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U.S. Department of Labor -- OSHA

Whistleblower Protection Advisory Committee Meeting

8:33 a.m. to 3:10 p.m.
Thursday, September 4, 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 (present by phone)
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
MEGAN 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 & Rooney
KIM NELSON, OSHA, Toledo Office
ROB SWAIN, Department of Labor

ATTENDEES (continued):

Also Present (continued):
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 MOKADAM, Association of Flight Attendants
NICOLE COLEMAN, Nuclear Regulatory Commission
LISA JARRIEL, Nuclear Regulatory Commission
PHIL STAUB, Washington Metropolitan Area Transit Authority
LARRY MANN, Rail Labor
RINA TUCKER HARRIS, Consumer Financial Protection Bureau

ATTENDEES (continued):

Also Present (continued):
SHANNA DEVINE, Government Accountability Project
ADELE ABRAMS, American Society of Safety Engineers
DAVID LeGRANDE, Communication Workers of America
RICHARD DeANGELES, OSHA Office of Communications



(Exhibits retained.)


MS. SPIELER: I'm going to call the second day of the Whistleblower Protection Advisory Committee meeting to order. Is there anyone in the room who was not here yesterday?  If so, I'd like to ask you to identify yourselves.

MR. BLANCATO: I'm Philippe Blancato. I'm with the Whistleblower Program. I'm going to be taking notes.

MR. MANN: Larry Mann, Rail Labor.

MS. SPIELER: Thank you. We are going to devote a significant portion of today's meeting to the reports from the subcommittees that have been working between the meetings of the full Advisory Committee, and I've asked each chair of the committee to present in the following order, first to put forward any specific recommendations that the subcommittee has for consideration of the full committee that will require an actual vote of the full committee. At that point, I will chair the part of the meeting in which we consider and vote on a subcommittee's recommendations.

Following that, I've asked the chairs to discuss with us -- and, obviously, this would come first if there are no recommendations -- following that, I've asked the chairs to discuss with us the other things that the subcommittee has been discussing, and, finally, to offer any thoughts and to have a conversation with the rest of us about what the subcommittee might do in the future or whether the subcommittee has completed its work. We will use that portion of each of these conversations in the last part of our agenda, when we discuss next steps for the Advisory Committee, which will include a discussion of whether we retain the current subcommittees, create new ones, or move to fewer subcommittees, whatever seems most appropriate.

We'll do the subcommittee reports in the following order: Section 11(c), Best Practices, and then the Transportation Work Group. In terms of the day, we'll take a break at ten o'clock, and we'll break for lunch at 11:45 to 12:45. At 12:45, we'll invite public comments, which we may interrupt if Secretary Perez drops by, and then we will complete our discussion of the work group work, with the Transportation Group.

Marcia Narine -- we have only two members of the Advisory Committee on the Transportation Work Group, Eric Frumin and Marcia Narine. Eric is the chair of that subcommittee. Marcia is at a funeral this morning and will call in as soon as she is able, for the conversation with regard to the Transportation Work Group recommendations.

Following that, we will convene, essentially, as a full committee, to discuss cross-cutting issues and next steps for the committee. So that's the day. I understand at least one member of the committee has a plane at ten to six, 5:50. If, during the break, you could let me know what your travel plans are and whether we need to move up any agenda items in order to accommodate them, I would appreciate it.

In any event, moving on, I'm going to turn this over to Dave Eherts, who is the --


13. I think Nancy has a point.


MS. LESSIN: There was some information we got yesterday that I think was incorrect. That was from the Nuclear Regulatory Committee, and I spent some time on the NRC website and, in fact, Section 19.14 gives workers and unions the right to walk around with an NRC inspector.

MS. SPIELER: Can you hold that, please, for later in the day?

MS. LESSIN: Fine. Fine. Anywhere it wants to come. I just don't want the federal transcript to have the information we were given, that workers don't have that right, because, in fact, I believe they have that right, and wherever and however today we can correct that, I think it should be corrected.

MS. SPIELER: Okay. Fine. Thank you. Okay, Dave. If you could first tell us the members of your work group and then move on to the recommendations.

MR. EHERTS: And then go around the table.  So, myself, of course, Emily, from this side. Ava, you were involved. Rina was involved, Nancy was involved, Christine was involved, and Richard was involved. That's everybody, right?  Very good.

And then very, very good support from Katelyn and Meghan, too. I want to thank them for that. It really moved us along.

I'm happy to report that we've got three proposals that come unanimously recommended by the subcommittee, and what I thought we'd do is go through them one each, vote on each one after I complete the reading, and then we'll go through sentence by sentence, and once everybody is content --

MS. SPIELER: I think we'll discuss them before we vote on them.

MR. EHERTS: That's what I said. I'll go through them. Then we'll come back through, go sentence by sentence for people with any concerns. Then we'll make a proposal and have a vote. Okay. And, by the way, I thought we had agreement on these a month ago, and we wordsmithed them over the last 3 or 4 months, very carefully, and then yesterday, thinking it would be a half-hour meeting, it went to a 3-hour meeting, and we actually went through and made some substantial changes, in the first one, especially. And I understand you all had copies of these overnight so you had a chance to look at them, and I explained the changes to Greg this morning, very careful.

Okay, the first one. Recommendations regarding the statutory provisions of Section 11(c). The statutory provisions in the OSH Act that are supposed to protect workers who face retaliation for bringing forward their concerns about injuries or hazards are not adequate. The provisions of Section 11(c) are much weaker than the provisions of the other whistleblower laws that are investigated by OSHA, and they are also weaker than the provisions under state law in some state-plan states. The results are troubling. Individuals who bring their concerns under Section 11(c) to OSHA are often barred as a result of the short, 30-day statute of limitations, and, therefore, large numbers of potentially meritorious complaints are screened out because they are filed too late under the statute.

The ability of the complainant or OSHA investigators to pursue a meaningful settlement process is hampered by the limited resources to litigate claims, by the lack of a provision for preliminary reinstatement, and by the higher standard of proof required in 11(c) cases. Most complainant, even if they have legitimate complaints, never have the opportunity to have their complaints heard in a full adjudicatory hearing because they lack any right to appeal to the administrative law judges with in the Department of Labor, or to take the cases into court. There is no formal appeal to the investigatory decision to find the case to be without merit.

For those cases that are found to be meritorious, very few are ever pursued. The number of cases under Section 11(c) filed by the Solicitor of Labor, although it has increased, is still very small. We believe that the provisions of Section 11(c) are simply too weak to protect the rights of whistleblowers under the Occupational Safety and Health Act. It basic fairness to extend the whistleblowers under the OSH Act, protections that are equivalent to those available under the many other whistleblower laws.

In view of these concerns, we urge the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health to advocate for changes in the federal statute that would expand the necessary protections under federal law, and to support efforts in the states to expand health and safety whistleblower protection under state law. The federal statutory changes should include:

1. Longer statute of limitations, from 30 to 180 days;

MS. BETTS: Revised standards of proof equivalent to those found in 49 USC 42121(b) (AIR21), and Section 806 of the Sarbanes-Oxley Act, 18 USC 1514A;

3. Preliminary right to reinstatement;

4. Right to de novo review by administrative law judges;

5. Right to attorney's fees and full damages, including compensatory and punitive damages in litigated cases;

6. A kickout provision that would allow the complainant to take a case into court; and

7. A provision guaranteeing procedural rights under the statute, similar to the provision in Section 806 of the Sarbanes-Oxley Act, 18 USC 1514A(e)(1) and (e)(2).

MS. SPIELER: I think -- and you can correct me if I'm wrong -- that when a proposal comes from a subcommittee, unanimously endorsed by the members of the subcommittee, it essentially comes as moved and seconded, and therefore we can open the floor for full discussion of the proposal, and that's what I'm going to do now. So, anyone who wants to comment, discuss?  Oh, and this initial proposal, Recommendation Regarding Statutory Provisions of 11(c), from the Section 11(c) committee, should be marked as number 5 for the committee record.

[Exhibit 5 entered into the record.]

MS. SPIELER: Discussion?  Christine?

MS. DOUGHERTY: The issue that I had raised on the subcommittee, while all of these recommendations are, I think, needed revamps, the state-plan states, we've talked a little bit about supporting the efforts, but the concern for the state-plan states is funding. We haven't had any increase in funding. We're still looking at that these will all cost money, not only to implement but to support once they're implemented. And if the recommendation for changes to the whole federal system, because state-plan states are half of what does 11(c) cases, have to be as efficient or as effective the federal law, that without the adequate funding to follow up on that, state-plan states will be put in a position to oppose these issues individually, because of the funding issues. So I just want to make it clear that while the state-plan states support these ideas, that the funding still is a real concern for all the state-plan states.

MR. EHERTS: Can I add a comment from the business side, because I've seen this happen quite a few times there. What tends to happen when you shine a light on something like this is that the claims go up, because people understand how they are to be filed, and that they might have some chance of success, so the claims will go up. But I think because of that, companies will do better with their internal provisions and try to handle these internally, understanding that we've got a bigger hammer now, if an employee decides to come outside the company, and I'm hoping that as the internal procedures rake up, we'll actually have fewer whistleblower cases in the long run, because of statutes like this.

MS. DOUGHERTY: Well, I still think that with the added protections that you're giving, with the de novo review, which is a huge part of it, and just the increased activity it's going to take at a state level to get state legislatures or rulemaking changed to allow these changes to the state laws, that you're really putting states on a financial burden to implement these recommendations adequately, should they be passed or taken up in the federal level.

MR. EHERTS: Understood.

MS. DOUGHERTY: I just want that on the record.

MS. SPIELER: Yeah. Eric?

MR. FRUMIN: Christine, I know that in OSHA's annual review of --

ATTENDEE: Could you speak at a microphone, please?

MR. FRUMIN: In OSHA's annual review of state plans, they looked at the discrimination, the 11(c) issues a little more carefully a year or two ago, and tried to evaluate each state's performance on that, and I'm wondering whether there's evidence from that which we could cite to support your point that the caseloads are too high, whatever the indicators are, from OSHA's own view, federal OSHA's own review of state plans, which would show the need for the additional resources. So, just a thought. I'm not saying we need to change this at all --


MR. FRUMIN: -- in advocating for this. Well, first I want to say I agree with you that state plans need to have enough money to do this, frankly, we all know that federal OSHA hasn't had enough money to do its own job. So it's been a backwater at the federal and state level for decades, and we're glad that it's getting the new attention, so, you know, that's all good. But, speak again, going back specifically to your point. So, just in terms of how we talk about this, as a committee, it's something to consider and maybe the whistleblower program folks can tell us, even though you don't do state plan reviews, whether there's particular evidence, maybe not from every state. I know California was practically a basket case in terms of its own ability to move discrimination cases. So, just something to consider, whether there's already evidence on the record from federal OSHA, demonstrating the need, specifically, to adequately fund the anti-retaliation activities of state plans.

MS. DOUGHERTY: Well, I have reviewed all the FAME reports that are published, and the quality of the actual FAME audits vary from region to region as to whether or not they speak to the inadequacies or the strengths of discrimination programs. But I know that we're all under the 90-day Sword of Damocles on all these cases, trying to get them done, and so that's another concern that this committee hasn't even brought to the forefront yet, to talk about changing that.

But every state struggles. Even, I'm sure, some of the states, if you look, they've had one discrimination case. Really?  One?  Even in a smaller state. So, you know, these things may open up the gates further in some of those states where they are not even prepared for what they might get if the filing period is longer or if we change some of these things. But I have taken a look at those.

MR. EHERTS: Just one point. As far as I see it, from the business side, the strategy here is to make the statute stronger so that companies are encouraged -- and I know Greg feels strongly about this, too -- companies are encouraged to put in internal processes and procedures to handle these things internally. Companies need this information to be competitive, and if employers aren't bringing them forward to the company and the company is not treating employees fairly, have this environment of openness, then the employee is going to go out to seek outside help, and I think that's what we're trying to prevent with these stronger rules.

So I would try to encourage you that, in the long run, the states are going to have an easier time funding, you know, than they do right now.

MS. DOUGHERTY: Well, you know, since the Federal Government oversees us and they're the hand that feeds us, we have to make sure that our programs are operating as required under our agreement with them, and when they come in and audit, I mean, my cases get audited. The things that Anthony was talking about yesterday in our committee meeting about how a case is actually looked at -- the Feds come in and do that to my cases, let alone what happens internally in my organization. So they take and look through my cases. We haven't even talked about complaints against state-plan complaints, where Fed OSHA comes in, and because somebody has complained about how I or one of the other two investigators has done a case -- and we have three investigators for the whole state of Minnesota -- that, you know, what have we done?

So we have to please them, and when you're changing how we operate, that is a big change, whether down the road, as Nancy said many times yesterday, that Kumbaya moment comes along, where everybody gets along and management is doing what they should, great. I'd love it. I'd love to be put out of work. I really would. I would love it that nobody has to worry about losing their job in this country because they want to go home safe to their families.

MR. EHERTS: Right.

MS. DOUGHERTY: So, you know, I've been doing this stuff for a long time. I'm very tied to it, but I want to be able to let people know, that are going to make these complaints, that their complaints are going to be investigated adequately, the way the law intends.

MR. EHERTS: Very good. I just don't want to lose sight of that drain-the-swamp goal. All right?

MS. SPIELER: And perhaps we can take up some more about state plan issues at a later time. Other specific comments with regard to this proposal from the 11(c) subcommittee?  Greg?

MR. KEATING: Thank you, Emily. I have a number of comments that I just wanted to put on the record, Emily. First of all, I was also touched by Mr. Mitchell's testimony yesterday. I appreciated his courage in coming forward, and I acknowledge, through hearing that and through listening to Dr. Michaels at the congressional testimony, and you, Emily, at the congressional testimony, and examining this issue, that 11(c) is a statute that needs to have some stronger teeth.

And, Dave, I appreciate your -- I agree with you that, I also agree that there needs to be a combination of sticks and carrots. I've said, since the first meeting, that I wish there were more carrots, and I know we're working on that. Jon's doing a great job with the Best Practices committee, and I hope we can continue those efforts.

That being said, my first comment is that I question -- and maybe I've got my lawyer hat on -- this sounds to me like what we're doing here is legislating, and I think that the Congress and the Senate have the fundamental right to make these statutory changes, and I don't know whether the Department of Labor, through rulemaking or regulation, has the right to fundamentally change a statute in such substantive ways as we are proposing here. That's number one.

Number two is that while I would share the view that a number of these seven proposed revisions to 11(c) would be appropriate, I do have a problem with a couple of them, based on my experience as a practitioner and seeing what I see from the management side. And, by the way, I would also note, for the record -- and, Emily, this is not in any way a blight on the process -- but I would just note that we heard from three folks yesterday. Or, we heard from Mr. Mitchell and we heard the sort of worker side of the story.

You know, I think that there would be many an employer who would come in here and try and give their voice on what they're trying to do, and what they're seeing, in terms of potentially frivolous complaints or abuse of 11(c), and we haven't had that voice.

MS. SPIELER: We certainly can add that to an agenda in the future.

MR. KEATING: And so what I would note, specifically, with regard to my two comments on these seven proposed fundamental changes is that I have a problem with Number 2 and Number 3. Those are changing the standard of proof and preliminary right to reinstatement. With regard to changing the standard of proof, the issue that I have, I would look to a United States Supreme Court opinion that was issued last summer, the Nassar decision.

Justice Kennedy wrote the opinion, and on page 22 of the opinion he went into some detail, and I'd like to just quote briefly, because the exact issue in Nassar was what we're talking about here. Does Title VII, broad remedial statute which prohibits retaliation and discrimination in employment, what is this appropriate standard causation -- which is what we're talking about here. Is it the very lenient standard of a motivating factor?  And, in fact, what we're proposing here is even more lenient than that, a contributing factor. Or, in Nassar, should it be the "but for" causation standard. So the Court was faced with the issue of, should we lessen the causation standard or not? 

Justice Kennedy wrote, and I'm quoting here, "Lessening the causation standard could contribute to the filing of frivolous claims which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider, in this regard, the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.

"To forestall that lawful action, he or she might be tempted to make an unfounded charge. Then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lesson to causation standard, all in order to prevent the undesired change in employment circumstances."

And I admit I have my management hat on right now, but I will also note that I have personally seen many examples where individuals who knew that they were on thin ice but had not had a supervisor who had been doing his or her job in documenting the issues, and then senses, because a new supervisor comes in, that the landscape is changing, may decide to engage in protected activity to essentially forestall future employment action, and that is what Justice Kennedy was talking about there.

If we change the factor to a contributing factor standard, which is as far on the lenient side as you can get from where we are right now, I have some concerns that that may result in clogging up OSHA, and a flood of claims, and that may also result in at least the prospect, as Justice Kennedy noted, of some frivolous claims.

Finally, with regard to the right to preliminary reinstatement, it is my belief that -- and this is a hot issue in the SOX domain. I know that OSHA takes the position that it has the right, once their investigation has found merit, to order someone back to work, but I believe that under due process principles, we have a system in place. I referred yesterday to how it has not one, not two, not three, but potentially four levels to it, and I just think it's fundamentally inconsistent with due process that an employer has to accept a remedy when it hasn't exhausted its own appellate process, and gone to the final judgment.

So, once again, I do support, generally, the premise that 11(c) needs some strengthening. I question whether we're the body that is authorized to do that, and I personally have a problem with Numbers 2 and 3.

MS. SPIELER: Thank you, Greg. Billie?

MS. GARDE: Yeah. Let me respond, Greg, and I will have my employee litigation hat on. I've spent my entire career dealing with this, and those issues that you've raised are commonly, frequently, always raised by management team when we get into the realm of testifying and changing the rules, and I just have to tell you that, first of all, the first of all, the whole mode of a question on whether or not a worker basically tries to create a claim in order to avoid consequences, is frequently thrown out there, but the whistleblower laws work to prevent that from getting very far. It's not that occasionally someone doesn't abuse or try to abuse the process.

Every process, every remedial piece of legislation is going to have people that occasionally abuse the process. But if that standard is the standard that is statutorily in the rest of the whistleblower protection statutes, then it's in there for a reason, and it hasn't clogged up. You look at the numbers. It hasn't clogged up the system at all, with either frivolous claims or not meritorious claims. And those other statutes put those burdens of proof in there, by statute, and it has not had that impact.

I agree that we're not the legislative body, and the likelihood of something getting through this legislation is very slim, but as the primary agency with responsibility for this law, I think it carries a huge amount of weight, and I think goes a long way in terms of sending a message to the Congress that they recognize the disparity between the law on the books in which people are actually being hurt and killed have the least amount of protection.

We heard from Lisa yesterday at the NRC. The NRC has never killed anybody with atomic problems. No one has ever died under those ERA regulations. And yet all these other regulations, people are actually dying, and it has the least burden of proof. I think it behooves us to send a message that, hey, this one got lost just in the passage of time. Had this one come first, I mean, come now, it would automatically be getting the same burdens of proof as all the other whistleblower protections that come up to bat, because those burdens of proof have worked, and the feared abuse has just not materialized.

I think it denigrates the importance of the laws by management to keep talking about that. When I'm training, I say, look, motive is not an issue here. You don't get to defend the whistleblower claims by saying somebody has a bad motive. If they had a real concern, they blew the whistle on a real safety issue, even if they had a bad motive, they are entitled to that protection, and the ALJs have done a great job sorting that out, as courts have done, including calling workers on bad motives, but still recognizing a hazard needed to be raised, which you would want. So what if the person has a bad motive?  They still, if they're raising a legitimate concern, want that concern addressed.

So I completely support the way this is characterized, in terms of recommending legislative action or importance. We can't make it happen. These are legislative authority issues. We can't make it happen, but we can certainly speak to that and say, as a group of experts, we think this needs to be – something needs to be done, and this is one step. And I do think it gives companies a better handle to address it, and that's part of the carrot and sticks that you're talking about. Right now, it becomes much easier to do it as a cost of doing business, as people get hurt.

MR. KEATING: Well, I appreciate everything you're saying, Billie. I would just, with regard to one of the comments you made, it is a fact, and the U.S. Supreme Court noted, right the paragraph before the one I quoted in this opinion, Justice Kennedy noted that, basically, the retaliation claims – and we're talking about two sides of the coin, whistleblowing and retaliation. A whistleblower has a remedy because he or she has been retaliated against.

MS. GARDE: Right.

MR. KEATING: The retaliation claims with the EEOC, in the last 15 years, has doubled. It is now the number one employment claim in America, and it is an unequivocal fact that it is leading race discrimination. It is the number one charge in the employment domain.

And we've often heard the quote – in fact, it was the quote that the courts don't like to sort of sit as super-personnel departments –

MS. GARDE: Right.

MR. KEATING: Trying to sort out each and every human conflict that may happen in the workplace. I do agree with you that there needs to be a stick, and that there needs to be a strong message, and I support that. But I also need to balance what I think, being a practitioner, spending over 90 percent of my time doing this, the reality that we may get bogged down, in many cases, where you're going to go to trial because it's such a low standard for proving causation. It's a thumb on a scale.

MS. GARDE: Right. That's why I said, that just hasn't happened in the other statutes, where that burden of proof has been on the books since the beginning. It just hasn't happened.

MS. SPIELER: Dave. Go ahead.

MR. EHERTS: One recommendation I would make to my company, in reaction to stronger statutes here, is to train the supervisors well. I would document poor performance very carefully, and that benefits not just the company but the employees, because many employees don't understand exactly the peril they're with their poor performance, because it's not discussed openly. And so I think that everybody wins when supervisors document very carefully, have discussions with employees about poor performance, and then there's no surprises when something happens eventually.

MS. GARDE: Right. Which is one of the things that Lisa talked about. One of the things that's worked incredibly well under the ERA, is having this additional level of review, of personnel actions, because the unintended consequences of that is that supervisors have gotten a lot better. They're not going to get their proposed personnel or disciplinary action through an executive review board that has the potential to be viewed as retaliatory unless they've done their homework.

And in the original legislative history, in the original congressional debates back in the early '70s, this was exactly the argument that management made at that time, strongly in opposition to those original environmental whistleblower bills, and what the legislative history comes and says is, yes, we agree there is potential for abuse, and it's going to make it more difficult to manage without doing all of your homework, but we, Congress, think that ultimately the result of that is we're going to have better-managed companies, and a less opportunity for catastrophes and disasters.

Now, those were following the Bhopal disaster, and they were really focused on environmental catastrophes at the time, but basically, that was the congressional answer at that time. Yup, you're right. Potential for abuse, yup, you're right. It's going to make it more difficult. Guess what?  The answer to that is you manage better. You expect more of your supervisors, you make sure they do what they're supposed to do, and then legitimate cases will survive, and not-legitimate cases will fall away. And is it a challenge?  Yes, but you don't get a free pass under these laws. Managers have to manage better.

MS. SPIELER: Other comments?

MR. FRUMIN: I think the judgment call about this issue, and, in fact, all seven of them, Greg, and others, is, in fact, the Congress's judgment. They have to live with their recent history, where they've incorporated these kinds of provisions, if not all of them, most of them, in any retaliation provision they've adopted, and been more and more supportive of it, as Richard as pointed out, as has the Supreme Court, in general.

