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United States Government Accountability Office: 
GAO: 

Report to Congressional Committees: 

March 2014: 

Whistleblower Protection Program: 

Opportunities Exist for OSHA and DOT to Strengthen Collaborative 
Mechanisms: 

GAO-14-286: 

GAO Highlights: 

Highlights of GAO-14-286, a report to congressional committee. 

Why GAO Did This Study: 

Transportation workers who “blow the whistle” on prohibited practices 
can help ensure that their employers comply with federal laws. Within 
the Department of Labor, OSHA investigates whistleblower claims, filed 
by transportation employees who believe their employers have 
retaliated against them for reporting unlawful practices. The Moving 
Ahead for Progress in the 21st Century Act (MAP-21), required OSHA to 
establish protections for auto industry employees and required GAO to 
review OSHA's efforts and transportation-related whistleblower claims. 
GAO examined (1) steps OSHA has taken to include auto industry 
employees in its whistleblower program and the extent to which OSHA 
collaborated with DOT components to address potential safety 
violations, and (2) the number of transportation-related whistleblower 
claims in the last 6 years and stakeholder-identified factors that may 
affect those numbers. GAO compared agency documents against key 
practices for collaboration, and interviewed federal agency officials 
and stakeholders representing transportation modes covered by these 
statutes to identify factors that may affect the number of 
whistleblower claims reported by OSHA. 

What GAO Found: 

The Occupational Safety and Health Administration (OSHA) has taken 
steps to include auto industry employees in its Whistleblower 
Protection Program and has coordinated with the Department of 
Transportation (DOT) on whistleblower issues, but interagency 
collaborative mechanisms could be strengthened. Among other steps, 
OSHA is developing procedures for how it will investigate claims from 
auto employees and estimates most of its efforts will be completed in 
2014. OSHA documents its collaboration with DOT's component agencies 
on whistleblower protections by developing memorandums of agreements 
(MOA), and currently MOAs cover aviation and rail employees; the 
agencies are considering developing MOAs to cover other transportation 
sectors such as commercial motor-carrier employees. Officials from 
both OSHA and DOT believe it is important to identify or refer 
potential claims of retaliation and safety violations to each other. 
In September 2012, GAO concluded that collaboration is critical when 
meaningful results that the federal government seeks to achieve 
require the coordinated efforts of more than one federal agency. Among 
others, key practices of effective collaboration include clearly 
delineating roles and responsibilities and monitoring progress. OSHA 
and DOT officials agree that following GAO's key practices would be 
beneficial. However, the agencies have an opportunity to strengthen 
current and future MOAs by clearly delineating roles and 
responsibilities, and determining how the agencies' efforts will be 
monitored and evaluated. For example, the current MOAs do not clearly 
define agency roles and responsibilities with respect to developing 
training on whistleblower issues and regional coordination. Defining 
such responsibilities could help ensure beneficial training occurs and 
the agencies avoid miscommunication and inconsistent whistleblower 
processes involving referrals between the agencies' regional offices. 
Additionally, since the agencies have not developed or documented how 
they would monitor referrals, neither OSHA nor DOT can assess whether 
the referral process is working as intended. By monitoring and 
evaluating the outcomes of referrals, the agencies would have more 
assurance that they are addressing the safety violations and claims of 
retaliation raised by transportation-related employees. 

The number of transportation-related whistleblower claims filed with 
OSHA has increased in the last 6 years—-from 508 in fiscal year 2008 
to 821 in fiscal year 2013-—and GAO's interviews with transportation 
industry stakeholders identified several factors that might affect 
those numbers and how they could be interpreted. These factors include 
multiple avenues to address safety issues, employee awareness of 
whistleblower protections, and statutory whistleblower provisions, 
among others. The identified factors are not mutually exclusive and 
could either increase or decrease the number of whistleblower claims. 
For example, officials representing three transportation modes noted 
that multiple safety-reporting mechanisms, such as anonymous hotlines, 
can indirectly affect whether employees file whistleblower claims 
since employees are less likely to face retaliation when reporting 
safety issues anonymously. Regarding statutory whistleblower 
provisions, the statute covering rail employees provides the largest 
number of protected activities, and this protection, according to rail 
industry officials, has enabled rail employees to file more 
whistleblower claims than other transportation employees. 

What GAO Recommends: 

OSHA and DOT should evaluate their current and in-process MOAs and 
incorporate key practices for collaboration. Neither agency agreed or 
disagreed with the recommendation. OSHA stated that it believes its 
MOAs incorporate key practices, but GAO continues to believe the MOAs 
can be strengthened. 

View [hyperlink, http://www.gao.gov/products/GAO-14-286]. For more 
information, contact Lori Rectanus at (202) 512-2834 or 
rectanusl@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

OSHA Has Initiated Efforts to Include Auto Employees in Its 
Whistleblower Program, but Has Opportunities to Enhance Collaborative 
Mechanisms with DOT: 

Transportation-Related Whistleblower Claims Have Increased, and 
Stakeholders Identified Various Factors Potentially Affecting the 
Number of Claims: 

Conclusions: 

Recommendation for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Differences in the Transportation-Related Whistleblower 
Statutes: 

Appendix II: Objectives, Scope, and Methodology: 

Appendix III: Disposition of Whistleblower Claims from the Office of 
Administrative Law Judges and Administrative Review Board: 

Appendix IV: Comments from the U.S. Department of Labor: 

Appendix V: GAO Contact and Staff Acknowledgments: 

Related GAO Products: 

Table: 

Table 1: Government Officials and Industry Representatives We 
Interviewed: 

Figures: 

Figure 1: Information on Department of Transportation Whistleblower 
Statutes: 

Figure 2: Federal Whistleblower Investigation and Review Process: 

Figure 3: Number of Whistleblower Claims for Transportation-Related 
Statutes, Fiscal Years 2008-2013: 

Figure 4: Disposition of Transportation-Related Whistleblower Claims 
That OSHA Closed in Fiscal Year 2013: 

Figure 5: Key Differences in the Whistleblower Protection Process of 
the Transportation-Related Statutes: 

Figure 6: Disposition of Whistleblower Claims That the Office of 
Administrative Law Judges Closed in Fiscal Year 2012: 

Figure 7: Disposition of Whistleblower Claims That the Administrative 
Review Board Closed in Fiscal Year 2012: 

Abbreviations: 

ALJ: Administrative Law Judge: 

AIR21: Wendell H. Ford Aviation Investment and Reform Act of the 21st 
Century: 

ARB: Administrative Review Board: 

DOT: Department of Transportation: 

FAA: Federal Aviation Administration: 

FMCSA: Federal Motor Carrier Safety Administration: 

FRA: Federal Railroad Administration: 

FRSA: Federal Railroad Safety Act: 

FTA: Federal Transit Administration: 

MAP-21: Moving Ahead for Progress in the 21st Century Act: 

MOA: memorandums of agreement: 

NHTSA: National Highway Traffic Safety Administration: 

NTSSA: National Transit Systems Security Act: 

PHMSA: Pipeline and Hazardous Materials Safety Administration: 

PSIA: Pipeline Safety Improvement Act: 

OALJ: Office of Administrative Law Judges: 

OSHA: Occupational Safety and Health Administration: 

STAA: Surface Transportation Assistance Act: 

[End of section] 

United States Government Accountability Office: 
GAO:
441 G St. N.W. 
Washington, DC 20548: 

March 19, 2014: 

The Honorable John D. Rockefeller IV: 
Chairman: 
The Honorable John Thune: 
Ranking Member: 
Committee on Commerce, Science, and Transportation: 
United States Senate: 

The Honorable Fred Upton: 
Chairman: 
The Honorable Henry A. Waxman: 
Ranking Member: 
Committee on Energy and Commerce: 
House of Representatives: 

Transportation industry employees who "blow the whistle" on prohibited 
or unlawful practices they discover through their employment can play 
an important role in ensuring that their employers comply with federal 
laws. Currently, there are six federal statutes that prohibit 
employers in various transportation industries from discriminating or 
retaliating against these employees.[Footnote 1] If whistleblowers in 
these transportation industries believe they experienced reprisals 
(such as being fired) for participating in protected activities, they 
can file a claim with the Department of Labor's Occupational Safety 
and Health Administration (OSHA). Through its Whistleblower Protection 
Program, OSHA investigates and reviews whistleblower claims.[Footnote 
2] To carry out its responsibilities for investigating whistleblower 
claims, OSHA coordinates with relevant federal agencies that oversee 
those industries. For example, in the case of the various 
transportation-related statutes, OSHA coordinates with the Department 
of Transportation (DOT). As the federal agency responsible for 
developing and enforcing regulations to ensure a safe transportation 
system that employers in the transportation sectors must follow, DOT 
investigates potential transportation-related safety issues to 
determine whether any DOT regulations have been violated. 

