name is Emily Spieler. I'm the chair of this federal advisory committee, the Whistleblower Protection Advisory Committee, and this, as, I think, most of you know, is the third meeting of the full advisory committee. In the interim, three subcommittees have been working hard on a number of important issues, and much of our meeting tomorrow will be devoted to the discussion of the current status of the work of those committees.

Today we will have a series of presentations with questions from people sitting up here, but first there are two things we have to take care of. First, the mandatory safety briefing, from Rob.

MR. SWICK: [Speaking off mic.]

MS. SPIELER: Or you can come use this one.

MR. SWICK: Good afternoon, everyone. I am Rob Swick. I am with the Directorate of Whistleblower Protection Programs. Thank you for coming here today. Just a quick word about the building. Here in the Frances Perkins Building, there are two kinds of emergency events that could occur, the first of which is a shelter-in-place. If we get that sort of alarm, we will stay exactly where we're at. The second kind is an evacuation. We are going to go, like kindergartners, straight out that door, to the stairs right around the corner, and we'll follow the procession out, and we'll try to account for everybody there.

We are on the fourth floor. You can get refreshments up until three o'clock upstairs at these elevators, to the sixth floor here. This corridor down here, I believe until four, you can get refreshments at the snack bar. There are soda machines somewhere. I dare you to find them. And with that, if you have any questions, please feel free to reach out to me, and any other of the members of DWPP -- hands, DWPP people -- out there, if you need assistance.

Thank you, Emily.

MS. SPIELER: Sure. Second, I want to make sure, it is the practice of this committee that everybody introduces themselves. So what I'm going to ask is that starting with Nancy Lessin that we have the members of the Advisory Committee introduce themselves. We will then go to the OSHA leadership and staff, and then to everyone else in the room. So, Nancy, if you could start.

MS. LESSIN: Nancy Lessin. I'm with the Steelworkers Charitable and Educational Organization, and I represent labor on the committee.

MS. DOUGHERTY: Christine Dougherty. I am a safety and discrimination investigator for the State of Minnesota, and I represent the state plan states.

MR. MOBERLY: I'm Richard Moberly. I'm a professor at the University of Nebraska College of Law, and I'm a public representative.

MS. BARBOUR: I'm Ava Barbour. I am an attorney at the International Union UAW, and I represent labor on the committee.

MS. NARINE: Marcia Narine. Professor, St. Thomas University of Miami, former deputy general counsel and compliance officer, representing management.

MR. FRUMIN: Eric Frumin. Health and Safety Director for the Labor Union Federation Change to Win, and I represent labor.

MR. BROCK: Jon Brock. I'm a retired professor of public policy. I'm a public member of the committee.

MR. WENGERT: Good afternoon. Ken Wengert from Kraft Foods, and I'm representing management.

MS. GARDE: Billie Garde, partner at Clifford and Garde. I represent employees.

MR. KEATING: I'm Greg Keating. I'm a shareholder of Littler Mendelson, and I represent management.

MR. EHERTS: Dave Eherts, Vice President EHS at Actavis, and I represent management.

MS. SPIELER: Thank you. And now, Dr. Michaels, do you want to introduce yourself now or would you like to hold off?

DR. MICHAELS: I'm David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

MS. SPIELER: And now --

MS. SMITH: I'm Nancy Smith, and I'm the Acting Director for the Directorate of the Whistleblower Programs.

MR. ROSA: I'm Anthony Rosa. I am the Deputy Director for the Directorate of the Whistleblower Programs and I'm WPAC's designated federal official.

MS. SPIELER: Okay. So for everyone else, why don't we just go up and down?

MR. SWICK: There is a reminder. There is a sign-in sheet for observers, and media in the back. Oh, it's making its way around. Very good. Okay. Here we go.

MS. SPIELER: Rob, before you do, let's ask Louise to introduce herself.

MS. BETTS: I'm Louise Betts with the Office of the Solicitor, and I'm counsel to the committee.

MR. RENNER: Richard Renner, attorney at Kalijarvi, Chuzi, Newman & Fitch. I represent employees.

MR. LERNER: Mark Lerner. Solicitor's Office, Division of Occupational Safety and Health.

MS. SMITH: Meghan Smith, Directorate of Whistleblower Protection Programs.

MS. GUENTHER: Meghan Guenther, Office of the Solicitor, Fair Labor Standards Division.

MR. SANDERS: Kirk Sanders, Chief of Staff of OSHA.

MR. INCLIMA: Rick Inclima, Director of Safety, Brotherhood of Maintenance of Way Employees Division, Teamsters Rail Conference.

MR. ROLFSEN: Bruce Rolfsen, Bloomberg BNA, Occupational Safety and Health Reporter.

MS. GIVENS: Hi. I am Laura Givens. I'm with DWPP.

MS. SEEMAN: Laura Seeman. I'm the Division Chief for Field Operations for the Whistleblower Programs.

MR. SIRBAK: Joe Sirbak. I'm a shareholder at Buchanan Ingersoll, and I represent employers.

MR. KITTRESS: Dave Kittress. I'm a reporter with LRP Publications.

MS. NELSON: Kim Nelson. I'm the Area Director in the Toledo, Ohio Office.

MS. VALKAN: Connie Valkan, CN Railroad.

MR. JOHNSON: Ron Johnson, Jones Day. We represent employers.

MS. HYATT: Andrea Hyatt, BNSF Railway.

MS. LINDHORST: Susan Lindhorst, Union Pacific.

MR. FAIRCHILD: Cleveland Fairchild, Program Analyst with DWPP.

MR. BROKER: Brian Broker, Program Analyst with DWPP.

MR. MITCHELL: Steve Mitchell, United Auto Workers Local 974.

MR. LY: Viet Ly, DWPP.

MR. SHEWMAKE: Charles Shewmake, BNSF Railway.

MR. SWAIN: Rob Swain, Counsel for Legal Advice with the Office of the Solicitor, DOL.

MR. MILLER: I'm Bob Miller with the U.S. Department of Transportation, Federal Motor Carrier Safety Administration.

MS. DARBY: Kimberly Darby with OSHA's Office of Communications.

MS. BRANDENBERGER: Hi. I'm Mary Brandenberger, Deputy Director, OSHA Office of Communications. I was going to slip in the back.

MS. SPIELER: Rob, I don't think you actually introduced yourself.

MR. SWICK: Rob Swick, Directorate of Whistleblower Protection Programs.

MS. SPIELER: So, we are delighted that there's broad interest from both the labor and employee side in the activities of this committee, and we do hope that the work that we are doing, both between committee meetings and when we're here, face-to-face in Washington, is beneficial for OSHA, for the Department of Labor, and for the work that's done on a day-to-day basis by everyone outside.

I'm going to turn this over to Dr. Michaels now.

DR. MICHAELS: Thank you, Chairman Spieler. First, I'd like to thank all of you, the members of the Whistleblower Protection Advisory Committee, for all your work, and to offer a special thanks to Emily, the chair of the committee, and also to the work group chairs, Dave Eherts, of the 11(c) Work Group; Jon Brock, Best Practices and Corporate Culture Group; and Eric Frumin of the Transportation Industry Group. I know how hard the chairs and all of you have worked, and I'm very grateful, and I speak on behalf of OSHA and the Labor Department, thanking you for that.

We're fortunate to have Tom Perez as our Secretary of Labor. He really is a champion of worker safety and of all of the issues that we're really talking about here, and he brings many years of fighting against discrimination, and really inspires us in this work that we do. You have met, but I want to reintroduce our new permanent Deputy Director of the Whistleblower Protection Programs. That's Anthony Rosa. We're very pleased that he's joined our staff permanent. And you've met, and, again, I want to thank you, Nancy Smith, who was our Acting Director. They'll be here and they'll be able to answer your questions. They'll be presenting, as well.

And I also want to thank your staff. There's a terrific staff in the Directorate of the Whistleblower Protection Programs, and the Solicitor of Labor. You've met most of the permanent staff of the Directorate. They're here today. It's a small program. They do great work.

Since I last addressed this committee, we've continued to strengthen and improve our Whistleblower Protection Program. As you know, this is a responsibility that we take very seriously, so I wanted to begin by focusing on the improvements that we've made since we last met, and providing some perspective over the 5 years since I began here at OSHA.

First, I think our Whistleblower Protection Program really is getting stronger. From 2009 through June 30th of this year, OSHA has issued approximately 3,700 merit determinations, recovering over $119 million in damages for whistleblower complainants, and reinstated 389 whistleblowers to their positions.

In 2013, we more than doubled the number of merit determinations we issued in 2009. We went from 450 in fiscal year 2009 to 934 in fiscal year 2013. These 934 merit determinations include 74 merit findings, 860 settlement agreements, and awards of over $25 million in total damages to complainants. That's an 89 percent increase from the $13.25 million in damages awarded in fiscal year 2009.

Now, in the first three-quarters of this year we're on a similar track. We've already issued 602 merit determinations and awarded approximately $21.5 million in damages to whistleblower complainants. So, as you can see, our efforts our having results.

I want to review a few of the improvements we've made since our last meeting. Now, a significant concern has been our ever-increasing inventory of pending cases, including the overage cases, that we also call our backlog cases, which grew steadily from 2005 to 2012. To address this trend, we streamlined our procedures for documenting the outcome of complaints, whether they were withdrawn or settled, or if the party stopped cooperating with our investigation. These new procedures, and the new structure that we piloted, which I'm going to discuss next, have contributed to a significant reduction in the pending case inventory.

Over this last period, the last fiscal year or two, several regions piloted a new organizational structure, and we created a new position, an Assistant Regional Administrator for Whistleblower Protection. The new position allowed for direct caseload management and oversight of whistleblower investigations by subject matter experts, resulting in more efficient and more effective investigations under all of our statutes. Following the success of this pilot, we are now implementing this new structure and the position in every one of our regions.

We are also continuing to work closely with the agencies whose whistleblower provisions we enforce. We recently entered into a memorandum of understanding with the Federal Motor Carrier Safety Administration. This MOU provides for a better exchange of information between the two agencies and enables OSHA to access valuable data from FMCSA about the safety, fitness, and compliance history of commercial motor carriers and drivers' crash inspection history and their safety records. I know you're going to hear more about our work with our sister agency later on today.

We are working on a new policy memo clarifying the agency's position regarding the burden of proof required in whistleblower investigations. This memo will change the burden of proof to be based on reasonable cause that the violation occurred, which is a lesser burden to prove than a preponderance of evidence. OSHA and the Office of Solicitor of Labor have looked at this issue. I think we've come to a very valid conclusion. We're working on this policy memo and it should be completed shortly.

We've also had great success with our Section 11(c) appeals program. Faced with more than 200 outstanding appeal cases pending review, we implemented internal procedures to tackle the backlog. Now we're down to only 33 appeals pending review. Moreover, we've drastically reduced our response time to appellants from 279 days in the first quarter of fiscal year 2013 to only 89 days last quarter. For each case, we also conduct two independent reviews to ensure the quality of our response. Complex cases are referred to our solicitors for further review and legal analysis, and if additional investigative work is needed, the case is remanded back to the field for further investigation. So I especially want to thank our staff here, who have worked on addressing this backlog program. Really, they've worked on it diligently, and I think with some great success.

Our national office has also been conducting onsite audits of our regional programs to ensure they're strong and effective. In the last few months, we've also developed a tool to increase the consistency and uniformity of self-audits conducted by each of the OSHA regions. The tool is designed to ensure that each region is following the Whistleblower Investigation Manual and using consistent metrics to evaluate regional performance.

So I want to use this moment to give you a few examples of some of our recent enforcement cases, that we look at as successes. Just last month, OSHA reached a settlement agreement with Gaines Motor Lines and two individuals, to compensate four former truck drivers who were fired for participating in an inspection audit, in violation of the Whistleblower protection provisions of the Surface Transportation Assistance Act. The settlement required the employer to pay more than $260,000 in back pay wages, interest, and compensatory damage.

We've also been dealing with several 11(c) investigations involving AT&T. These cases stem from AT&T's retaliatory practices against employees who report work-related injuries. Cases have already been filed in U.S. District Court and several newer cases are being investigated, as well. OSHA plans to continue to pursue AT&T and other companies' compliance with this basic worker right, the right to report work-related injuries.

In July 2014, the Department of Labor entered into a consent order in the amount of $100,000 with McKees Rocks Industrial Enterprises after we filed a lawsuit in federal court. Our investigation found that McKees Rocks fired a worker because they suspected the worker had called OSHA, triggering an investigation, an OSHA inspection. The order also required McKees Rocks to prominently display information on whistleblower protections at their facility, remove all disciplinary actions from the worker's official employment record, and provide prospective employers with a neutral reference for the worker.

In June of this year, we obtained a settlement from Crown Furniture after filing a lawsuit in district court. In this case, our investigation found that Crown Furniture fired a worker after he called OSHA to report safety and health hazards, including the presence of asbestos, mold, and rodents in the basement.

Last month, OSHA ordered Asphalt Specialists to pay nearly $1 million in damages, including almost $250,000 in back wages to drivers it had terminated for raising safety concerns, $110,000 in compensatory damages, and $600,000 in punitive damages, and to reinstate the drivers. These workers raised safety concerns after being directed to violate the U.S. Department of Transportation's mandated hours of service regulations for commercial truck drivers.

Also last month, we ordered a contractor for the Department of Energy's Hanford Nuclear Facility in Washington State to reinstate the environmental specialist who was fired in a retaliation for voicing nuclear and environmental safety concerns. On six different occasions, the employee reported concerns about lack of adherence to nuclear environmental safety regulations. OSHA ordered Washington River Protection Solutions to immediately rehire the employee and pay the employee $186,000 in lost pay plus interest, $24,000 in compensatory damage, $10,000 in punitive damages, and reasonable attorney fees.

We still have a great deal of work ahead of us. The department's FY 2015 budget request for whistleblower programs reflects our commitment to continuing to build the program. This $21 million request would support a total of 158 full-time employees, 27 positions more than our current FTE level, which is 131 across the country.

I want to focus now on some of the areas where we really need your help, the concerns on which you and your work groups have focused. First, I look forward to your advice and input on effective means to change corporate culture around the issue of whistleblowers. OSHA is committed to providing and showcasing industry best practices that encourage employers to establish effective anti-retaliation reporting programs in their workplaces.

We'd like your assistance in helping employers embrace "a culture of ethics and compliance," as your advisory committee member, Greg Keating, called it in his recent congressional testimony. "This is a culture" -- and, again, I'm quoting, because I absolutely agree with what Greg said -- "in which compliance with the letter and spirit of the law is both required and encouraged at every level of the organization. Employees feel welcomed and encouraged to share their concerns about possible noncompliance, and individuals who come forward in good faith to report possible misconduct or safety concerns can do so without fear of retaliation of any kind."

So I encourage your committee, especially the Best Practices Work Group, to play a really big role in this discussion. With your assistance in collecting best practices and making recommendations to OSHA, we can collectively effect a positive culture change that encourages employees to report their concerns and have their concerns considered -- as Greg said, "encouraged at every level of the organization that employees feel welcomed and encouraged to share their concerns."  That's what we really want, and we want them to be able to do that without fear of retaliation, and we want employers to realize the benefits to establishing those programs. That's a big charge, and I'm looking forward to your help and advice on that.

I also very much look forward to the 11(c) and Transportation Work Group ideas and recommendations. Section 11(c) complaints are the majority of OSHA's whistleblower investigations. As I testified before that same congressional committee session that Greg testified at last April, this section of the OSHA Act, 11(c), is in need of significant upgrades if OSHA is to fulfill its mission and protect workers who raise safety and health concerns. As such, I look forward to reviewing your recommendations on ways that this statute can be strengthened or ways that we can address the issue without changing the statute.

And I also look forward to the Transportation Work Group's recommendations. Over the last few years, retaliation complaints from rail workers increased faster than complaints under any other whistleblower statute we enforce. OSHA has taken several steps to discourage railroad employers from continuing the policies that led to retaliation. For example, OSHA signed an agreement with the Federal Railroad Administration to collaborate to protect railroad workers from reprisal when they report safety violations to the government or report work-related injuries or illnesses to their employers.

We also issued several widely publicized enforcement findings in the railroad industry, and we were very gratified and were very pleased when BNSF signed a voluntary accord, agreeing to revise several personnel policies that we found violated the whistleblower provisions in the Federal Railroad Safety Act. But there's more work to be done protecting not just railroad workers but workers employed across the transportation industry, and I look forward to your recommendations on where and how to most effectively and productively focus our efforts to achieve the greatest impact in this industry.

So I thank all three work groups personally for all your passion, your dedication, and the time expended on these important program areas. I know you're not paid for this time by the Federal Government. We are very grateful for all the time, the effort, and the dedication that you put into this.

We're very excited to see this committee meet again, to provide your perspective, your insight, your recommendations, to help us maintain and improve our whistleblower protection efforts. Your research, your analysis, your recommendations will help strengthen our program. We're appreciative of your time, your interest in promoting worker safety, and the ability of workers to voice safety and health concerns, so thank you so much.

I'll be in and out of the meeting for the next day and a half, but I can answer a few questions, and, more importantly, I have two of our senior staff people who know far more than I do about the workings of the Directorate, and can answer your questions, as well.

MS. SPIELER: Do members of the committee have any questions for Dr. Michaels now?  Thank you very much. I expect we may, in the course of the next day and a half.

DR. MICHAELS: Well, I will be back, and you will see me.


MS. SMITH: It is my pleasure to be here, and I just want to echo what Dr. Michaels said about the appreciation that we have for this committee and the things that you can do for us, so we really appreciate it. I want to thank Dr. Michaels for his support for the program. We could not ask for a more dedicated individual, and he's been extremely helpful to us. So just as we acknowledge Secretary Perez, because he's a champion for worker and worker rights, Dr. Michael is, as well. I just wanted to acknowledge that and acknowledge the committee.

Just to tell you a little bit about my background, I am the Acting Director for the Directorate of Whistleblower Programs. My permanent position is as Deputy Regional Administrator in the Denver Region. So I've actually been in management with Federal Government for over 30 years. I started with the Office of Personnel Management and moved to the Department of Labor, and in 1989, moved to OSHA. I've been involved in administrative programs, consultation programs, audits, and, in 2009, became the Deputy Regional Administrator. So this detail to this Directorate has been very exciting for me, and I'm just impressed with the staff of the DWPP office. I want you to know that you have a lot of individuals that care deeply about this program. We are very receptive to your comments, suggestions, recommendations.

