How Top OSHA And DOL Officials Are Involved In A Scheme To Deny Protection To Health And Safety Whistleblowers
Explosive Corruption Charges Threaten the Health and Safety of Millions of Workers And The Public And Could Implicate H.I.G. Capital/Test America In Criminal Falsification of Environmental Tests
By Steve Zeltzer
KPFA WorkWeek Radio
San Francisco, California
The epidemic of refinery explosions and derailments leading to massive explosions seem to increase by the week. Behind this collapse of health and safety protection according to advocates is the failure to protect health and safety whistleblowers. The fear of workers to complain about serious health and safety problems is a key part of this failure. Now a Federal lawyer at OSHA Darrell Whitman has charged along with health and safety whistleblowers that the agency management and the DOL have not been enforcing the law to protect not only the whistleblowers but the health and safety of all Americans.
In an explosive document sent to Secretary of Labor Thomas Perez in May 2014, Federal OSHA attorney Darrell Whitman, charged that there is systemic corruption in the agency that is preventing the protection of health and safety whistleblowers. As a result of making these charges with extensive documentation, Whitman has himself become a target of workplace bullying and moves to terminate him from the agency. In fact according to Whipple his supervisor Joshua Paul who is also an attorney at the agency ordered him to falsify federal documents which is a criminal felony. On February 21, 2015 the agency sent a mover to his house and took his documents and badge preventing him from doing his work.
Whitman has a lot of years under his belt. He has been working over 10 years for state and Federal agencies so he knows a bit about how the Federal government operates.
His latest job was as an investigator in the OSHA program that investigates health and safety complaints by workers in industries from oil, rail, trucking and other companies in OSHA region 9 which covers nearly 40 million workers in the West.
As one of the 6 OSHA staff in this unit, there have been only three that actually doing investigations. Whitman investigates whether OSHA complaints by workers are valid and then makes a determination of whether or not their complaints are serious enough to gain a merit status. Under Federal law this merit status provides full back pay and can provide punitive damages to workers who are terminated for making their health and safety complaints.
Formation Of OSHA
The Occupational, Safety and Health Administration was established in 1970 after a rank and file effort of thousands of activists in unions throughout the country for better health and safety protection. Tony Mazzocchi with the OCAW now merged with the USW was also a central figure in fighting for the establishment of this agency. Many of these activist rank and file workers established health and safety committees in their locals and pushed for health and safety protection in Federal legislation.
The legislation was passed on December 28, 1970 under the Nixon administration. Of course these days the Nixon administration would be seen as a “leftist ” but at that time, this legislation was seen as a necessary reform to make sure that workplaces were safe and workers were protected who made health and safety complaints.
Today, the tide has turned according to Whitman who has been fighting to protect whistleblowers at nuclear plants run by PG&E, maintenance workers at Fed-Ex, railway workers and even quality assurance managers at Test America which is the largest testing company in United States and owned by H.I.G. Capital a private equity firm based in Florida.
The attack on OSHA over many years is striking. Today there are only 2,000 Federal inspectors in the US for 130 million workers and recent explosions such as in West Texas at the ammonia plant that exploded it was the US government OSHA program that was responsible for oversight and inspection. President Obama interestingly did not mention this important fact at the memorial for the community members and workers at the West Texas ammonia plant that he attended. His administration through OSHA is directly responsible for the health and safety protection in the state since Texas does not run their own state program. In fact, there are only 98 inspectors for the entire state which is a major industrial center for the United States with oil, chemical and many other industrial facilities.
USW Oil Workers Strike And Health And Safety
The strike of USW oil workers in 2015 is also directly connected to the issue of health and safety protection since these workers are being seriously injured and killed on the job as well as dangers in the communities surrounding refineries. No oil industry managers or executives have ever gone to prison for these numerous serious and criminal violations of health and safety that led to deaths according USW Health & Safety officials.