The Moving Ahead for Progress in the 21st Century Act (MAP-21), 
enacted in 2012, mandated protections for individuals employed in the 
auto industry and expanded OSHA's responsibility to investigate the 
whistleblower claims from auto industry workers.[Footnote 3] MAP-21 
also directed that we review OSHA's efforts to include auto industry 
workers in the Whistleblower Protection Program.[Footnote 4] In this 
report, we present information on (1) the steps OSHA has taken to 
include auto industry employees in its whistleblower program and the 
extent to which OSHA has collaborated with DOT components to address 
potential safety violations, and (2) the number of transportation-
related whistleblower claims in the last 6 years and stakeholder-
identified factors that might affect those numbers. We also present 
information on the differences in the transportation-related 
whistleblower statutes (see appendix I) and the disposition of claims. 

To address these issues, we examined the whistleblower provisions of 
the six statutes covering transportation workers in industries 
regulated by DOT[Footnote 5]: (1) MAP-21,[Footnote 6] (2) the Federal 
Railroad Safety Act,[Footnote 7] (3) the National Transit Systems 
Security Act,[Footnote 8] (4) the Surface Transportation Assistance 
Act,[Footnote 9] (5) the Pipeline Safety Improvement Act,[Footnote 10] 
and (6) the Wendell H. Ford Aviation Investment and Reform Act for 
21st Century.[Footnote 11] We reviewed our previous reports on 
whistleblower protections and pertinent documentation from OSHA and 
DOT, including memorandums of agreement (MOA), and interviewed key 
federal agency officials on efforts to coordinate whistleblower 
protections for employees in the transportation industry. We compared 
the agencies' MOAs with our key practices for effective collaboration. 
[Footnote 12] We also analyzed OSHA data on the number of 
whistleblower claims for fiscal years 2008 to 2013 and the disposition 
of claims in fiscal year 2013. To determine the reliability of OSHA's 
data on whistleblower claims, we reviewed relevant documentation and 
interviewed cognizant officials about their processes for reviewing 
the data and ensuring their accuracy. We determined the data used to 
be sufficiently reliable with attribution to official sources for 
conveying general information on OSHA's receipt of complaints over the 
last 6 years and claim dispositions for fiscal year 2013. 

To identify factors affecting whistleblower claims, we interviewed a 
broad array of stakeholders from 44 organizations representing six 
different transportation industries. The stakeholders include 
officials from organizations representing employees and employers in 
the different transportation industries and nonprofit and advocacy 
groups representing whistleblowers. We selected these stakeholders 
because among other things, they are significant stakeholders in the 
transportation industries, and they represented a significant number 
of members in each of the six transportation industries; they were 
also referred by other stakeholders, including federal government 
officials and experts in whistleblower issues. The factors we 
identified are based on information gathered from the stakeholders and 
should not be viewed as identifying all factors that could affect the 
number of whistleblower claims made; however, the factors were 
consistently raised by the various stakeholders. The factors we report 
are limited to those identified by the stakeholders noted above and 
may not include all factors that could be identified. Also, the 
factors that we have identified should not be viewed as being 
representative of all transportation sector representatives and 
stakeholders. 

We conducted this performance audit from May 2013 to March 2014 in 
accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. Further 
details on our scope and methodology can be found in appendix II. 

Background: 

As the primary federal agency responsible for administering the 
Whistleblower Protection Program, OSHA is responsible for 
investigating whistleblower claims under 22 statutes, 6 of which 
contain protections for employees in the transportation industries who 
are regulated by DOT. The 6 transportation-related statutes also 
include basic transportation safety provisions, which are administered 
by different DOT component agencies, as shown in figure 1. While OSHA 
investigates whistleblower claims, DOT investigates potential safety 
violations to determine whether any of its regulations have been 
violated and can refer employees alleging retaliation to OSHA. In 
fiscal year 2012, OSHA had a budget of approximately $16 million and 
119 full-time employees to administer the whistleblower program. 

Figure 1: Information on Department of Transportation Whistleblower 
Statutes: 

[Refer to PDF for image: illustrated table] 

Transportation-related statutes: Federal Railroad Safety Act (FRSA); 
Year of enactment of whistleblower provision: 1980[A]; 
Employees covered: Employees of railroad carriers, or contractors or 
subcontractors; 
DOT component administering transportation safety provision: Federal 
Railroad Administration (FRA) and Federal Transit Administration (FTA); 
Approximate number of employees in industry in 2012: 287,000. 

Transportation-related statutes: Surface Transportation Assistance Act 
(STAA); 
Year of enactment of whistleblower provision: 1983; 
Employees covered: Private sector drivers, including independent 
contractors while personally operating a commercial motor vehicle and 
other employees of commercial motor carriers; 
DOT component administering transportation safety provision: Federal 
Motor Carrier Safety Administration (FMCSA); 
Approximate number of employees in industry in 2012: 2,263,000. 

Transportation-related statutes: Wendell H. Ford Aviation Investment
and Reform Act (AIR21); 
Year of enactment of whistleblower provision: 2000; 
Employees covered: Employees of air carriers or their contractors or 
subcontractors. Contractors are defined as companies that perform 
safety sensitive functions by contract for air carriers; 
DOT component administering transportation safety provision: Federal 
Aviation Administration (FAA); 
Approximate number of employees in industry in 2012: 1,117,000. 

Transportation-related statutes: Pipeline Safety Improvement Act 
(PSIA); 
Year of enactment of whistleblower provision: 2002; 
Employees covered: Employees of pipeline facilities, contractors or 
subcontractors; 
DOT component administering transportation safety provision: Pipeline 
and Hazardous Materials Safety Administration (PHMSA); 
Approximate number of employees in industry in 2012: 172,000. 

Transportation-related statutes: National Transit Systems Security Act 
(NTSSA); 
Year of enactment of whistleblower provision: 2007; 
Employees covered: Employees of public transportation agencies or 
their contractors or subcontractors, if the public transportation 
agencies provide regular and continuing general or special 
transportation to the public (e.g., subway, commuter rail, bus system); 
DOT component administering transportation safety provision: Federal 
Transit Administration (FTA); 
Approximate number of employees in industry in 2012: 373,000. 

Transportation-related statutes: Moving Ahead for Progress in the 21st 
Century Act (MAP-21);
Year of enactment of whistleblower provision: 2012; 
Employees covered: Employees of motor vehicle manufacturers, part 
suppliers, and dealerships; 
DOT component administering transportation safety provision: National 
Highway Traffic Safety Administration (NHTSA); 
Approximate number of employees in industry in 2012: 3,709,000. 

Source: GAO analysis of transportation-related statutes, OSHA data, 
and Bureau of Labor Statistics Current Employment Survey. 

[A] FRSA was amended in 2007 to assign responsibility for the 
whistleblower protections to the Department of Labor. 

[End of figure] 

As shown in figure 2, there are several steps in the OSHA 
whistleblower claims process that employees in transportation-related 
industries follow. 

Figure 2: Federal Whistleblower Investigation and Review Process: 

[Refer to PDF for image: process illustration] 

1. Employees file retaliation complaints. 

2. OSHA's regional offices investigate retaliation claims. 

3. Office of Administrative Law Judges (OALJ): Conducts hearings. 

4. Administrative Review Board (ARB): Reviews appealed cases. 

5. Federal Courts: Reviews appealed cases or certain cases under some 
statutes that are not ruled on by OSHA in 210 days. 

Sources: GAO and OSHA. 

[End of figure] 

* First, transportation industry employees file retaliation complaints 
with OSHA. A complaint should address the prima facie elements of a 
violation--that is, the complainant should state that the employee 
engaged in protected activity, the employer knew about the protected 
activity, the employer subjected the employee to an adverse action 
(such as being fired or demoted), and the protected activity 
contributed to the adverse action. OSHA investigators will screen a 
whistleblower claim for these prima facie elements and, if not met, 
dismiss the claim. 