And I especially want to thank your points of contact for the work groups, Meghan Smith, Rob Swick, and Katelyn Wendell. I know you all have done a lot of work preparing for this, and I want to thank you, as well.
I will be here through the end of October, and I want to help you in any way that I can, but we also wanted someone that could provide continuity for you, that would be here for your meetings, and so I'm happy that Anthony has joined the Directorate. He's here as the permanent Deputy Director, and, as he said, he is the designated federal official for this committee. So he will be your go-to person on policy and operational issues, but Meghan Smith is still the point of contact for logistics and the day-to-day issues.

I wanted to provide you some of the organizational issues, and then Anthony is going to talk a little bit about his experience, and talk about some operational issues. Dr. Michaels talked about the implementation of the ARA, or assistant regional administrator, for whistleblower programs that each of the regions will have. It was piloted in Regions 4 and 5, and then 2 began it, as well. And one of the things I want to really focus on and let you all know that we believe it provides for us is it gives someone at the operational level, to be sitting there with the regional administrator and the other ARAs, to include whistleblower considerations in everything, whether we're talking about safety and health, whether we're talking about outreach of all of those things. So it gives that person a seat at the table, and it really frees up our regional supervisory investigators to spend more time with their investigators, to spend more time reviewing their cases, providing training. So we believe it is going to help the program in a very big way, and it really mirrors the enforcement programs, because in the area offices you have an area director and an assistant area director. So we believe it allows the regions to mirror the enforcement programs and it allows the Directorate up here to mirror the enforcement programs, as well.

The other thing I wanted to talk about was an imitative that we've begun, and it's the Alternative Dispute Resolution, and under the ADR program, when both parties in a complaint investigation agree to seek early resolution, the investigation will be stayed or it could happen even before the investigation begins, when an ADR coordinator works with both parties to see if there can be some type of early resolution. We piloted those, as well, in Regions 5 and 9, and both of those regions were happy and thought that it did improve the program. So we're working on finalizing our ADR directive, which will provide specific instructions on the process and procedures. We believe that it's another tool for the investigators to have in complaint resolution, and we're very happy with this initiative.

In addition to that, we've been working with the Federal Mediation and Conciliation Service to develop ADR skills training curriculum for OSHA's whistleblower staff. FMCS, the Federal Mediation and Conciliation Service, hosted 20 of OSHA's whistleblower field staff members for a 3-day basic ADR skills course in August, and they'll be hosting approximately 15 whistleblower program staff members for a Train the Trainer session in September. As a result of these two training sessions and feedback gathered, FMCS will provide OSHA with an ADR training material so that OSHA may continue with that Train the Trainer in-house, and train our whistleblower staff for those skills in the future.

For training, we've established a lot around the training. We want to parallel whistleblower training track to what the COSHO investigators have. So we will have a permanent whistleblower training coordinator at our training institute in Illinois, and provide six-five [ph] task-specific courses for the whistleblowers, including interviewing and some of the basic courses that they take now. We're in the process of finalizing that training directive, and it should be completed shortly.

We're also exploring some avenues where we can provide additional training, either through WebEx LearningLink webinars that would really be just-in-time training, or on-demand training. For those statutes that we don't get that many complaints about, we don't want our investigators to be rusty on what that covers, so we want them to be able to refresh the requirements through a learning that they could tape into as needed.

Another thing that we've been doing is that we have been sending out national office people to be out in the field and meet the investigators, be in the regional office, kind of find out how it operates at the field level. It helps them understand what the needs, issues, and concerns are in the field, and share that information. So as we're developing procedures, we can look at it through a field perspective, as well as our perspective. And then we're hoping, in the upcoming year, to bring field staff into the national office so they can understand it from this side of the house, as well.

So those are a few of the organizational issues we started, and it's in process, so I can't tell you that things have changed overnight, but we're very optimistic that these are steps that will improve the program on many different levels going forward.

I'm going to let Anthony introduce himself, tell you a little bit about his experience, and also talk about some of the operational issues that we've done.

MS. LESSIN: Can we ask some questions about what you said, or do you want to do it --

MS. SPIELER: What's your preference?  If there's overlap between your presentations then it would make sense to wait. If there isn't, we could take them now.

MS. SMITH: I'm fine with either one.

MS. SPIELER: Okay. Go ahead, Nancy.

MS. LESSIN: I have a couple of questions. One is, you talked about this new structure with the dedicated whistleblower at a high level in a region, and you talked about it was piloted in Region 4 and in Region 5, and now will go out. We just, in our 11(c) meeting, heard about enormous, enormous problems in Region 5 currently. So I am concerned that something that was deemed to work well has allowed, I think, what we saw as very serious problems, to not only exist but continue. So you were in that meeting. I was wondering if you could reflect on that, and then I have one other question.

MS. SMITH: Okay, and I think we need more information. I know that you had asked, could we kind of find out were they aware of it, and all I can say is that we have asked for additional information. So I do believe that we will be able to be responsive to that, but I would prefer to wait until I had the whole story.

MS. LESSIN: The other question was about the alternative dispute resolution. I am wondering, there are times in different kinds of arenas where somebody is presented with, you can do alternative dispute resolution and get this done quickly, or it may take a really long time if we go the other way, so they're kind of pushed into something that may or may not bring about justice. So I would like more information about this. I think that it can, at times, work well, but at times be very problematic, and one of the things that I'd like to see is some data, do some case comparisons. If you go the traditional route, what was the resolution, versus if you went to ADR with the push to get it done quickly, are people accepting less settlements than they might get through the other route?  Is there data now that you can look at that and say this is at least as effective as, or there are differences here that we need to pay attention to?

MS. SMITH: We are looking at the information from those two pilots, but our intent is not to force anyone into one avenue or the other, but we are looking at that information, as far as comparing the results.

MS. LESSIN: Can that get shared?

MR. ROSA: And just to add, the way the ADR initiative worked was that at the onset of an investigation, when the notification letter is given out, the parties are given an opportunity to decide whether they want to be part of this alternative approach. If both parties -- now, we have to have both respondent and complainant -- if both parties agree, then, at that point, instead of going into a full-fledged investigation, we have a dedicated ADR coordinator who is not doing investigations, so is not even involved in enforcement, is not even necessarily involved in the details of the case. They're just trying to find a resolution to the conflict.

MS. LESSIN: And can you go back to the traditional way if you feel like this is not --

MR. ROSA: Yes. Yes. After a certain period of time, if the ADR coordinator believes that the case is not moving forward, then we make a decision, again, with consultation with -- obviously, the decision is the regional administrator's decision to say, okay, this case is not moving forward and we're going to go back to a full investigation.

MS. SPIELER: Go ahead.

MS. BARBOUR: I actually also had a question about the ADR. You've answered some of it, in terms of how you've explained how it starts. I just have some detail-type questions. Does the complainant typically have someone to represent their interest there?

MR. ROSA: Well, the complainant always has the opportunity to have a representative if they wish. They don't necessarily have to, but they always have the opportunity to bring someone forward.

MS. BARBOUR: And from what you've found, have they typically had a representative, or is it too early to tell at this point?

MR. ROSA: It depends on the statute, really. It really depends on the statute.

MS. BARBOUR: What are the parameters for when you determine when ADR would be appropriate to offer or not?  Is it offered in every case, as a matter of course, or are there some cases where you say this is not going to be appropriate?

MR. ROSA: I can't recall right now the specifics in the directive. The directive was a pilot that was piloted in two regions, 5 and 9, and now we're in the process of moving it forward, and the final directive has not been finalized. We're taking basically all the feedback that was received from the pilots and we're working on a finalized directive at the present time.

MS. BARBOUR: Last question. So the parties discuss. They don't come to any kind of agreement. What happens with the information or what was said in that mediation? Is that carried on to the next phase, or is that something that's supposed to remain in their confidential?

MR. ROSA: That remains confidential. The purpose is that it doesn't have anything to do with the enforcement side of the house.

MS. BARBOUR: Thank you.

MR. ROSA: You're welcome.

MR. FRUMIN: So I've got a question for you, Nancy, about the closer integration between the whistleblower enforcement function and the rest of the enforcement functions, particularly at the regional and area office levels, and this has to do with an issue that came up at a prior meeting here, when MSHA made a presentation about their anti-retaliation program. It's a very robust program and often involves miners who suffered retaliation after they were in contact with the agency, because that's a very vibrant relationship that miners have with MSHA inspectors.

MS. SMITH: Sure.

MR. FRUMIN: And I posed the question at that time, whether or not MSHA treated retaliation differently depending on whether or not the victim had been an informant or complainant with the agency, as compared to someone who is complaining to his or her own employer. Subsequently, I learned, and we don't have the details yet, but I learned that, from MSHA's standpoint, they, in fact, do treat, more severely, the retaliation cases when it involves a complainant or informant to the agency, that they are harsher with an employer when the victimization occurs subsequent to, or in relationship to, someone's exercise of their rights directly with the agency, which, to me, makes sense. There are obviously different opinions on the subject, that it makes sense.

So this leads me to ask you this question. It's one thing for the agency, for OSHA, to enhance the integration of the enforcement efforts at the regional and area office level, which is great, and to provide additional training for whistleblower investigators, but what I'm wondering, what, if anything, are you doing to provide additional training to regulator COSHOs about their need to better protect complainants and informants with whom they have contact in their investigations, and if there is any effort to do that, is there any difference in result, in terms of how the case is treated? 

I'm not really expecting you to respond to that complicated question now, but I think it would be good for you all to look into that, either as a matter of practice or, potentially, actually, as a subject of study of your IMIS data, and let us know in the future, because these are important distinctions, and if you are, in fact, rolling out closer integration, some of the enhanced effort should be happening on the compliance COSHO side, not just on the whistleblower investigator side.

MS. SMITH: Definitely, and I will just say that most of the regions to have the whistleblower -- in the past it's been the regional supervisory investigator go the area office and really train the COSHOs on the whistleblower statutes, what to look for, and know the subtleties. I know, at least in our region, as we get new COSHOs, because you keep having a turnover, that's kind of a regular practice. So I believe the other regions do it, but I appreciate your comment and we will look into that.


MR. KEATING: I an observation, and something I'd urge you to think about from the management perspective. I'm a management member. I would note that, as Nancy alluded to, and as you have mentioned, that this process, the process of handling a whistleblower case at OSHA, can often be one that goes on for a very significant period of time, and that's because you not only have the investigative phase, you then have the de novo trial before an administrative law judge, and then you have the review by the administrative review board, and then you have the potential for a case to be pulled and go to federal district court.

Each of these stages -- in my experience, I spend 90 percent of my time litigating these matters around the country -- each of these stages can take 6 months to a year. These cases can sometimes go on for 4 or 5 years, and on management's perspective, can obviously cost a lot of money and time in operational intrusions and investigations and depositions and testimony, and on and on and on.

For that reason, I have been a big fan of the early ADR. I've actually participated in it on many occasions. It doesn't always settle, by any means, but I think it's a very good step, to try to see, can we avoid 4 or 5 years of -- and I would also note, on the individual's side, I can only imagine sometimes the stress and the anxiety of going through this process for years and years and years and years.

One thing that I've been thinking about, and that I'd ask you to consider, is something similar to a Rule 68, Offer of Judgment, and what I'm talking about is an employer saying, early on in the case, that they are willing to offer the individual $50,000, whatever the number is, and the individual is free to reject that.

But if the individual rejects that, and then it goes on, and 5 years later the result that they attain is less than that amount, then there should be some sort of burden-shifting by way of attorney's fees being cut off at the time of the offer of judgment, or other attendant Rule 68 relief. I think that's something that might be a good way of making sure that the process is fair on both sides, and forces both sides to think about whether they want to go through this long ordeal.

MS. SPIELER: Richard?

MR. MOBERLY: I have kind of a combination of the last two issues. I'm happy to see that there's more coordination on the underlying misconduct. I mean, we're all talking about the retaliation part, and I'd like us to think for a second about this underlying misconduct and this enhanced coordination with the enforcement division or with other administrative agencies, I think gets at that somewhat. But when it's combined with this ADR program, I wonder about that underlying wrongdoing, when 90 percent of the merit, or well over 90 percent of the merit determinations are actually settlements.

So I wonder if there's any willingness or interest in looking at the underlying wrongdoing for those ADR settlement cases. Does that make sense?

MS. SMITH: I guess I'm not quite sure what you're --

MR. MOBERLY: So, a whistleblower complains about some illegal misconduct at the workplace. From what I understand, when you said there was enhanced coordination, the enforcement division will go look at the underlying misconduct. Your division looks at the whistleblower retaliation part of it. So I'm interested in that underlying misconduct, and I'm glad that there's enhanced coordination, but I worry when I see that over 90 percent of the merit determinations are actually settlements or done through this ADR process, that, through confidentiality agreements or confidential processes, that underlying misconduct cynically gets bottled off, less cynically goes away because the parties walk away happy. I just didn't know if there was any effort to look at that underlying misconduct, even in those settlements or ADR contexts.

MR. KEATING: Just one question. It doesn't automatically.

MR. MOBERLY: I'm sorry?

MR. KEATING: It doesn't automatically go away, right? 

MR. MOBERLY: Well, I mean, a lot of these settle with confidentiality agreements. In fact, almost all of them do. Does that make sense now?

MS. SMITH: It does. It does. I guess I'm like --

MR. ROSA: Well, we do look into -- again, at the beginning of the investigation, we get a complaint and we give the parties an opportunity to try to settle before we even investigate, and if they decide to settle, a lot of times employers will settle whether or not -- even, in some instances, they may have proof that there may be been employee misconduct. But because of the length of litigation and the cost, that they would just probably -- you know, it's best for them to just proceed with trying to settle the case.

What we're looking for is the complaint resolution part, is what the ADR is focused on.

MR. MOBERLY: Sure, and I guess I'm just pointing out that there's attention there, between settling the individual case --

MR. ROSA: Yes. Understood.

MR. MOBERLY: -- and getting at the larger misconduct that was being reported.

MR. ROSA: Right. Understood.

MS. SPIELER: Anthony, did you have additional remarks that you wanted to make to the committee?

MR. ROSA: With regard to the operation, yes.

MS. SPIELER: Yeah. I think we should move to that and then we can come back to questions if there are additional ones.

MR. ROSA: Sure. Sure.

MS. SPIELER: Thank you.

MR. ROSA: Well, first and foremost, I wanted to thank the committee for the opportunity to address you. I was with you at the last meeting as Acting Deputy Director, and I'm glad to be here as a permanent member and to see you in the future and to work together with you.

Just to give a little bit of background about myself, I have over 23 years working with the Department of Labor, most of my time, pretty much 99 percent of my time, with OSHA. I started in 1991 in the Bayside, Queens area office, and from there I moved into a program analyst position in the New York regional office, and I covered a myriad of functions in the regional office, including state plan monitoring for over 13 years, consultation programs. I did Susan Howard grants in the planning and support divisions. I was also a regional supervisory investigator for the whistleblower program, temporarily, in Region 2.

In 2006, I actually moved into the Office of Federal Contract Compliance Programs as the Planning and Support Director. I had a short stint there in OFCCP, and then I returned to OSHA. I went back into the State Plans Division. In 2008, I moved to Tampa, Florida, and I was there as a safety specialist, compliance assistance specialist in the Tampa area, and in 2009, I moved over to Atlanta regional office, first to be the Technical 13 for the whistleblower program at the time, and for the past 2 years, until just last week, I was one of the two assistant regional administrators that piloted the new structure. As mentioned earlier, it was 4 and 5. Region 4 was one of the two and I was one of those.

And just to give you a little experience on that, it does give you an opportunity to sit at the table, and when you have team leaders that are on the compliance side, the assistant area directors they're called, or in whistleblower they're called regional supervisory investigators, when you're spending all your time reviewing case files, you don't really have the time to focus on the strategic planning and the goal mission-oriented functions of that position.

The ARA relieves that person from the day-to-day reviews of the case files and allows that person to look at the goals and the missions of the program, and that has allowed me to help develop a system in the region, and, at the same time, to have team leaders that were focusing directly on the day-to-day work. So that was a very unique experience, but now I'm here and I look forward to working with you.

As Dr. Michaels mentioned -- I'm going to go into some operational issues. As. Dr. Michaels mentioned with our, the Section 11(c) appeals program, we are actually moving away from the term "appeals," and we are beginning to use the term "administrative review," because, technically, that's what they are. They are administrative reviews under the procedures and practice that the agency has had.

One thing that we developed, in order to tackle the backlog of all these appeal cases, was an administrative review forum, meaning when one of the two reviewers -- if both reviewers believe that the appeal should be dismissed, the case is dismissed. But if one of the two believe that maybe additional information is needed, or there's probably something more here, then we have, internally, within the Directorate, an administrative review forum, and then we have a discussion whether we're going to send the case back to the region for additional information or whether we're going to send the case straight up to the full committee, which is including us and members of the National Solicitor's Office.

These discussions have really helped us in dealing with the backlog and getting these responses from the regions, in working with the Solicitor's Office, but it's also helped us in identifying areas for improvement. It's almost like an additional review of areas that maybe the investigator did not collect a certain piece of information. We got that information and what we are doing now, we are tabulating all that information, that we're going to use it as a training tool, that's going to help the field investigators use it, so when they complete cases they have sort of a checklist of items that were noted missing in the appeals review, that now they can do it so that it doesn't get missed before the case is determined. This was something that have actually done in Region 4, when I was there, and it has been proven successful, together with the Solicitor's Office, because we worked together with the Solicitor's Office on that matter.

Then I wanted to mention, as you know, in December, we launched the e-complaint, the electronic whistleblower complaint form. As of yesterday, we have received 2,614 complaints. There are a percentage of those that are duplicates, because sometimes the complainant may not know that they filed, and then they file again, and sometimes we have two numbers but it's the same thing, but it's probably a small percentage of those. So it has added an additional burden to the work that we already have, but it has proven to be beneficial for the public to have yet one more avenue of access to file a complaint. Many of them, actually, are coming in when the office is closed, which is usually the time that we're not in the office to take a verbal call, so it has been proven beneficial for the public to file their complaints. I get a lot of these on the weekends.

