OSHA Sues Company for Firing Suspected Whistleblower

The U.S. Department of Labor has filed suit against Brocon Petroleum Inc., and its president, Richard Kohler, on behalf of an employee who was terminated in violation of the whistleblower provisions of the Occupational Safety and Health Act. The Freehold construction company specializes in municipal sanitation projects.

The complaint alleges that the defendants terminated the employee in retaliation for the employee engaging in a protected activity. OSHA conducted an inspection of the employer's worksite in response to an anonymous complaint about safety practices at the worksite. The defendants later that day fired the complainant because they believed the complainant had contacted OSHA.

The former employee filed a complaint with OSHA alleging retaliation by the defendants in violation of Section 11(c) of the OSH Act. OSHA investigated the complaint and determined it had merit. After being notified of OSHA's findings, the defendants refused to reinstate the employee to the same or a substantially equivalent position of employment and to pay back wages or other employment benefits.

"Employees should be free to exercise their rights under the law without fear of termination or retaliation by their employers," said Louis Ricca Jr., OSHA's acting regional administrator in New York . "This lawsuit underscores the Labor Department's commitment to vigorously take action to protect those rights."

Filed in the U.S. District Court for the District of New Jersey, the complaint seeks to reinstate the employee; secure compensatory damages, lost back pay and punitive damages; and require the company to post a notice in a prominent place for 60 days that explains employee rights under Section 11(c) of the OSH Act.

OSHA enforces the whistleblower provisions of the OSH Act and 15 other statutes protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental, rail, and securities laws. Detailed information on employee whistleblower rights, including fact sheets, is available online at: http://www.osha. gov/dep/oia/ whistleblower/ index.html.
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White House Aide Resigns Amid Probe of Cuba Funds
By Pablo Bachelet
McClatchy Newspapers
Friday 28 March 2008

Washington - A White House aide has resigned amid a Justice Department investigation into allegations that he misused an unspecified amount of U.S. grant money intended to promote democracy in Cuba.
Felipe Sixto, a Cuban-American from Miami, was the special assistant to President Bush for inter-governmental affairs, dealing with Cuba, Native American issues, state legislators, Latino elected officials and Puerto Rico.
The White House announced his resignation Friday. Before joining the administration last summer, Sixto had been chief of staff to Frank Calzon, the head of the Washington-based Center for a Free Cuba, which receives some of the funds through the U.S. Agency for International Development.
Sixto didn't respond to e-mails or phone calls to his home.
Officials provided no details on the allegations. White House spokesman Blair Jones said the White House learned of the allegations from Sixto when he resigned from his post on March 20.
"Our understanding is that Mr. Sixto allegedly had a conflict of interest with the use of USAID funds in his former employment," Jones said. White House lawyers investigated and referred the matter to the Department of Justice.
Calzon said he welcomed the investigation. He didn't say how much money was involved.
Florida Republican Reps. Ileana Ros-Lehtinen and Mario and Lincoln Diaz-Balart said in a joint statement that they were "deeply disturbed by any allegation of misuse of taxpayer funds" and urged the Department of Justice and the USAID's inspector general "to move thoroughly and swiftly in investigating all the facts in this matter."
Joe Garcia, a Democrat running to unseat Mario Diaz-Balart, said the resignation underscored "the fundamental flaws of a policy designed to win votes in Miami and patronize partisan supporters, not bring freedom to Cuba."
"Millions of dollars intended to fuel a democratic change in Cuba are ending up in the hands of Bush/Diaz-Balart cronies and never makes it to the island," Garcia said. U.S. policy should require that at least 80 percent of the money be made available to Cuban opposition groups on the island, he added.
In 2006, the Government Accountability Office pointed out that most Cuba grants were awarded without competitive bids, and it found some instances of abuse, such as the purchase of cashmere sweaters with U.S. taxpayer money. But the report also found that the grant money led to large amounts of equipment and literature getting distributed to Cuban democracy activists.
Calzon's Center for a Free Cuba works with foreign governments and activists in Cuba to raise awareness of human rights abuses and distributes literature and other materials on the island. Calzon said it was the center that initiated an investigation in mid-January when the allegation of misused funds emerged.
Calzon said he expects that any misappropriated funds will be returned to the federal government.
Sixto, who is in his late 20s, is married and has one child.

