DRAFT Copyright © 2010 by Ed Slavin
DOL MUST HALT DESUETUDE, ENFORCE WHISTLEBLOWER LAWS:
STATEMENT OF ED SLAVIN to “OSHA LISTENS”
March 4, 2010
“As scare as truth is, the supply seems greater than the demand.”
– Adlai E. Stevenson
Dear Secretary Solis, Dr. Michaels, Ms. Berkowitz, Ms. Dougherty and Mr. Fairfax:
In 1776, in Philadelphia, our American Founders dedicated their “lives, [their] fortunes and [their] sacred honor” to saving Americans from oppression by defeating tyrants. Making world history, our Declaration of Independence embraced the right to free speech, the right to alter or abolish dysfunctional governments, and the right of the people to institute “new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
In 1970, President Richard Nixon signed the Occupational Safety and Health Act (OSH Act) to protect worker safety and free speech rights, including OSH Act Section 11(c). Other whistleblower laws protect employee whistleblowers on a patchwork but wide variety of subjects. Those laws are necessary and proper to “effect [our] Safety and Happiness,” in our Founder’s words. Some 40 years later, workplace safety and free speech laws are not being enforced adequately. This is the direct and proximate result of Presidential appointees since 1981 who have been in open rebellion against laws protecting people against large organizations. DOL’s Watergate-style scandal involves obstruction of justice on a mass scale, in what scholars call a “mass justice” organization, where investigations and adjudications have suffered for years.
I was proud to clerk for the Chief Administrative Law Judge of the U.S. Department of Labor (Nahum Litt) and then to represent American whistleblowers (ethical resisters) for years. My parents were union organizers. Both Judge Litt and my parents taught me that it is “better to light a candle than curse the darkness.” I will outline the problems and propose solutions.
DOL MUST ENFORCE WORKER PROTECTION LAWS WITHOUT FEAR OR FAVOR
1. DOL has been an “uncertain trumpet” on worker protection and workplace free speech. Some 6000 workers are still killed in American workplaces every year, with more than 50,000 dying horrible painful deaths due to occupational diseases. “This must stop,” Assistant Secretary Michaels said this morning. OSHA must do a better job of protecting workers, he said. In addition, too many employees lose their jobs, careers and homes simply for speaking the truth. “This must stop,” too. It is undisputed that in America, too many workplaces are tyrannies. They are typified by the Tennessee Department of Environmental Conservation air pollution regulatory manager who in the 1990s told his subordinate supervisor that the State of Tennessee owned his mind for 7 1/2hours a day, and that if he told him to jump off a roof, he must “jump off a roof.”
2. With a new Commander in Chief, OSHA is finally turning over a new leaf. I salute you. As Secretary of Labor Hilda Solis has said, “There's a new sheriff in town....OSHA is back in the business of enforcement." DOL must protect workplace free speech. DOL must support strong new federal legislation along the lines of the February 1991 ABA House of Delegates Resolution (Exhibit A), with a one year statute of limitations and “coverage to protect all workers who disclose worker or public health and safety threats, or violation of federal statutes or regulations, or who refuse to commit a federal crime.” More than nineteen years later, it is time for Congress to follow the ABA’s advice.
3. Likewise, the New Jersey Conscientious Employee Protection Act (CEPA) is regarded as the strongest whistleblower law in the nation. Supreme Court Chief Justice Louis Dembitz Brandeis said that the states are the “laboratories of democracy.” Thus, New Jersey’s CEPA must be considered as a model (along with the ABA resolution) for the scope of comprehensive federal whistleblower legislation to be enacted in the Second Session of the 111th Congress.
4. As President William Jefferson Clinton said it best, “a right without a remedy is simply a suggestion.” There might be a right, but there is no remedy because environmental, nuclear, trucking and financial whistleblower laws are not being faithfully enforced by DOL. This results in disease and death for workers, citizens, drivers and passengers. I agree with the banner over your tables at today’s “OSHA Listens” session: “No one should have to be injured or killed for a paycheck.” Neither should anyone lose their job or livelihood for speaking about safety and health concerns or lawbreaking. I agree with Jason Zuckerman’s statement this afternoon that the goal of the banner cannot be achieved without protecting worker rights to “blow the whistle.” As Jason Zuckerman pointed out, OSHA allows employers to file secret answers to complaints, without allowing the worker or his lawyer to read them.
5. Why aren’t the anti-retaliation laws being enforced to protect workplace free speech rights? Demagogues, who are anything but true “conservatives,” want to oppress employees and preserve a climate of fear and repression in the workplace – like slavery of the mind. They want every workplace to honor the mafia oath of “omerta” (silence). Such authoritarians would prefer that deep dark secrets of corporations and governments be kept inviolate. From the Dalkon Shield to ENRON to WORLDCOM, secrecy and retaliation have put corporations in bankruptcy court and robbed pensions from workers.
6. I agree with the families of dead workers whose cases OSHA did not adequately vindicate – OSHA is not doing enough. OSHA must be reformed from stem to stern.
7. A University of Chicago study found that whistleblowers were society’s best tool to fight fraud, also finding 82% of workers who raised concerns lost their jobs. Our society has an epidemic of retaliation and DOL has fostered and encouraged it by its action, resulting in thousands of deaths and billions of dollars of waste due to financial fraud.
8. This afternoon’s “OSHA Listens” speaker, Tom Broderick of the Construction Safety Council, rightly said that “our economy has been plundered by an unscrupulous few.”
9. That plundering was made possible by decisionmakers at DOL Headquarters, who are not adequately enforcing the Sarbanes-Oxley Act whistleblower provision – as the Wall Street Journal reported, the Department of Labor ruled for financial fraud whistleblowers only 17 times out of 1273 complaints from 2002-2008. That is less than one out of 75. That is a rate that suggests that the odds against an ethical employee winning a Sarbanes-Oxley case far more difficult than winning other employment discrimination cases, or medical malpractice cases. The lame excuse given for ruling against many of these employees is that they worked for corporate subsidiaries owned by publicly traded companies, rather than directly for publicly-traded companies. As the Wall Street Journal reported:
Sharon Worthy, a Labor Department spokeswoman, said the agency "believes that there is no legal basis for the argument that subsidiaries of covered corporations are automatically covered" under the Sarbanes-Oxley whistleblower provision. "The plain language of the statute only applies to publicly traded corporations," she said in a statement.
Thankfully, that solopsistic spokesman left DOL when George W. Bush left town. Ms. Worthy’s jejune, unworthy comments were emitted by yet another Republican apparatchik – one without a law degree – and without any understanding of what our Founders intended, or of what happens when the Constitutional oath to see that the laws are faithfully executed is breached.
10. President George W. Bush only signed Sarbanes-Oxley under political pressure after his friend, Ken Lay, bankrupted ENRON with financial flummery and dupery. Then Bush’s appointees in the Department of Labor proceeded not to enforce the Sarbanes-Oxley whistleblower provision, based upon misinterpretation of statutory language.
11. If workers who are retaliated against for raising protected concerns are not protected by other whistleblower laws and their concerns are protected by OSHA, they are forced to file retaliation complaints with OSHA (Section 11(c), OSHA too often does little or nothing in response. This is because workers don’t have any “individual right of action” for retaliation based on safety issues unconnected with environmental regulations. Congress must act to end this disparity to provide for an individual right of action pursuant to OSH Act Section 11(c).
12. DOL has been guilty of deliberate desuetude of enforcement of anti-retaliation laws:
DESUETUDE --
“Disuse, cessation, or discontinuance of use -- especially in the phrase, to fall into desuetude. Applied to obsolete statutes.”
Black’s Law Dictionary
“The state of being no longer used or practiced.”
Random House College Dictionary
13. When I spoke the truth that other attorneys feared to speak – when I wrote that the Department of Labor was guilty of desuetude – former DOL Chief Judge John Vittone said no other lawyer had said that about the Department of Labor and said that I had “denigrated” his employer, DOL. So much for judicial independence. DOL’s then-Chief Judge Vittone and his staff worked for years to have my law license suspended, then disbarred – former DOL Chief Judge Nahum Litt said I was “persecuted” by Vittone. They succeeded at that, and in revealing their “actual malice and willful disregard of the truth” – but DOL is guilty of desuetude. That is the truth and that’s why we’re here today.
14. The simple palpitating fact of the matter, not today denied by anyone, is that there has been a long, downhill slouch toward desuetude in DOL.
15. Supreme Court Justice Louis Brandeis would have called it a “race to the bottom.” The truth is that DOL was eviscerated under Presidents Reagan and Bush. It did not recover under President Clinton. It got far worse under unelected President Geroge W. Bush.
16. As stated this afternoon by Norman Pflanz, Nebraska Appleseed Center for Law, many food industry workers are still defecating and urinating in their pants because employers won’t let them have bathroom breaks. That was the case in the 1980s, under President George Herbert Walker Bush. That is the case now, after eight years of President George Walker Bush. Our Department of Labor is simply not doing its job. In the words of one of my Oak Ridge, Tennessee nuclear whistleblower clients, “we’ve got nowhere to go but up.”
17. As we approach DOL’s one hundredth birthday in 2013, the patient is on life support. Do we abolish DOL? Are DOL’s managers amotivated and amoral and beyond redemption? Do we need to fire everyone at 200 Constitution Avenue and start over? Or can DOL make meaningful changes to justify its continuing existence, avoiding sunset? This is not the first time this question has been asked. Again and again for 40 years we have heard of “Reinventing OSHA” and the “New OSHA.” Such PR rhetoric reminds me of the “New Nixon,” of which the American people have likewise lost count.
18. The Lawyer’s Committee for Civil Rights Under Law reported in 1993 that DOL “made a mockery” of the DOL Office of Federal Contracts Compliance Programs (OFCCP) during twelve years marked by “a climate of official hostility” to civil rights.
19. USA Today found DOL greatly reduces child labor law fines, even after deaths occur: a DOL manager told one family that a higher fine would not bring back their son.
20. The New York Times found OSHA fails to faithfully enforce laws protecting worker safety, even when deaths occured, rightly winning a Pulitzer Prize. The problems continued under the Bush Administration.
21. Desuetude must end. DOL must from this day forward move decisively to preserve, protect and defend the free speech rights of ethical employees everywhere (and their advocates), without fear or favor.
22. Whistleblower and other labor laws are designed to protect “First Amendment values.” As Attorney General Robert Kennedy said, “If our Constitution had followed the style of Saint Paul, it would have said, ‘But the greatest of these is speech.’ In the darkness of tyranny, this is the key to the sunlight. If it is granted, all doors open. If it is withheld, none.”
23. For OSHA to work zealously to protect whistleblower workers represents a sea change. Attitudes and personnel must change.
24. DOL in the best of times is irresolute in protecting environmental whistleblowers – just as our government is on all environmental issues. Nobel Prize winner Albert Gore, Jr. has compared Americans to a dysfunctional family in dealing with environmental issues, quoting Sir Winston Spencer Churchill, who said:
The Government simply cannot make up their minds, or they cannot get the Prime Minister to make up his mind. So they go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent.... The era of procrastination, of half-measures, of soothing and baffling expedients, of delays, is coming to its close. In its place we are entering a period of consequences.
25. The “inconvenient truths” that workers reveal causes dysfunctional organization to “reach out and crush someone,” destroying careers and lives to suppress the truth. The lengths to which large organizations will go are limited only by “human creativity,” as one California nuclear powerplant utility whistleblower investigator candidly wrote. That “creativity” includes spending millions of dollars – paid by all of us as taxpayers, ratepayers and stockholders -- to fight to uphold wrongful firings. That “creativity” even embraces retaliatory referrals to psychatrists, just as in the former Soviet Union.
26. The prevailing attitude in our government since 1981 has been to loathe whistleblowers and refuse to enforce laws protecting them. Only one criminal prosecution has ever been brought against an employer retaliating against a whistleblower.
27. The crime of obstruction of justice and perjury is committed too often by organizations that seek to avoid scrutiny and accountability.
28. Deliberate nonenforcement of civil and criminal laws to vindicate the rights of ethical employee whistleblowers is desuetude. It is also obstruction of justice. It is also a crime. It is wrong. Desuetude has been the de facto policy of the Department of Labor and the Department of Justice since 1981, when the “Reagan revolution” ripped regulations and sought to destroy organized labor, firing striking air traffic controllers and appointing anti-worker appointees throughout our government, from DOL to OSHRC to MSPB to NLRB to FMSHRC.
29. That desuetude includes orders from successive Secretaries of Labor not to present draft decisions to the Secretary in environmental and nuclear whistleblower cases and pattern and practice race and gender discrimination cases, with years and even decades of delay. By definition, this is case-fixing.
30. Desuetude is a violation of workers’ constitutional and civil rights. As U.S. Representative David Perley Lowe (R-Kansas) said regarding Florida and other Southern states’ civil rights violations that led to adoption of these laws in the 1871 Civil Rights Act (Ku Klux Klan Act):
While murder is stalking abroad in disguise, while whippings and lynchings and banishments have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night [which] hides them, conspiracies, wicked as the worst felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress."
31. Whistleblowers (and their counsel) are the object of unmitigated hatred by some employers and government officials, including former DOL Chief Judge John Michael Vittone.
32. As Robert Kennedy said after Dr. King was murdered: “Aeschylus wrote: In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our despair, against our will, comes wisdom through the awful grace of God. What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or they be black.”
33. New York police corruption whistleblower Frank Serpico prefers the word “lamplighters” to the more pejorative-sounding whistleblowers. In the words of Justice Louis Dembitz Brandeis, “sunlight is the best of disinfectants and electric light the most efficient policeman.”
34. Too often in the past:
A. OSHA and the Department of Labor have avoided scrutiny and transparency.
B. OSHA and DOL have aligned themselves with the powerful and refused to protect ethical employees, sometimes also called “ethical resisters” who seek to protect our country and our people from harms.
C. OSHA whistleblower investigators have been a doormat for employers that retaliate and discriminate and expose their workers to horrible painful disease and death.
35. At America’s nuclear weapons plants, OSHA inspectors were turned away for decades from the “dark satanic mills” that were operated for our own government for the purpose of manufacturing Weapons of Mass Destruction (WMDs).
36. In making more than 70,000 nuclear weapons, some 600,000 workers were exposed to some 19,000 toxic materials. There was a massive coverup, which I first exposed starting in 1981, as editor of the Appalachian Observer, which won declassification of the largest mercury pollution event in world history (Oak Ridge, Tennessee, where Union Carbide dumped 4.2 million pounds of mercury in workers’ lungs and brains and into creeks and groundwater). Many workers died horrible painful (and preventable) deaths at nuclear bomb factories.
37. Do DOL and OSHA have blood on their hands, as well as DOE? I reckon some people would say that DOL and OSHA were accomplices to DOE’s corporate homicide. What do you think?
38. Why was no one ever prosecuted for poisoning workers in Oak Ridge, Tennessee?
39. Why was no one ever prosecuted for poisoning workers and residents at eleven nuclear weapons plants? Our government pressured the Rocky Flats Grand Jury to try to suppress the truth, treating environmental crimes as if they were excusable.
40. It is not a classified secret that some large organizations are willing to spend millions of dollars on legal fees to create a chilling effect on workplace free speech. The UNION CARBIDEs and ENRONs of the world were dinosaurs – dinosaurs that endanger the health and wealth of all Americans.
41. Primitive corporate and government leaders fear and loathe dissent.
42. Too many organizations employ unenlightened middle managers -- unenlightened authoritarians who loathe and torture whistleblowers -- and whom some OSHA investigators reflexively favor. The path of least resistance was favored under several presidencies. Some employers dangle the offer of a job or other influence in front of OSHA investigators.
43. It is undisputed that the first OSHA investigator ever to investigate a case at the heavily contaminated Hanford, Washington government nuclear weapons plant was offered a job by the Department of Energy upon his arrival. I was there that day and heard of the corrupt offer first-hand, from Assistant Regional Administrator John R. Spear, the investigator assigned to investigate Edwin L. Bricker’s complaint under DOE Order 5483.1A (Chapter III).
44. I am proud that the John R. Spear turned down the corrupt offer from DOE Richland Operations Manager Michael Lawrence. Mr. Spear investigated interpidly for six weeks, and he ruled against two DOE contractors.
45. Still, the offer of a job to any OSHA investigator is corrupt, and this offer was made by the top official of a federal agency. The technical term for that offer is “bribery” and “obstruction of justice.” The next time it happens -- even if the offer is made by a top federal manager, OSHA must make criminal referrals to the FBI, consistent with OSHA’s longstanding December 13, 1971 policy on “Bribe Officers to OSHA Employees.”
How Common Is Bribery at DOL?
46. Many DOL officials wind up working for the industries they are supposed to regulate. Ralph Nader calls this “the deferred bribe.”
47. M. Elizabeth Culbreth, a TVA lawyer, went from mismanaging the Office of Administrative Appeals to advising Martin Marietta on a case where it placed a worker in contaminated rooms at Oak Ridge National Laboratory. But how common is actual bribery and corruption at DOL? I don’t know. We need to find out – we need to encourage DOL employees to blow the whistle and report wrongdoing.