Also, OSHA lawyer Whitman reported that he knows of no Merit recommendations ever issued in the oil industry. One has to ask how in this highly dangerous and deadly industry there would not be one Merit recommendation of protection for retaliation against an oil worker for making a health and safety complaint? In the BT Gulf explosion workers according to articles in the Dallas Morning News knew they were going to die and told their families and made out their wills. They were obviously fearful of reporting their concerns to OSHA for fear of likely retaliation and blacklisting in the industry for the rest of their lives.
Culture Of Corruption
What Whitman discovered as well, is that the OSHA agency far from protecting whistleblowers was leaving them totally vulnerable to retaliation and blacklisting by industry.
In his letter to US Labor Secretary Thomas Perez on May 18, 2014, Whipple charged that there was a culture of corruption at the agency and that far from protecting whistleblowers the agency managers have actually “that internal management problems within Region IX are undermining, and in some cases compromising, the protection of whistleblowers.”
He called for an independent investigation and what has transpired since his letter is that David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health turned the requested independent investigation over to the same people engaged in the corrupt and mismanaged agency.
Whitman is also a shop steward with AFGE Local 2391 and a delegate to the San Francisco Labor Council and charged in the same letter to Perez that there was in fact a reign of terror against the employees at the agency.
“During the last three years, there have been union grievances filed by employees involving serious allegations of management abuse, but no meaning effort has been made to correct the outrageous behavior of managers that led to these grievances. For the second time in three years, the entire staff of whistleblower investigators is filing a group grievance concerning the Regional Supervising Investigator and his systematic abuse of authority and employees. Sadly, we have no expectation that corrective action will be taken by local management.”
Anti-Union OSHA DOL Management Ignores Workplace Bullying
American Federation Of Government Employees which represents the staff at OSHA are aware of this epidemic of workplace bullying against staff who are charged with protecting whistleblowers but have been unable to get OSHA director David Michaels and Secretary of Labor Thomas Perez to address these issues.
There is also a concern that the exposure of these systemic problems in OSHA would help those forces in Congress who want to totally eliminate the agency and let the companies simply regulate themselves.
These systemic problems was not a situation unknown to the government administrations both Democrat and Republicans. In fact in a 2004 36 page GAO report on OSHA, the GAO concluded that there existed serious procedural obstacles in protecting OSHA whistleblowers http://www.gao.gov/atext/d04658.txt.
There was also a report in 2010 that concluded again that OSHA whistleblowers were not receiving the protection they are entitled to under the law. It also showed there was a significant error rate in the entire administrative process to properly protect whistleblowers.
Whipple reported that not only was he unable to protect OSHA whistleblowers but the agency management were attacking and bullying the staff who were supposed to protect these whistleblowers.
In a document he authored called “Six Investigations:
Corruption in the OSHA Whistleblower Protection Program” Whipple outlines what happened in six of his investigations and how these systemic failures were not an accident but were the direct result of corruption in the agency. According to him serious obstacles have been purposely put in place to prevent merit findings that would protect whistleblowers particularly after massive opposition by the airline industry. “The addition of “preliminary reinstatement” to the remedies for retaliation against this group of whistleblowers stirred a firestorm of opposition, particularly from the air carrier industry. After an initial burst of Orders for Preliminary Reinstatement, such Orders dropped off dramatically after 2004. In its place, Program managers often delayed investigation and/or manipulated them in an effort to force whistleblowers and companies to settle complaints so that the Program could avoid issue Orders.”
One case that Whitman focused on were complaints by several mechanics at Fed-Ex maintenance base in Los Angeles who charged that there was complete failure to protect the planes from rust and salt air since they were parked outside the hangars. Their collective complaints were ignored by the agency’s top officials and these workers were driven out of the company. Their case is presently in Federal court
Another issue that he has raised is the double standard of prosecution. While small employers are heavily targeted as “soft targets” large companies like Fed-Ex, PG&E, Lockheed-Martin and Test America owed by H.I.G. Capital are allowed to get away with flagrant violations of whistleblower rights.
Additionally, according to Whitman there was a precipitous drop of merit findings that would protect these workers.
“Since 2006, the Program has produced merit findings in less than 2% of whistleblower investigations, and in the case of complaints filed under AIR-21 Region IX has issued only a single merit determination in 2006”.
