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The Politics of My OSC Complaint At OSHA/DOL
Darrell Whitman a fired OSHA DOL whistleblower writes about the systemic corruption of the Federal government in regards to health and safety and OSHA/DOL. OSHA chief David Michaels and Department of Labor Secretary Tom Perez have been involved in obstruction of justice and maintaing the corporate take-over of US government regulatory agencies.
The Politics of My OSC Complaint At OSHA/DOL
By Dr. Darrell Whitman
publicsafety4america [at] gmail.com
Politics – that is relationships of power and influence, surround everything in government. Most often, they lie hidden and unacknowledged even to those who are involved in these politics. My April 6, 2016, complaint to the Office of Special Counsel (OSC) is steeped in politics because it talks about relationships of power and influence, and itself is the product of relationships of power and influence that resulted in my removal as an investigator working in the Whistleblower Protection Program (WBPP) managed by the Occupational Safety and Health Administration (OSHA).
The purpose of the analysis that appears here is to illuminate the politics that surround my OSC complaint to the extent necessary to prompt a thorough and objective investigation into the outcomes they produced. The evidence offered in my complaint suggests that if such an investigation were to be conducted it would uncover a culture of corruption that exists and has functioned within OSHA to frustrate the mission of the WBPP to protect American workers and the public from knowable risks to their safety, health, and financial security.
Unfortunately, it is becoming increasingly apparent that the OSC is reluctant to authorize such an investigation. As most government agencies will claim, the OSC will offer that it lacks the necessary resources to do the job in a timely fashion. But at some point, this claim wears thin. As I draft this analysis on August 14, 2016, it has now been fifteen (15) weeks since the complaint was filed, well past the “several weeks” ordinary taken to review a complaint, and well past the 90 days envisioned by federal whistleblower law for explaining why a review hasn’t been completed.
The OSC review of the complaint should not be conducted as an investigation of the details of a complaint, but rather an examination of the allegations and supporting documents to determine whether there is a substantial reason to believe a violation of federal whistleblower law has occurred. My complaint as filed was 16 pages, accompanied by a sworn affidavit of 216 pages supported by some 340 exhibits, and now supplemented with sworn affidavits from more than a dozen witnesses with specific knowledge about relevant facts. While it certainly isn’t a complaint that can be reviewed in a few days, or even in 3-4 weeks, it nonetheless is a complaint offering clear support for the conduct of a full investigation.
The foot-dragging displayed by the OSC in their review argues that the politics surround my complaint have now invaded the complaint process and threaten to compromise the purposes of filing an OSC complaint. OSC complaints are intended to provide a first-stop for reports by federal employees regarding important violations of law and/or policy by federal officials. When such complaints are shown to have likely merit, the complaints are forwarded to another federal agency or investigator for a full examination of the allegations. The process is intended to establish facts which can become the basis for corrective action that prevents a reoccurrence of the violation(s). Without a credible process, violations are likely to continue and spread, eventually causing serious harm to the public interest. Exploring the politics surrounding my complaint and how they affect the OSC process, in effect is authoring a second complaint intended to serve the same purpose as the first.
In May 2015, only a couple of weeks after I was “removed” from my job as a regional investigator with the WBPP, I was contacted by Tom Devine, the Legal Director of the Government Accountability Project. He had seen my televised interview with NBCUniversal and subsequent appearance on Jon Stewart’s Daily Show, and opined that we were “kindred spirits” and that he and GAP were interested in potentially offering me legal representation. When we met later that month, Mr. Devine to me he had earlier met with senior WBPP representatives, who had expressed extreme animus toward me – Mr. Devine explicitly said “they hate you”, but also admitted conducting a retaliatory investigation of me. Over the next two days, Mr. Devine interviewed four of the five other regional investigators in OSHA Region IX, a former regional investigator, and two union officials all of whom had specific knowledge about relevant events. In each case, the interviewees strongly supported my allegations that a culture of corruption had formed in OSHA Region IX that undermined and frustrated the WBPP. Following those meetings, Mr. Devine offered GAP’s legal representation and asked that I draft the affidavit which became the basis for my OSC complaint.
The politics in my complaint and affidavit are expressed through a series of incidents that first appeared even before I began work as an investigator the summer of 2010, and continued well past my removal in May 2015. They included a general hostility toward union stewards and members, a hostility toward whistleblowers and the investigators who attempted to faithfully represent them, the corruption of the investigation process to delay and deflect accountability away from major corporate defendants, collaborations with other federal agencies and major corporations to limit and sometime deny protection to whistleblowers, and systematic attacks on those within the WBPP who openly objected to these practices.