What we recently did in the Directorate, we sent a questionnaire to the field. Now, that's been launched for a period of time. We sent the questionnaire to the field to get their feedback -- what's working, what's not working, what can we do better with this form -- and we're tabulating that information in order to improve that form, so that it will be better. At the same time, we are also working on a Spanish version of the complaint, so that it is made available to people that cannot understand English.

In terms of regulation, as you know, we are responsible for promulgating the regulations for the 22 statutes that we currently enforce. Since the last meeting we had in March, we published a regulation for the Consumer Financial Protection Act, also commonly known as Dodd-Frank. We refer to it as CFPA in our statute. That rule became effective upon publication and we are currently reviewing the comments we received, to public comments on that regulation.

We also have a number of other interim final rules, or IFRs, as we call them -- the Food Safety Modernization Act, the Affordable Care Act, Siemens Protection Act, Section 708 of the Sarbanes-Oxley Act, the National Transit System Security Act, and the Federal Railroad Safety Act. Those are currently all in IFR status, and we're working together with the Solicitor's Office in going through the comments of review and finalizing them. But although they are interim, they are in effect, so there's nothing that's not in effect.

We are working, however, on the one that we don't have an interim final rule, which is our latest statute, which is MAP-21, Moving Ahead for Progress in the 21st Century.

In terms of -- I think Dr. Michaels also mentioned, with MOUs, most of our work is done on the statues and coverage that is not in OSHA, and for that we need to build good relationships with our partner agencies, and I'm very happy to see that we have Robert Miller here with us today, who's going to talk to us later about the MOU, and I was one of the original big advocates for this MOU, together with my colleague from Region 6. We've been working on this for many years, so I'm very happy to see this MOU in place, and he will explain to you the benefits that it will bring to the agency.

I know at the last meeting we talked about referrals. There was, I guess, some confusion about how compliance officers will be referring to investigators, and back and forth, so we issued a memo, a policy memo that was issued, that kind of clarified that compliance officers will be trained enough, as Nancy mentioned, to know when there's a potential whistleblower matter, and vice versa, once we have a whistleblower investigation, to automatically refer that to the safety side.

What we're also doing, in some instances, if the case warrants, is to do joint investigations, because many times we find it very beneficial that when we go together on site, we're showing a unified front in these instances, and one investigation will help the other investigation in those cases.

In terms of the manual, well, we all agree that the manual needs some work, so we're working on a number of chapters to update it. Specifically, we're working on two specific chapters. Chapter 6, which is the chapter that relates to damages, calculations, and settlement agreements. This chapter is helping us -- it's going to clarify the issues of how to do penalty calculations. We're working together with the Office of the Solicitor, which is our eternal partner in terms of policy issues in the manual.

We're also working on a chapter -- it's a brand new chapter -- that we're going to consolidate everything that relates to information disclosure, whether it's nonpublic disclosures between the parties while the investigation is ongoing, or whether it's a Freedom of Information Act request, a Privacy Act request, or interagency sharing agreements that we have with our sister agencies.

And one last thing. Dr. Michaels did mention the reasonable cause memo, and we're working on that, and that should be out shortly. Thank you.

MS. SPIELER: Thank you. So, I think I cut short  couple of questions and wanted to take them, and then we'll ask Mr. Miller to come up and talk to us about the new MOU, or am I wrong about that?

MS. BARBOUR: So this goes back to something that Nancy was talking about, the sending national office staff to the regions to find out what the issues are and discuss that, and that's something we've been talking about, we were talking about this morning in the 11(c) subcommittee, what some of us perceive as a lack of consistency between the regions and sometimes a disconnect between things that the Directorate has been working on, a lot of progress that's been made at the Directorate of Whistleblower Programs that isn't necessarily always trickling down to the regions.

So I wondered if, what kind of information or data are you collecting from those visits, and then if that's something that would be sharable with the committee?

MS. SMITH: Well, I think, in general, we are getting general information about their concerns, et cetera, but we do, have instituted monthly calls with the regional supervisory investigators, so that we can share information. I think if you look at the majority of the initiatives that we've undergone, is to try to get better consistency among the regions. So, we know that what happens in one region isn't necessarily what has happened in another region, but all of our efforts are really tuned towards that.


MS. SPIELER: Can I just ask, have you considered, under the statutes where you get very few complaints, and you talked about buffing up skills -- have you considered having national experts on particular statutes, where there are few complaints, who would sort of be the person who stays up on issues under that statute?

MS. SMITH: That's certainly our desire. As our Directorate builds, we have the same issue that the regions have as far as kind of keeping positions filled, et cetera, but that is the goal that we want to --

MS. SPIELER: I wasn't necessarily suggesting that additional people be added to the Directorate as much as I know you have a coordinating committee around the country, you have figured out ways to deal with some of the limited resources, and it just might make sense at some point to say, well, in Region 5 we're going to have someone who really is an expert on this statute, and if there are questions that come up around the country, call her.

MS. SMITH: Right. And we are encouraging our regions to do that, and share that, and make known, oh, this person is really good in this statute, or has a lot of experience in this particular statute. So it is one of our --

MS. SPIELER: Okay. That's great. That's great.

MS. SMITH: Thank you.

MS. SPIELER: Anything else?  Mr. Miller, do you want to come up, take a seat, introduce yourself, talk to us a little?

MR. EHERTS: I have a fast question on the e-complaint program. Have you seen a plateauing off of the complaints, or are they still on the rise?

MR. ROSA: At the very beginning, we received quite a few. I thought, in the summer, there was -- I personally noticed, because I get an e-mail every time any complaint is filed, and I get them at three in the morning, or on a Saturday afternoon. And I have seen a little bit of a lull in the summer, so I'm kind of expecting maybe it will come back. But I have seen slightly, maybe a slow 5 to 10 percent less than what I've seen before, but we have seen a little bit a lull, but they are coming in, yeah.

MR. EHERTS: My experience in business is when you shine a light on one of these reporting systems, they tend to encourage reporting, and then when you respond and people see that action is being taken, that encourages even more, until you get to a point that action is being taken, just fixing an underlying problem, and then it starts to drop off, and I was just wondering where we were on that curve.

MR. ROSA: Well, in the very beginning -- we started in December, and we didn't get that many in December or January. I'll have to say, around March, when we had the last meeting, March, April, May, we did have a tremendous spike. I mean, we would have monthly calls with the field, and they would say, "This is really taking too much of our time. We really have so many complaints coming in, with all the other complaints that we have, whether they're in writing or they're coming in by fax, or they're coming in by phone, we're getting all these complaints." 

I have a feeling, at least my personal experience has been that it's kind of slowed down slightly, but I'm not going to rule that this has gone to a lull yet. I think it's a little too soon for that.

MS. SPIELER: Mr. Miller, you have the floor.

MR. MILLER: Good afternoon. My name is Bob Miller. I'm with the Federal Motor Carrier Safety Administration within the U.S. Department of Transportation. I'm the Office Director for Policy, Strategic Planning, and Regulations, which sounds a little bit odd. It's not the enforcement office. In my prior experience, I was a regional field administrator for our compliance and enforcement programs. Our office manages the audit liaison function, which has the OIG, the GAO, NTSB, and we already have a workflow process on OIG hotline complaints. So when the MOU -- which I'm going to speak to in a moment -- was developed, our agency made a decision to put the management of that function under my office, and one of my divisions to manage it.


As Mr. Rosa mentioned, we executed an MOU between OSHA and the Federal Motor Carrier Safety Administration earlier this summer. He was one of the primary founding fathers of it, along with one of my partners. What this MOU really does for us is it formalizes what has historically been an informal relationship in our field offices. Some field offices participated more actively with our OSHA partners. Some were less active or didn't know who their local partners were. Mr. Rosa was fortunate to work with a woman in our office in Atlanta by the name of Lucy Johnson, and they had formalized their own working relationship on a lot of OSHA FMCSA-related issues.

So this MOU that we executed this summer was the culmination of that effort, and formalizes those relationships, and now it gives us a benchmark or a framework for us to work collaboratively in the future, across the nation. One of the other things that the MOU does for both agencies is it really addresses one of the findings of the recent GAO audit on collaboration on STAA whistleblower protection findings.

With regard to the MOU itself, there are really four key points to it, collaboration on investigation a key one. Obviously, OSHA has a role in the employment resolution issues with drivers who may or may not have been terminated for a safety-related issue, where we have the safety oversight of the industry, as a whole. So what the MOU lays out is a communication strategy where, if complaints come into OSHA that are strictly a safety issue, without an adverse employment-related item, they will kick it over to us, for us to investigate from a safety perspective.

Similarly, if we get a complaint in one of our field offices, it will funnel back through us, to OSHA, where it's related to an employment adverse action. And where there a common, a duality, if you will, we can also work collaboratively on those investigations. So, in other words, if it's a safety issue with an adverse employment action, perhaps we will send in investigators together to do that investigation.

The other key aspect of it, as Mr. Rosa mentioned, was data-sharing. Within the MOU, we have some publicly accessible information about truck and bus companies. Some of you may be familiar, if you've been watching the paper at all lately, about transportation issue. The safety measurement system is one of our key tools for identifying safety performance issues with truck and bus companies, and making it publicly available to not only the industry to make decisions about selecting carriers for operation but also for the public to make decisions about who they want to do business with.

While that information is publicly available to OSHA, we also have a plethora of data behind the scenes, that we can special data runs about a specific company -- for example, the driver who may be complaining about it, an adverse employment action. We may be able to look at how many inspections has this driver been subject to. What is their safety performance been in the past, that might help with the investigative process on the OSHA side of the house.

So, within the MOU there is a data-sharing part. I know you all are starting your database with regards to monitoring these complaints, and we're going to get into a potential this morning, on the transportation committee. We had a discussion about possibly, sometime in the near future, doing some kind of a mix-and-match, if you will. Let's look at the history of the complaints that are coming in about these companies and let's see if there's any kind of commonality about the safety profiles of those companies, to see if there is any kind of findings we can come up with there.

The third issue is training.  Shared training, about two things. I have to admit, our field staff don't know what OSHA does, as far as what their investigative processes and procedures are, and what their roles and responsibilities are. We do know Federal Motor Carrier Safety regulations and the hazardous materials regulations, because that's what our investigators do on a daily basis. So there are some cross-training opportunities there, where, in the future, as opportunities present themselves, we will provide training about what the Federal Motor Carrier Safety regulations are and, similarly, OSHA staff can come out and speak to our field staff. We do have annual in-service training, so we could have the OSHA staff come out and explain the whistleblower process and the other enforcement programs within OSHA's capability.

In fact, last year, even before the MOU was in place, we sent one of our employees, Tom Yeager, over to headquarters here at OSHA to do some training on the hours of service, which is one of the key complaints that you get in the truck and bus industry, with regard to employment. And next week, Lucy Johnson will be down in Dallas doing some training with the regional OSHA staff on our regulations, so that, again, the sharing, the collaboration is already well in play.

The last piece of the MOU is annual reports. There is an agreement that we will share information on an annual basis that will help get a better understanding of the level of effort that both agencies are putting into this work, as well as to get some summary data about what have been the outcomes. So each year, on March 31st, we will send an annual report to each other, kind of summarizing the activities.

Now I will say this. The MOU was executed a couple of months ago. We are still working out the kinks on the implementation, but as I mentioned earlier, many things are already in play, as far as the collaboration goes. As we work through those issues, one of the reasons I'm here today, my participation on the transportation committee, is to engage our stakeholders.

That committee already gave us a couple of good ideas this morning on some things we can do in our sharing, but I look forward to working with this committee, the WPAC, in the future, and I'm looking forward to a positive and productive relationship in the future. I can answer any questions you might have about the MOU.

MS. SPIELER: Before we do that, may I ask, will you be able to be present tomorrow when the transportation subcommittee is reporting?  Do you know?

MR. MILLER:  I'm not sure yet. Bob asked me that this morning, and I'm going to check my calendar for tomorrow, because I do have some appointments, but I had committed today's time, but I can probably make myself available.

MS. SPIELER: Yeah, no, and we do appreciate it. I was just wondering, because since you had been part of the conversation this morning, I thought your perspective might be useful for us when we have those conversations tomorrow. And it looks, for your information -- we can talk about it more over the break -- but Marcia is going to have to leave because of a family emergency and will be able to call in tomorrow afternoon, and we think that what we'll do is put the transportation committee report last, in order to accommodate her schedule, which is likely to be after lunch.


MS. SPIELER: Richard, go ahead.

MR. MOBERLY: Thanks for coming in. I don't want to belabor the point I was making earlier, but this presents kind of an interesting opportunity for some specifics on how this collaboration might work to get at the underlying complaint of a whistleblower retaliation claim. If I understand this MOU correctly, a whistleblower makes a complaint about, let's say, hours of service, I think I heard you say, and is retaliated and gets fired for that. So they file a complaint under STAA with OSHA.

You have not heard, in your agency, about this hours of service complaint yet, so OSHA gets this hours of service retaliation complaint. Am I hearing you right that there is some understanding, and now the underlying hours of service complaint will come to you, and you will investigate that separately?

MR. MILLER: Yes. That's the general idea that we would look into the safety issue of the complaint itself. Again, our role would be the safety, if there's evidence to support that there is a safety problem in the company. The complaint, in and of itself, may not lead to an immediate investigation, but, as I mentioned, we have a lot of data about companies.

I'll give you an anecdotal one. We received one just the other day. The driver said, "I was terminated because I refused to take a run. I was already out of hours. I refused the run and they fired me on the spot."  OSHA sent that to my office. We looked at it. The company had a very high incidence of hours of service violations in their safety record.

You know, it doesn't meant that the complaint was validated from the employment perspective, but there is certainly a safety problem in our records. And we also noted that there wasn't an investigation conducted of that company in the very near past, so, therefore, we are going to send that out for an investigation.

MR. MOBERLY: Okay. And if the whistleblower and the company reach a settlement on the retaliation complaint, would you consider yourself bound by any confidentiality agreement that that whistleblower might have, so if you wanted to investigate the underlying complaint and they said, "Gosh, I can't talk to you because I signed this settlement agreement"?

MR. MILLER: Well, it's an interesting question. From a legal perspective, I couldn't answer that question because I'm not 100 percent sure. But what I would tell you is that when we go in and investigate the company, we're not going to be looking at just that one driver's violation. So, in fact, one of our requirements, and much like OSHA's requirement -- or maybe not like OSHA's requirement -- we have to keep the complainant's identity confidential.


So when we go in and do a safety investigation, I cannot divulge who the complainant is at all, and, for the most part, we would likely sample 5, 6, 7, 10 different drivers' records. We may include that complainant's records in that, and likely we would, just to see if it would validate their complaint. But from an overall safety perspective, we're looking at the company as a whole, and what are their safety practices, with regards to hours of service, not necessarily that specific driver and that specific incident. Does that make sense?

MR. MOBERLY: It absolutely makes sense. Thank you.

MS. SPIELER: Dave, did you have one?

MR. EHERTS: I had exactly the same question, so I think it's right. Just on the converse of that, would you give it any more attention because the original complaint was retaliated against?

MR. MILLER: The safety issue, in and of itself, is our primary mission, is safety.

MR. EHERTS: So they're fairly independent?

MR. MILLER: Correct. We get complaints outside the OSHA environment, where they're just saying, "My company is requiring me to violate the hours of service on a daily basis."  They've not been fired. They've not been threatened to be fired. They're just doing it because they want to stay employed, so there's really no OSHA role yet, because they've not had any. Perhaps they have not filed a complaint with OSHA, but we get those on a daily basis from a company, and then we look at the company's safety record and we say, you know, where there's smoke, there's fire.

If there's safety data that kind of supports it, it will get elevated. I mean, we have limited resources, as well, as far as how many companies. We have over 535,000 companies we regulate with about 325 field investigators, so do the math. It's not easy. But, at any rate --

MR. EHERTS: No. I think it's a model program, interagency. In think intra would also work, right?

MR. MILLER: Correct.

MR. EHERTS: So if there was a complaint of retaliation, I think it ought to be referred, then, to the field office to investigate the original complaint --

MR. MILLER: Correct.

MR. EHERTS: -- and, conversely, if a complaint comes in to the field office, and they're investigating it, and they find out, subsequently, the employee is terminated, they should refer it right over to them, too.

MR. MILLER: Right, and I may have overlooked it because my notes are short. When we get complaints of an adverse employment action, regardless of whether or not we're going to investigate on the safety side, we are kicking it to OSHA for their investigation, because they obviously have the primary role for that. I apologize for not mentioning that earlier.

MR. EHERTS: No. that's perfect.

MS. SPIELER: Gregory.

MR. KEATING: Just really quickly. Anthony, am I right that you have similar MOUs with a number of other agencies?

MR. ROSA: That's correct.

MR. KEATING: And do they share, generally, one of the four fundamental elements, which is this collaboration on investigation?

MR. ROSA: Actually, what we did in this MOU, as we've done with all the other MOUs, is that we formalized it, because we have had an established practice of always sharing a copy of the complaint when it came in, so that the sister agency can determine whether they're going to do an investigation or not. This formalizes that practice. What this does, it gives us the added benefit of getting access to the databases that we don't have access to, that would help us in the case.

As Dr. Michaels mentioned earlier, they have databases that talk about the safety fitness of the company, as well as it talks about the driving safety records of the drivers. That really helps us with, specifically, for example, on credibility issues. Is the driver a really safe driver?  Did the company really prove their position that this is not a really good driver, and that's why they took action, or vice versa. Did the complainant prove that this company is just a bad actor?  So those databases are crucial for us in helping us determine that credibility part, and to test any pretext on either side of the house.

MR. KEATING: And is there anywhere on the very useful website where you could find the MOUs that your Directorate has with other agencies?

MR. ROSA: They should be. They are all on the website, yes.