So I think we don't really need to negotiate with ourselves about what the final judgment call should be in the Congress. If the Congress, in its wisdom, finally decides to take up a totally antiquated piece of legislation on the merits, we'll have that discussion there in relationship to those details. I think we have enough experience under a variety of laws and enough abysmal experience under this specific law to be able to say this law should benefit from the kinds of judgments that the Congress and agencies and others have made – stakeholders, certainly, have made – in law after law after law after law after law. SOX, finance, certainly, but health and safety, environmental law, as well.

So, okay, so I'm, I have my work ahead on here, but I think, from the standpoint of public policy, it makes sense for us to recognize there's a pattern of public policy development that is worth taking advantage of, to remedy a pretty horrific situation. You know, if the agency gets stuck with frivolous claims, if you want to call them that, whatever that means, you know, we'll deal with that, but right now we've got a pattern of public policy judgments and I think it's worth following. It's been instructive.

MS. SPIELER: Other comments?  Nancy.

MS. LESSIN: I think our, not only our right but our duty, as this body, in looking at whistleblower protection and how to make it work better, is to look at all of the places where there are inadequacies, and if there are inadequacies in the statute, it seems to be our right and our duty to identify those and communicate that with the agency responsible for those statutes, and it is totally Congress's role to do what it's going to do. But I think, as a body that has been charged with looking at whistleblower protection and identifying how to make protections real, and reduce retaliation, that it is in our job description to make these kinds of recommendations. So I feel completely comfortable understanding that we're not legislating. We are recommending that there are changes that would make this statute work better for whistleblowers.

I think, also, I'm confused about the issue that I think we've heard about, that weakening or lessening a standard was going to clog up the system with frivolous complaints. You know, in medicine they talk about evidenced-based medicine. Here we can look at evidence, and there is tremendous evidence, I think, from the statutes that have this, that the system isn't being clogged up, and so I don't understand why we hear, again and again and again, about this concern, when, in fact, the concern isn't coming in the statutes that, in fact, have this provision.

Lastly, the issue of the rights to reinstatement. I think that it is always an important role to balance interests, and I think that there are parties involved that have interests. In 11(c), it's a worker who does not have the resources, who can be starved out, who can be out on the street, not having a home, versus an employer who is moving forward and in some kind of judicial system that can take months and years. And so that balance, I think, is something that needs to be attended to, and the right to reinstatement makes it possible for workers to even think about really challenging some of the health and safety problems that they see, and I think it's absolutely essential.

We see it in other places and I think, with 11(c), we're really talking about life and death issue. We're talking about places that could explode, or people that could be tremendously damaged or killed. And if what workers have to do is balance a horrendous health and safety situation resulting with being homeless, not being able to feed a family because they don't have a job for a very long time, that's unconscionable. And so I think this issue of preliminary right to reinstatement is absolutely essential in making 11(c) real for workers and real protection.

MS. SPIELER: Other comments?  Other discussion with regard to this proposal?  Are you ready to vote?  All those in favor of the proposal, if you would raise your hands, please, so we can do a count. That's 10 votes in favor. Opposed?  It passes unanimously. Thank you very much.

MR. EHERTS: The subcommittee discussed at length the Fairfax Memo. This recommendation from Section 11(c) subcommittee regarding practices that discourage reporting. The 11(c) Work Group discussed the Fairfax Memo and proposes the following recommendation to OSHA:

The reporting of an injury or illness by an employee is important not just for compliance with the OSHA record-keeping rule, 19 CFR 1904, i.e., it is a protected activity under the act, but also because it represents critical information for the employer, so that the workplace can be effectively improved, future injuries and associated process disruptions prevented, and lives and costs saved.

Building on the Fairfax Memo of March 12, 2012, entitled "Employer Safety Incentive and Disincentive Policies and Practices," we recommend that OSHA develop and implement an information and education campaign that educates and engages employers and employees about the problems with practices, policies, and programs, that reward a low number of reporting injuries and illnesses, i.e., a low total recordable incident rate, often referred to as incentive programs, as well as injury and safety disciplinary practices as described in the Fairfax Memo.

The goal of the information and education campaign is to have employers eliminate these practices as they discourage workers from reporting injuries and illnesses. Receipt of occupational injury and illness reports is essential to correct problems before someone becomes seriously hurt.

OSHA must have the ability to do more than education employers about the hazardous nature of practices that discourage reporting of injuries and illnesses, and workers should not have to wait until they have been retaliated against as a result of such incentive programs before OSHA can act.

OSHA must be able to use a full complement of enforcement tools to address situations where employers to implement or maintain such retaliatory incentive and disincentive programs. One possibility would be such programs, practices, and policies violate OSHA's Recordkeeping Rule 29 CFR 1904, and employers could be cited and fined under the rule for having such programs, policies, and practices.

On the other hand, incentive programs that reward the reporting of near-misses, the reporting of potentially hazardous workplace conditions, sharing ideas on ways to eliminate or reduce hazards and hazardous conditions, participation in workplace safety audits or inspections, et cetera, should be encouraged.

MS. SPIELER: And that comes unanimous from the subcommittee. Is that correct?

MR. EHERTS: It does.

MS. SPIELER: I'd like to mark this as Exhibit 6, for the committee minutes.

[Exhibit 6 entered into the record.]

MS. SPIELER: And I'd actually, although I didn't warn you, I'd like to ask Nancy or Anthony to just bring us, give us a quick synopsis of where the recordkeeping rule is right now, with regard to these issues.

MR. ROSA: I can't.

MS. SPIELER: You can't. Okay.

MR. ROSA: I think there was an extension.

MS. SPIELER: Okay. So I'll do it. There was an extension of comments of the recordkeeping rule review, and in the announcement for this meeting, and my sending out of my last e-mail prior to the meeting, I included the links to the current Federal Register notice regarding how OSHA is taking this up currently, and I believe that's in the packet for the committee. It isn't necessarily relevant to our consideration, but I did want you to know that this is an issue that is currently under consideration at OSHA now.

Okay. So now I will open this up for further conversation.

MR. EHERTS: One other point. Do we need to include the Fairfax Memo itself in the exhibit?  Yes?

MS. SPIELER: Sure. Okay. So Exhibit 7 would be the Fairfax Memo, in order to make sure that when people are reviewing the committee minutes, it's clear. Great. Thank you, David.

[Exhibit 7 entered into the record.]



MR. WENGER: Just a question to make sure I'm understanding correctly. So the recommendation, the second paragraph, is that even in absence of any evidence of under-reporting, the fact that there were practices that were outlined in the Fairfax Memo, the recommendation would be those would still be a citable issue?

MR. EHERTS: That's right.


MS. SPIELER: Discussion?

MS. GARDE: I have a question and then a comment. I don't understand exactly the first part of the sentence in the paragraph that starts, "OSHA must have the ability to do more than educate employers about the hazardous nature of practices."  Are we talking about these programs as hazardous?  I mean, that word doesn't seem to match with what they're talking about. So I just wanted to make sure I understand that.

MS. SPIELER: Dave, or another member of the subcommittee?

MR. EHERTS: Yeah. I think this goes back to what we learned yesterday from Lisa is so effective from the NRC's perspective, which is this culture of open reporting, and we feel that though these practices were very well-intentioned – in fact, I was responsible, in a previous employer, of getting these things in place, because we felt it was important to hold supervisors responsible – I think that the unintended consequences that came out over the next decade or two are very clear, and that these practices, therefore, diminish reporting. And is diminished reporting hazardous, I guess is your question?

MS. GARDE: Yeah.

MR. EHERTS: You're looking for a synonym, maybe. Okay.


MS. LESSIN: I'll give an example. There was a workplace in Massachusetts where they had a safety incentive program where there were prizes if no injuries were reported. They had injury discipline. People got disciplined if they did report an injury, and a number of other things. There had been minor injuries, in one area, that never got reported, so they never got investigated. The union never looked at it, management never looked at it, because there was no reporting going on.

That company got the Governor's Award for having no injuries one year, and the next year a man was pulled into the machinery and crushed to death. And in the investigation that happened, when it came out that there had been some minor injuries that didn't get reported –- and the primary problem was that in the back of the machine it wasn't properly guarded.

There had been a Kaizen event that determined that it would be quicker if they took part of a guard away. While the primary cause was improper guarding, contributing to this death was the fact that the minor injuries weren't being reported, when the situation could have been looked at and could have been corrected before the death happened. And so that's a pretty dramatic example of the importance of early reporting, and encouraging reporting, and looking at reporting of injuries and illnesses to identify the hazards.

So having these kinds of programs and practices that discourage reporting, in fact, enhance hazardous conditions.

MR. EHERTS: Okay. Maybe the word is detrimental?

MS. GARDE: I like detrimental better. I just think hazardous is a little bit confusing in that.

MS. SPIELER: Is "detrimental" acceptable to the committee members?  I'm looking around the room at the committee members. It comes as yes. Okay.

ATTENDEE: Do we need a motion?

MS. SPIELER: Not if it's a – okay. Billie, why don't you make a formal motion, just to change the word.

MS. GARDE: Okay. I make a motion to change the word "hazardous" to "detrimental" in the paragraph we've been discussing.

MS. SPIELER: Second.

MR. EHERTS: Second.

MS. SPIELER: Is that a friendly amendment, for those who brought forward the –- okay. Then it's accepted as a change. Thanks.

Other discussion?  Comments?

MS. GARDE: Well, with that question aside, I do have a comment and hopefully there will be a little discussion about it. It does seem to me that although I generally agree with both the Fairfax Memo and this recommendation, of putting a little bit more teeth into this issue, it does seem like there's a step missing in terms of evidence that a particular policy or practice is, in fact, causing this result. I think that the Fairfax Memo does a good job of laying out, with some caveats, that these things may occur, and that these things may be the consequences of such programs, and I think some of those programs are, on their face, have that impact.

But I don't want to be in a position where we take away anybody's thought about what is a good program. How can we develop programs that are both incentives or a disincentive, and I'm a little concerned that is like missing a sentence, in terms of evaluation and thoughtfulness about putting in place programs that do help employers get to where they need to get to.

So, I'm not on the subcommittee and this is not my primary area, but I'm used to hearing an allegation that something is causing a chilling effect, and then going out and checking whether that's true. And sometimes it comes back that it's not, or that my assumptions about a particular practice or policy, when you actually get into the workplace and talk to the workers, is either better or worse, or completely different than my own perceptions about what it might have been, or what it might have been causing. And so that, it's like I said, it seems like there's a step missing that requires thoughtfulness about things.


MR. KEATING: I think that comment –- I completely agree with that comment, and I think -- correct me if I'm wrong, Ken, but I think that was what Ken was noting, as well. I do have some concerns that being able to go and use recordkeeping rules to come in and cite and fine employers when there is absolutely no evidence that a policy is causing problems is something that I have trouble with.


MS. LESSIN: So I think that is why we put in the education piece that is, in fact, on OSHA to develop education on this, but the fact is -- and OSHA knows this well -- that there have been two GAOs on this issue, identifying practices and their effects. There has been a congressional hearing in 2008 that produced a report called "Hidden Tragedy: The Underreporting of Workplace Injuries and Illnesses," that details the kinds of activities that have been shown to discourage workers from reporting, and there is an enormous and growing academic studies and literature on this issue. So it is not just -- Rich Fairfax didn't write this based on what was in his mind. It came from evidence from OSHA inspections, and it came from GAO reports, and it came from congressional reports and testimony, and it came from academic literature.

So I don't think we have to start from square one saying we really don't know anything about this. We know a tremendous amount out this, and I think that with the education component that we're asking OSHA to develop, about what we know about the policies, practices, and programs that discourage reporting, together with that volume of literature out there, I think that this absolutely covers the field, and to say we need to know more about something in a particular situation, I don't really understand. If the preponderance of evidence in the academic and government and OSHA literature shows that a practice discourages reporting, then that's a problem that needs to be addressed.

You know, it's almost like we know this substance is hazardous, but we're not sure that it's going to cause a disease in this person. No. I think we regulate based on we know that this is hazardous, we have evidence here, and we don't have to wait for this person to get sick to know that this practice or this exposure can cause damage. Not everybody who breathes asbestos is going to get asbestos-related illness, but we regulate asbestos because that's what could happen, and I think there's enough evidence and literature and government studies and OSHA experience on this issue.

MS. SPIELER: Christine, you had your hand up.

MS. DOUGHERTY: Well, I think we're kind of mixing what 11(c) is about and compliance, because recordkeeping violations are really a compliance issue. And when I get a complaint where a worker says, "I've been disciplined because I reported an injury," I send out a dual referral so that the compliance officer goes out, and they do exactly what Billie is talking about,  They interview the workers to ask them, "Are you being discouraged from reporting an injury?  Do you feel comfortable reporting an injury?" 

And if that's true, that they do, and we believe that there's under-reporting, then the compliance side issues a citation, based on that, and the employer has a right to object to that citation and make their arguments in that arena. In 11(c), what you're looking at is the retaliation of that one individual worker, and if there's chilling effect, and, again, I would be doing interviews with the workers.

I must say that in most of the cases where I've had this kind of complaint, we settle it out because it's usually a disciplinary action that the person is complaining about, not being fired but disciplined, and we get the employer to understand what we're talking about. I give him a copy of the Fairfax Memo, and we move forward. But I think it's a compliance issue on the recordkeeping, not an 11(c) issue.



MR. FRUMIN: Yeah. I just wanted to second Christine's point. If I understand the discussion in the Fairfax Memo, and that's basically what this recommendation is sort of referencing, right?

MR. EHERTS: That's right.

MR. FRUMIN: This recommendation isn't trying to tease out all the ideas in the Fairfax Memo. This is sort of your authority, if that's what you're referring to, right?

MR. EHERTS: That's right.

MR. FRUMIN: So, if I understand this correctly, there's not an absolute presumption that any program, so-called incentive program, is absolutely based upon a low recording, based upon the reporting imageries, absolutely, in every single case, violates 1904. I don't think that's the presumption in the Fairfax Memo. It's an interpretive guidance, which says that they may violate 1904.

MS. GARDE: Right.

MR. FRUMIN: So, my hunch is that, with this kind of guidance, compliance officers are going to take a much stricter look at those practices in a way that was different than before they issued this, which is one of the reasons why employers have had such a strong reaction to this, because it was a wake-up call. Wow, no one ever looked at this before, from a compliance standpoint. Could an employer put together a program, an incentive program, based upon the non-reporting of injuries or illnesses, which could comply with 1904 because it was doing 62 other things to promote an open workplace? 

Could Sikorsky, under Dave's leadership, have gotten past the compliance inspection under 1904, because you had five other ways of making sure workers reported things, even though Eric's salary was based, in part, on the total recordable rate?  Yeah, it's possible, but we know a lot of companies aren't doing that, and so does OSHA, and so do the companies.

So I think if we just take the Fairfax Memo as the authority, I think that answers Billie's question --

MS. GARDE: It's not going to completely preclude --

MR. FRUMIN: Right. Is there a need for evidence for a compliance situation?  If we had to tease out what all that evidence was, we'd be here forever. I don't think we're in a position to do that.

MR. EHERTS: Yeah. If I can just make a few comments on this. Number one, Ken and Billie and Greg made me some self-reflection, like why do I feel this is so intuitive?  I'd go back to one short anecdote. Back in 1992, I was being interviewed, and moving from Merck to what became Sanofi-Aventis, and the VP of HR said, "You need to help me lower the recordable incident rate," because the company was headquartered in Paris, and they were "beating them up" over TRIR. And I said, "You don't need me."  This is back in 1992.

I said, "What you do is put everybody in a group of 10, give them all a Sony Walkman" -- this is back in 1992 -- "Give them all a Sony Walkman if nobody reports an injury. If one person reports an injury, his nine buddies lose their Sony Walkman. Your rate will go to zero. You don't need me."  I stood up. He said, "I want a safety program."  I said, "That's different. I thought you just wanted a zero TRIR." 

And so back in 1992, I understood, intuitively, that taking away rewards from fellow workers was discriminatory  It's hurting the employee that reports the accident, and human nature is then you don't report, especially if it's minor. And so I'm not talking about lost workday cases or fatals. I'm talking about minor injuries, and those minor injuries are critical to an EHS manager, so that he or she knows where the issues are, so they can be corrected. And, again, everybody gains and the company gets stronger, and it goes back to Lisa's chilling effect, and I think that's everything that this is about.

Now, the nexus to 11(c), I think, is the second to the last paragraph of the Fairfax Memo, where he says, "Incentive programs that discourage employees from reporting their injuries are problematic because, under Section 11(c) an employer may not, in any manner, discriminate" -- and this is exactly what Lisa was telling us yesterday -- "against an employee because the employee exercises the protected right, such as the right to report an injury." 

And so I think, back to what Christine asked, I think that's a nexus to 11(c) right there, is that on its face, when you take away a reward from fellow workers, because somebody exercised a right, you're discriminating against that employee, and I think that's why this is important to this committee.

MS. SPIELER: Additional comments?  Discussion?  Are you ready to vote?  Questions?  This is the vote on the amended motion, where we changed the word "hazardous" in the first line of the second paragraph to "detrimental."  All those in favor?  Ten. Opposed?  It's a unanimous vote in favor of recommendation. Thank you.

MR. EHERTS: Yeah. Great discussions.

MS. SPIELER: And we have a third recommendation?

MR. EHERTS: We do. A recommendation from the 11(c) subcommittee regarding punitive damages.

MS. SPIELER: And this will be marked as Exhibit 8 for the committee minutes.

[Exhibit 8 entered into the record.]

MR. EHERTS: The Section 11(c) subcommittee has explored the use of punitive damages in settlement and litigation of OSH Act Section 11(c) retaliation cases. The subcommittee has found that OSHA may not be applying consistent standards regarding punitive damages, and, as a result, may not seek punitive damages in appropriate cases.

The Whistleblower Investigations Manual at 6-2(2011) identifies cases appropriate for punitive damages as those "where the respondent's conduct is motivated by evil motive or intent or when it involves reckless or callous indifference to the rights of the employee" under Section 11(c).

The subcommittee agrees that punitive damages are a necessary tool in combating and deterring these types of egregious cases. Accordingly, based on our research and discussion, we make the following recommendation:

We recommend that OSHA work with the Department of Labor's Office of the Solicitor to develop consistent, articulable standards regarding the circumstances when punitive damages would be appropriate in an OSH Act Section 11(c) retaliation case, whether based on the standards set forth in the Whistleblower Investigations Manual 2011, or some other standards.

We further recommend that OSHA work with the Office of the Solicitor to achieve better coordination between OSHA investigators and the Office of the Solicitor regarding the appropriateness of punitive damages in particular cases.

And, finally, we recommend that OSHA apply these consistent, articulable standards and seek punitive damages in appropriate cases in order to more fully remedy and deter egregious conduct.

MS. SPIELER: And that comes unanimously recommended from the subcommittee?

MR. EHERTS: It does.

MS. SPIELER: Discussion?  Then we can move immediately to a vote. All those in favor?  Ten. Opposed?  None. It's unanimously endorsed by the full committee.

So, Dave, that takes us to the next portion of this conversation. I am aware, since I've been attending the subcommittee meetings, that this has been what the subcommittee has spent its time on, and you are to be applauded.

MR. EHERTS: Almost in its entirety.

MS. SPIELER: Yes. So we can start this conversation now and conclude it later in the day, but I'm wondering what the subcommittee's thoughts are and what the full committee's thoughts are about the additional work that the 11(c) committee might take up, or, whether the 11(c) committee has completed its work and would like to go into either, close down or go into suspension.

So I'm opening that up, not just for the subcommittee members but also for the full committee, for discussion. Ava?

MS. BARBOUR: So, as a member of the subcommittee, I don't think that our work is done, and a couple of area that I think have been brought up, both in our subcommittee meetings and both today and yesterday, with the full committee, that we might take up. I'm looking at doing more investigation of the state-plan states. We had talked about that early on in the subcommittee, and just for purposes of time and the work that we did on these three proposals, we haven't really done much. I know Christine has done some work on it, that we could certainly continue on, and I think that would be useful.

And then the other area that I continue to be interested in is training and consistency in investigations in the regions, and I think that, certainly I asked for some data yesterday and I think that there's more. And I applaud. I know that the Directorate is doing work on that now, but I think it would be something useful for either the 11(c) subcommittee or perhaps that's an issue for the full committee, as it does affect all of the whistleblower statutes that OSHA is responsible for.

MS. SPIELER: Yeah, Richard.

MR. MOBERLY: I just want to second the training, looking at the training, and also say that I think it is a broader issue than just 11(c), so I would encourage us either to set up a separate subcommittee or figure out some way to handle that.

MS. SPIELER: That's interesting, because that actually is an issue that came up at our very first committee meting, and there was a quite animated conversation about it at that time, and I remember Marcia also had a lot of interest in the question of training, and we put it aside. So it is definitely something I think we should take up when we talk about next steps for the committee.

Let's see. Nancy?

MS. LESSIN: So I agree with what's been said and second that. I think two additional things. One is our recommendations were on changes that we wanted to see to make 11(c) work better, but I think Steve Mitchell's presentation yesterday really highlighted that even with what we have, there are things that could and should happen, we need to look into, to make the statute work better as it is, and I think really getting some more data, looking at where there are problems, identifying if there are system problems.

Was Steve's presentation something that's an outlier that has some fixes within a small pond, or would we find these kinds of things throughout?  If so, that's very troubling. I think in either case it's troubling, in trying to identify system problems to make 11(c) work better is really essential.

If there's supposed to be oversight in place, and we end up with the experience here, then I think there are questions about that, so looking at training and oversight and supervision and those kinds of things, I think, is really brought forward.

MS. SPIELER: Do you think that's specific for 11(c), or is that a general issue for the whistleblower investigations.

MR. EHERTS: It could be a new subcommittee.


MS. LESSIN: I know we were looking at 11(c). I know 11(c) has the, when you look at the number of cases coming in, it has the greatest number of cases. But, in fact, as we look at the other statutes, this may, in fact -- we may be looking at all of the statutes, or we may be honing in on several of them that look at this. I would just like to say that 11(c), whether it's standalone or this issue has to be looked at broader, 11(c) should be in the mix for a continuing look at those issues and what might need to be done.

The other thing -- and, again, I'm not sure that this is just 11(c), but one of the most important rights, but, I think, least used and perhaps least protected, is the right of a worker to refuse unsafe work, and I do want to look at is 11(c) really protecting that?  I know that there have been some court decisions in the past that have interfered with that, and I wouldn't mind looking at some of the other statutes -- FRSA, STAA, to see what they look like.

But that's another arena, that if workers don't feel that they have the right to refuse unsafe work, then we can just look at Upper Big Branch Mine and other places where it's been documented that people have had problems. So I would love to look at that piece, in particular, whether it's just 11(c) or broader than that, I think, as a conversation.

MR. EHERTS: Yeah. If I could just comment. Coming into this meeting, I was thinking we would sunset the subcommittee on this issue, but, likewise, I'm kind of inspired by what Steve said, and Christine's plea, also, for resources. And I think the data shows there are some inconsistent ways the statute is being applied in different state plans, and differing results, that's for sure.

