In a Case that Began with the Deep Water Horizon Disaster, Federal Board Rejects a Plan for Employee Input on Work-Site Dangers
In a 3-1 vote, the Chemical Safety Board voted Tuesday to withdraw recommendations calling for the Bureau of Safety and Environmental Enforcement to strengthen worker participation requirements and to take measures to prohibit retaliation against workers who use their rights. Chair Vanessa Sutherland, joined by members Manny Ehrlich and Kristen Kulinowski, voted to rescind the recommendations despite a spirited defense by pro-vote board member Rick Engler.
In April 2016, the board unanimously approved a 4-volume “Macondo Investigation Report” in response to the catastrophic Deepwater Horizon blowout that killed 11 workers, injured 17 and spilled 5 million barrels of oil into the Gulf of Mexico. The report contained a number of recommendations, including four calling for the bureau to significantly strengthen its regulations requiring worker participation in the employer’s safety program, and enhanced whistleblower protections for workers participating in safety activities. Last month, however, the board’s recommendations staff endorsed withdrawing the proposals in the face of opposition from the bureau, which claimed that it has no jurisdiction to adopt them.
The board’s discussion focused on whether the bureau has authority to forbid retaliation, or whether jurisdiction would better be placed at OSHA or the Coast Guard, and whether Congress would be a more appropriate forum to effect change. This was progress from the Oct. 16 meeting when the discussion revolved mostly around whether there was enough evidence in the report to justify the recommendations. Apparently, the board members satisfied themselves that there was actually enough evidence.
It’s obvious that the bureau has authority to require worker participation because they already do it. Therefore, it makes little sense to say that they don’t have authority to protect workers from retaliation for using that authority. Nevertheless, three board members seem to have just accepted the bureau’s doubt that they had such authority, even though Engler argued otherwise.
The bureau says that Recommendation 15 cannot be addressed since it is “likely” that the bureau lacks the statutory authority and that it is “not clear” that the bureau has statutory authority. The technical term for words like “likely” and “not clear” is “weasel words.” And the bureau neglected to accompany its statement with any kind of legal analysis.
Curiously, board members used whistleblower legislation introduced last week (H.R.4304–Offshore Oil and Gas Worker Whistleblower Protection Act of 2017) by Rep. Mark Desaulnier (D-Calif.) to justify withdrawal of the recommendations. DeSaulnier’s bill, if passed, would add whistleblower authority to the Department of Labor’s long list of whistleblower regulations that OSHA administers. Sutherland seemed to assume that because the bill would, if passed, give OSHA authority, that OSHA already has it. While it’s true that the bill, if passed by the House and Senate and signed by Trump, it would have given that authority to the Department of Labor, the fact that a few members have introduced legislation does not determine any kind of current legal status.
Meanwhile, DeSaulnier sent a letter to Sutherland specifically asking her to vote against a change in the recommendations because “the recommendations … were essential for the future safety of workers on the Outer Continental Shelf and the environment.” DeSaulnier asked the board to amend the recommendations to direct it toward Congress because the bureau may not have the authority to provide full whistleblower protections on its own.
Necessary, But Not Sufficient
There is no doubt that legislation giving workers whistleblower rights is needed, along with strong remedies when those rights are violated. Nor is there any doubt that the bureau cannot provide remedies as strong as Congress can provide. Nevertheless, a strong bureau regulation forbidding retaliation is also a necessary, if not sufficient, statement that would deter many employers from retaliating against workers.
The opposing board members bent over backward to emphasize that withdrawal of those recommendations does not signify they are retreating from strong support for workers’ rights. And then they did backward somersaults to congratulate themselves for speaking out so strongly for worker participation.
All government agencies are supposed to act based on facts and evidence whether by issuing regulations or recommendations. But the Administrative Procedures Act (APA) requires government agencies to take public comment before issuing, or repealing, regulations. Comments can be accepted from legal experts, scientific experts and front-line experts, commonly known as workers or residents who may be impacted by an uncontrolled chemical release. A board recommendation may not technically fall under the APA, but the fact that worker advocates may want to weigh in on this decision, or on the importance of worker participation and strong board recommendations, is not illegitimate; it is the soul of good rulemaking and making good recommendations.
I can’t tell you how many times I watched OSHA change language in a proposed standard because workers or business owners presented information in hearings or written comments that had not occurred to OSHA staff. The board seems to recognize the importance of public comment in the open meetings it holds prior to issuing its final reports. But the decision to withdraw these recommendations was not subject to public comment aside from 15 minutes at the Oct. 16 meeting. So it’s a mystery why the idea of public comment from the unwashed masses or from a blog post was portrayed as an illegitimate intrusion into an otherwise fact-based and objective recommendations process.
Action Speaks Louder Than Words
The influence of the Chemical Safety Board is not based on the individual feelings or opinions of its members, but on the actions that the board takes.
But ultimately, it doesn’t matter what board members truly care about in their hearts, or even what they say during these meetings. The influence of the Chemical Safety Board is not based on the individual feelings or opinions of its members, but on the actions that the board takes. The board has two unique ways to influence policy: reports based on strong evidence and findings, and recommendations to government agencies, industry associations and labor unions. Even when recommendations recipients don’t implement the recommendations, the change that the board has advocated remains on the public agenda.
And despite the expressed intent of board members or the backward somersaults and self-congratulations for their verbal support of worker participation, withdrawing the recommendations sends a clear message to the bureau and the chemical industry that the board will no longer be a strong advocate for worker participation.
It also sends a strong message to government agencies that all they need to do when confronted with an uncomfortable board recommendation is to weakly suggest that the agency doesn’t have the legal authority. The board will believe them and the recommendation will go away or never even be issued despite the fact that there may be no legal justification for the claim.
I hope I’m wrong and the board now adds a recommendation to Congress and then convinces an anti-worker Republican-controlled House of Representatives and the equally anti-worker Republican-controlled Senate to pass strong whistleblower and worker participation legislation that Trump will sign.
But even if all of that happens, it still doesn’t excuse the unjustified withdrawal of important recommendations that could help prevent future catastrophic events.
There are words … and there is action. The words of the three board members say one thing, but their action says another. And action speaks louder than words, to coin a phrase.
Jordan Barab blogs at Confined Space.