As discussed in more detail below, the politics came from a long-term reconstruction of OSHA that transformed from a regulatory agency protecting the public interest, into an agency that believed its mission was to work collaboratively and avoid confrontations with major corporations. They came by design from the creation of “shadow government” made up of senior OSHA managers, who exercised power according to their own preferences and career interests. They came through political appointments designed to conceal rather than reveal underlying political objectives, which included cultivating relationships with corporate defendants that were mutually beneficial to the defendants and to the political administrations in power. Then, they finally appeared as a web of political relationships that linked individual actors with a fabric of corruption that privileged control over truth.
A Brief History of OSHA and the WBPP
OSHA and the WBPP were created in 1971 by the Occupational Safety and Health Act (Act). The Act had originally been proposed in the last year of the Johnson administration with the support of organized labor and safety and health advocates, who had become alarmed by an epidemic of workplace accidents that were claiming victims at a rate comparable to casualties from the war in Vietnam. However, by the time the proposal was adopted and put into action during the first years of the Nixon administration, the tide had turned against regulation and OSHA faced an uphill fight to meet its mission.
During the 1970s, the WBPP was a very small part of OSHA that was managed as part of its system of workplace inspections, with whistleblowers most commonly coming forward during an inspection. As OSHA came under increasing political pressure in the late 1970s and early 1980s with real threats to dismantle and/or defund OSHA, the WBPP was moved to the Department of Labor’s (DOL) Wage & Hour Division where it could be better protected in the event OSHA itself ceased to operate. By all accounts, the WBPP functioned as advertised in this new relationship, but it wasn’t a relationship that was long-lived.
Sometime shortly after the Clinton administration took office in 1993, then Secretary of Labor Robert Reich returned the WBPP to the control of OSHA. Observers at the time called it a “shotgun wedding” as neither program sought the reorganization in part because OSHA had undergone a substantial redefinition of mission over the preceding decade, and in part because the politics of public regulation had also changed. By the 1990, the strong political role played by organized labor in the 1960s in support of OSHA had been replaced by a pro-business political bias, and internally by political appointees and senior bureaucrats who followed a “collaborative” approach to OSHA relationships with business, and particularly with major corporations. As this process developed beginning in the late 1970s, pro-regulation OSHA managers were steadily replaced by pro-business collaborative managers and by the mid-1990s the transformation was complete.
The transformation of its mission put OSHA in direct conflict with the WBPP. Conceived in an liberal era of regulation, the WBPP survived and thrived over the years because it somewhat oddly fit into anti-regulation politics. Having workers act as inspectors theoretically increased government’s capacity to identify potential risks, but without having to pay for inspectors or conduct intrusive inspections. Workers were always more expert and better positioned to know about risks, so their reports would always be more timely and accurate than would be reports of government inspectors. In reality, however, the WBPP also represented a direct threat to managements unregulated control over its workers, and any aggressive protection of workers under the WBPP could not be tolerated. Thus, the rejoining of the WBPP was a direct challenge to OSHA’s new collaborative relationships with corporate management.
When the marriage of the WBPP to OSHA occurred, it came as part of a general pro-business anti-regulatory policy by the Clinton administration, which empowered OSHA management to discipline the WBPP to its own mission. In turn, collaborations between OSHA and corporate management encouraged the development of personal professional relationships that then blossomed into new career opportunities for OSHA managers with the corporations they managed. Thus, a fabric of connections developed that drew OSHA ever more into the corporate family, which arguably made OSHA captive of corporate interests.
The analysis of the politics of my complaint is set against this history of a growing relationship which saw OSHA, and more broadly the federal government itself, moving toward a corporate agenda and away from the protection of whistleblowers. There are a number of key players and key events that illuminate these politics, which include: the 2009 appointment of Dr. David Michaels as Director of OSHA, the two audits of OSHA by the Government Accounting Office and the DOL Inspector General in 2010, Michaels and the OSHA Directorates organization of a “Management Review” in 2010, the departure of WBPP Director Nilgen Tolek in 2011, the abbreviated term of Beth Slavet as WBPP Director, the conduct of an investigation associated with my 2014 letter to Secretary of Labor Thomas Perez, the “house cleaning” of dissident Region IX investigators in 2015, and the context for the filing of my complaint in 2016. But before looking specifically at these, it is useful to interrogate the administrative politics of OSHA and the role it plays in forming policy and practice.
OSHA’s “Shadow government” of Career Bureaucrats
It will come as no great surprise to those who have worked in government, or who are students of public policy, that the formal organization of government plays a key role in setting policy and practice. The organization of government for a very long time has been a primary interest of Congress, and its most recent incarnation of organization is identified as our Civil Service system. The present system was adopted in the 1960s as a reform of federal service intended to reduce partisanship in hiring and promotion. It was revised in 1978 to add Senior Executive Service appointments, which are hybrid, politically appointed bureaucrats who act as the administrators who interact directly with political appointees to carry out policy. While it may have been intended to depoliticize federal service, the effect of civil service has been to shift power and accountability away from elected representatives and to career bureaucrats who were protected by civil service law. This then is the creation of a “shadow government” that operates substantially to interpret policy according to its own prejudices and interests.