At the same time it allowed the companies to target whistleblowers and destroy their careers and lives.
“creating faux legal excuses for dismissing complaints that clearly are merit, falsifying investigative reports, harassing witness that support the whistleblower, defaming the whistleblower, and attempting to coerce settlements with little regard to the whistleblower’s rights to a “make whole remedy.”
While allowing employers to target and retaliate against the whistleblowers it set up another scheme to real protection called the “Alternative Dispute Resolution (ADR) program”
This program has again been another vehicle for the agency to abandon the real defense of whistleblowers according to Whitman.
What this failure to protect whistleblowers means not only for the workers but for the people of American is that they are in grave danger.
Private Equity, The Public And Whistleblowers
An example of the corruption of the regulatory agencies and the systemic of OSHA and the DOL in this process is the case of whistleblowers at Test America/EMLabor P&K which is owned by H.I.G. Capital a private equity company based in Florida worth $17 billion. H.I.G. Capital has close ties to Bain Capital and Mitt Romney directly. H.I.G. was founded by Tony Tamer, a former Bain employee and bundler for Mitt Romney’s campaign. Of H.I.G.’s 22 American directors, 21 donated to Mitt Romney’s 2012 presidential campaign.
It purchased Test America in July 2007. EMLabor P&K certifies that tests for asbestos, mold and other toxins are not present at dangerous sites indoor and outdoor throughout the United States. They do testing for the US Navy, commercial developments and may have provided tests for Hunters Point Naval shipyard.
In a report in the San Francisco BayView, Dr. Ahimsa Porter Sumchai reported that asbestos testers working for TetraTech a subcontractor working for the Navy were also targeted for whistleblowing about falsified asbestos, radiation and toxic reports at the site. These in fact are not isolated instances.
According to the article “Tetra Tech is the Navy contractor overseeing the cleanup at HPS. A laboratory computer data base search identified 2,500 fraudulent samples collected from 20 survey sites involving Tetra Tech workers from 2008 to 2012.
Many of these are super-fund Brownfield sites that are highly dangerous contaminated industrial and military dumps that are required to be cleaned up before development. Private developers convinced Congress that they could clean up the sites and then put them back to use as safe sites for the public.
According to Test America it “provides a broad array of analytical, indoor air quality, and air emissions testing services to major industrial companies, engineering and consulting firms, and governmental entities, performing more than 10 million laboratory testing assignments annually for more than 10,000 clients.”
These tests are obviously critical in allowing further development to take place and to assure workers and the public that these sites are safe. Tens of billions of dollars are also behind these massive property developments nationally.
Michael Madry was a quality assurance manager at Test American Environmental Services for the Western Region of the United States. He had over 16 years of training and work in this highly specialized work. His job along with his colleague Dr. Edward Kot was to make sure that the tens of thousands of laboratory tests that they received from around the country were actually correct and accurate so that the site could be certified as safe.
Lean Sick Sigma Model
In June of 2008, the company began the process of changing the testing procedures and processes. Belinda C. Vega who was president of the company introduced new orders to speed up the turn around time on the tests.
On June 23, 2008 EMLab P&K President Belinda Vega issued a directive that all analytical personnel performing spore trap analyses begin using a device called the Belkin SpeedPad to its fullest extent, with the macros and profiles identified in a Lean project or else face the possibility of additional cuts in staff.
The need to speed up the testing according to Madry was driven by H.I.G.s need to increase the profits by cutting costs. This was particularly serious since the testing of asbestos fibers is a time consuming process.
Madry felt strongly that it was pressure from Vega to increase profitability through increased productivity and decreased operating expenses, as well as the existence of a conflict of interest in the reporting relationship between Dr. Kot and Ms. Vega, that lead to a compromise of the organization’s ethics standards, the discounting of QA observations and reporting of that misconduct, and the intentional discriminate targeting of two of the individuals who reported it
In December 2008, Dr. Kamash Ramanathan who is the laboratory director at the San Bruno EMLab PK offices told Madry and other quality assurance manager that they needed to institute a business model in their testing procedure called the Lean Sick Sigma Model.