So I think would propose moving forward with the data analysis, looking at differences in state plans and the resources therefore required by state plans to implement it correctly.

MS. SPIELER: Okay. Additional thoughts?  Christine.

MS. DOUGHERTY: You know, one of the considerations that I've looked at over the 12 years that I've been doing this work is kind of going along with some of the things that David has brought up, is the education component, is that I don't think we do a very good job of educating, particularly employers, about the responsibilities under the OSHA Act for workers' rights to report everything, from the safety complaints to what discrimination really means.

You know, I go to these employment law seminars in Minnesota, and the Department of Labor always has a wage-and-hour person speaking, talking about all the changes in the Wage and Hour law. I've never seen somebody come from the federal level and speak about OSHA, discrimination under OSHA, what all that means to all the attorneys and the HR people that attend these programs, and that's just in Minnesota.

So if you're looking at 50 states where lawyers gather, HR people gather -- when I did wage-and-hour work, I used to just go and speak to HR people all the time about what their responsibilities were under overtime and all of the reporting requirements, but I don't think we, at the federal level or the state level, have done as good of a job as we could to educate, and I think education and how maybe to implement some of that stuff, whether it's on websites or attending these kinds of seminars are important, because when I started with OSHA 12 years ago, I had no idea there was a discrimination part.

I had done human rights work. I had done labor work. But when I got there it was like, or applied for the job, it was like, "Really? There's a discrimination?  You actually are protected if you bring up a safety complaint at work?"  I'd always done office work so it wasn't as important to me, but I have brothers that are woodworkers, guards, saws, drills, all kinds of things that could go wrong, and I never thought about their rights to have a safe work environment.

So I think the education is a big component that maybe this committee could talk about some ways to get the word out.

MS. SPIELER: Great. Eric.

MR. FRUMIN: So, just as an FYI, the Transport Work Group is coming forward with a recommendation that mirrors the last one, about OSHA promoting, through its own educational activities, employer understanding of any retaliation laws, so it's sort of along those lines.

And then the other thing that I think will also create more of a need for more aggressive outreach by the agency on awareness are the forthcoming rule changes that OSHA is moving forward on the recordkeeping rules, including the public dissemination of employer, site-specific, injury-illness information, and there's a whole story to that.

MR. EHERTS: The chilling effect that might have on reporting.

MR. FRUMIN: Well, yeah. So, all I'm saying is there are a number of factors that are combining to justify a much greater affirmative effort by the Labor Department, and OSHA in particular, to get the word out about protecting workers' rights to report injuries, hazards, and so forth, in addition to the issues you've raised.

MS. SPIELER: Terrific. It sounds like the 11(c) committee will --

MR. EHERTS: Carry on.

MS. SPIELER: -- carry on. I was looking for the right word. Obviously, and as we sort this out toward the end of the day, and if we do sunset any committees or create others, then we'll also want to sort who is on what committee and what people want to be doing, but I think that will happen post-meeting, not here, because if there's going to be any change in the subcommittee structure, it would have to be discussed with Dr. Michaels and others at the agency.

So this is just a formative conversation, although any subcommittee that currently exists that has ongoing work to do can certainly continue on with its current membership and its current chair. And so it sounds as if the 11(c) committee will, in fact, do just that, and I want to express my considerable thanks to Dave, who has been terrific as a chair, and to Katelyn, who has been fabulous as a staff person for the committee. And I just want to note that I think today or tomorrow --

MS. WENDELL: Tomorrow.

MS. SPIELER: -- tomorrow is Katelyn's last day at OSHA, and so she agreed to stay on through, I gather, through this committee meeting, and I want to thank you, on behalf of the subcommittee and the full committee for the work that you've done, and wish you well in your next steps.

MS. WENDELL: Thank you.

MR. EHERTS: I, likewise, would like to thank the members, the fantastic job. We had some big disagreements at times, but we always came back together, and I think the final product is a very, very good compromise.

MS. SPIELER: So, thank you. So it's now ten to ten, and I think we've completed the 11(c) committee report, and we were due, I think, to take a break at ten o'clock. I would suggest we take the break now, and then when we reconvene, we move on to the Best Practices subcommittee. So, 15 minutes and let's reconvene.

[Break taken from 9:51 to 10:12 a.m.]

MS. SPIELER: If there are people who have arrived who are observers, please make sure you sign up on the list, and could you also identify yourselves?

MR. JOHNSON: Ron Johnson, back from Jones Day.

MR. ZUCKERMAN: My name is Jason Zuckerman, and I represent plaintiffs in actions for the whistleblower laws.

MR. CHARTIER: George Chartier of OSHA Public Affairs.

MS. DEVINE: Hi. Shanna Devine with the Government Accountability Project.

MS. SPIELER: Thank you.

MS. ABRAMS: Hi. Adele Abrams. I'm representing the American Society of Safety Engineers.

MS. SPIELER: For those people in the audience who weren't here before the break, the committee unanimously adopted the recommendations from the Section 11(c) subcommittee of the committee, and we're now moving on to the report from the Best Practices subcommittee. Jon?

MR. BROCK: The Best Practices and Corporate Culture subcommittee has met by phone, largely, since the end of last year, and has reviewed, from the expertise of its members and a number of other people that we were able to invite onto our phone calls, in particular topic areas that we had identified. In the course of that review, we went over a very, very substantial number of areas related to potential best practices, and in our meeting yesterday, we talked about what all of that had produced, myself having combed through the notes and produced some summary information.

We were -- I think it would be fair to say, for everyone -- gratified to see how much we had covered, but also challenged by the necessity of then putting that into a workable, practical package of best practices that could be meaningful. And relevant to the discussion this morning, comments this morning, about the importance of making policies known to employers, making workers aware of rights that they had, there certainly appears to be a need to make a useful collection of best practices available, so that employers will know what's expected and can adopt those policies if they wish to do so, and so the workers are in a position to say this is what's expected, this is what we should expect in our workplace, and so that OSHA has something that is universally recognized, or widely recognized as an appropriate set of practices that they can also make use of, or publicize, advise, or educate about.

What I think we discovered was that there is an awful lot known about best practices. There are companies that are looking ahead, working on doing the right things, adopting practices, changing practices. We had a number of, many examples talked about. We also know that even though a lot is known, it does not appear to be universally applied. There doesn't appear to be a comprehensive and accepted compilation that's easily accessible. So the potential that we would produce such a collection, such a compilation, seems like it would be extremely useful to the worker audience, to the manager audience, and to OSHA.

So we now have what we think is a very substantial proportion of what at least represents the key elements of best practice, although we had actually had some debate about whether that's exactly the right term, but certainly a compendium of valuable practices that could be put into a system. If you did all these things, you would have good system.

But it would be challenging to take all of that and put it into the appropriate format, and that will be our next task, which we hope to bring to you, to this committee, at the next meeting, in a form that you can review, comment on, add your own experience and substance to it, and that we could then turn that into what would be a final recommendation for committee consideration.

What our work suggests, to this point, is that there are universal principles that are not industry specific, but that apply, generally, to anti-retaliation policies and programs that are in place in some places and could be put in place, we hope, in a lot more. It's equally important, as has been discussed in the committee, to adapt those principles, those functional areas, those elements, to the specifics of an industry, of a firm, of a facility, of history, of size, and the individual characteristics of an enterprise of a workplace. But we will focus, at least initially, on putting out the universal principles.

I'll give you a flavor, the rest of the committee, for some of the things that seemed to have that kind of universality, and this is not in any particular order, or some of these may not end up on the list, but just to give you an idea of what kinds of things that have the characteristic of universality.

A need to define what retaliation is. We had a good bit of discussion about how often behaviors that are retaliatory, policies that have retaliatory elements and impact, are carried out and either justified or rationalized, or simply people just simply don't know. We identified a lot of human reactions in the workplace that could result in retaliatory behavior, even if policies were contrary to that.

So having a clear definition is certainly an example of a universal principle or characteristics of a successful program.

Leadership commitment. That includes leadership commitment at the top. I mean, this is something that gets talked about in many places and ways, and sometimes not all that meaningfully, but leadership commitment from that top, but that also means leadership commitment at the mid levels and front line levels, so that retaliatory behavior is watched for, not tolerated, and the proper kinds of evaluation take place.

Training the universal element, in order for people to understand what their obligations are, what those definitions are, how the programs work, their responsibilities in this regard. Training is going to be a universal element of the successful program.

Somewhat of a different characteristics -- and you heard some discussion about it earlier today, in connection with the Fairfax Memo recommendation, and Dave talked about it in terms of programs that he has been candid enough to say he promoted some of these programs earlier but has changed his view, and, as a result, his company's policies, and Ken also talked about it in the committee as something that's changed in his company, and we heard, in some of our meetings from outside people about this recognition throughout leading companies, at least -- that punishment for reporting issues or incidents is retaliatory, and implied punishments, threats of punishments are retaliatory.

Some of this is driven by incentives, so we identified that incentives need to be aligned properly so that people are not encouraged not to report, and many common incentive schemes -- Dave an example or two this morning -- do promote, seem to promote that. So some kinds of recommendations related to the proper kinds of incentives, proper balance of incentives is probably a universal principle, and one that might surprise some people, but not others.

Another one, potentially, is to have a process such as the NRC guest talked about, within a company that reviews potential disciplinary actions, to see if there is retaliation or perception thereof, something to help prevent retaliatory actions and the potential chilling effects.

Immediate and proper responses to retaliation complaints, responses that are timely, serious, and effective, using clear standards for investigation that are parallel to the standards in the relevant laws, and to have very specific audits and assessments be part of your program, to see if it's working, because the fact that you've got a really terrific policy written down, or have copied out the policies from someplace else that's recognized, doesn't necessarily mean it will happen on the ground. There are many slips between cup and lip on this, everyone who works in this area knows, and so there are some fairly specific audit and assessment procedures that are important to see if employees, once all is said and done with the policies and the training and accountabilities and incentives, that, in fact, there is a willingness to report issues, not a chilled atmosphere, and so on. And we had some discussion in this and other areas about what would be the specific elements of an audit, what are the specific elements of training, and so on.

And one other universal, I would add here, as you heard about in some of the comments this morning and in other meetings, is that there is potential for business benefit, for strategic benefit, for quality benefit, as well as benefits, certainly, to a safe workplace or outside of industrial safety, for an honorable workplace free of financial risks, and the environmental risks, or whatever the industry might encounter. So the idea of making clear that there are potential benefits seems also to be an important universal principle.

I could give you a very long list but I won't do that. And so we then, we devoted most of our time yesterday, saying, well, how are we going to put all of this together in a format that would be accessible to those who need it -- and, as I mentioned, the three audiences: employers, labor, and OSHA, among others, I suppose. We thought it would be very important to try to do something that was very concise and accessible.

You have to forgive my artistic non-skills, but I just put up here an idea of how we might be able to bring this to you the next time. To try to identify what the major functional areas are, the list that I mentioned contains perhaps some of those, but also things within those. So we would come in and say these are the five or ten major areas that ought to be part of the program. I just put some of these up as placeholders. These may or may not be among the categories, but they certainly are issues that would be discussed and potentially included -- policies and procedures, leadership commitments, and the ones I mentioned here.

So we would say, okay, these are what they are. These would be the main categories. This would be the way the main categories might be displayed. We would give a bit of an explanation, so you'd know what was there, or, so potentially driving towards a recommendation format. Those using it would be able to clearly see what was there.

Then a sheet for each functional area that we identified as the key functional areas. Here's why this is important, and then here are the major components of that. If you're going to have a training program, it has to do the following things in order to have a chance of being effective. Here are what its pieces are. Here are some key things it has to train on. There are issues of validation, quality of the raining, how it's delivered, whether you can identify as validation, whether people really got it.

And you can imagine doing this for audits. You can imagine defining what the leadership commitment looks like. It's all fine to say there needs to be leadership commitment, but that doesn't mean very much unless you say this is what needs to be done. Receiving reports, acting on reports, walking the talk, what happens at the mid levels, what are supervisors accountable for, what about performance evaluation, including things related to contributing and helping to create a safe workplace, and other components.

And then we had some discussion about the benefit of trying to be really specific and saying, well, what are some dos and what are some don'ts?  There are some things that are getting done, that are going on, that shouldn't be done, pointing those out specifically seemed like a very valuable thing to do, and here are some things to do. This may overlap with some of the items back here, so we'll have to really decide the format.

And then, I didn't put it up here, but we also talked about the benefit of examples, having specific examples that come from different industries and different sizes of firms, so that if a company is looking at it, seeing those general principles, they can so, oh, I see how it got done in my industry, or I see how this got handled in a firm that's my size, instead of this size of these big corporations, from which much of this comes.

And so having examples seems like something else we will try to do. I'm not sure we'll be, at that point, when we come back to the committee next time, but hopefully, certainly we would be optimistic, based on the material we've developed so far, and the vigor of the debates, like the 11(c) committee. We've had some vigorous debates.

But I want to say that those debates have really enriched it, and I think the whole is much greater than the sum of the parts. My observation is that there is an incredibly knowledgeable group of people on this committee relative to the mission of this committee, and I want to thank the chair and anyone else who was responsible for putting this quality and mixture of people on the group. I'm certainly the least knowledgeable about these kinds of specifics, so I probably learned the most.

But you could see how the combination of experiences and skills and perspectives has really moved the debate to a much more practical focused and balanced position, and it also underscores that it's unlikely that there is really the necessary, useful compendium of best practices out there, because even people that know a lot, that are experienced, were able to learn from each other, and if we can use that kind of a combination, assembled in a group like this, and in a committee like this, which obviously has additional skills and expertise that haven't weighed in yet, I suspect that we can, indeed, produce something that does represent a product of real value for any company that wants to adopt a program that really has a chance of eliminating retaliation, or certainly dealing with it, in the most appropriate ways, when it comes up.

And so we hope to come to you at the next meeting with a format that is accessible to you.

MS. SPIELER: Jon, how can the committee be helpful to the subcommittee at this point?

MR. BROCK: I certainly would open that question to others, but my initial thought would be if you're aware of exemplary programs, or parts of programs, that would help us find things that we may not have found, that would be extremely, extremely helpful. We've really benefitted from looking at good examples. Other members of the committee?


MR. KEATING: Yeah. I just wanted to start by saying that real hats have to go off to Jon, who has done an unbelievable amount of work. We've had six or so 3-hour telephone meetings, and he took a lot of notes and reduced it down to some very good product, and we really have made a lot of headway, thanks to his leadership.

The one overall comment I would have is -- and this has been a really valuable exercise for me. It's a topic I'm very committed to, and I've learned through Nancy and some robust debate, and that's opened my eyes. What I've learned is that the challenge we have with this Best Practices committee is that every industry is slightly different, and that even within the industries -- and we have a speaker who I think we may have coming to our next meeting.

In talking with her, she's spent her whole life in this area of compliance and best practices, and the familiar refrain that I often hear is that it's not a one-size-fits-all. It is going to depend, significantly, on whether you're talking about a safety area or a financial area, or whether you're talking about a huge company or a small company.

And so I think one of our challenges, in getting an ultimate product before the committee next time, is going to be to reduce it down to either a format that would apply, no matter how big or small, or what industry you're in, or whether we're going to kind of maybe even, I don't know, slice and dice it a bit, to have a few different examples. But that's been a little bit of the challenge, but we've learned a lot, and I think we've got some exciting new presenters lined up for upcoming meetings.

MS. SPIELER: Richard.

MR. MOBERLY: So, I just had a couple of questions about some of the work that you had done. I'm really impressed with all this and I'm excited to see the final product.

MR. BROCK: Yeah. Me, too.

MR. MOBERLY: this isn't along the lines of what you said would be helpful, so this may be entirely unhelpful.

MR. BROCK: You wouldn't be the first one.

MR. MOBERLY: So the first one, I was wondering if you all had discussed any incentive programs such as affirmative defenses for employers who might adopt these best practices, along the lines of Farragher/Ellerth or within the sexual harassment realm, and whether you've discussed that or whether you will in the future.

MR. BROCK: I think others could identify it better than I. We have certainly touched on it. We haven't explored it or delved into it. There has been discussion about should there be incentives, what should they look like, or is that inappropriate -- you know, debates you would expect -- and I imagine that would come up further.

MR. KEATING: I would also note, Richard, we did touch on that.  I remember we had kind of a spirited discussion between and Emily at one point, about what would the kind of reward or the benefit, the carrot, the true carrot be to an employer if they did it all right, and yet something slipped through the cracks? 

Earlier today, we voted on a recommendation by 11(c) that standards be promulgated for punitive damages, and I think we may well want to revisit, ultimately, when we make our recommendations, that if an employer does all these things, then that might be a factor that should be included in that standard of weighing punitive damages, and should be taken heavily into consideration, that there is evidence that all these thing we recommended be done, were done, in terms of assessing whether to issue punitive damages.

MR. MOBERLY: I think that's great to have that further discussion. We could probably have a spirited debate right now, and perhaps it's best to let that debate happen in the subcommittee for a while. I just wanted to make sure that was there.

And the other thing. So I mentioned yesterday, one of my kind of focus areas is also on the underlying misconduct that's being reported, and so I didn't know if a lot of these best practices areas that you outlined were dealing with preventing retaliation, and I didn't know if the committee was also, as part of its charge or its focus, thinking about best practices for what to do with that underlying misconduct that is identified?  That may be outside your role, but I didn't know.

MR. BROCK: No, we've actually -- and others should comment on this, too -- we've actually had a lot of discussion about positive programs, to try to get issues to come forward. One of the common elements I didn't mention, that came up -- there's a long list of them -- are the need to have multiple channels available to employees, to have opportunities for raising things early, to have investigations. We talked about this yesterday a bit. Not everybody was in the meting the whole time, because of the other groups having impending recommendations and other things, we it didn't go as far. But we have talked about those aspects that would bring issues forth, and the investigations of the underlying issue being important.

And when you talk about the incentives, for example, if you have those incentives to suppress reporting, you're going to be more likely to get temptation to retaliate or reactions that are retaliatory. But if you're doing more positive things that take care of those issues in quick time, and fully, then the environment is open.

We talked a lot about that. We have al long list of things that have been discussed quite a bit, and sometimes repeatedly. One of the question is related to the scope, so if it's an anti-retaliation program, what other elements of dealing with safety issues, or financial risk issues, or health or environment, what other aspects of that are important, or seem central to the anti-retaliation dimension, and what gets us into other areas that really take us out of scope?  So we actually, in trying to think about putting together something this concise, you might imagine that that came up. So it's in there, exactly how we'll deal with it. How far we'll go with it, we don't know, but it's clearly connected and important.

MR. MOBERLY: Right. Thank you.

MS. SPIELER: Other suggestions?  Comments?  Concerns?  Eric.

MR. FRUMIN: I had a thought which was on my mind before you said your last point about best practices that might or might not be within the scope of retaliation issues, and it gets to the question of best practices on other important management functions which sort of walk and talk like hazard reporting, or things of that nature.

MR. BROCK: The Fairfax type stuff?

MR. FRUMIN: Well, no. We have management functions on HR issues. We have management functions on design of the process. We have management functions on supervision of the process, and in supervision of employee. Any number of management functions to keep the railroad running, literally and figuratively, and some of those have little to do with health and safety issues, hazard reporting, injury reporting, but some of them have quite a bit to do with it.

So, to me, the one that I often think about is quality management, and the importance of an approach to quality management which can elicit the involvement of workers who actually know a lot about this subject, in a very constructive and productive way. And what I have found, in a number of settings related to safety, but, at least in the industries that I've worked in, it's often in regard to ergonomics, where if one was trying to achieve a high-quality production process -- and it wasn't just in manufacturing; it was in other settings, as well -- and you did it in a way which provided workers with an opportunity to be adequately involved, so that they could talk about the interferences in the quality, in achieving a high-quality process.

Invariably, that involvement would elicit from those same workers observations, complaints, suggestions, whatever you want to call it, about bad design, from the standpoint of the effect on their bodies, not just how the parts didn't fit together, et cetera. The best example I know of was from Ford Motor, where an epidemiologist who worked in corporate medical, Gordon Reeve, was able to look at their incidence data, at different assembly plants. I don't think he's ever published this, and it's a shame.

But he linked it to actually comparing the incidence rates for workplace injuries, many of which were musculoskeletal disorders, and also warranty claims, literally by shift and supervisor, for the installation of the right front passenger door on Ford Pintos, or whatever. I mean, Ford, they had it down. They really kept good records. And he was able to actually come up with a correlation that a 10 percent drop in injury rates could save them money, like $1 billion in warranty costs.

And it always bugged me that the quality people would get the credit, at the end-of-year accounting, for basically doing the same work that the health and safety ergonomics people were doing, because the solution to that problem was a better ergonomic design of the process, which saved them a ton of money, because the doors would fit and they wouldn't have to do a recall. And then, along the way, they saved a lot of arms and backs and other things.

So is there a process in the company which elicits worker involvement, i.e., reports of problems, which has something to do with health and safety, which might have actually, on their own steam, been a hazard report, or, God forbid, an injury report, but was central to another process within the management function, whether it's bad supervision, bad design, bad HR practices, et cetera.

So, as long as you're looking at these questions of what are the management functions for which one is trying to identify best practices, keep in mind that there may be a substantial overlap in that little silo of management function, with a health and safety issue, but it's called something else. It could be called quality. It could be called something else, and if you're only asking for health and safety programs, you may not even be asking for the right thing.

Certainly, in the manufacturing world -- and I would assume this is true in other settings, in other sectors, as well -- quality management certainly could be part of it. Nancy's example today about the company in Massachusetts which had a Kaizen event and identified a serious health and safety problem, in that case machine-guarding, is a perfect anecdote, but this was a very widespread issue. As I said, it loomed very large. So I would encourage you to certainly look at quality management as a way to do that.


MR. WENGER: Just a comment to that. So we've been very conscious of, this is not a safety management team. This is a retaliation best practices and we're trying to keep it broad to that point. Safety is an important component to this, but it could be financial, it could be quality, it could be a lot of different things that are the underlying causes that's driving that retaliation perspective, so we're trying to come up with those best practices that are kind of holistic, all-inclusive, and not make this a safety management process or a quality management process, or, or, or. It's all about and.

We've also had a lot of debate around, we're not looking at the whole company culture issue. We've had to draw some boundaries around this a little bit, so we keep coming back to, this is about retaliation, this is around best practices, around how do you deal with retaliation or the potential retaliation behaviors, practices, systems, processes and organization would have, and how you design that stuff out from your practices and processes.

So I think we'll get at what your point is, and I think your point is well taken, but I guess, just for the rest of the committee, you know, it's not just a safety management retaliation thing. This is retaliation, bigger, whistleblowers, not just safety whistleblowers.

MS. SPIELER: So I'm going to take my chair hat off for just a second. It seems to me, partly what I'm hearing is that there's a scoping question for the subcommittee, and I think it would be hard to de-link the anti-retaliation from the chilling effect questions, although there are other pieces of corporate culture that would clearly be outside the boundary, and I assume that the subcommittee will continue to explore where that boundary is between what I'm calling chilling effect, what we've been talking about in a number of our conversations, and a more general corporate culture.

