Perfected Allegations of Wrongdoing – Part I of IV:
Department of Labor/OSHA, January 2009 to October 2024 - Part 1 of 5
This publication of Perfected Allegations - Department of labor/OSHA, begins a series of publications of perfected allegations that offer factual evidence (statements and documentation) confirming the existence of a conspiracy within the federal government to obstruct investigations into criminal wrongdoing by senior federal officials and bureaucrats to conceal the existence of this criminal organization.
This publication involving the U.S. Department of Labor (DoL) and its OSHA-managed Whistleblower Protection Program (WBPP) is very long and will be subdivided into five sections:
This first section provides background and federal audit reports that confirm the DoL and OSHA have corrupted the WBPP for 35-years, denying private-sector employees and the public qualified investigations of reports of substantial and specific threats to their/your health, safety, and financial security - think: preventable environmental contamination, vast consumer fraud, including the 2008-2009 financial meltdown, catastrophic air carrier, trucking, pipeline explosions, and railroad accidents, like the recent derailment in East Palestine, Ohio, and Boeing 737 Max, crashes, and the gross mismanagement of health issues, like the recent Covid-19 fiasco. Thus, the corruption of the WBPP itself represents one of the greatest threats to Americans.
The second section, Perfected Allegations re: Denial of Federal Employee EEO Protections: July 2011 to May 2015, provides confirming evidence that the corruption of the WBPP represents a direct assault on federal employees, providing 9 specific allegations illustrating how this assault is conducted.
The third section, Perfected Allegations: Obstruction of sixteen (16) Whistleblower Investigations: August 2010 to July 2018, provides clear and convincing evidence of how senior DoL officials obstructed sixteen WBPP investigations into very serious allegations of corporate fraud and violations of law, rule, and regulation. These allow you to see how witness statements and documentation offer opportunities for holding both federal officials and scofflaw corporate officials accountable for creating threats to our health, safety, and financial security.
The fourth section, Perfected Allegations: Multiple Prohibited Personnel Practices: June 2012 to May 2015, offers insights into how federal law protects federal whistleblowers, but how federal officials knowingly violate those laws to protect themselves and preferred others.
The fifth section, which appears at the end of the fourth section, examines how federal officials act to conceal their wrongdoing by obstructing access to documents by delaying and corrupting FOIA requests. This has become a “normalized” practice within federal agencies over the past decade, which by itself is directly responsible for most of the corruption in the federal government.
The U.S. Department of Labor (DoL) through its management of the Occupational Safety and Health Administration’s (OSHA) Whistleblower Protection Program (WBPP) plays a central role in securing the integrity of the private sector enterprises which produce the goods and services in our national economy where most American work. But these are only a tiny slice of the more than 60,000 private-sector whistleblower complaints which have been obstructed by the DoL-WBPP since 2009. In this Part I of Perfected Allegations of Wrongdoing will examine the failure of DoL WBPP senior management to meet that mission, providing specific evidence (statements and documentation) sufficient to indict them:
1. Five (5) federal audits of the WBPP, conducted between 2008 and 2020 by the Government Accountability Office (GAO) and the DoL Office of Inspector General (DoL-OIG).
2. Three (3) instances of DoL/OSHA reprised against federal employees honoring their ethical duty to report waste, fraud, abuse of authority and corruption to appropriate authorities [5 CFR ⸹2635.101(b)(11)]
3. The WBPP’s failure to conduct sixteen (16) whistleblower investigations consistent with law, rules, and regulations, constituting a violation of the Whistleblower’s Constitutional First Amendment right to bring a grievance to the government and Fourteenth Amendment right to equal protection of the law
4. The DoL Obstruction of Investigations of employee reports of waste, fraud, abuse of authority, and corruption, and retaliation against three (3) federal employees supporting these reports, in violation of their Constitutional First Amendment right to bring a grievance to the government, Fifth Amendment right to due process of law, and Fourteenth Amendment right to equal protection of the law
5. The 7.5-year obstruction of a Freedom of Information Act (FOIA) request made by a federal employee reporting waste, fraud, abuse of authority and corruption to appropriate authorities, denying the employee his Constitutional First Amendment right to bring a grievance to the government, Fifth Amendment right to due process of law, and Fourteenth Amendment right to equal protection of the law
Index
A. Background, A Brief History of the WBPP and Its Statutory Construction.
B. Six (6) Federal Audits of the Whistleblower Protection Program: 2008 to 2020.
C. Perfected Allegations re: Denial of Federal Employee EEO Protections: July 2011 to May 2015.
D. Perfected Allegations re: Obstruction of Fifteen (16) Private-Sector Whistleblower Investigations.
E. Perfected Allegations re: Obstruction of Investigations of Federal whistleblower Disclosures of Waste, Fraud, Abuse of Authority corruption, and Retaliation (Prohibited Personnel Practices).