MR. MILLER: You know, to Anthony's point on the driver issue and the credibility issue of the driver, and the company, for that matter, is we do have that driver database. So, for example, if company has had 100 inspections in the last year and they had an hours of service problem, it could all be that one driver that had filed the complaint. And the company may say, "Well, that's why we fired him. He's constantly violating the hours of service," and you can look at it and perhaps he had had violations dating back 6 months, 8 months in time, and then they finally terminated him now.

Again, that's just a scenario that could help them. And the terminology I'm using is triaging the complaint to see which direction they ought to go, which ones would be likely to be substantiated or not. So, again, the data is available, and we're willing to share.

MR. FRUMIN: So, interesting. Just FYI for the committee members, an interesting expansion of the anti-retaliation program under the Service Transportation Act is the recent congressional directive on FMCSA to include an anti-coercion principal in all of its new regulations, which doesn't even require the commission of a retaliatory act by the employer to trigger an agency action. It's retaliation prevention.

So, Bob's talked to us about it some. There's a Federal Register notice that took comments at close last month. I don't want to put you on the spot about it now -- I don't know how much time we have -- but it is an interesting approach that was mandated by the Congress, to say to an agency, not only do you need an anti-retaliation provision, which, in this case, was punted over to OSHA, but you, yourself, have to put a retaliation prevention provision in your regulations. So I encourage you to look at the anti-coercion proposal that FMCSA published. We'll get a final rule in a year, maybe, or something.

MR. MILLER: We are targeting, hopefully -- I don't want to put a timetable on it, but we're looking towards early 2015.

MR. FRUMIN: Right. So we'll have a definition of coercion in the trucking industry, which will then be used in forthcoming regulations as a prohibited activity, all at the service of preventing retaliation in the first place, and there's a whole back story to it and I don't want to take up the time. I just want to make people aware of it.


MS. LESSIN: Can that, perhaps, be circulated?

MR. FRUMIN: Yeah, sure. If we have it, we'll do it. That's fine. Yeah. We'll send it around.

MS. SPIELER: Just one quick question, and it's more out of curiosity.  STAA, I think, is the only statute that includes independent contractors as well as technical employees under its anti-retaliation provisions, and I'm wondering if that has any effect when you're, either on the retaliation investigation that's done on the OSHA side or on the communication, given that an independent contractor in the industry may drive for more than one company, presumably.

MR. MILLER: Well, from an investigative perspective, on our side, that is a common concern as to who is that independent owner-operator driving for at the time of either the complaint, the crash, or whatever the issue we're investigating. So it does add a level of complexity to our investigations, but I think there's enough documentation the process, supporting documents, to figure out who they're working for. I'm not sure I'm answering your question.

MS. SPIELER: Well, I was just curious, because of the owner-operator drives for a number of different companies, which, presumably, many do but not all, then does that have any impact on the way you look at those data, because you were talking about looking at the driver's history and the employer's history, but when you're dealing with the many, many owner-operators out there who may be claiming retaliation by a particular company, right, I assume because they're not being asked back to drive again, so how do you process the data issues there?

MR. MILLER: All of our roadside inspections -- I was telling the group earlier this morning -- we do over 3.5 million roadside inspections per year, not our agency but our state partners, through our grant programs, 3.5 million inspections. All those inspections are tied back to a USDOT number. So even thought they're an independent owner-operator, maybe driving for three different companies, at that time of inspection, through investigation at the time of inspection, it's determined who is the motor carrier they're working for at that time.

MS. SPIELER: Oh, okay.

MR. MILLER: So the outcome of that particular inspection would go to that company. Your question is well made when you look at a driver. We also have the converse opportunity, within our database, then, to look at a driver. One of the things we look for when we do investigations, are they driving for multiple companies?  Their hours of service might look good for Company A --


MR. MILLER: -- but they're also moonlighting with Company B, and we have that data possibly available to us, as well, during our investigations of an individual company. So we can flip the data by driver or carrier, depending on which direction we need to go with our investigation.

MS. SPIELER: Thank you. Any other questions?  We're going to take a brief break right now. When we come back, we actually have a lot to do. There are three different presentations, conversations, one about the data that's being kept by the Directorate, and where we are in terms of capacity to analyze it; a second presentation from a representative of the United Auto Workers regarding their experience eon the ground, particularly with Section 11(c) investigations; and, third, a presentation from the NRC.

All of the subcommittees have finished their work, or finished it enough so that we will not need the 4:30 to 5:00 time for the subcommittees to reconvene. So after our break we may go a little longer on the other conversations. I know that Marcia will have to leave at 4:30 to catch her flight, and my apologies to you, but we will probably continue at that point.

So I just wanted to frame the post-break time, and we'll take a 10-minute break now.

[Break taken from 2:54 to 3:07 p.m.]

MS. SPIELER: [In progress.] -- started, I would appreciate it. A couple of housekeeping matters before we get started. First, as a matter of formality, we need to make the agenda a formal part of our record, and it should be entered as Exhibit 1, as part of the record. I'm not going to read it. There are copies of the agenda in the back, if anyone hasn't seen it.

[Exhibit 1 entered into the record.]

And second, if there are people who have joined us since we did introductions at the beginning of the meeting, I'd really appreciate it if you would introduce yourselves.

MR. MODAKAM: Yes. I am Dinkar Mokadam. I'm with the Association of Flight Attendants, Communication Workers of America.

MS. COLEMAN: I'm Nicole Coleman from the Nuclear Regulatory Commission, Enforcement Specialist, Acting ADR Program Manager.

MS. JARRIEL: I'm Lisa Marie Jarriel. I'm the NRC's Agency Allegation Advisor.

MR. STEUB: Phil Staub from WMATA's Office of Counsel here in D.C.

MS. SPIELER: Thank you. So the first subject for our first day post-break conversation is to take a look, have Anthony explain to us what's going on with regard to data collection on whistleblower complaints at OSHA, and to open it up for some conversation about ways in which the data may be useful for the committee's deliberations, and, also, what suggestions people may have for how OSHA may be able to make use of it in the future. So, Anthony, you're on again.

MR. ROSA: Thank you. Do you prefer I stay here or do you prefer I --

MS. SPIELER: Actually, it doesn't matter to me. It's fine for you to sit still.

MR. ROSA: Okay. Well, thank you. I appreciate, once again, the opportunity. What I decided to do, since data, I notice, is of high importance to the committee, is to give you an overview of what our database looks like. And you all have a handout that should be, that was given earlier today. It says OSHA WebIMIS.

MS. SPIELER: And if this could be marked as our second exhibit, I would appreciate it.

[Exhibit 2 entered into the record.]

MR. ROSA: Yes.

MS. SPIELER: Thank you.

MR. ROSA: Just to give you a little background, the whistleblower program has --

[Simultaneous speaking.]

MS. SPIELER: No. It was handed out.

[Discussion about who needs the handout.]

MR. ROSA: Okay, by way of background, the whistleblower form, some people call it the OSHA 87 form. It was part of the overall OSHA database, going back for many years, in the former, or, in some parts, still existing NCR system. It used to be part of the NCR system, together with the OSHA 1, the OSHA 2, the 1(b)'s, all the forms that are currently on the safety and health side. I say this because when I started in OSHA, I was the IT expert in Bayside, Queens, so I'm an IT person.

Before -- as you may have known, or possibly know, the safety and health forms have been recently migrated to OIS, OSHA Information System, but way before that, many years before that, the OSHA 87 form, and some other forms that were created for other programs, a VADS form for, I think, VPP, and other forms that were created, were basically migrated from the NCR system and put onto what we now have, the WebIMIS.

And we've had this for many years. It's basically taking the same exact form and putting it into this WebIMIS system. So although some people may think that whistleblower is still behind because we are on IMIS and everybody else in OSHA is on OIS, we actually migrated way before the safety and health side migrated from the NCR system.

There are some limitations to the database, and I'm going to go over those with you, as I proceed. But when we log into the system, this is the screen that we get. The very first page is what we see on the screen. We have a few tabs on the top. It says Main Page, Oracle Reports, Online Help.

I clicked on Oracle Reports because I wanted you to see the full page. It gives you, on the far left, just below where it says WebIMIS you have Activities and Hours, Whistleblower, and Manage Profile. The one that's used the most, obviously, is the tab called Whistleblower, because that's where the form is. Activities and Hours is where the investigator enters the amount of time that they spend doing the work.

And then, to the right, you see a list of the available reports that we have on the system. At the end of this package, we have given you a sample of one of the reports, which is actually the data that we use to populate the performance statistics spreadsheets that are posted on our website, that recently, as requested by the committee, we have made it available both in PDF and in regular DOC format, so that you can download it in any way.

So the first thing that we do is we go into the system and we click on the term Whistleblower, on the tab, and you go into the following page, and then you initiate the form. The first thing that we do is we call it the Create Intake Form. The first thing is we look for the reporting ID, which is what identifies the office where the investigator is located. In this case, I left the reporting ID out, instead of sanitizing, because I wanted to explain that 05 means that this is a Region 5 case, 229 is the identity for that particular region, and 00 means that it's federal and not a state plan. That's how the designation works.

Then you have a number of other fields, and in this particular, the way the copy came out, anything that has that black box next to it, it's actually a drop-down arrow, and a drop-down arrow gives you the city code, the investigator ID, complaint salutation -- Ms., Mrs., Mr. -- first name, middle name, last name. You also will notice, in these fields, that anything that has an asterisk is a required field. If it doesn't have an asterisk, it's not required. Respondent name, company type, and then you go into the case type, complaint filed, date adverse action, and the method of filing -- by mail, by e-mail, by however the matter may be.

And you go into the next screen, on page 3, and now you're getting a little bit more information, as you move on from the intake into the actual complaint part. We're still in the complaint phase. We're not in the docketed phase yet, of the complaint, because we have not determined whether we are going to docket this case or it's going to be administratively closed. Now, mind you, administratively closed cases only apply to three statutes. That's Section 11(c), AHERA, and ISCA. Those are the only three that we can administratively close. The other statutes we cannot do administrative closure.

Then you see the name of the complainant, and now you have a case number. This is a system-generated case number, based on what you entered on the previous field. A 5 means that this is a case that is designated as a Region 5 case. The next four digits is the city code that you entered on the previous field, and it identifies that city location. A 12 means the fiscal year that it came in, based on the date that you filed the complaint, so now, as of October 1st of this year, every complaint that's filed as of October 1st is going to have a 15 number. And then 030 is the next sequential number that the system gives you.

An activity number is an internal number that the system gives you automatically. No particular purpose for the activity number unless you want to try to do any searches inside the system. We really rely on the case number. That's our identifier for purposes of tracking.

Then you have, again, the case type that you entered before. The investigator ID gets prefilled. Date filed complaint, the date that the complaint was assigned to an investigator, the allegation code, the allegation summary, and I'm going to go down this very quickly, because on the next page it's really going to explain it in greater detail. In fact, I ask that we move to the next page.

In this next page, you would see that now the case type -- this is a separate example, because I wanted to point out some of the limitations that we currently have in the system. Right now this is a case that apparently is from Region 1, because the first number on the top says Region 1, and it's an FY, fiscal year, 14 case. It also shows that the case type is STAA, meaning that this is a surface transportation case.

The complaint was filed on May 1, 2014, and then, in the allegation code, you will notice that it has a drop-down, and these are the options that we have on the drop-down. Was it filed with another agency?  Was it a refusal to perform the work, meaning a work refusal issue?  Was it filing with the primary agency or was it a complaint internal with management? Did the employee participate in a safety and health activity, whether it was inside with the company safety and health program or did they participate in a DOT inspection?  Was this a specific allegation of reporting an accident or an injury, or did the person testify in a proceeding?

You have the investigator assign date, the date that the adverse action occurred. The adverse action types -- here, you have to click at least one of these types. You can click more than one, but at least one of these types has to be clicked on in order to have the complaint move forward.

Then you have the section called Statutory Implications. What happens in our system, and we're trying to work with our IT department to find a way to address this, is if we have a complaint -- and it happens, I don't want to say a lot, but it happens at some regular intervals, especially in surface transportation cases, where you may have an allegation of a truck not being worked properly, but it's also the safety of the employee. So you may have a combination of statutes where it's STAA and 11(c). The system does not allow us to have two case types. It only allows us to have one. So then we use statutory implications to click to click on the boxes of any other statute that may also apply.

The limitation that we have is for tracking purposes. This looks like a STAA case. It doesn't look like an 11(c) case. We know, because it says statutory implication, but when we want to report, and for statistical purposes, this is going to appear as a STAA case and it's not going to appear as an 119(c) case.

Also, when we go into the part down the road in the process where we look for appeal, it's only going to follow the appeal process for one of the two. It's going to always follow the one that says Case Type. So we're working right now with our IT department and trying to have it where the system would allow us to access multiple case types, so that we could have multiple decisions and multiple follow-through to the end of the case, the cradle to grave, that it follows both of them.

Then you have, at the bottom, the administrative closure, reason for admin closure, details for that reason, and if it's actually administratively closed. And then you have that information note on the bottom, that if you are going to administratively close this, then all these other fields are required. But the system also has a check that will not allow us to close a case if it's not an 11(c), AHERA, or ISCA.

And, for procedural purposes, we need to get the complainant's consent in order to administratively close. We will not close, we are not supposed to close any case. I know we have a significant number of cases on 11(c) that are admin closures or what we call screenouts. We have received consent from the complainant to do so. Otherwise, we will docket the case, and if we believe the case should be dismissed because it's untimely and no jurisdiction, we will then dismiss it, give a secretary's findings, and give that person appeal rights. So admin closures only apply when the complainant consented to it.

Once we have determined that the case is being docketed, we move to the next field. In the next field, now you have a series of other dates, below the statutory implication. Everything below there has changed. You have complainant notification date, the respondent's notice date, interview date, when the position statement was received, when the interviews were completed, and so on.

These new dates were added recently, as part of the department's customer service modernization project. I was part of the initial group that worked on this, a couple of years ago. We added these fields, and we're actually testing it right now in one of our regions. I believe we're testing it in Region 6. This is a Presidential initiative that we're working together in the department, together with the Office of Wage Hour and OFCCP in which the parties will have the ability to know, online, real-time, what is the status of their case.

So instead of having to call us, they can go online, get an identifier to make sure that the data is protected, because this is Privacy Act information. So that's why our data is not available to the public, because it's Privacy Act information, so only the parties that are entitled to the information can have access to it.

These fields have been created in order to populate where, in the pending phase, is the investigation. We're testing the system right now without these dates, because there were some complications in the programming of that system. But we have expressed to the programmers that are outside of OSHA, at the other department level, that once all these bugs have been fixed and the program is functioning, we want to add these dates, because this was the purpose of adding them to the system, plus we want to be responsive to the parties to know it's not just pending; it's pending somewhere.

Maybe it's pending review by the supervisor. Maybe it's pending review by the solicitor. Or maybe we're waiting to complete the interviews. But it's somewhere in the pending phase, instead of just one blanket term. So that's why those dates were added.

It has additional dates, for example, if the case is transmitted to the regional solicitor's office, and when it came back. That happens a lot with cases that we are looking for potential merit, and we're seeking the solicitor's office's review and legal analysis, if they want to pursue merit or not.

And the next page, now we move into the tab, and as we go along, you will notice that I was progressing through the tabs on the top of the screen. Each screen has a tab and we move along. Now we're in the Determination tab, and on this particular case, you will notice that it has a series of entries. All say 7/20/2012, but just for purposes of us to educate on how this works, if this complainant kicked out, we have one of the provisions in some of our statutes that allows a complainant to kick out the district court. When does the complainant kick that out?  Then we have if the district court dismissed, if it went to appeals, and how that appeal dismissed, and so forth.

The last entry, once all the process is completed, would say Final Determination. That would indicate that the case is closed. If the final determination does not say yes, then the case is technically still open, somewhere, in some appeal process, some review process somewhere, but once it has a final determination, it would say yes, and that would be the final date, and the case can now be filed away in the fiscal year in which it was closed, and then it goes to the disposition schedule with the National Archives, and it goes through the process of that disposition of that record, in accordance to the final entry date.

MS. SPIELER: So I assume that if it goes to the ALJ level and then the appeal level inside DOL, it would be on here?

MR. ROSA: If it was there. For example, in this case, because the complainant kicked out --


MR. ROSA: -- this is an example, it goes straight to the U.S. District Court.

MS. SPIELER: No, I understand that. I was just asking that if it's going to the ALJ, that would be on this page.

MR. ROSA: It would show the ALJ, and I'm glad you mentioned that, because we also have the docket number, and what we have been using in the field is we will put the docket number that the ALJ assigned, for tracking purposes. There are instances of multiple complaints coming maybe from the same person, and they may have separate number assigned by the administrative law judge, so we want to make sure that the files and all the responses and documentation we receive from the ALJ are kept in the respective file. So we put the ALJ docket number, and the ARB docket number, as well, and if it goes to district court, we also put that number. So that docket field helps us track this all they way to grave, to the end of the case.

MR. KEATING: Anthony, if it gets kicked out and it goes to district court, how are you able to monitor the progress of the case once it's in federal district court?  Do you actually watch the case?

MR. ROSA: We actually mark it as a final case, and most of the times we don't. But sometimes, when the district court does give us information, we can go back and update the system. But most of the times we have not gotten any responses back from the district court. This is just for example purposes. We have the ability to do that but we have not gotten responses back. I mean, my experience has been, I've not gotten responses back as to the final outcome once it went to district court.

MR. KEATING: So my point is --

MR. ROSA: Except for 11(c), for example. The 11(c), we do.

MR. KEATING: My point is that you said earlier you won't mark it as final determination unless it's reached a real end point, like the appeals court has dismissed it. So, theoretically, you may have cases that just hang out there forever.

MR. ROSA: We have cases sitting there forever, yeah. We do have cases that sat there forever. We have cases that have gone all the way from the ALJ to the ARB to district court, and is being rounded all the way back down to the ALJ, and they go back 5, 6, 7 years, 8 years old, and they're still in the process. We keep those in a separate filing system, just for appeals, so they don't get mistakenly filed away at Archives.

MR. EHERTS: So you really don't know how effective a kick-out provision would be.

MR. ROSA: If we don't get a response back, no. If we do have a case that has either a settlement and know the amount of the settlement -- because many of the cases have settlements that are confidential, especially at the ALJ and ARB level. I want to point that out. Most of the times they don't give us the specifics of the settlement.