But I do think that the point Eric makes is one that I haven't really heard, in listening in on the subcommittee conversations, which is the effective siloing within management, in terms of how to create best practices, and that might not be safety management, but there are many ways in which the way corporate structure functions that can impede the sort of communication of information and the communication of anti-retaliation, as well as principles, as well as take care of the chilling effect questions, and that particularly might come up, for example, in the investigation of the original complaint, which was the issue that Richard was raising, and what the responses to initial complaints, in terms of whether people feel that it's worth coming forward.

And so I would hope the subcommittee would explore all of those issues, and I must say, having been on some of those phone calls, it is an extraordinary commitment of time that subcommittee members have made to hear from people who have made presentations, and to debate some of the issues, and I'm quite certain that as the subcommittee moves forward that the product will be very valuable for OSHA and for employers and others outside the agency.

MR. BROCK:  Emily, could I make a quick comment on this issue?


MR. BROCK: Eric, I think it's a very useful point, and, as Emily said, we haven't thought about it in that way, so this is like an out-of-the-box thing for us, although we've been pretty out-of-the-box most of the way, depending on how you want to think about it.

MR. FRUMIN: [Inaudible.]

MR. BROCK: Yeah. The spring, you know, pops out. But we have talked a lot about it, and I think that the business side of people on the committee have been particularly candid about this, and, I think, to a person, and not just them, talking about the benefits that you get by hearing from employees. We didn't talk about it in quality management ways. That's the kind of new piece. But we've talked an awful lot about -- and Dave mentioned it this morning -- you want that reporting to come in. That's why you shouldn't be afraid of your numbers going up if you're doing everything else right. That's not something I think all of us came in thinking about, or recognizing.

So the idea of free flow of information, hearing from workers being a potentially really important data source, has been talked about in quality terms, quality of product terms, separate from the quality of safety environment terms. So we certainly have a lot of things on the table related to making sure you're getting information from employees, and you're really looking into it, and you're really listening to them, and giving them the feedback on it, but we haven't thought about it in that kind of a connection, and I think that's a helpful thing, and I think subject to the qualifications you've heard about, how far do we go with other parts of corporate systems.

But there is that tie-in. I mean, even performance evaluation, right, has a big tie-in, because if you're not accountable for how you respond to the underlying issue, much less retaliation, then how come you got a bonus?  And this is what the corporate members are saying. It's not even what Nancy or Billie or I might be saying.

So I think we were in good condition to look at that type of thing.


MR. KEATING: Just in response to something that Ken said, I think we have to keep in mind, also, that, as Dr. Michaels said yesterday, when he kicked off this meeting, that with regard to our work group, he was very hopeful -- and I was writing down what he was saying. I believe he said that we could come up with recommendations to help to create a culture of ethics and compliance where employees are "welcomed and encouraged to share their concerns." 

So I think, Ken, that I would disagree slightly. I think our group is designed not to just focus on anti-retaliation. I think, in an ideal world, I would be extremely proud of our mission if we were able to arm the employers with some concrete measures that might help to create and foster this culture, and also create a situation and environment of transparency, where workers not only are free from retaliation, but feel entirely welcome and encouraged to walk in any number of doors to voice their concerns without fear of reprisal.

MS. SPIELER: Other comments or suggestions for the subcommittee?  Jon, thank you. As Greg has already said, you've done an amazing job of trying to move this committee forward. It's a large subcommittee with varied views on these subjects, and I do think people have done a remarkable job of listening to each other and moving the conversation forward, so thank you, and we'll look forward to your report at our next full committee meeting.

MR. BROCK: Well, you're welcome, and credit to the knowledge that everybody brought to the table.

MS. SPIELER: Okay. So it's ten to eleven and we really need Marcia on the phone for the Transport--. Marcia Narine needs to be part of the conversation for the Transportation Work Group report out.

Although it was set for later on the agenda, I'm wondering if we could open the public comment period now. I know at least a couple of members of the public area here, and if you're prepared, we could move into that section of the meeting, even though it was set for after lunch.

I just want to say, before I see who's in the room, that we had two members of the public who contacted staff to raise some issues but did not want to come forward and have not identified themselves for the public record. One of them, a whistleblower with an open case, has expressed concern that OSHA does not have the resource to pursue cases in a timely fashion, and I think that's been something that we have been discussion and will continue to discuss as we go forward.

The second, with two open cases, is concerned about the effects of electronic stalking as a form of blacklisting and retaliation, and that issue, and how you define retaliation maybe part of our conversations going forward, as well.

I'd like to note, as we always do, for the record, that in public comments we're not prepared to hear about individual pending cases, and that all public comments should be directed at policy and systems level concerns, and not at the adjudication of individual cases. If individual cases are your concern, I'd ask that you discuss that with the OSHA staff directly and not address your public comments to your individual case.

That said, I know that there were two people who had asked to speak to the committee in advance of this meeting. Shanna Devine from the Government Accountability Project. Ms. Devine, do you just want to come forward and offer your remarks?

MS. DEVINE: Thank you for having me here today. I'm just going to go ahead and read a prepared written statement, though I'd be remiss not to acknowledge the overlap between the Best Practices Work Group's list of recommendations and the list of recommendations that I'm going to share for the DWPP.

MS. SPIELER: Do you want to put your written statement into the record, as an Exhibit?

MS. DEVINE: Certainly. Thank you.

MS. SPIELER: So why don't we mark that as Exhibit -- so, before I do that, we're clarifying here. We're going to put a copy, some form of a copy of the flipchart into the record from the Best Practices committee as Exhibit 9, and Ms. Devine's written testimony will be in the record as Exhibit 10. Go ahead.

[Exhibits 9 and 10 are entered into the record.]

MS. DEVINE: Thank you. Oversight of OSHA's Directorate of the Whistleblower Protection Program, DWPP, is a top priority for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization. GAP legal director, Tom Devine, could not be here today so I'm going to share the following remarks on behalf of our organization.

DWPP faces many structural and financial handicaps, making it difficult to reach the potential of whistleblower laws. As an overextended agency specializing in worker safety, the enforcement of whistleblower rights has taken a back seat. This breakdown in enforcement, not weak statutory rights, is the primary reason that the track record for whistleblowers has been so weak.

Based on reviews ranging from the GAO to the Department of Labor's Office of Inspector General to GAP's own survey from whistleblowers and practitioners, the primary difficulties include inadequate staff resources and investigator training, with staffing levels that sustain unrealistic work loads; unusual regional authority and a lack of independent oversight, which has led to widely varying interpretations of law and success rates between regions; excessive, often multi-year delays in processing complaints; a failure to interview or functionally communicate with complainants; failure to use alternative disputes resolution mediations in order to resolve cases; a vacuum of credible data to support adverse decisions against complainants; a previous lack of authority, and now lack of action by the DWPP to reverse regional decisions.

To that end, GAP would like to propose three recommendations for the DWPP to realize its full potential. First, an independent national audit of regional compliance with consistent national standards. This would ensure greater accountability across the regional offices.

Second, regulations establishing consistent national policies for all discretionary rulings and interpretations and whistleblower laws administered by the DWPP. And lastly, the authority for the DWPP to close a case at the complainant's request if the regional office has not completed its investigation within the stated regulatory deadlines. This would allow the whistleblower to begin a more timely administrative hearing, rather than wait possibly years for what is likely to be an adverse decision.

While Dr. Michaels has created a credible blueprint for an effective enforcement program of whistleblower rights, it will take an ongoing independent oversight for that blueprint to make a significant difference in practice. Toward that goal, GAP is available as a resource, both to this Advisory Committee and for the DWPP.

Thank you very much.

MS. SPIELER: Thank you. Would you be willing to take questions.

MS. DEVINE: Certainly.

MS. SPIELER: Richard.

MR. MOBERLY: Thank you for that, Ms. Devine. I had a quick question on your third proposal, which was the authority to close the investigation. So just to make sure I understand it, rather than -- what you're saying is, the way I understand it now, for many of those laws, after the time period has passed, the whistleblower could withdraw their complaint and go to federal district court, let's say under Sarbanes-Oxley, and what your proposal would be is that the investigation would end and it could go to an administrative law judge. Is that accurate?

MS. DEVINE: Our concern -- thank you for requesting clarification. It's needed. Our concern, at this time, is that even beyond the stated time frame that an investigation is supposed to be completed, it continues to remain open, in some cases for years, and the whistleblower is required to then wait for it to be closed or completed before they can begin the next process of their hearing. So we'd like to allow -- we'd like to request that the DWPP is able to, when requested by the complainant, the whistleblower, request that the, request that the, in this case, the investigation be closed, so that they can continue to proceed with a hearing.

MR. MOBERLY: With an administrative hearing?

MS. DEVINE: With an administrative hearing, or whatever, in this case, is designated under the statute.

MR. MOBERLY: Okay. Thank you.

MS. SPIELER: So I assume that doesn't apply to 11(c) cases, that recommendation.

MS. DEVINE: In this case, it would apply to any statute where there was an allocated time line for an investigation to take place --

MS. SPIELER: And somewhere to go thereafter?

MS. DEVINE: And then, if there is somewhere indicated, for them to go there after, within that statute, it would be applicable.


MS. DEVINE: And, of course, each statute is, depends on the language within that statute.

MS. SPIELER: Of course. I actually would like to ask a question. The DWPP is a relatively new organization within OSHA and within the Department of Labor, and was formed, I think, and as was this Advisory Committee, in part, because the department and the Assistant Secretary shared the concerns that you've raised about the historical treatment of whistleblower cases.

So I'm wondering the extent to which you have studied very recent changes that have been put into effect, say, in the last year, and whether that has had any effect on what you're seeing out there, in terms of the ability of OSHA, in the regions, to respond to complaints?

MS. DEVINE: We have been tracking developments and initiatives by the DWPP, and a lot of our recommendations are merely to reinforce the efforts by the DWPP and not to supersede them, by any means, or to imply that efforts are not being made at the top. But certain structural reforms, we feel, are needed, and concrete, tangible changes as recommended in our statement would only facilitate, we believe, the efforts from the DWPP throughout the last year.

MS. SPIELER: Thank you. I might say that if you, as you continued to monitor, and if you see trends that either represent improvements or don't, I think this committee and the staff of the DWPP would be very interested in seeing your results. Are there other questions or comments for Ms. Devine?  Thank you very much for coming.

MS. DEVINE: Thank you.

MS. SPIELER: Is John Pajak in the room?  I'm not sure how to pronounce it. No. Is there anyone else here who would like to offer public comments to the committee.

MR. ZUCKERMAN: Yeah. Very quick.

MS. SPIELER: Okay. Why don't you come forward and identify yourself.

MR. ZUCKERMAN: I'll keep to about 1 minutes and we'll see if I succeed. My name is Jason Zuckerman and I represent a lot of whistleblowers, and that's what I have done, since basically I got out of law school, and I just want to highlight just how big of a problem there is of lack of resources. I worked on a lot of cases under prior political leadership of the Department of Labor, and I would argue there were people there who went out of their way to undermine these laws.

I think we had an ARB there that went out of their way to rewrite these laws to create new obstacles that were really not part of these laws, that were completely contrary to the plain meaning. We have a great ARB now that is applying the plain meaning of these laws, and is willing to look at the history of these laws, and where we have them, and we have great people at the highest levels of OSHA, and I've seen a huge, huge improvement of how the claims are handled. But I hate having to tell clients that you could be at OSHA for years. That's just absolutely absurd.

And I think it would be a very good idea to have that option, where the employee would be able to ask for the work to end at OSHA, to have opportunity to go to the OALJ, but I hear from all the ALJs that I interact with that they have more work than they've ever had. I think it would be very helpful for this committee to make a clear public statement that there is a huge, huge problem here.

There was a GAO report a few years ago about the lack of resources, and it's only gotten worse. There is just a real need to have a lot more resources at the OALJ level and at the OSHA level, and hopefully that will happen very soon. I mean, my point only is under the prior political leadership of the Department of Labor, this area, I think, was a very low priority, and I would argue that there were people who really went out of their way to undermine these laws. Now it's the opposite.

There is a will here, and I think people at all levels of OSHA very, very much want to do their job, but they just do not have the resources, and that's a big problem, and I would argue it's a problem not only for employees but also for employers, because I don't think any employer would want to have a claim open for years and years and years. It's just not helpful to anyone.

So I would urge that it be a higher priority for this group to really highlight the utter lack of resources in these programs.

MS. SPIELER: Thank you, Mr. Zuckerman. Just before you go, are there any questions or comments for Mr. Zuckerman?  Thank you. Are there any additional people in the room?

MR. KEATING: I'm sorry. Could I just make one observation, or actually it's a question for Anthony. I litigate, like Jason does, these cases around the country, and I have found, in my experience, that there is somewhat marked difference in the efficiency and alacrity with which cases are investigated, based on where geographically you are, and I'm not going to go say this region is better than the other, but do you find that there just happens to be a bigger backlog in certain regions, that there are an inadequate amount of investigators in certain regions, or is there anything that might explain why a case might take 4 months in one region but a year and a half in another?

MR. ROSA: Well, the issue with the backlog has been an experience in all ten regions. Some of the regions have, in the past couple of years, worked on, I guess what we call initiatives to reduce the inventory, and focusing on the backlog, and I just wanted to clarify the difference between what's in inventory in backlog. Backlog, for purposes of what we track in OSHA, as you know we've been looking at the 90-day time frame, so any case that's open over 90 days, we kind of traditionally been looking at that as cases that are overage, and when you looked at charts, reports, or statistics, anything overage is over 90 days. Inventory is a total inventory of all cases.

So we have been working on that with a number of regions that have been looking at strategies to reduce the initiatives. The agency, as a whole, developed a strategy a couple of years ago in which certain cases, if there was a settlement or if the complainant withdrew, we have streamlined reporting requirements, so we didn't have to do a full report in order to alleviate a little bit the burden or the extra paperwork in order to get these cases moving forward and get the case officially closed.

That has worked and has been, I guess, piloted or tested in a few regions, and some of the other regions are kind of moving forward in that direction. It has helped, to some degree, in terms of the lapse time in getting the cases completed, and we're moving along with trying to create that consistent level of approach with all the regions, and with lessons learned, best practices that we've learned, on what worked in one area that we can probably implement nationwide.   We're working quite heavily and diligently in that area.

MS. SPIELER: Richard?

MR. MOBERLY: Just to follow up on that, so what I hear you saying is that there's some analysis at the quantitative level of cases by region, and I was wondering, we just heard anecdotally, and I think in Ms. Devine's testimony, that there might be some qualitative difference in the standards being applied by various regions, and I didn't know if OSHA had ever taken a look or tried to examine whether different regions reach different outcomes in similar type cases?

MR. ROSA: Well, what we're trying to do now is working on our regional audit program. We're trying to create the consistencies. I think that -- I mean, I, personally, am coming from one particular region. I'm new to the Directorate at a national level, so to give you some experience at a national level is a bit premature at the time for me to address that. But I know, in my particular area, we were trying to work on creating some consistency within my own group that I was at.

So to have that information, to give it to you right now, on a national scale, it's premature. I'll be looking into that data.


MR. BROCK: Just a quick comment on that. This issue of backlogs and the kickout kind of activity, which I think this is part of the earlier recommendation, those kinds of things seem to come up a lot when we hear from people outside, and I wonder if there isn't some, just as you briefed us yesterday on the progress and so on, if we shouldn't do that regularly, or look at some of these issues and try to give you useful information and feedback, as well as get some, because those seem to just come up all the time. And I certainly know that there's a large effort in the agency to address that, but it seems particularly challenging, and the answer doesn't seem obvious. But there's a lot of good brains here, and out there, who deal with these issues from different roles, that might have some valuable perspective.

MS. SPIELER: I was actually going to suggest that, in our sort of next steps, thinking that we think a little bit about the kind of information and issues that have come up that might be particularly -- it might be particularly useful for Anthony, you and the rest of the staff, to think about bringing information to us at our next meeting or the next couple of meetings, in which we could then decide whether there are ways that the committee can be helpful to the department in moving ahead on these kinds of questions.

GAP has just suggested an external audit, and I'm thinking that, that my personal view of that is that may be a little premature, given that OSHA hasn't had a chance to do its own audit of these questions yet, partly because of the many issues that DWPP has had to deal with since its inception. But I do think it's something that needs to really be looked at, with great seriousness, and thinking about Mr. Mitchell's talk yesterday about the problems he perceived and what was happening in the Caterpillar complaints certainly highlights a concern.

In thinking about that, it seems to me we really have to be careful to think about the 11(c) complaints separately from the other complaints, a small number, even in their aggregate, than the 11(c) complaints, because 11(c) complaints have nowhere else to go, and the complainants in these other matters, particularly if they are represented, may be looking for efficiency over thoroughness.

In the 11(c) complaints, thoroughness is incredibly important, in view of the fact that there is nowhere else to go, and I would urge, as you think about it and we talk about future presentations, but also your work on a day-to-day basis, that you keep in mind that time limits in one situation have a very different impact than time limits in the other situations. Nancy?

MS. LESSIN: Two things. Did we ask yesterday for a breakout of the statistics by region?

MS. SPIELER: We're going to get to that.

MS. LESSIN: And secondly, there may be some people coming at 12:45, thinking that that was the time for --

MS. SPIELER: No. We'll definitely ask for additional public comment. But we are in a kind of interesting situation, because -- well, Marcia couldn't be here this morning, and that was certainly deeply unexpected and sad, since she's at a family member's funeral this morning, and we really can't move ahead with the Transportation Work Group report without her being part of the presentation of the recommendation.

That said, I'm wondering -- and I look to the committee for guidance here -- rather than just breaking until 12:45, at this point, for an hour and a half, I actually thought maybe we should move to the --

MR. ROSA: I just wanted to make one comment to also address to what Greg Keating was saying about the backlog or the lapse time. For many years, or for the past recent years, as OSHA has been getting additional staff for the whistleblower program, partly, in great part, in response to the reports from the GAP and OIG, what's happened also is that we have various structure that were out there in the regions.

We had a structure where we had our size. We had a structure that some investigators reported to area directors or assistant area directors, and we're trying now to get into a structure where we have the ARA and one or two or possibly three teams with supervisors. But even in those structures that we had just one RSI, we were hiring additional investigators but we were not hiring another supervisor, and the ratio that was existing between the employee and supervisor was so high that the supervisor did not have enough time to review the files, so a lot of the files were backlogged at the supervisor's desk.

We're realizing that investigations in whistleblowers are very complex cases that require a lot of extensive review by the supervisor, so we're trying to have a ratio that is more reasonable, and that's why, the process we're working on now, with the new ARA structure in all the regions, is to have, in general, two teams that would have a lower ratio than a 10-to-1 or a 12-to-1, or at least something like a 6- or a 7-to-1. It will be much more manageable and it will definitely help on the lapse time, overall, in getting these responses and getting the cases completed. So I just wanted to clarify that.

MR. FRUMIN: Yeah. I just wanted to react. We've seen a move, which, fortunately, hasn't been carried out, to merge regional offices at OSHA, and to eliminate some of the levels of supervision, in general, not just on whistleblower cases, which is of great concern to me, because it would be happening at the same time that the agency is trying to move a number of enforcement initiatives, and perhaps initiatives in other areas outside of enforcement, where we, as outside stakeholders, over and over again, say we want to see consistency in application.

And it seems like lunacy to me that at a time when the agency is going through a very dynamic period, and implementing new policies, and doing things that are long overdue, and so forth, you would eliminate the very people and stretch out the workloads of the very people who are supposed to provide that kind of consistency.

So I want to sort of register that concern, support the idea that, as you just said, making sure that there's adequate levels of supervision, and reiterate the recommendation from our work group, some months ago, calling for what Greg and others have mentioned, which is to make sure that the whistleblower enforcement effort does enhance the consistency of its work across regions, including, obviously, adequate supervision, if needed, to get that done.

MS. SPIELER: I, of course, would add validity to consistency in the goal.

MR. ROSA: Absolutely.

MR. FRUMIN: Well, me too.

MS. SPIELER: Yeah. Go ahead.

MR. KEATING: I would just make one other follow-up point to something I talked about earlier, and Billie responded to, which is if the changes that we recommended unanimously be strongly considered to 11(c) go forward, and there is a change in the standard, and there is now a change whereby they can pursue the track to an administrative law judge, I mean, I think what Jason testified to and what I've seen in my practice does reflect that with a lightened standard, and with multiple avenues of redress comes a need for either more resources or more streamlined and uniform practices.

And I would basically take a little exception to what Billie said earlier, that there are all these other statutes and they have a lower standard and nothing has gotten clogged up. Well, I think they have gotten clogged up, and I think we have to be a little careful about recommending that there be -- and we all know the statistics are there, that 11(c) is, by far, the most complaints, by far. So if we're going to adopt a new standard, and we're going to create new remedies, and there aren't adequate resources to begin with, we're buying a problem.

MS. SPIELER: Yeah. I think there's no question about that, and that should the 11(c) statute be amended to be more consistent with the other modern statutes, that there will have to be a lot of thinking that goes on, in terms of the way the department functions and what the resources are that the department needs in order to function appropriately, not only at the OSHA level but also at the Office of the ALJs and at the ARB level. But I personally doubt that that's going to happen any time soon. Yes, absolutely.

Let me make a -- I'm going to share some thoughts with you about what I've been thinking about, about next steps, which I was going to do at four o'clock this afternoon but we have this little gap here. There are some cross-cutting issues that have come up, and one of them, obviously, this morning, was this question of training, which we had both training internal to OSHA and external education and training.

On the other hand, we currently have three working subcommittees, and despite some expectation that at least one of them would sunset, and although we haven't heard from one of them yet, it is my understanding that all three will continue beyond this meeting. I personally don't think that we have the resources to add a fourth subcommittee. There would be more duplication of people on multiple subcommittees. People are already putting in quite a lot of time.

So I'm going to suggest, in terms of subcommittee work -- but I'd like to hear your thoughts about this -- that at least for the next 6 months, until our next full committee meeting, we continue with the subcommittees that we currently have, and then assess, at our next committee meeting, at which the full committee will have gone through a reappointment process and we will sort of be able to plan a 2-year time period, assuming I'm still chair -- we'll work on that. And so that would be my suggestion with regard to subcommittees.

That said, I think there are a few issues that have come up in the course of our conversations that we might be assisted by having full conversations about in our next committee meeting, as springboards for thinking about future work. Among those, I think, that I've heard, would be training -- what is, in fact currently going on in terms of training of people working within the apparatus of OSHA to do the investigations on complaints, but also eternal education efforts that OSHA undertakes to educate employers, unions, and employees, and other potential stakeholders about the issues that this committee addresses.

The second would be to take more of a look at the data, and I think that there may be requests, in particular, that come from the 11(c) committee, about the data, and I know that you've been working with Eric in the Transportation Work Group on data, but I do think there are a number of issues that have come up this time that are worthy of full committee discussion, and I would invite the committee members to chime in, but, clearly, one of them would be a region-by-region analysis of the data that you're keeping on IMIS, with regard to retaliation, and I would want to look at it over time, to see whether there have been changes in trends, both nationally and within the regions.

But my guess is that there could be a number of other areas that committee members will think of today, or over the next couple of months, that we could discuss whether the department has the capacity to put together some reports on that issue.