Things are not going well for many whistleblowers. Gerald Eastman is a good example. His trial in King County Courts is more of a railroad ride to a lynching than a trial. King County Prosecutor's Office appears to me to be entirely too connected to The Boeing Company, and the Judge has narrowed the scope of the trial as to eliminate looking at the big picture including what Mr. Eastman, as a whistleblower, did to resolve safety inspection violations and a big risk to the American public. He went through the complaint process of his company, and then went to FAA, which has been thoroughly corrupted for some time. Mr. Eastman did not know that it appears and went there in good faith, believing FAA would uphold the law and federal regulations in it’s oversight role. They did not. Then Mr. Eastman went to Department of Transportation (DOT) Office of Inspector General (OIG) and fared no better, as they also are having significant problems as are many federal oversight, investigative and oversight agencies this past 8 years. It appears the Judge may also go along with Boeing's attempt to refuse to acknowledge Mr. Eastman is indeed a whistleblower and has a right to whistleblower protections. Also, the Judge appears to be going along with Boeing refusing to respect Sarbanes-Oxley. This is an absolutely unacceptable miscarriage of Justice.

Please, help derail this train, as this so called trial is a travesty and an insult to the trust of the American public in their justice system.


GFS

Report Details Limitations Faced By Federal Inspectors General
By Darryl Fears
Washington Post Staff Writer
Friday, February 29, 2008; A17

Inspectors general appointed to uncover waste, fraud and misconduct in federal agencies often lead underfunded and poorly staffed units and are not as independent as the public has been led to believe, according to a study released yesterday by the Project on Government Oversight (POGO).
The study noted that more than half the 64 inspectors general are not appointed by the president or subject to Senate confirmation hearings. They are appointed by agency heads who in many cases control the watchdogs' budgets and have on occasion retaliated against them over unfavorable reports by cutting funding or denying promotions to staff members, the report said.
"The inescapable conclusion is that an IG who lacks independence is an impostor -- even calling such an office 'Inspector General' confuses the press and public and can create pitfalls for potential whistleblowers," the nonprofit advocacy group concluded.
The current system was created by the Inspector General Act of 1978, which Congress passed in an effort to place controls on government agencies after the Watergate and other scandals.
A 2006 report to the president showed that audits by inspectors general resulted in potential savings of nearly $10 billion and that financial recoveries from investigations netted another $7 billion. Investigations also led to 6,500 indictments or charges, 950 civil actions and more than 7,000 suspensions and debarments.
Jane Lee, a spokeswoman for the Office of Management and Budget, which oversees the watchdog system, said the POGO report proves that "IGs are as effective today as they have ever been." She said that, contrary to POGO's report, the IGs "help identify and eliminate waste" and that, since the start of the Bush administration, "there is more transparency and public reporting about what is working and not."
But the report said the inspectors general lack the tools for independence that would give their investigations more bite. It includes a survey of inspectors general: 30 appointed by the president and 34 appointed by the heads, generally, of smaller agencies.
Inspectors general appointed by the president for agencies such as the Agriculture and State departments reported having staffs that include hundreds of auditors, investigators and other personnel, as well as a staff attorney for legal matters.
But respondents at smaller agencies reported having much smaller staffs, and few had an independent legal counsel. The one at the Election Assistance Commission has a single staff member. Those at the Consumer Product Safety Commission and the International Trade Commission have two each, greatly limiting their ability to launch and complete audits or investigations.
The report highlighted the hostility inspectors general sometimes face. When then-Smithsonian Institution Inspector General Debra S. Ritt refused to end an audit of high-ranking officials, for example, her budget was cut, and she resigned, according to the report.
Paul Brachfeld, inspector general for the National Archives, praised the study. He said his staff of 18, which includes three investigators, is not big enough to monitor an agency that has 3,000 employees, 30 facilities, and treasure troves of historic and classified documents.
"You can't be the sheriff of Mayberry with three criminal investigators," Brachfeld said. Inspectors general "are independent in intent, but there are pressures that fall upon you that make it difficult. I still receive an evaluation from the head of the agency. Sometimes at risk to yourself, you have to reach out for support outside the agency," he said.
POGO recommends the creation of a council of inspectors general so they could share staffs and independent lawyers. The group suggests setting fixed terms for inspectors general and providing their offices with budgets in which expenditures would not require the approval of agency heads. The group also says inspectors general should be prohibited from accepting cash awards and bonuses, but that their pay should be raised.
Legislation pending in the House and the Senate calls for remedies favored by the advocacy group. Separate bills in the House and the Senate would create a slate of qualified candidates who could be called upon when positions open, to ensure that vacancies are filled by people with accounting, auditing, investigation and management skills.

