While the Occupational Safety and Health Administration handed out its third largest fine in history, outside critics and an internal whistleblower are calling for more stringent regulations and for the agency to better police its own workers.
The Imperial Sugar explosion in February, which killed 13 workers, put OSHA in the spotlight. While OSHA announced an $8.7 million fine on Friday, Imperial Sugar said that it met OSHA regulations and will fight the fine, according to an article in the New York Times.
Critics, on the other hand, want OSHA to tighten rules and ramp up oversight. Safety violations are often grouped into the agency’s “general duty” clause, allowing inspectors to cite companies for unsafe practices that are not specifically regulated.
So while there were 44 violations issued for spark-producing electrical equipment, which is regulated, under the general duty clause there were only two, one at each plant, for faulty ventilation and two for failing to maintain dust collection systems.
“It’s basically an admission that their standards have gaps,” Mr. [Eric] Frumin said.
For example, many safety violations aren’t on OSHA’s list of regulations, so inspectors have to cite them as general violations.
Large explosions and other tragedies briefly spotlight draw attention to workplace safety. But job-related health issues, as opposed to accidents, account for 80 percent of all workplace problems, Adam Finkel, OSHA’s former director of health standards, notes.
In 2002, Finkel leaked documents showing that OSHA was not testing its own inspectors for beryllium exposure. Finkel was transferred to a non-supervisor position within OSHA later that year. OSHA did not start testing inspectors until 2004. A year ago, a federal judge ordered OSHA to release the inspection data after Finkel filed a Freedom of Information Act request. Alternet reports:
The results were "a big eye-opener" for Finkel. Of OSHA's 989 inspectors in March 2005, 271 were tested, and 10 – or 3.7 percent ¬– were confirmed positive for sensitization. Based on information from Newman, the beryllium expert, Finkel had expected only 1 to 2 percent would be positive. As of March 2008, the numbers had increased only slightly, to 11 confirmed positives out of 301 tests.
What do those results mean for the hundreds of other OSHA inspectors -- not to mention 1,000 or more retirees? "I don't know if it's the tip of the iceberg or the whole iceberg," Finkel says. So he went back into the ring with OSHA, filing a Freedom of Information Act request to find out how much beryllium the inspectors were exposed to. Then he went a step further, requesting records from all inspections where OSHA took samples for air contaminants.
>>Learn more about whistleblowers in the CIR and Salon report The War on Whistleblowers.
The second-in-command at the U.S. Office of Special Counsel, a federal agency designed to protect government whistleblowers, resigned last week, saying his boss, U.S. Special Counsel Scott J. Bloch, put "political agendas and personal vendettas" ahead of the OSC's mission.
In an article for CIR and Salon last November, James Sandler reported that the system set up to protect whistleblowers has instead been used to punish them. The Office of Special Counsel, Sandler reported, has "long been considered a failure, due to a chronic backlog of cases, lack of resources and poor leadership."
The resignation of James Byrne last week is the latest development in a drama that has been unfolding at the OSC for several years.
As reported by the Washington Post:
James Byrne's resignation as deputy to Bloch is effective Saturday, The Associated Press reports. Bloch is under federal investigation, accused of destroying evidence potentially showing he retaliated against his own staff.
Bloch, appointed by President Bush in 2003 to protect government whistle-blowers and to enforce prohibitions on political activity in the federal workplace, is facing allegations of political bias, obstruction of justice and mismanagement.
The inspector general at the Office of Personnel Management has investigated Bloch since 2005 over alleged mistreatment of employees and his handling of whistle-blower cases.
>> Learn more about the Office of Special Counsel and the system designed to protect whistleblowers in a special project from CIR: "The War on Whistleblowers."
Late last year, I interviewed United States Special Counsel Scott Bloch for a Salon.com article about the lack of protections for government whistleblowers—federal employees who his office is supposed to protect from retaliating supervisors and political appointees.
Now Bloch is making headlines again. News broke Tuesday that federal agents raided Bloch’s home and office as part of an investigation that began in 2005—he was allegedly retaliating against his own whistleblowing employees.
Tuesday’s raids came after Bloch hired a commercial computer repair company (Geeks on Call, 1-800-905-GEEK) to scrub his government computer. According to news reports, the FBI and the Office of Personnel Management were investigating whether the “Geeks on Call” episode amounted to destroyed evidence or obstruction of justice since Bloch was under investigation at the time. The OPM has been investigating a host of allegations against Bloch since more than a dozen of his own employees blew the whistle on him in 2005.
Back in November, when I asked Bloch about allegations that he had "purged" backlogged cases and retaliated against his own employees, he responded defensively: "People have the right to file complaints if they want to and lawyers can say anything they want. But it’s all fiction. All the stuff is made up ... There are no whistleblowers that have complained to me. I don’t know of anyone who’s complained."
He also wrote a lengthy response to the Salon.com article in the comments section of the online magazine:
Reckless accusations are leveled at me and my career officials at OSC, such as that we threw out 1000 cases without justifications. Why does Salon or whistleblower groups then repeat these scurrilous charges when a bi-partisan group of 13 investigators from Congress (House and Senate) came in, over three weeks, looked through our files and questioned my career staff in four areas of enforcement, and gave a clean bill of health in a letter, declaring that we did not throw those cases out without justification and said we were doing a “great job for whistleblowers?” That was in May of 2005, and still these baseless charges are trotted out every chance the press gets.