The politics of this shadow government are most apparent in the role in determining who is hired and on what terms through their ability to construct classifications and examinations according to their own vision. Of course, they have to meet the minimum requirements of law – they can’t hire relatives or political crony’s, and there is some accountability, but not much, for diversity. Otherwise, the hiring, and particularly the retention and promotion processes, are open to manipulation to ensure loyalty to senior management. As the system remains in place, it generates a growing reliance on loyalty at the expense of performance, and those most loyal percolate up through the organization ensuring a continuity of compliant, lower-level administrators.
While OSHA is not exceptional in having a shadow government of bureaucrats, its history as a regulatory agency that adopted collaboration as its regulatory model gave it a unique character. As pressure for collaboration increased, loyalty at all levels of OSHA management came to reflect the degree to which this collaboration was implemented. But the problem for OSHA was that by design the WBPP has no real opportunities for collaboration as its mission is to protect workers from retaliation for reporting risks, the not managers who create them, nor the companies that tolerate them. This management tilt also has an internal effect on OSHA’s own labor-management relations, with OSHA managers increasingly adopting practices and policies that disregard employee rights and interests. In that sense, it’s a “mirroring effect”, where daily Agency program goals and practices privileging management become incorporated into the culture of OSHA internal management.
The creation of the SES in 1978, came at a time when OSHA was undergoing an existential crisis that would first impact the highest administrative levels. Because the SES became a privileged class within OSHA, it also formed a layer of insulation useful to the political appointees who were charged with carrying out a political agenda. The first SES appointment went to those who could be relied on to support a change in OSHA’s mission, which then became a signal to lower management as to what was expected of their service. Thereafter, those most faithful to the mission, and viewed as most loyal, were the one given plum assignments and entrusted with OSHA most sensitive missions. This process will be recognizable in the way that particular OSHA managers assumed important roles that were critical to maintaining political control over the agency over time.
The appointment of Dr. David Michaels as OSHA Director
The appointment of Dr. David Michaels by the Obama administration in 2009 was initially met by strong opposition in Congress, but equally strong support among those in the national safety and health community. On the one hand, supporters, which included leaders of mainstream labor organizations, argued Dr. Michaels writings and academic work represented someone who would strongly advocate for strong safety and health protection. The opposition, which was made up of industry groups and conservative Republicans, focused on what they saw as Dr. Michaels anti-business bias and heavy-handed approach to public policy and regulation.
The politics of Dr. Michaels nomination did not closely scrutinize his actual work in public administration, which occurred in the later years of the Clinton administration, nor did it closely examine his attitude toward dissent. Both of these issues would subsequently reappear in the way that he managed OSHA and the WBPP, undercutting claims by his supporters of strongly supporting safety and health protection and claims that he was anti-business.
In truth, Dr. Michael’s service in the Clinton administration should have offered insights into both his pro not anti-business approach to public regulation, and to his latent hostility toward whistleblowers. His principal contribution as an Assistant Secretary in the Department of Energy was to draft and help pass the Energy Employees Occupational Illness Compensation Program Act. The program was created after it became clear that the country’s nuclear-weapons effort routinely endangered workers’ health in the name of national security. But the program, which is run by the Department of Labor, almost immediately came under criticism for low-balling claims and creating a web of regulations that made it sometimes impossible to file claims. The program, however, was a success in terms of the nuclear industry as it shifted the costs associated with nuclear work from the industry to government to the tune of some $14 billion dollars between 2000 and 2014.
Dr. Michaels hostility toward dissent could have been read in his own words, as many of the opponents to his nomination pointed out in 2009. As R. Bruce Josten, executive vice president of the U.S. Chamber of Commerce, noted in a letter to Congress opposing Michael’s nomination, Michaels’ book Doubt is Their Product criticized industry groups and others who raise questions and doubts about various regulations, and the science underlying them, and in so doing Michaels was dismissive of the legitimate issues that remain surrounding the science and data used to support certain controversial regulations. Joston went further, noting Michaels never seemed to acknowledge that doubt can be legitimate or the possibility that industry scientists might actually believe in their work and that corporations may have legitimate arguments.” These arguments should have raised questions about Micheals’ attitude toward criticism and dissent. But in the heat of the nominating process, they were marginalized and/or ignored as representing only the hostile views of business interests.