* Second, for claims meeting the prima facie standard, OSHA's regional 
offices conduct an investigation. OSHA's whistleblower investigation 
process involves the following key steps: receive and screen 
complaint, investigate the claim, and write final report and notify 
the parties. If OSHA's investigation shows the complaint does not have 
merit (no reasonable cause to believe there was retaliation), the 
claim is dismissed. If the investigation leads to the Secretary of 
Labor's finding of merit (reasonable cause to believe there was 
retaliation), OSHA issues its finding and a preliminary order, which 
generally includes reinstatement to the employee's previous position 
and back pay and may order other monetary relief. If neither party 
files an objection within the required time frames, the findings and 
the preliminary order become final. (See appendix I for information on 
each statute's time frames.) 

* Third, if either party objects to the Secretary's findings or 
preliminary order, under the DOT transportation-related statutes, 
either party may request a hearing before one of the Department of 
Labor's Administrative Law Judges (ALJ). This review is de novo--it 
does not take into account the Secretary's findings from the OSHA 
investigation. The ALJ then makes a ruling that either upholds or 
overturns the Secretary's finding. 

* Fourth, if either party objects to the ALJ's decision, either party 
may petition for review of the ALJ's decision to the Administrative 
Review Board (ARB) which generally issues the Secretary of Labor's 
final decision. 

* Fifth, ARB's final decision may be appealed to the appropriate 
federal court of appeal. Also, under some of the DOT transportation-
related statutes, whistleblowers may file their complaint in federal 
district court if the Secretary of Labor does not issue a final 
decision within 210 days. See our prior work for detailed information 
on OSHA's whistleblower investigation process.[Footnote 13] 

The whistleblower protection process is generally prescribed in the 
six DOT transportation-related whistleblower statutes, which are 
supplemented by regulations that clarify and set forth specific 
requirements for the whistleblower protection process.[Footnote 14] 
The statutes also provide some time-frames for filing whistleblower 
complaints, investigating whistleblower claims, and issuing a final 
decision. For instance, a whistleblower in the covered transportation 
industries generally has 180 days from when the retaliatory action 
took place to file a claim (except under AIR21, which requires claims 
to be made in 90 days). Once a claim has been filed, OSHA has 60 days 
to issue findings and in cases where there is reasonable cause to 
believe there was retaliation, a preliminary order. However, the 
process could take longer than the 60 days. (See appendix I for more 
information on the differences in the statutory provisions.) Given 
these timeframes, in some cases, whistleblower claims can take years 
to move through the process, from initially filing the claim to 
completion of the appeals process. 

OSHA has been challenged in its ability to conduct investigations in a 
timely manner. In 2009, we examined the processing times for 
whistleblower claims and challenges OSHA faced in administering the 
program.[Footnote 15] At that time, OSHA faced two key challenges--it 
lacked a mechanism to adequately ensure the quality and consistency of 
investigations and many investigators reported they lacked resources, 
such as training, to do their jobs. We made recommendations intended 
to improve the Whistleblower Protection Program and enhance oversight; 
the Department of Labor took actions to address most of our 
recommendations, including revising its information database and 
providing training.[Footnote 16] 

OSHA Has Initiated Efforts to Include Auto Employees in Its 
Whistleblower Program, but Has Opportunities to Enhance Collaborative 
Mechanisms with DOT: 

OSHA Has Taken Preliminary Steps to Establish Whistleblower 
Protections for Auto Employees: 

OSHA is establishing whistleblower protections for auto industry 
employees as required under MAP-21. Specifically, OSHA has started to 
develop an interim final rule, investigative policies and procedures, 
and a fact sheet as follows: [Footnote 17] 

* Interim final rule. According to OSHA officials, the agency is in 
the early stages of developing an "interim final rule"[Footnote 18] 
that will cover whistleblower claims filed under MAP-21. MAP-21's 
whistleblower provisions protect auto industry employees from 
retaliation by motor vehicle manufacturers, parts suppliers, and 
dealerships, for engaging in protected activity related to motor 
vehicle defects. The rule would, among other things, summarize the 
statutory whistleblower provisions and the available remedies, explain 
how to file a claim, and describe OSHA's investigative process. The 
rule was placed on the Department of Labor's fall 2013 regulatory 
agenda;[Footnote 19] according to OSHA, the interim final rule is 
scheduled for publication in October 2014. At the time of our review, 
additional steps that OSHA planned to take in developing the rule 
included researching key issues, drafting the rule in consultation 
with the Solicitor of Labor, sharing the draft with the National 
Highway Traffic Safety Administration (NHTSA), obtaining agency and 
departmental clearance, and submitting the rule to Office of 
Management and Budget for review. OSHA officials told us they did not 
have a project plan or timeline for completing these tasks related to 
development of the rule, but OSHA did have a due date for the overall 
development of the interim final rule. The interim final rule will be 
effective once it is published (currently scheduled for October 2014) 
and there will be a 60-day public comment period. After the comment 
period, OSHA plans to review the public's comments and begin drafting 
a final rule, whereby the drafting and clearance steps described above 
are to be repeated. OSHA then plans to issue the final rule, which may 
incorporate changes based on comments the agency received. 

* Investigative policies and procedures. OSHA is developing the 
policies and procedures for its investigators to use when reviewing 
claims filed by auto industry employees. According to OSHA, these 
policies and procedures will outline the procedures for handling 
retaliation complaints under the auto whistleblower statute and will 
be included in OSHA's Whistleblower Investigations Manual.[Footnote 
20] Until these procedures are finalized in fiscal year 2014, OSHA has 
instructed its investigators to follow procedures under the Consumer 
Product Safety Improvement Act of 2008, because the procedures under 
this statute are similar to the MAP-21 whistleblower statute for auto 
industry employees.[Footnote 21] 

* Fact sheet. OSHA is developing a whistleblower fact sheet that 
describes employees' protected activities under MAP-21 and how to 
report a claim of retaliation to OSHA. OSHA plans to publish the fact 
sheet for auto industry employees in 2014 and post it on its 
Whistleblower Protection Program webpage.[Footnote 22] 

OSHA and DOT Could Strengthen Their Collaborative Mechanisms: 

According to OSHA and DOT officials, memorandums of agreement (MOA) 
are key documents through which the agencies document their 
collaboration. Although MOAs are not required by law, officials at 
both agencies said that the MOAs provide benefits, such as 
establishing a process between the agencies to communicate, exchange 
information, and work on common issues involving transportation safety 
violations that may arise from whistleblower complaints. In addition, 
agency officials said the MOAs provide continuity between the agencies 
as agency staff change and help to ensure that current staff 
understand what information should be shared. The MOAs include, among 
other things, background information on the agencies' responsibilities 
and areas of cooperation. 

OSHA has established MOAs or has plans under way to do so with several 
DOT components. For example, OSHA has established an MOA with the 
Federal Aviation Administration (FAA) covering aviation employees, and 
with the Federal Railroad Administration (FRA) covering rail employees 
in 2002 and 2012, respectively.[Footnote 23] These MOAs are available 
on OSHA's website and transportation industry employees and the public 
can access the documents. Although OSHA had not yet established MOAs 
with DOT components covering the remaining transportation industries, 
OSHA officials told us they were in the process of developing an MOA 
with the Federal Motor Carrier Safety Administration (FMCSA) to cover 
commercial drivers and other motor carrier employees and the Pipeline 
and Hazardous Materials Safety Administration (PHMSA) to cover 
pipeline employees. OSHA officials said they plan to finalize the MOAs 
with FMCSA and PHMSA in 2014.[Footnote 24] OSHA requested an 
introductory meeting with the Federal Transit Administration (FTA) to 
discuss whether an MOA is needed to cover public transit employees. 
[Footnote 25] OSHA and NHTSA agreed that due to the low complaint 
volume under MAP-21 for auto employees, an MOA is not needed at this 
time. According to OSHA, the agencies will maintain established points 
of contact, keep lines of communication open, and continue to share 
information. Furthermore, OSHA officials said regardless of whether 
MOAs are developed with all DOT component agencies, OSHA has 
established points of contact at each component agency and will 
continue to share information with these agencies. 