But when we have settlements that are either the OSHA settlements, that are done in-house, or they're third-party settlements that OSHA has approved, or any other settlement that we have gotten this specific information as to the monetary amounts, we will enter that in these fields here. That would have the back pay, compensatory damages, punitive, interest. The system would automatically total.

If that settlement resulted in reinstatement -- as Dr. Michaels mentioned, we had 89 reinstatements, at one point -- it's a sum of these boxes that were checked for this, so that's how the data is used to keep track of this. When we have collected $25 million is the total amount that was collected here.

MR. MOBERLY: When did that start?  You didn't go back and do, from 2002 and 2003?  When did you start putting settlement information?

MR. ROSA: Well, we put in the settlement information the minute that we have the settlement signed.

MS. SPIELER: How many years ago?

MR. MOBERLY: Yeah. When did you start doing that with the database?

MR. ROSA: I always thought we were doing that. I mean, all the time I've been in the program, we've been putting the settlement amount, if we have the amount. I mean, I have cases, for example, that we've issued an order, and we put them out in there. Even though the amount hasn't been received, when there a merit finding, we still put the amount in there because that's what we awarded.

Now, a settlement may come back and say the case has been settled at the ALJ level but we don't know the amount. We have to take that money out, because we don't know what the final outcome is. But we try to keep it as current as possible.

Now, in terms of how many years we've been doing this, as far as I know we have been doing this since I started in the program.


MR. EHERTS: Can I ask a question going back just a little bit?  I'm very interested in ways that we can, let's say, encourage employers to do the right thing without getting a regulator involved. So, if somebody files an internal complaint on an allegation of an unsafe work area, and then that person's retaliated against by the company, then he'll bring the claim to you?  Right?  Does Privacy Act implications prevent you from referring that, then, to a field office for investigation?

MR. ROSA: No. We refer those cases to the field all the time.

MR. EHERTS: Even though the original complaint never went outside, it just want to management? So they said to management, we have an unsafe work area. There's no railing here.

MR. ROSA: That is correct, but they have filed a complaint with us, and most of the times we refer that to the safety and health side for them to determine if they're going to --

MR. EHERTS: Right. But the complaint to you is retaliation --

MR. ROSA: Correct.

MR. EHERTS: -- not the original.

MR. ROSA: Correct.

MR. EHERTS: So you would investigate the original complaint, and then there's nothing in the Privacy Act that prevents you from referring that to a field office?

MR. ROSA: No. In fact, what we do is when we contact the complainant to initially screen, we would ask them, are you interested in us pursuing the safety and health matter as well, because we can refer it to the other side and they can investigate that side. Most of them, they would say that.

MR. EHERTS: Regardless of what they say, I think you should because that would, let's say, demotivate an employer from retaliating.

MR. ROSA: Right.

MR. EHERTS: Knowing that something that could have been handled internally is now going to draw the attention of a field office, I think, would discourage them from retaliating in the first place.

MR. ROSA: Right.

MR. EHERTS: My whole side of this is I want to encourage employers to do the right thing, and so the bigger your hammer, the more likely they will.

MR. ROSA: Exactly. We have been sending those out to the area director in that particular office and say, "We received this complaint. They have some safety and health allegations. Take appropriate action," and they would take appropriate action. They would assign it to a compliance officer that would also have a conversation with that complainant.

They will conduct the investigation whether it's an off-site investigation or an on-site inspection, depending on the severity of the item, or depending on -- there have been instances where, even though we may have felt that it could have been treated as an off-site investigation, we believed that it's a very strong whistleblower matter that the area director has sent a compliance officer out, together with the investigator. We've a few of those instances, at least in my region, where we have gone together at the same time.

MR. EHERTS: Good. I think that's the right thing. Now, does it automatically -- so if they click this complaint with management or participation of safety and health activities, does that automatically get sent to a regional office?

MR. ROSA: It automatically gets sent to the regional office, regardless of what they checked there, yeah, because we want the regional office, the area director, to look at the safety and health concerns that are going on.

MR. EHERTS: Excellent. Great.

MR. ROSA: And the following screen, the following page, it has a screen that explains how the appeal process works for the 11(c), AHERA, and ISCA side, and that's managed here at the Directorate. When the appeal came in -- again, we're using the term "appeal" right now. Eventually we're going to move away from that and call it administrative reviews.

And then, at the next two pages, you will see them in more of a portrait format. Putting all that data together, this is what the case summary looks like, and I always encourage that every time you make an entry to the system, print this form, because this form gives you the total status of the case. It tells you where the complaint came, in, the local case number. This was an RFSA case. It came in in 2009. The allegation was a reported accident injury. Complainant allegation was suspended. The company name, the complainant's information. Obviously, this is sanitized.

You will notice that this, for example, as Emily was saying earlier, this was a case that we had decided that it was a merit case. It says "Agency Litigation Merit."  And then the respondent appealed the case. The ALJ dismissed it. The complainant appealed it. Then, from the ARB, it was remanded back down to the ALJ and then, at that level, the ALJ settled.

But you will notice that there is no monetary amount, because, at that point, the ALJ never shared with us what the amount was. So, the $25 million that we mentioned earlier, or the $119 million that we collected over the past 5 or 6 years, you have to take into account that it excludes all of these cases that we did have, but we don't have that information so we can't add it into the system.

MR. EHERTS: And likewise, you wouldn't know if there was reinstatement?

MR. ROSA: Correct. Correct.

MS. SPIELER: How do you deal with issues of co-employment contracting, in terms of looking at the, sort of -- you have respondent company information, establishment details, parent company, controlling employer. Is that part of the investigation, if a complaint comes in, who you work for, where do you work?  Is the investigator responsible for doing the corporate side review of who is this company?

MR. ROSA: The investigator needs to establish that there is an employee-employer relationship, first and foremost. Even on contractor issues, like on STAA, we need to ensure that there is an employee-employer relationship. We also need to ensure that that employer is their employer, because it could be that they are begin paid, or they are on payroll by a staffing agency, and not necessarily by the contractor, or they are part of a larger conglomerate of corporations, like in Sarbanes-Oxley cases.

In the past, with the Dodd-Frank amendment, we had to do that integrated employer test, because the initial version of SOX did not say that subsidiaries are necessarily covered, but we had to do this entire test, that took us quite a while to get to, but Dodd-Frank kind of helped us in that regard with regard to establishing that relationship.

So that's why there are two separate sections as to who is the respondent and who is the establishment that helps us determine who is the primary party that's responsible.

MS. SPIELER: So what happens if an individual works for a staffing agency at a work site that's, let's say, dangerous, and they complain to the work site company about the dangerous conditions, and they get fired by the staffing agency, okay. Presumably there was communication between the two entities. And then a complaint comes in on 11(c), and presumably the complaint is against the staffing agency, and how do you then loop in the site employer into both the question of the safety concerns and the question of the retaliation?

MR. ROSA: For the most part, we would most likely, in most cases -- and I say this because I have not had a case but I don't know whether the other regions have done -- we will name both respondents. We would initially name both respondents and have them both provide us with statements. No, he's not my employee and I have nothing to do with it. Yeah, but he was my employee but I was following the direction of the host agency. Well, then we've got to include that whole, who's telling us the whole story and who's not telling us the whole story.

But firstly we do name, and we tell the complaint, "Most likely we're going to be naming both."  And I have not had any pull-back from a complainant, where they say, "Well, I really don't want the other one, but I see what you're trying to do."  Because we have had instances where the host agency would say, "Well, I just tried to find him or her another" -- the staffing agency would say, "The host agency doesn't want him or her because they're a troublemaker in the plant, but I tried to find him another job, but there's no other place to place him, so I had to lay him off."

So we have to weigh in, well, is that true?  Could you have put that person even in the office to work, or something else. So we do look into it, to make sure that we are covering both, because, technically, they're both responsible for that employee's safety. So if he or she is raising a safety concern and neither one is addressing it, that that's another issue, and, by the way, we would refer that to the health and safety side, and they may look into that investigation, as well.

And then, the last thing I wanted to mention is the four-page report that is attached to this document, and I just wanted, again, we can talk about data forever, because we have a number of reports, but I just wanted to give you a feel as to what one of the database reports looked like. This is the Investigation Data Report, and this data mirrors what's already on the website.

Some of our information obviously will need to be sanitized. We didn't feel that this one needed any information to be redacted because this data is already public.  It shows, for a particular year -- and this is for fiscal year 2013, because the last chart that shows on our website is for fiscal year 2013 -- it kind of tells you how many cases were received, how many were completed, the timely response time, and so forth.

It also tells you how many were dismissed, what was the percentage of dismissal and the percentage of withdrawals, how many were merit cases, how many were kick-outs. In this case we showed 2 percent of all the cases last fiscal year, the complainants opted to kick out. It also tells you that 56 percent of these cases that were settled, as part of the total settlement merit rate, 56 percent of all the settlements were in-house OSHA settlements, using our standard OSHA template, while 36 percent were third-party settlements that OSHA approved.

Sometimes those can be rather lengthy settlements, because they may be tied in with other regulations and other statutes. And then it tells you the amount, as Dr. Michaels mentioned, the $25 million, and the 86 reinstatements. So the data that we have been giving you and that's available is coming from this particular report.

And then the last two pages are based on what Dave Eherts was just saying, where it tells you how many cases of the total cases that we received, how many of these were filed by -- what was the allegation. How many were filed by the primary agency and how many of those resulted in a merit or a settlement. Same thing. How many were filed by another agency, or how many were work refusals?  How many of those were complaint internally with management?  How many participated in the safety and health inspections inside, and how many reported an injury?  So you see 554 of these complaints alleged that they reported an accident or an injury, and 242 of them resulted in a merit or a settlement. And then the next page is the same information but in percentages.

So that kind of gives you an idea of what our data looks like and how we work. Again, one of the limitations we have is the case type, because we want to be able to track separately, parallel, the different statutes, and it doesn't give us a clear picture of how many 11(c) cases we have, if we have a number of those that are not being tracked as 11(c), because they're being tracked as STAA, for example. So that is one of the limitations that we have, and we're working with our IT department. Any questions?

MR. FRUMIN: Two questions. One is, it's covered in -- what we're looking on the page but you didn't discuss it much is the allegation summary. For instance, on the integrated document, the two-page listing of all the different fields, so the allegation summary is about a third of the way down on the first page. It describes a little bit about what was going on that prompted the complaint.

Our work group has been in the process of obtaining this information now for all the transport-related cases for the last few years, and we'll be getting that in full form from the Directorate here shortly. And, as we discussed, particularly with regard to trucking, but also in rail, we're very interested in looking at these underlying circumstances for a number of reasons. You could imagine if half of all the trucking complaints had a reference to hours of service, for the reasons that Bob Miller was explaining this morning, it would give us a much more robust feel.

The coding that you mentioned is helpful, and, for instance, on the second page of the analysis you provide number of cases and percentage for reporting an injury, and for STAA, or under FRSA, it was 64 percent, and 79 percent of the merit cases, which sort of jives with what Charles Shewmake was saying was his hunch, or maybe he had these data separately, that the majority of the cases in rail are related to the occurrence of an injury and the special handling of rail injury cases under the Federal Employees Liability Act, so it's tied to the individual compensation question.

So, there are some things that are very important about the allegation information, but suffice it to say we are still flying blind, as public stakeholders, in understanding what's in those allegations, and we look forward very much to getting the information in a form that we can analyze, and working with you in prioritizing the analysis. We'll have it initially for the transport cases, and then, invariably, the interest will extend to 11(c), and then to other statues, as well.

MS. SPIELER: So I would suggest that we table -- I think what Eric said is absolutely true. This has been incredibly helpful and I want to thank you for doing it, and quite clearly. You've moved forward a lot since 2 years ago, in thinking about data collection. I'd like to suggest to the rest of the committee that when we have our conversation about 24 hours from now, about next steps for the committee, that we might want to revisit this and think a little bit about what the potentiality is of looking at these data, working with you, because I know that generating reports from these things can sometimes be a little bit challenging inside the agency, but I do think it's a rich area for future discussion.

We're going to run behind if I don't move us forward, so, Nancy.

MS. LESSIN: What I would like, in order for that discussion that we're going to move into, if we can have this, just looking at this data, there's a wealth of questions that come up. But one of them has to do with refusal to perform a task, and clearly we see 33 percent in STAA, 1 percent in FRSA, 3 percent in OSHA. Is that related to what the statute says you have protection for? 

For example, somebody is told to do a job and there's water pouring on an electrical panel. Is there a difference in the protection you have for refusing to do a task from STAA to FRSA to OSHA, and if so, if we could get that part of the statute, that would help me understand what we're seeing here. In FRSA, do you just not have protection for refusing to do a task where you have a lot of protection in the statute under STAA?  In order to think about this and what would make better whistleblower protection, understanding, are these differences having to do with statutory protection or is it something else?

MR. ROSA: To a certain degree, some statutes have a little bit more flexibility, or have a little bit more expansion in terms of that. STAA, for example, in addition to saying that employee can refuse or can raise a concern that he or she believes is a potential violation, they also have a provision in STAA that says the employee can refuse to do a job that he or she believes may cause harm.


MR. ROSA: Where AIR21 doesn't have that. AIR21 is specifically just if there's a potential violation.

MS. LESSIN: What does FRSA have?

MR. ROSA: I can't recall at the time.

MS. LESSIN: Can we get that?

MR. ROSA: Yeah, so that's in the statute. Yeah, sure.

MS. SPIELER: Okay. Great. So, Steve, are you here?  So, our next speaker is Steve Mitchell, who is the Health and Safety Chair for United Auto Workers Local 974, and he, as Bob Miller spent his morning with the transportation committee, Steve spent his morning with the 11(c) committee, and we also asked him to come and talk to the full committee about the experiences of his local and that he has had with the OSHA Whistleblower Program, particular with Section 11(c).

MR. MITCHELL: Good afternoon. Thank for the opportunity to speak with you today. My name is Steve Mitchell. I'm the plant-wide safety chairman for United Auto Workers Local 974. I'm a 39-year employee at Caterpillar Incorporated.

The UAW has a long tradition of fighting for safer and healthier workplaces for everyone, and today we continue the fight for improvements in workplace safety. I welcome the opportunity to share my own experiences, as a health and safety representative who has attempted to use the rights granted under Section 11(c) of the Occupational Safety and Health Act to protect myself and my colleagues at work from employer retaliation.

Again, I'm a 39-year employee at Caterpillar. I'm proud of the products we make. If anybody needs a tractor, come talk to me after we're done. We make the best equipment in the world, and I can, with a certainty, personally, that I want the company and the work force to succeed, as does the United Auto Workers. I'm not here to speak badly about Caterpillar. I'm not here to speak badly about OSHA. I'm not here to speak badly about any investigators, area offices, or anything else. I'm here just to share my experience and describe some of the work that I proudly do every day.

If I didn't belong to a union, I'd be reluctant to be here today, because I would fear that I could be retaliated against for what I'm going to tell you, and a collective bargaining agreement is the only thing that keeps me safe, considering my experience with 11(c), and I shudder to think what non-union employees have to face.

So, in recent years at my local, we've filed 53 11(c) complaints, and we haven't had one complaint that's come in our favor through 11(c). Of those 53 complaints, there were 33 full-time employees. We had three settlements through the grievance procedure and arbitration that were somewhat favorable, in one case, and then favorable in two other cases.

Nineteen supplemental or probationary members filed complaints. They are 0 for 19. Those folks do not have rights under just cause. Therefore, they were fired and their lives have changed. There are four people whose status I do not know because I was not involved in the complaints that were filed.

So almost to a person, people who have made these 11(c) complaints, who were disciplined or discharged expressed to me that they wish they'd never reported their injuries, and that's a sad state of affairs when you consider that your worst day at work of getting hurt just got made worse by potentially losing your job.

There have been some recommendations made by the 11(c) committee that I'd like to speak to, talking about a longer statute of limitations. I think that's a fabulous idea. One of the safety representative from my local was involved in filing a safety complaint regarding lockout/tagout. As the procedure is contractually designed, he carried it forward. The complaint ended up going into the grievance procedure.

He was there with his union representative when he informed management of that. As soon as that meeting was over, the union representative was told that his services were no longer needed. My safety rep was then told that his job was eliminated, and he would receive a three pay-grade cut. That's a substantial pay cut for somebody, and it wasn't a coincidence.

The problem that we had with that case was that when we filed the 11(c) complaint, it was within 30 days of him being moved. It wasn't within 30 days of him being told that he was being disadvantaged.

In another case, a lady that we represent was at work. She was approaching the point in time where she was going to be hired full-time, literally within weeks of that, and she suffered a workplace injury, due to a recognized hazard, a trip hazard. She fell. She broke her arm, she damaged her knee, and she lost her job. Because I got the complaint in late, she lost her house and she ended up living in her car. That shouldn't happen. She was hurt enough.

Reducing the standard of proof, most all of the cases that I've handed include situations where a violation of rules are being used as a pretext for taking discriminatory action against people. Normally it's a rule that's not enforced regularly. It's certainly not enforced in those particular work sites.

But after the injury happens, and we file an 11(c) complaint, if there is a discriminatory action taken, there are instances that are cited in the respondents' position statements, where over in this particular we have enforced that rule, or over in that building we've enforced that rule. It never happens to the person. It never happens to the person who has been injured. It's not in their work area.

I've got two cases where gentlemen were being trained. They were learning a job and they got injured, and they were fired for violating work rules. One gentleman, in particular, he moved his family, his wife and eight children, from Oklahoma to Peoria, Illinois. They had to sell everything they had so they could make this move. He was a probationary employee, approaching the time when his probationary period was up.

As he was doing his job, a part fell out of a fixture, and when the part fell out of the fixture he reached out to grab it. Just in that moment, when he reached out to grab it, the part hit his hand. It didn't break the skin, it didn't bruise him, it didn't cut him. No damage whatsoever. But in that second, he told me that he, "Thought that I had just lost my job," and he asked his coworker, who was training him, "Well, should I report that?" and the coworkers was so afraid, he said, "If you don't report it, I'm going to report you, because we have a rule that everything has to be reported."