Ultimately, the nomination of Michaels as Director of OSHA reflected the organization and power of his advocates, rather than a clear understanding of what it would mean to OSHA management. He also represented an ideological appointment that could and would engage in aggressive public advocacy for the policies and practices desired by the Obama administration. In truth, as we near the end of its eight years, the Obama administration has proven itself to be very business friendly, and particularly to large and powerful corporations who now make up a core constituency of Democratic Party fund-raising. This should have come as no surprise as the Clinton administration actively pushed deregulation while cultivating this cozy corporate relationship during its eight years in office.
The 2010 OSHA “Management Review”
In 2009, after years of mounting complaints about OSHA’s management, audits of the WBPP were scheduled by the Government Accounting Office and the DOL Inspector General. The Michaels appointment was confirmed in December 2009, in the midst of these audits which were already uncovering extensive mismanagement and abuse of the WBPP within OSHA. Rather than wait for the conclusion and formal recommendations of both audits, in April 2010 Michaels chose instead to launch a “Management Review” led by Rita Lucero, a career OSHA bureaucrat loyal to OSHA’s shadow government. It must have been an early decision by Michaels, who at the time the “Review” was launched had only been in office four months. Michaels did not plan the “Review” alone, but was assisted by Richard Fairfax, a SES appointee and career member of the shadow government of OSHA bureaucrats.
The GAO audit which was released in February 2010 no doubt influenced Michaels’ decision to go forward with the “Review”. It was a scathing report, citing OSHA for gross mismanagement of basic functions of the WBPP and for failing to actually take action to enforce WBPP statutes protecting whistleblowers. The IG’s audit, which was released September 30, 2010, found similar deficiencies, noting, “We estimate that 80 percent of applicable investigations under OSHA 11(c), SOX and STAA did not meet one or more of eight elements from the Whistleblower Investigations Manual that were essential to the investigative process”, and further advising “As a result of not providing complainants with thorough investigations, OSHA could not provide assurance that complainants were protected as intended under the various whistleblower protection statutes.” Both audits were strong critiques of OSHA’s management, and while Michaels accepted the criticism and promised to better, the conduct of the “Review” he ordered argued that neither was true.
In composing the Review team, Michael’s and Fairfax chose three career bureaucrats none of whom exhibited any inclination to follow the criticisms of either of the two audits, or the outside groups that offered comment on OSHA management, and excluded Nigen Tolek, the new independent Director of the WBPP who had a direct interest in improving WBPP performance. Rather, this group immediately set about selecting other career bureaucrats and shadow government supporters to assist them, all of who predictably avoided any direct criticism of OSHA managers or the OSHA Directorate.
Remarkably, the final report of the Review provided tell-tale comments that revealed its real purpose. It first dismissed the idea of central management of the WBPP, recommending instead, “Consider fundamental changes in the mission and function of Office of the Whistleblower Protection Program (OWPP) and how OWPP is structured, managed, staffed, and funded.” How it imagined these changes could occur, or what the mission and function of the WBPP should be were left to bureaucratic imagination. They then recommended a focus on settlement and mediation – two processes that watered down WBPP’s mission of protecting whistleblowers, as well as watering down the WBPP’s function as a clearinghouse to channel notices of potential violations of safety and health laws to appropriate regulatory agencies. Both the GAO and IG audits heavily criticized OSHA’s lack of credible investigations and OSHA settlements practices, and these recommendations clearly side-stepped any efforts to address these problems. Thus, the Review acted as a classic cover up, designed to provide a tissue of deniability to any charge that Michaels was not responsive to the problems of the WBPP while preserving the status quo.
The Term of WBPP Director Nilgun Tolek
Nilgun Tolek joined OSHA in 2001 as a program analyst, and in 2003 shifted to the WBPP. In 2005, she became Director of the WBPP, a position she held until the summer of 2011 when she and her senior aide resigned to take similar positions at the Department of Defense. There are rumors about the circumstances under which Tolek left the WBPP, but it was clear to even casual observers that Dr. Michaels and particularly Richard Fairfax were not supporting her efforts to reform and strengthen the WBPP.
Part of the conflict was structural, as the WBPP was put under the supervision of Fairfax, who as a career bureaucrat headed the OSHA Directorate’s oversight of the its system of Regional OSHA management. As both the GAO and the DOL IG audits pointed out, it was a system that failed the WBPP by offering little administrative support, and sometimes protecting Regional Administrators who were openly hostile to the WBPP. Fairfax’s role in organizing and supervising OSHA’s 2010 “Management Review” is instructive in how this system of protecting the mismanagement of the WBPP persisted and had become institutionalized by the time that Tolek departed.