48. Consider the case of JOSEPH RIVERA, the New Jersey State Department of Labor senior investigator who pled guilty to receiving $1,863,000 from temporary labor employer firms not to enforce the laws as written, with forfeitures in the plea agreement including “$120,400 in cash; two Ocean City, N.J., properties; a Fort Lauderdale, Fla., property; a 2008 Lexus ES 350; eight gold plates; and numerous other gold and silver coins.” The going rate for bribing RIVERA not to enforce the law was 25 cents per each hour employees worked. As Acting United States Attorney Ralph J. Marra stated, “The conduct described by two of these defendants at their plea hearings and in the criminal Complaints was driven by pure greed…. Rivera’s corrupt actions lined his own pockets, and provided temporary labor firms with an unwarranted advantage against those employers who operate lawfully.”
49. Consider the case of MARIO THOMAS SOLANO, JR., who pled guilty to bribery. OSHA’s supervisor in El Paso admitted to reducing fines if employers hired his former stepfather for “training” purposes, receiving kickbacks of nearly $30,000.
50. Consider the case of THOMAS JONES, a Wage-Hour Division compliance officer in Texas, who pled guilty to collecting money from employers for “fines,” then pocketed the “fines,” which he had assessed for overtime, backpay and child labor violations.
51. How many workers were defrauded by THOMAS JONES?
52. Consider the case of KAZIMIERZ CHMIELEWSKI, operator of Protech Construction Co. in Chicago, who bribed an OSHA inspector $2000 to “wipe away” a $35,000 fine. Was he the only employer ever to bribe an OSHA inspector? How many OSHA people wink at lawbreaking, knowing that they will be eligible to receive employment offers, which Ralph Nader long ago called “the deferred bribe.”
Culture of Desuetude, Corruption and Incompetence at DOL?
53. How many DOL employees are unable to do their jobs? I don’t know, but we need to find out.
54. Consider the case of the Government Accountability Office (GAO) investigators who contacted DOL, posing as workers, finding that DOL mishandled nine out of ten cases, including those involving willful violations of child labor and overtime laws.
A. Wage-Hour investigators gave erroneous information to GAO investigtors posing as low-income workers, while taking the flimsiest, wackiets excuses from employers for non-payment.
B. As GAO reported, “The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems. In one case, a WHD investigator lied about investigative work performed and did not investigate GAO’s fictitious complaint.”
C. GAO stated, “GAO found cases where it took over a year for WHD to respond to a complaint, cases closed based on unverified information provided by the employer, and cases dropped when the employer did not return phone calls. GAO’s overall assessment of the WHD complaint intake, conciliation, and investigation processes found an ineffective system that discourages wage theft complaints. With respect to conciliations, GAO found that WHD does not fully investigate these types of complaints or compel employers to pay. In addition, a WHD policy instructed many offices not to record unsuccessful conciliations in its database, making WHD appear better at resolving conciliations than it actually is. WHD’s investigations were frequently delayed by months or years, but once complaints were recorded in WHD’s database and assigned as a case to an investigator, they were often adequately investigated.”
D. GAO found that in Miami, “WHD did not return phone calls and failed to record our complaint in their database; WHD failed to return seven messages from our fictitious employee attempting to file a complaint. In two cases during regular business hours, calls were routed to a voicemail message stating that the office was closed. [The] Complaint was never recorded in the database.”
E. In one case, a complaint was “dropped when no one from the employer, which was a Sheriff's office, returned WHD's telephone calls.” This is desuetude.
55. Desuetude has been destroying DOL since 1981, when Ronald Wilson Reagan took office. Reagan was hired to work at General Electric by one Lemuel Boulware, whose practice of “take it or leave it” non-negotiations with labor was found to be an Unfair Labor Practice, which has been named “Boulwareism” after Reagan’s mentor.
56. Listen to the faceless DOL bureaucrats caught red-handed giving out biased advice on the telephone to undercover GAO investigators. Play the tape at the GAO website, http://www.gao.gov/media/video/gao-09-458t. How despotic and embarassing.
57. When you hear that tape, you will agree that DOL is a dysfunctional agency, whose rulers have been guilty of desuetude since Ronald Reagan was inaugurated.
58. Oddly claiming that they could not “wring blood from a stone,” claiming they had no power to right wrongs, the DOL bureaucrats on the tape are beyond belief – their actions are contrary to the genius of a free people. What does DOL propose to do about it?
59. The DOL employees on those tapes are a disgrace to our Founders and a disgrace to our country. They need to be sacked. OSHA employees who engage in the same kind of subterfuge and deception need to be sacked.
60. Their actions would make even the late Frances Perkins – after whom DOL’s office is named – want to defenestrate someone.
61. Their actions are a betrayal of the reasons why the Department of Labor was created in 1913, in the wake of the Triangle Shirtwaist Fire.
62. These “cognitive misers.” William Safire would have called them“nattering nabobs of negativism.” These employees are drawing government paychecks and not doing anything to help anyone.
63. We need to oust the hostile holdovers – the “we can’t do anything to help anyone” crowd at DOL. Never again should such mendacious miscreants darken the doorstep of the Frances Perkins Building, or any other DOL building.
64. How many workers does DOL mislead each day?
65. How many workers has DOL denied just investigations and adjudications?
DOL Desuetude Victimizes Workers A Second Time
66. Consider the case of what the Office of the Secretary of Labor, through the Office of Administrative Appeals, did to some 1000 Minnesota women at Honeywell, who waited some 22 years for the Department of Labor to decide their sex discrimination case. In 1993, the Department of Labor Inspector General (DOL OIG) reported DOL had no timeliness standards for workers’ cases and that orders were repeatedly given by several successive Secretaries of Labor under the Reagan and Bush Administrations not to present cases for decision to the Secretary in nuclear and environmental whistleblower cases or pattern and practice race and sex discrimination cases. By letter, the DOL IG agreed that DOL’s delays constitute desuetude. Not only has DOL delayed cases, but it is beyond peradventure that DOL managers sometimes intervene in particular case decisions.
67. Instead of responding to the DOL OIG report by creating more accountability, controversial Secretary of Labor Robert Reich decreased transparency and ended his own personal accountability.
68. Someone else apparently signed Robert Reich’s name to a Secretary of Labor Order delegating his responsibility to rule in whistleblower cases to members of a faceless board – the Administrative Review Board (ARB). – which Reich created without notice and comment rulemaking or federal legislation.
69. In response to E-mail inquiries, Secretary Reich has admitted to me that he did not read and was not aware that he had signed a Secretary of Labor Order creating the Administrative Review Board.
70. Apparently, a DOL political appointee used an Autopen to do the dirty deed, creating the Administrative Review Board in 1996. In this manner was an oppressive, secretive and unaccountable bureaucracy created.
71. As a result of the creation of the controversial Administrative Review Board, delays continued to plague USDOL whistleblower cases throughout the Clinton and George W. Bush Administration.
72. Under Bush, lobbyists were hired as ARB members, without FBI background checks or Senate confirmation.
73. The result has been a reduction in the strength and efficacy of whistleblower law.
74. This is all the result of DOL’s deliberate desuetude of worker rights cases since January 20, 1981. Since Reagan, worker protection laws have been subject to desuetude. Desuetude of occupational safety and health laws kills workers.
75. Desuetude of wage-hour laws defeats worker rights to safe workplaces and just wages.
76. Desuetude of laws protecting rights to join unions destroys worker rights to join democratic free trade unions.
77. Desuetude of anti-discrimination laws erases legal protections for victims of race, gender, sexual orientation and whistleblower discrimination, depriving them of equal justice.
78. Desuetude of worker protection laws promotes distrust in government and increases inequality. Don’t take my word for it. As Justice Louis Dembitz Brandeis said:
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding....Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy....
79. DOL was driven into the sewer of desuetude by anti-worker reactionaries appointed by unelected President GEORGE W. BUSH.
80. During three decades of desuetude, DOL Headquarters was more of a political patronage sink and a political headquarters than a regulatory.
81. BUSH’s unjust stewards at the Department of Labor included such notorious bad-news, anti-worker appointees included controversial anti-worker Acting Solicitor of Labor EUGENE SCALIA (who was rightly never confirmed by the U.S. Senate), Solicitor of Labor and Acting Secretary of Labor HOWARD RADZELY, and figurehead Secretary of Labor ELAINE CHAO (spouse of anti-regulatory Senator MITCH McCONNELL of Kentucky, who happens to be the law school buddy of anti-wrorker USDOL Chief Judge JOHN MICHAEL VITTONE, who has retired).
82. Under this Republican “Wrecking Crew,” the U.S. Department of Labor was busy announcing “alliances” and partnerships with regulated industries. Meanwhile, DOL was uncouth, unkind and downright angry about workers and counsel criticizing desuetude, punishing those who raise concerns about 25 years of desuetude, wrought by large organizations and their lobbyists.
83. Congress, the labor movement and worker advocates must start confronting desuetude of worker rights protection laws. DOL has gone downhill so far that it may be impossible for it to recover the strength that it had when Arthur Goldberg was Secretary of Labor, when DOL was respected and DOL lawyers went to work knowing that they would protect people’s rights (instead of defending the indefensible).
84. Evidence of desuetude can be seen by sub silentio alteration of long-estabished precedents protecting whistleblowers for trucking companies from retaliation for refusing to drive ill and fatigued; efforts to force employees to wait years for decisions where the law requires promptness; refusal to invest resources in enforcement and adjudications; appointment of opponents of worker protection laws to law enforcement; and corruption, as in the Texas case where an OSHA manager was convicted of receiving bribes through a confederate to reduce penalties on employers.
85. Desuetude of worker protection law can kill. That’s what happened when a man plunged to his death from DOL’s own roof in this building in July 1989 after eight years of Reagan-Bush desuetude. There was no fall protection. There was an All Terrain Vehicle (ATV) carrying roofing materials around on DOL’s own roof. Like the dozens of New Yorkers who ignored the screams of Kitty Genovese being stabbed, how many denizens of the Frances Perkins Building saw the illegal ATV on DOL’s roof for weeks, viewing it from cafeteria windows and as pedestrians and drivers coming and going to work each day? As my forthcoming book reports, it took hours to get an inspector on the scene of a death case at DOL’s own building, because under Reagan, all construction inspectors were transferred to Baltimore.
86. Desuetude killed when ten people died in one 2004 Texas truck wreck, the sequelae of failure to enforce the Surface Transportation Act whistleblower provision.
87. Desuetude killed when twelve West Virginia miners died in one mine disaster in January 2006, the sequelae of failure to enforce the Mine Safety and Health Act.
88. What do right-wingers tell the victims of DOL’s desuetude? Defenders of the new status quo of worker protection law desuetude say that government must be "business friendly." What a trite trope.
89. The words “business friendly” do not appear in our Declaration of Independence, our Constitution, or our Bill of Rights, or any amendments to our Constitution.
90. In fact, the Declaration of Independence announces the right of the American people to a government “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
91. Americans are unsafe when OSHA refuses to enforce whistleblower laws. Americans are unhappy when whistleblowers (and their advocates) are persecuted.
92. Anti-worker legislation has a long history in the British tradition. Our Founders rebelled against their oppressive British forebears and their long history of “business friendly legislation,” which was designed to coerce, restrain and chill worker rights. That was the purpose of the English "Statute of Laborers," which in 1349 and 1350 prohibited workers from relocating or receiving higher wages.
93. Neutering worker protection laws was a guiding purpose of the Reagan Administration.
94. DOL’s Wrecking Crew of tunnel-visioned , errant, lobbyist appointees twisted the law beyond comprehension.
95. Worker rights laws were turned into dead letters, with Department of Labor employee whistleblowers retaliated against and worker rights law enforcement left in shreds.
96. Too often OSHA investigators do a less than stellar job on the basis that someone will appeal from their decision anyway.
97. The short-signed investigators therefore deprive the parties and the Administrative Law Judge of signed, sworn statements, lengthening and complicating trials.
98. Refusal of investigators to investigate is an obstruction of justice – it is wrong.
99. The Whistleblower Investigator’s Manual is a mandatory command. It is not a suggestion.
100. We’ve seen far too many obstructions of justice in whistleblower cases, especially those involving powerful government agencies and government contractors as Respondents.
101. Too often, it seems, investigators, judges and appellate board members are pressured, directly and indirectly, to rule in favor of state and federal agencies and other employers.
102. Never again must politics be allowed to corrode the process for investigating workers’ cases before the Department of Labor.
103. DOL must protect the independence of investigators and provide rules for recusal in cases of investigator bias.
104. DOL must restore the whistleblower program to what Congress intended – a three-legged stool, with OSHA investigating, OALJ adjudicating and the Secretary of Labor hearing appeals.
105. Today, each leg of the three legged stool is broken. OSHA investigators are overwhelmed and undertrained, and some are probably even underpaid.
106. DOL judges have been under the iron heel of an imperious, unprincipled, hostile Chief Judge (JOHN MICHAEL VITTONE, who retired in February 2010).
107. Chief Judge JOHN MICHAEL VITTONE (1996-2010) did not always respect administrative-judicial independence when it came to whistleblower cases, to put it mildly. VITTONE showed antipathy and hostility to whistleblowers, uppity lawyers defending worker rights, FOIA requesters, Gays and Lesbians and Robert Kennedy, to name a few. JOHN MICHAEL VITTONE was a homophobe who hated whistleblowers, hated Gays and Lesbians and called Robert Kennedy a “c—sucker.” (I heard it with my own ears. I was deeply offended, as a Democrat, a Gay man and someone who had worked for Senator Ted Kennedy when I was in undergraduate school). VITTONE owed his appointment to a recommendation from then-Congressman Austin Murphy, who was later reprimanded for “ghost voting” and misusing Congressional funds and pled guilty to voter fraud. In the future, DOL must be cautious about accepting politicians’ recommendations for judgeships.
108. For sixteen years, from 1979-1995, Chief Judge Nahum Litt protected the integrity and independence of adjudications, advocating a national corps of administrative law judges to protect judicial independence.
109. But when when Judge Litt retired, then-Secretary of Labor Robert Reich appointed VITTONE as Chief Judge. Was this without a background check, an interview or proper affirmative action search and without considering qualified African-American, minority, women, disabled or Gay and Lesbian applicants? Never again must DOL have a Chief Judge who thinks of the administrative-judiciary as an arm of the Department of Labor, to the point of blasting me for “denigrating” the Department of Labor and complaining that I had complained about DOL desuetude. We don’t need any more bigots in top posts at the U.S. Department of Labor.
110. In particular, CHIEF JUDGE JOHN MICHAEL VITTONE abused the power of his office to pursue a personal and professional vendetta against a Gay lawyer representing whistleblowers. (That was me). Like Inspector Javert pursuing Jean Valjean in Les Miserables, CHIEF JUDGE VITTONE made it his mission to destroy.
111. Picking up the pieces from the “reign of error” of the Office of Administrative Appeals, of the Administrative Review Board and of now-retired DOL Chief Judge JOHN MICHAEL VITTONE, A few blocks from DOL’s headquarters stands a monument to the internment of Japanese-Americans in World War II – the monument bears the inscription, “Here we right a wrong.” USDOL must get busy and right wrongs.
112. How do we do it swiftly? How do we return DOL to its first principles? We most work to reverse wrongfully-decided cases that may have been based on undue influence, when lobbyists ran the Administrative Review Board and the Department of Energy had a voice in hiring its members.
113. The most expeditious way of overruling such cases may be by rulemaking, so that bad precedents are extirpated quickly. Later administrative-judicial action, by analogy to Federal Rule of Civil Procedure 60(b), can erase the effects of bad precedents on the original litigants who may have been harmed by corruption or malice.
114. The FBI and the USDOL Inspector General must be called in to investigate.
115. The Secretary must pick a new Chief Administrative Law Judge who treasures judicial independence. No longer should the DOL permit the office of Chief Judge to be disgraced by calling judges and lawyers on the carpet for seeking to protect workers. No longer should the Department of Energy be consulted in whom to appoint at DOL positions.
116. The appeals of whistleblower cases have always lacked independence. In 1986, the DOL Inspector General recommended moving the Office of Administrative Appeals out of the Solicitor’s office “for reasons of independence.” By comparison, the Interior Department made this change in its Office of Hearings and Appeals in the 1970s. The IG also found that OAA lacked a docket system and adequate case management reporting system. Id. As a result of that report, the OAA was moved under the Secretary of Labor.
117. But DOL ALJ decisions are still being reviewed by staff attorneys and political apparatchiks, not ALJs whose independence is protected.
118. The Administrative Review Board lacks independence.
119. ARB should never have been created without either notice and comment rulemaking or legislation.
120. ARB must stop reversing judges’ rulings against workers at the drop of a hat, while upholding any facetious argument for ruling against whistleblowers. ARB’s bad faith reversals must be reversed by rulemaking, or by federal legislation. That’s what Congress has had to do when the Supreme Court ruled incorrectly on civil rights cases.
121. ARB must stop construing worker protection laws and statutes of limitations narrowly.
122. ARB must stop letting cases pile up like cordwood, as Clarence Thomas did with ADA cases when he was EEOC Chair under President Reagan.
123. ARB must be more transparent.
124. ARB has behaved like a right-wing political organization, with open hostility toward workers and their zealous advocates. This is contrary to the genius of a free people.