So those are two areas that I think have been very clear in the meeting today, that could be the subject of significant conversation at our next meeting.

An area that we haven't discussed as a full committee, but certainly Mr. Mitchell's testimony yesterday served as an alarm for, is that the 19 people who did not have union protection at the Caterpillar plant, who filed 11(c) complaints, and all of whom had their 11(c) complaints dismissed, were essentially non-permanent employees.

I know that OSHA has recently issued a specific directive with regard to what I think OSHA is calling temporary workers, although I think that it's a little bit of a misnomer, since often these people are in permanent jobs through staffing agencies. And I believe you've set up some kind of advisory committee, or OSHA has, with regard to temporary workers?  Is that true?

MR. ROSA: I don't know.

MS. SPIELER: Okay. I'm wondering whether, for our next meeting, we couldn't explore a little bit, and I would urge the Best Practices committee to give some thought to this question, and I don't think it's been part of the thinking, that in these triangulated work relationships, that there are particular problems that come up with regard to retaliatory practices, and if those issues aren't being addressed elsewhere in OSHA, through a separate advisory committee or task force, or through the current directive, it may be something that we, as a committee, would like to discuss at some point, in terms of what are the special issues that are addressed by people in these situations, because it not only has a huge effect on reporting, which is incredibly confusing in that domain, but also, I think, in terms of thinking through how anti-retaliation provisions and work is a separate kind of issue that is pretty complex.

The fourth area, but it kind of relates to both training and to data, I think, are the questions of the thoroughness of the investigations that are being done. That issue was also raised by Mr. Mitchell yesterday. It's kind of the other side of the coin of the concern that Jason and Greg are raising, about the efficiency of the investigation, but what is being done at OSHA to make sure that adequate investigations are being done in the field.

Is Mr. Mitchell's experience unusual or is it something that is of concern, and what is the oversight of the investigatory process to focus not only on efficiency but also on the validity of the investigations for both side, so that the validity of the investigation that would show up frivolous complaints and the validity of the investigation that would show up legitimate complaints, where an explanation has been offered by the employer that's worthy of further review.

So those are the issues that I've heard coming out of these discussions so far. There may be others, but I'd like to open it up for committee discussion, and after the break, when we come back, we can reoffer to open the floor for public comments, since that's what was on the agenda. I understand the Secretary will not be stopping by, but we will reopen for public comment if there are additional people who have come, and we will have a report from the Transportation Work Group, and then we will return to this conversation before we adjourn. But we do have some time right now. Dave?

MR. EHERTS: Okay. I've got two other fast areas. One is collaboration. I've heard some great stories about where collaboration has really increased the efficiency and the thoroughness of the process. For example, I understand that the 11(c) investigators aren't necessarily trained in safety and health, and, therefore, whenever an implication comes up of a safety or health violation, I think it would be standard work that they always went to a field office and asked for support in that area. So collaboration is one area that I think is important.

And I'd like to reintroduce a topic that I think was tamped down at the beginning, and that's looking at the process within OSHA, to make sure it's as efficient and effective as possible. In business, we use something called value stream mapping to look at processes, and I think before we ask -- which I think we certainly will -- for increased resources, we ought to make sure the resources we have are being used efficiently.


MS. LESSIN: I just wanted to -- to your fourth piece that was about the thoroughness of investigation and oversight of that, I want to make sure that the appeals process, to the degree that there is an appeals process --

MS. SPIELER: Are you talking about 11(c) now?

MS. LESSIN: Yeah. So, it's called something else and not appeals --

MS. SPIELER: Administrative Review.

MS. LESSIN: Thank you, administrative review, that that be on our radar to look at everything from the beginning through that, and what's working and what isn't, and what ideas we might have. So I just want that to be clear, and I also want to flag that there is this issue with the NRC, at some point before 4:30, that I want to address.

MS. SPIELER: Richard.

MR. MOBERLY: So, I was intrigued yesterday by the NRC's policy statement about environments for raising concerns, and since I'm not on the Best Practices committee, I think they ought to address that, and take a look at whether --

MR. BROCK: Would you like to be a member?

MS. SPIELER: Billie knows the NRC process and is on that subcommittee.

MR. MOBERLY: But to the extent OSHA can do issue similar policy statements and use similar means to get them considered carefully and seriously by employers, once those best practices are out there, that might be a good indicator of, or least might be some indication for employers to look at, on whether they have the right environment for raising concerns, and whether OSHA can do anything beyond just asking them.

MS. SPIELER: Christine.

MS. DOUGHERTY: Kind of following up on what Ava had said about looking at, for the 11(c) committee, the states, and we're talking about federal and the federal program, but half of the 11(c) cases in this country are done by the individual states, and that I've not been able to get really good statistics on what the state numbers are.

As I said earlier, the FAME reports are really sketchy from region to region, as to what's looked at in individual states. I think there needs to be maybe even some guidance given to OSHA, in terms of if they're going to do these audits of the states, your audit teams need to be consistent, they need to be looking at the same types of things, from state to state, have the same kind of standards, the same kind of review.

From what I'm reading in these reports, there might be a half a paragraph -- well, they opened five cases and they closed five cases. What is that?  I mean, I can't get any read for that program, or what they're doing. And I don't even know the numbers. How many OSHA cases are states doing, compared to what federal OSHA is doing?

So I think we need to really look at that and give some guidance to states on what an investigation should look like, and where are we going with those investigations on a state-by-state basis.


MS. LESSIN: I just wanted to follow up with what Richard talked about with the NRC, and just raise an issue that my understand -- and please correct me if I'm wrong -- I think the NRC carries an incredible sledgehammer. Behind all of the nice letters that it can issue, it can shut a facility down.

OSHA does not have that sledgehammer, and so the issue of what NRC does with the nice letters, there's something backing that up that may have facilities listen to it in a different way than if you have rules that give no rights to shut anything down, and if you order abatement and a facility challenges that, that you can go through appeal after appeal and there's nothing that can compel anything to happen.

So I think, while listening to the NRC about how they do things is interesting, I think it's also important to understand why they may get action with their nice letters whereas another agency in a different situation may not.

MS. SPIELER: I'm not sure they would characterize them as nice letters, but mean letters.

MS. LESSIN: I think we heard that. Didn't they say nice letters?

MS. SPIELER: Mean. Mean letters.

MS. LESSIN: Mean letters. Okay.

MS. SPIELER: Christine, did you have your hand up again.


MS. SPIELER: Okay. Yeah, Eric.

MR. FRUMIN: So, we are, the Transportation Work Group is invested pretty heavily in looking at the whistleblower case enforcement data, and we're on the verge of getting it. Thank you very much to the staff who are preparing it. Initially, it not only covers the transportation statutes but, obviously, similar data exists for other cases, including 11(c).

So I definitely think we need some very serous consideration to how we, ourselves, as a committee, evaluate this new source of information, and also what sorts of analyses we want to recommend to OSHA itself. I know that's going to take some work, because I know how much work the OSHA people are putting into it, just preparing it. So I don't want to minimize the burden that I'm advocating we take on here, but just noting that it's important cross-cutting and substantial.

MS. SPIELER: Eric, how would you suggest we go forward on the issue of the data?

MR. FRUMIN: Well, first we do some pilot analyses with the first round of data that we're going to be getting on the transport cases. I mean, the really new piece here is two-fold. One is the allegation information, which Anthony talked about yesterday, when we presented the IMIS formatting to us. That is, it tells us whatever is in the file about the circumstances that the complainant says gave rise to the retaliation in the first place. "I refuse to drive this truck, it was broken, and they fired me," or "I reported an injury when I was getting on the locomotive, and they fired me," or whatever. You know. There's coded information in there. I think there's like six different codes, but we can learn a lot more from that.

But these are thousands of cases, just in 3 years, thousands of them, and that's not even 11(c). You can look at the crude numbers they gave us, just for 1 or 2 years, the number of cases, and 11(c) is much more.

So I think we need to do a little piloting, some pilot analyses, just so we can sort of get our feet wet, and on a couple of key issues that are of interest to whoever cares enough to want to do this work, and take it from there and see. Once we have a format for both receiving the data from the Labor Department and also for doing the analysis, who ever is good at Excel and Access, or some other data for searching text fields in spreadsheets, maybe we'll have a format down and we can go beyond that.

One interesting case, of course, the question is how does any or all of this relate to the compliance information that OSHA has for enforcement of standards, and also in the transportation world, how does it relate to the information that the transportation safety agencies, FMCSA is a good example, has on these same employers, regarding the oversight of their operations, or FRA?  I'm not really competent on that question, and we definitely need some help with that.

I'm hoping that we can get some help from MSHA, also in how they have evaluated their own retaliation data, since they do a lot of both retaliation enforcement and analysis, but that's a little more speculative, at this point.

MS. SPIELER: So it sounds to me as if the Transportation Work Group is going to be receiving data soon, and is in the best position to probably take the first cut at this. My suspicion is that this will be a conversation in the 11(c) work group, as well, and since Dave is a trained epidemiologist and he knows how to look at data, it will be a productive conversation in that committee, as well.

So I'm going to suggest, with regard to the data, Anthony, you and I can be in touch, but that we work this through the subcommittees initially, to see what the best way to do this is, and there may emerge some overarching questions about the data that would be worth discussing, just as a general conversation in the next committee meeting, but I don't think we know that yet. That would be my suggestion on how to proceed on the data issues.

There are several issues that Nancy and Christine have brought up that are specifically focused on 11(c). Obviously, certainly, any state plan issues may be relevant, in the end, to some of the best practices, but they're essentially only within the 11(c) structure, and so I would suggest that those concerns be taken up by the subcommittee and prioritized however the subcommittee chooses to do that, and first I get a transcript and then minutes of the meeting, but we'll try to pull those out in time for the subcommittee to be able to consider them in a timely manner, because it takes quite a while to get a full transcript, and then minutes from the department. So it seems to me that would be the best way to proceed on that. Nancy?

MS. LESSIN: I also wanted the statutory information from the various statutes that gave workers the right to refuse to do a job, because when I look at the data that I think has that broken out as a category, a work refusal, I also want to understand the statute and what it really means.

MS. SPIELER: So the other safety statutes?

MS. LESSIN: And if there's any other statute that has somebody -- you know, if it's food safety --

MS. SPIELER: Well, the Mine Act definitely has provisions on that.

MR. ROSA: Well, what we did yesterday is we actually have copies of about three or four samples of the statutes for the Transportation Work Group. We did make copies of those, but they're all available on our website. They're all there. All the statutes are there, on our website, so you can pull up all the rest. But we just printed about three or four.

MS. SPIELER: Yes. But, for example, the Mine Act is not on the OSHA website.

MR. ROSA: It's not on OSHA website.

MS. SPIELER: Because, I mean, so there are statutes that aren't under the OSHA umbrella that be applicable to the provisions, but that's helpful.

MS. GARDE: And a lot of that, under the statutes that I work for, it isn't in the statute but it is in the interpretation of the statute.

MS. SPIELER: So it's not in the OSHA Act either.

MS. GARDE: So it's in the ALJ decisions that are interpreting something as including a refusal to work.

MS. SPIELER: So I could put my winter quarter RA on this project, because it doesn't seem as if it should be the project of the DWPP, given their other priorities. And so I would suggest that I try to do that.

MS. LESSIN: Excellent.

MS. SPIELER: She is interested in whistleblower issues, so why not this one?

MR. KEATING: Just one follow-up to something I said this morning. As I noted this morning, I did find Mr. Mitchell's testimony very compelling. I do think, though, that the employer or maybe even a nonprofit that represents employers, like National Association of Manufacturing, or Mercer, or someone who also tries to follow and gather data that relates to safety reporting, should either be able to present, at the next full committee, or, at a minimum, in a work group subcommittee, so that we get voice.

And related to that, I do have a little bit of concern with sort of digesting, slicing, and dicing data, because maybe it's just the trial lawyer in me, but you could put up an expert to take all the data and present it for the plaintiff, and then you hear the same expert, with the same data, for the defendant, and you hear night and day. And it all sounds great, because -- there's a reason I went into the law. I'm not good with math and numbers.

So I just we need to at least make sure we have a balanced approach.

MS. SPIELER: Yeah, no. I actually totally agree with that and would be happy to work with you and Ken and Dave and staff on putting together one or more people to come, I think, to the full committee to talk about some of these issues. Perhaps someone from ORC, and then -- but, in any event, I think that's a great idea.

I'm cautious about data, but I also think it can just, sort of looking at it can be instructive without turning people loose on it who are being paid to come up with one side of the story or the other. Because I don't think our goal, in looking at the data, is to prove something but rather to see whether there are instructive things in it that would help us advise the department, and particularly DWPP, on things that we see that may merit further investigation within OSHA, or, ultimately, should that decision be made, by some kind of external audit. But that we would certainly not be drawing ultimate conclusions from these data, which I think have problems within them anyway.

And so, I think caution is entirely appropriate, and we should be mindful of that caution as we go forward.

MR. EHERTS: If I can just -- just two points about raised concerns, I think. First we start with the limitations of the data, so I'd ask Anthony to go through, and I know I picked some of them up yesterday when we were looking at IMIS, about what we know and what we don't. There's some sealed information. When things get kicked out, we don't know the facts, so let's be clear what we know and what we don't know.

Second, I think that computers are very good at demonstrating correlations but almost never cause and effect. Cause and effect takes a person, and I think that's where Greg's concerns come in. A correlation can be there, but whether there's cause and effect between the two things really takes interpretation by a person's mind, and we'll have to be very careful about that.

MS. SPIELER: Yes,  Absolutely always, I think. It's now, according to my watch, anyway, 11:45. I would suggest we break for an hour now, that you continue to think about this conversation that we're having. When we come back, we'll take additional public comments, move to the Transportation Work Group report, and then close out the meeting with any final thoughts about next steps for the committee. Enjoy lunch.

[Lunch break taken from 11:45 a.m. to 12:58 p.m.]

MS. SPIELER: Why don't we come to order?  We jumped the gun on the public comment period before lunch, but I understand that some people who appropriately thought that 12:45 was the time for public comments may have come, and so I'm going to reopen the public comment period, so that anyone else who has come can come forward and offer comments or a statement to the committee.

I want to reiterate what I said this morning, which is that the committee really is not in a position to listen to any concerns about individual cases, particularly pending cases, and if there's any issue related to a pending case, it should be discussed private with the staff. We are interested in hearing about policy level of systems-wide issues that the committee should be interested in.

If you could identify yourself and tell us what organization you're with, if you're with one, and then give us your statement.

MR. LEGRANDE: Thank you. My name is David LeGrande. I'm Director of Occupational Safety and Health, with the Communications Workers of America. Our interest, in particular, is specific to many hundreds of thousands of workers we represent, in two particular industries, and that is telecommunications and manufacturing. Without dealing with a specific case, I want to thank the work of all of you, and also the Department of Labor, in one case that has moved along, an 11(c) case involving the union, the Department of Labor, and AT&T. I should mention it's not specifically one case.

Throughout the entire country, when we learned of the employers' behavior to discipline workers when they suffered work-related injuries, and then reported those cases for medical treatment, to company medical, and thus these cases became OSHA-recordable, the discipline was presented to the worker. When we learned of these cases, the union mobilized throughout the country, particularly in the Midwest, where we have a really effective mobilization structure, and to date we have more than 90 OSHA complaints and grievances that have been filed, specific to this behavior. I want to thank the work all of you do, as well as the Department of Labor.

Another major employer that we represent -- I'm not afraid to mention employers' names -- in the collective bargaining relationship, Verizon actually had a more onerous policy than did AT&T. They also initiated their policy a year earlier, in 2010, as opposed to AT&T's in 2011. And the work of the union and the support of the Federal Government in these cases has led Verizon to wisely set aside, in many areas of the country, what we think is their illegal and onerous policy.

I want to thank, without getting into details regarding the Cleveland case, thank the Department of Labor for allowing the union to provide intervener status in that case. I understand it's the first time this has taken place, according to the Cleveland folks, in the Solicitor's Office there in Cleveland, that is.

This is an extremely important issue, and the work that you do is, again, appreciated. Illegal activity on the part of the employer really needs to be stopped. Without going into a speech, they bend their opportunities beyond the law whenever they can, and in support of the Federal Government in that regard is important.

I should mention, in the cases that we were involved in, there has been a significant coordination within the Solicitor's Office, within the Department of Lsbor, although nothing is perfect. So we would advocate that you pass the message on to the solicitors and the Secretary of Labor, as well, that coordination among the various regional offices and area offices really needs to be improved.

In the case -- again, not mentioning details -- the Cleveland case, which is comprised of 13 individual claimants, had to move forward before the other regional offices were willing to move forward, kind of a mystery to us, and other offices meaning Chicago, Kansas City, and, most recently, Atlanta, as well. We're trying to get as many cases filed in as many parts of the country as we possibly can, and not just for the purpose of improving working conditions for our members, but making the Department of Labor's job a little bit easier, and also ending these practices on the part of involved employers.

I do want to mention another issue that I would ask you to step into, that we've identified as a major issue, particularly in one state. It's kind of ironic. I grew up in Cleveland, so I'm really proud of the Cleveland case, but I lived in California for several years, and I'm really unhappy with what's going on in California.

We have several cases, violations of 11(c), that have been filed against the two major telecommunications companies in California, AT&T and Verizon. Under California law, CAL OSHA does not handle 11(c) cases. They refer them to the Division of Labor Standards Enforcement, and if there is an injury involved, Workers' Compensation. That sounds like it makes total sense, I guess.

The problem is when workers go into DLSE, the Division of Labor Standards Enforcement, to file a case, they're told to go to Workers' Comp, and when they go to Workers' Comp, they're told to go back to DLSE, and CAL OSHA just holds their hands up in the air and says, "We have no authority over these issues."  Again, the Occupational Safety and Health Act is pretty straightforward in saying that states have to have plans that are as effective as the Federal Government's, federal OSHA, and clearly California is one state that we've identified that is, I would call it out of whack, and would appreciate your attention to these issues.

We have not received satisfaction through either CAL OSHA, DLSE, or Workers' Comp on this, and our state representative and other labor representatives in the state of California have run into the same brick wall, you might say, in terms of success. That makes it extremely difficult for us, as the legal collective bargaining representative, to adequately represent our members as we have the right to, under the National Labor Relations Act.

That's the extent of my comments. I appreciate your attention, again, to these issues, and would appreciate your attention, to the degree that you can, focus on an individual case, looking at the case that's moving through the Solicitor's Office in Cleveland, Ohio. It appears, knock on wood, that there may be a very positive outcome to that case. If that is actually what happens, that can have a significant positive effect on how 11(c) cases are handled in the private sector in the U.S., and with that I appreciate your time.

MS. SPIELER: Would you be willing to take questions, if there are any?

MR. LEGRANDE: Oh, certainly.

MS. SPIELER: Thank you.

MR. EHERTS: I've got a quick one. Can you give us a few more details on the offending policy at AT&T and Verizon?

MR. LEGRANDE: Well, let me focus on AT&T, because that's where the active cases are. Verizon, again, withdrew the implementation of their policy when the union requested, on the East Coast, in this part of the country, requested information through the collective bargaining agreement, and identified that Verizon was in violation of other OSHA standards, so we sort of cut a deal, you might say, and that is you correct those other standards but you also do not implement this policy. It's not always easy with a company like Verizon.

With AT&T, the policy very specifically says that if an employee suffers a work-related injury, by definition it is preventable, and because it's preventable, by definition it's the employee's fault, and the employee should be issued discipline. Now, as in the collective bargaining agreement, it's a step process. You don't get fired immediately, just as you wouldn't get fired through the grievance process immediately, unless it was an egregious act, of course. You are initially warned. Then you are suspended for a day. If it's an issue where they see some problems with that particular employee's employment record, they will increase the suspension to 5 days.

MR. EHERTS:  Okay. Just to be specific, it is because they broke a rule and were injured, or is because they were just injured?

MR. LEGRANDE: It's because they were injured. I'll give you a specific example, if I may. In a case in Michigan, we had a member who was climbing a ladder, performing his work above ground, and the work rule the company has is you first investigate the general work area to identify any potential hazards that might be out there.

In this particular case, the ladder was not far, and really, there was no choice where the worker could place the ladder, but it wasn't far from a bush, and the bush was up about three rungs high on the ladder. The worker looked at the bush, saw nothing unusual with the bush. When he came down the ladder he was stung by a bee, and that created an allergic reaction. He went to see company medical. He was suspended for 3 days because this was an egregious act. He did not identify the fact that there was a bee's nest in the bush, and, thus, this was a preventable injury, and because it was a preventable injury, he was subject to discipline. The union grieved the case.

Interesting in this particular case, Michigan, which is a state plan, MIOSHA, Michigan OSHA, ruled in favor of the claimant and the union, our Grand Rapids local, and the company, of course, contested the citation because that's what companies do, because they can. The administrative law judge ruled in favor of the claimant and the union, and then subsequently ruled, in three additional cases, against the company -- totally different circumstances, not bee sting cases, outside injuries, or injuries that occurred outside.

And then, of significance in the Michigan case, we had 18 recorded cases where grievances have been filed and complaints with Michigan OSHA had been filed. All of those cases were then settled to the union's satisfaction and the workers' satisfaction. But, again, it's 2014 now. It took almost 3 years, 2-1/2 years for those cases to be settled, and the duress that the employees are put under is significant during that period of time.

So, again, we appreciate your support in eliminating this illegal behavior on the part of employers, or at least working with various parties to do that.

MS. SPIELER: It has definitely been a focus of many of our conversations, those kinds of practices. Other questions or comments for Mr. LeGrande?  Thank you very much.

MR. LEGRANDE: Thank you. I appreciate it.

MS. SPIELER: Is there anyone else here who would like to offer public comments?  And before we move forward, is there anyone here who is observing and hasn't previously identified him or herself, and, in particular, you need to make sure that you sign up on the observer list.

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

MR. DEANGELES: Richard De Angeles, OSHA's Office of Communications.

MR. MOKADAM: Dinkar Mokadam, Association of Flight Attendants, TWA.

MS. GUENTHER: Megan Guenther, Office of the Solicitor.

MR. SIRBAK: Joe Sirbak, Buchanan, Ingersoll & Rooney.

MS. SPIELER: Thank you. Okay. So we are still waiting for Marcia Narine to call in, but Eric has indicated that he can go ahead with the report from the Transportation Work Group. I'd like to invite the members of the work group who aren't members of the committee to come up and sit at this table. I know that Larry and Rick are here. Is there anyone else?  So, Rob, if could just help them get comfortable.

Just as a little background, while people are settling in, the Transportation Work Group has external experts who have been appointed to be members of the work group, although they are not members of the full Advisory Committee, in part, or maybe in total, because the full committee did not have representation from the transportation industry, and that was felt to be a significant gap in the initial appointment of the committee.

The work group has been working with Eric Frumin, a labor representative, as chair, and Marcia Narine as the second representative from this committee -- Marcia represents management -- with representatives from both management and labor in the rail industry, and as I think Eric will tell us, will move from the rail industry to other components of the transportation industries in the future.

But I'm going to turn this over to Eric, with the same request that I made this morning, to start with any recommendations, and after the committee has considered the recommendations, to discuss any other issues that have come up in the work group, and then future plans.