However, a second part of the conflict between Tolek and the OSHA Directorate was political. Tolek was a holdover from the Bush administration, but unlike Jordan Barab she maintained a very independent attitude in offering criticisms and supporting WBPP reform. In so doing, she became a political liability unlikely to simply go along with whatever the Directorate wanted and likely to raise questions about OSHA’s management of the WBPP, which she did with me and other OSHA WBPP investigators. At the same time, she ran the WBPP office with great integrity, never fearing to reverse bad outcomes generated by hostile and inept OSHA managers. One of the first cases I managed as an OSHA WBPP investigator demonstrated this as an appeal from the dismissal of a case that I reinvestigated and easily confirmed merit. The case was eventually settled, but only after four years of delay.
I also personally witnessed a verbal attack on Tolek as she attempted to lead a WBPP training session in February 2011 in Chicago. The attack came from Sherrill Benjamin, an OSHA Assistant Regional Administrator in Chicago who openly mocked Tolek in front of a group if students to my embarrassment. Tolek never lost her composure, but the incident clearly reflected OSHA’s shadow governments disdain for her as Benjamin was a primary consultant recruited to participate in the OSHA 2010 Management Review. I also saw this in other instances, when I attempted to refer important policy questions to her office only to have my attempts frustrated by OSHA Region IX management.
Apparently, one of Tolek’s principle “sins” was to continually advocate for central control of the WBPP in the Office of WBPP, rather than keeping it subject to the whims, prejudices, and interests of OSHA Regional Administrators. After Tolek’s departure, the position of WBPP Director became a revolving door, occupied periodically by “temporary” appointees who had little authority and could offer no leadership. While there were subsequently some cosmetic changes in the structure of the WBPP, its control by Regional Administrators remained intact and continues to today. The continuation of this control can be explained, at least in part, by the role played by Regional Administrators as the public face of OSHA that works directly with business interests in a Region. As such, RAs’ provide an important interface in maintain political support for OSHA, and have a vested interest in muting the effects of the WBPP, particularly with powerful corporations.
The Abbreviated Term of WBPP Director Beth Slavet
Beth Slavet had a long and distinguished career with a strong background in whistleblower protection even before accepting the position of Director of the WBPP in November 2012. From 1995 to 2003, she served on the Merit Systems Protection Board, first as a member, then as Vice Chair, and finally as Chair, appointed by President Clinton in 2000. Prior to that, she was Labor Counsel to the Labor and Human Resources Committee of the U.S. Senate, working closely with Senator Ted Kennedy. Before that, she also served as Legislative Counsel and Staff Director to Congressman Chet Atkins from 1992 to 1993, and practiced labor and employment law from 1986 through 1992 in private practice and as counsel to AFGE Local 1812.
Slavet’s appointment by Michaels came with glowing reviews and high hopes that a reform of the WBPP was in the offering. As a union steward, I was impressed with Slavet’s background and apparent commitment to protecting whistleblowers. In December 2012, about four weeks after Slavet assumed duties as Director of the WBPP, I forwarded a long-running debate I was having with local Agency management over their denial of the release of information from an investigation to parties during an investigation. The issue had prompted a disciplinary hearing against me, but the Agency could never seem to find authority for their practice. With her background and new position, I thought that I might find the answers denied by local management and forwarded the debate via email to her and to Richard Fairfax, who supervised the WBPP program at that time.
I never received a response from Slavet, Fairfax, or anyone else in OSHA, even though I continued to raise the question for the following two years, where it was a major factor in my removal. However, I later discovered that my question caused a considerable stir at the national office, with both Slavet and Fairfax asking Region IX Regional Administrator Ken Atha about the email. Atha responded to both that the local Agency was “preparing discipline” against me, and then asked that the three of them have a private conference about the matter.
Slavet continued to serve as Director of the WBPP until July 2014 Her departure coincided with the organization of a retaliatory investigation of me that began in June 2014 and concluded sometime in late 2014. It is impossible to know if the two incidents are linked, but Tom Devine of the Government Accountability Project, a close associate of Slavet’s reported that Slavet’s departure was prompted, at least in part, by her efforts to organize an independent audit of the WBPP, which was what I had asked for in my letter to Secretary Perez in May 2014. As discussed below, there are other circumstances that argue there was a connection, and a connection that led from Secretary Perez to the OSHA Directorate and the White House.
When Slavet left, she assumed a position as Senior Counsel and Mediator for the DOL’s Administrative Law Courts, a position that appears as a considerable step down from Slavet’s earlier work in leadership positions. It is common practice in OSHA and many other federal agencies to arrange appointments for senior administrators in other agencies as a strategy for obscuring underlying policy disputes and avoiding a public discussion of the actual reasons for someone leaving an important post. Slavet’s very short-term tenure as Director – a period of some 21 months where she had served some 8 years with the MSPB, supports Devine’s conclusion that she was “pushed” rather than voluntarily quit.