Once he reported the injury, he was discharged. His services were no longer needed. It was really tough to sit there and hand the guy Kleenexes in my office as he cried, and he talked about, "What am I going to do now?  I've moved away from my family. We don't have any money. I've got girls in high school. What are we going to do?"  He was fired for not letting the part fall.

Two weeks before the incident, he was told, in a standup meeting, as was everybody else, if something falls, go ahead and let it fall. Now, in that split second when that part's falling out there, a very, very expensive piece of machine hardware, he didn't have time to think about that. He thought he was doing the right thing, and he did, and he paid for it.

What he didn't know is that 2 weeks earlier, when he was told that he should let the parts fall, other parts had been falling out of this very fixture, and that within 24 hours they had a brand new one in his work area, so no parts ever fell again, but he lost his job.

We had another gentleman who was training on a job and he was suspended for a work rule, that his supervisor never monitored, never checked, never audited, and it was amazing that they could come up with sheet after sheet after sheet where this individual had signed the safe job procedure, I'm not going to do this, I'm not going to do this, I'm not going to do this, and it had never been audited to see if he was in compliance, never once.

When I speak with one of the investigators, when I'm told, as a matter of fact, is that all the company would have to do is to show a single, nondiscriminatory reason that they took this action, a rule that is communicated and not followed, and once that happens, we don't have a chance. That's when the case gets dismissed.

The right to de novo reviews by administrative law judges is something, I think, that really needs to be done. In 2013, a line at our foundry was eliminated. It didn't go away, but the work being done by UAW-represented people did. That job was sent out to a contractor and they continued to do that very same job in that very same spot on the floor, with the very same equipment that our people did.

The reason it was outsourced is because of high injury numbers and workers comp experience. This was told to the union official down at that particular place of employment. It was told to the members in a factory meeting. They were told that it's because you guys are getting hurt and our work comp costs are going up. They didn't fix the job. They just handed off the injuries to another employer. Those injuries are still happening.

This is the same facility that, if you look at the website, talks about them having a 50 percent reduction in their recordable injury frequency in the last 20 months. That's an incredible achievement, and if you look up the word "incredible," you know what I mean. This particular facility was perennially on the OSHA DART List, and now they're not. And they've outsourced jobs. People don't want to report injuries because they're afraid their jobs will be next.

When we had the investigation, witnesses that we had provided contact information for were not contacted. Information regarding workers comp numbers was not requested. When management focuses on recordable injury frequency, these trailing indicators, the absence of injuries does not indicate the presence of safety.  They're chasing the wrong thing, and, I'm sorry, the unintended consequence of that is that people don't report injuries.

That's where the raises come from, that's where the performance incentives kick in, and that's really a shame, because these folks who had their jobs eliminated, the other people that are in there doing them are experiencing the same thing.


As far as the other recommendations, I don't have specific instances. I do have some things I'd like to say about different investigations. We had a union rep who was very active in pointing out hazards. He was suspended for 30 days, a one-on-one discussion with a manufacturing engineer. No witnesses. He said, she said. My guy gets 30 days.

When we provided more than a dozen witnesses to testify to the character of this individual, folks who were literally within feet of where it occurred, where he was supposedly screaming and swearing at this man, they were not called. That's a problem. That investigation was not done correctly.

Last week, I was told of a complaint that one of my safety reps filed, an 11(c) complaint regarding steak dinners. I don't know how many of you have seen the pizza party video. It's great. It's on YouTube. If you've got a weak stomach, you probably don't need to watch it. There was a work group that received a steak dinner. They'd gone 3 years without a recordable injury, and that's a wonderful thing. I mean, 3 years and nobody being hurt -- but what does that tell everybody else? 

When we filed the complaint, we were told that we didn't have a prima facie case, because there was no protected activity. Even if there was a protected activity, the protected activity was only by those people who had reported and were disadvantaged. It wasn't the chilling effect on everyone else. I don't know how many of you all have been a factory, but I can't tell you what I can get you for a cup of coffee, much less a steak dinner.

I sent an e-mail to the investigator, asking for clarification as to why they weren't going to pursue the complaint. I received a call from his acting supervisor. I was told that the union couldn't file a complaint in this case because 11(c) is only for individuals, and that OSHA didn't have any jurisdiction for investigating since there wasn't any protected activity. That was sort of troubling to me, because later on, he told me that Item 4 on the Fairfax Memo only applies to VPP sites. You all are experts on it. I'm just a welder. I'll be welding again on Friday. But if somebody can tell me that that Item 4 only speaks to VPP sites, I'll gladly apologize to this person, but I don't think so.

MR. EHERTS: I know and I can't explain that. I know where that comes from.

MR. MITCHELL: It's the reference.

MR. EHERTS: The reference to that comes from the fact that OSHA was enforcing it only at VPP sites. So if they went into a VPP audit and found that behavior at the company, they would withdraw the VPP certification. That's the way they were using the Fairfax Memo in the beginning.

MS. LESSIN: Not since the Fairfax -- when the Fairfax Memo came out on March 12, 2012, that ended, so it's been 2 years plus that this has not been the case. So if somebody from an OSHA office said that, it goes to all kinds of issues, including lack of training, lack of information. It's wrong.

MR. EHERTS: I'm missing your point. I've been to VPP meetings where they're saying that they took the Fairfax Memo and they can go out to a site that has VPP and do their audit, and if they find any of the practices there, they withdraw VPP. But I don't believe that they are enforcing the Fairfax Memo on a regular compliance visit. If they went to a site and saw the famous so many days without lost time, they wouldn't cite that company.

MS. LESSIN: If there is -- I mean, read number 4.

MS. SPIELER: I'm actually going to intervene here, as chair.

MR. EHERTS: Yeah. I was just trying to explain -- miscommunication.

MS. SPIELER: Because I think we need to focus in not on an argument over either VPP or even what Paragraph 4 of the Fairfax Memo says, which clearly doesn't say what you just said you were told. In any event -- and sort of move ahead, because I think there will be questions for you, and we have another presentation.

MR. MITCHELL: Okay, and that's specifically the point that I made. I said that the VPP reference in there is to identify the types of programs that would be discriminatory, and if you read that letter it's very clear what they are, and it's pizza parties and all this type of thing, very similar to this. We are certainly not in any opposition to having somebody buy is a steak dinner, but if we're going to incent something, let's incent finding hazards, and correcting hazards, and doing things the right way, rather than encouraging people not to report.

One other troubling thing happened. I tried to -- I proposed a settlement agreement. In my complaints, I always fill out a designation of representative form so I'm involved, and I end up doing all this stuff either nights or weekends, because my regular job is working in  factory. I'm not a full-time health and safety person. I do this for the local.

But I asked for the investigator to carry forth a settlement proposal, for a neutral job recommendation for a return of 6 percent of this person's pension, which he lost as a result of retiring early, because of his 11(c) and experience, and reduce his suspension to a 5-day suspension, and just allow him to continue to be retired and make him whole the rest of the way. And the only thing I got was argument from the inspector, on my proposal. I would have hoped that he would have just taken that forward and had the management people look at it on its merits, not argue with me about it.

And then, lastly, a lot of our investigations, well, almost all of them now are handled by investigators who are based more than 150 miles away from Peoria. We've had a number of health and safety compliance inspections. They actually come into the plant, and they look around, and they talk to people. That doesn't happen with 11(c). All of our interviews are by phone. Everything is sent by e-mail. I find it very difficult to consider that a serious investigation when it's conducted from so far away.

I've had investigators from the Chicago area; from Lansing, Michigan; from Cleveland, Ohio; from Indianapolis, Indiana; and I live 7 minutes away from the Peoria area office that has two 11(c) investigators, and I don't understand all of that. When I talk to those investigators, they are handling cases that are based in Indiana, while I might end up with a guy 160 miles away. It doesn't make sense to me. The manual says that a lot of things that should be happening are not happening.

So that's pretty well all I have to say, unless anybody's got any questions.

MS. SPIELER: Questions? Nancy?

MS. LESSIN: It seems like there's a huge system failure. I mean, going back to Region 5 being one of your pilot places that's going to sort of do this in-depth, and have an extra person, and do all of this, and then, this is an example of what happens in that new improved system, there's a real disconnect.

A question is, are we looking at an outlier, or is this something that happens in particular pockets around the country, or is there some way to delve into this, to understand what's happening, and it seems like at every level there's failures. The fact that you're not getting somebody doing face-to-face, the fact that you're not getting witnesses even spoken to, to look into the allegations, the fact everything is being dismissed despite the Fairfax Memo that has a section about using safety rules as pretext, and a section about incentive programs.

So this implicates training issues, or who's setting the agenda here for all of this to happen. So I think my question is, what can be done about this, both in this instance of what we've just heard about 53, 54 cases, but also is this happening elsewhere, and would you see -- would anything that we've heard about in the IMIS system, would anything flag you to say, oh, my goodness, it looks like there's an issue here. One area, and all these complaints, and nothing is coming forward. Does that send up a flag?  So, I think those are just some issues.

MS. SPIELER: Nancy, if you want to --

MS. SMITH: And I did want to thank Steve for the information you provided. We never want to hear that the perception is don't file a complaint because it's not going to go anyplace. So it is disheartening to us to hear that information, but we share your frustration with some of the limitations of the statute. We share your pain in that regard.

In regards to your questions about -- and, again, from what I understand, the data that we were looking at was 2008 to 2013, and so we're hopeful that a lot of the initiatives that we've started, including the ARA and the training, et cetera, will not reflect, or will positively impact people's willingness and the results that they get when they file.

So I think, on these specific instances, yes, there are things in that IMIS system that we could look at to say, should we have caught this earlier, or did we catch it early?  So I think from our standpoint, we really want to take this information and delve into it, and see what the circumstances were. Was it the statute of limitation?  Was it a training issue, or whatever?  So, again, as I said, even though it's not news we want to hear, we appreciate it, because our goal is to improve the program, so with that we intend to take it and look at it, and go from there.

MR. MITCHELL: And it's like I said this morning. The record-keeping standards. Just because an injury occurs doesn't mean that the employer is at fault or the employee is at fault. We want to get the hazards corrected so that nobody gets hurt again, or gets a worse injury, and half of these cases, or 27 of them, are from 2012 to date.

MS. SMITH: Right.

MR. MITCHELL: So, it's been a learning experience.

MS. BARBOUR: I have some questions about data, some of which I know we're going to talk about tomorrow, but sort of coming off of Anthony's presentation and then what Steve has just presented to us. Is there a way -- does the system track, or can we get some of the data that, in the last four pages of the data set, by region, so that we would know how many cases filed, dismissed, all of those fields, but have it broken down by region, because I think that would help the committee, at least from my perspective, identify if there are -- I mean, you know, it's not going to be completely qualitative, but having that information does shed some light on are there particular areas of the country, or offices or regions where everything is getting dismissed, where there's a lot of success?  One would expect that the quality of cases shouldn't be vastly different in one region versus another.

MR. ROSA: I don't think there's a problem with that.

MS. LESSIN: The question that I have to the experts, Steve mentioned at the beginning that he feels protected being here because he is a union member and under a union contract. Is what Steve was doing here considered protected activity under OSHA 11(c)?

MR. ROSA: Yes. Absolutely.

MS. LESSIN: So, I guess what I would like to know is, should anyone touch a hair on your head, I just want it in the record that there will be people watching.

MR. MITCHELL: I just have to remember not to spit on the floor or something like that, right?

MR. MOBERLY: Going to Nancy's point about whether this is an outlier and asking for information, I'm assuming -- and we talked a little bit about this in our subcommittee meeting, about what standards investigators are reviewed, or used when investigators are reviewed. I just wondered if that was written down, if you have standards and protocols for when investigators are reviewed, that we might have access to?  I don't want the actual reviews, but here are the performance standards that we expect form investigators.

MR. ROSA: We can see if we can get that. I don't know how quickly we can, but we'll look into it.



MS. BARBOUR: Just to follow up on that, I think we'd also want to know if those standards are being applied consistently, in every region, with every investigators, if that's possible.

MS. GARDE: Steve, I just want to thank you for the work that you're doing on behalf of the workers. It was brave for you to come here, and I appreciate the time and the risks you took to tell us those stories. I think we all hear them, but it's sobering to hear, and I want to thank you for taking the time to come up here and make sure we heard real-life stories about real-life people.

MR. MITCHELL: Well, thank you very much.

MS. SPIELER: And I would extend that on behalf of the full committee. Are there other questions for Steve?  The committee would welcome your presence tomorrow, or if you ever want to join the Section 11(c) committee, assuming it continues and has phone calls, you're welcome to call into those as well --

MR. MITCHELL: Thank you very much.

MS. SPIELER: -- and Nancy can keep you, or Ava can keep you up to date on when that's happening, because I think the information you bring to us is important in our thinking.

MR. MITCHELL: Thank you again for your time.

[Chorus of thank yous.]

MS. SPIELER: Well, I haven't been as good as I try to be in holding on to time here, but we are actually eager to hear about the NRC, and our apologies that we're running late.

MS. JARRIEL: That's all right. Do you want to go right into it?

MS. SPIELER: I think yes. So we're switching gears here a little, these three different pieces of this post-break -- one entirely internal, one, I think, a little bit as a wake-up reminder about what goes on, on the ground, outside these kinds of rooms, and this third presentation is more akin to the presentations we had previously from other agencies that talk about the way they manage and think about retaliation and whistleblower functions. So we heard previously from both the National Labor Relations Board and the Mine Safety and Health Administration, and now we're turning our attention to the NRC as a place that has a quite sophisticated and developed approach to these issues.

MS. JARRIEL: Thank you.

MS. SPIELER: So if you could introduce yourself first, and if there's any paper that you have that you want us to see, I think we also have to put it -- it's in front. This would be our third exhibit, and it should be part of the record of the meeting.

MS. JARRIEL: Everybody got a copy of the stuff that the 11(c) committee got earlier from Steve, so I don't know if that should be --

MS. SPIELER: This should be number 3. The top of the page says "Caterpillar Dispute With Worker Shows Tension in Injury Claims," and number 4 will be the NRC PowerPoint presentation. Thank you.

[Exhibit 3 and 4 entered into the record.]

MS. JARRIEL: No problem. Okay. So my name is Lisa Jarriel. I work for the Nuclear Regulatory Commission. I'm actually, my title is Agency Allegation Advisor, but what that means is I'm a senior advisor to the commission on policy matters associated with allegations and raising allegations, including allegations of discrimination. I help set policy for the agency, and then I audit our staff how they implement that policy. I work in the Office of Enforcement. I have with me today a colleague who is Nicole Coleman, and she is the Acting Program Manager for Alternative Dispute Resolution Programs.

MS. SPIELER: Does she want to join you at the table?


MS. JARRIEL: So, I've got some slides, and I'll briefly go through them. I'm going to go over the overview. I'm just going to give you a brief history of how we even got into discrimination allegation evaluation. I'll talk about our process, give you a few trends, and then some important activities we have under FOIA.

I don't want to bore you with the Energy Reorganization Act, but just to remind everybody it created the Nuclear Regulatory Commission and it's what gives us our authority to oversee the commercial use of nuclear materials. So that is anything from nuclear reactors to nuclear medicine, and a whole variety of our licensees.

The oversight -- obviously, we have 100 operating reactors and thousands of material licensees, and we can't possibly inspect against all the activities and all of those employees, so we do rely on the workforce to identify nuclear safety concerns, as well. It goes to the training and the processes they have on site, and our regulations concerning those.

We also recognize that they're not going to raise those nuclear safety issues if they don't have an environment in which to raise them safely, if they feel they're going to be retaliated against for raising issues. So when the act was amended, with Section 211, we also promulgated regulations in our Code of Federal Regulations, to protect employees against being retaliated against, at least, in part, for raising a nuclear safety issue or other protected activity. Next slide, please.

So those regulations are in 50.7, and the corresponding regulations, part 50 regulates the reactors and all these other parts are other licensees, but basically it prohibits employers from taking an adverse action against an employee because they engaged in a protected activity, and most of the protected activity is raising a nuclear safety issue.

The regulations also empower us to take civil penalties, impose civil penalties if they're violations of these regulations, and I wanted to emphasize what I believe is really the difference between the Department of Labor and the NRC in this regard, because the Department of Labor, OSHA, does this same thing. It protects employees from raising these issues, under Section 211.

But it really gets back to our mission, and your mission. So the Department of Labor, OSHA's mission is to protect the laborer, protect the employee, and our mission is to protect the public from these nuclear materials, the public and the environment. So the basis of our regulation really gets more to protecting a chilled work environment than it does protecting the individual. If one person raises a nuclear safety concern and is retaliated against for doing so, it can have a very negative, chilling effect on the work environment, and cause other s not to raise nuclear safety issues, which gets to nuclear safety, in general, and, therefore, our mission of protecting the public.

So the basis, although it's good to protect the one, we recognize the Department of Labor has that covered. Our interest in these regulations is really to protect the environment for raising concerns for everybody else, so we constantly are getting back to that environment for raising concerns in our regulations in this area. Next slide, please.

The vehicle for receiving a lot of these discrimination allegations is the allegation program. We formalized that in 1982. It happened to be about the time Three Mile Island was being cleaned up, and we were getting a lot of nuclear safety concerns raised to us. So we put a formal program together in '82, and it operated well for a good 12 years until the IG, our Inspector General, came out with a report that said we weren't doing enough to protect whistleblowers from retaliation, if they raised these issues.

And the Commission directed a reassessment of the program, and in '94, we published a new reg, which included several recommendations -- I think there were 23 to 36; I can't remember exactly -- but it did a few things of interest. It first created this position, my position, the Agency Allegation Advisor, which is directed oversight of implementation of our program, to make sure we were doing everything that we could to protect the allegers.

It required us to periodically train our staff, so they understood how to intake allegations and how to treat the concerned individuals that were coming to us. And it directed us to create this policy statement, because we realized it wasn't enough just to have a regulation to prohibit discrimination, but we really wanted our employers to encourage people to raise issues. It's one thing to say you're prohibited from hurting them if they do, but it's another to say you should have a program that encourages them to participate, encourages them to find these things. Again, the agency and the public relies on the workforce to do this.