F. Perfected Allegations re: Obstruction of a Federal Whistleblower FOIA Request for 7.5 Years, Bbstructing a Criminal Investigation of DoL Senior Responsible Management Officials.
Acronyms
ALJ: Administrative Law Judge/Court
ARA: OSHA Assistant Regional Administrator
ARB: Administrative Review Board
ASAM/OASAM: Department of Labor, Office of Administration and Management
BIA: Bureau of Indian Affairs
CIGIE: Counsel of Inspectors General on Integrity and Efficiency
CIGIE-IC: Counsel of Inspectors General on Integrity and Efficiency, Integrity Committee
CRC: DoL Civil Rights Center
Disclosure: “A formal or informal communication or transmission that the employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety (5 U.S.C., ⸹2302(a)(2)(D)).”
DoC: Department of Commerce
DoD: Department of Defense
DoI: Department of Interior
DoL: U.S. Department of Labor
DoL-OIG: Department of Labor, Office of Inspector General
DoT: Department of Transportation
EEOC: Equal Employment Opportunity Commission
FAA: Federal Aviation Administration
FIR/ROI: Final Investigative Reports of OSHA WBPP investigations
FMLA: Family and Medical Leave Act
FOH: DoL Federal Occupational Health Service GAO: Government Accountability Office
LAWS: federal statutes adopted by Congress
NRC: Nuclear Regulatory Commission
OSC: Office of Special Counsel
OSEC: Office of the Secretary of Labor
OSHA: Office of Occupational Safety and Health Administration
PPP: Prohibited Personnel Practices (See, 5 U.S.C., 2302(b))
RA: OSHA Regional Administrator
RSI: Regional Supervising Investigator
CFR: Code of Federal Regulations
Rule: Established and approved federal rules of practice
RMO: An official with the authority to take, refrain from taking, or order others to take or refrain from taking personnel actions.
SEC: Security and Exchange Commission
USPS: United States Postal Service
WBPP: OSHA Whistleblower Protection Program
WIM: OSHA Whistleblower Investigations Manual
A. As Background: A Brief History of the WBPP and Its Management
OSH Act of 1970, Sec. 11(c), Judicial Review, provides:
(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs file a complaint with the Secretary [of Labor] alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. Within 90 days of receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection.
This basic protection offered by OSHA to employees of private-sector enterprises was modified by Congressional action, beginning in 1977 to more specifically identify which private-sector employees are eligible for protection and how such investigations are to be conducted.[1] These modifications extended coverage to include some 80% of America’s workplaces, to include: asbestos management, international container cargo, surface transportation, environmental statutes, nuclear materials, air carriers, the financial industry, pipelines, railroads, transit systems, consumer product safety, as well as coverage under OSH Act, ⸹11(c), which covers service employees and U.S. postal workers. However, that extension of coverage also modified the how investigations were to be conducted, with varying deadlines and standards complicating the investigative process.
As discussed in the federal audits below, the WBPP is supervised by OSHA managers who have little legal training or knowledge, even as the WBPP is part of a statutorily authorized federal legal investigation process. This exposed and continues to expose the WBPP to unqualified management working in an administrative culture that is unqualified to address legally defined processes and goals. Further, in the period before Congress began revising the WBPP, adding more complexity and variance to the conduct of WBPP investigations, OSHA was assigning investigations to industrial hygienists who had no legal or qualified investigative training. Thus, by the 1990s, when Congress began rapidly expanding the WBPP into highly technical issues far beyond those served by traditional OSHA work, there were no internal controls to ensure the WBPP conducted effective investigations.[2]
Eventually, as the 2009 and 2010 GAO audits discussed below reveal, a growing number of “incidents” and scandals caught the attention of Congress, which ordered an audit in an effort to learn the nature of the problems in the WBPP. While the 2009 GAO audit report was highly critical of WBPP management, noting the WBPP had been failing is mission for twenty (20) years, that audit and five (5) subsequent federal audits over the following eleven (11) years failed to prompt an investigation of WBPP management, which could have led to corrective action. The perfected allegations offered here all took place withing that context, offering persuasive, clear and convincing evidence the ongoing failure of the WBPP is not an isolated instance, but instead is a consequence of a now thirty-five (35) year the failure of DoL senior management and Congress to ensure its integrity.