And Marcia will be calling in, in probably -- would it be better to do it in a different order?

ATTENDEE: It's going to be sooner. I just checked my notes.

MS. SPIELER: Do you want to start with the recommendation?

MR. FRUMIN: I'd like to do the report.

MS. SPIELER: Okay. We're actually going to wait on the recommendation until Marcia can phone in, and so Eric is going to start with the report from the committee, the issues that have been considered, and then once Marcia calls in, we'll be able to move to the recommendations.

So, there is a written report from the committee that was revised yesterday, and it will be Exhibit 11 to the committee minutes.

[Exhibit 11 is entered into the record.]

MR. FRUMIN: And there are two other documents, as well, that the report references, the recommendations and also the minutes of the August 20th meeting.

MS. SPIELER: Okay. So why don't we make those now components of the record. The recommendation would be Exhibit 12 and the report from the -- what's the third one?

MR. FRUMIN: The minutes.

MS. SPIELER: The minutes would be Exhibit 13.

[Exhibits 12 and 13 entered into the record.]

MR. FRUMIN: Okay. So the work group includes myself as a labor rep and chair; Marcia Narine as a management rep, who actually did come from the trucking sector, so she is familiar with one part of the transportation industry and that aspect of it. And then we had three labor reps, two of whom are here, from rail. We've got Rick Inclima and Larry Mann, and then we had a third labor rep from trucking, Mike Manley, from the Teamsters. On the management side we had two reps from rail, who may join us. I don't know. Is Connie here?

MS. SMITH: She left.

MR. FRUMIN: Oh. She had to leave. Connie Valkan from Canadian National, or Illinois Central, and Charles Shewmake from BNSF, Burlington Northern, with a shout-out to Charles's colleague, Andrea Hyatt, who is here, who was often helpful in some of the minutes, as well. And, on a couple of occasions, the lawyer who works with Rick Inclima, Harry Zanville, stepped in for Rick, in a couple of discussions, as well, when Rick couldn't participate. But, in general, that was it from rail.

And then from trucking we had, on the management side, Todd Jadin, a senior official at Schneider National, which is one of the largest trucking companies in the country. We also had two people from the air transport world, Rob DeLucia from the Airline for America, and Ed Watt, formerly with the Transportation Workers Union, now with the ATU, Amalgamated Transit Union. And I'll say a bit about the air transport issue, as well.

So it's a little unusual group, compared to the other work groups, but I think it's fair to say the group very much had its feet on the ground, in terms of the issues we were discussing, and I want to thank the members of it, again, as I've done repeatedly, for their hard work and willingness to cooperate with each other in getting to agreement.

So, there's a written report. I'm going to summarize some of it, not try to read it verbatim, and add a few comments about it, and then, in the course of that, discuss the recommendation that we're presenting at this meeting, for your consideration, which we'll vote on, but also discuss another recommendation on which there was no agreement, and some other issues.

So, as I've said, we have more people on the work group from the rail sector, so no big surprise, the rail issues got a lot of attention. Also, the rail sector has been one of the most active areas of focus for OSHA in enforcement on whistleblower issues. So, that's perhaps why there was more participation, you know, more people on it. In any event, we spent a lot of time talking about rail industry issues.

Another reason why the rail sector dominated was -- and I'll get tot his more later, but -- one of the critical linkages that we needed to make, as a group, was to have active involvement from the FMCSA in order to knowledgeable discuss the trucking issues and the Surface Transportation Act enforcement. And originally we had, as a member of this committee, Jack Van Steenburg, the Chief Safety Officer for FMCSA, but he wasn't able to continue in that role, so we lost a critical part of that discussion, and only recently do we now have someone from FMCSA, so we're sort of back in the saddle on the trucking issues. I'll say more about that later. But it wasn't only because of the vibrancy of their work in rail. It was also because of the need to fill this gap in FMCSA's involvement.

Anyway, so, just as a reminder, we early on discussed two issues and brought forth recommendations, I think, for the March meeting, on consistency in application and transparency, and was glad that we could contribute to the committee's work on that, and so that's a matter of record. We figured, with that kind of success, we would easily achieve agreement on some other issues.

And, at the time, back in March, we were already working on two questions -- training, particularly employer-initiated internal voluntary training, and also incentives, and the incentives that I'm talking about here are incentives for employers to do training, based upon consideration that such training programs would receive in enforcement efforts. So if you do training, you get a break in enforcement effort, and Greg already mentioned this morning an example of how that might work.

Well, when those proposals were provided initially, they were kind of joined at the hip. You could see why, right?  But it became clear that there was not going to be a consensus -- oh, sorry.

[Incoming call.]

MR. SWICK: Whistleblower Protection Advisory Committee.

MS. NARINE: Hi. This Marcia Narine.

MR. SWICK: Hi, Marcia. We're on the record and live. Can you hear everything okay?

MS. NARINE: I can, but I'm going to put the phone on mute because I'm in a loud place.

MR. SWICK: Okay.

MR. FRUMIN: Hi, Marcia. Eric here. So I'm just starting our report. Thank you for making the effort to join us, and, again, our sympathies to you and your family.

And, for your information, I've given some of the background and I'm now going into the discussion that the work group had on the training and incentives issue. Incidentally, Marcia, we're joined here by Rick Inclima and Larry Mann. It may be that some of the other members of the work group will show up before we are done with our report, but Rick and Larry are here, as well.

In any case, so we had a lot of difficulty getting to this question of how we could decouple the training and incentives issues, and one of the tricky things -- and, for a while, it looked like we simply couldn't. It even became difficult to accept the use of the word "effective."  We had spent a lot of time on the word "effective" to discuss training.

And it came down to the same basic questions -- well, what do you mean by effective, and how will that play out in enforcement?  It was as with training, in general, particularly on the management side, there was consistent concern, what are the implications of this for enforcement -- which is a very natural concern, understandable, but it became an obstacle to reaching agreement on a recommendation regarding training, period. And when I'm talking about training, I'm referring here largely to the internal voluntary training.

This started off as a discussion in the rail sector. It's important to note here that FRA does not require employers to provide training on retaliation issues. That's like a serious gap. It may have something to do with the nature of the problems in the rail sector, but, in any case, the importance of voluntary training cannot be overemphasized, given the lack of any requirement on employers in that sector, under FRA rules, to do training on this issue.

So, that became a real stumbling block, and in August, we actually got to the point of taking votes on several different versions of the training proposal. It's reflected in the minutes that you have, and we ended up with a sharp party line vote, labor on one side, management on the other, and we could not proceed with a recommendation. So the draft report that I prepared last week, that you might have had a chance to read, said, basically, sorry, we don't have a recommendation. We have a party line dispute. Can't help you out.

And I think it's fair to say that the difficulty of wrestling with this definition of "effective" was, in part, related to the enforcement implications, but it also arises from, I think, a genuine concern about what constitutes effective training, and that concern was shared by everybody in the group. The stumbling block was, do we need a definition in order to say something about the need for effective training and the value of effective training? 

And for quite a while, I think it's fair to say -- others, correct me if I'm wrong -- that the management folks were not willing to accept a recommendation from this group calling for effective training without knowing, essentially, what they were getting themselves into. Understandably, could this turn up in some enforcement setting?

So, we couldn't get to agreement. Well, finally, yesterday, with a little bit of additional text about the value of training, and noting the importance of it, that disagreement melted away, and so we're able to present this recommendation today, and, again, the recommendation supports the idea of voluntary internal training by employers. We realize, of course, it's not limited to rail. It's not limited to transportation. This group's expertise is in the world of transportation, for most of them, and we're not in a position to really understand, I think, how this would play out in a lot of other sectors, because our feet are on the ground in the transportation world, but it's clear to everybody that the recommendation has merit outside the world of transportation and rail and trucking and Safe Container Act, or AIR21, or whatever.

So, as a result, we came with a recommendation which calls not only for OSHA itself to promote internal training by preparing materials itself, which would be made available to employers, but also, for this group, for this Advisory Committee, to assist OSHA in doing that by, yes, Emily, convening yet another work group to help develop parameters and content for OSHA's so-called sample or model training materials. So we envision this group, the WPAC, offering its assistance in a more concrete form to OSHA, with the design of materials that OSHA would eventually distribute on its own letterhead, so to speak.

MS. NARINE: It's hard to hear you. Can you talk a little bit louder?

MR. FRUMIN: Sorry. Is that any better?

MS. NARINE: That's much better.

MR. FRUMIN: Okay. Sorry. So we, ourselves, want to help OSHA develop the materials that OSHA would use to promote voluntary employer training in the rail sector, and we said statute-specific training. What kind of training materials would be helpful to employers in rail?  In trucking?  In general industry construction, et cetera, covered by OSHA, et cetera, recognizing that some employers really need that. So I'll present that recommendation in a minute.

On the incentives issue, it was clear that there was a lot of support from management for the use of training programs, and so there was no question that they wanted to support the use of those programs, in part, in relationship to enforcement.

But it was -- how do I characterize it here? -- it was based upon a pretty generalized description of what kind of training would qualify for more lenient treatment, whereas, on the labor side, they wanted a lot more details about what kinds of training programs would qualify, and I mentioned a few of them in the report.

The effectiveness of the training -- whoops, there's the E word again. What's the employer's prior history in retaliation?  Not just was there a training program, but what was the history at that employer, on these enforcement cases?  And, finally, even identifying the need to identify the managers or the supervisors who were involved in the enforcement case, so that you would need a much more robust evaluation of the training activity in order for that training activity to qualify as grounds for some kind of leniency.

So you could see there was a really sharp difference of view between the labor and management folks on what kinds of training would be suitable for use by OSHA in enforcement, and, therefore, serve as an effective incentive. So that gap we couldn't cross, and so there's no recommendation on incentives, but I wanted to let you know about that, in the spirit of presenting the different versions of it, so you're aware of it. A different kind of incentive issue has been discussed here at length on reporting issues, but we also talk about enforcement issues here.

So, I'd like to briefly report on -- just provide the rest. Well, I could -- let's see. Maybe we should just deal with the training recommendation now and then I'll come back to the rest of the report, because Marcia is on the line. Okay.

So, first I want to ask Marcia or the other members of the work group, Larry or Rick, if there's anything else you would like to add to what I've said here. No. Rick and Larry don't. Marcia?  Anything else you'd like to add?

MS. NARINE: I think you're -- I don't have anything to add. I'll just be there to answer questions if there's anything.

MR. FRUMIN: Okay. I just wanted to take this opportunity to also thank Marcia publicly for her involvement in the group. She's been very clear as a management rep what her vantage point was, but I think she also brought a very fresh and honest look at the issues repeatedly, and always demanding a very high standard of management performance in her expectations for what constitutes adequate management performance -- and I don't say that often. So I just want to express that appreciation, Marcia --

MS. NARINE: Thank you very much.

MR. FRUMIN: -- for your contribution to the group, and willingness to work hard, and, again, even to the point of calling in today.

Okay. So that's the report, and now let's get on to the recommendation, if I could find my copy of it here. Here we go. Got it. So, it's very short. I'll just read it over.

The Transportation Working Group recommends that the Advisory Committee consider the usefulness of recommending to OSHA that it, meaning OSHA, develop and offer statute-specific periodic training to transportation and other industries subject to whistleblower laws. The working group recognizes that effective internal training on the topic of whistleblower laws may assist company managers, supervisor, and employees in understanding their rights and responsibilities under the whistleblower laws, and prevent retaliation.

The working group recognizes that some employers, especially small to mid-sized employers, may lack the resources to design their own training programs. And, finally, the working group recommends that WPAC assign a working group the task of recommending threshold parameters and content for such training.

So, I'll move that. Does anyone want to second it?

MS. SPIELER: It doesn't need to be.

MR. FRUMIN: Oh, it doesn't need a second.

MS. SPIELER: It comes from a --

MR. FRUMIN: It comes from the group. Okay. Yeah, Marcia and I. So this report that I'm summarizing is one that Marcia and I, you know, developed together.

MS. SPIELER: Okay. So we have before us a recommendation that comes, and, as we decided before, since it comes with the subcommittee's recommendation, it essentially comes moved and seconded, and the floor is open for discussion of the recommendation.  Nancy.

MS. LESSIN: So, I have a couple of question, but just a couple of things going into this that are troubling, and this is just very specific to rail right now. In 2008, when the congressional hearing was held on the underreporting of injuries and illnesses, there was only one industry that was called out in that report for its terrible record in retaliating against workers for reporting injuries and illnesses, and that was rail. So that was 2008.

In 2014, I went through the National Press Releases that came out on whistleblower, that dealt with actions against employers for retaliation. There were 17 of them, and a third were from rail. So we have this, you know, many years and rail keeps showing up as very, very problematic.

So, in light of that, the larger question is, what's going on?  How does training fit into this?  And I think that training is a component. As I read this, this talked about the working group recognizes that some employers, especially small and mid-sized, may lack resources, but, you know, some of those that keep showing up as being called out for the retaliation are Metro North, BNSF, Union Pacific, Union Pacific again. These aren't folks that are lacking resources.

So, some of the questions that I have -- is anyone in rail doing training, and it is making any difference at all, or is there no training anywhere?  I think I'd like to know a little bit more about, you know, has training been tried and is it working somewhere?  Is training the problem?

I'd also like to know -- this is asking for OSHA to develop statute-specific training -- are there other things in the, you know, anywhere. Does OSHA develop training that goes to employers, and who does it, and what do we know about it?  And I know there's a whole section of training coming out of OSHA. That's the Susan Harwood grant, so it's not OSHA that develops it. They sent it out. So unions, and employers, and academic institutions can, with OSHA-funded money, develop training, and it has to be approved by OSHA. So is that something to look at? 

And then, what about if employers -- this seems to say the working group would look at encouraging OSHA to develop this training for employers. Is, then, the hope that the employers will train employees?  What's the link between those things?  So that's just some of my initial thoughts.

MR. FRUMIN: Okay. So, on the first question -- so let me just repeat the three questions. What's happening in the rail industry?  Does OSHA provide training materials, broadly, and in different versions, training or training materials?  And, third, is the training of employees envisioned in this recommendation?  Did I more or less get that right?

MS. LESSIN: Close enough.

MR. FRUMIN: Okay. So on the first issue, I'm going to defer to the people from the rail industry who are here, to answer that question in a second, because I could repeat what I've heard from them or the management counterparts, but I'll leave it to Rick and Larry to respond to that. And there was certainly robust discussion about the training practices in the rail industry, so no shortage of information on that score. Opinions, as well, but information, no less.

On the second issue, does OSHA provide training and training materials, OSHA does a lot of training, not the least of which is to its own staff or to the staff of state-plan inspectors, and the OSHA Training Institute is a big operation. They've got years of experience. I think the OSHA website is one of the most heavily visited websites in the entire Federal Government, and there's a huge amount of training material on their website, so everything from brick-and-mortar, warm-blooded people teaching classes to a fact sheet about how to operate a forklift, and everything in between, it's out there.

Some of it is done internally. The E-tools, I know that some people at OSHA have worked on, very hard, for many years. Some of it is fabulous stuff. You know, it just is very sophisticated work. So I don't think there's any lack of space within OSHA to expect that OSHA could prepare these materials.

Do they need the benefit of people like ourselves, from the outside, to help them with it?  Yes. Do they often use private sector materials in their training, with a stamp of approval, that they vet?  Absolutely, whether it's grant-funded or from the Institute for Forklift Safety, or whatever. Yeah, so they do.

So I think we're operating in a realm that OSHA feels comfortable with by asking them to do this, and we should encourage them to do it, but we should give them the benefit of our experience. What the hell. We're an advisory committee of people outside the agency.

On the third one, yes, we definitely envisioned these materials being used by employers to train not only managers and supervisors but also employees, and it references employee awareness, as well, and that was the spirit of the discussion.

So those would be my immediate answers. Before I ask Larry or Rick to comment on the first question, Marcia, did you have anything you wanted to add?

So, Marcia, if you're talking, you're on mute still.

MS. NARINE: No. I wasn't talking. I could partially hear what you were saying, although I heard the questions clearly, so I didn't want to repeat anything. I know that you mentioned the fact that we had talked in the report about [inaudible, bad phone connection].

MR. FRUMIN: Hang on a second. Marcia, the volume was down a little low. Could you just repeat what you said?  You didn't know if we mentioned what?

MS. NARINE: I didn't know if you had mentioned the issue of the Department of Labor working with industry and labor to develop the training.

MR. FRUMIN: Yes, I did, and I --

MS. NARINE: [Inaudible, bad phone connection] because it was a little hard to hear you. I heard her questions very clearly, but I couldn't hear your responses clearly.

MR. FRUMIN: I apologize. Yes. I did say that that was our intent, which was for stakeholders like ourselves to be involved in that training, in developing the training, so that's the intent of the recommendation. That's what our report says, but that's what we intended.

MS. NARINE: And I don't know if Charles is there --

MR. FRUMIN: He's not, no.

MS. NARINE: -- and he could talk about the training that BNSF does, but he talked about the fact that they do extensive training, but we are aware that other smaller companies may not be able to do it, or don't have the money, or don't have the people to do it.

MR. FRUMIN: Right. He's not here, but I'm asking Rick and Larry to say something about the practices in the rail industry that they're familiar with. Was that it, Marcia?  Did you have anything else you wanted to add?

MS. NARINE: No. I don't have anything else to add.

MR. FRUMIN: Okay. Thanks. Okay, Rick or Larry, could one of you comment on the practices in the industry?

MR. INCLIMA: Thank you, Eric. You know, I mean, Nancy's absolutely right. The railroad industry has a lot to grow into, to come, frankly, into the 21st century on this stuff. Some of the underlying problems, if you talk to management, they'll say, well, it's the Federal Employers Liability Act, which is, essentially, our Workman's' Comp, and they hold that up as a shield, whether it's a safety regulation, whistleblower, or anything else, that that's the big problem.

It really isn't. A railroad and an injured employee can sit down in a room and settle that case. If it was 10 lost work days, they can make them whole, or split the baby, whatever, but it takes two sides to make the deal. Under FELA, if you can't make the settlement, you know, you go to court, and Larry can talk more about that.

So that's one aspect that seems to be an impediment, I think somewhat of a false impediment, none the less. Then you have these programs and policies in place where managers -- promotional opportunities, bonuses, their stature within the company -- is tied to injury rates. And so if a supervisor, a front-line supervisor has X amount of injuries, he basically gets called on the carpet. He can be demoted. He can be fired.

So that supervisor has, frankly, a lot of personal incentives to make sure that accidents don't occur, but when they do occur, they don't get reported, because he's going to be kind of on a -- you know, they're keeping a tally sheet, and if Bob's got more injuries on his territory than Jim, well, guess what?  Bob falls out of favor and Bob may be out of a job. So there are some built-in incentives there that more or less lead to harassment and retaliation for injuries.

So that's kind of what's going on with question number one, and, Larry, I don't know if you wanted to elaborate on that a little bit.

MR. MANN: A couple of points. There is also peer pressure. If I'm going to make a few bucks in my group, I'm going to put a little pressure on my coworker who may be injured, not to report. So it's not only the manager putting pressure on. It's peer pressure, as well. I'm talking about the incentive policies, and many railroads have formal policies. It's written policies on this issue.

And we also have to look at the rail industry culture for 100 years. In almost every case, up until the whistleblower law, every time an employee was injured there would be sanctions imposed against that employee. Virtually 100 percent of the time there would be a counter-claim by the industry that there was a violation of some rule, whether it was valid or invalid. But that was the culture they've been dealing with, up until present time.

The issue of the incentive program is one that I'm particularly concerned about, and I'm going to move forward in the subcommittee to bring specific examples to the working group, for us to address, and maybe bring to the full committee for one of two actions -- individual complaint, or, I'm interested in a declaratory judgment to get this issue resolved for once -- is an incentive program of violation of whistleblower, and I think it particularly is so when you have a financial interest in not reporting.

I also want to address one other point. The reason that the issue of those small to mid-sized employers was inserted here is that we have approximately 560 small railroads. We're talking about mom-and-pop railroads in the country, and some of them are ten employees. So it's going to be difficult for even those managers on these small railroads to even know about whistleblower. It's not clear to us how we can handle that. Of course, they have an association. There's a Short Line Association, nationally. Whether or not we could encourage them to do some training would be helpful, of course.

So those are my comments on that issue.

MR. FRUMIN: Okay. I would ask Rick or Larry, if you could, just to characterize, briefly, how you see the training efforts within the railroads now on the issue of retaliation or preventing retaliation.

MR. INCLIMA: Yeah. That's a great question. The big railroads say they're doing training, and I'm sure they are, but they're not training our members. They're training managers, and, quite frankly, I think they're training managers to learn how to fire a person, or discipline a person, or put him in an adverse position without getting hooked under the FRSA. That's why this recommendation is broad.

It says managers, supervisors, and employees, because, quite frankly, if you trained everybody in the same room -- I don't expect, in my lifetime, that would happen, but if you did that, then everything is on the table, and everybody hears what's being said. So that's what's going on.

We think that training is lacking. Maybe they're doing training, but perhaps not for the right reasons, and that needs to be fixed. Part of that effort, or part of the solution is for us to provide training to the workers, and the Brotherhood of Maintenance of Way Employees Division has formal, 20109 FRSA whistleblower training programs, and pretty much we do them around the country, and we educate our members. I'll be in upstate New York next week, doing a program.

And the idea here is to let them understand their rights and responsibilities. Know what the law provides and know what the law doesn't provide, which is equally important, because we don't want to burden OSHA, the labor reps, or, frankly, anybody else with frivolous cases, frivolous claims. So we try to be very focused on, this is what it is and this is what it's not. Frankly, I think if management did the same thing, we'd be in a much better place.

MR. FRUMIN: Larry?

MR. MANN: I will comment about the operating crews. I conducted seminars for the operating crews at their regional meetings, their conventions, but we're talking about maybe 500 employees coming to a regional meeting or a convention. There are 40,000 operating employees. It doesn't get down to the rank and file, and, frankly, labor doesn't know how to get that accomplished.

If you have local meetings, because of the work schedules of railroad workers, 24 hours a day, they are 12-hour shifts, you rarely get more than -- I'm talking about operating crews now -- you rarely get more than 10 or 12 employees at a local meeting. That's just the nature of the beast, because of their work schedules, and they need their rest.

So we, in the operating part of the rail industry, have not been able to adequately train.

MR. FRUMIN: All right. Other questions?

MS. SPIELER: So are there other questions or discussions about the recommendation. Nancy?

MS. LESSIN: So, one of the things that it occurs to me, when we look at problems, training is definitely an important piece, but it's not where you start. You try to eliminate the problem or the hazard. In our 11(c) work group, we came up with a recommendation going further than the Fairfax Memo, saying that the practices, policies, and programs that are retaliatory should be taken on by OSHA as part of what they do to eliminate retaliation. It occurs to me that the Fairfax Memo doesn't just cover 11(c). It covers FRSA.