125. ARB members’ photographs and detailed biographies are matters of public record, and should no longer be withheld, unless there are valid religious reasons relating to graven images.
126. When the CIA and FBI Directors are subject to FBI background checks, Senate confirmation and public photographs, the identity of the ARB members was treated as if it were a classified national security secret, with no photos on ARB’s webpage. Why?
127. ARB and its staff have behaved arrogantly, flippantly, and cruelly in reversing ALJ decisions for whistleblowers, pulling defeat out of the jaws of fictory. ARB staff and members must practice humility (and so must OSHA and OALJ).
128. Past ARB appointees looked down their distended nostrils at lesser mortals, focused more on inflicting Draconian page limits on appeals from lengthy ALJ decisions, mocking workers with derision while failing to function as an adjudicative body, while the ARB Chair arrogated the title of “Chief Judge.” Only Congress can create a judgeship, and it is at best unseemly for DOL to confer the title without complying with the Administrative Procedure Act.
129. ARB members must be Presidentially-appointed and Senate-confirmed, like memgers of the NLRB, EEOC, FLRA and MSPB.
130. ARB members must in the interim be clothed with the protection of 5 U.S.C. 3105 Administrative Law Judges (or the thermal equivalent), to protect them from undue influence. Under DOL’s current Order, ARB members are hired hands, employed at will, just like the hearing examiners formerly used by the United States Department of Energy for security clearance cases.
131. ARB must start holding oral arguments, just as the DOL Employee Compensation Appeal Board does.
132. ARB members need to stop cribbing employers’ briefs and start reading the record – they need to take off the rubber bands of the files they review.
133. ARB must scrap arbitrary limitations on the pages of briefs in whistleblower cases, and other Draconian rules that give the impression that ARB is work-averse and willing to do anything to uphold invidious discrimination and retaliation against whistleblowers.
134. ARB must understand that its past practices of reversing almost every decision for workers based upon spurious pretexts has rendered it lacking in credibility.
135. When ARB twice reversed decisions by a respected ALJ finding that EPA’s retaliation was “reprehensible,” ARB did more than “fix” the case in favor of retaliators at EPA – it showed the world that ARB was, in simple English, A Bright Shining Lie” as Neil Sheehan titled his book about John Paul Vann and Vietnam.
136. In fact, ARB ex nihilo manufactured a justification for EPA’s keeping criminal charges hanging over Sharyn Erickon’s head for 1179 days – three-and-a-half years – an excuse that wasn't what EPA said, and wasn't even in the record. ARB’s then-Chair, a former EPA policy adviser under Rita Lavelle, took misstatements by witnesses as justification, even when the witnesses’ testimony was contradictory (and contradicted by others). ARB’s attorney-advisors require re-training or new jobs.
137. ARB has repeatedly overruled good DOL precedents (and ignored the will of Congress in agreeing to those precedents) on sovereign immunity. This is part of ARB’s currying favor with employers at dysfunctional, organizations like the Environmental Protection Agency, the Department of Energy and their contractors.
138. When ARB held that a 30 day statute of limitations precluded any relief on behalf of a whistleblower Oak Ridge National Laboratory threatened to move into another contaminated laboratory, it showed it had no intellectual integrity. Wage-Hour ruled correctly, as did District Chief Administrative Law Judge Theodor von Brand. In its ruling in Varnadore v. Oak Ridge National Laboratory, ARB showed that it has a cruel streak – it was cruelly unfair to take years to adjudicate a case that everyone considered to be timely, and then to atomize the facts to find an untimely complaint.
139. ARB ruled that total damages for five weeks worth of a hostile working environment could not equal $100,000 – hacking it back to $20,000. ARB showed that DOL put such a low value on workers’ lives that it treated workers like slaves in the inhumane jurisdprudence of Chief Justice Roger B. Taney in the Dred Scott case.
140. I was actually stigmatized by both USDOL and the Tennessee Supreme Court for making the comparison to Dred Scott, a fact that was duly reported by the American Bar Association Journal. I spoke the truth and I got punished for it by DOL. This is a tribute to the special interest influence of the lobbyists running DOL, and to the Arrogance of Power,” as Senator J. William Fulbright titled his book about America in Vietnam.
141. Until 1998, there had never been any Bar complaints against me – I had been licensed for some eleven years. Then the Department of Energy, through attorney JAKE CHAVEZ in New Mexico, decided I must be silenced. Then Chief Judge JOHN MICHAEL VITTONE flew to Nashville for a December 7, 1998 ex parte meeting with the Tennessee Supreme Court’s Board of Professional Responsibility. Then the organizations who profit from DOL not enforcing the law weighed in as part of a six-year struggle to besmirch my reputation. Were these defenders of DOL’s desuetude willing to use false testimony and invasions of privacy to silence dissent, seeking to blacklist, disbar and jail me for speaking out for whistleblowers?
142. Under Presidents William Jefferson Clinton and George W. Bush, the new-fangled ARB quickly came to resemble the tacky, wacky Benefits Review Board under President Reagan’s ARB Chair, Robert L. Ramsay. Ramsay “tilted” so much toward employers that employer lawyers were embarrassed by it, and complained about it. Ramsay was fired by the Secretary of Labor for abusive treatment of ARB staff and waste of tax dollars, including a junket to Hawaii to hear oral arguments. Ramsay fired a union steward (John Vena) and was forced to rehire him. Ramsay said of one attorney that he would not promote a black unwed mother” to GS-13. Ramsay ordered that male employees could not wear pink shirts and banned personal family photos, children’s artwork or “photos of the latest heartthrob, male, female or indeterminant.” In short, Robert L. Ramsay was exactly the sort of sadistic bad boss that the Reagan and Bush administrations treasured at DOL, putting them in positions of power where they hurt workers.
143. Controversial former USDOL Benefits Review Board Chair and Administrative Law Judge Robert L. Ramsay played a role, unwittingly, in limiting the path that DOL could take in retaliating against whistleblowers and their counsel. Ramsay attempted to inflict monetary sanctions against whistleblower lawyers, in a case that the Secretary of Labor overruled, holding that the only power DOL had to restrain lawyers was through disbarment.
144. ARB has no legitimacy. ARB is based upon a Secretary of Labor Order that Secretary Reich does not recall seeing or signing. It is not based on notice and comment rulemaking under the Administrative Procedure Act. It is not based on legislation. It was based on the desire to curry favor with respondents facing verdicts against them when DOL OALJ was a fair forum, including at least one company that paid $100,000 for one of those expensive White House coffees.
145. ARB is based on a lack of transparency and a lack of trust of American workers.
146. ARB is based upon Clinton-era political considerations that have never been shared with the public – DOL withheld some 100 pages of documents leading up to the creation of the ARB. Those documents must be released on DOL’s website without delay.
147. ARB can now attain legitimacy ultimately only with legislation providing for an independent Board that is appointed by the President and confirmed by the Senate, to give it equal dignity with NLRB, EEOC and MSPB.
148. Secretary Solis has already shown that ARB is to be taken seriously, by appointing former EEOC Chair Paul Igaski to chair the Board.
149. Who am I to express these opinions about DOL’s sacred cows?
150. I speak from more than three decades of experience, in journalism, law and government. I won declassification of the largest mercury pollution event in the history of planet Earth as Editor of the Appalachian Observer, and was recommended for the Pulitzer Prize by the District Attorney. During 1986-1988, I clerked for Chief Administrative Law Judge Nahum Litt of the U.S. Department of Labor and was rated “Outstanding” by Judge Litt. He protected the integrity of DOL adjudications from improper pressures. I then worked for the AFL-CIO Occupational Health Legal Rights Foundation, for the Government Accountability Project and then in private practice representing whistleblowers. For years thereafter, I represented whistleblowers before Administrative Law Judges. I have written seven articles in ABA publications, including three in the Judges’ Journal. These articles helped vindicate the rights of Native Americans, law students, consumers, workers, whistleblowers and Administrative Law Judges.
151. When DOL OALJ was a fair forum, I successfully settled and tried cases against large organizations that retaliated against whistleblowers., including the Nation’s largest and second largest electric powerplant utilities.
152. My views are my own and they reflect my experience. They do not necessarily represent those of anyone else, including my past and present employers. They do reflect my experience in representing whistleblowers and being frustrated at the effects upon workers and their families – the salt of the earth. DOL rubs salt in their wounds by taking forever not to investigate cases, taking forever to hold hearings, then if the workier wins, claiming his claim was not timely under the narrowest possible reading of very short statutes of limitations. This Procrustean bed approach to whistleblower litigation is cruelly unfair to ethical employees, who would not have been obliged to become wihistleblowers but for ethical failings of their employers.
153. I have seen the best and worst of OSHA investigators (and before them, Wage-Hour investigators, who handled environmental and nuclear whistleblower cases until 1996).
154. John R. Spear, first as Assistant Regional Administrator in Seattle and then as Director of the Office of Investigative Assistance, was the best of the best. At Hanford and elsewhere, over the course of some 500 investigations, John Spear went to workers’ homes and got signed statements on the spot in his investigation of the Ed Bricker case at the Hanford, Washington Department of Energy nuclear weapons plant. He did not give in to pressures, or attempts to buy him off with an offer of a job. John Spear’s keen intellect and courage under fire make him an ideal candidate for you to bring back as a rehired annuitant and get OSHA moving again.
155. Other OSHA investigators too often were unaware of DOL and federal court precedents:
A. They seemed indifferent to the implications of the facts.
B. They lacked sophistication, interviewing workers in management offices, inviting retaliation and coaching.
C. Some investigators simply refused to visit workers in their homes, thereby exposing workers interviewed in Oak Ridge National Labroatory’s “Mahogany Row” (or other management offices) to retaliation (and to management knowing exactly how long they spent talking to an OSHA investigator).
D. Some investigators made whistleblower investigations into an absurd Paper Chase, demanding that workers (but not employers) provide copious quantities of paperwork and sometimes never meeting with them.
156. One Tennessee OSHA investigator, RAYMOND LEVITT, actually met a whistleblower for the first time at a book store coffee shop, wearing t-shirt, shorts and sneakers. LEVITT’s spouse works for a university that runs a nuclear laboratory. I requested his recusal. He refused. He was angry about it and had a chip on his shoulder about it. Thus, RAYMOND LEVITT filed multiple complaints against me because I had criticized him over possible conflicts of interest, filing Bar complaints and a complaint with an Article III federal judge – complaints that appeared well-orchestrated with Oak Ridge. RAYMOND LEVITT’sLinked-in profile that advertises his interest interested in:
* job inquiries
* expertise requests
* business deals
* reference requests
* getting back in touch
157. This not-so-subtle corruption and incompetence at OSHA must be ended at once.
158. No OSHA investigator should ever again pander to employers, or advertise on the Internet his interest in “job inquiries” and “business deals.”
159. This is an invitation to bribery, conflict of interest and corruption. It is wrong.
160. Since 1981, OSHA was, at best, an “uncertain trumpet,” failing to protect workers. Why? Because of politics and retaliation, whether the President was a Republican or a Democrat.
161. In my experience, OSHA investigators were typically outgunned and out-influenced by government and corporate oligarchs:
A. Just as the GAO found about Wage-Hour investigators, they were always too quick to believe employer pretexts.
B. Too many don’t understand the shifting burdens of proof.
C. Too many keep employer answers secret, not letting the worker read them.
D. Too many now let corporate counsel in the room during interviews of non-management employees, which is, at best, unseemly.
E. Too many accept, without criticism, the most frivolous of defenses, from the factual to the constitutional (the argument that state agencies are somehow exempt from environmental whistleblower laws based on the Eleventh Amendment, when Congress exercised its authority under Clause 5 of the Fourteenth Amendment to ban invidious discrimination against environmental whistleblowers by state governments).
162. Too often, OSHA investigators had delusions of adequacy.
163. Frankly, in East Tennessee and elsewhere the quality of the whistleblower program went downhill almost as soon as OSHA took over from Wage-Hour. Wage-Hour investigators in East Tennessee were dedicated public servants who investigated. The only OSHA investigator worked from his home and didn’t give a fig about free speech rights.
164. Was this the intended result?
165. That was apparently the result when the Knoxville Wage-Hour Director was transferred for one year to Atlanta, to work on Total Quality Management, keeping her from ruling against employers like the Tennessee Valley Authority.
166. What is the etiology of OSHA’s “tilt” toward large organizations?
167. Right-wingers looking to stir up business campaign contributions campaigned to quell OSHA from the start. Those of us working for U.S. Senators during the 1970s would often receive angry, hand-scrawled postcards from John Birch Society and KKK-style letter-writing bees, stating inter alia “Abolish OSHA. Abolish EPA. U.S. Out of the United Nations.” Even though sensible employers support OSHA and support its mission, Congress and the President listened to the demagogues like U.S. Rep. Tom Delay (R-Texas).
168. After right-wingers beat up on OSHA during the presidency of Jimmy Carter and the OSHA administration of Assistant Secretary Eula Bingham, OSHA became afraid of its shadow.
169. Successive Secretaries of Labor did not defend OSHA, resulting in poor morale.
170. Yet the right-wingers continued advancing canards that OSHA was somehow unfair to business. Republican appointees in OSHA did not defend the agency against its attackers. Instead, they egged them on in their efforts to inflict a “Philistine’s veto” over OSHA’s enforcing the law.
171. In reality, OSHA is too often ineffectual, inefficient, ineffective, illogical, mired in anti-worker attitudes of former Presidents and their Cabinets.
172. I agree with the findings of the Center for Progressive Reform about OSHA priorities, including the need to obtain public comment before settlements, which is the case at EPA. There is judicial review of antitrust settlemetns by the Antitrust Division of the Justice Department pursuant to the Tunney Act (the result of Watergate, when Nixon’s apparatchiks traded settlement of a merger case involving ITT for campaign contributions).
173. Dr. David Michaels, Ph.D., MPH, OSHA’s new Administrator, is well-prepared for the job. He wrote an excellent book about the ways that large organizations misrepresent science to avoid regulation. Dr. Michaels needs to shake the trees and protect worker rights. He needs to fire or transfer people who hate whistleblowers and refuse to investigate their cases. OSHA inspectors who took bribes must be prosecuted.
174. OSHA must end the era of sleaze and desuetude documented by historian Thomas Frank in his book, The Wrecking Crew -- How Conservatives Ruined Government, Enriched Themselves, and Beggared the Nation.
175. As House Education and Labor Committee Chair George Miller wrote in an article for the Huffington Post in September 2008, "From day one, Bush's Department of Labor has actively worked to undermine workers' rights to organize, to fair pay and decent benefits, and to safe working conditions — rights that are essential to growing and sustaining a strong middle class. U.S. Labor Secretary Elaine Chao and other high-level appointees came to their posts determined to weaken the agency.”
176. “Under Chao's leadership, the department has repeatedly torpedoed rules designed to help workers. One of her first actions was supporting the repeal of a rule that would have protected workers against repetitive motion injuries, the leading cause of workplace injuries,” Miller wrote. "Chao went on to severely weaken the department's Wage and Hour Division — which enforces overtime, minimum wage, and child labor laws. Wage theft has skyrocketed at the hands of this administration: An ongoing US Government Accountability Office investigation has uncovered repeated cases where the agency refused to go after scofflaw employers who admittedly owed their workers back wages...."
177. The Government Accountability Office (GAO) found that DOL mishandled 90% of complaints brought by undercover investigators posing as aggrieved workers. Most complaints involved wage theft — employers refusing to pay overtime or even basic wages due — but the DOL didn't respond even when GAO investigators called in a complaint about children working in a meatpacking plant during school hours!
178. Albert Camus said, “perhaps we cannot make this a world in which no children are tortured, but we can reduce the number of tortured children. And if you don’t help us do this, then who else in the world will help us do this?”
179. We would not tolerate DOL’s gross level of incompetence – a 90% error rate – at any other agency or department.
180. If the FAA mishandled 90% of the airline flights for which it provides air traffic control, there would be tens of thousands of dead bodies and FAA’s leaders would be indicted and in prison.
181. If the U.S. Army mishandled 90% of the missions it was assigned by Congress and the President, we might have lost World War II and the Cold War.
182. If the National Weather Service mishandled 90% of the forecasts it makes, there would be demands for new leadership.
183. AFL-CIO president Richard Trumka wrote: "In 2007 alone, 5,488 workers were killed on the job and an estimated 50,000 more lost their lives to occupational diseases — almost as many deaths in just one year as the entire number of Americans who lost their lives over 16 years in the Vietnam war. In that same single year of 2007, there were more than 4 million job-related injuries and illnesses..."
184. Despite the best efforts of good and decent people like John R. Spear, former head of the Office of Investigative Assistance, many OSHA investigators are coerced, restrained and deterred from doing their legal duties.
185. OSHA spends only a tiny amount of funds on investigating whistleblower cases. There are too many second-raters and not enough quality investigators. OSHA needs to recruit retired FBI agents and other first-rate law enforcement agents.
186. We can’t protect workplace free speech rights in the 21st century with “investigators”:
A. Who lack training and commitment;
B. Whom OSHA forces into working from their homes, with one phone line; and
C. Who take the course of least resistance, believing that they should rule against the employee automatically because (they have told me) whoever is unhappy with their decision will appeal anyway, so what does it matter?
