June 5, 1987

The Honorable Henry Kuualoha
Giugni Sergeant at Arms
Room S321
The Capitol
Washington, D.C. 20510

Dear Mr. Giugni:

Since the issuance of Executive Order 12196, the Occupational Safety and Health Administration (OSHA) and the Federal agencies have been concerned with the issue of reprisal and how to provide adequate protection for Federal employees when they exercise their rights provided under the Executive Order and 29 CFR Part 1960, Basic Program Elements for Federal Employee Occupational Safety and Health Programs.

The responsibility for establishing procedures and for assuring that reprisals do not occur is placed clearly on the agency by both the Executive Order and the Department of Labor's implementing regulations, 29 CFR Part 1960. The adequacy of procedures has been the subject of frequent discussion by the Federal Advisory Council on Occupational Safety and Health.

To bring a degree of uniformity to agencies' reprisal programs and OSHA's evaluation of those programs, we are presenting the following eight elements which we believe are essential for the protection of employees from reprisals:

* Issuance by the agency head of a strong policy statement to management and employees identifying employee involvement in the safety and health program as an important goal of management and stating that the taking of reprisal action against an employee for identifying unsafe or unhealthful working conditions or for other involvement in the program is not to be condoned;

* Dissemination of information on employees' right to free from reprisal for exercising rights under Executive Order 12196;

* Investigation of reprisal complaints by an official with the necessary ability and authority to conduct an effective inquiry within appropriate time frames and to recommend redress if warranted;

* The right of appeal to the agency head or an appropriate deputy if the employee is dissatisfied with the initial denial of the reprisal complaint:

* Provision of timely information to any certified safety and health committees and collective bargaining representatives concerning the findings of the investigation and the determination;

* A means of informing the appropriate agency safety and health office of allegations of reprisal and their disposition if theme officials are not involved in the investigation or adjudication: and

* Inclusion of criteria in the agency's self evaluation program which will provide information regarding the effectiveness of the reprisal program.

It is our hope that you will review your current reprisal program to ensure that it contains all eight elements and modify that procedure to include any element not addressed.

OSHA for its part will utilize these eight elements, as well as actual case experience, to judge the adequacy of reprisal procedures when conducting an evaluation of an agency safety and health program. OSHA will also continue to work through your safety office to resolve any reprisal allegations and any deficiencies alleged in agency investigative reports brought to our our attention.

Should there be any question about these procedures, please contact Mr. Leo Carey, Director, Directorate of Field Operations, OSHA, on 523-7725.

Sincerely



John A. Pendergrass
Assistant Secretary

Enclosure


 

BACKGROUND

- Legal Authority

The Act:

Section 11 (c) which defines the Secretary's role in private sector reprisal cases does not apply in the Federal sector.

Section 19 which addresses "Federal Agency Safety Programs and Responsibilities" is silent on the issue of reprisal.

Executive order 12196:

Section 1-201 (f) requires the head of each Federal Agency to "Establish procedures to assure that no employee is subject to restraint, interference, coercion, discrimination or reprisal for filing a report of an unsafe or unhealthy working condition, or other participation in agency occupational safety and health program activities."

29 CFR Part 1960.46

Section 1960.46 (a) expands somewhat on the requirement of the Executive Order. The responsibility is clearly on the head of the agency to protect employees from reprisal but specific guidelines as to how this is to be done are not provided.

Section 1960.46 (b) required the Secretary of Labor to evaluate agency procedures and provide findings and recommendations to the President regarding the handling of allegations of reprisal.

History

Section 46 (b) report to the President:

OFAP surveyed the Federal agencies to determine what they were doing to prevent reprisal actions from occurring.

Most agencies relied on existing grievance procedures. Some confusion was found to exist about the use of these procedures to prevent reprisals and a lack of knowledge on the part of employees was also apparent.

Decision was to assist agencies in clarifying and publicizing the use of procedures to prevent reprisal and not to establish a separate procedure for prevention of OSH reprisals.

Interface with OPM:

CPM assured OSHA and the FACCSH that sufficient procedures existed in the Federal sector which an agency could utilize as their reprisal procedure or part thereof.

OFAP attempted to develop with CPM an instructive paper for inclusion in the Federal Personnel Manual which would outline the various existing procedures which could be utilized by an agency in formulation of its reprisal prevention program.

A final document was never completed - the draft version relied almost solely on the negotiated grievance procedure.

Reprisal experience:

Allegations of reprisal have been referred to OFAP by Regional & Area Offices, Congressmen or sent in directly by a complainant.

Regional staff has expressed its concern for the adequacy of existing procedures - based on its experience in the field.

Few agencies appear to have fully developed and implemented reprisal procedures - based on evaluations of agency OSH programs.

The grievance procedures appear to contain several inherent weaknesses - the individual complainant cannot always retain control over the case since the union must bring it forward: the cost of the grievance procedure might serve to discourage presentation of all but the strongest cases; on large facilities with different unions, the grievance procedure might differ from one case to the next; employees not in the bargaining unit may be covered by a separate agency grievance procedure; and management could be without a procedure; and management could be without reprisal procedure at all.

OSHA Plan of Action:

In an attempt to offer an element of standardization to the situation both for agency programs and OSHA's evaluation of those programs, we are presenting the following eight elements addressing both the positive and remedial aspects of a program we believe essential for the protection of employees from reprisal:

* Issuance by the Agency head of a positive policy statement to management and employees identifying employee involvement in the safety and health program as an important goal of management and stating that the taking of reprisal action against an employee for identifying unsafe or unhealthful working conditions or for other involvement in the program as a practice not to be condoned;

* Dissemination of information on employees' right to be free from reprisal for exercising rights under Executive Order 12196:

* Dissemination of information regarding the details of where and with whom to file a reprisal complaint;

* Investigation of reprisal complaints by an official with the necessary ability and authority to conduct an effective inquiry within appropriate time frames and to recommend redress if warranted:

* The right of appeal to the agency head or an appropriate deputy in event the reprisal complaint is denied;

* Provision of timely information to any certified safety and health committees and collective bargaining representatives concerning the findings of the investigation and the determination:

* A means of informing the appropriate agency safety and health office of allegations of reprisal and their disposition if these officials are not involved in the investigation or adjudication; and

* Inclusion of criteria in the agency's self evaluation program which will provide information regarding the effectiveness of the reprisal program.

OSHA will utilize these eight elements to judge the adequacy of reprisal procedures when conducting an evaluation of an agency safety and health program. OSHA will also use actual case experience in those evaluations.

OSHA will continue to work through an agency's safety staff to resolve any reprisal allegations and any discrepancies alleged to exist in the agency's investigative report brought to the attention of OSHA. The attached flow chart depicts how we anticipate this process working.