In our past work, we concluded that collaboration is critical when 
meaningful results that the federal government seeks to achieve 
require the coordinated efforts of more than one federal agency. 
[Footnote 26] Following key practices for effective collaboration can 
help agencies address a range of challenges, including policy 
development, program implementation, oversight and monitoring, 
information sharing and communication, and organizational capacity for 
training.[Footnote 27] For this review, we determined that two of the 
key practices are directly relevant to OSHA's efforts to collaborate 
with DOT: (1) defining roles, responsibilities, and authorities; and 
(2) defining outcomes and monitoring progress toward outcomes. OSHA 
and DOT officials agree that these key practices are beneficial for 
effective collaboration and believe the key practices we identified 
have been incorporated in the existing MOAs. However, based on our 
review of the existing MOAs, we found that the practices were not 
fully incorporated as discussed below. 

Roles and Responsibilities: 

As our prior work has shown, when agencies work together to define and 
agree on their respective roles and responsibilities, as well as steps 
for decision making, clear purposes and goals can be achieved. For 
example, as part of this effort, agencies can begin to clarify who 
will do what, identify how to organize their joint and individual 
efforts, and articulate steps for decision making.[Footnote 28] Our 
review of the MOAs between OSHA and DOT components found the 
agreements document some roles and responsibilities across broad areas 
of collaboration and provide the framework for working together and 
defining collaboration, for example: 

* Officials from both OSHA and DOT have said that it is in their 
interests to share information--that is, to identify or refer 
potential claims of retaliation and safety violations to the other 
agency. Specifically, if an employee reports a potential safety 
violation directly to OSHA, it is beneficial for OSHA to refer the 
employee to DOT since DOT components investigate the allegations of 
potentially unsafe conditions. To facilitate referrals between the 
agencies, OSHA's MOAs with FAA[Footnote 29] and FRA state that when an 
individual notifies FAA or FRA of alleged discrimination that involves 
air-carrier or rail-carrier safety, the DOT agencies will inform the 
individual that a personal remedy is available only through OSHA and 
that the individual should personally contact OSHA.[Footnote 30] 
Additionally, according to OSHA's Whistleblower Investigation Manual, 
OSHA should provide all incoming retaliation complaints, findings, and 
orders to the relevant DOT agency. 

* OSHA's MOAs with FAA and FRA require OSHA to provide FAA and FRA 
copies of all complaints and any findings filed under the relevant 
statute. FAA recently established a secure electronic mailbox designed 
to receive such complaints and findings from OSHA. Additionally, FAA 
is using that e-mail mailbox to securely communicate with OSHA to 
confirm receipt of a complaint or finding, refer a new complaint, and 
notify staff of safety enforcement actions and outcomes FAA initiated 
based on OSHA-referred complaints or findings. FRA officials said that 
all OSHA complaints relevant to FRA are sent to FRA headquarters where 
they are scanned into a database and reviewed for any potential 
violations of FRA safety regulations. FRA staff summarizes how FRA 
handles the complaint and this information is added to FRA's file. 

OSHA's current MOAs include general descriptions of the agencies' 
respective authorities and responsibilities and, according to agency 
officials, are intended to be broad, flexible agreements to facilitate 
cooperation. However, the existing MOAs do not clearly define roles 
with respect to training and regional coordination between the 
agencies. For example, although the FRA MOA includes information on 
developing training, the MOA with FAA does not because in general, 
OSHA officials said a more specific MOA may quickly become outdated or 
inoperable. Nevertheless, it is unclear which agency--FAA or OSHA--
would develop or provide any training to assist FAA enforcement staff 
in recognizing alleged discrimination complaints that must be referred 
to OSHA and to assist OSHA staff in recognizing potential violations 
of federal air safety regulations that should be reported to DOT. OSHA 
officials said their investigative staff would benefit from additional 
training because a key challenge the staff face is to fully understand 
the differences in the transportation industries and statutes. Having 
roles and responsibilities with respect to training clearly 
articulated in the FAA MOA (and other MOAs as they are developed) 
could help ensure such training takes place. 

Regarding regional coordination, neither of the existing MOAs 
specifically defined roles with respect to regional coordination, and 
as a result, it is not clear or transparent how referrals are 
coordinated between OSHA and DOT's regional offices. For example, in 
the case of FRA, before April 2011, each regional office had its own 
practices for responding to OSHA investigators' requests for 
whistleblower-related information, which resulted in FRA investigators 
being unaware of their roles and responsibilities regarding the type 
of information they could share with OSHA. In April 2011, FRA issued 
detailed guidance about responding to OSHA's requests for information. 
FRA developed a centralized approach to respond to OSHA's requests. 
However, FRA's guidance was issued to FRA's regional offices, and not 
to OSHA's regional offices and it was unclear whether OSHA's regional 
investigators were aware of FRA's policies. By more clearly defining 
agency roles and responsibilities regarding how regional coordination 
will occur, the agencies may be better able to avoid miscommunication 
and address inconsistent whistleblower processes involving referrals 
between the agencies' regional offices. 

Outcomes and Monitoring Progress: 

In September 2012, we concluded that federal agencies engaged in 
collaborative efforts need to create the means to monitor and evaluate 
their efforts.[Footnote 31] Reporting on these activities can help key 
decision makers within the agencies, as well as clients and 
stakeholders, to obtain feedback for improving both policy and 
operational effectiveness. With respect to whistleblower complaints, 
it would be beneficial for OSHA and DOT to track, monitor, and 
document the outcomes of the referral processes they have established--
that is, the referrals from DOT to OSHA of potential claims of 
retaliation and the referrals from OSHA to DOT of potential safety 
violations.[Footnote 32] Although OSHA's MOAs with FAA and FRA 
establish these referral processes, the agencies did not develop or 
document an approach for tracking, monitoring, and overseeing the 
referral processes. Without such data or developing and documenting an 
approach, neither OSHA nor DOT can assess whether the referral process 
is working as intended. OSHA officials said FAA and OSHA are 
developing a new MOA to streamline the agencies' whistleblower 
processes for referrals to make them more efficient and consistent. 
However, since some referrals could involve serious safety concerns 
from other transportation industries that do not yet have established 
MOAs with OSHA, it is important that all transportation-related 
referrals be tracked, monitored, and evaluated. According to OSHA 
officials, OSHA identifies its intended outcomes for the whistleblower 
program overall within its operating plan, and specific information on 
monitoring outcomes of OSHA's collaboration with DOT regarding 
whistleblower referrals is not included in the plan. We believe by 
establishing a means to monitor and evaluate the referral processes in 
the MOAs, OSHA and the DOT component agencies would be able to 
identify areas for improvement and better ensure that appropriate 
steps are taken with respect to referrals that include safety 
violations. 

Transportation-Related Whistleblower Claims Have Increased, and 
Stakeholders Identified Various Factors Potentially Affecting the 
Number of Claims: 

Whistleblower Claims Have Increased in the Last 6 Fiscal Years: 

Overall, the number of transportation-related whistleblower claims 
increased during the last 6 fiscal years--from 508 in fiscal year 2008 
to 821 in fiscal year 2013 (see figure 3). A sharp rise in claims 
filed by rail employees, discussed later in this report, accounted for 
most of the increase in the number of claims. Claims from other 
transportation industry employees fluctuated during that time. In 
fiscal year 2013, one whistleblower claim was filed in the auto 
industry (under the new provisions in MAP-21). 

Figure 3: Number of Whistleblower Claims for Transportation-Related 
Statutes, Fiscal Years 2008-2013: 

[Refer to PDF for image: stacked vertical bar graph] 

Fiscal year: 2008; 
Federal Railroad Safety Act (FRSA): 45; 
Surface Transportation Assistance Act (STAA): 357; 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR21): 85; 
National Transit Systems Security Act (NTSSA): 18; 
Pipeline Safety Improvement Act (PSIA): 3; 
Moving Ahead: N/A. 

Fiscal year: 2009; 
Federal Railroad Safety Act (FRSA): 145; 
Surface Transportation Assistance Act (STAA): 306; 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR21): 92; 
National Transit Systems Security Act (NTSSA): 15; 
Pipeline Safety Improvement Act (PSIA): 3; 
Moving Ahead: N/A. 