187. Some OSHA regions appear to be in open rebellion against the whistleblower laws. Never again should an entire OSHA region – like the Dallas region – sua sponte exempt itself from OSHA whistleblower training requirements because it is run by right-wing Republican satraps who disapprove of the whistleblower laws and want to preserve the status quo.
188. OSHA must heed the views of the American people, who are tired of a government “frozen in the ice of its own indifference,” in the words of Franklin Roosevelt (quoting Dante). As one commenter stated:
OSHA needs to do a better job of communicating with the public. I've never seen an agency so slow in moving. It takes forever to track down the correct office and person. Other agencies have their employee information publically viewable, why not yours? Also, why is there only generic numbers that go directly to voicema[i]l boxes? I think OSHA has forgotten who they are here to help.
189. As Dr. Donna Vincene Puleio, M.D., the surviving sister of a dead worker writes, her:
brother Gary Puleio was killed due to unsafe working conditions and I personally experienced the inadequacies of the regulatory system designed to protect workers and saw first hand the lack of accountability of corporations and the unbalanced scales of justice. Gary Puleio (inspection # 303706683) was killed on the job … in Meadville, PA on August 15, 2001. He had been employed there only 3 months as a non-union cement truck driver and fell 25 feet to his death, from a cement tower, while shoveling gravel off the hopper to clean it. The company claimed Gary just ‘wandered up there on his own”, without wearing any safety equipment, at the end of his driving shift rather than being assigned this dangerous task because he was the “new man.”
OSHA accepted this implausible story and after admitting no wrongdoing, the company paid a $6000 fine for REPEAT violations for not posting danger signs t
at a confined space and not implementing measures to prevent unauthorized entry.
This company had multiple serious violations issued only months before Gary was
killed which were informally settled with reduced fines.
Full access to Gary’s case records under the Freedom of Information Act (FOIA) was denied. ... The appeal to obtain full access and to review the “substantive” issues of the case was stalled for months. Finally, no further action could be taken anyway as OSHA requires that any citations or penalties must be issued within 6 months of an “alleged violation” as the neglectful killing of worker is called.
Corporations routinely negotiate with OSHA to have fines reduced and violations downgraded through a process called abatement while workers have no such access. As a stakeholder, I implore you to review this material and work to balance the scales of justice which are now so heavily tipped toward corporations. Family members must have more access to OSHA records, more input in OSHA investigation of injuries and deaths and more information about workplace laws and rights.
190. The New York Times and Las Vegas Sun have both won Pulitzer Prizes for documenting federal and state OSHA offices’ desuetude in worker death cases. There haven’t been so many Pulitzer Prizes on the same subject since Watergate. DOL’s desuetude is a national scandal and a national disgrace. To this day, our country is still “struggl[ing]” through DOL’s “disgraceful imbecility and disloyalty to the Constitution.”
191. DOL officials who refuse to enforce the law are in open rebellion against our Constitution. They are no better than secessionists and segregationists. This is not civil disobedience – this is treason to our laws and institutions that exist to protect workers and our environment and public health and safety.
192. A government official who refuses to protect workers is a disgrace to her office, and a traitor to our Constitution and Bill of Rights. The Constitution requires that government employees pledge to defend the Constitution “against all enemies, foreign and domestic.” That includes EPA and DOE when they violate worker rights.
193. The Puleio family’s pain is our Nation’s pain, for too many workers’ lives are lost in preventable deaths, too many workers are killed and maimed, and too many workers’ rights are snuffed out by administrators who “know not that they know not that they know not.”
A TWELVE-STEP PROGRAM FOR THE DEPARTMENT OF LABOR
“What kind of place is this?
Where you almost mean what you say?
Where your laws almost work?
How can you live like that?”
-- The African Cinque, in Steven Spielberg’s film, Amistad
194. Under the Obama-Solis administration at USDOL, I propose, from this day forward, a 12-step program:
A. Whistleblowers must be handed a bill of rights and welcomed to DOL. Instead, workers are too often treated coldly. Instead of a phone call, the first contact workers usually have with OSHA is a dull form letter with enclosed statutes and regulations. Instead of being treated as heroes, whistleblowers and their lawyers are too often treated as bothersome pests by investigators. Some “investigators” might as well have a bumper sticker on their foreheads, stating “I’d rather be sailing.” Such “investigators” need to pursue other careers.
B. Whistleblowers have a constitutional right to fair and indepencdent investigations and adjudications and appeals. The Office of Administrative Appeals 1994 Mission statement is a binding contract with American workers, which DOL has repeatedly breached. The DOL Office of Administrative Appeals (OAA) 1994 Mission Statement said in relevant part:
Workers who have confidence that unsafe or unhealthy working conditions or discriminatory practices can be brought to the attention of authorities without fear of retaliation are workers who can see themselves as important links with management rather than mere units of production.
Conversely, it is important for management as well as workers to know that they are entitled to a fair hearing before the Secretary or his designated representative and that sound, unbiased decisions can be expected.
Nothing less will do. Failure is not an option. The whole world is watching. OSHA must change or have whistleblower jurisdiction taken away from it. The Secretary of Labor must promise that no longer will Regional Administrators, Chief Judges and their associates, appellate board members or other political appointees must be directed never again to interfere with investigations, placing their thumbs on the scale of justice. Whistleblowers have a right to an actual investigation. Whistleblowers must not be subject any longer to delays, insults, arguments or excuses. No longer must investigators refuse to investigate based upon warped perceptions of the law, or based on refusal and neglect of duty (for example, refusing to investigate retaliation complaint after initial complaints are filed). Directing a whistleblower to give her “bottom line” on settlement as a condition of opening an investigation is illegal and immoral – it is a tort, a crime and a sin. It must stop.
C. Whistleblowers have a right to expect decisional independence, not case-fixing. Too often in American administrative law, the pull of influence results in unjust decisions. Under several successive Administrations since 1981, worker rights protections were a dead letter, marked “return to sender.” The Department of Labor was bossed and controlled by the likes of Raymond Donovan, Elaine Chao, Eugene Scalia and Howard Radzely, union-busting attorneys with no sympathy for worker rights. No longer must ideology and political considerations corrupt the process of OSHA investigations.
D. Workers have a right to expect uniform high-quality investigations and adjudications. The OSHA Investigator’s Manual must be obeyed. DOL must follow its own rules. Desuetude and refusal to obey the Investigator’s Manual must result in remands by Administrative Law Judges for proper investigations, as at least twelve ALJ decisions have done. Workers have a right to expect uniform high-quality investigations that are dedicated to finding the truth, rather than polishing apples (or reputations). Don’t duck the issues. The direction to “Resolve discrepancies” (Section 3H in the Enforcement Manual) is a mandatory command to investigators. “Resolve discrepancies” does not mean taking the employer’s word for it, or believing whatever the employer’s hired guns say because they have carpeting to the metatarsal, 80 pound bond paper and hundreds of lawyers (or because investigators believe it is the course of least resistance).
E. Quality control must be assured by having OSHA whistleblower investigations directed from Washington, D.C. Regional “variations” in the way that complaints are handled are unacceptable. West coast whistleblower investigations have generally been handled fairly, under both Wage-Hour and OSHA. In the parts of the country where slavery was once legal, OSHA has the worst whistleblower investigations. The Dallas and Atlanta offices of DOL badly need reforming (and adult supervision from Wsahington, D.C.). They are like the old equity maxim about how some courts decide cases based upon “the size of the Chancellor’s foot.” In those parts of the country where employers formerly owned their employees under chattel slavery, under successive Administrations, political appointees have combined with flummery and dupery to deprive workers of just adjudications. The investigative finding in a DOL whistleblower investigation must not depend upon the worker’s place of residence. Southerners have the same right to fair investigations as Northerners. Since they are so often wrong, the Atlanta and Dallas OSHA whistleblower investigators and managers must be transferred to other duties, and new investigators must be hired in their place – investigators who believe Congress meant what it said and said what it meant.
F. Whistleblower files must never be lost again. In several whistleblower cases, files have been lost by DOL. It has happened repeatedly. This is a violation of federal law, 44 U.S.C. 3106, which prohibits loss or theft of government records. It is also disturbing, because it appears that under the Republicans, ARB ruled against workers, claiming to have read the record, when it did not have the complete record. Those responsible for losing whistleblower files must be investigated by the DOL Inspector General. Intentional acts of losing files must be prosecuted.
G. Investigators, judges and appellate board members and staffs all need legal, sensitivity and ethics training. There are some investigators who almost always believe the employer’s pretexts without understanding the shifting burdens of proof. Never again should the investigator’s finding should be a reflexive one, always finding for employers, particularly powerful ones, because it is easier or better for their careers. Nor should the investigator’s finding be a reflection upon the investigator’s backward-bending labor supply curve (laziness). Investigators’ morale must be a priority. Nor should the ARB reverse based upon the identity of the parties.
H. Workers have a right to expect command influence-free decisionmaking. With judicial independence enforced, no longer shall special influence determine who may prevail before Administrative Law Judges or the Administrative Review Board. At last the ARB must be subject of transparency, notice and comment rulemaking and legislation, rather than having Secretaries of Labor hire Republicans who don’t care.
I. Workers have a right to expect DOL to seek stronger, more uniform legislation, covering all workers, with a uniform statute of limitations of one year. That’s what the American Bar Association House of Delegates recommended in February 1990, twenty years ago (Exhibit A). It has been more than twenty years, but DOL has never gone to bat for stronger legislation, since Eugene Fidell found that there was a crazy “patchwork quilt” of legislation, more law than loophole.
J. Workers have a right to expect high standards of probity by government investigators and adjudicators and coverage for all public and private sector whistleblowers, as the American Bar Association House of Delegates recommended in its resolution. Biased investigators and adjudicators must recuse themselves or be recused. The standard of care is set by the Investigations Manual, which some investigators have shown signs of not understanding. With a recusal rule, no longer will investigators feel empowered to threaten complainants and their counsel, or file Bar and judicial complaints against them for doing their jobs and engaging in First Amendment protected activity.
K. Workers have a right to have all DOL case law posted on DOL’s website. Under the past Administration, precedents favorable to workers were either not posted or were withdrawn from the website. The DOL Whistleblower Digest became a monthly diatribe, in which the Chief Judge’s acolytes took decisions out of context in order to chill, coerce and restrain zealous advocacy. That was wrong.
L. Workers have a right to the counsel of their choice, without anyone in government or business exercise of a “Philistine’s veto” by investigators and ALJs who file phony complaints to chill zealous advocacy. No longer must DOL administrators seek to persecute any lawyer for zealous advocacy of whistleblowers. There appears to have been a conspiracy to violate whistleblower civil rights at the highest levels of the Department of Labor under President George W. Bush. On February 12, 2002, Judge VITTONE admitted to deliberately discussing his “confidential” Tennessee BPR complaint with Deputy Solicitor HOWARD RADZELY and Deputy Secretary D. CAMERON FINDLAY et al. Currying favor with Republican appointees, VITTONE begrimed his judicial ermine with a partisan attack upon me for representing whistleblowers. The chilling effect upon whistleblowers and lawyers of what Chief Judge JOHN MICHAEL VITTONE and his henchmen did to me (and to my clients) coerces, restrains and chills free speech rights of whistleblowers to this day. In the immortal words of Nathan Hale, “My only regret is that I have but one life to give for my country.”
195. As a rejection of the status quo since January 20, 1981, the New New OSHA might wish to adopt the Latin motto, “Fiat justitia” (“Let there be justice) as its own, following the examples of the Rembrandt Peale portrait of Chief Justice John Marshall at the U.S. Supreme Court Building, the University of California Hastings School of Law, Massachusetts Bar Association, and the British Royal Air Force Police.
196. In the words of the great equitable maxim, “Let justice be done though the heavens fall.” (Fiat justitia ruat caelum).
197. I was invited, then disinvited, to speak today.
198. An OSHA staffer wrote an E-mail emitting a pitiful excuse and twice hung up the telephone on me. Her supervisors never returned my calls.
199. Time constraints were obviously no excuse for inviting and then uninviting me – the session was scheduled to go to 6:30 PM but ended at 5:30 PM, with participants given five minutes each.
200. The documents I requested to assist in writing this testimony have not yet been provided. An unfriendly letter from the DOL Solicitor’s Chief FOIA person, Mr. Joseph Plick, wants to charge me money to help answer your questions.
201. Such bad attitudes by Bush-era holdovers have marred your attempt for OSHA to listen. So does “OSHA Listen?” You tell me. At the very least it appears that, as JFK said during the Cuban Missile Crisis, “there’s always some poor SOB who doesn’t get the word.”
202. President George Washington wrote the Continental Congress, “Is anybody there? Does anybody care? Does anybody see what I see?”
203. As Lincoln said, we need to begin anew, think anew and act anew.
204. The Department of Labor has some 500 attorneys, the third largest legal department in our federal government, after the Justice and Homeland Security Departments. What do all of those lawyers do every day? They file briefs to defend bizarre decisions of the Admnistrative Review Board, eviscerating worker rights. They don’t do very much about protecting workers, it would appear.
205. The Solicitor’s office is the heart of the problem regarding OSHA. It lacks zealousness and initiative. It fails to give timely legal advice to whistleblower investigators. Its attorneys are too often craven, uninspired and unmotivated. In fact, When Eugene Scalia was Acting Solicitor, he told an ABA meeting in Washington, D.C. that he was amazed that the Solicitor had never sought a Temporary Restraining Order (TRO) to reinstate a wrongfully-fired worker — Scalia was the first to use this basic tool of civil procedure to help workers. Too many Solicitor’s office attorneys are clock-watching standpatters, unadorned by creativity or compassion. They’re too busy fighting Black Lung clams and denying FOIA and Privacy Act requests to remember why they’re there – the new Solicitor must get rid of the dead wood.
206. True to the standards of my first boss, Senator Edward M. Kennedy, remember his words at the 1980 Democratic National Convention:
may it be said of us, both in dark passages and in bright days, in the words of Tennyson that my brothers quoted and loved, and that have special meaning for me now:
"I am a part of all that I have met
To [Tho] much is taken, much abides
That which we are, we are --
One equal temper of heroic hearts
Strong in will
To strive, to seek, to find, and not to yield."
.... For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.
CONCLUSION
It is up to us to renew the Department of Labor, and (in Lincoln’s words) to “disenthrall ourselves.” This is our government, and we will be heard, just as we were in 2006 and 2008.
DOL must start working for workers again, and stop the flummery and dupery and chicanery and lying and coverups seen during the George W. Bush and prior presidencies. Thankfully, in Secretary Solis’ words, “there’s a new Sheriff in town.” Let us dedicate ourselves to that and, in the words of Robert F. Kennedy (quoting the Greeks), “to tame the savageness of man and to make gentle the life of the world.”
Respectfully submitted,
ED SLAVIN
http://desuetudehurtspeople.blogspot.com/
P.O. Box 3084
St. Augustine, Florida 32085-3084
904-829-3877
215-554-1187 (cellular)
EASlavin@aol.com
This testimony is dedicated to my parents, who spoke up for the rights of workers and taught me to stand up for the truth.
ED SLAVIN
· Attorney for DOE and contractor employees in several states disbarred (after six-year campaign by U.S. Department of Energy and U.S. Department of Labor) and eligible for reinstatement in 2010. Currently CIO for a company based in St. Augustine, Florida. My views are my own, and do not necessarily reflect those of anyone else, including present or former employers.
· Testified before Congressional committees on worker rights.
· Counsel for the Plaintiff in Farver v. Carpenter, a medical malpractice case where an Anderson County jury awarded $600,000 against DOE’s consultant psychiatrist for misdiagnosing a worker environmental activist as “paranoid, delusional and psychotic, with loss of her job and security clearance.
· Public critic of Oak Ridge, Tennessee waste disposal practices since 1981.
· Pioneered use of whistleblower laws to protect nuclear weapons worker rights.
· Published seven (7) articles on civil rights matters in American Bar Association publications, including two in the ABA Judges’ Journal.
· Legal Counsel for Constitutional Rights, Government Accountability Project (GAP), 1989-93
· Law Clerk, Chief Administrative Law Judge Nahum Litt, Department of Labor, 1986-1988
· Editor, Appalachian Observer, 1981-1983, recommended for Pulitzer Prize by DA for exposing Oak Ridge mercury losses (largest in world history).
· Staffer for United States Senators Edward M. Kennedy, Gary W. Hart and Jim Sasser, 1974-1977.
· Listed in Who’s Who in American Law, Millennium Edition.
· Author, Jimmy Carter (Chelsea House Publishers 1989)
· Early adjunct faculty member of the District of Columbia School of Law clinical program in conjunction with the Government Accountability Project’s legal clinic.
· Attorney for plaintiff in Rinde v. Woodward & Lothrop, historic 1989-90 District of Columbia Gay and Lesbian rights case involving equal discount benefits at department stores, with settlement vindicating rights of Woodward & Lothrop and John Wanamaker employees in Washington, D.C., Baltimore and Philadelphia metropolitan areas. Wrote first article on Gay marriage for an American Bar Association publication (1991).
· B.S., Foreign Service, Georgetown University
· J.D., Memphis State University School of Law (now University of Memphis).
