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U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE MEETING Tuesday, March 11, 2014 Frances Perkins Building 200 Constitution Avenue, N.W. Washington, D.C. Diversified Reporting Services, Inc. (202) 467-9200 2 WPAC MEMBERS: PUBLIC REPRESENTATIVES: EMILY SPIELER, Northeastern University School of Law JONATHAN BROCK, University of Washington RICHARD MOBERLY, University of Nebraska College of Law MANAGEMENT REPRESENTATIVES: DAVID EHERTS, Sikorsky Aircraft Corporation GREGORY KEATING, Littler Mendelson P.C. MARCIA NARINE, St. Thomas University School of Law LABOR REPRESENTATIVES: AVA BARBOUR, International Unions, UAW BILLIE GARDE, ESQ., Clifford & Garde LLP NANCY LESSIN, Steelworkers' Charitable and Educational Organization ERIC FRUMIN, Change to Win STATE PLAN REPRESENTATIVES: CHRISTINE DOUGHERTY, State of Minnesota FEDERAL AGENCY REPRESENTATIVES: RINA TUCKER HARRIS, Consumer Financial Protection Bureau ADAM MILES, Office of Special Counsel 3 OSHA STAFF: DAVID MICHAELS ANTHONY ROSA RICHARD MENDELSON MEGHAN SMITH ROBERT SWICK LAURA SEEMAN KATELYN WENDELL ELLIOTT GOULD LAURA GIVENS GAIL SWANN BRIAN BROECKER PHIL BLAKOTO KEN ATHA YOUNG WHEELER 4 ALSO PRESENT: ED BAIRD, DOL Solicitors Office MEGAN GUENTHER, DOL Solicitors Office BOB SWAIN, DOL Solicitors Office ANA LAURA BENNETT, DOL Solicitors Office MARK WINNER, DOL Solicitors Office DEREK BAXTER, DOL Solicitors Office, MSHA CHARLIE LORD, DOL Solicitors Office, MSHA LAFE SOLOMON, National Labor Relations Board ANDREA HYATT, BNSF Railway SID HOLCOMB, Senate Help JASON ZUCKERMAN, ESQ. JOSEPH SIRBAK, ESQ., Buchanan Ingersoll & Rooney KATHLEEN HUGHES, ESQ., Union Pacific SUSAN LINDQUIST, Union Pacific HILARY BENSON, Congressional Office of Compliance RICHARD RENNER, ESQ. SARAH ZIELINSKI, F&H Solutions Group SHANNA DEVINE, Government Accountability Project PETER COCHRAN, ESQ., Morgan Lewis RON JOHNSON, ESQ., Jones Day DAVE BROWN, BLET VINCE VERNA, BLET/Teamsters TOM HEBERT, BLET DAVE HARB, BLET ORLANDO PENROD, BLET BRUCE WATSON, Bloomberg writer CONNIE VALKAN, ESQ., Canadian National LARRY MANN, ESQ., Alper & Mann RICK INCLIMA, Brotherhood of Maintenance of Way Employees Division, IBT VINCE MURRAY, FAA BARBARA VINO, FAA ADAM MILES, Office of Special Counsel 5 A G E N D A ITEM PAGE Welcome 7 Welcome from Assistant Secretary David Michaels 18 Report from the Directorate of Whistleblower Protection Programs 43 Report of Transportation Industry Work Group and Discussion 63 VOTES 85,86 Report of Best Practices and Corporate Culture Work Group and Discussion 120 Afternoon Session 176 Report of 11(c) Work Group and Discussion 178 MOTIONS 211,213 VOTE 213 Lessons Learned from Whistleblower Processes in Other Agencies - Mine Safety and Health Administration 223 National Labor Relations Board 234 Federal Aviation Administration 240 Discussion 248 Public Comments 282 Richard Renner, Esq. Discussion of Next Steps for WPAC 290 6 E X H I B I T S NUMBER DESCRIPTION PAGE WPAC Exhibit 1 - Meeting Agenda 61 WPAC Exhibit 2 - Transportation Work Group Report 61 WPAC Exhibit 3 - PowerPoint slides of Best Practices and Corporate Culture Work Group Report 135 WPAC Exhibit 4 - PowerPoint slides of 11(c) Work Group Report 178 WPAC Exhibit 5 - Investigative Data, 10/1/12 and 9/30/13 221 WPAC Exhibit 6 - slide of text of the revised tabled recommendation 221 WPAC Exhibit 7 - PowerPoint presentation by Mine Safety and Health Administration 233 WPAC Exhibit 8 - FAA/OSHA Fact Sheet 247 7 1 P R O C E E D I N G S 2 (8:31 a.m.) 3 WELCOME 4 MS. SPIELER: Good morning. My name is Emily 5 Spieler. I'm the Chair of the Whistleblower Protection 6 Advisory Committee, which as you know is a Federal 7 advisory committee to the Department of Labor and OSHA. 8 I'd like to first ask Rob Swick from the 9 Directorate to just give us a few logistical 10 instructions. 11 MR. SWICK: Thank you, Emily. Good morning, 12 everyone. I'm Rob Swick from the Directorate of 13 Whistleblower Protection Programs. It is nice to see 14 you here this morning. We thank you for your service. 15 Real quickly, we have two kind of conditions 16 with regard to this building status, if there is a 17 safety event, there is something called "a shelter in 18 place," and there is something called "evacuation." 19 In shelter in place, we're going to stay right 20 here. If there is an evacuation, the nearest exit is 21 right there, we will go out that door in single file 22 and exit the building. 8 1 The bathrooms are located on either side of 2 this space. There is a cafeteria on the sixth floor 3 that serves pretty good food, and the snack bar is on 4 the fourth floor, and I dare you to find it, and 5 actually a soda machine that one of you went looking 6 for yesterday. 