DOL Secretary Thomas Perez
Thomas Perez was appointed as Secretary of Labor in July 2013 after controversy about the poor performance of the DOL under Secretary Hilda Solis and a potential charges of illegal campaign fundraising surfaced, forcing a change of leadership. The performances issues included the dismal state of labor-management relations in DOL, which had put the DOL near the bottom of federal agencies in this area.
Perez’ prior experience in public management came during the final years of the Clinton Administration where he served as Director of the Office for Civil Rights at the U.S. Department of Health and Human Services. However, he had become close friends and a political ally of then Secretary of State Hilary Clinton, and had been serving as an Assistant Attorney General for Civil Rights at the Justice Department at the time of his appointment. During this service with the Justice Department, Perez came under severe criticism from Senator Charles Grassley and the leadership of the House Oversight and Government Reform and Judiciary Committee just three months earlier for his making a secret deal to close a whistleblower lawsuit and prevent the recovery of $200 million dollars by the federal government. That, however, apparently didn’t factor in the decision to appoint him as Secretary of Labor.
Once in office, Perez moved aggressively to contain criticism that the DOL abused its employees and was hostile to their rights. Following his visit in November 2013 to Region IX, and taking him at his word, I submitted a report to Perez about my experience as a union steward with the rampant abuse of employee rights and interest by Region IX OSHA managers. There was no response, and as far as I could determine the Perez initiative on employee rights was largely just public relations/damage control. Perez, however, worked much harder at repairing relations with the American Federation of Government Employees (AFGE), which is the union leadership for federal workers, who represent a core constituency of the Democratic Party.
After receiving the first general assault by OSHA on my employment status in February 2014, in the form of a Notice of Proposed Removal, I began to document the broader issues of corruption in OSHA Region IX. By May, the documentation included significant evidence of a “culture of corruption”, which I reported to Secretary Perez, my Congressional delegation, the senior members of Congressional committees with OSHA oversight functions, and President Obama. Rather than prompting follow up, the letter at first appeared to be ignored, with no acknowledgement and no referral to the Office of Special Counsel, which is standard protocol for such letters. However, without explanation or clarification I was contacted some six weeks later by OSHA representatives advising me they were tasked with conducting the investigation I had requested in my letter. As discussed in more detail below, the reality was quite different.
My May 2014 Letter to Secretary Perez
On May 18, 2014, I posted a letter to Secretary Perez, copied to my Congressional delegation, the Chair and Ranking members of the Senate and House Committees overseeing OSHA, President Obama, and the DOL Inspector General. The letter identified eight specific areas where I had found and documented evidence of corruption in Region IX, and asked for a “credible investigation/audit of Region IX.” I received no response from Secretary Perez of the other parties copied on the letter, even though established protocols would require both an acknowledgement and a referral to the Office of Special Counsel.
As I had been having discussions with Congressman Matthew Salmon’s office regarding OSHA’s mistreatment of one of his constituents, and with an Associated Press reporter interested in OSHA’s treatment of several complaints against FedEx, I also provided them with copies of the letter. With no direct response from the Secretary’s office to the letter, at first it seemed possible that his office had merely passed the letter on to OSHA for some form of response. However, that proved not to be the case.
Several weeks after mailing the letter, I received a call from the AP reporter asking if he could talk to Secretary Perez about the letter during the Secretary’s upcoming visit to Southern California. I said yes, and shortly thereafter the AP reporter called me to say that when he asked the Secretary about the letter, Perez immediately responded that he know about it and his office was preparing a response. Several months later, a second reporter also asked the Secretary about the letter and he again acknowledged knowing about it. Thus, it was apparent that the Secretary was aware of the letter early on, and as I would later be told by OSHA they took my allegations of corruption “very seriously”.
In early July, I received an email from Sabina Khadka, who later emerged as working not for OSHA but for the DOL Inspector General, saying she was helping to organize an investigation prompted by my May letter together with Rita Lucero. I sent Khadka a series of memoranda expanding on the points about corruption I made in my letter, and in late July 2014 Khadka and Lucero appeared in Region IX to conduct interviews. However, the organization and conduct of the investigation was clearly not designed to investigate the issues in my letter, but to investigate me and other investigators who were making similar reports about agency corruption. I sent a second letter to Perez in August 2014 reporting this conclusion, and then a third letter in September after two fellow investigators where subject to retaliation after they offered supporting testimony to Khadka and Lucero. There was no response from the Secretary to any of these letters.
In October 2014, I sent a detailed analysis of six cases to the DOL Inspector General clearly showing that the agency was engaged in violations of law and asking for an investigation. A few weeks later, the IG responded by saying they would not investigate, based on OSHA’s investigation conducted by Khadka and Lucero. I then wrote to OSHA asking for a copy of the investigative report, which was refused because OSHA had reframed it as a “management review”.