B. Six (6) Federal Audits of the OSHA WBPP: 2009 to 2020
The value of an audit is that it assesses a program or operation for its integrity by conducting a review of actual practices and their outcomes. Federal audits must meet the standards developed by the Government Accountability Office (GAO) Yellow Book: Government Auditing Standards, which provided detailed instructions for conducting audits.[3] However, by design, audits don’t offer accountability for program management, which can be achieved only through a qualified investigation.[4] The following six (6) federal audits of the WBPP found reoccurring problems but never prompted an investigation to determine who produced them and why, and to achieve corrective action and restore accountability to the WBPP. For example:
1. GAO WBPP Audit [GAO-09-106], dated January 2009, found: a) The WBPP lacks reliable information on processing and as a result can’t accurately report how long it takes to investigate and close a case or decide on certain appeals; b) OSHA does not have an effective mechanism to ensure data are accurately recorded in its database, and file reviews revealed key dates are often inaccurately recorded in the database or cannot be verified due to a lack of supporting documentation; c) ARB revies of appeals from adverse WBPP actions ranged from 30 days to over 5 years; d) Data showed whistleblowers received favorable outcomes in only 21% of complaints, all settled by an agreement between the whistleblower and employer, rather than through a decision rendered by OSHA; e) When whistleblower complaints were appealed, decisions favored the whistleblower in only 1/3 of outcomes; f) OSHA lacks a mechanism to ensure the quality and consistency of investigations, and many investigators lack resources they need to do their jobs, e.g. equipment, training, and legal assistance: g) Completion of any one phase of an investigation (opening, information gathering, and closing) sometimes took longer than the overall statutory time frame for the entire investigation; h) In fiscal YEAR 2007, whistleblowers received a favorable outcomes in only a few cases, with the remainder not investigated or recorded in OSHA’s database, as required by law; i) Neither the regional Solicitors’ Offices nor the national whistleblower program office had specialized legal experts available to assist investigators with complex cases.
2. GAO WBPP audit [GAO 10-722], dated August 2010, found: a) OSHA had done little to ensure investigators attend training or have the necessary tools to do their jobs. [No improvement from 2009 GAO Audit]; b) OSHA lacks sufficient internal controls to ensure that the whistleblower program operates as intended, lacks effective mechanisms to hold regions accountable for compliance with program policies, and had not made assessing program performance a priority. [No improvement from 2009 GAO Audit].
3. DoL-OIG Audit, [02-10-202-10-105], dated September 2010, found: a) During the audit period, 77% of the Whistleblower complaints under OSHA 11(c), Sarbanes- Oxley Act (SOX), and Surface Transportation Assistance Act (STAA) were either dismissed or withdrawn; b) Settlements, which accounted for 21%, were generally minimal; c) 98% of WBPP investigations failed to end with merit findings; d) OSHA did not always ensure complainants received appropriate investigations; and e) 80% of investigations under OSHA 11(c), SOX and STAA did not meet one or more of eight elements from the Whistleblower Investigations Manual that were essential to the investigative process; f) OSHA could not provide assurance the complainant was protected as intended under whistleblower protection statutes; g) Over the past 20 years, DoL-OIG issued three (3) reports related to the WBPP, which found investigations were not completed within statutory time frames, case files contained incomplete documentation, policies and procedures did not cover eight of the statutes the WBPP was tasked to enforce, settlement procedures deprived complainants of full and appropriate relief, and case management was ineffective and not used for reporting and monitoring.
4. DoL-OIG Audit [02-11-202-10-105], dtd August 2011, found: a) OSHA did not conduct proper investigations of the whistleblower complaint, and as a result it could not provide any assurance the complainant was protected as intended under Federal whistleblower laws; b) OSHA failed to establish a basis for conducting its investigations by not adequately documenting a logical reason for employer coverage or document a specific activity that would have afforded the complainant protection; c) Once OSHA proceeded with an investigations, it did not follow its own policies and procedures, and exceeded its authority by dismissing the complaint.