Boeing leaks 'for the greater good,' Eastman said
Ex-worker says he meant no harm
By ANDREA JAMES
P-I REPORTER

Without a doubt, Gerald Eastman violated Boeing company policy when he spoke with reporters. A King County Superior Court jury will decide if he also violated the law.
Eastman, accused of 16 counts of computer trespass, testified Monday that he had met with Seattle Times reporter Dominic Gates, and had shown him portions of documents that Boeing views as sensitive. But the quality assurance inspector said he did so only to highlight what he calls corruption at Boeing.
Boeing searched for three years to root out the source of numerous newspaper articles citing internal Boeing documents. The company's investigation culminated with Eastman's arrest in May 2006.
Each count against Eastman corresponds with a document that charging papers say was the basis for a Seattle Times article.
Senior deputy prosecutor Scott Peterson on Monday called his big gun witness: Former 787 program chief Mike Bair.
Boeing Commercial Airplanes' senior leadership team is so cautious about information leaks that it meets in a room without exterior windows, Bair said. The room is also swept for recording devices, and wireless technology is not allowed.
"We were nervous that somebody could intercept it in the parking lot," Bair said.
Bair said that the leaks to The Seattle Times were so disturbing that Boeing considered a polygraph test of its leadership team.
"Initially, we thought the source of the leaks had to be one of the 10 or 12 people on the leadership team, or the two or three support people in meetings during conversations," Bair said.
But management scrapped the polygraph idea when it "decided that would look bad when that leaked out," Bair said.
"Everyone knows we live in a duopoly with a competitor that is heavily subsidized by the French, German and U.K. governments," Bair told the jury. "And every day is intensely competitive with Airbus."
Boeing investigators questioned those privy to the information, and checked phone and e-mail records, Bair said.
Among the files confiscated from Eastman's home computer, the biggest "heart-stopper" concerned airplane concessions, Bair said.
Concessions are the closely guarded difference between the list price of an airplane and what Boeing actually charges customers.
"This is as close to the jewels you can get in terms of sensitive information," Bair told the jury.
If an airline buys a jet and then finds out that its competitor paid millions less for the same plane, "We'd have a social problem with that customer," Bair said.
On cross-examination, Bair admitted that the concession data never appeared in any media reports.
Eastman later testified that he did not give concession information to The Times, "because it was my intention not to hurt Boeing in any way or release any info that would hurt Boeing."
Eastman told the jury that he needed to access Boeing documents to expose that the Chicago-based company did not do a thorough job of inspecting planes in production.
While working as a quality assurance inspector in Tukwila, he wrote to Boeing management, the Federal Aviation Administration and Sens. Patty Murray and Maria Cantwell about what he viewed as fraud in Boeing's airplane production.
Eastman said he was building up a relationship with Gates to prepare him for a larger story on inspections.
"I was serving the greater good and Boeing, trying to stop what Boeing was doing," Eastman said on cross-examination. "The public's lives were at stake. They may not be strangers like the jury here, but they were still people's lives and I care about them."
During a three-year relationship with Gates, Eastman said, "I was very judicious in giving only stuff that would not damage the company."
One of the jurors upon seeing Bair remembered that he used to work for him. Bair still works at Boeing, but is no longer 787 program chief.
The juror works on the 787 program, and has worked as a finance estimator who helped prepare the type of long-range business planning documents that Eastman is accused of leaking.
Judge Monica Benton excused the juror and sent him home, leaving 13 jurors including one alternate.
Jurors were let out early Monday because one juror had a self-inflicted injury involving scissors.
Closing arguments are set for Tuesday.
COMPUTER TRESPASS
Under state law, felony computer trespass is the act of accessing a computer system or database without authorization and with the intent to commit a crime.
In the case of former Boeing employee Gerald Eastman, he is accused of accessing proprietary Boeing files with the intent of theft.
P-I reporter Andrea James can be reached at 206-448-8124 or andreajames@seattlepi.com.