In late December 2014, I was called into yet another disciplinary hearing based entirely on the earlier OSHA investigation, recycling a claim that I was improperly disclosing information to parties during my investigations. I once again asked for the authority for the Agency’s claim, which was once again ignored. Notwithstanding this lack of substance, OSHA issued me yet another Notice of Proposed Removal and then a Notice of Removal in May 2015, based on stale claims and claims manufactured out of the investigation that followed my letter to Secretary Perez.
The Politics of the American Federation of Government Employees (AFGE)
Organized labor had been a critical member of the coalition of interests that eventually managed passage of the Occupational Safety and Health Act in 1970. They had been its strongest supporters and successfully fought off attempts to locate OSHA away from what was at that time a more worker friendly federal department. But organized labor was and remained under attack during the following years, with membership falling everywhere, except with public employees. In recent years, attacks on public employee unions have intensified, precipitating crisis management and generating many unfavorable compromises that have further weakened organized labor.
The most significant attack on organized labor took place with the passage in 1947 of the Taft-Hartley Act, which crippled the union movement by depriving it of its most progressive leadership. For the following two decades, it was an article of faith that to earn the support of organized labor was to support the repeal of Taft-Hartley. But as the union movement grew weaker, the calls for repeal followed suit until by the 1980s union leaders generally abandoned the call in favor of defending member benefits and privileges. Whether that shift was necessary, or whether it reflected a decline in progressive leadership is the subject of debate. But the effect was to encourage more “collaboration” between union leaders and company management and less confrontation and solidarity for union members.
From December 2011 until my removal in May 2015, I was the AFGE union steward representing OSHA employees in San Francisco. Beginning in 2013, I was also the AFGE representative to the San Francisco Central Labor Council. During my four-year long fight with OSHA management, I was vigorously supported by five other AFGE local union stewards, including the local AFGE Vice-President. Without their encouragement, ideas, experiences and tireless efforts, I could not have survived, nor effectively represented the OSHA employees in San Francisco.
My relationship to the national AFGE union leadership was another story. I had assumed my role as a union steward after my predecessor had been removed by OSHA managers under questionable circumstances. I quickly learned that OSHA, and more generally the DOL, ironically have anti-union tendencies. Over the following years, senior AFGE leaders would offer lip service to defending the employees, but more often adopted a philosophy of attempting to resolve conflicts through collaboration rather than enforcement of the Collective Bargaining Agreement. OSHA managers, and the DOL Labor-Management representatives interpreted this as a tacit admission that AFGE would not take action, except in the most extreme cases, leaving employees exposed to continuing abuse, and in some cases flagrant violations of law, without any effective defense. Employees learned not to file grievances for fear of further retaliation, managers used investigations as weapons to punish employees, rather than solve problems, and management became emboldened in denying basic employee dignity and rights.
As I learned, the problem with AFGE leadership was that it reflected DOL management, not the interests and needs of employees. It was hierarchical, largely male, and older. Its membership was selected by existing union leadership, not membership, and enjoyed privileges granted to them by DOL management. AFGE leaders rarely, if ever, visited with members, talked to them, or invited their views on important subjects. Union training was treated as a perk, rather than an opportunity to openly talk about the issues most affecting union members, including widespread attacks in DOL on women and persons with disabilities, the under-representation of important minorities in critical DOL agencies, and a general disregard for worker rights in the management of DOL programs. Had these circumstances been materially different, I could have and might have pursued the issues that are now before the OSC through the AFGE.
The Context of the Filing and Review of My OSC complaint
Following my agreement with GAP to act as my legal representative, I began to conduct additional research into OSHA and the circumstances surrounding my removal. This research yielded a pattern of persuasive evidence that the 2014 OSHA investigation was planned and/or authorized by Secretary Perez, with the knowledge and likely participation of high level officials in the Obama administration. It showed the purpose of investigation was two-fold: to conceal the ongoing corruption of the WBPP, and to eliminate dissent within Region IX to that corruption. It intimated that the corruption of the WBPP served the purpose of consolidating support for the Democratic Party from major corporations with ongoing issues regarding the WBPP. It highlighted how the role of David Michaels as Director of OSHA had been to bend the WBPP to a collaborative management philosophy, while cultivating an image as a progressive committed to public safety and health. It suggest that the removal of Nilgen Tolek and Beth Slavet were prompted because they attempted to bring credibility to the WBPP, and that OSHA’s focus on settlements and other alternative dispute resolution processes reflects a pro-business anti-whistleblower bias.