(End notes available upon request)
Wednesday, June 02, 2010
DOL MUST HALT DESUETUDE, ENFORCE WHISTLEBLOWER LAWS -- STATEMENT OF ED SLAVIN TO "OSHA LISTENS"
DRAFT Copyright © 2010 by Ed Slavin
DOL MUST HALT DESUETUDE, ENFORCE WHISTLEBLOWER LAWS:
STATEMENT OF ED SLAVIN to “OSHA LISTENS”
March 4, 2010
“As scare as truth is, the supply seems greater than the demand.”
– Adlai E. Stevenson
Dear Secretary Solis, Dr. Michaels, Ms. Berkowitz, Ms. Dougherty and Mr. Fairfax:
In 1776, in Philadelphia, our American Founders dedicated their “lives, [their] fortunes and [their] sacred honor” to saving Americans from oppression by defeating tyrants. Making world history, our Declaration of Independence embraced the right to free speech, the right to alter or abolish dysfunctional governments, and the right of the people to institute “new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
In 1970, President Richard Nixon signed the Occupational Safety and Health Act (OSH Act) to protect worker safety and free speech rights, including OSH Act Section 11(c). Other whistleblower laws protect employee whistleblowers on a patchwork but wide variety of subjects. Those laws are necessary and proper to “effect [our] Safety and Happiness,” in our Founder’s words. Some 40 years later, workplace safety and free speech laws are not being enforced adequately. This is the direct and proximate result of Presidential appointees since 1981 who have been in open rebellion against laws protecting people against large organizations. DOL’s Watergate-style scandal involves obstruction of justice on a mass scale, in what scholars call a “mass justice” organization, where investigations and adjudications have suffered for years.
I was proud to clerk for the Chief Administrative Law Judge of the U.S. Department of Labor (Nahum Litt) and then to represent American whistleblowers (ethical resisters) for years. My parents were union organizers. Both Judge Litt and my parents taught me that it is “better to light a candle than curse the darkness.” I will outline the problems and propose solutions.
DOL MUST ENFORCE WORKER PROTECTION LAWS WITHOUT FEAR OR FAVOR
1. DOL has been an “uncertain trumpet” on worker protection and workplace free speech. Some 6000 workers are still killed in American workplaces every year, with more than 50,000 dying horrible painful deaths due to occupational diseases. “This must stop,” Assistant Secretary Michaels said this morning. OSHA must do a better job of protecting workers, he said. In addition, too many employees lose their jobs, careers and homes simply for speaking the truth. “This must stop,” too. It is undisputed that in America, too many workplaces are tyrannies. They are typified by the Tennessee Department of Environmental Conservation air pollution regulatory manager who in the 1990s told his subordinate supervisor that the State of Tennessee owned his mind for 7 1/2hours a day, and that if he told him to jump off a roof, he must “jump off a roof.”
2. With a new Commander in Chief, OSHA is finally turning over a new leaf. I salute you. As Secretary of Labor Hilda Solis has said, “There's a new sheriff in town....OSHA is back in the business of enforcement." DOL must protect workplace free speech. DOL must support strong new federal legislation along the lines of the February 1991 ABA House of Delegates Resolution (Exhibit A), with a one year statute of limitations and “coverage to protect all workers who disclose worker or public health and safety threats, or violation of federal statutes or regulations, or who refuse to commit a federal crime.” More than nineteen years later, it is time for Congress to follow the ABA’s advice.
3. Likewise, the New Jersey Conscientious Employee Protection Act (CEPA) is regarded as the strongest whistleblower law in the nation. Supreme Court Chief Justice Louis Dembitz Brandeis said that the states are the “laboratories of democracy.” Thus, New Jersey’s CEPA must be considered as a model (along with the ABA resolution) for the scope of comprehensive federal whistleblower legislation to be enacted in the Second Session of the 111th Congress.
4. As President William Jefferson Clinton said it best, “a right without a remedy is simply a suggestion.” There might be a right, but there is no remedy because environmental, nuclear, trucking and financial whistleblower laws are not being faithfully enforced by DOL. This results in disease and death for workers, citizens, drivers and passengers. I agree with the banner over your tables at today’s “OSHA Listens” session: “No one should have to be injured or killed for a paycheck.” Neither should anyone lose their job or livelihood for speaking about safety and health concerns or lawbreaking. I agree with Jason Zuckerman’s statement this afternoon that the goal of the banner cannot be achieved without protecting worker rights to “blow the whistle.” As Jason Zuckerman pointed out, OSHA allows employers to file secret answers to complaints, without allowing the worker or his lawyer to read them.
5. Why aren’t the anti-retaliation laws being enforced to protect workplace free speech rights? Demagogues, who are anything but true “conservatives,” want to oppress employees and preserve a climate of fear and repression in the workplace – like slavery of the mind. They want every workplace to honor the mafia oath of “omerta” (silence). Such authoritarians would prefer that deep dark secrets of corporations and governments be kept inviolate. From the Dalkon Shield to ENRON to WORLDCOM, secrecy and retaliation have put corporations in bankruptcy court and robbed pensions from workers.
6. I agree with the families of dead workers whose cases OSHA did not adequately vindicate – OSHA is not doing enough. OSHA must be reformed from stem to stern.
7. A University of Chicago study found that whistleblowers were society’s best tool to fight fraud, also finding 82% of workers who raised concerns lost their jobs. Our society has an epidemic of retaliation and DOL has fostered and encouraged it by its action, resulting in thousands of deaths and billions of dollars of waste due to financial fraud.
8. This afternoon’s “OSHA Listens” speaker, Tom Broderick of the Construction Safety Council, rightly said that “our economy has been plundered by an unscrupulous few.”
9. That plundering was made possible by decisionmakers at DOL Headquarters, who are not adequately enforcing the Sarbanes-Oxley Act whistleblower provision – as the Wall Street Journal reported, the Department of Labor ruled for financial fraud whistleblowers only 17 times out of 1273 complaints from 2002-2008. That is less than one out of 75. That is a rate that suggests that the odds against an ethical employee winning a Sarbanes-Oxley case far more difficult than winning other employment discrimination cases, or medical malpractice cases. The lame excuse given for ruling against many of these employees is that they worked for corporate subsidiaries owned by publicly traded companies, rather than directly for publicly-traded companies. As the Wall Street Journal reported:
Sharon Worthy, a Labor Department spokeswoman, said the agency "believes that there is no legal basis for the argument that subsidiaries of covered corporations are automatically covered" under the Sarbanes-Oxley whistleblower provision. "The plain language of the statute only applies to publicly traded corporations," she said in a statement.
Thankfully, that solopsistic spokesman left DOL when George W. Bush left town. Ms. Worthy’s jejune, unworthy comments were emitted by yet another Republican apparatchik – one without a law degree – and without any understanding of what our Founders intended, or of what happens when the Constitutional oath to see that the laws are faithfully executed is breached.
10. President George W. Bush only signed Sarbanes-Oxley under political pressure after his friend, Ken Lay, bankrupted ENRON with financial flummery and dupery. Then Bush’s appointees in the Department of Labor proceeded not to enforce the Sarbanes-Oxley whistleblower provision, based upon misinterpretation of statutory language.
11. If workers who are retaliated against for raising protected concerns are not protected by other whistleblower laws and their concerns are protected by OSHA, they are forced to file retaliation complaints with OSHA (Section 11(c), OSHA too often does little or nothing in response. This is because workers don’t have any “individual right of action” for retaliation based on safety issues unconnected with environmental regulations. Congress must act to end this disparity to provide for an individual right of action pursuant to OSH Act Section 11(c).
12. DOL has been guilty of deliberate desuetude of enforcement of anti-retaliation laws:
DESUETUDE --
“Disuse, cessation, or discontinuance of use -- especially in the phrase, to fall into desuetude. Applied to obsolete statutes.”
Black’s Law Dictionary
“The state of being no longer used or practiced.”
Random House College Dictionary
13. When I spoke the truth that other attorneys feared to speak – when I wrote that the Department of Labor was guilty of desuetude – former DOL Chief Judge John Vittone said no other lawyer had said that about the Department of Labor and said that I had “denigrated” his employer, DOL. So much for judicial independence. DOL’s then-Chief Judge Vittone and his staff worked for years to have my law license suspended, then disbarred – former DOL Chief Judge Nahum Litt said I was “persecuted” by Vittone. They succeeded at that, and in revealing their “actual malice and willful disregard of the truth” – but DOL is guilty of desuetude. That is the truth and that’s why we’re here today.
14. The simple palpitating fact of the matter, not today denied by anyone, is that there has been a long, downhill slouch toward desuetude in DOL.
15. Supreme Court Justice Louis Brandeis would have called it a “race to the bottom.” The truth is that DOL was eviscerated under Presidents Reagan and Bush. It did not recover under President Clinton. It got far worse under unelected President Geroge W. Bush.
16. As stated this afternoon by Norman Pflanz, Nebraska Appleseed Center for Law, many food industry workers are still defecating and urinating in their pants because employers won’t let them have bathroom breaks. That was the case in the 1980s, under President George Herbert Walker Bush. That is the case now, after eight years of President George Walker Bush. Our Department of Labor is simply not doing its job. In the words of one of my Oak Ridge, Tennessee nuclear whistleblower clients, “we’ve got nowhere to go but up.”
17. As we approach DOL’s one hundredth birthday in 2013, the patient is on life support. Do we abolish DOL? Are DOL’s managers amotivated and amoral and beyond redemption? Do we need to fire everyone at 200 Constitution Avenue and start over? Or can DOL make meaningful changes to justify its continuing existence, avoiding sunset? This is not the first time this question has been asked. Again and again for 40 years we have heard of “Reinventing OSHA” and the “New OSHA.” Such PR rhetoric reminds me of the “New Nixon,” of which the American people have likewise lost count.
18. The Lawyer’s Committee for Civil Rights Under Law reported in 1993 that DOL “made a mockery” of the DOL Office of Federal Contracts Compliance Programs (OFCCP) during twelve years marked by “a climate of official hostility” to civil rights.
19. USA Today found DOL greatly reduces child labor law fines, even after deaths occur: a DOL manager told one family that a higher fine would not bring back their son.
20. The New York Times found OSHA fails to faithfully enforce laws protecting worker safety, even when deaths occured, rightly winning a Pulitzer Prize. The problems continued under the Bush Administration.
21. Desuetude must end. DOL must from this day forward move decisively to preserve, protect and defend the free speech rights of ethical employees everywhere (and their advocates), without fear or favor.
22. Whistleblower and other labor laws are designed to protect “First Amendment values.” As Attorney General Robert Kennedy said, “If our Constitution had followed the style of Saint Paul, it would have said, ‘But the greatest of these is speech.’ In the darkness of tyranny, this is the key to the sunlight. If it is granted, all doors open. If it is withheld, none.”
23. For OSHA to work zealously to protect whistleblower workers represents a sea change. Attitudes and personnel must change.
24. DOL in the best of times is irresolute in protecting environmental whistleblowers – just as our government is on all environmental issues. Nobel Prize winner Albert Gore, Jr. has compared Americans to a dysfunctional family in dealing with environmental issues, quoting Sir Winston Spencer Churchill, who said:
The Government simply cannot make up their minds, or they cannot get the Prime Minister to make up his mind. So they go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent.... The era of procrastination, of half-measures, of soothing and baffling expedients, of delays, is coming to its close. In its place we are entering a period of consequences.
25. The “inconvenient truths” that workers reveal causes dysfunctional organization to “reach out and crush someone,” destroying careers and lives to suppress the truth. The lengths to which large organizations will go are limited only by “human creativity,” as one California nuclear powerplant utility whistleblower investigator candidly wrote. That “creativity” includes spending millions of dollars – paid by all of us as taxpayers, ratepayers and stockholders -- to fight to uphold wrongful firings. That “creativity” even embraces retaliatory referrals to psychatrists, just as in the former Soviet Union.
26. The prevailing attitude in our government since 1981 has been to loathe whistleblowers and refuse to enforce laws protecting them. Only one criminal prosecution has ever been brought against an employer retaliating against a whistleblower.
27. The crime of obstruction of justice and perjury is committed too often by organizations that seek to avoid scrutiny and accountability.
28. Deliberate nonenforcement of civil and criminal laws to vindicate the rights of ethical employee whistleblowers is desuetude. It is also obstruction of justice. It is also a crime. It is wrong. Desuetude has been the de facto policy of the Department of Labor and the Department of Justice since 1981, when the “Reagan revolution” ripped regulations and sought to destroy organized labor, firing striking air traffic controllers and appointing anti-worker appointees throughout our government, from DOL to OSHRC to MSPB to NLRB to FMSHRC.
29. That desuetude includes orders from successive Secretaries of Labor not to present draft decisions to the Secretary in environmental and nuclear whistleblower cases and pattern and practice race and gender discrimination cases, with years and even decades of delay. By definition, this is case-fixing.
30. Desuetude is a violation of workers’ constitutional and civil rights. As U.S. Representative David Perley Lowe (R-Kansas) said regarding Florida and other Southern states’ civil rights violations that led to adoption of these laws in the 1871 Civil Rights Act (Ku Klux Klan Act):
While murder is stalking abroad in disguise, while whippings and lynchings and banishments have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night [which] hides them, conspiracies, wicked as the worst felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress."
31. Whistleblowers (and their counsel) are the object of unmitigated hatred by some employers and government officials, including former DOL Chief Judge John Michael Vittone.
32. As Robert Kennedy said after Dr. King was murdered: “Aeschylus wrote: In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our despair, against our will, comes wisdom through the awful grace of God. What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or they be black.”
33. New York police corruption whistleblower Frank Serpico prefers the word “lamplighters” to the more pejorative-sounding whistleblowers. In the words of Justice Louis Dembitz Brandeis, “sunlight is the best of disinfectants and electric light the most efficient policeman.”
34. Too often in the past:
A. OSHA and the Department of Labor have avoided scrutiny and transparency.
B. OSHA and DOL have aligned themselves with the powerful and refused to protect ethical employees, sometimes also called “ethical resisters” who seek to protect our country and our people from harms.
C. OSHA whistleblower investigators have been a doormat for employers that retaliate and discriminate and expose their workers to horrible painful disease and death.
35. At America’s nuclear weapons plants, OSHA inspectors were turned away for decades from the “dark satanic mills” that were operated for our own government for the purpose of manufacturing Weapons of Mass Destruction (WMDs).
36. In making more than 70,000 nuclear weapons, some 600,000 workers were exposed to some 19,000 toxic materials. There was a massive coverup, which I first exposed starting in 1981, as editor of the Appalachian Observer, which won declassification of the largest mercury pollution event in world history (Oak Ridge, Tennessee, where Union Carbide dumped 4.2 million pounds of mercury in workers’ lungs and brains and into creeks and groundwater). Many workers died horrible painful (and preventable) deaths at nuclear bomb factories.
37. Do DOL and OSHA have blood on their hands, as well as DOE? I reckon some people would say that DOL and OSHA were accomplices to DOE’s corporate homicide. What do you think?
38. Why was no one ever prosecuted for poisoning workers in Oak Ridge, Tennessee?
39. Why was no one ever prosecuted for poisoning workers and residents at eleven nuclear weapons plants? Our government pressured the Rocky Flats Grand Jury to try to suppress the truth, treating environmental crimes as if they were excusable.
40. It is not a classified secret that some large organizations are willing to spend millions of dollars on legal fees to create a chilling effect on workplace free speech. The UNION CARBIDEs and ENRONs of the world were dinosaurs – dinosaurs that endanger the health and wealth of all Americans.
41. Primitive corporate and government leaders fear and loathe dissent.
42. Too many organizations employ unenlightened middle managers -- unenlightened authoritarians who loathe and torture whistleblowers -- and whom some OSHA investigators reflexively favor. The path of least resistance was favored under several presidencies. Some employers dangle the offer of a job or other influence in front of OSHA investigators.
43. It is undisputed that the first OSHA investigator ever to investigate a case at the heavily contaminated Hanford, Washington government nuclear weapons plant was offered a job by the Department of Energy upon his arrival. I was there that day and heard of the corrupt offer first-hand, from Assistant Regional Administrator John R. Spear, the investigator assigned to investigate Edwin L. Bricker’s complaint under DOE Order 5483.1A (Chapter III).
44. I am proud that the John R. Spear turned down the corrupt offer from DOE Richland Operations Manager Michael Lawrence. Mr. Spear investigated interpidly for six weeks, and he ruled against two DOE contractors.
45. Still, the offer of a job to any OSHA investigator is corrupt, and this offer was made by the top official of a federal agency. The technical term for that offer is “bribery” and “obstruction of justice.” The next time it happens -- even if the offer is made by a top federal manager, OSHA must make criminal referrals to the FBI, consistent with OSHA’s longstanding December 13, 1971 policy on “Bribe Officers to OSHA Employees.”
How Common Is Bribery at DOL?
46. Many DOL officials wind up working for the industries they are supposed to regulate. Ralph Nader calls this “the deferred bribe.”
47. M. Elizabeth Culbreth, a TVA lawyer, went from mismanaging the Office of Administrative Appeals to advising Martin Marietta on a case where it placed a worker in contaminated rooms at Oak Ridge National Laboratory. But how common is actual bribery and corruption at DOL? I don’t know. We need to find out – we need to encourage DOL employees to blow the whistle and report wrongdoing.