Seattle PI Reader Comments from 4-1-08

“What do you think?”
#400747

Posted by sweetpea123 at 4/1/08 12:30 a.m.
I don't think going to the press over and over again is the way that a whistleblower is generally considered trustworthy.

This guy had ample opportunity to present his findings to the legal community and ethics at the state level.

They will probably nail him to the wall.

#400776

Posted by homegirl at 4/1/08 3:58 a.m.
Just a sour grapes employee. There are lots of them at Boeing!

#400787

Posted by J from Kent at 4/1/08 5:07 a.m.
Oh dear.... the jury was let go early because one of the jurors had a self-inflicted wound from scissors... How will this play in Eastman's sentencing? LOL! What a useless bit of information…

I hope Eastman does time behind bars… the arrogance, “Greater Good.”


Posted by crcgust at 4/1/08 8:03 a.m.
J from Kent - I hope you are not a Bush supporter because the comment "Greater Good" is a pat stand-by for our current government.

#401002

Posted by J from Kent at 4/1/08 9:13 a.m.
crcgust....

lol no, the "greater good" statement is what Eastman is claiming for his 'guidance' as to why he stole documents and company info from Boeing.

I WAS a Bush supporter, then I went to Iraq for a year with the national Guard, and saw first hand the fraud, waste and abuse going on over there…. I will be voting for a Democrat this year….

#401051

Posted by Lloth at 4/1/08 10:12 a.m.
Doing domething illegal for the "greater good" seems to be the new rage these days. This article seems to be the same as Jim McDermott's article, which strangely enough, we cannot comment on in which he says "...I am proud of my role in defense of the First Amendment."

There are very few times where violating the law (or rules as may be applicable) is trumped by the greater good and this example is not one, nor is Mr. McDermott's

#401092

Posted by handsome at 4/1/08 10:39 a.m.
From what I have heard and read I believe that the jury has to assess and determine criminal intent - in their deliberations. I cannot believe there was any criminal intent - going on here. I hope that the jury dismisses the charges; and that Mr. Eastman can get on with his life. Boeing has already sent a very strong message to their employees that they will not tolerate leaking info to the press. I get a kick out of all of the leaks that are characterized as "not for attribution" - in our nation's newspapers. If you want to see a scary movie - that deals with this topic - rent and watch - "The Insider". It's about a scientist that testifies against the tobacco industry - and the price to be paid by an individual - that decides to become a whistleblower against a powerful employer/industry group - terrifying movie; and based on a true story.