Fiscal year: 2010; 
Federal Railroad Safety Act (FRSA): 201; 
Surface Transportation Assistance Act (STAA): 306; 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR21): 75; 
National Transit Systems Security Act (NTSSA): 14; 
Pipeline Safety Improvement Act (PSIA): 2; 
Moving Ahead: N/A. 

Fiscal year: 2011; 
Federal Railroad Safety Act (FRSA): 338; 
Surface Transportation Assistance Act (STAA): 312; 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR21): 65; 
National Transit Systems Security Act (NTSSA): 17; 
Pipeline Safety Improvement Act (PSIA): 6; 
Moving Ahead: N/A. 

Fiscal year: 2012; 
Federal Railroad Safety Act (FRSA): 384; 
Surface Transportation Assistance Act (STAA): 347; 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR21): 59; 
National Transit Systems Security Act (NTSSA): 14; 
Pipeline Safety Improvement Act (PSIA): 2; 
Moving Ahead: N/A. 

Fiscal year: 2013; 
Federal Railroad Safety Act (FRSA): 348; 
Surface Transportation Assistance Act (STAA): 360; 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR21): 86; 
National Transit Systems Security Act (NTSSA): 19; 
Pipeline Safety Improvement Act (PSIA): 7; 
Moving Ahead: 1. 

Source: OSHA's Whistleblower Protection Program statistics. 

[End of figure] 

Auto industry stakeholders we contacted, including employers and 
employee representatives, expect the number of whistleblower claims 
from auto employees to be low because they believe the industry has 
multiple reporting mechanisms in place, which enables employees to 
raise safety concerns through those avenues. For example, 
representatives from the five major auto makers we spoke with noted 
that a safety-reporting system exists internally within each company, 
and the companies expect and encourage their employees to report any 
safety concerns without retaliation. All of the auto makers we 
contacted said they have a reporting program, such as a hotline, to 
allow employees to raise safety issues anonymously via the phone or by 
e-mail, and a process for evaluating and addressing, as appropriate, 
the reported safety issues. One auto maker we contacted said it has an 
employee award program, which honors its employees for identifying and 
reporting any safety concerns on its automobiles, rather than 
retaliating against employees for raising safety issues. Union 
officials we contacted also mentioned that grievance procedures and a 
neutral arbitration process exist internally within one auto company 
and, as a result, they expect very few whistleblower claims from auto 
employees at that company. On the other hand, union officials also 
told us that many auto employees may not be aware of their 
whistleblower protections under MAP-21, which could also lead to fewer 
claims with OSHA. 

Stakeholders Cited Various Factors That Might Affect the Number of 
Whistleblower Claims: 

Stakeholders we contacted consistently identified multiple factors 
that need to be considered when looking at the number of whistleblower 
claims filed.[Footnote 33] These factors are not mutually exclusive 
and could either increase or decrease the number of whistleblower 
claims filed with OSHA. The factors include (1) industry-specific 
characteristics, (2) multiple avenues to address safety issues or a 
strong safety culture, (3) awareness of whistleblower protection 
rights, (4) fear of retaliation, (5) statutory whistleblower 
provisions, and (6) a high number of dismissed claims. 

Industry-Specific Characteristics: 

Stakeholders we contacted consistently cited unique characteristics 
and cultural differences in each transportation industry as a factor 
in the number of whistleblower claims. For example, they noted that 
the number of workers in an industry could play a role. Specifically, 
a commercial motor vehicle industry official noted that the large 
number of active truck drivers, compared to the number of employees in 
other transportation industries contributes to the number of 
whistleblower claims made by truck drivers. In other words, since 
there are so many truck drivers, the number of workers who may file a 
claim might be statistically larger than in other transportation 
industries. The Bureau of Labor Statistics reported more than 2.2 
million employees in the commercial motor vehicle industry, compared 
to about 1.1 million and 287,000 in the aviation and rail industries, 
respectively, in 2012. 

The presence of labor unions may also contribute to the number of 
whistleblower claims, according to rail and aviation industry 
stakeholders we contacted. In a 2011 study of employees and 
whistleblowers in the work place, the Ethics Resources Center found 
that union employees, who are often provided certain contractual 
protections, had much higher rates of reporting specific misconduct 
than nonunion employees.[Footnote 34] Officials from OSHA and rail 
employee groups we contacted also noted that the relationship between 
employees and management in the rail industry and the working 
conditions for rail employees has been challenging, such as working up 
to 16 hours a day and suffering from chronic injuries on the job, 
which has likely contributed to employees filing more whistleblower 
claims. 

Multiple Avenues to Address Safety Issues or a Strong Safety Culture: 

The extent to which employees are able to successfully report safety 
violations also affects the number of potential claims, according to 
officials from the aviation, pipeline, and public transit industries 
and unions we interviewed. The availability of multiple safety-
reporting mechanisms, such as safety hotlines provided by companies 
and the industry, can affect whether employees file whistleblower 
claims. Officials told us that when employees can report safety issues 
anonymously, they are less fearful of retaliation. Federal safety 
programs are also available to serve as an avenue for reporting safety 
issues. For instance, FAA established various voluntary disclosure 
reporting and partnership programs, which allow aviation employees to 
report safety concerns and events with protection from legal or 
disciplinary action by FAA or others, even if the reporting employee 
caused the safety violation.[Footnote 35] According to aviation union 
officials we contacted, this type of collaborative program with labor, 
management, and FAA may have contributed to the decreasing volume of 
whistleblower claims since fiscal year 2009, although the numbers have 
increased in fiscal year 2013. Aviation union officials also noted how 
such programs have changed the aviation industry culture and allowed 
employees to report their mistakes and work on resolving safety 
issues, rather than fearing disciplinary actions or retaliation. 
Similar to the aviation industry, pipeline union officials we 
contacted told us that pipeline companies are encouraged to establish 
an environment where employees can report safety concerns without 
retaliation. A 2011 survey of employees in the workplace found that 
employees are more likely to report unlawful or prohibited practices 
if employees feel confident about their job security and are not 
worried about retaliation.[Footnote 36] 

Awareness of Whistleblower Protection Rights: 

Rail-industry and commercial motor-vehicle industry officials we 
contacted consistently noted employees' awareness of whistleblower 
protection rights as another factor that may increase or decrease the 
number of claims. Union officials noted that educating rail employees 
on whistleblower protection rights may contribute to the higher number 
of whistleblower claims from rail workers because employees are more 
aware of their rights. According to rail union officials, they made a 
concerted effort to educate their members on whistleblower protection 
rights soon after the Federal Rail Safety Act was amended in 2007. 
[Footnote 37] FRA officials also noted that more rail workers are 
learning from various sources about OSHA's enforcement of 
whistleblower protections for rail employees, which might have led to 
the increase in whistleblower claims.[Footnote 38] In contrast, 
pipeline union officials noted that the lower number of whistleblower 
claims in the pipeline industry may also be attributed to pipeline 
workers' lack of awareness of OSHA's whistleblower protection program. 
A union official representing one segment of truck drivers and a 
whistleblower attorney representing truck drivers cited lack of 
education on whistleblower protection rights by both employers and 
employees as a contributing factor to the number of whistleblower 
claims. On the other hand, this official also noted that long-haul 
truck drivers and independent owner-operators of trucks may be more 
aware of whistleblower protection rights than truck drivers in other 
industries, an awareness that could help explain the high number of 
whistleblower claims in the commercial motor-vehicle industry. 