48. Consider the case of JOSEPH RIVERA, the New Jersey State Department of Labor senior investigator who pled guilty to receiving $1,863,000 from temporary labor employer firms not to enforce the laws as written, with forfeitures in the plea agreement including “$120,400 in cash; two Ocean City, N.J., properties; a Fort Lauderdale, Fla., property; a 2008 Lexus ES 350; eight gold plates; and numerous other gold and silver coins.” The going rate for bribing RIVERA not to enforce the law was 25 cents per each hour employees worked. As Acting United States Attorney Ralph J. Marra stated, “The conduct described by two of these defendants at their plea hearings and in the criminal Complaints was driven by pure greed…. Rivera’s corrupt actions lined his own pockets, and provided temporary labor firms with an unwarranted advantage against those employers who operate lawfully.”
49. Consider the case of MARIO THOMAS SOLANO, JR., who pled guilty to bribery. OSHA’s supervisor in El Paso admitted to reducing fines if employers hired his former stepfather for “training” purposes, receiving kickbacks of nearly $30,000.
50. Consider the case of THOMAS JONES, a Wage-Hour Division compliance officer in Texas, who pled guilty to collecting money from employers for “fines,” then pocketed the “fines,” which he had assessed for overtime, backpay and child labor violations.
51. How many workers were defrauded by THOMAS JONES?
52. Consider the case of KAZIMIERZ CHMIELEWSKI, operator of Protech Construction Co. in Chicago, who bribed an OSHA inspector $2000 to “wipe away” a $35,000 fine. Was he the only employer ever to bribe an OSHA inspector? How many OSHA people wink at lawbreaking, knowing that they will be eligible to receive employment offers, which Ralph Nader long ago called “the deferred bribe.”
Culture of Desuetude, Corruption and Incompetence at DOL?
53. How many DOL employees are unable to do their jobs? I don’t know, but we need to find out.
54. Consider the case of the Government Accountability Office (GAO) investigators who contacted DOL, posing as workers, finding that DOL mishandled nine out of ten cases, including those involving willful violations of child labor and overtime laws.
A. Wage-Hour investigators gave erroneous information to GAO investigtors posing as low-income workers, while taking the flimsiest, wackiets excuses from employers for non-payment.
B. As GAO reported, “The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems. In one case, a WHD investigator lied about investigative work performed and did not investigate GAO’s fictitious complaint.”
C. GAO stated, “GAO found cases where it took over a year for WHD to respond to a complaint, cases closed based on unverified information provided by the employer, and cases dropped when the employer did not return phone calls. GAO’s overall assessment of the WHD complaint intake, conciliation, and investigation processes found an ineffective system that discourages wage theft complaints. With respect to conciliations, GAO found that WHD does not fully investigate these types of complaints or compel employers to pay. In addition, a WHD policy instructed many offices not to record unsuccessful conciliations in its database, making WHD appear better at resolving conciliations than it actually is. WHD’s investigations were frequently delayed by months or years, but once complaints were recorded in WHD’s database and assigned as a case to an investigator, they were often adequately investigated.”
D. GAO found that in Miami, “WHD did not return phone calls and failed to record our complaint in their database; WHD failed to return seven messages from our fictitious employee attempting to file a complaint. In two cases during regular business hours, calls were routed to a voicemail message stating that the office was closed. [The] Complaint was never recorded in the database.”
E. In one case, a complaint was “dropped when no one from the employer, which was a Sheriff's office, returned WHD's telephone calls.” This is desuetude.
55. Desuetude has been destroying DOL since 1981, when Ronald Wilson Reagan took office. Reagan was hired to work at General Electric by one Lemuel Boulware, whose practice of “take it or leave it” non-negotiations with labor was found to be an Unfair Labor Practice, which has been named “Boulwareism” after Reagan’s mentor.
56. Listen to the faceless DOL bureaucrats caught red-handed giving out biased advice on the telephone to undercover GAO investigators. Play the tape at the GAO website, http://www.gao.gov/media/video/gao-09-458t. How despotic and embarassing.
57. When you hear that tape, you will agree that DOL is a dysfunctional agency, whose rulers have been guilty of desuetude since Ronald Reagan was inaugurated.
58. Oddly claiming that they could not “wring blood from a stone,” claiming they had no power to right wrongs, the DOL bureaucrats on the tape are beyond belief – their actions are contrary to the genius of a free people. What does DOL propose to do about it?
59. The DOL employees on those tapes are a disgrace to our Founders and a disgrace to our country. They need to be sacked. OSHA employees who engage in the same kind of subterfuge and deception need to be sacked.
60. Their actions would make even the late Frances Perkins – after whom DOL’s office is named – want to defenestrate someone.
61. Their actions are a betrayal of the reasons why the Department of Labor was created in 1913, in the wake of the Triangle Shirtwaist Fire.
62. These “cognitive misers.” William Safire would have called them“nattering nabobs of negativism.” These employees are drawing government paychecks and not doing anything to help anyone.
63. We need to oust the hostile holdovers – the “we can’t do anything to help anyone” crowd at DOL. Never again should such mendacious miscreants darken the doorstep of the Frances Perkins Building, or any other DOL building.
64. How many workers does DOL mislead each day?
65. How many workers has DOL denied just investigations and adjudications?
DOL Desuetude Victimizes Workers A Second Time
66. Consider the case of what the Office of the Secretary of Labor, through the Office of Administrative Appeals, did to some 1000 Minnesota women at Honeywell, who waited some 22 years for the Department of Labor to decide their sex discrimination case. In 1993, the Department of Labor Inspector General (DOL OIG) reported DOL had no timeliness standards for workers’ cases and that orders were repeatedly given by several successive Secretaries of Labor under the Reagan and Bush Administrations not to present cases for decision to the Secretary in nuclear and environmental whistleblower cases or pattern and practice race and sex discrimination cases. By letter, the DOL IG agreed that DOL’s delays constitute desuetude. Not only has DOL delayed cases, but it is beyond peradventure that DOL managers sometimes intervene in particular case decisions.
67. Instead of responding to the DOL OIG report by creating more accountability, controversial Secretary of Labor Robert Reich decreased transparency and ended his own personal accountability.
68. Someone else apparently signed Robert Reich’s name to a Secretary of Labor Order delegating his responsibility to rule in whistleblower cases to members of a faceless board – the Administrative Review Board (ARB). – which Reich created without notice and comment rulemaking or federal legislation.
69. In response to E-mail inquiries, Secretary Reich has admitted to me that he did not read and was not aware that he had signed a Secretary of Labor Order creating the Administrative Review Board.
70. Apparently, a DOL political appointee used an Autopen to do the dirty deed, creating the Administrative Review Board in 1996. In this manner was an oppressive, secretive and unaccountable bureaucracy created.
71. As a result of the creation of the controversial Administrative Review Board, delays continued to plague USDOL whistleblower cases throughout the Clinton and George W. Bush Administration.
72. Under Bush, lobbyists were hired as ARB members, without FBI background checks or Senate confirmation.
73. The result has been a reduction in the strength and efficacy of whistleblower law.
74. This is all the result of DOL’s deliberate desuetude of worker rights cases since January 20, 1981. Since Reagan, worker protection laws have been subject to desuetude. Desuetude of occupational safety and health laws kills workers.
75. Desuetude of wage-hour laws defeats worker rights to safe workplaces and just wages.
76. Desuetude of laws protecting rights to join unions destroys worker rights to join democratic free trade unions.
77. Desuetude of anti-discrimination laws erases legal protections for victims of race, gender, sexual orientation and whistleblower discrimination, depriving them of equal justice.
78. Desuetude of worker protection laws promotes distrust in government and increases inequality. Don’t take my word for it. As Justice Louis Dembitz Brandeis said:
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding....Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy....
79. DOL was driven into the sewer of desuetude by anti-worker reactionaries appointed by unelected President GEORGE W. BUSH.
80. During three decades of desuetude, DOL Headquarters was more of a political patronage sink and a political headquarters than a regulatory.
81. BUSH’s unjust stewards at the Department of Labor included such notorious bad-news, anti-worker appointees included controversial anti-worker Acting Solicitor of Labor EUGENE SCALIA (who was rightly never confirmed by the U.S. Senate), Solicitor of Labor and Acting Secretary of Labor HOWARD RADZELY, and figurehead Secretary of Labor ELAINE CHAO (spouse of anti-regulatory Senator MITCH McCONNELL of Kentucky, who happens to be the law school buddy of anti-wrorker USDOL Chief Judge JOHN MICHAEL VITTONE, who has retired).
82. Under this Republican “Wrecking Crew,” the U.S. Department of Labor was busy announcing “alliances” and partnerships with regulated industries. Meanwhile, DOL was uncouth, unkind and downright angry about workers and counsel criticizing desuetude, punishing those who raise concerns about 25 years of desuetude, wrought by large organizations and their lobbyists.
83. Congress, the labor movement and worker advocates must start confronting desuetude of worker rights protection laws. DOL has gone downhill so far that it may be impossible for it to recover the strength that it had when Arthur Goldberg was Secretary of Labor, when DOL was respected and DOL lawyers went to work knowing that they would protect people’s rights (instead of defending the indefensible).
84. Evidence of desuetude can be seen by sub silentio alteration of long-estabished precedents protecting whistleblowers for trucking companies from retaliation for refusing to drive ill and fatigued; efforts to force employees to wait years for decisions where the law requires promptness; refusal to invest resources in enforcement and adjudications; appointment of opponents of worker protection laws to law enforcement; and corruption, as in the Texas case where an OSHA manager was convicted of receiving bribes through a confederate to reduce penalties on employers.
85. Desuetude of worker protection law can kill. That’s what happened when a man plunged to his death from DOL’s own roof in this building in July 1989 after eight years of Reagan-Bush desuetude. There was no fall protection. There was an All Terrain Vehicle (ATV) carrying roofing materials around on DOL’s own roof. Like the dozens of New Yorkers who ignored the screams of Kitty Genovese being stabbed, how many denizens of the Frances Perkins Building saw the illegal ATV on DOL’s roof for weeks, viewing it from cafeteria windows and as pedestrians and drivers coming and going to work each day? As my forthcoming book reports, it took hours to get an inspector on the scene of a death case at DOL’s own building, because under Reagan, all construction inspectors were transferred to Baltimore.
86. Desuetude killed when ten people died in one 2004 Texas truck wreck, the sequelae of failure to enforce the Surface Transportation Act whistleblower provision.
87. Desuetude killed when twelve West Virginia miners died in one mine disaster in January 2006, the sequelae of failure to enforce the Mine Safety and Health Act.
88. What do right-wingers tell the victims of DOL’s desuetude? Defenders of the new status quo of worker protection law desuetude say that government must be "business friendly." What a trite trope.
89. The words “business friendly” do not appear in our Declaration of Independence, our Constitution, or our Bill of Rights, or any amendments to our Constitution.
90. In fact, the Declaration of Independence announces the right of the American people to a government “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
91. Americans are unsafe when OSHA refuses to enforce whistleblower laws. Americans are unhappy when whistleblowers (and their advocates) are persecuted.
92. Anti-worker legislation has a long history in the British tradition. Our Founders rebelled against their oppressive British forebears and their long history of “business friendly legislation,” which was designed to coerce, restrain and chill worker rights. That was the purpose of the English "Statute of Laborers," which in 1349 and 1350 prohibited workers from relocating or receiving higher wages.
93. Neutering worker protection laws was a guiding purpose of the Reagan Administration.
94. DOL’s Wrecking Crew of tunnel-visioned , errant, lobbyist appointees twisted the law beyond comprehension.
95. Worker rights laws were turned into dead letters, with Department of Labor employee whistleblowers retaliated against and worker rights law enforcement left in shreds.
96. Too often OSHA investigators do a less than stellar job on the basis that someone will appeal from their decision anyway.
97. The short-signed investigators therefore deprive the parties and the Administrative Law Judge of signed, sworn statements, lengthening and complicating trials.
98. Refusal of investigators to investigate is an obstruction of justice – it is wrong.
99. The Whistleblower Investigator’s Manual is a mandatory command. It is not a suggestion.
100. We’ve seen far too many obstructions of justice in whistleblower cases, especially those involving powerful government agencies and government contractors as Respondents.
101. Too often, it seems, investigators, judges and appellate board members are pressured, directly and indirectly, to rule in favor of state and federal agencies and other employers.
102. Never again must politics be allowed to corrode the process for investigating workers’ cases before the Department of Labor.
103. DOL must protect the independence of investigators and provide rules for recusal in cases of investigator bias.
104. DOL must restore the whistleblower program to what Congress intended – a three-legged stool, with OSHA investigating, OALJ adjudicating and the Secretary of Labor hearing appeals.
105. Today, each leg of the three legged stool is broken. OSHA investigators are overwhelmed and undertrained, and some are probably even underpaid.
106. DOL judges have been under the iron heel of an imperious, unprincipled, hostile Chief Judge (JOHN MICHAEL VITTONE, who retired in February 2010).
107. Chief Judge JOHN MICHAEL VITTONE (1996-2010) did not always respect administrative-judicial independence when it came to whistleblower cases, to put it mildly. VITTONE showed antipathy and hostility to whistleblowers, uppity lawyers defending worker rights, FOIA requesters, Gays and Lesbians and Robert Kennedy, to name a few. JOHN MICHAEL VITTONE was a homophobe who hated whistleblowers, hated Gays and Lesbians and called Robert Kennedy a “c—sucker.” (I heard it with my own ears. I was deeply offended, as a Democrat, a Gay man and someone who had worked for Senator Ted Kennedy when I was in undergraduate school). VITTONE owed his appointment to a recommendation from then-Congressman Austin Murphy, who was later reprimanded for “ghost voting” and misusing Congressional funds and pled guilty to voter fraud. In the future, DOL must be cautious about accepting politicians’ recommendations for judgeships.
108. For sixteen years, from 1979-1995, Chief Judge Nahum Litt protected the integrity and independence of adjudications, advocating a national corps of administrative law judges to protect judicial independence.
109. But when when Judge Litt retired, then-Secretary of Labor Robert Reich appointed VITTONE as Chief Judge. Was this without a background check, an interview or proper affirmative action search and without considering qualified African-American, minority, women, disabled or Gay and Lesbian applicants? Never again must DOL have a Chief Judge who thinks of the administrative-judiciary as an arm of the Department of Labor, to the point of blasting me for “denigrating” the Department of Labor and complaining that I had complained about DOL desuetude. We don’t need any more bigots in top posts at the U.S. Department of Labor.
110. In particular, CHIEF JUDGE JOHN MICHAEL VITTONE abused the power of his office to pursue a personal and professional vendetta against a Gay lawyer representing whistleblowers. (That was me). Like Inspector Javert pursuing Jean Valjean in Les Miserables, CHIEF JUDGE VITTONE made it his mission to destroy.
111. Picking up the pieces from the “reign of error” of the Office of Administrative Appeals, of the Administrative Review Board and of now-retired DOL Chief Judge JOHN MICHAEL VITTONE, A few blocks from DOL’s headquarters stands a monument to the internment of Japanese-Americans in World War II – the monument bears the inscription, “Here we right a wrong.” USDOL must get busy and right wrongs.
112. How do we do it swiftly? How do we return DOL to its first principles? We most work to reverse wrongfully-decided cases that may have been based on undue influence, when lobbyists ran the Administrative Review Board and the Department of Energy had a voice in hiring its members.
113. The most expeditious way of overruling such cases may be by rulemaking, so that bad precedents are extirpated quickly. Later administrative-judicial action, by analogy to Federal Rule of Civil Procedure 60(b), can erase the effects of bad precedents on the original litigants who may have been harmed by corruption or malice.
114. The FBI and the USDOL Inspector General must be called in to investigate.
115. The Secretary must pick a new Chief Administrative Law Judge who treasures judicial independence. No longer should the DOL permit the office of Chief Judge to be disgraced by calling judges and lawyers on the carpet for seeking to protect workers. No longer should the Department of Energy be consulted in whom to appoint at DOL positions.
116. The appeals of whistleblower cases have always lacked independence. In 1986, the DOL Inspector General recommended moving the Office of Administrative Appeals out of the Solicitor’s office “for reasons of independence.” By comparison, the Interior Department made this change in its Office of Hearings and Appeals in the 1970s. The IG also found that OAA lacked a docket system and adequate case management reporting system. Id. As a result of that report, the OAA was moved under the Secretary of Labor.
117. But DOL ALJ decisions are still being reviewed by staff attorneys and political apparatchiks, not ALJs whose independence is protected.
118. The Administrative Review Board lacks independence.
119. ARB should never have been created without either notice and comment rulemaking or legislation.
120. ARB must stop reversing judges’ rulings against workers at the drop of a hat, while upholding any facetious argument for ruling against whistleblowers. ARB’s bad faith reversals must be reversed by rulemaking, or by federal legislation. That’s what Congress has had to do when the Supreme Court ruled incorrectly on civil rights cases.
121. ARB must stop construing worker protection laws and statutes of limitations narrowly.
122. ARB must stop letting cases pile up like cordwood, as Clarence Thomas did with ADA cases when he was EEOC Chair under President Reagan.
123. ARB must be more transparent.
124. ARB has behaved like a right-wing political organization, with open hostility toward workers and their zealous advocates. This is contrary to the genius of a free people.