#401156

Posted by J from Kent at 4/1/08 11:31 a.m.
Let’s not forget, our “vigilante hero” was reportedly willing to stay silent for the right price from Boeing…

#401196

Posted by TATSCO at 4/1/08 12:02 p.m.
Re BOEING PRICES. In some instances having different prices for different buyers is illegal. In this case citing Eastman as "leaking this when he didn't is a good example of the HUBRIS practiced by this company.

The company demonstrated they felt thry were ABOVE THE LAW when they tried to push the first Tanker Deal thru. This resulted in folks going to jail (how much proof do some folks need.

Whistleblower isn't an easy task (I haven't been one but I do write about a lot of bad managers and products in the aerospace industry.

Re disgruntled folks at Boeing. I arrived in Seattle in late 1949 and one of the first things I learned was how the Airplane Company treated their employees -- often poorly. Perhaps the company should look in the mirror rather than out into the parking lot? What causes Paranoia?

JIM (Often a Boeing customer -- never an employee)

#401215

Posted by J from Kent at 4/1/08 12:21 p.m.
TATSCO,
RE prices... it would seem different prices for different customers isn't illegal with this situation- commercial airplanes. Whenever we read about another customer putting pen to paper on a contract, the story ends with a quote similar to:

“List prices for the planes add up to $4.5 billion, but buyers typically negotiate big discounts on large orders.” (courtesy of the SeattlePI http://seattlepi.nwsource.com/business/343402_boeing14.html)

So if it were truly illegal, I think the feds would be on Boeing by now.

The guy was stealing info from his employer and leaking it to the news… If he truly thought he was doing a greater good, again, why was he willing to keep silent for a price? Whistle Blower? No way… I think he was trying to strong-arm the company into a little hush money. I happen to work in the area where he was arrested… he isn’t missed.

#401264

Posted by WBR Supporer at 4/1/08 1:04 p.m.
Things are not going well for many whistleblowers. Gerald Eastman is a good example. His trial in King County Courts is more of a railroad ride to a lynching than a trial. King County Prosecutor's Office appears to me to be entirely too connected to The Boeing Company, and the Judge has narrowed the scope of the trial as to eliminate looking at the big picture including what Mr. Eastman, as a whistleblower, did to resolve safety inspection violations and a big risk to the American public. He went through the complaint process of his company, and then went to FAA, which has been thoroughly corrupted for some time. Mr. Eastman did not know that it appears and went there in good faith, believing FAA would uphold the law and federal regulations in it’s oversight role. They did not. Then Mr. Eastman went to Department of Transportation (DOT) Office of Inspector General (OIG) and fared no better, as they also are having significant problems as are many federal oversight, investigative and oversight agencies this past 8 years. It appears the Judge may also go along with Boeing's attempt to refuse to acknowledge Mr. Eastman is indeed a whistleblower and has a right to whistleblower protections. Also, the Judge appears to be going along with Boeing refusing to respect Sarbanes-Oxley. This is an absolutely unacceptable miscarriage of Justice.

Please, help derail this train, as this so called trial is a travesty and an insult to the trust of the American public in their justice system.

Some of you commenting here are either not very well informed about the whole story, all sides, or are writing in as good sheep for your employer, The Boeing Company.

Find out what is really going on by visiting Mr. Eastman's site: www.thelastinspector.com

And whistleblower support sites such as: http://whistleblowersupporter.typepad.com

#401269

Posted by J from Kent at 4/1/08 1:07 p.m.
again, why was he willing to keep silent for a price?

#401277

Posted by WBR Supporer at 4/1/08 1:15 p.m.
J from Kent, you need to read the whole story. You've got a good deal of it wrong! (Unless you are one of the Boeing managers or attorneys, then I suppose you are looking out after your own best interests.) Also, I know from accurate sources there are many open investigations concerning the Boeing Company right now which are in many many three and four letter acronym oversite, investigative, and law enforcement agencies. You don't know this apparently, because this sort of thing generally does not get into the paper unless a whistleblower sends it in.