5. DoL-OIG WBPP Audit, [02-15-202-10-105], dated 30 September 2015, found: a) OSHA did not consistently ensure complaint reviews were complete, sufficient, and timely, with 18% of reviews not meeting 1 or more of the 7 essential elements specified by the OSHA Whistleblower Manual.; b) OSHA did not ensure the manual and training reflected the most recent program updates and changing priorities; c)
72% of investigations were not performed within statutory timeframes; d). OSHA did not adequately and timely communicate the violations alleged by whistleblowers internally to OSHA’s enforcement units or externally to other federal agencies with jurisdiction to investigate the allegations; e) 18% of sampled whistleblower complaint reviews were not complete, as one or more of the essential elements for conducting a whistleblower review were not performed; f) The OSHA National Office did not perform reviews of the WBPP or implement performance measures to ensure reviews were completed according to policy, “We estimate at least 957 complainants may not have received complete reviews;” g) OSHA failed to honor seven (7) elements essential to a WBPP investigation, including: gaining information from complainants, respondents, and relevant witnesses to determine the violations; making a determination as to whether the prima facie elements are satisfied; supervising work performed to ensure investigations were thorough; and communicating pertinent information to the complainant about the decision of the case and rights to appeal; h) OSHA did not implement performance measures or indicators for the WBPP as it had agreed in response to recommendations from the prior OIG report; i) 3,206 investigations, 1,116 are still pending a determination as of July 23, 2014, an average of 307 days from when the complaint was filed, which was 3 to 10 times more than the time allotted for the investigation; j) Cases were exceeding statutory timeframes and taking longer to complete, and if a case was found to have merit, complainants who lost employment because of a complaint would have experienced longer periods of lost wages and unemployment while waiting for an OSHA determination; k) Investigations were not completed within statutory timeframes because OSHA did not establish goals to complete investigations within the 30, 60, or 90-day timeframes established by statutes; l) For FY 2016, OSHA, established the goal of completing investigations within 360 days (an assumption of Congressional authority to avoid statutory mandates; m) OSHA officials believe timeframes are not legal requirements and it does not have to establish goals to meet them; n) OSHA officials stated, when investigations were brought before the courts, OSHA was not penalized for failing to make determinations within the statutory timeframe; o) OSHA did not adequately and timely report whistleblower alleged employer violations internally to OSHA’s enforcement units or externally to other federal agencies.
6. DoL-OIG WBPP Audit, [02-21-001-10-105], dated November 2020 found: The conduct of OSHA WBPP investigations had problems with the completeness and timeliness of investigations, as 96% of those sampled did not meet all essential elements and 88% of cases exceeded statutory timeframes for investigations by an average of 634 days; b) These results were worse than the results we reported in 2010 and 2015 audits.
Worse, this DoL OIG audit failed to meet audit standards, acknowledging it was a “review” of an order to the Secretary of Labor, issued by the U.S. Office of Special Counsel (OSC), to conduct a statutorily mandated 60-day investigation of a DoL whistleblower disclosure of misconduct and criminal wrongdoing by DoL official, including the DoL-OIG, which used auditors who were not qualified to do an investigation, and that the audit reflected a corruption of the OSC order, restricted by law to the exclusive investigation by the Secretary of law [5 U.S. Code, ⸹7515(c)], and the criminal obstruction of a federal investigation [18 U.S. Code, ⸹1505].
Summary/Analysis
What these six (6) federal audits, conducted over a period of 12 years, confirm is a dismal picture of the enduring corruption of the WBPP, produced by gross management, abuse of authority and outright refusal to follow federal law.
Further, this 35 years of WBPP program failure point to a shocking lack of interest by the DoL, OSHA, and Congress in resolving corruption and restoring the integrity of a program at the heart of the federal regulatory system, which is designed to protect workers and the American public from specific and substantial threats to their safety, health, and financial security.
This conclusion also reflects the ongoing failure of U.S. Senate Committee on Health, Education, Labor and Pensions leadership, which has oversight responsibilities for OSHA and the WBPP, to protect private sector whistleblowers, and by extension the American public. The consequences of this failure can be found in the fifteen (15) failed WBPP investigations discussed below in Section D.
[1] See, OSHA Whistleblower Investigations Manual, accessed at https://www.osha.gov/enforcement/directives/cpl-02-03-011-0
[2] See, e.g., the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century -AIR21, 49 U.S.C. § 42121), which mandates inspections involving aircraft operations and maintenance, the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622), which mandates investigation regarding petrochemical manufacturing and use; and, Sarbanes-Oxley Act (SOX), 18 U.S.C. § 1514A), which mandates investigations into complex financial matters.
[3] See, GAO Standards for Audits at https://www.gao.gov/yellowbook).
[4] See, CIGIE Quality Standards for Investigations at https://www.ignet.gov/content/manuals-guides