So one of my questions -- and I may already know the answer to this, but I hope I don't -- is, could you take that recommendation that we have, about the Fairfax Memo --

MS. SPIELER: I'm going to interrupt you. I'm sorry, but right now we have a motion on the floor that's specific, that we're discussing, which is a recommendation with regard to training, and we haven't opened up the conversation yet on the Transportation Work Group for the other matters that they might consider, and I think we owe it to the group, which worked very hard yesterday on this specific recommendation, for the Advisory Committee to consider it, and decide what we want to do with it, and we may very well have additional thoughts about what the work group should do, but we can move on to those next, as a matter of procedure.

MS. LESSIN: I was just going to link that we had a lot about education in that, and I was making the link with this training and education piece, if it could be expanded to include that education.

MS. SPIELER: Did you want to offer an amendment to this recommendation that's been made?

MS. LESSIN: I think I just wanted to raise the query for the Transportation group, and I think they may know that this isn't going to go anywhere.

MS. NARINE: Can you talk a little bit louder, please, or closer to the microphone?  Thank you.

MR. FRUMIN: So Nancy has raised a question about the scope of this recommendation, particularly in comparison to the earlier recommendation from the 11(c) group. With the 11(c) recommendation now having been adopted, our group can certainly look at that. Larry has also focused very much on a future plan of work for the group on the incentive issue, not the incentives as I've described it in my report but the incentives as we've discussed more broadly within the committee.

So I think it's safe to say that the question of company policies linking injury reporting to financial incentives and so forth, that's going to get plenty of discussion. I'm trusting Larry to be good to his word on that subject, and we're interested in that, so I'm sure that will happen, but at some future discussion. Richard?

MR. MOBERLY: I had a question for the group on the scope of this, because I'm unclear on whether you are suggesting or asking for training to just the transportation group, because you say transportation and other industries, and then you are asking to assign to a working group, so I can imagine if you wanted training for the transportation industry, then your working group ought to do it, or it would be a natural home for it. If you're asking for training writ large, then perhaps it would be a different working group. So I'm just wondering -- I'm not clear which one you mean.

MR. FRUMIN: I think -- well, I know we discussed this and we expected that this recommendation would apply broadly and that the involvement of labor, management, and other stakeholders in supporting OSHA's development would be broad, as well. So we were very clear that we believed that this recommendation would not be limited to transportation. It would make sense for it to be cast more broadly, and that the stakeholder involvement would be broader, as a result.

MR. MOBERLY: Thanks.

MR. FRUMIN: And, therefore, we would need some other group besides ours to be involved in that.

MS. SPIELER: I'd like to just point out something about the format of this recommendation, as we think about it. It comes to us as a recommendation to the Advisory Committee to consider the usefulness of a recommendation to OSHA, as opposed to in the form of the Advisory Committee recommends to OSHA. It may be that the consideration of this and the consideration of the creation of a training committee is something that the Advisory Committee can continue to take up, based upon this recommendation, that's different from a recommendation that says to OSHA, do this. I'm not sure whether that's what the work group actually intended, but it does mean that unless we amend the language of the recommendation, it is a recommendation to us as to further action for the Advisory Committee.

MR. FRUMIN: Yeah, no. I think you've caught a problem with the formatting. I feel comfortable saying we intended this recommendation to be adopted by the full Advisory Committee as a recommendation to OSHA to take action, i.e., draft training materials for employers to use. So if it doesn't read the way we intended, I apologize. We should have caught it. There were enough drafters in the room to shake a stick at, but, in any case, yes, our intent was that the action by the full WPAC in adopting this would mean that the full committee is speaking to OSHA, saying, yes, OSHA, please develop these materials and we're going to help you by supporting you with drafting them on threshold parameters and content.

MR. MOBERLY: Can we clean up that language, then?

MR. FRUMIN: Yeah. Let's clean it up.

MS. SPIELER: Yeah, well, so I -- I'm going to read this, but I'm puzzling over the last paragraph. So, it would read, if it is adopted, "The Advisory Committee recommends to OSHA that it develop and offer statute-specific periodic training to transportation and other industries subject to whistleblower laws. The Advisory Committee recognizes that effective internal training on the topic of whistleblower laws may assist company managers, supervisors, and employees in understanding their rights and responsibilities under the whistleblower laws and prevent retaliation."

So wherever it says working group, it should say Advisory Committee. So, in the next sentence it would be the, "The Advisory Committee, or WPAC, recognizes that some employers, especially small to mid-sized employers, may lack the resources to design their own training programs."

And then I think the last sentence will have to be, "The WPAC will consider the formation of a working group that will be assigned the task of recommending threshold parameters and content for such training."

MR. FRUMIN: Yeah. Well, that comports with our intent. It's always good to have another set of eyes, or, in this case, a dozen set of eyes.

MR. KEATING: Emily. Could I say something?

MS. SPIELER: Yeah, go ahead, Greg, while I'm puzzling over this.

MR. KEATING: That's fine. I would just volunteer that rather than, in the last paragraph --

MS. SPIELER: Yes. Please rewrite the last paragraph. I'm having trouble with it.

MR. KEATING: Well, my only point was, would this not logically fit in the Best Practices Working Group, to try to -- since, as John has noted, we've identified a number of hallmark components of a set of best practices, one of which is training, and we've already spent considerable time talking about what that type of a program would entail?  I just think that it might be logical, since we're going to continue to meet over the next 6 months, to focus on a subset of that, which would be the key components of training that OSHA might want to roll out, further into this mission, or this recommendation.

MR. FRUMIN:  Well, I haven't been part of the Best Practices Working Group so I can't really say how this task compares to the other tasks that you've taken on for yourself. What I can say is that this was narrowly focused on, sort of minimum level training materials for OSHA itself to produce, reflecting the input of labor and management stakeholders, that would then be made available to employers who are not developing their own training. That sounds to me like something less than a "best practice."  It sounds to me like kind of a floor. That's why we use the term threshold parameters in content. What are the minimum aspects of training that definitely need to be in there, and how would that be described and conveyed?

So, again, I can't really say whether that is at odds or markedly different than what you've discussed in best practices, but I wouldn't describe what we were asking for as  "best practice for employers."  It was something less than that, sort of like employers who comply with OSHA standards instead of having a full-fledged health and safety program, if I can use a crude analogy.

MR. KEATING: Point well taken, Eric, but it goes directly to what I was trying to say earlier this morning, which was that what we've learned in the Best Practices Group is that it's going to depend a lot on your industry, your size. And so I'm just suggesting that I think it might be a logical place, the Best Practices Group, to consider some recommendations for a minimum set of standards designed for small companies that don't have the resources, so OSHA could say, look, this is the kind of floor.

MR. FRUMIN: I'm not necessarily objecting. I'm only trying to clarify what I think was the intent of this, compared to my imagination of what you've discussed. But this is really a discussion for us, as a whole, about how to handle this recommendation, should you be so nice as to adopt it. But we're not really describing what working group it should go to. If you want to assign it to that group, fine, another group, if we can handle another group.

We didn't want to get into that. We just wanted to say we thought -- our main point about using the term "working group" was, we wanted the idea that labor and management, and potentially other stakeholders, would be involved in drafting this material, because we recognize the value of people with real-world experience providing that assistance to OSHA.

MS. LESSIN: So, I think one of the issues about the Best Practices Group is that if this is looking at statute-specific training, there is nobody from rail, in particular, on that group. So however this is done, I think the idea of having members with experience with that statute should be integrated into this. So, again, I don't know that we have to say here where exactly it's going to go, but I would like the concept that those familiar with the statute be part of the process of developing this.

MS. SPIELER: Can we leave this a little bit unstated at this point, in terms of where it goes?  For example, we could say, "The Advisory Committee will take up the task of recommending threshold parameters and content for such training," period, because it still seems to me that in order for us to really figure out where this belongs and what the best way to go about it is, all of us have to have a better understanding -- which Eric may already have, but I don't think everyone has -- with regard to the kinds of training OSHA currently develops, how it works, who it's directed at, what you think is effective, and what you think isn't.

And so, my inclination -- and this reiterates something I said before lunch -- would be to have a presentation next time, from the OSHA staff, with regard to the way you approach training, and maybe not just the DWPP, your department, but OSHA, more generally, how you approach training, how you approach communications to employers, employees, unions, and from that build a strategy for the Advisory Committee to assist in this area of training.

I think that's an incredibly important conversation to have. I agree that we need to have stakeholders who are affected by the different statutes in the specific training discussions, or we need to instruct OSHA to do that. I'm not really sure what the right answer is, but I don't think we have enough shared understanding about this at this point, and, as I've already said, I don't think we have the person power to staff a fourth committee, and I think we can see, then, in the next 6 months, what Best Practices is going to do with the training piece, and that would inform that discussion at our next meeting.

Would that be acceptable?  So if it read, "The Advisory Committee will take up the task of recommending threshold parameters and content for such training," with a period, would that be acceptable, or would the committee want it to say more?

MR. FRUMIN: Well, speaking for myself, and I hope Marcia could hear Emily's proposal, that sounds fine to me. It addresses the intent, which is that this Advisory Committee wants to make it its business to be part of what OSHA is going to eventually emerge with, and our goal is to have OSHA develop these draft materials for employers to use. So we want in on the process. That's a good way to do it. That's the intent.

Marcia, were you able to hear Emily's proposal, and do you have any comment?

MS. NARINE: I heard it, and I don't have any comments or issues with it.

MR. FRUMIN: Great. So, amendment accepted, if that's --

MS. SPIELER: So further discussion?  Do we need to have -- I was going to sort of reread the full proposal, but I'm not sure, procedurally, how to proceed at this point. Should I read it and have someone move and second it, as a substitute proposal?

MS. BETTS: It can be an amendment.

MS. SPIELER: Okay, but --

MS. BETTS: A motion and second to amend the proposal.

MS. SPIELER: Okay. I'm not sure I should make it, however.

MS. BETTS: No. I don't think you should, but also just before we do that, do you want to change the headings at all. Right now it still says it's a work group, or --

MS. SPIELER: Why don't we just say recommendations for -- amended recommendations -- Transportation Work Group Amended Recommendations for WPAC. Okay?


MS. SPIELER: Okay, and I'm going to read it, and then I'm going to ask for someone to move and second this amended proposal, and then it will be for further discussion and for vote, assuming the amendment is -- oh, wait. The amendment has to be accepted. Oh, God. This is the moment I feared of this meeting.

MS. BETTS: I'm most irritating. Sorry, everyone. I actually meant, do you want to change this so that it reflects that this is a work group recommendation to the agency, I mean, a WPAC recommendation to the agency, not a work group recommendation?

MS. SPIELER: Yes, yes, yes. It should.

MS. BETTS: Okay. So that's --


MS. BETTS: And then you can read it, and once everyone has heard the correct wording, we get a motion and second from other people, not from you.

MS. SPIELER: Yeah. Okay.

MS. BETTS: And we'll mark that as Exhibit 14.

MS. SPIELER: You're never going to be able to read my writing on this.

MR. FRUMIN: Hang in there, Marcia. We're almost ready for a --

MS. SPIELER: Okay. So the title of this is the "WPAC Recommendation to OSHA Regarding Training."  Okay?

"The Advisory Committee recommends to OSHA that it develop and offer statute-specific periodic training to transportation and other industries subject to whistleblower laws. The Advisory Committee recognizes that effective internal training on the topic of whistleblower laws may assist company managers, supervisors, and employees in understanding their rights and responsibilities under the whistleblower laws and prevent retaliation.

"The Advisory Committee recognizes that some employers, especially small to mid-sized employers, may lack the resources to design their own training programs. The Advisory Committee will take up the task of recommending threshold parameters and content for such training."

MR. EHERTS: So moved.

MR. KEATING: I second.

MS. SPIELER: Moved by Dave Eherts, seconded by Greg Keating. Further discussion?  Ready to vote?  All those in favor.


ATTENDEE: Raise your hand.

MS. SPIELER: Eleven. Opposed?


MS. SPIELER: It passes unanimously, 11 ayes, 0 nos, no abstention.

MR. FRUMIN: Okay. So, thank you very much for the support. We appreciate it. I now want to report on the other aspects of our group's work.

MS. SPIELER: Oh, wait. This has to be entered into the record as Exhibit 14, the amended recommendation from the Transportation Work Group regarding training.

[Exhibit 14 entered into the record.]

MR. FRUMIN: So now I want to talk very briefly about the trucking industry issues. As I mentioned earlier, one obstacle to a meaningful discussion about trucking industry issues was the absence of an active participation by someone from DOT. Now that OSHA and the FMCSA have their memorandum of understanding in place, we have a senior FMCSA office, Bob Miller, who spoke to us yesterday, with whom we can engage, and that now offers multiple opportunities for the trucking industry reps on the committee, and others on the committee who are familiar with transportation and DOT, as well, to discuss trucking industry issues and enforcement under STAA.

So we look forward to doing that, and that had implications for the discussion that I'll mention in a minute, about the future of the working group, because we considered that as a general question.

It's worth pointing out, coincidentally, that, at the same time that we have this new opportunity to engage with FMCSA, we, meaning industry and labor stakeholders as well as OSHA itself, at the same time as that's happening, coincidentally, FMCSA itself is under a directive from the Congress in the MAP-21 law, to address a new area of retaliation prevention by including prohibitions against coercion in all of its new regulations. So, coercion is a form of adverse action that does not yet translate into a person losing something -- losing their job status, losing money, and so forth -- but is, nonetheless, supposed to force an employee to do the wrong thing.

And, if you think for a minute about the nature of work in the trucking sector, it's easy to imagine what that coercion sounds like. "Either you get that load to Oshkosh by six o'clock tonight or you're never going to work for us again."  You know, they're not firing him, they're not docking him his pay, but he knows he's never going to work again, and given the growth of that kind of contingent employment in the economy, in general, having nothing to do with trucking, whether it's staffing agencies or people with no other recourse, I think the issue of coercion is an important one.

Nonetheless, FMCSA has a coercion rule that they publish for public comment to define coercion, so when they prohibited it in their future regulations they have something that everybody knew what they were talking about. The record close for public on that on August 18th, so we expect to see more FMCSA involvement in that. That, of course, is something FMCSA themselves will enforce. It's not an OSHA issue. That's for them to look at.

So, we look forward to a rosy future of discussion within the work group on the trucking industry issues, and that was an affirmative commitment from the two trucking industry reps yesterday.

The last issue I want to mention that we discussed was -- and I've referred to it several times already -- is the evaluation of OSHA's own enforcement data on whistleblower enforcement, and suffice it to say that with the new allegation information available, it will address a gap in our knowledge that was sorely felt in all of our discussions, really from day one, about the circumstances leading to retaliation cases and the lessons that one could draw from them about, for lack of a better word, predictors, as well as the information about what are appropriate responses.

And this cut across a number of industry sectors. For instance, in rail, as Rick already mentioned, there is a concern about the frequency of injury reporting cases and worker compensation cases, Federal Employer Liability Act cases overlapping with whistleblower cases, which, given the practices regarding retaliation for injuries shouldn't surprise anybody, but there are a substantial number of cases that have nothing to do with injuries but are still retaliation for people either refusing hazardous duty or whatever else, reporting some other problem.

And with trucking, again, there's a whole range of reasons why the allegation information is important. For instance, one of the concerns the trucking industry folks felt was that the retaliation issues -- that when truck drivers think about safety, they are thinking primarily -- when they're thinking about truck safety and the safety of the vehicle, the moving vehicle, they're not thinking about OSHA. They're thinking about FMCSA. Is the vehicle defective?  Are they working too many hours, and a host of other things. Are they overweight?  So those are FMCSA enforcement issues.

On the other hand, when you think about the injuries to drivers, those are happening much more frequently in areas outside of FMCSA's jurisdiction, when the truck isn't moving at all but drivers are getting hurt, and musculoskeletal disorders, for instance, is a good example of that.

So you could see where the allegations, that is, the information in the allegation sections of the website, of the whistleblower data, in this allegation information, it would be very important for us to understand what are the actual patterns of the circumstances, and how should OSHA, as an agency, be responding to it, what sorts of outreach, training, and so forth needs to happen within the industry. So, we're looking forward to that, and, finally, we'll be glad to get it.

Lastly, we discussed, as a group, our ad hoc formation. Do we have good reason to stay in business?  With trucking, it's plainly obvious. We have a new opportunity and there's a fair amount of enthusiasm about that. In rail, it's clear that we have important issues to work through. It's not clear, given the somewhat tortuous nature of the last discussion, how productive that's going to be in getting to actual recommendations.

On the other hand, I think the discussions, even without consensus recommendations, are very informative. I had really very few reservations about preparing a report to this full committee saying we couldn't get to agreement, and here are the reasons why, and that's the way it looked until yesterday around noon.  But I thought that was really interesting anyway, and I could say more about why if you're interested.

So, in any event, the rail folks seem to be pretty clear. There was on consensus they had, which was, this work group serves as an important forum for them to talk about shared concerns and try to find ways to move forward together, and, if not, to get those different views of concerns out in a public forum. So, I'm certainly not going to second-guess that view. I'm perfectly happy to stay on the committee. Others can join it. But we certainly seem to have an opportunity that seems to be productive, and that was the feeling of the group.

So, respectfully submitted, that's the end of the report. Marcia, did you -- I hope you heard what I had to say, and I wanted to ask if there was anything else you wanted to add. And, again, thanks for your support.

MS. NARINE: No, I don't have anything to add, and I did hear everything.

MR. FRUMIN: Okay. Thanks a lot. So, any other questions or discussion about those issues?  Yes, Nancy.

MS. LESSIN: I'll just reiterate that if the group could look at what we did in the 11(c) work group on the Fairfax Memo, and take a look at it, and I think, Larry, you were talking about the concerns about the incentive that can coerce -- I'll use that word -- people not to report or bring things forward, I think, from my experience in rail, it's both the incentive and the disincentive programs, the promise of money or whatever it is, as well as the threat of losing your position, losing your job, getting disciplined, those kinds of things.

So I would really encourage the group to take a look at what we put together and see if that is something that transportation might think about moving forward with, as well.

MR. FRUMIN: Okay. Sounds like a useful suggestion. I mean, it's a consensus view of the Advisory Committee, and we certainly ought to pay attention to it.

I forgot that there was one other thing that wasn't in the written report I meant to add, which was, with regard to air transport, again, we've had very limited involvement by the two members who had expertise in that area. I hope to remedy that problem going forward, and make sure that we've adequately addressed retaliation or potential retaliation issues in air transport. I can't say for sure how that's going to go, but I did just want to note that we haven't forgotten about it, and hopefully we can find a solution to that problem.

MS. SPIELER: Okay. So we've now heard from all three of the work groups, and it sounds to me as if all three of the work groups have full plates going forward. I again want to thank Larry Mann and Rick Inclima, and the other members who aren't here of that work group, who are not members of the Advisory Committee, for your participation. It's really generous of you, in terms of your time, and very beneficial for us. And so thank you very much for doing that.

MR. FRUMIN: We should ask Marcia if she's going to stay on.

MS. SPIELER: And I want to also thank Marcia, who is playing a very critical role, not only on this subcommittee but also on the Best Practices subcommittee, and I fear how much of her time we're taking.

Marcia, are you going to stay on the line, at this point?

MS. NARINE: I'm going to jump off for a few minutes because they're now making speeches, but I'm going to come back on in about 10 or 15 minutes. I don't know when you're taking the break, though.


MS. NARINE: I plan to appear for the rest of the meeting, except for breaking off right now.


MS. NARINE: Okay. Perfect. I'll call back in a few minutes.

MR. FRUMIN: Okay. We'll be here to answer.

MS. SPIELER: We're not going to take a break at 2:45. I just want you to know that. There's a possibility that Dr. Michaels is going to come at about 2:45. Anyway, thank you, Larry and Rick.

MR. INCLIMA: Thank you.

MR. MANN: Thank you.

MS. SPIELER: I have a sense that we have a, we're on a glide path here. So, what I was saying, I think all three of the existing work groups have, although not fully evolved but certainly articulated full work plans that will take people's time over the time between this meeting and our next meeting, which I anticipate will be in about 6 months.

So given that, it sounds to me as if where we should focus is what kinds of things we think would be useful for us to discuss at the next meeting, that may take some preparation for the staff, between now and then, so that I can work with them on the development of our ideas for the next meeting, and I already have several things on the list that have come up, and have mentioned before.

So, obviously, the whole issue of training and how we should think about it. I think kicking that off with a presentation and conversation, not only about what is currently being done, what's being done by outside people, what's being done by inside people, but also, to the extent you can figure it out, what seems to be working, what isn't as effective, what are the best ways to reach people, I think would be very useful for the full committee to hear, in order for us to then launch a conversation on the issue that we've now promised to do.

Greg has asked several times, and I think it's entirely appropriate, that we think about having an industry side, management side presentation at the next meeting, and we will talk more about how to organize that and what that should be.

We've talked a lot about the data issues and the consistency of investigations, and I think having a little bit more conversation about what kinds of information we should think about, in terms of developing it might be useful at this point, so that staff can think about what they can't actually do and what might be difficult to do. We've explicitly talked about region-to-region comparisons, but we haven't really talked about comparing what, what specific parameters would you like, is it possible to do that, and I think we might have a bit of a conversation about that right now.

The other two things I have, sort of lower down on my list but things that have come up that might be interesting for us to talk about is an issue that Nancy raised about how things work in dangerous work refusal across statutes, and whether there's anything the Advisory Committee should be thinking about in that domain. I'm not sure we're ready to do that, but it's something that I think should be on our list for future thinking, and what I think some people have been referring to as the NRC model. Is there something we can learn from that, that might be useful in other conversations?  And both of those, I think there's so much more that we need to know to have the conversation, that it will, in part, depend upon whether there's a development of information, probably by us, between now and the next meeting.

Before I go back to this investigations and data question, are there other things that I should have on my list, and Nancy and Anthony should have on their list?  I anticipate that I will probably meet with Anthony once or twice between our two meetings, and so it would be helpful for both of us to hear what you think we should be thinking about in the interim. Richard?

MR. MOBERLY: I think the one thing we mentioned earlier, that Ava mentioned, and I just wanted to reiterate, and Christine mentioned, is state plans.

MS. SPIELER: State plans, although that, I think, will be taken up in the 11(c) subcommittee, initially, since it's only an 11(c) issue.


MS. GARDE: I'm not sure if you vision of the NRC model topic includes looking at the broader issue of the substantive regulations across all industries that have whistleblower protections, and how, I'll say, the parent industry -- whether that's trucking, airline, railroad, environmental, chemical, et cetera -- whether or not there is some value in understanding how those parent regulators are looking at their responsibility in the companion manner.

MS. SPIELER: Yeah. No. That's actually exactly what I was thinking about, but I'm not sure we're there yet, for that kind of conversation.

MS. GARDE: Okay.

MS. SPIELER: But I do think what was partly interesting was how the NRC thinks about the interrelationship with the retaliation-specific investigation that OSHA does, and I think it is a question that could be asked across a number of different statutes as to what that relationship should look like beyond the current information-sharing MOUS, and that's a very big topic and one that, I think, most of us -- perhaps, Billie, you as an exception -- most of us don't know enough about to enter the conversation. But I think it's something that staff has already indicated an interest in thinking about, and perhaps we can be helpful. Other topics for us to be thinking about? 