125. ARB members’ photographs and detailed biographies are matters of public record, and should no longer be withheld, unless there are valid religious reasons relating to graven images.
126. When the CIA and FBI Directors are subject to FBI background checks, Senate confirmation and public photographs, the identity of the ARB members was treated as if it were a classified national security secret, with no photos on ARB’s webpage. Why?
127. ARB and its staff have behaved arrogantly, flippantly, and cruelly in reversing ALJ decisions for whistleblowers, pulling defeat out of the jaws of fictory. ARB staff and members must practice humility (and so must OSHA and OALJ).
128. Past ARB appointees looked down their distended nostrils at lesser mortals, focused more on inflicting Draconian page limits on appeals from lengthy ALJ decisions, mocking workers with derision while failing to function as an adjudicative body, while the ARB Chair arrogated the title of “Chief Judge.” Only Congress can create a judgeship, and it is at best unseemly for DOL to confer the title without complying with the Administrative Procedure Act.
129. ARB members must be Presidentially-appointed and Senate-confirmed, like memgers of the NLRB, EEOC, FLRA and MSPB.
130. ARB members must in the interim be clothed with the protection of 5 U.S.C. 3105 Administrative Law Judges (or the thermal equivalent), to protect them from undue influence. Under DOL’s current Order, ARB members are hired hands, employed at will, just like the hearing examiners formerly used by the United States Department of Energy for security clearance cases.
131. ARB must start holding oral arguments, just as the DOL Employee Compensation Appeal Board does.
132. ARB members need to stop cribbing employers’ briefs and start reading the record – they need to take off the rubber bands of the files they review.
133. ARB must scrap arbitrary limitations on the pages of briefs in whistleblower cases, and other Draconian rules that give the impression that ARB is work-averse and willing to do anything to uphold invidious discrimination and retaliation against whistleblowers.
134. ARB must understand that its past practices of reversing almost every decision for workers based upon spurious pretexts has rendered it lacking in credibility.
135. When ARB twice reversed decisions by a respected ALJ finding that EPA’s retaliation was “reprehensible,” ARB did more than “fix” the case in favor of retaliators at EPA – it showed the world that ARB was, in simple English, A Bright Shining Lie” as Neil Sheehan titled his book about John Paul Vann and Vietnam.
136. In fact, ARB ex nihilo manufactured a justification for EPA’s keeping criminal charges hanging over Sharyn Erickon’s head for 1179 days – three-and-a-half years – an excuse that wasn't what EPA said, and wasn't even in the record. ARB’s then-Chair, a former EPA policy adviser under Rita Lavelle, took misstatements by witnesses as justification, even when the witnesses’ testimony was contradictory (and contradicted by others). ARB’s attorney-advisors require re-training or new jobs.
137. ARB has repeatedly overruled good DOL precedents (and ignored the will of Congress in agreeing to those precedents) on sovereign immunity. This is part of ARB’s currying favor with employers at dysfunctional, organizations like the Environmental Protection Agency, the Department of Energy and their contractors.
138. When ARB held that a 30 day statute of limitations precluded any relief on behalf of a whistleblower Oak Ridge National Laboratory threatened to move into another contaminated laboratory, it showed it had no intellectual integrity. Wage-Hour ruled correctly, as did District Chief Administrative Law Judge Theodor von Brand. In its ruling in Varnadore v. Oak Ridge National Laboratory, ARB showed that it has a cruel streak – it was cruelly unfair to take years to adjudicate a case that everyone considered to be timely, and then to atomize the facts to find an untimely complaint.
139. ARB ruled that total damages for five weeks worth of a hostile working environment could not equal $100,000 – hacking it back to $20,000. ARB showed that DOL put such a low value on workers’ lives that it treated workers like slaves in the inhumane jurisdprudence of Chief Justice Roger B. Taney in the Dred Scott case.
140. I was actually stigmatized by both USDOL and the Tennessee Supreme Court for making the comparison to Dred Scott, a fact that was duly reported by the American Bar Association Journal. I spoke the truth and I got punished for it by DOL. This is a tribute to the special interest influence of the lobbyists running DOL, and to the Arrogance of Power,” as Senator J. William Fulbright titled his book about America in Vietnam.
141. Until 1998, there had never been any Bar complaints against me – I had been licensed for some eleven years. Then the Department of Energy, through attorney JAKE CHAVEZ in New Mexico, decided I must be silenced. Then Chief Judge JOHN MICHAEL VITTONE flew to Nashville for a December 7, 1998 ex parte meeting with the Tennessee Supreme Court’s Board of Professional Responsibility. Then the organizations who profit from DOL not enforcing the law weighed in as part of a six-year struggle to besmirch my reputation. Were these defenders of DOL’s desuetude willing to use false testimony and invasions of privacy to silence dissent, seeking to blacklist, disbar and jail me for speaking out for whistleblowers?
142. Under Presidents William Jefferson Clinton and George W. Bush, the new-fangled ARB quickly came to resemble the tacky, wacky Benefits Review Board under President Reagan’s ARB Chair, Robert L. Ramsay. Ramsay “tilted” so much toward employers that employer lawyers were embarrassed by it, and complained about it. Ramsay was fired by the Secretary of Labor for abusive treatment of ARB staff and waste of tax dollars, including a junket to Hawaii to hear oral arguments. Ramsay fired a union steward (John Vena) and was forced to rehire him. Ramsay said of one attorney that he would not promote a black unwed mother” to GS-13. Ramsay ordered that male employees could not wear pink shirts and banned personal family photos, children’s artwork or “photos of the latest heartthrob, male, female or indeterminant.” In short, Robert L. Ramsay was exactly the sort of sadistic bad boss that the Reagan and Bush administrations treasured at DOL, putting them in positions of power where they hurt workers.
143. Controversial former USDOL Benefits Review Board Chair and Administrative Law Judge Robert L. Ramsay played a role, unwittingly, in limiting the path that DOL could take in retaliating against whistleblowers and their counsel. Ramsay attempted to inflict monetary sanctions against whistleblower lawyers, in a case that the Secretary of Labor overruled, holding that the only power DOL had to restrain lawyers was through disbarment.
144. ARB has no legitimacy. ARB is based upon a Secretary of Labor Order that Secretary Reich does not recall seeing or signing. It is not based on notice and comment rulemaking under the Administrative Procedure Act. It is not based on legislation. It was based on the desire to curry favor with respondents facing verdicts against them when DOL OALJ was a fair forum, including at least one company that paid $100,000 for one of those expensive White House coffees.
145. ARB is based on a lack of transparency and a lack of trust of American workers.
146. ARB is based upon Clinton-era political considerations that have never been shared with the public – DOL withheld some 100 pages of documents leading up to the creation of the ARB. Those documents must be released on DOL’s website without delay.
147. ARB can now attain legitimacy ultimately only with legislation providing for an independent Board that is appointed by the President and confirmed by the Senate, to give it equal dignity with NLRB, EEOC and MSPB.
148. Secretary Solis has already shown that ARB is to be taken seriously, by appointing former EEOC Chair Paul Igaski to chair the Board.
149. Who am I to express these opinions about DOL’s sacred cows?
150. I speak from more than three decades of experience, in journalism, law and government. I won declassification of the largest mercury pollution event in the history of planet Earth as Editor of the Appalachian Observer, and was recommended for the Pulitzer Prize by the District Attorney. During 1986-1988, I clerked for Chief Administrative Law Judge Nahum Litt of the U.S. Department of Labor and was rated “Outstanding” by Judge Litt. He protected the integrity of DOL adjudications from improper pressures. I then worked for the AFL-CIO Occupational Health Legal Rights Foundation, for the Government Accountability Project and then in private practice representing whistleblowers. For years thereafter, I represented whistleblowers before Administrative Law Judges. I have written seven articles in ABA publications, including three in the Judges’ Journal. These articles helped vindicate the rights of Native Americans, law students, consumers, workers, whistleblowers and Administrative Law Judges.
151. When DOL OALJ was a fair forum, I successfully settled and tried cases against large organizations that retaliated against whistleblowers., including the Nation’s largest and second largest electric powerplant utilities.
152. My views are my own and they reflect my experience. They do not necessarily represent those of anyone else, including my past and present employers. They do reflect my experience in representing whistleblowers and being frustrated at the effects upon workers and their families – the salt of the earth. DOL rubs salt in their wounds by taking forever not to investigate cases, taking forever to hold hearings, then if the workier wins, claiming his claim was not timely under the narrowest possible reading of very short statutes of limitations. This Procrustean bed approach to whistleblower litigation is cruelly unfair to ethical employees, who would not have been obliged to become wihistleblowers but for ethical failings of their employers.
153. I have seen the best and worst of OSHA investigators (and before them, Wage-Hour investigators, who handled environmental and nuclear whistleblower cases until 1996).
154. John R. Spear, first as Assistant Regional Administrator in Seattle and then as Director of the Office of Investigative Assistance, was the best of the best. At Hanford and elsewhere, over the course of some 500 investigations, John Spear went to workers’ homes and got signed statements on the spot in his investigation of the Ed Bricker case at the Hanford, Washington Department of Energy nuclear weapons plant. He did not give in to pressures, or attempts to buy him off with an offer of a job. John Spear’s keen intellect and courage under fire make him an ideal candidate for you to bring back as a rehired annuitant and get OSHA moving again.
155. Other OSHA investigators too often were unaware of DOL and federal court precedents:
A. They seemed indifferent to the implications of the facts.
B. They lacked sophistication, interviewing workers in management offices, inviting retaliation and coaching.
C. Some investigators simply refused to visit workers in their homes, thereby exposing workers interviewed in Oak Ridge National Labroatory’s “Mahogany Row” (or other management offices) to retaliation (and to management knowing exactly how long they spent talking to an OSHA investigator).
D. Some investigators made whistleblower investigations into an absurd Paper Chase, demanding that workers (but not employers) provide copious quantities of paperwork and sometimes never meeting with them.
156. One Tennessee OSHA investigator, RAYMOND LEVITT, actually met a whistleblower for the first time at a book store coffee shop, wearing t-shirt, shorts and sneakers. LEVITT’s spouse works for a university that runs a nuclear laboratory. I requested his recusal. He refused. He was angry about it and had a chip on his shoulder about it. Thus, RAYMOND LEVITT filed multiple complaints against me because I had criticized him over possible conflicts of interest, filing Bar complaints and a complaint with an Article III federal judge – complaints that appeared well-orchestrated with Oak Ridge. RAYMOND LEVITT’sLinked-in profile that advertises his interest interested in:
* job inquiries
* expertise requests
* business deals
* reference requests
* getting back in touch
157. This not-so-subtle corruption and incompetence at OSHA must be ended at once.
158. No OSHA investigator should ever again pander to employers, or advertise on the Internet his interest in “job inquiries” and “business deals.”
159. This is an invitation to bribery, conflict of interest and corruption. It is wrong.
160. Since 1981, OSHA was, at best, an “uncertain trumpet,” failing to protect workers. Why? Because of politics and retaliation, whether the President was a Republican or a Democrat.
161. In my experience, OSHA investigators were typically outgunned and out-influenced by government and corporate oligarchs:
A. Just as the GAO found about Wage-Hour investigators, they were always too quick to believe employer pretexts.
B. Too many don’t understand the shifting burdens of proof.
C. Too many keep employer answers secret, not letting the worker read them.
D. Too many now let corporate counsel in the room during interviews of non-management employees, which is, at best, unseemly.
E. Too many accept, without criticism, the most frivolous of defenses, from the factual to the constitutional (the argument that state agencies are somehow exempt from environmental whistleblower laws based on the Eleventh Amendment, when Congress exercised its authority under Clause 5 of the Fourteenth Amendment to ban invidious discrimination against environmental whistleblowers by state governments).
162. Too often, OSHA investigators had delusions of adequacy.
163. Frankly, in East Tennessee and elsewhere the quality of the whistleblower program went downhill almost as soon as OSHA took over from Wage-Hour. Wage-Hour investigators in East Tennessee were dedicated public servants who investigated. The only OSHA investigator worked from his home and didn’t give a fig about free speech rights.
164. Was this the intended result?
165. That was apparently the result when the Knoxville Wage-Hour Director was transferred for one year to Atlanta, to work on Total Quality Management, keeping her from ruling against employers like the Tennessee Valley Authority.
166. What is the etiology of OSHA’s “tilt” toward large organizations?
167. Right-wingers looking to stir up business campaign contributions campaigned to quell OSHA from the start. Those of us working for U.S. Senators during the 1970s would often receive angry, hand-scrawled postcards from John Birch Society and KKK-style letter-writing bees, stating inter alia “Abolish OSHA. Abolish EPA. U.S. Out of the United Nations.” Even though sensible employers support OSHA and support its mission, Congress and the President listened to the demagogues like U.S. Rep. Tom Delay (R-Texas).
168. After right-wingers beat up on OSHA during the presidency of Jimmy Carter and the OSHA administration of Assistant Secretary Eula Bingham, OSHA became afraid of its shadow.
169. Successive Secretaries of Labor did not defend OSHA, resulting in poor morale.
170. Yet the right-wingers continued advancing canards that OSHA was somehow unfair to business. Republican appointees in OSHA did not defend the agency against its attackers. Instead, they egged them on in their efforts to inflict a “Philistine’s veto” over OSHA’s enforcing the law.
171. In reality, OSHA is too often ineffectual, inefficient, ineffective, illogical, mired in anti-worker attitudes of former Presidents and their Cabinets.
172. I agree with the findings of the Center for Progressive Reform about OSHA priorities, including the need to obtain public comment before settlements, which is the case at EPA. There is judicial review of antitrust settlemetns by the Antitrust Division of the Justice Department pursuant to the Tunney Act (the result of Watergate, when Nixon’s apparatchiks traded settlement of a merger case involving ITT for campaign contributions).
173. Dr. David Michaels, Ph.D., MPH, OSHA’s new Administrator, is well-prepared for the job. He wrote an excellent book about the ways that large organizations misrepresent science to avoid regulation. Dr. Michaels needs to shake the trees and protect worker rights. He needs to fire or transfer people who hate whistleblowers and refuse to investigate their cases. OSHA inspectors who took bribes must be prosecuted.
174. OSHA must end the era of sleaze and desuetude documented by historian Thomas Frank in his book, The Wrecking Crew -- How Conservatives Ruined Government, Enriched Themselves, and Beggared the Nation.
175. As House Education and Labor Committee Chair George Miller wrote in an article for the Huffington Post in September 2008, "From day one, Bush's Department of Labor has actively worked to undermine workers' rights to organize, to fair pay and decent benefits, and to safe working conditions — rights that are essential to growing and sustaining a strong middle class. U.S. Labor Secretary Elaine Chao and other high-level appointees came to their posts determined to weaken the agency.”
176. “Under Chao's leadership, the department has repeatedly torpedoed rules designed to help workers. One of her first actions was supporting the repeal of a rule that would have protected workers against repetitive motion injuries, the leading cause of workplace injuries,” Miller wrote. "Chao went on to severely weaken the department's Wage and Hour Division — which enforces overtime, minimum wage, and child labor laws. Wage theft has skyrocketed at the hands of this administration: An ongoing US Government Accountability Office investigation has uncovered repeated cases where the agency refused to go after scofflaw employers who admittedly owed their workers back wages...."
177. The Government Accountability Office (GAO) found that DOL mishandled 90% of complaints brought by undercover investigators posing as aggrieved workers. Most complaints involved wage theft — employers refusing to pay overtime or even basic wages due — but the DOL didn't respond even when GAO investigators called in a complaint about children working in a meatpacking plant during school hours!
178. Albert Camus said, “perhaps we cannot make this a world in which no children are tortured, but we can reduce the number of tortured children. And if you don’t help us do this, then who else in the world will help us do this?”
179. We would not tolerate DOL’s gross level of incompetence – a 90% error rate – at any other agency or department.
180. If the FAA mishandled 90% of the airline flights for which it provides air traffic control, there would be tens of thousands of dead bodies and FAA’s leaders would be indicted and in prison.
181. If the U.S. Army mishandled 90% of the missions it was assigned by Congress and the President, we might have lost World War II and the Cold War.
182. If the National Weather Service mishandled 90% of the forecasts it makes, there would be demands for new leadership.
183. AFL-CIO president Richard Trumka wrote: "In 2007 alone, 5,488 workers were killed on the job and an estimated 50,000 more lost their lives to occupational diseases — almost as many deaths in just one year as the entire number of Americans who lost their lives over 16 years in the Vietnam war. In that same single year of 2007, there were more than 4 million job-related injuries and illnesses..."
184. Despite the best efforts of good and decent people like John R. Spear, former head of the Office of Investigative Assistance, many OSHA investigators are coerced, restrained and deterred from doing their legal duties.
185. OSHA spends only a tiny amount of funds on investigating whistleblower cases. There are too many second-raters and not enough quality investigators. OSHA needs to recruit retired FBI agents and other first-rate law enforcement agents.
186. We can’t protect workplace free speech rights in the 21st century with “investigators”:
A. Who lack training and commitment;
B. Whom OSHA forces into working from their homes, with one phone line; and
C. Who take the course of least resistance, believing that they should rule against the employee automatically because (they have told me) whoever is unhappy with their decision will appeal anyway, so what does it matter?