I also found additional circumstantial evidence linking Perez, the White House, and potentially Secretary Clinton to what became a retaliatory investigation and cover up of corruption. This includes:
1. Continuing support by the White House for the cover ups and corruption of the WBPP, beginning with the 2010 Management review, and tacitly if not actively supporting the removal of Tolek and particularly Slavet as WBPP Directors, indicating its approval of such cover ups.
2. Perez’s lack of administrative experience - less than a year in the position, and appointment in the context of corruption allegations against former Secretary Solis, suggests that Perez would have consulted if not collaborated with both OSHA and the White House in designing and carrying out the 2014 investigation.
3. Perez admission early on that he knew about my May 2014 letter, coupled with OSHA’s admission that the allegations I raised were very serious, and coupled with Perez failure to respond to my letter and refer me to the Office of Special Counsel, suggest Perez’ interest in concealing not investigation my allegations.
4. The appointment in early August 2014 of Kirk Sanders as the OSHA Directorate’s Chief of Staff. Sanders suggests that the White House was involved in damage control, prompted both by my letter and Beth Slavet departure after attempting to organize an audit on her own initiative. Sanders was the White House staff who vetted the Perez appointment as Secretary of Labor, and would have been someone involved in responding the multiple crises of 2014 in OSHA. Sanders appointment occurred in proximity to the resignation of Slavet and during the OSHA retaliatory investigation of me. Sanders appointment would have given the White House direct control over any likely fallout from either situation, and would have helped shield the OSHA Directorate and its credibility from accountability.
5. The close political relationship between Perez and Secretary Clinton, who was an insider in the Obama administration and a powerful member of the Democratic Party, suggests that Perez may have turned to Clinton for advice regarding the crises in OSHA. The fact that Clinton promoted Perez as a likely Vice-Presidential nominee during the 2016 primary season, but then abandonment of his potential nomination when stories began to surface about Perez and potential corruption in the DOL, suggest Clinton had prior knowledge of the 2014 events.
6. The role of major corporate law firms, such as McDermott, Will & Emery, which now have substantial practices before OSHA involving the WBPP as political fundraisers for the Democratic Party and Secretary Clinton suggest a motive for the corruption of the WBPP during the tenure of the Obama administration.
A Captured Agency: The Airlines, Trucking And OSHA With Fired OSHA Investigator Darrell Whitman
Has OSHA become a captured agency by the companies it is supposed to regulate? Former Federal OSHA investigator and lawyer Darrell Whitman looks at how the agency has failed to stand up to the biggest companies in the airline and trucking industry. He also talks about how the industry controls the agency so it will not hold them accountable to OSHA and health and safety regulations. This has been combined with the affects of privatization, deregulation and outsourcing of Federal jobs by privatizers.
Whitman talks about FedEx, Lockheed and other companies that are flagrantly violate the health and safety rights of workers and threaten the safety of the public.
This interview was done in February 2015. On May 5, 2015 Whitman was fired by the Agency management and he and the whistleblowers he was trying to defend after receiving merit recommendations are still fighting for justice. He is also a steward with AFGE Local 2371 and has been fighting workplace bullying at the agency not only against him butself other Federal OSHA workers. He also is a delegate to the San Francisco Labor Council.
For more information:
Production of Labor Video Project
Whistleblower Protection Program & Fired WPP OSHA Investigator Lawyer Darrell Whitman With GAP Louis Clark
Louis Clark, lawyer and co-founder of the Government Accountability Project GAP in Washington DC discusses the Whistleblower Protection Project and how it is working including the affect of deregulation and privatization of government agencies that protect health and safety and the environment..
The Whistleblower Protection Program WPP is supposed to protect Federal whistleblowers throughout the United States government. He also talks about the systemic corruption in the Department of Labor DOL and OSHA and the retaliation and firing of OSHA WPP investigator, lawyer and AFGE Local 2371 steward Darrell Whitman. Clark talks about the problem of bullying of AFGE members in San Francisco OSHA Region 9 office who were seeking to protect workers who were retaliated for doing their jobs and faced retaliation themselves by the management. He also discusses reports that OSHA officials met privately with Lockheed Martin, Test America H.I.G. Capital, PG&E and other companies to criminally collude to dismiss merit complaints and coerce bad settlements for workers retaliated against for whistleblowing. He discusses the potential criminal obstruction of justice by top government officials including ALJ judges who are aware of the corruption charges and conspired to cover them up.
He also discusses the efforts of GAP to develop rules that will be enforced to protect all government whistleblowers including in the financial industry to prevent another financial crisis like 2008.
This interview was done on March 10, 2016 in San Franciso by KPFA WorkWeek journalist Steve Zeltzer
For more information:
Government Accountability Project
Madry Court Cases
Production of Labor Video Project
Obama appointed Perez who has continued the corporate control of OSHA and DOL.