As part of this new business model, a managerial speed pad or game pad was used to increase the turn around time.
Madry discovered that this computer driven program was easy to be manipulated allowing for incorrect data to be entered. Madry raised these concerns with Vega and Ramanathan and they began to pressure him and others at the laboratory to move ahead with the new program and that it was completely safe.
In fact in a memo on February 26, 2010 Vega argued that “it was ridiculous of NIOSH to put “time restraints in a method because that does not allow for any type of efficiency or best practice to be applied to the process”.
After Madry reports that reason for the 15 second counting time requirement per graticule field when analyzing Phase Contrast Microscopy (PCM) asbestos samples via the NIOSH 7400 method is because the acceptable level of exposure to asbestos, according to OSHA, is 0.1 f/cc, over an 8-hour working day, for an entire working lifetime and that the CLEARANCE level, demonstrating acceptable cleanup following an abatement project is 1/10th that level, at 0.01 f/cc. (This low level approaches the analytical sensitivity of the PCM method), EMLab P&K President Belinda Vega responds in an email on February 26, 2010 stating that it was ridiculous for NIOSH to put time restraints in a method because that does not allow for any type of efficiency or best practice to be applied to the process.
20 Second Tests On Asbestos
One key question was how tests on asbestos could be done in only 20 seconds. Dr. Kot challenged Vega that it was impossible to do a testing of asbestos in 20 seconds and both he and Madry began to challenge Vega and Ramanathan that this procedure would invalidate the testing process and was in fact impossible to do. Madry even asked them to show him how to do it and of course they were unable to show that such tests could be really be done in 20 seconds. The usual time required for these tests was from five to ten minutes.
The response from Vega and Ramanathan was also to begin a sustained effort to harass and bully Kot and Madry that they were incompetent and should leave the company.
In April 23, 2010 Dr. Edward Kot filed a complaint with OSHA that there had been retaliation against him for trying to protect the testing standards for asbestos testing and in September 30, 2010 Michael Madry also filed a complaint against Test America.
One of the most serious issues raised by Madry was that fake test data was actually being used in test reports when the data was not even available to the San Bruno laboratory. This was on top of samples being received from Texas from uncertified laboratories that should not have not been sending asbestos samples.
The critical importance of the testing of asbestos in buildings is vital for health and safety protection. There has been an increasing wave of lung cancer in young adults that do not smoke or have any other environmental backgrounds that might lead to this type of lung cancer. The failure to properly test school buildings including vinyl floor tiles for asbestos could be one of the cause of this growing lung cancer rate of young people. According to Madry this is also one of the most difficult challenges for laboratories to examine and the serious direct systemic violation of proper procedures of the National Voluntary Laboratory Accreditation Program NVLAP accreditation policies. NVLP is the U.S. Government entity administered by the National Institute of Standard and Technology (NIST), an agency of the U.S. Department of Commerce, that is responsible for the oversight of the Bulk Asbestos Analysis Program.
As Madry and Kot were discovering the new policies instituted at TestAmerica Environmental Services after it’s take-over by H.I.G. Capital again raised the question of the validity of much of their testing results.
In March 18, 2011, Madry sent at letter to OSHA investigator Whitman outlining that when he made complaints about these testing procedures and the falsifications using the speed pad and game pad he was retaliated against by the company. He said that the testing results of this speed pad were unsustainable and also they raised “ethical, safety, and quality issues” and Madry believed that “pressures to increase profitability through increased productivity and decreasing operating expenses” were driving the violation of testing procedures.
According to Madry, Vega, Ray Frederici, Director of Quility and Client Advocacy for TestAmerica and Nancy Ploof, the Director of Human Resources for TestAmerica launched a campaign to bully him and also charge him with psychological problems. This effort by management to target whistleblowers and accuse them of mental problems is a common tactic to destroy the confidence and mental state of employees in many instances. Michael Madry was forced onto disability leave and his career was virtually destroyed by this retaliation.
Also in 2011, Madry also went to the US Attorney in San Francisco but again there was no investigation of these allegations of a serious systemic criminal conspiracy to violate State and Federal testing standards. He also contacted Congressional and Senate representatives.