187. Some OSHA regions appear to be in open rebellion against the whistleblower laws. Never again should an entire OSHA region – like the Dallas region – sua sponte exempt itself from OSHA whistleblower training requirements because it is run by right-wing Republican satraps who disapprove of the whistleblower laws and want to preserve the status quo.
188. OSHA must heed the views of the American people, who are tired of a government “frozen in the ice of its own indifference,” in the words of Franklin Roosevelt (quoting Dante). As one commenter stated:
OSHA needs to do a better job of communicating with the public. I've never seen an agency so slow in moving. It takes forever to track down the correct office and person. Other agencies have their employee information publically viewable, why not yours? Also, why is there only generic numbers that go directly to voicema[i]l boxes? I think OSHA has forgotten who they are here to help.
189. As Dr. Donna Vincene Puleio, M.D., the surviving sister of a dead worker writes, her:
brother Gary Puleio was killed due to unsafe working conditions and I personally experienced the inadequacies of the regulatory system designed to protect workers and saw first hand the lack of accountability of corporations and the unbalanced scales of justice. Gary Puleio (inspection # 303706683) was killed on the job … in Meadville, PA on August 15, 2001. He had been employed there only 3 months as a non-union cement truck driver and fell 25 feet to his death, from a cement tower, while shoveling gravel off the hopper to clean it. The company claimed Gary just ‘wandered up there on his own”, without wearing any safety equipment, at the end of his driving shift rather than being assigned this dangerous task because he was the “new man.”
OSHA accepted this implausible story and after admitting no wrongdoing, the company paid a $6000 fine for REPEAT violations for not posting danger signs t
at a confined space and not implementing measures to prevent unauthorized entry.
This company had multiple serious violations issued only months before Gary was
killed which were informally settled with reduced fines.
Full access to Gary’s case records under the Freedom of Information Act (FOIA) was denied. ... The appeal to obtain full access and to review the “substantive” issues of the case was stalled for months. Finally, no further action could be taken anyway as OSHA requires that any citations or penalties must be issued within 6 months of an “alleged violation” as the neglectful killing of worker is called.
Corporations routinely negotiate with OSHA to have fines reduced and violations downgraded through a process called abatement while workers have no such access. As a stakeholder, I implore you to review this material and work to balance the scales of justice which are now so heavily tipped toward corporations. Family members must have more access to OSHA records, more input in OSHA investigation of injuries and deaths and more information about workplace laws and rights.
190. The New York Times and Las Vegas Sun have both won Pulitzer Prizes for documenting federal and state OSHA offices’ desuetude in worker death cases. There haven’t been so many Pulitzer Prizes on the same subject since Watergate. DOL’s desuetude is a national scandal and a national disgrace. To this day, our country is still “struggl[ing]” through DOL’s “disgraceful imbecility and disloyalty to the Constitution.”
191. DOL officials who refuse to enforce the law are in open rebellion against our Constitution. They are no better than secessionists and segregationists. This is not civil disobedience – this is treason to our laws and institutions that exist to protect workers and our environment and public health and safety.
192. A government official who refuses to protect workers is a disgrace to her office, and a traitor to our Constitution and Bill of Rights. The Constitution requires that government employees pledge to defend the Constitution “against all enemies, foreign and domestic.” That includes EPA and DOE when they violate worker rights.
193. The Puleio family’s pain is our Nation’s pain, for too many workers’ lives are lost in preventable deaths, too many workers are killed and maimed, and too many workers’ rights are snuffed out by administrators who “know not that they know not that they know not.”
A TWELVE-STEP PROGRAM FOR THE DEPARTMENT OF LABOR
“What kind of place is this?
Where you almost mean what you say?
Where your laws almost work?
How can you live like that?”
-- The African Cinque, in Steven Spielberg’s film, Amistad
194. Under the Obama-Solis administration at USDOL, I propose, from this day forward, a 12-step program:
A. Whistleblowers must be handed a bill of rights and welcomed to DOL. Instead, workers are too often treated coldly. Instead of a phone call, the first contact workers usually have with OSHA is a dull form letter with enclosed statutes and regulations. Instead of being treated as heroes, whistleblowers and their lawyers are too often treated as bothersome pests by investigators. Some “investigators” might as well have a bumper sticker on their foreheads, stating “I’d rather be sailing.” Such “investigators” need to pursue other careers.
B. Whistleblowers have a constitutional right to fair and indepencdent investigations and adjudications and appeals. The Office of Administrative Appeals 1994 Mission statement is a binding contract with American workers, which DOL has repeatedly breached. The DOL Office of Administrative Appeals (OAA) 1994 Mission Statement said in relevant part:
Workers who have confidence that unsafe or unhealthy working conditions or discriminatory practices can be brought to the attention of authorities without fear of retaliation are workers who can see themselves as important links with management rather than mere units of production.
Conversely, it is important for management as well as workers to know that they are entitled to a fair hearing before the Secretary or his designated representative and that sound, unbiased decisions can be expected.
Nothing less will do. Failure is not an option. The whole world is watching. OSHA must change or have whistleblower jurisdiction taken away from it. The Secretary of Labor must promise that no longer will Regional Administrators, Chief Judges and their associates, appellate board members or other political appointees must be directed never again to interfere with investigations, placing their thumbs on the scale of justice. Whistleblowers have a right to an actual investigation. Whistleblowers must not be subject any longer to delays, insults, arguments or excuses. No longer must investigators refuse to investigate based upon warped perceptions of the law, or based on refusal and neglect of duty (for example, refusing to investigate retaliation complaint after initial complaints are filed). Directing a whistleblower to give her “bottom line” on settlement as a condition of opening an investigation is illegal and immoral – it is a tort, a crime and a sin. It must stop.
C. Whistleblowers have a right to expect decisional independence, not case-fixing. Too often in American administrative law, the pull of influence results in unjust decisions. Under several successive Administrations since 1981, worker rights protections were a dead letter, marked “return to sender.” The Department of Labor was bossed and controlled by the likes of Raymond Donovan, Elaine Chao, Eugene Scalia and Howard Radzely, union-busting attorneys with no sympathy for worker rights. No longer must ideology and political considerations corrupt the process of OSHA investigations.
D. Workers have a right to expect uniform high-quality investigations and adjudications. The OSHA Investigator’s Manual must be obeyed. DOL must follow its own rules. Desuetude and refusal to obey the Investigator’s Manual must result in remands by Administrative Law Judges for proper investigations, as at least twelve ALJ decisions have done. Workers have a right to expect uniform high-quality investigations that are dedicated to finding the truth, rather than polishing apples (or reputations). Don’t duck the issues. The direction to “Resolve discrepancies” (Section 3H in the Enforcement Manual) is a mandatory command to investigators. “Resolve discrepancies” does not mean taking the employer’s word for it, or believing whatever the employer’s hired guns say because they have carpeting to the metatarsal, 80 pound bond paper and hundreds of lawyers (or because investigators believe it is the course of least resistance).
E. Quality control must be assured by having OSHA whistleblower investigations directed from Washington, D.C. Regional “variations” in the way that complaints are handled are unacceptable. West coast whistleblower investigations have generally been handled fairly, under both Wage-Hour and OSHA. In the parts of the country where slavery was once legal, OSHA has the worst whistleblower investigations. The Dallas and Atlanta offices of DOL badly need reforming (and adult supervision from Wsahington, D.C.). They are like the old equity maxim about how some courts decide cases based upon “the size of the Chancellor’s foot.” In those parts of the country where employers formerly owned their employees under chattel slavery, under successive Administrations, political appointees have combined with flummery and dupery to deprive workers of just adjudications. The investigative finding in a DOL whistleblower investigation must not depend upon the worker’s place of residence. Southerners have the same right to fair investigations as Northerners. Since they are so often wrong, the Atlanta and Dallas OSHA whistleblower investigators and managers must be transferred to other duties, and new investigators must be hired in their place – investigators who believe Congress meant what it said and said what it meant.
F. Whistleblower files must never be lost again. In several whistleblower cases, files have been lost by DOL. It has happened repeatedly. This is a violation of federal law, 44 U.S.C. 3106, which prohibits loss or theft of government records. It is also disturbing, because it appears that under the Republicans, ARB ruled against workers, claiming to have read the record, when it did not have the complete record. Those responsible for losing whistleblower files must be investigated by the DOL Inspector General. Intentional acts of losing files must be prosecuted.
G. Investigators, judges and appellate board members and staffs all need legal, sensitivity and ethics training. There are some investigators who almost always believe the employer’s pretexts without understanding the shifting burdens of proof. Never again should the investigator’s finding should be a reflexive one, always finding for employers, particularly powerful ones, because it is easier or better for their careers. Nor should the investigator’s finding be a reflection upon the investigator’s backward-bending labor supply curve (laziness). Investigators’ morale must be a priority. Nor should the ARB reverse based upon the identity of the parties.
H. Workers have a right to expect command influence-free decisionmaking. With judicial independence enforced, no longer shall special influence determine who may prevail before Administrative Law Judges or the Administrative Review Board. At last the ARB must be subject of transparency, notice and comment rulemaking and legislation, rather than having Secretaries of Labor hire Republicans who don’t care.
I. Workers have a right to expect DOL to seek stronger, more uniform legislation, covering all workers, with a uniform statute of limitations of one year. That’s what the American Bar Association House of Delegates recommended in February 1990, twenty years ago (Exhibit A). It has been more than twenty years, but DOL has never gone to bat for stronger legislation, since Eugene Fidell found that there was a crazy “patchwork quilt” of legislation, more law than loophole.
J. Workers have a right to expect high standards of probity by government investigators and adjudicators and coverage for all public and private sector whistleblowers, as the American Bar Association House of Delegates recommended in its resolution. Biased investigators and adjudicators must recuse themselves or be recused. The standard of care is set by the Investigations Manual, which some investigators have shown signs of not understanding. With a recusal rule, no longer will investigators feel empowered to threaten complainants and their counsel, or file Bar and judicial complaints against them for doing their jobs and engaging in First Amendment protected activity.
K. Workers have a right to have all DOL case law posted on DOL’s website. Under the past Administration, precedents favorable to workers were either not posted or were withdrawn from the website. The DOL Whistleblower Digest became a monthly diatribe, in which the Chief Judge’s acolytes took decisions out of context in order to chill, coerce and restrain zealous advocacy. That was wrong.
L. Workers have a right to the counsel of their choice, without anyone in government or business exercise of a “Philistine’s veto” by investigators and ALJs who file phony complaints to chill zealous advocacy. No longer must DOL administrators seek to persecute any lawyer for zealous advocacy of whistleblowers. There appears to have been a conspiracy to violate whistleblower civil rights at the highest levels of the Department of Labor under President George W. Bush. On February 12, 2002, Judge VITTONE admitted to deliberately discussing his “confidential” Tennessee BPR complaint with Deputy Solicitor HOWARD RADZELY and Deputy Secretary D. CAMERON FINDLAY et al. Currying favor with Republican appointees, VITTONE begrimed his judicial ermine with a partisan attack upon me for representing whistleblowers. The chilling effect upon whistleblowers and lawyers of what Chief Judge JOHN MICHAEL VITTONE and his henchmen did to me (and to my clients) coerces, restrains and chills free speech rights of whistleblowers to this day. In the immortal words of Nathan Hale, “My only regret is that I have but one life to give for my country.”
195. As a rejection of the status quo since January 20, 1981, the New New OSHA might wish to adopt the Latin motto, “Fiat justitia” (“Let there be justice) as its own, following the examples of the Rembrandt Peale portrait of Chief Justice John Marshall at the U.S. Supreme Court Building, the University of California Hastings School of Law, Massachusetts Bar Association, and the British Royal Air Force Police.
196. In the words of the great equitable maxim, “Let justice be done though the heavens fall.” (Fiat justitia ruat caelum).
197. I was invited, then disinvited, to speak today.
198. An OSHA staffer wrote an E-mail emitting a pitiful excuse and twice hung up the telephone on me. Her supervisors never returned my calls.
199. Time constraints were obviously no excuse for inviting and then uninviting me – the session was scheduled to go to 6:30 PM but ended at 5:30 PM, with participants given five minutes each.
200. The documents I requested to assist in writing this testimony have not yet been provided. An unfriendly letter from the DOL Solicitor’s Chief FOIA person, Mr. Joseph Plick, wants to charge me money to help answer your questions.
201. Such bad attitudes by Bush-era holdovers have marred your attempt for OSHA to listen. So does “OSHA Listen?” You tell me. At the very least it appears that, as JFK said during the Cuban Missile Crisis, “there’s always some poor SOB who doesn’t get the word.”
202. President George Washington wrote the Continental Congress, “Is anybody there? Does anybody care? Does anybody see what I see?”
203. As Lincoln said, we need to begin anew, think anew and act anew.
204. The Department of Labor has some 500 attorneys, the third largest legal department in our federal government, after the Justice and Homeland Security Departments. What do all of those lawyers do every day? They file briefs to defend bizarre decisions of the Admnistrative Review Board, eviscerating worker rights. They don’t do very much about protecting workers, it would appear.
205. The Solicitor’s office is the heart of the problem regarding OSHA. It lacks zealousness and initiative. It fails to give timely legal advice to whistleblower investigators. Its attorneys are too often craven, uninspired and unmotivated. In fact, When Eugene Scalia was Acting Solicitor, he told an ABA meeting in Washington, D.C. that he was amazed that the Solicitor had never sought a Temporary Restraining Order (TRO) to reinstate a wrongfully-fired worker — Scalia was the first to use this basic tool of civil procedure to help workers. Too many Solicitor’s office attorneys are clock-watching standpatters, unadorned by creativity or compassion. They’re too busy fighting Black Lung clams and denying FOIA and Privacy Act requests to remember why they’re there – the new Solicitor must get rid of the dead wood.
206. True to the standards of my first boss, Senator Edward M. Kennedy, remember his words at the 1980 Democratic National Convention:
may it be said of us, both in dark passages and in bright days, in the words of Tennyson that my brothers quoted and loved, and that have special meaning for me now:
"I am a part of all that I have met
To [Tho] much is taken, much abides
That which we are, we are --
One equal temper of heroic hearts
Strong in will
To strive, to seek, to find, and not to yield."
.... For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.
CONCLUSION
It is up to us to renew the Department of Labor, and (in Lincoln’s words) to “disenthrall ourselves.” This is our government, and we will be heard, just as we were in 2006 and 2008.
DOL must start working for workers again, and stop the flummery and dupery and chicanery and lying and coverups seen during the George W. Bush and prior presidencies. Thankfully, in Secretary Solis’ words, “there’s a new Sheriff in town.” Let us dedicate ourselves to that and, in the words of Robert F. Kennedy (quoting the Greeks), “to tame the savageness of man and to make gentle the life of the world.”
Respectfully submitted,
ED SLAVIN
http://desuetudehurtspeople.blogspot.com/
P.O. Box 3084
St. Augustine, Florida 32085-3084
904-829-3877
215-554-1187 (cellular)
EASlavin@aol.com
This testimony is dedicated to my parents, who spoke up for the rights of workers and taught me to stand up for the truth.
ED SLAVIN
· Attorney for DOE and contractor employees in several states disbarred (after six-year campaign by U.S. Department of Energy and U.S. Department of Labor) and eligible for reinstatement in 2010. Currently CIO for a company based in St. Augustine, Florida. My views are my own, and do not necessarily reflect those of anyone else, including present or former employers.
· Testified before Congressional committees on worker rights.
· Counsel for the Plaintiff in Farver v. Carpenter, a medical malpractice case where an Anderson County jury awarded $600,000 against DOE’s consultant psychiatrist for misdiagnosing a worker environmental activist as “paranoid, delusional and psychotic, with loss of her job and security clearance.
· Public critic of Oak Ridge, Tennessee waste disposal practices since 1981.
· Pioneered use of whistleblower laws to protect nuclear weapons worker rights.
· Published seven (7) articles on civil rights matters in American Bar Association publications, including two in the ABA Judges’ Journal.
· Legal Counsel for Constitutional Rights, Government Accountability Project (GAP), 1989-93
· Law Clerk, Chief Administrative Law Judge Nahum Litt, Department of Labor, 1986-1988
· Editor, Appalachian Observer, 1981-1983, recommended for Pulitzer Prize by DA for exposing Oak Ridge mercury losses (largest in world history).
· Staffer for United States Senators Edward M. Kennedy, Gary W. Hart and Jim Sasser, 1974-1977.
· Listed in Who’s Who in American Law, Millennium Edition.
· Author, Jimmy Carter (Chelsea House Publishers 1989)
· Early adjunct faculty member of the District of Columbia School of Law clinical program in conjunction with the Government Accountability Project’s legal clinic.
· Attorney for plaintiff in Rinde v. Woodward & Lothrop, historic 1989-90 District of Columbia Gay and Lesbian rights case involving equal discount benefits at department stores, with settlement vindicating rights of Woodward & Lothrop and John Wanamaker employees in Washington, D.C., Baltimore and Philadelphia metropolitan areas. Wrote first article on Gay marriage for an American Bar Association publication (1991).
· B.S., Foreign Service, Georgetown University
· J.D., Memphis State University School of Law (now University of Memphis).
(End notes available upon request)
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