Fear of Retaliation: 

Officials representing rail and truck drivers and a whistleblower 
attorney we contacted said that fear of retaliation is a factor that 
could cause employees to underreport safety violations and also file 
fewer whistleblower complaints. For example, officials representing 
truck drivers noted that truck drivers may break federal safety 
regulations, such as driving beyond the maximum number of service 
hours, to avoid getting fired or facing other retaliation from their 
employers.[Footnote 39] Independent truck drivers are paid by the mile 
and are under pressure by employers to extend driving beyond the 
regulated service hours each day, which may compromise the ability of 
the drivers to drive trucks safely. Officials representing truck 
drivers told us that if truck drivers do not want to drive beyond the 
required service hours and compromise safety, then employers may 
retaliate in many different ways, including providing no loads (i.e., 
goods or products) to be delivered. Those representatives and two 
whistleblower attorneys we contacted said employers can also retaliate 
by filing fictitious reports on truck drivers, such as reporting that 
a truck driver abandoned a load, in their employment history, so no 
one else would hire them.[Footnote 40] Since truck drivers are afraid 
of getting "black-listed" if they make any safety complaints, they may 
be less likely to report any safety violations. Officials representing 
independent truck drivers also noted that whistleblower claims may be 
from new drivers because more experienced drivers are too fearful to 
file claims. New drivers may also be more aware of whistleblower 
protections since the Federal Motor Carrier Safety Administration 
began requiring whistleblower training as part of the entry-level 
requirements for commercial drivers in July 2004.[Footnote 41] 

Statutory Whistleblower Provisions: 

Side bar: 

Example of a Whistleblower Claim: 

A truck driver filed a whistleblower claim alleging that his employer 
violated his rights under the Surface Transportation Assistance Act 
when the employer blacklisted him and placed an unfavorable notation 
on his employment report. This retaliation stemmed from the truck 
driver's refusal to drive an unsafe truck and filing a complaint about 
violations of commercial vehicle safety regulations related to the 
unsafe truck. In December 2008, the employee filed a complaint with 
OSHA. After OSHA investigated the claim, it was appealed through ALJ's 
and ARB's de novo review process. The ARB affirmed ALJ's decision and 
issued a decision in favor of the employee in June 2012. 

Source: GAO analysis of Administrative Review Board data. 

[End of side bar] 

Differences in the statutory provisions related to the number of 
protected activities and availability of punitive damages may also 
contribute to variations in the number of filed whistleblower claims, 
according to rail and public transit officials we contacted. In 
particular, rail industry officials told us that the larger number of 
protected activities for rail employees compared with other 
transportation-related whistleblower statutes has enabled more rail 
employees to file claims. Rail union officials told us that, on the 
other hand, the additional protected activities have had a positive 
effect on rail employees as rail carriers are less likely to retaliate 
against employees for reporting injuries. The Federal Rail Safety Act 
provides 12 categories of protected activities for rail employees, 
including prohibiting employers from retaliating against employees for 
notifying rail carriers or DOT of a work-related injury or illness and 
medical and first-aid treatment.[Footnote 42] Other transportation-
related statutes have no such protection for covered employees. 
According to OSHA officials, about 60 percent of whistleblower claims 
filed by rail workers involved injury reporting over the years. OSHA 
recently began meeting with representatives from air, rail, and 
trucking industries to discuss the effectiveness of existing 
legislation in addressing practices that threaten employees' ability 
to raise safety concerns, among other things.[Footnote 43] 
Additionally, rail industry officials told us that the availability of 
punitive damages in some statutes may be another contributing factor 
to the number of whistleblower claims. Rail, trucking, and pipeline 
employees are eligible to receive punitive damages if OSHA determines 
their whistleblower claims to be of merit. Rail industry officials 
noted that after the Federal Rail Safety Act was amended in 2007, 
increasing the amount of punitive damages that could be collected, the 
number of claims from rail workers began increasing.[Footnote 44] 

High Number of Dismissed Claims: 

Officials representing rail, aviation, and public transit employees 
and truck drivers, and a whistleblower attorney told us that the high 
number of dismissed claims may discourage other employees, who may 
believe they have been retaliated against, from filing a claim. As 
shown in figure 4, some 49 percent of transportation-related claims 
OSHA closed in fiscal year 2013 were dismissed, while 3 percent of the 
claims were found to have merit. According to OSHA officials, 
whistleblower claims were dismissed for various reasons, including 
that the claims were filed past the deadline or had insufficient 
evidence to demonstrate the employer had violated the whistleblower 
provisions. Additionally, about 52 percent (64) of the 123 claims that 
were closed by the OALJ and about 66 percent (19) of 29 claims that 
were closed by ARB in fiscal year 2012 were also dismissed. More 
information on the disposition of transportation-related whistleblower 
claims that were closed in fiscal year 2012 by OALJ and ARB can be 
found in appendix III.[Footnote 45] 

Figure 4: Disposition of Transportation-Related Whistleblower Claims 
That OSHA Closed in Fiscal Year 2013: 

[Refer to PDF for image: illustrated table] 

Transportation-related statutes: Federal Railroad Safety Act (FRSA); 
Merit: 17 (4%); 
Settled[A]: 110 (28%); 
Kicked out[B]: 34 (9%); 
Dismissed: 173 (43%); 
Withdrawn: 65 (16%); 
Total number of closed cases: 399. 

Transportation-related statutes: Surface Transportation Assistance Act 
(STAA); 
Merit: 11 (3%); 
Settled[A]: 83 (22%); 
Kicked out[B]: 5 (1%); 
Dismissed: 191 (51%); 
Withdrawn: 85 (23%); 
Total number of closed cases: 375. 

Transportation-related statutes: Wendell H. Ford Aviation Investment 
and Reform Act (AIR21); 
Merit: 2 (2%); 
Settled[A]: 18 (20%); 
Kicked out[B]: N/A; 
Dismissed: 53 (60%); 
Withdrawn: 15 (17%); 
Total number of closed cases: 88. 

Transportation-related statutes: Pipeline Safety Improvement Act 
(PSIA); 
Merit: 0; 
Settled[A]: 0; 
Kicked out[B]: N/A; 
Dismissed: 5 (83%); 
Withdrawn: 1 (17%); 
Total number of closed cases: 6. 

Transportation-related statutes: National Transit Systems Security Act 
(NTSSA); 
Merit: 0; 
Settled[A]: 1 (9%); 
Kicked out[B]: 0; 
Dismissed: 5 (45%); 
Withdrawn: 5 (45%); 
Total number of closed cases: 11. 

Transportation-related statutes: Total: 
Merit: 30 (3%); 
Settled[A]: 212 (24%); 
Kicked out[B]: 39 (4%); 
Dismissed: 427 (49%); 
Withdrawn: 171 (19%); 
Total number of closed cases: 879. 

Source: OSHA's Whistleblower Protection Program statistics. 

Note: Percentages may not sum to 100 because of rounding. 

[A] The number of settled claims includes both settlements where OSHA 
investigators actively assisted both parties (complainant and 
respondent) in reaching an agreement, where possible, and those where 
OSHA did not participate in the settlement negotiations. Settled 
claims may also have merit, but they were categorized as "settled" if 
both parties reached an agreement. 

[B] Kicked out claims are those filed under FRSA, STAA, and NTSSA, 
where the complainants decided to file civil actions in federal 
district courts for de novo review, where there had been no final 
decision of the Secretary of Labor within 210 days of filing the 
claim, and there had been no delay due to the complainant's bad faith. 

[End of figure] 

Officials representing rail, aviation, and public transit employees 
and truck drivers we contacted attributed the high number of dismissed 
claims to inconsistent investigation and significant differences in 
the investigation of whistleblower claims among OSHA's regional 
offices; the officials told us that while the investigative process is 
fair and reasonable in some regional offices, other regional offices 
are not. Another official representing transportation employees told 
us that there could be a different investigation process and decision 
for the same type of whistleblower claim depending on which OSHA 
regional office was handling the claim. In September 2010, the 
Department of Labor's Office of Inspector General reported that OSHA 
did not always ensure that whistleblower claims were appropriately 
investigated and could not provide assurance that complainants were 
protected as intended under the various whistleblower protection 
statutes.[Footnote 46] The DOL-OIG recommended, among other things, 
that OSHA oversee and monitor investigations, and OSHA agreed. OSHA 
officials told us that steps have been taken to improve the 
investigative process, such as further training of investigators and 
increased staffing. In December 2013, OSHA completed its first 
regional audit. OSHA is also planning to establish a work group to 
look at developing a consistent process for OSHA's regions to use when 
they conduct case file audits of the whistleblower program. OSHA plans 
to establish the work group in March 2014 and plans to develop a 
process by September 2014. OSHA plans to incorporate this process into 
OSHA's overall audit process. 

Although the number of transportation-related whistleblower claims has 
increased in the last 6 years, the reported number of claims can be 
interpreted various ways, yielding little meaningful information. For 
example, a low number of whistleblower claims could mean that 
employees are not retaliated against for reporting safety violations. 
But a low number of claims could also mean that employees are so 
fearful of retaliation that they choose not to report safety 
violations in the first place, or even that employees who have been 
retaliated against for reporting a safety violation are so discouraged 
by the high number of dismissed claims that they choose not to file a 
claim. Our interviews with key stakeholders revealed numerous factors 
that could affect the number of claims made. Because of the factors 
identified by stakeholders, it is difficult to use the number of 
claims as an indication of whether employees are taking appropriate 
advantage of their protections under whistleblower laws. 