The targeting of Madry and Kot was of course a serious threat not only to them personally but the public safety and the integrity of testing done by the company. The evidence of a criminal conspiracy and potential RICO by TestAmerica management was also being raised by these actions. Company officials were fully aware that the manipulation of the tests, false testing results and use of the speed pay or game pad to change testing results was a criminal act.
When these complaints were made to Darrell Whitman he investigated and found validity to the discrimination complaints awarding Madry merit status. Kot subsequently made a financial settlement with the company thereby shelving his OSHA complaint.
In the case of Madry, Darrell Whitman found the complaint had merit and tried to get the OSHA solicitor to pursue the complaint. Not only was this rejected but according to Whitman, his supervisor Joshua Paul who was also a lawyer demanded that he “falsify” his report on the case because the US Labor Department Solicitor’s office did not want to take it. This is a violation of Federal criminal law and “misrepresentation” is a criminal felony.
According to Whitman in 100 cases he handled he recommended that there be 35 merit determinations but only 3 or 4 were eventually were accepted and these were mostly against small companies and employers.
Paul also sat on the Merit determination for over a year and then eliminated the right of Madry to receive punitive damages after he complained to Paul about his failure to pursue the Merit complaint.
Whitman also reported that this is not an isolated instance but that it is “rare” for the agency to issue a merit finding.
Paul told Whitman that “In the future I expect you to follow orders”. US Labor Secretary Thomas Perez is also personally aware of these criminal violations of the law. David Michaels, Secretary of the agency however sent the complaints back to Ken Atha who is the regional director of OSHA Region 9. Atha’s response was that he would be investigating Whitman for raising these concerns and complaints. Whitman also is a AFGE 2371 Local shop steward and has been fighting disability, gender and race discrimination at the agency and the staff and employees who are responsible for this task have been virtually eliminated from the agency.
The Hunter’s Point Naval Shipyard (also known as the Treasure Island Naval Station-Hunters Point Annex) is located in southeastern San Francisco, California, adjacent to San Francisco Bay in the Bayview-Hunters Point neighborhood.
In 1989, EPA placed the Shipyard on its National Priority List (NPL) which is a list of Federal Superfund Sites in the United States.
The cleanup program at the Shipyard is being conducted by the Navy pursuant to the Installation Restoration Program, a federally funded program established by the Department of Defense (DOD) to identify, investigate, and control the migration of hazardous substances at military and other DOD facilities.
The Navy is the lead agency responsible for the investigation and cleanup of the Shipyard in accordance with the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).
The EPA is the lead regulatory agency.
Much of the soil at the Shipyard originated from grading and flattening the nearby hills containing rock and soil known as Serpentinite. Serpentinite rock contains naturally occurring asbestos.
Instead of moving to take action to deal with the corruption and violations of the law Region 9 Director Ken Atha began an investigation of Whitman charging that he had improperly released information to the OSHA whistleblowers even though the law requires that OSHA whistleblowers are entitled to this information about their case.
Whitman has been contacted by Senator Diane Feinstein and is in touch with Senator Chuck Grassley and they are aware of the systemic problems. Whether they will stop Michaels and Perez from firing him is another question? A mover in mid February came his house to collect his files, government computer and ID badge and he was put on administrative leave. He believes the whistleblower protection unit has to be taken out of OSHA and made an independent group with fully trained lawyers and investigators which is clearly lacking today.
He also warns that agencies such as the FAA, EPA, NVLAP, NRA and NRC are in a state of collapse and are not able to do the job that they are tasked with in this area.
These cases and the issue of protection of health and safety whistleblowers is part and parcel of the capture of regulatory agencies by the very corporations they are supposed to regulate. This is yet another example of the cost of deregulation and management labor collaboration by a government that is supposed to protect working people and the public at large.
OSHA Employee says the federal whistleblower program isn’t protecting whistleblowers or the public
2-24-15 OSHA Whistleblower Program and Corruption With Federal OSHA Lawyer Darrell Whitman