7 if you need anything, just contact me or 8 Meghan Smith or any of the other OSHA staff in the 9 back. Thank you. 10 MS. SPIELER: Thank you. This is the second 11 meeting of this Advisory Committee. It was originally 12 chartered in June of 2012. Our first meeting was in 13 January, about 14 months ago. 14 As the members of the Committee know, we, like 15 many other advisory committees, got caught in the 16 challenge of sequestration. This is the first time we 17 have been able to meet again. 18 I will talk in a minute about what we have 19 been doing in the interim but first, just a reminder, 20 the charter for this Committee charges us as follows: 21 The WPAC advises the Secretary of Labor and the 22 Assistant Secretary of Labor for OSHA on ways to 9 1 improve the fairness, efficiency, and transparency of 2 OSHA's whistleblower investigations. 3 Then there is a long list of specifics 4 regarding what we should be helping the Department do, 5 including better customer service, improvement of 6 investigatory and enforcement processes, improvement of 7 regulations, cooperative activities with other Federal 8 agencies and other matters of fairness, efficiency and 9 transparency, as identified by the Secretary or 10 Assistant Secretary. 11 Our job in the end is to help to improve the 12 situation for whistleblowers with the long term goal of 13 allowing people to come forward regarding their 14 concerns without any fear of retaliation, and when 15 retaliation occurs, to be able to rely on OSHA to help 16 them. 17 The Department as a whole and OSHA in 18 particular have taken this responsibility to improve 19 the investigation of whistleblower cases very 20 seriously, and I'm sure Dr. Michaels will tell us more 21 about that. 22 It is clear from the commitment of new 10 1 resources, the establishment of the Directorate in the 2 Central Office, the continuing focus on improving the 3 investigatory process at the regional level, and the 4 responses to the GAO and IG reports, that the staff 5 within the Department of Labor has taken this challenge 6 very seriously. 7 In fact, in his budget, the President has 8 proposed a significant increase for the whistleblower 9 program, underscoring the importance of the program for 10 OSHA and the Department of Labor. 11 Our role, the role of this Committee, is to 12 help this commitment to continuous improvement by 13 bringing shareholders formally into the conversation 14 with ideas that will help the agency achieve shared 15 goals. 16 To that end and when we were faced with the 17 sequestration problem, Dr. Michaels and I worked 18 together with the Directorate staff to set up three 19 work groups, focusing on issues in the transportation 20 industry, on defining best practices across industries, 21 and specifically on Section 11(c), the OSHA section on 22 retaliation. 11 1 The Chairs of these work groups are 2 respectively Eric Frumin, Jonathan Brock, and David 3 Eherts. 4 The work groups were each given a charge by 5 Dr. Michaels. They have been working independently 6 from the meetings of the full Committee, almost 7 exclusively telephonically, but transparently. These 8 meetings have been noticed publicly and the minutes are 9 being posted. 10 Today, after introductions and welcomes and a 11 report from the Interim Director, Rich Mendelson, we 12 have allocated 90 minutes for the report and discussion 13 from each work group. Part of that is designed for the 14 full Committee to hear the work in progress of all the 15 work groups and also for the full Committee to give 16 input into the work groups regarding issues they think 17 the work groups should be taking up, in addition to 18 whatever they report. 19 Later this afternoon we will hear reports from 20 three agencies outside OSHA that deal with claims of 21 retaliation, the National Labor Relations Board, the 22 Mine Safety and Health Administration, and the FAA, and 12 1 later, there will be time for public comments, and we 2 will discuss next steps for the Committee. 3 Before we go ahead, what I'd like to do is 4 have everyone introduce themselves, and then I will be 5 turning the mike over to Dr. Michaels. 6 Before I do that, I want to publicly thank the 7 staff of the Directorate and of the front office of 8 OSHA. I know this has been a challenge to have an 9 advisory committee at the same time you are really 10 trying to address programmatic issues that are deeply 11 important to people around the country. 12 We know these work groups take time, and we 13 thank you for all the staffing that you have done, both 14 the Interim Director and the Deputy, and also the 15 staff.
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