Conclusions: 

The ability of transportation workers to report safety violations or 
other unsafe conditions without fear of reprisal is protected by law. 
While OSHA has primary responsibility for administering the 
Whistleblower Protection Program for these workers, collaboration with 
DOT is critical because of DOT's role to enforce the underlying safety 
provisions of the transportation-related whistleblower statutes. 
Consistent with key practices for effective collaboration, OSHA and 
DOT document their agreements through MOAs that are publicly 
available, and at the time of our review, the agencies had two 
existing MOAs and were in the process of developing MOAs for almost 
all of the other transportation industries. There are opportunities to 
strengthen these MOAs by following key practices for effective 
collaboration, especially related to (1) clearly delineating roles and 
responsibilities for training and regional coordination and (2) 
monitoring program outcomes. It is unclear which agencies will develop 
training and how they will coordinate their regional offices' 
activities and how the referral processes will be monitored to ensure 
that goals and desired outcomes are achieved. Clearly delineating 
roles and responsibilities for conducting training and for 
coordinating regional offices' activities could help ensure that 
training occurs and that the agencies avoid miscommunication and 
inconsistent processes involving referrals between their regional 
offices. Additionally, lacking clarity on how the agencies will 
evaluate and report on the results of the referral processes, the 
agencies are unable to identify areas for improvement and ensure that 
appropriate steps are taken on safety violations. Finally, if OSHA and 
DOT do not build these practices into their ongoing efforts to develop 
their MOAs, they may miss an opportunity to enhance and sustain 
interagency collaboration through these MOAs. 

Recommendation for Executive Action: 

We recommend that the Secretaries of Labor and Transportation evaluate 
their current and in-process MOAs to ensure that the MOAs incorporate 
key practices for collaboration, such as those practices highlighted 
in this report. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to the Departments of Labor and 
Transportation for their review and comment. The Department of Labor 
provided written comments (reprinted in appendix IV), as well as 
technical comments. The Department of Transportation provided 
technical comments only. We incorporated the technical comments from 
both agencies as appropriate. 

Neither agency stated whether they agreed or disagreed with the 
recommendation that the agencies assess their current and in-process 
MOAs and incorporate key practices for collaboration. While DOT did 
not address the recommendation, OSHA said that it believed its current 
and pending MOAs do incorporate the key collaboration practices that 
we identified in this report but agreed that there was room for 
improvement in the implementation of these key practices when 
collaborating with DOT's agencies. We did not assess the extent to 
which the key practices were actually being implemented. However, as 
discussed in this report, the existing MOAs do not clearly define 
roles and responsibilities with respect to training and regional 
coordination between the agencies, and the agencies did not develop or 
document an approach for tracking, monitoring, and overseeing the 
referral process. Thus, we continue to believe that there are 
opportunities to strengthen the existing MOAs by better delineating 
roles and responsibilities and monitoring program outcomes that may 
help inform the implementation of such practices. Moreover, because 
the pending MOAs were not made available for our review, we were not 
able to determine whether they contained the key practices. 

In technical comments, both agencies also noted that for certain 
industries with low complaint volume such as auto employees, they are 
assessing whether MOAs were needed at this time. We believe this 
approach is contradictory to the agencies' position that MOAs are a 
key way they document their collaboration. Additionally, as we found 
in this report, it is difficult to use the number of claims as an 
indication of whether employees are taking appropriate advantage of 
their protections under whistleblower laws, and so it is not clear why 
the agencies would use this as a determinant in their decision. 
Finally, for auto employees, considering that this law recently passed 
and OSHA is still establishing procedures for how it will address such 
claims, it is not surprising that the number of claims filed to date 
is low. As a result, we encourage OSHA and DOT to consider these 
factors as they assess the need for MOAs. 

We are sending copies of this report to the Secretaries of Labor and 
Transportation and the appropriate congressional committees. In 
addition, the report will be available at no charge on the GAO website 
at [hyperlink, http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact me at 202-512-2834 or rectanusl@gao.gov. Contact points for 
our Offices of Congressional Relations and Public Affairs may be found 
at the last page of this report. Contact information and major 
contributors to this report are listed in appendix V. 

Signed by: 

Lori Rectanus: 
Acting Director, Physical Infrastructure Issues: 

[End of section] 

Appendix I: Differences in the Transportation-Related Whistleblower 
Statutes: 

OSHA is responsible for administering the whistleblower protection 
provisions of six transportation-related federal statutes. These 
statutes are supplemented by regulations that set forth specific 
requirements for the whistleblower protection process. Such a process 
often includes an investigation, an administrative review (which can 
include the Office of Administrative Law Judges (OALJ) and the 
Administrative Review Board (ARB), and potential legal action in a 
U.S. court. Many provisions of the statutes are similar, including a 
60-day deadline for determining the initial findings of an OSHA 
investigation, a de novo review of appealed whistleblower claims, and 
some remedies, such as back pay. There are key differences in the 
whistleblower protection process, as shown in figure 5. 

Figure 5: Key Differences in the Whistleblower Protection Process of 
the Transportation-Related Statutes: 

[Refer to PDF for image: illustrated table] 

Transportation-related statutes: Moving Ahead for Progress in the 21st
Century Act (MAP-21); 
Deadline to file complaint: 180 days; 
Deadline for appealing to the ALJ: 30 days; 
Deadline for the ARB's final decision: 120 days after the hearing 
concludes; 
If the Secretary has not issued a final decision within 210 days of 
the complaint, either party can bring action in District Court to 
review ARB decision: Yes; 
Punitive damages: Ordered by the Secretary and enforceable by the 
Court: No; 
Fines for frivolous complaints[A]: Yes. 

Transportation-related statutes: Federal Railroad Safety Act (FRSA); 
Deadline to file complaint: 180 days; 
Deadline for appealing to the ALJ: 30 days; 
Deadline for the ARB's final decision: 120 days after the hearing 
concludes; 
If the Secretary has not issued a final decision within 210 days of 
the complaint, either party can bring action in District Court to 
review ARB decision: Yes; 
Punitive damages: Ordered by the Secretary and enforceable by the 
Court: Yes; 
Fines for frivolous complaints[A]: No. 

Transportation-related statutes: Surface Transportation Assistance Act 
(STAA); 
Deadline to file complaint: 180 days; 
Deadline for appealing to the ALJ: 30 days; 
Deadline for the ARB's final decision: 120 days after the hearing 
concludes; 
If the Secretary has not issued a final decision within 210 days of 
the complaint, either party can bring action in District Court to 
review ARB decision: Yes; 
Punitive damages: Ordered by the Secretary and enforceable by the 
Court: Yes; 
Fines for frivolous complaints[A]: No. 

Transportation-related statutes: Wendell H. Ford Aviation Investment
and Reform Act (AIR21); 
Deadline to file complaint: 90 days; 
Deadline for appealing to the ALJ: 30 days; 
Deadline for the ARB's final decision: 120 days after the hearing 
concludes; 
If the Secretary has not issued a final decision within 210 days of 
the complaint, either party can bring action in District Court to 
review ARB decision: No; 
Punitive damages: Ordered by the Secretary and enforceable by the 
Court: No; 
Fines for frivolous complaints[A]: Yes. 

Transportation-related statutes: Pipeline Safety Improvement Act 
(PSIA); 
Deadline to file complaint: 180 days; 
Deadline for appealing to the ALJ: 90 days; 
Deadline for the ARB's final decision: 90 days after the hearing 
concludes; 
If the Secretary has not issued a final decision within 210 days of 
the complaint, either party can bring action in District Court to 
review ARB decision: No; 
Punitive damages: Ordered by the Secretary and enforceable by the 
Court: No; 
Fines for frivolous complaints[A]: Yes. 

Transportation-related statutes: National Transit Systems Security Act 
(NTSSA); 
Deadline to file complaint: 180 days; 
Deadline for appealing to the ALJ: 30 days; 
Deadline for the ARB's final decision: 120 days after the hearing 
concludes; 
If the Secretary has not issued a final decision within 210 days of 
the complaint, either party can bring action in District Court to 
review ARB decision: Yes; 
Punitive damages: Ordered by the Secretary and enforceable by the 
Court: Yes; 
Fines for frivolous complaints[A]: Yes. 