The FBI has not yet disclosed the motive or findings of this week's raid on Bloch's office. And Bloch has yet to respond to this latest move. On Wednesday, Republican Representative Thomas Davis III (Va.) called on Bloch to resign.
“Civil servants depend on the OSC to protect them from discrimination and improper actions by supervisors … In light of the various investigations into Mr. Bloch's conduct, including the FBI probe revealed yesterday, it's hard to believe he can continue to operate effectively," said a statement released by Davis, who is the ranking republican on the House Oversight and Government Reform Committee. "It's time the OSC put this turbulent period behind it."
In an article in today’s Washington Post, the White House refused to comment on the affair because it was a “personnel” matter.
A high-profile whistleblower scored a crucial victory yesterday in her fight against the federal government, the focus of a CIR/Salon.com feature last November. Teresa Chambers—who was fired as Chief of the U.S. Park Police in 2004—prevailed in a petition she had filed with the U.S. Court of Appeals for the Federal Circuit. Chambers claimed in her petition that public comments she made about dwindling budgets and increasing crime in the nation’s parks—and her subsequent firing for making those comments—amounted to protected speech under the Whistleblower Protection Act. The Federal Circuit Court yesterday agreed, in a 2-1 decision, that Chambers’ comments were a “substantial and specific danger to public health and safety,” and that a lower court initially ruled incorrectly. The Appeals Court remanded Chambers’ case back to the lower court to reconsider its decision.
The Appeals Court, however, sustained other charges of misconduct made against Chambers.
Chambers, for her part, is not waiting around. She recently took a job a Police Chief of the Riverdale Park department in Prince George’s County, Maryland.
“It could be years before the [lower court] renders its new decision,” Chambers said in response to the recent decision. “In the meantime, I'm very happy in my new position.”
Last week, James Sandler's investigation on whistleblower protections—or lack of—was published by Salon. Within hours the story was picked up by blogs, including IRE's Extra Extra and the FedBlog of GovernmentExecutive.com.
Salon's comments forum was also pinging with responses. Many were from people who were whistleblowers themselves. The U.S. Special Counsel Scott Bloch, the man in charge of investigating whistleblower cases for the federal government, posted a lengthy response to Sandler's article. Excerpts from the Salon comments are below.
Bloch responds:
I have tried to protect whistleblowers every chance I could. I have taken it on the chin from advocacy groups who profit from trying to stir up trouble and make everyone else but themselves look bad. I tried to file on behalf of Ms. Chambers, but her attorney with PEER (Public Employees for Environmental Responsibility) filed on her behalf before we could, and this deprived her of our ability to pursue her case. She lost our presumption of a stay of termination. If we had been allowed to file on behalf of Ms. Chambers, I believe we would have obtained the stay we were going to seek and the case would have been settled favorably for her. As it was, the court denied the stay requested by her and she has lost at every stage.
—Mitch191
And an anonymous response to Bloch's post:
What Special Counsel Bloch says:
"I tried to file on behalf of Ms. Chambers, but her attorney with PEER (Public Employees for Environmental Responsibility) filed on her behalf before we could, and this deprived her of our ability to pursue her case."What the law says:
"If an employee . . . seeks a corrective action from the Board under section 1221 . . . the Special Counsel may continue to seek corrective action personal to such employee . . . with the consent of such employee. . ."
5 U.S.C. 1214(a)(4)
—Anonymous
Other comments:
obviously whistleblowing is a fools errand. however that's what the press is for.
—david sugarman
My advice to potential whistleblowers -- based on my personal experience -- is that if you blow the whistle you might as well pack up your shit and wait to be escorted out the door or to the basement. Period. Your performance is irrelevant. Your length of service is irrelevant. The fact that you have a "really good case" is irrelevant.
—Mishima666
I've "blown the whistle" twice, once while working for the federal government, once while working for a private corporation.
Results: good.
Retribution: none.
How is this possible?
If your goal is to correct a problem (rather than take personal credit and glory) there are a thousand ways to shed an embarrassing light, which cannot be ignored, on a problem - anonymously.
Get smart before you take any action and you need not fear punishment. In fact, the entire exercise can be great entertainment (watching them scurry to fix the problem, while not quite understanding how they came to be on the defensive).
—comfortable
I am a long-serving Navy attorney and have done significant work in the area of complaints on both the civilian and uniformed side of the house. This is a good story in that it points out issues in our system of resolving these types of complaints, but it is not the full story.
One can read this and walk away with the impression that anybody that complains is subjected to retaliation and of those retaliated against, only a small number ultimately receive protection and/or justice. What it does not do is give you the numbers of people who report issues and are never retaliated against or the numbers of people who report issues, are retaliated against and receive some form of protection and/or justice before it goes to the MSPB obviating the need for a MSPB hearing.
—jazzlstnr
>> Read more comments on "The War on Whistleblowers" on Salon's website.
>> Read blog responses to "The War on Whistleblowers" on Technorati.