And folks, Mr. Eastman's attempts to get wrongdoing exposed, rectified and dealt with responsibly is not about politics. The Boeing Company, the FAA and DOT OIG were all about politics though when Mr. Eastman was attempting to get the problems solved. Political appointees and their concern for political loyalty over safety and what is right for the American public are what they appear to be about.

#401290

Posted by J from Kent at 4/1/08 1:28 p.m.
WBR Supporer
are you inside the company? I don't hink I have it that wrong....

#401370

Posted by Leelaw at 4/1/08 2:56 p.m.
@ WBR Supporer

How does Sarbox apply to Mr. Eastman's case and/or provide him with an affirmative defense for his actions?

#401404

Posted by WBR Supporer at 4/1/08 3:33 p.m.
J from Kent,

I am not inside the company, but have a number of very good sources, well placed. The statements by the company regarding pay offs were misrepresented seemingly by the company to discredit Mr. Eastman and tar him with the label of "common criminal" rather than the whistleblower he is, according to what I have learned about the progression of events and motivations.

Think about it. If they can deny Sarbanes-Oxley requirements which govern whistleblower situations, successfully define Mr. Eastman as a criminal, not a whistleblower, and control the scope of the trial, so that the full picture is not shown, they can finally deep six him, and move on gleefully.

It is a sorry mess. I feel what the company is doing is huge embarassment to everyone. It is too bad we cannot feel proud of this once based in Seattle, now basted elsewhere company.

#401416

Posted by WBR Supporer at 4/1/08 3:51 p.m.
Sarbanes-Oxley had been ammended, or added to with Whistleblower protections enhanced some years ago. These apply to the air/transportation industry, fed. workers and others. Although the protections are not sufficient, they do contain some of the prohibited personnel practices allegedly policed by the OSC and MSPB. also there are requirements for transparency to a certain degree, and that information cannot be withheld from a whistleblower or other such as investigator etc. By Boeing denying that any of this applies, and trying to narrow the scope of the issue for trial, if they are successful in pulling that off, they deprive Mr. Eastman, the whistleblower, of what few protections he legally has afforded to him by the United States government.
Report violation
#401424

Posted by WBR Supporer at 4/1/08 3:56 p.m.
Oh, also earlier on, it was reported in one of the recent articles in the PI/Times that The Boeing Company was refusing to release information needed by Mr. Eastman's attorney in order to prepare his defense.

Apparently Boeing, with the help of King County, had appropriated all of Mr. Eastman's paperwork and evidence when he was first temporarily arrested a couple of years ago, leaving him with nothing to present in his defense at this trial which did not occur until they pressed charges some years later. The company refused to release the information and hurried the trial along, at least that is how it appears to me.
Report violation
#401446

Posted by WBR Supporer at 4/1/08 4:21 p.m.
I see from a story posted on http://whistleblowersupporter.typepad.com
titled "OSHA Sues Company for Firing Suspected Whistleblower.

The U.S. Dept. of Labor filed suit against Brocon Petroleum, Inc and its President, Richard Kohler. OSHA filed on behalf of an employee who was terminated in violation of the whistleblower provisions of the Occupational Safety and Health Act.

The point is that the complaint was that the defendants (company)terminated the employee in retaliation for the employee engaging in a protected activity, (whistleblowing). OSHA processed this case and required the company to reinstate the employee to the same or a substantially equivalent position of employment and to pay back wages or other employment benefits. The company refused and defied OSHA's ruling.

OSHA's Lois Ricca Jr. the New York regional administrator, is quoted as saying "Employees should be free to exercise their rights under the law without fear of termination or retaliation by their employers."

The article further states that OSHA enforces the whistleblower provisions of the OSH Act and 15 other statutes protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental, rail, and securities laws. Detailed information on employee whistleblower rights, including fact sheets, is available online at:

http://www.osha.gov/dep/oia/whistleblower/index.html

May be a few other whistleblowers, such as maybe Mr. Eastman, should consult with OSHA.