So let's go back to the issue of investigations, data, and see if we can flesh that piece out for our benefit, but, in particular, for Nancy and Anthony's benefit, so they can think about what is -- go back and think about what they can actually do that would be helpful to the committee. Who wants to kick this off?  Ava.

MS. BARBOUR: I mean, one of the things that I brought up yesterday, which we have talked about, is the region-to-region comparison, and I know specifically I asked if we could -- which, I think, is doable -- to get the quantitative data that OSHA already gives us, broken down by region. But then I have a question about, that's quantitative data, which we might be able to draw some initial thoughts about, but I wonder what kind of qualitative data is available, that we could get, on how regions are actually operating and doing investigations.

MS. SPIELER: I'm looking at you guys.

MS. BARBOUR: And, I mean, that's what I have. I don't know. I mean, I don't know what's out there.

MS. SMITH: I think what would be helpful, just tell us and then we're probably going to have to research what is available, what is releasable, what would require us to redact so much that then it would be meaningless. So if we can understand what you're asking for, then we can kind of it --

MS. BARBOUR: Well, I was going to ask about -- so, internal audits, for example, that DWPP or, if it's older, some precursor to the Directorate, may have done on particular regions. I don't know if that's something that's available, if it exists, if it would have to be redacted, but that might be one thing that would give us a little bit more qualitative information, as opposed to the just how many cases were filed, how many were settled, et cetera.

MS. SMITH: Right. So my request is, just give us the list. I won't be able to answer you, yes, we can release it now, because we'll have to check some things.

MS. BARBOUR: Sure. Sure. So I guess that would be one internal, internal audits.

MS. SMITH: All right.

MR. EHERTS: I would just like to -- and how to normalize that data. In other words, it would be interesting that one region has more open claims than another, but I'd like to know how many businesses or how many employees are represented in each region, so we kind of normalize it. A region twice as big as another, it would be reasonable to have twice as many open claims, or normalize it by number of investigators. But just think about how to make the data meaningful to us, because we don't understand the different parts of each region.

MR. KEATING: And I was just going to say, if it's tracked, if it's possible to figure out the average length, how long it takes to get through an investigation in each region, comparing. And I realize this is getting even more granular, but by statute. I mean, I don't know if you can do it that way.

MS. GARDE: I think that's important, to get that --

MS. SPIELER: That would have to be by statute.

MS. GARDE: Yeah, by statute.

MS. SPIELER: Let me just say, I'm not sure averages are always adequate, either, so distributions are important, and I don't know how much you can do that, but ranges and medians, as well as averages can tell us something.

MS. GARDE: I think the information, not just about the cases but about the region. How many offices?  How many investigators?  How many of those investigators themselves have been trained?  I know I do a lot of training and I've had some of the OSHA investigators in my class. Do they go to other classes?  Where are they getting trained?  A lot of time I feel like the competence of the investigator is really influencing, obviously, the quality of their work, and spending a lot of time educating some, and some regions have great investigators who understand the laws and the subtleties of the law, and some don't get it at all.

MS. SPIELER: So one of the things I think this is telling us is that this would turn our attention to the internal workings of the agency, with regard to whistleblower laws, and, obviously, you've been the subject of various IG reports, but what we're looking for is not to be an oversight committee but to figure out how we can be useful in helping OSHA think about making your operation more effective.

And so, as we think about these data requests, it's essentially, I think, a request for us to understand better what is going on, in terms of the investigatory process, the training of inspectors, the distribution of your resources, so that we can think with you about this. And I want to be careful about that, because I don't think it's appropriate for the Advisory Committee to move into a kind of oversight role, and I think it would create significant tensions that we really don't want to have.

So when you feel that there needs to be a conversation about that, you should surely let me know.

There was another hand. Ava?  I'm sorry. Christine.

MS. DOUGHERTY: In terms of the state-plan states, I know all the FAME reports are available online, but if there's any additional information that can be provided about each state and their plan. Also, whether or not -- I think Anthony mentioned yesterday that OSHA now has dedicated discrimination investigators in the regions, rather than you're a CSHO one day, and you're investigating a discrimination case another.

But I think some state plans still do that. Minnesota moved away from that model. We have dedicated discrimination investigators, but it would be interesting to see, in states, are they doing a better job if it's discrimin only?  Is it the problem maybe with some of these investigations that they're doing discrimination and compliance, and then some confusion as to really what their role is?  Everybody that I work with says, you know, when I invite them to join me on the discrim team, "I'm not touching those cases, ever. If somebody makes me take those cases, I'll find another job." 

So we've moved away from that model. We don't share that information, those two parts, anymore. But I think a lot of states do, just from the nature of the number of complaints that they have, and the size of the programs. If you're only investigating one case a year, you're not going to need a dedicated discrim investigator, so how are they being trained and what do they know?

MS. SPIELER: Yeah, Jon.

MR. BROCK: On this, I agree that we shouldn't become the management consultant on internal process, but I think it's useful, or hopefully it will be useful, because of the experience that people -- I mentioned something about this earlier -- that people here have in processing other kinds of things, or exposure to other agencies that have done some interesting things, that you must know about most of them, and also because there are some clients from both sides of the table here.

So, along with the data that you're talking about, is there a companion piece that would be simple to give us, to help us understand how you're organized, how a case comes in and what trail it takes, because it seems to me that a lot of the performance data, and the regional consistency data, and things like that could have a relationship to how it's organized. And, again, we don't want to be the management consultants, but some folks here do business with other agencies, and might have some ideas that would be worth considering.

MS. SPIELER: So there is an underlying concern, obviously, that Mr. Mitchell raised yesterday, about the thoroughness of investigations, and data can't really get at that. But as you move forward in your work toward having more consistency among the regions, having better supervisory structure, it would be useful, I think, for the committee to hear from you, not necessarily data-driven, about how you're addressing the kind of question that he raised, if the complainants, witnesses aren't being called, if the investigator can't meet with people face-to-face. Is that part of what you're tracking when you think about this? 

Certainly, he offered, in essence, a small number, but a small number at a single employer where 100 percent of cases were dismissed, and I'm sure some of them deserved to be dismissed, but when you get 100 percent of cases being dismissed in a single employer, with a relatively sophisticated union rep, you do wonder whether there's something about the investigatory process that isn't working.

Now, it could be that the investigator feels that with the sophisticated union rep it should have been a better original complaint. There could be a million things that underlie that, but it is worrisome, and I suspect you find it worrisome, as well.

And so thinking about letting us know how those things are being followed up on, I think, would be reassuring fro members of the committee, and we'll hope to hear from you about that next time. Nancy?

MS. LESSIN: So just adding to that, there's the piece of what looks like it could be problematic in the actual investigation of those 11(c) complaints, but the other step, then, is that that's supposed to be being reviewed by somebody else, so it's not just the actual investigation. It would be the review process, and, again, looking for system failures. Is this an outlier -- it doesn't happen anywhere else -- or what's the model out there?  Is this model being now used other places?  Does the model work?

So that whole piece, again, I think, would be useful to take a look at.

MR. BROCK: Okay. I'd like to mention two ideas in regard to the investigation process, that I think bear some detailed examination, systematic examination going forward, and I'm not sure whether the empirical information that we'll be getting from the allegation summaries, or other data in the IMIS system can help with this or not, so I'm at a bit of a loss to say how this might be studied.

But the two issues are as follows. One is the relationship between the enforcement function and the whistleblower complainant's role in the compliance enforcement activity. Was the whistleblower complainant either a complainant to or an informant in a compliance inspection, and, if so, what were the implications of that? 

I mentioned earlier that when MSHA briefed us some time ago, I raised this question with them, and I'm still awaiting their detailed response, but, in essence what they say is where they get a retaliation complaint --

[Incoming call.]

MR. SWICK: This is the Whistleblower Protection Advisory Committee.

MS. NARINE: This is Marcia Narine.

ATTENDEE: Welcome back. You're on.

MR. SWICK: Hi, Marcia. By coincidence, Eric is talking again. We're talking about potential future activities for work by the committee, particularly regarding the investigation process.


MR. FRUMIN: So, if MSHA apparently takes more seriously retaliation against people who are directly involved with their inspections, either as complainants or informants, and that's a very robust relationship that their inspectors have with workers, including complainants. I mean, they're at the coal mines every 3 months, other mines twice a year. They know these people and when an employer retaliates against a miner who is involved with an MSHA inspection, you know, that's big time.

But you can just turn on Law & Order, or read your favorite crime novel, or whatever, and there's a long history of law enforcement agencies taking very seriously the protection of informants. Well, how does that shake out, in terms of whistleblower investigations?  Does it make a difference to your investigator whether the person who is complaining had any kind of an active role in an inspection?  I know it makes a difference to some employers, including the ones who fire workers for filing complaints. It makes a big difference to them.

And what's the message to the employer community when, were it to be the case, or what would be the message, were it to be the case that it didn't make a difference to OSHA, that OSHA didn't take any further or more severe action if the complainant was fired for filing a complaint, or speaking to an inspector, or testifying, or something like that. So I think that bears some examination.

That's also sort of a gateway to the question of how do your whistleblower investigators and CSHOs relate to each other when they have parallel inspections going on?  What are CSHO's doing to make sure that workers and employers get a strong message about the need to protect informants, even if there is no complaint?  Let's say it's a programmed inspection, or some other inspection. What's the politics in that work place, from the minute the inspector shows up, about the likelihood that these workers are going to suffer by virtue of just being observed talking to inspectors, and how does that look from the agency's standpoint? 

Well, that's a question that really needs to be answered, not just by this Directorate but by DEP, the enforcement people, by the regions, the area offices, by the Training Institute, and I think that bears some detailed examination. Again, I don't know whether you have data that could actually inform us about it, but I think that's very important.

At the end of the day, what I'm concerned about is that workers who are faced with the choice of either cooperating with inspector, CSHOs, in enforcement cases, or are perceived by the employer to cooperate, whether they are at risk or not, and what's the milieu for that?  What's the message to employers?

You know, we know that OSHA takes it seriously when employers refuse entry, when they obstruct investigations in other ways. You get a solicitor, you get a goddamn warrant, you go in there, and you raise hell. Well, as far as I'm concerned, harassing a complainant and a witness should be treated at least as strongly, and yet I can tell you that's not my impression. There could be good and sufficient reasons for that. It may be simply that the tools you have are inadequate, but there could be other reasons.

Lastly, along the same lines, the question came up about referrals back and forth between the CSHO side and the whistleblower side, whether one side or the other should open up an inspection. I went back and looked at both manuals, both the FOM on the CSHO side and the Whistleblower Manual, and I actually couldn't find any specific reference, much to my amazement, saying that if a CSHO finds out about harassment of a witness they should make a referral to whistleblower, and, likewise, in the course of a whistleblower complaint investigation it turns up an allegation of violation of a standard, it should be referred.

Now, my impression is that that happens, and it's supposed to happen, and I remember going back to 1979, with the famous Kepone case in Virginia, when a whistleblower, an 11(c) case, a complaint was filed about gross poisoning of workers, which was ignored. They never made the reference to the CSHOs. And as a result, half a dozen workers mixing pesticides in a converted gas station in some town south of Richmond were grossly poisoned, and the James River was poisoned, and a bunch of fishermen lost their livelihoods. This was a scandal of the first order.

And from that moment on, it was an article of faith that if information regarding a hazard came up in a whistleblower case, it was supposed to be referred, so imagine my surprise when I didn't see anything in either manual about that.

So I'll leave it to you to answer that question -- what's the process? -- but it's related to the overall question I'm raising about the integration of the two kinds of investigations.

MS. SPIELER: And that issue has clearly come up before, the sort of integration of the safety-health side, the enforcement side, and compliance side, with the whistleblower side.

MR. ROSA: Actually, in the Whistleblower Manual, there is a provision in the manual. There's a section in the manual, and I can raise that with Emily, to the committee, that it does state that the investigator should go through the RSI and defer that to the particular safety side.

MR. SWICK: It's in Section 1, but we also did this follow-up memo.

MR. ROSA: Yes, we did the memo recently that was published, since the last WPAC meeting, that pretty much clarified that both sides are going to share the information with each other, and we made references to both the FOM and the Whistleblower Manual.

MR. FRUMIN: Good. I missed the memo so I didn't see the reference.

MS. SPIELER: So I noticed that Dr. Michaels has arrived, and wondered whether you wanted to -- is he still here?  We're close to --

DR. MICHAELS: Why don't you do your work and then I'll happily --

MS. SPIELER: Okay. And we may have. So what we've been discussing, again, is issues that we might want to take up in the future, that it would be useful to have the staff thinking about in the interim, and any issues that we would like to focus on at our next committee meeting. Greg.

MR. KEATING: Because I didn't want to leave it dangling out there, if it's conceivable to at least think about the issue that I raised, either this morning or yesterday afternoon, about whether there is a way for the process to consider some sort of an early resolution Rule 68 type offer, that an employer could say, "We would like to resolve this and we're putting X on the table," and if, then, years go by and less than X is collected, there's some sort of attorney fee cutoff, or whatever. I would appreciate if that vehicle could be considered.

MS. SPIELER: So, I'm going to make a suggestion about that, because I've thought about doing this today, but I'm not sure, at this point, that it's appropriate. But I think there's an issue that's come up in a number of the subcommittees, and that will continue to come up, which some people have called incentives, and I think of as, you've said carrots, rewards for employer behavior, and how should that play out?  How should it play out in remedy?  How should it play out? 

And I think it's a conversation that would be a difficult one for us to have, but maybe we have to have it, at some point, as a full committee. To what extent should employers be rewarded for certain kind of behavior within processes. I see the Rule 68 suggestion as one similar to that, where the actions by the employer would have certain consequences for employees.

I think it's a difficult conversation for the committee to have, and the experience of the transportation work group gridlock, I think, is a little bit of reflection of perhaps how this would break down, but I'm certainly willing to try to have a full committee discussion about these kinds of issues, because I know it keeps coming up, and then the subcommittees keep backing away from it. So, point taken.

MR. KEATING: Thank you.

MS. SPIELER: Other issues that we should consider in the future?  I'm sure there are a hundred. Let me put it a different way. Other issues that we should be working on between this meeting and what will hopefully be a meeting in about 6 months, when we will reconvene with the same three subcommittees. So the interim work that we will be doing, I think, will be in the subcommittees, and then anything that we need from OSHA, I think should probably be funneled through me, so that we can be clear about not pretending we're your only job. Yeah, Nancy.

MS. LESSIN: Two questions. One is the information that the Transportation Group is going to be getting specific to transportation, can that be shared with the full committee, or is that a problem?

MR. SWICK: It's my sense that we're going to discuss it in the work groups and see where it goes, and if it's appropriate then we'll make that determination at that time. At this point, we're only anticipating giving out the first 3 years of statutes. Once we've had an opportunity to vet it and OSHA consider the implications of it, then we'll have to have the managers make that decision. But, maybe.

MS. SPIELER: Actually, I'm sorry. We have to have a conversation about this. That doesn't make any sense, because the work groups are public meetings, and anybody can call into a work group meeting, and anybody can get what's distributed to the work groups. So it doesn't make sense for that to be true and have a member of the Advisory Committee not have access to the information.

MR. SWICK: I think it's a fair discussion, but since we haven't gone over the data with the work group yet, it might be premature to discuss here.

MS. SPIELER: Okay, but, Nancy, if you want to call into the Transportation Work Group, I think that it's okay.

MS. LESSIN: Eric, can you put me on your list?  Thank you. And then I have this other little matter before we --

MS. SPIELER: Nancy wanted to correct a record about something that was said by the NRC representative yesterday, which wasn't actually specifically germane to the whistleblower and chilling effect conversation that were having, but was relevant to the issue of workers' rights under that statute, and I'm just going to let her do that so that the record is clear, as she has requested.

MS. LESSIN: So, I actually was going to ask some specific questions about whistleblower rights associated with walk-around representatives during an NRC investigation and couldn't get there because I believe I was told that workers and their representatives do not have rights to accompany the NRC when they are doing an inspection, and, in fact, on the NRC website itself, Section 19.14 talks very specifically about presence of representatives of licensees and regulated entities and workers during inspections.

It says, "If, at the time of the inspection, an individual has been authorized by workers to represent them during commission inspections, the licensees or regulated entity shall notify the inspectors of such authorization and shall give the worker's representative an opportunity to accompany the inspectors during the inspection of physical working conditions, and each worker's representative shall be routinely engaged in NRC licensed or regulated activities under the control of the licensees or regulated entity, and shall have received instructions as specified by a different section."

So, I will never get to ask my whistleblower protection questions, but it is of concern to me that our representative from the NRC, who was talking about chilling effect, doesn't know information about what are protected rights that would be protected, then, under whistleblower, and that is of concern.

MS. GARDE: I think you misunderstood what she said and how it works. Inspectors don't take members, union representatives or members of the licensee with them on an inspection, like a walk-around inspection. They don't do that. Licensees do that. A company does that. The company often has the represented employees or non-represented employees, or health and safety representatives go on their inspections, but the NRC, as a standard practice, doesn't take -- they can talk to anybody. They may say, "In this case I want these five people to come with me," but they do not routinely check in and have a union representative with them on an inspection. Their inspections are so anybody can come and talk to them, but they don't take people with them when they go out on their inspection. That's just the way they've always done it.

MS. SPIELER: I'm going to intercede here, because this isn't a matter that's really in front of the whistleblower committee that's set up by DOL, and we're certainly not going to resolve what is clearly a disagreement in what's required in terms of the walk-around rights in that industry, although if someone were retaliated against for asserting rights for walk-around, given that OSHA has the jurisdiction over whistleblower complaints under that statute, presumably, I assume, OSHA would view that as retaliatory activity that was recognizable, and perhaps people in the whistleblower work in OSHA would want to sort of circle back to that, but I don't think we're going to resolve a disagreement about the interpretation of that statute here. Sorry.

MS. LESSIN: But I'm --

MS. SPIELER: I'm stopping this conversation, actually. I understand that I have certain prerogatives as chair, and I am now exercising them, although I am often lenient about this.

Are there any other issues that we should take up today, as a full committee?  I think we've covered a huge amount in the last day and a half. I think we crammed a little too much in yesterday, but we thought some of the conversations today would take longer than they have. And I do want to allow, if we've missed anything, to give committee members the opportunity to chime in now, and I will pause at that moment.

And, otherwise, before I turn this over to Dr. Michaels, I want to say just a special thank you to the staff, to Meghan, to Rob, of course to Anthony and Nancy, especially to Katelyn, and to Louise who has joined me up here, and been a fabulous coach up here, and, of course, to all the members of the committee, the chairs of the subcommittees, who have done a terrific job in bringing forward issues to the committee, and I think that we had a very important conversation about a number of issues this time that will connect us to our next committee meeting, and that, I think, is a big improvement on some of the work we've done before, as a committee, and I want to thank Nancy and Anthony for working with me on that.

So, I think that that concludes the formal part of our meeting. I didn't actually think we'd be done this early, but it's lovely, Dr. Michaels, to have you close us out.

DR. MICHAELS: I would have worn a tuxedo and we'd have more of a formal closeout.

MS. SPIELER: Yes. Apparently we do. Surely, Mr. Secretary, you should join Dr. Michaels.

DR. MICHAELS: I was going to thank all of you. You know, I knew this wasn't going to be easy, and you've dealt with just a portion of some of the tough issues that we deal with. We put this committee together to take on these very tough issues, so I know that there's been really some, I wouldn't say heated discussion, but some real discussion and some tough issues to deal with, and we very much appreciate the dedication, the commitment, the wisdom that you've brought to us, and I think we've made great progress.

So I really do want to thank all of you, and our terrific staff, and the Solicitor's terrific staff, and Louise, especially, who is up there, helping us do this. So thank you all, but what I really want to do is introduce our Secretary of Labor, Tom Perez, who has been a fighter for worker rights, for making sure justice takes place in workplaces, in his many jobs before he got here, and it's great having him as the Secretary of Labor, and he has to come up here to at least get a chance to see you before you broke. So let me turn this over to Secretary Perez.

MR. PEREZ: Good afternoon, everyone, and I think there are folks on the phone, as well?

MS. SPIELER: One person.

MR. PEREZ: So, to our friend on the phone, as well, good afternoon. I did want to come here to say thank you. You know, earlier to day I was on the phone with a reporter, talking about the work that I used to do in the police misconduct space, because I used to -- the whole issue of Ferguson is obviously on the nation's mind, and the Attorney General today announced that he's doing what we call pattern and practice investigation, which is one of the things that I used to oversee.

And I bring that up, and the relevance of this conversation is I spent a good part of my life, and continue to spend a good part of my life doing civil rights work here at DOL, and at DOJ before that, and we could not survive. When I did police cases, our most important witnesses were often police officers, and it's very hard when you're a police officer and you see your fellow officer doing something that is wrong and illegal, to come forward, but it's indispensible to the administration of justice and to the securing of justice, to have those courageous people.

We used to do a lot of work in the employment space, in fire departments and other public sector employers, and, again, but for those courageous people coming forward, we wouldn't have been able to do it. So I have lived a huge part of my professional life depending on courageous people, and one of the things that excited me the most about coming to the department was to see the robust portfolio that David leads, and his very able team leads, in this area.

And we know there's a lot of moving parts, we know there are a lot of challenges, and we know that there different statutes, and that's one big challenge, is that some of them, the more recent ones, tend to be stronger, and the ones that have been on the books for a while tend to have more challenges. So your input on how we deal with this amalgam of statutes, all of which are designed to get at something that's fundamentally important to access to opportunity, which is making sure that folks who are in the workplace who see things have a voice.

Your input is indispensible, and your expertise is undeniable, and your wisdom is appreciated. And the fact that you get no money for this is another tribute to your dedication, because we need that. This is an area where we have placed a significant amount of energy and focus, and are going to continue to. But it's an evolving area.

Our police work at DOJ, we do it so differently than we did 10 years ago, and I suspect the same is true here, in our whistleblower work. The concept is the same, and the values and aspirations are the same, but how we do it is evolving as we learn, and sometimes from our own mistakes.

And so I am very grateful for your presence and your expertise, and I hope you'll continue to provide it to us, because I have great confidence in the staff. I have incredible confidence in David and his team, and we have so many others folks -- I think David Weil was here earlier -- you know, other people who really have some incredible insights on this.

And so I want to make sure that the Department of Labor's Whistleblower Program is second to none. That's our goal, plain and simple, and with your help we will get there.

So, thanks again. I appreciate your time, and, David, I appreciate your leadership, as well, and that of your very able team.

DR. MICHAELS: Thank you all so much.

MS. SPIELER: Thank you very much.

[Chorus of thank yous, and applause.]

ATTENDEE: Are you all done yet?

MS. SPIELER: We were just finishing up.

DR. MICHAELS: I wanted to specifically call out Nancy Smith and Anthony Rosa. Nancy is our Acting Director of Whistleblower Programs and Anthony became our permanent Deputy Director last week, and thank you for their great work, supporting this activity, and all of our work, and thank you all.

MS. SPIELER: Thank you.

[Applause, followed by attendees greeting and thanking each other.]

MS. SPIELER: I just want to make it clear that the committee meeting is adjourned.

[Whereupon, at 3:10 p.m., the meeting was adjourned.]

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Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.