So we called it the Safety Conscious Work Environment Policy. However, most of us just refer to it at this point as the Environment for Raising Concerns policy statement. And then we inspect against that work environment aspect, when we inspect, as well, and that program directed us to do that. The policy statement actually came out in '96, and then, in 2005, we beefed it up with a little more how we really expect our licensees to create this environment for raising concerns. Next slide.

This is just a graphic out of an annual report that we prepare in the Office of Enforcement every year, about all the allegations and the trends and analysis of the trends that we see for allegations, and I just wanted to put it up there to show you that last calendar year we got more discrimination complaints than any other type of nuclear safety complaint, 17 percent of the concerns that came in, and we get about 500 to 600 allegations with multiple concerns in those allegations every calendar year.

The next slide is very busy, and I'm going to take it piecemeal. This is the process. So I'm going to start at the beginning. You can change the slide. Just start at the very beginning. We get about, on average, 130 to 150 complaints of discrimination each year, at the NRC. We get that through our allegation program. We get that through the MOU with the Department of Labor. About a little more than half of that, about 60 percent of those actually meet the prima facie case determination. Next slide.

And this, I'm sure you're all familiar with, but it's very similar to the other statutes. The alleger has to have engaged in a protected activity. There has to have been an adverse action taken against the alleger. The person responsible for the adverse action has to have knowledge of the protected activity, and the protected activity was at least, in part, the reason for the adverse action.

I wanted to stop here and say that's another key difference in investigating these concerns, is the Department of Labor and OSHA is interested in making the employee whole, if there's merit to doing that. So, a determination can be made of a violation of Section 211 under OSHA, but then the next question is asked, is there reason to make that employee whole?

The NRC kind of stops at the violation of Section 211 stage, in our investigation. Once we've determined there's a violation, we're not there to decide whether the employee needs to be made whole or not. We've already determined this happened, and it, therefore, can have an effect on that environment for raising concern, and that's when we go into the enforcement stage. So we're very interested in any violation you find or we find of Section 211.

And the next slide is just a definition of adverse action. I don't think that's very different from what other people use, but this is what we have in our directives. Okay, so going back to that messy slide, about 60 percent, I said, each year, are determined to have a prima facie case. At that point, we will offer the concerned individual, the alleger that has the prima facie case, an opportunity to engage in our alternative dispute resolution program.

That program -- we can change the slide now -- that program is a voluntary mediation between the employer and the employee. The NRC is not party to that mediation, but we do pay for the mediator and the mediator's travel expenses. So, if the alleger is interested in using ADR, mediation, our contractor, which is Cornell University, will contact the licensee to see if they're interested in mediation, and if the two parties are so inclined, we will arrange for a mediator to meet them wherever they want to meet that's convenient to both of them, and the NRC funds that.

The process is confidential in that we're not in the room, and what is said in the room is confidential, except, of course, if a nuclear safety issue is discussed, they're free to raise that. That's very important. One of our regulations, under the 50.7 and 30.7 and 40.7 is Section F, which prohibits -- we like to call it the gag order aspect -- it prohibits preventing a concerned employee from not speaking about nuclear safety issues. So the confidentiality is limited, in that if a nuclear safety issue arises, any party that hears it can share it outside that room.

If the parties reach settlement -- and, at any time, they can decide they don't want to do this anymore, the mediation -- but if they reach settlement, that settlement agreement that's signed by both parties is sent to the Nuclear Regulatory Commission. As I said, it's confidential, so they can black out values if they're monetary settlements, and other information, but we're strictly looking at it to make sure there's not a gag order in that settlement, again, because our regulations prohibit that. And that's really the only reason we're looking at that settlement agreement.

If it doesn't have such a thing, and, therefore, it's approved by the agency, that action constitutes the last thing the agency will do with that discrimination complaint. It's been settled. We will not launch an investigation and we will not, therefore, be able to take enforcement, and it's settled.

MS. SPIELER: Into the discrimination.

MS. JARRIEL: Into the discrimination complaint. Obviously if there's a safety allegation that hasn't been resolved, we ask that of the alleger, and we'll keep that. The other part that we keep is if whatever adverse action was taken against the concerned individual has had a chilling effect on others, we'll keep that, too, and investigate it.

MS. SPIELER: How do you determine whether the adverse action taken against one person has a chilling effect on others?

MS. JARRIEL: If the alleger alleges it and/or if we have other information through our inspections and our other allegers, and we're constantly looking for that. The volume of concerns we get, the type of concerns we get, the anonymity used when they raise concerns, and, as I said, we have an inspection procedure that goes and actually looks for chilled work environments.

MS. GARDE: How are you going to expect the licensee to do that?

MS. JARRIEL: Our policy statement is that they will establish an environment that's conducive to people raising nuclear safety issues. It's a policy statement. It's not a regulation, but we have tools that would offer are more painful than violations. We have something called a Chilling Effect Letter that is a very public letter that says the NRC has lost confidence that you have an environment for raising nuclear safety concerns, and that can draw a lot of attention from Congress and stakeholders. When I worked in the industry, I got one of those letters, and I'm convinced that's what drove our stock value down for a while. It got a lot of attention.

So they're painful letters to get, and we send them very carefully, because we only send them if we're convinced the work environment is not conducive to raising concerns, recognizing that if we send that letter and we're wrong, we'll chill the environment. So we do a lot of analysis, interviews, inspections to make sure we're right about it before we send that letter, but we send one or two of those a year.

MR. EHERTS: I have a question. It kind of relates to something we do on the OSHA side, too. What effect would the publication of raised concerns at each one of the reactor sites have on the environment for raising concerns?  So if the NRC decided that we're going to publish, on a website, which reactors across the U.S. have the most raised concerns --

MS. JARRIEL: We do. It is publicly available.

MR. EHERTS: Right. Would that have a chilling effect at that site, on reporting more?

MS. JARRIEL: On reporting more?

MR. EHERTS: Right. So you said the stock value goes down whenever --

MS. JARRIEL: We send a public letter that the Federal Government has determined the work environment is not conducive to raising concerns. That can have an impact.

MR. EHERTS: Right.

MS. JARRIEL: But the raw number?  Clearly if you're an outlier --

MR. EHERTS: Right. If you happened to be next to a site that a high number of reported concerns, probably not, right?  I would say that's probably not a safe sight, naively. But having the right environment for raising the concerns means it is a very safe site.

MS. JARRIEL: We produce a report every year. We publicize the number of allegations that come in, first of all, the total number that come in from on-site --

MR. EHERTS: On discrimination.

MS. JARRIEL: First of all, total number of all safety issues. A subset of those that are from on-site sources, so contractors and licensee employees, and anonymous. Any time we get an anonymous allegation, we assume it's from someone on-site. And then a subset of the total that are discrimination related, and then how many are still open, how many are closed and substantiated. So that's all publicly available.

Then we do a trend analysis every year on all that information, and clearly the first test is if there are a lot of allegations about one employer, then it could be that the work environment is not conducive to raising concerns internally, so we use that as in initial trigger. Oh, they got a lot. Southern California, before SONGS was shut down, had a lot of allegations that came in.

So we looked into it, pulled the string, did more interviews, determined if it really represents a chilled work environments. Sometimes -- and SONGS is another good example -- sometimes employees will buckshot. They'll raise it internally. They're not afraid to raise it internally. They just want us to know. So that's why we have to look. It's not just the number. We have to look at the specifics.

MR. EHERTS: Right. So a good number of reports internally is a good metric.


MR. EHERTS: Right. That's something you want to encourage.


MR. EHERTS: That's not what you report. You report the number of ones that they feel they have to go to you to get --

MS. JARRIEL: But when we get a lot, then we go and look to see what the reporting internally, as well, and we compare it. If ours are going up but theirs are going way up, maybe that's not as bad as if ours are going up and theirs are going down. So we do make that comparison.

MR. EHERTS: Exactly. Very good.

MS. JARRIEL: So this month, this process, we call it the early ADR or pre-investigation stage.  It takes about 6 months from the offer to the alleger until the settlement. We get about a 58 percent, 60 percent success rate in doing that. And the reason we do this, again, is because we believe a quicker settlement, and a settled discrimination case, helps protect that environment for raising concerns.

You know, litigation of issues or an investigation by us can take a long time, and it pits the parties against each other, and the rumor mills are starting, and it really can have more of a chilling effect on the workforce than if the two parties settle and everyone is happy.

MS. SPIELER: You put happy in air quotes, so I have a question about how often these settlements, if they involve dismissals, actually involve reinstatements?

MS. JARRIEL: Most of them involve dismissals.

MS. SPIELER: And do most of those involve reinstatements, because if the person from the work site --

MS. JARRIEL: No. They don't involve reinstatements.

MS. SPIELER: -- and something settles, it doesn't necessarily send a message back to the work site, unless the person walks back in the door.

MS. JARRIEL: Well, and even if they don't walk back in the door, they're still shopping at Walmart. They're still in the community for a while, and we've emphasized that. As a matter of fact, Cornell told us early on -- and they deal with a lot of different organizations in mediation and a lot of different industries -- they said the nuclear industry is very different, in their case, because the settlements don't always have to do with money, as often they can. They said the concerned individuals that you get are very concerned about the issue they raised, that they believe they were retaliated against.

So we've told the employers, our licensees, don't go to a settlement, don't go to our mediation with a lawyer and expect you're going to have a happy outcome. You have to have management there and represented, and you have to listen to what the person was really concerned about, that he believes he was retaliated against, and deal with that issue.

Senior management needs to listen to that, because that's the best outcome. We're only doing this, NRC's only engaged in this and paying for this, because we think it protects that work environment. So if you walk away with a disgruntled employee, still, even though you've written them a check, to help him pay for a mortgage for a year until he can move, that's not protecting the work environment. That's not enough. You have to look broader to the actual nuclear safety issue and potential chilling effect to have a successful mediation. And if they don't, we hear it.

MS. SPIELER: So let me just follow up, and maybe I just have a bias here that I have to struggle against, and I've done most of my retaliation kinds of litigation in the discrimination realm and not in this realm where people are -- although often people are bringing forward broader concerns, in, I think, all of these realms.

But do you post something about the outcome at the workplace? I'm trying to figure out how -- you said, "Well, they still shop at Walmart," and I'm a little stuck on that. I'm wondering whether there's any communication back into the workplaces about the settlements and whether there's a way of communicating that people felt, I got fired but it's okay.


MS. SPIELER: It's just a little hard for me to wrap my head around.

MS. JARRIEL: Part of our policy statement on the Environment for Raising Concerns, the Safety-Conscious Work Environment Policy Statement, is that -- 90 percent of it is about communication. So if you're going to take an adverse action, and it talks about preventing the chilled work environment -- if an employer is going to take an adverse action, for legitimate business reasons, many of our more sophisticated licensees have panels now where they'll make sure that it's legal, what they're about to do, and then they ask the question, even though we know it's legal, could it be perceived to be retaliatory or discriminatory, Section 211? 

And if it could be perceived, and that you can't -- a lot of senior management, in the beginning, when we did this, would say, "Of course they're not going to perceive it be retaliatory. It isn't."  No. That's in Reality Land. Come over here to Perception-ville with us. Could they perceive it's retaliatory?  Could a reasonable person think, he just raised a nuclear safety concern that cost hours on a job, and now we're moving him because he also stole a computer?  And they don't know he stole a computer, because of privacy issues. All I know is he very publicly raised a safety concern.

Could they perceive that's why you're taking this action? And if you think they could, you have to communicate to that work group, or maybe even the whole site, that you're taking this action for a different reason. Maybe you can't say exactly, because of privacy issues, but you have to say more then your lawyers usually want you to say, to protect the many versus the one.

And the policy goes into that a lot, and we do a lot of training. I do a lot of training with senior managers through another organization called INPO, to ensure that they understand our expectations, that they maintain this work environment while they do what they have to do with employees. That's always our focus.

MR. WENGER: That's what I was talking about earlier. You could take these actions but you've got to keep your eye on the ball about how you do that, and a good company will have a process that not just says, yes, that's okay. That guy flunked his drug test so we're going to terminate him, but making sure that there is an understanding that it isn't because yesterday he stood up in a meeting and talked about that safety issue.

That's a pretty sophisticated set of expectations for kind of normal HR, legal infrastructure that I think the NRC has done a good job on building those expectations for their licensees, and in order to play in that sandbox, they've got to learn how to do that right.

MR. KEATING: I'm just struggling, though, on how do you do that right, and balance the invasion of privacy lawsuit you're getting from the individual's lawyer. How do you say, "Oh, no, he stole a computer."

MS. JARRIEL: Billie can answer that.

MS. GARDE: I can answer that.


MS. GARDE: You going to really have to decide, are you running a nuclear plant or are you building sewing machines?  What are you going to be more worried about, the privacy lawsuit or a potential series nuclear accident?  That's a pretty quick question to answer, and then you have to have a discussion with your leadership team, that those are the decisions that you need to make. And you'll have CEOs across the country who will say, "I'll take the risk of a privacy lawsuit," --


MS. GARDE: -- or "I'll take the risk of a defamation case. Actually, it's true, so he did flunk a drug test. But I'll make that decision in terms of protecting the environment."  The Supreme Court has upheld that reasoning, specifically in some pretty significant drug and misconduct cases, where a company has the right to make a decision and publish that decision if it's in the best interests of the overall objective of the company. The Supreme Court case was a police department case, and it was a little bit different, but it's the same concept.

And so you have to have that discussion, and most of the time the general counsel and HR say, "No way. The Western world, as we know it, will come to an end if I publicize the reason why this person got terminated."  But the fact of the matter is, if the termination is disconnected from the safety concern, you've got to give it your best shot to make sure that that workforce understands it wasn't connected. Some may not believe you, but most people will give you the benefit of the doubt if they know what the facts are.

And in a lot of companies, they're asking for the involvement of the person. So if you're going to get punished, not fired, I may ask you to stand up in front of your group and explain, "I did this really stupid thing, and I want to make sure you understand what's going on here. I'm not being retaliated against for this. I'm here committed to making sure that we continue to operate safety." 

And it's raising the bar, in terms of personnel-related actions and decisions, but in that industry, you've got to do that. I've seen it work in other places. It just takes the commitment of the CEO, that wants to make sure he or she does not have retaliation as a problem in their workplace, and they have an environment where people can raise concerns.


MS. LESSIN: I have a comment and a question. The comment is just on this Safety Conscious Work Environment, which the Department of Energy, then, borrowed, because it learned it from the NRC, and we've found that it might help people sing Kumbaya together but it doesn't deal with power relationships, and it doesn't deal with structural kinds of things that we've been talking about, in part.

They've started doing all, we call it squeegee, Safety Conscious Work Environment training, at DOE sites, and you can't sling a dead cat on a Department of Energy site without hitting one or multiple practices, programs, and policies that discourage workers from reporting injuries and illnesses. And all of this training about how to listen carefully, and how to be nice to each other, and sing Kumbaya has done nothing for removing these kinds of practices that are daily experiences of workers on Department of Energy sites. So I have real questions about Safety Conscious Work Environment as doing anything other than maybe tuning people up to sing together.

The specific question that I have has to do with trying to understand protection that workers have in a particular instance. In OSHA, if there's going to be an OSHA investigation of an OSHA-covered workplace, in a unionized workplace, that union can pick a walk-around representative to go around with OSHA. Should that walk-around representative ever be retaliated against for that activity, that would be protected under 11(c).

With the NRC, I wanted to understand, in a unionized workplace, does a union-selected person have the ability to do a walk-around when NRC comes in to do an investigation, and would that person be protected under this for raising issues and then be retaliated against?  And then I have one other question that's a follow-up to that, but let me just understand. Do you have, as part of the practice, that when NRC does an inspection, that inspector can be accompanied, in a union site, by a union-selected?

MS. JARRIEL: Our regulations require that the NRC have unfettered access to anybody or anything they need on that site, which is a little different than allowing people to go with us, because, often, an alleger might want to approach that inspector. So if you had a union steward following you around, it could prohibit that person from feeling free to raise that issue, because they didn't want to tell the union steward, maybe, about it. So I'm not sure the right is that someone can attach themselves and go everywhere the inspector is as much as the opposite -- the inspector can talk to the union steward, the union steward can raise issues to the inspector.

MS. LESSIN: One of the issues -- and I'm looking at safety issues right now, not that somebody is reta--. And so, if the NRC is looking at a workplace --


MS. LESSIN: -- having somebody from the union having rights to go around, point out things -- that's what, in OSHA, a walk-around representative would do-- and then that person would have protection. There is nothing equivalent?

MS. GARDE: The NRC doesn't look at industrial worker safety issues. They're looking at radiation safety issues, and they don't take somebody with them.

MS. SPIELER: I'm trying to figure out exactly where the consonance is between what the NRC does and what OSHA does under the 22 whistleblower laws, so that we can have a productive conversation here.

MR. MOBERLY: I think I can answer.

MS. SPIELER: Let me just finish, Dave. And so OSHA has 22 whistleblower laws and it isn't only 11(c) or only the health and safety piece that's enforced by OSHA, in general industry. So we're interested, really, in understanding how a program that protects people who come forward with concerns about retaliation functions at the NRC, and what we can learn from that.

So, and you said -- you start out by sort of limiting us to the 17 percent of the cases that involved discrimination, of which you say almost all involve dismissals.

MS. JARRIEL: I might have misspoke. Not all of them involve dismissals. What I mean to say is almost all of them that do involve dismissals do not include reinstatement when they go through the ADR process.

MS. SPIELER: Okay. Okay. So you've limited us down to the 17 percent that are involved in discrimination, and I actually have no idea what those other 83 percent are, so I have no idea what exactly this sort of universe of what you look at is.

ATTENDEE: [Inaudible.]

MS. SPIELER: Yeah, I know, but I didn't know what those things were. I looked at the pie chart. So I don't know what -- so does falsification mean I'm alleging that there's a falsification going on by the company?

MS. JARRIEL: Yes. They're falsifying quality assurance documents.

MS. SPIELER: Okay. So OSHA law, the OSHA whistleblower laws include environmental hazards, they include food hazards, they include -- so there is a range of things that OSHA and this whistleblower committee is looking at, that don't only have to do with individual retaliation around safety but also have to do with public welfare concerns and situations where someone has come forward to raise a concern and has suffered retaliation.

MS. JARRIEL: I understand.

MS. SPIELER: Do all of these involve someone suffering retaliation?

MS. JARRIEL: No. All of those involve nuclear safety, period. We only take concerns that involve, within our purview of oversight.

MS. SPIELER: Okay. So those are complaints about safety but not complaints about retaliation.

MS. JARRIEL: Right, just 17 percent.

MS. SPIELER: And the discrimination, the 17 percent that you call discrimination are cases in which someone has come forward and there has been an employment retaliation involved.



MS. JARRIEL: For raising one of the other issues.

MS. SPIELER: So the other 83 percent would be akin to someone calling OSHA and saying you need to do an inspection?


MS. SPIELER: But then presumably not within the whistleblower concern, in terms of retaliation? I just want to make sure --

MS. JARRIEL: An allegation is very simple. It's a statement that something is inadequate, that something is within the NRC's purview --


MS. JARRIEL: -- and we don't know the answer. That's all a person has to raise, and we'll bin it in our allegation program and inspect that.

MS. SPIELER: Okay. So let me take us back to focus on how you manage the cases that actually involve retaliation that come within your purview --


MS. SPIELER: -- those 17 percent, which is where you were initially focused, and you said, of those, about 60 percent you conclude there is at least a prima facie case --

MS. JARRIEL: Right, and we offer --

MS. SPIELER: And of those --

MS. JARRIEL: -- of all of those --

MS. SPIELER: -- 58 to 60 percent get settled. I think that's what you said. That's what I wrote down.

MS. JARRIEL: About, no. About a third -- I'll tell you. So we're on this slide right now that's up there. So about 60 percent we offer early ADR to, so we're talking 75 a year, about. Of those, about a third agree to mediation. Remember, it takes the two parties to agree. It's voluntary. So both the alleger has to want to do it and the employer wants to do it. And of those, a third, or 24 cases, 58 percent of 14 actually reach settlement.

So the others that don't want mediation request an investigation by our investigators, and these are badged individuals that can put people under oath, and take sworn testimony, and subpoena documents and personnel, and are more or less, although looking into a civil penalty, are creating a criminal docket that we can turn over to the Department of Justice for criminal prosecution. But we're looking at it from a civil point, and the investigator is trying to determine if our regulation, and Section 211 of the ERA, has been, that allegation was substantiated.

MS. SPIELER: Okay. Great. Thank you. That's helpful.

MR. EHERTS: I feel there's a huge learning from this model, for us, because, typically, how have those 17 percent of retaliation, of discrimination are handled impacts this climate, because, in terms of the rest of the company. I think that's a huge learning for us. And as an EHS vice president in the company, my biggest concern is this environment for raising concerns.


MR. EHERTS: I don't want anything that OSHA does to impact that environment. I want all the information to come to me, so I have the ability to handle these issues before they turn into serious injuries and fatalities.


MR. EHERTS: So I'm very, very concerned that employees have this environment. So, for instance, the Fairfax Memo is very important to me, because anything that we do that would discourage an employee from reporting an injury or an unsafe work condition, to me, is very important. I want to make sure these employees feel actually free. In fact, I want them to be rewarded for bringing information to me. So I just don't want to protect this environment. I want to enhance it.


MR. EHERTS: So I am very concerned with things that OSHA does, for instance, where it might have a chilling effect. So if OSHA publishes the number of minor injuries at a site, and the neighborhood around the site feels that that's a bad employer because a lot of people are reporting these minor incidents or they're reporting a lot of concerns about hazard workplace, that would chill the effect of reporting, to me.

So I think that's the big learning here, is that protecting this environment for reporting internally is a key. So I want OSHA to have a big hammer when it comes to whistleblower protection, because I want companies to be very concerned that things aren't reported to OSHA. They're reported to us, personally, and that we then respond, and then people see our response and report more, and so that we enhance this environment, is the point. I think this is a fantastic model for that, and I think we should all learn from it.

MS. JARRIEL: Thank you. So the ones that don't --

MS. SPIELER: Let's let the presentation be completed and then, if there's time, we'll have additional questions.

MS. JARRIEL: So we're going to get to the enforcement side of things now. So we've tried to let the parties resolve the discrimination concern amongst themselves. The ones that fail during mediation or the ones where the parties didn't want to engage in mediation go right to investigation. Remember, they've already met the prima facie so the investigations can hit the ground running and start their investigation. About 4 percent of those are actually substantiated. It's very difficult to find proof to substantiate those concerns. So the one or two that we substantiate each year go through the enforcement process.

The first thing we do in the enforcement process is --

MS. SPIELER: Can you remind us, how many total did we start with?

MS. JARRIEL: We started with 130, but not all had prima facie. Only 75 or so had prima facie. So we're down to one or two that actually are substantiated, and what we do is we engage the employer with an apparent violation choice letter. We give them a choice. We think we've found a violation of Section 211, and we're thinking about imposing a civil penalty, and you have a choice.

You can come in and talk to us about it at a pre-decisional enforcement conference, which, in the case of discrimination concerns is non-public, although we do invite the alleger to listen and then speak to us, not the employer. You can just write us and tell us if you agree or disagree or have any issues -- give us your side of the story in writing. Or, you can engage in what we call post-investigation ADR. That is voluntary, also.

This time, it's between the regulator, ourselves, and the employer, and the alleger is not invited but the alleger is contacted, from us, so that we can tell them we're engaging in this, and to get some ideas from them about what they think strong corrective actions should be, what would help the work environment for others.

At that point, the parties share the cost of the mediator. We're still using Cornell, and that process, from that point, when we send the choice letter to an agreement, is about a 9-month process. Mind you, that's after the investigation's already happened, and the investigation can take a year to a year and a half, depending on the number of interviews, the number of documents, and the availability of those, whether we have to subpoena them or not, and all that.

So we go to ADR at that point, and if they don't want to go to the ADR at that point, they can go on and we impose the penalty, so we're back on the last piece. We impose the notice of violation and the civil penalty, and they have a second opportunity to go to ADR with us. And if they don't want to do that and we impose the CP, and then they have a dispute about paying that, they can come to us again.

The purpose of the ADR, in this case, from the NRC's standpoint, is to -- maybe the licensee doesn't want to admit there was a violation. What we want to see are actions to correct what we believe is an apparent violation, and so we'll negotiate. We'll take the notice of violation away, or maybe we'll reduce the penalty, the civil penalty, but here's what we want to see in exchange, and what we typically do is we'll get corrective actions, not just for the one plant where the violation happened but the fleet of plants that the licensee owns.

So it's very much more comprehensive, the corrective actions we get, and involves many more things that we want to throw in the kitchen sink. So we like ADR, at this stage, because we get more comprehensive corrective actions, and we have yet not to settle in there.

MS. GARDE: Let me throw out an idea for this committee. While this is all going on at the NRC, the Department of Labor is also going on, conducting its investigation, relying -- the interface, the investigators between the NRC and the DOL interface, sometimes one waits for the other. Sometimes they share information --

MS. SPIELER: That was the piece I was confused about. Thank you.

MS. GARDE: -- so that there's an interface going on between the Department of Labor investigation and the NRC's investigation. Sometimes the Department of Labor will find in favor of an employee and the NRC will not, so there are, occasionally, different decisions, although that's not that frequent, but there are occasionally different decisions. And the NRC's consistent position is that, in some cases, in making the worker whole.

That's the Department of Labor's job. Our job is to look at the work environment, but there's a recognition that those two pieces are intertwined. So they've been doing a lot better job, both agencies, working together over the last couple of years. For a while it was a real mess.


MS. GARDE: But it's gotten better, so there's more working together when they both get to investigation. If they settle early -- so they take ADR -- it's very usual that a company will settle with me on behalf of the worker and then they'll go and settle with the NRC. They want to just take care of the whole thing. But those lawyers will know it's a two-step process.

MS. SPIELER: So before I open this up, let me just make sure that -- because I don't want to walk away confused. So, there are analogies here between the intersection. The NRC has a particular issue around nuclear safety, which is a particularly big hazard, but it's kind of a big hazard to me when I'm in front of an interstate truck and I'm worried about whether its brakes are working or not, and I, actually, because of some prior experiences, never travel in front of an interstate truck on a downhill slope, on an interstate.

OSHA is often intersecting with other agencies, where their mission is a safety mission, or an environmental hazard mission, or a food safety mission, or a consumer product safety mission, and the piece that DOL has is this individual who has faced discriminatory action and has to be made whole.

So I think it goes back to Dave's point that what is special about the NRC is its mission to prevent chilling effects from these activities, and the question I would ask is, are there things that we can learn on the chilling effect component that would be informative, particularly around the issues of best practices, and telling companies how to function within this realm?

So I just ask that question generally --


MS. SPIELER: -- for you to answer, and then I'm sure there are questions that other people have.

MS. JARRIEL: Sure. We do a lot of outreach with our licensees, and engage often in public discussion about this work environment, environment for raising concerns, and what our expectations are. We have a policy statement but we do a lot more, as far as training the regulated body to what that means and what, really, our expectations are for them. We have promulgated our expectation that they'll have -- we call them executive review boards, but these boards that before you take an action against an employee, ask yourself, make sure not just the one is asking these questions, or HR is asking these questions, but have a small board of people that asks, "Is this really legal?" from all the laws.

Are we discriminating against them because they're over 50?  Let's make sure that's not happening. Let's make sure that we're not violating Section 211. But then, even afterwards, the key question is, even though we know we're doing something legal, could it have a chilling effect, and what can we do to mitigate that chilling effect? 

We never really want people not to take adverse action against an employee that needs to have adverse action taken against them. This isn't the tail wagging the dog. That second question isn't, oh, it might chill so, therefore, we can't take disciplinary action. We just ask that they mitigate the consequences of that disciplinary action on everybody else at that site, so it doesn't chill them.

We have recently, in the last couple of years, proceduralized and very much documented how we, the NRC, determines whether a work environment is chilled, and everywhere we look, and all the questions we ask, and these trends we're looking for. So we have a document that's publicly available on our website, and the website is listed in this presentation, that you could find that goes to -- it's called Chilling Effect Letter Guidance. That's that public letter we send that says we think your environment is chilled; fix it. Again, this is not a regulation, so when we say fix it, it's a request, not a requirement, but no one has ever said no. They address them.

I'm trying to think what else we do, from the chilling effect aspect.

MS. WENDELL: I just want to throw in here. Maybe we should have framed this before we started, but ERA is the only statute, really, where we have another agency investigating exactly the same issue. We have Section 211 of ERA, as does NRC, so it's just a really unique relationship.

MS. JARRIEL: And I'll just correct one thing you said, Billie. We used to defer, sometimes, to OSHA's investigation, but the commission direction back in '94 killed that and said we can no longer defer to DOL. So we'll finish our investigation, and if a DOL investigation is still ongoing, we'll leave the allegation open. We'll tell the alleger we didn't or we did substantiate the concern and take whatever enforcement we're going to take, but we also leave it open and we get your answer, and if there's new and different information that we didn't have in ours, then we'll consider that.

So if maybe we didn't find for the alleger, and didn't substantiate the allegation, but we'll say we're going to leave it open and follow DOL, and then we'll review that. There have been cases where we've taken enforcement based solely on the Department of Labor, or a court case.

MR. ROSA: And in some instances, we were actually considering kind of doing the same thing. In fact, I'm very pleased to have you here, because one of the things I've been working on and struggling is trying to get more understanding about the NRC's process because, as Katelyn said, it's practically identical. The process that we have, there are a lot of similarities between the ERA process that we have with OSHA and the process that you have.  

The remedies are different, obviously. Our remedy is to make whole the complainant, and your remedy is to make sure that the company complies with the law, and any fines that you may find, it's towards the company --


MR. ROSA: -- and not to make anything towards the complainant. So I'm very pleased that you're here and I would to continue the conversation on this particular area.

MS. SPIELER: Richard.

MR. MOBERLY: Someone may have said this, but I am trying to figure out the legal authority for what you do and where it comes from. So, we have the ERA and you have Section 211, and then there's this language under these regulations for protecting the environment for raising concerns. You have on this slide here, protects the environment for raising concerns. That's language in your regulation dealing with Section 211?

MS. JARRIEL: No. That's language in a policy statement the NRC has, that is associated with our employee protection regulation. We do have regulations that protect the employee, and that last bullet is just to say the whole reason we have those is not to protect the employee, but to protect the chilling effect that will happen if someone retaliates against them.

MR. MOBERLY: And that policy statement, the authority from that is under 211, though?

MS. JARRIEL: Yeah. It's associated with. Again, it's a policy statement, so there's no regulatory authority associated. We cannot find a violation against our policy statement. It is just an encouragement of our licensees to meet that policy statement.

ATTENDEE: [Speaking off mic.]

MS. JARRIEL: 10(c) of our 50.7 prohibits retaliation -- discrimination, we say -- against an employee for engaging in a protected activity, as defined by Section 211.

MR. MOBERLY: And the hammer, or the carrot or the stick, or however you want to put it, for them to comply with this environment, once you find, is --

MS. JARRIEL: Is a letter. So it's --

MS. GARDE: It's a policy statement.

MS. JARRIEL: It's a policy statement --


MS. JARRIEL: -- where we just encourage. It's a long statement that says here's what we expect. You're prohibited from retaliating, but we want you to go beyond that. We want to actually people to raise questions.

MR. MOBERLY: And they fall in line for this.

MS. JARRIEL: And if they don't, because we inspect against it --

MR. MOBERLY: Okay. So I guess what I'm trying to figure out is, so in the OSHA environment, I'm trying to think of a legal reason why OSHA could not issue a similar policy statement based on its anti-retaliation provision, requiring similar environments for raising concerns, similar investigations, similar mean letters, or whatever. I mean, is there a reason?  You don't have specific statutory or regulatory authority. You've issued this policy and now you're investigating under it --


MS. GARDE: Let me answer that. I have always thought that the world would be a better place if each of these statutes' regulator had a companion like 10(c) of our 50.7, so they could also send out mean letters, so that they could expand it. But at bottom, if you look back at the history of these laws, all of these laws, Congress talked about the chilling effect.

They put these laws in place not just to make individuals whole but to make the work environment one in which people could raise concerns. It's just the way in practice this has worked out, is the Department of Labor looks at these as individual causes of action, and individually making the worker whole, and hoping that doing that will ultimately make the work environment better.

My experience has been, in all industries except the NRC, it works that way almost as a cost of doing business, like EEO case. It hasn't had the same effect in the trucking industry or under the Pipeline Safety Improvement Act, but it could.

MR. MOBERLY: That was my question.

MS. GARDE: Yeah. It could.

MR. MOBERLY: Issue a similar policy statement and take a broader view in the same way.

MS. GARDE: Same way. Same model.


MS. LESSIN: I want to go back to my original question, because I think there maybe was confusion. Maybe not. But I was talking about not an NRC investigation of wrongdoing having to do with retaliation, but when NRC does an inspection to find out if there are problems that are going to harm the environment, is there a policy that allows a walk-around representative from the workforce to accompany, and would that person then be protected? 

Would it be seen as protected activity if they were to say, "Look over here. We have problems over here. Look over here."  I mean, this just goes to nobody knows best where the bodies are buried than those who dig the holes. Workers often know where the weak links are, or what's being glossed over. And in the nuclear environment, I think workers are very important key for the NRC.

MS. JARRIEL: We totally agree. They're a very, very important key. And so to answer the second part of your question, yes. Anybody, whether they're a union or otherwise, that says, "Look over here. Look over here," is protected under our regulation and Section 211, for raising a nuclear safety issue. Look over here at this OSHA issue, we wouldn't take it.

MS. JARRIEL: No, I'm not talking about that.

MS. JARRIEL: But are they allowed to be part of that inspection?  No. No. The NRC has the authority to inspect against their regulations. We don't include workers in those inspection.

MS. GARDE: Or management.

MS. JARRIEL: Or management.

MS. LESSIN: So no walk-around rights the way we see under OSHA?


MS. SPIELER: Okay. So I'm going to pull us back in again, because I'm not sure walk-around rights are really under our purview, interesting and important as they may be. Are there other specific issues now?  I think there have been a couple of things that have come out of this conversation that we may want to mull about tomorrow, but I also am attentive to the time and I know that, in particular, some of the people who are staffing this meeting probably have  right to go home, and this is the Department of Labor.

So unless there are really critical questions that we should direct here, I would suggest we continue the general conversation tomorrow, that we adjourn for the day, and that we reconvene tomorrow morning at 8:30, as promised.

Let me just say a couple of things about that. We'll reconvene at 8:30 and we'll take up, as I said before, I believe, the work group conversations in the order of the 11(c) committee, followed by best practices, followed by transportation. Our lunch break will be early, 11:45 to 12:45. We need to reconvene here before 1:00, because although it's not on the agenda -- am I allowed to say this? -- there is a chance the Secretary of Labor, Tom Perez, may stop by, and it would be at 1:00. So we need to be back in our seats before 1:00.

The last thing is that I asked Katelyn if she could -- the 11(c) committee made some changes to the recommendations that were previously circulated this morning, and I thought it would be importance, since we were taking them up first thing tomorrow morning, that we hand them out tonight so that you would have a chance to take a look at them before we talk about them, since I hate, almost more than anything, being handed something and told that I should be able to react instantaneously to it.

MS. LESSIN: Are you talking about the statutes tonight, a copy of the statutes?

MS. SPIELER: Which statutes?

MS. WENDELL: [Speaking off mic.]

MS. SPIELER: Oh. I wasn't imagining you would be able to do that tonight, frankly.

MS. JARRIEL: I just want to let you know that I'm leaving brochures about our alternative dispute resolution, both pre-investigation and post-investigation, that explain a little better, and point you to the website.

MS. SPIELER: And Lisa, I'm sorry. I didn't say, first, thank you for coming. It actually was incredibly informative, and I think will form the basis of future conversations. And, further, thank you for staying late.

MS. JARRIEL: Oh, no problem.

MS. SPIELER: Okay. Adjourned.

[Whereupon, at 5:17 p.m., the meeting was adjourned.]

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