Acronyms: 
Office of Administrative Law Judges (ALJ); 
Administrative Review Board (ARB). 

Source: GAO analysis of relevant statutes and regulations. 

Note: Secretary determines that a complaint is frivolous or brought in 
bad faith, the Secretary may award the employer a reasonable 
attorney's fee not exceeding $1,000. 

[End of figure] 

[End of section] 

Appendix II: Objectives, Scope, and Methodology: 

The Moving Ahead for Progress in the 21st Century (MAP-21) mandated 
that we review efforts to include auto industry employees in the 
Occupational Safety and Health Administration's (OSHA) Whistleblower 
Protection Program and provide information on the differences in the 
statutory provisions and the disposition of transportation-related 
whistleblower claims. This report presents information on (1) the 
steps OSHA has taken to include auto industry employees in its 
whistleblower program and the extent to which OSHA has collaborated 
with DOT components to address potential safety violations, and (2) 
the number of transportation-related whistleblower claims in the last 
6 years and stakeholder-identified factors that might affect those 
numbers. 

To address these issues, we examined the whistleblower provisions of 
the six relevant transportation-related statutes: (1) MAP-21, (2) the 
Federal Railroad Safety Act, (3) the National Transit Systems Security 
Act, (4) the Surface Transportation Assistance Act, (5) the Pipeline 
Safety Improvement Act, and (6) the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century. These statutes cover 
transportation industry employees and do not cover federal employees 
who work in DOT. We also reviewed our previous reports on 
whistleblower protection. To examine OSHA's efforts to include auto 
industry employees in whistleblower protection, we reviewed pertinent 
documentation from OSHA and DOT on whistleblower protection and 
interviewed key agency officials from OSHA's Whistleblower Protection 
Program and DOT components on coordinating efforts to administer 
whistleblower protection for transportation industry employees. To 
determine the extent to which OSHA and DOT incorporated key practices 
for effective collaboration, we reviewed regulations authorizing DOT 
to enter into MOAs with OSHA in regard to setting and enforcing 
occupational safety or health standards and whistleblower protections, 
[Footnote 47] and identified key practices to apply to interagency 
collaborative efforts based on our past work on leading collaboration 
practices.[Footnote 48] We reviewed the key practices[Footnote 49] and 
selected two key practices for interagency collaborative efforts--
defining roles and responsibilities and outcomes and monitoring 
progress--because they were the most relevant to our review of OSHA's 
and DOT's collaborative efforts. We analyzed and compared memorandums 
of agreements that were available between OSHA and DOT component 
agencies to determine the extent to which the agencies were following 
key practices for implementing interagency collaborative mechanisms. 
In completing our work, we did not assess the effectiveness of OSHA's 
Whistleblower Protection Program because GAO had recently reviewed the 
effectiveness of the program.[Footnote 50] 

To assess the number of transportation-related whistleblower claims, 
we analyzed OSHA data on the number of whistleblower claims received 
from fiscal years 2008 to 2013 and the disposition of claims that were 
closed in fiscal year 2013. We selected data starting from fiscal year 
2008 to include the number of claims from rail and public transit 
employees that filed with OSHA in the first year after the enactment 
of the National Transit Systems Security Act and amendment of the 
Federal Rail Safety Act in 2007. To determine the reliability of 
OSHA's data on whistleblower claims, we reviewed our previous reports 
recommending improvements on OSHA's data on whistleblower complaints 
and assessed the status of OSHA's implementing our recommendations, 
including reviewing relevant documentation, and interviewing cognizant 
officials about their processes for reviewing the data and ensuring 
their accuracy. In general, based on the corrective actions that were 
taken, we consider the data used to be sufficiently reliable with 
attribution to official sources for the purposes of providing 
information on the number of transportation-related whistleblower 
complaints received in fiscal years 2008 to 2013 and information on 
the disposition of transportation-related whistleblower claims that 
OSHA closed in fiscal year 2013. We focused on the disposition of 
claims in fiscal year 2013 since the corrective actions were taken 
over time and earlier disposition data are likely to be less reliable. 
We also analyzed data on the disposition of transportation-related 
whistleblower claims that the Office of Administrative Law Judges and 
Administrative Review Board closed to examine other possible 
disposition of claims in the whistleblower review process. We used 
data from fiscal year 2012 from these two agencies because it was the 
most recent data available to us during the time of our review. We 
used the Bureau of Labor Statistics Current Employment Survey to 
obtain data on the 2012 average annual number of employees in the 
different transportation sectors. 

To identify factors affecting the number of whistleblower claims, we 
reviewed literature on whistleblower protection and interviewed 
stakeholders in the different transportation industries, including 
officials from 44 organizations representing employees and employers 
and nonprofit and advocacy groups representing whistleblowers to 
obtain their perspective on factors that impact the filing of 
whistleblower claims. Table 1 below provides a list of all the 
stakeholders we interviewed, including government officials and 
industry representatives in the different transportation industries. 
We selected these stakeholders because among other things, we had 
previously identified them as significant stakeholders in the 
transportation industries, and they represented a significant number 
of members in each of the six transportation industries; they were 
also referred by other stakeholders, including federal government 
officials and experts in whistleblower issues. 

Table 1: Government Officials and Industry Representatives We 
Interviewed: 

Stakeholder groups: Federal government agency officials; 

Stakeholder: 

Department of Labor: 
* Occupational Safety and Health Administration; 
* Office of Administrative Law Judges; 
* Administrative Review Board; 
* Office of Inspector General; 

Department of Transportation: 
* Federal Aviation Administration; 
* Federal Motor Carrier Safety Administration; 
* Federal Railroad Administration; 
* Federal Transit Administration; 
* National Highway Traffic Safety Administration; 
* Pipeline and Hazardous Materials Safety Administration; 
* Office of Inspector General. 

Stakeholder groups: Organizations Representing Employees; 

Stakeholder: 

* Government Accountability Project; 
* National Whistleblower Center; 
* AFL-CIO, Transportation Trade Department; 
* Commercial Vehicle Safety Alliance; 
* Truckers Justice Center; 

Automobiles: 
* International Association of Machinist, Auto Mechanics Local 701; 
* United Auto Workers; 

Aviation: 
* Airline Pilots Association; 
* American Federation of Flight Attendants; 
* International Brotherhood of Teamsters, Airline Division; 

Motor Carriers: 
* International Brotherhood of Teamsters; 
* Owner-Operator Independent Driver Association; 

Pipeline: 
* International Brotherhood of Electrical Workers; 
* International Brotherhood of Teamsters, Pipeline Division; 
* International Union of Operating Engineers; 
* United Association, Pipeliners Local 798; 

Public Transit: 
* American Federation of State, County and Municipal Employees; 
* Transport Workers Union; 
* Union Transportation Union; 

Rail: 
* American Train Dispatchers Association; 
* Brotherhood of Locomotive Engineers and Trainmen; 
* Brotherhood of Maintenance of Ways Employees Division; 
* Transportation Communications International Union. 

Stakeholder groups: Organizations Representing Industry Employers; 

Stakeholder: 

Automobile: 
* Ford; 
* General Motors; 
* Honda; 
* National Automobile Dealers Association; 
* Nissan; 
* Toyota; 

Aviation: 
* Airlines for America; 
* National Air Transportation Association; 
* Regional Airline Association; 

Motor Carriers: 
* American Bus Association; 
* American Trucking Association; 

Pipeline: 
* American Gas Association; 
* American Petroleum Institute; 
* American Pipeline Contractors Association; 
* Association of Oil Pipe Lines; 
* Common Ground Alliance; 

Public Transit: 
* American Public Transportation Association; 
* Community Transportation Association; 

Rail: 
* American Short Line and Regional Railroad Association; 
* Association of American Railroads; 
* National Railroad Construction and Maintenance Association. 

Source: GAO. 

[End of table] 

Based on our interviews with stakeholders, we identified and 
synthesized the factors under major themes. One aspect of the analysis 
was to discern the extent to which a factor was common to all 
transportation sectors or associated with a few or just one sector. 
The factors we report are limited to those identified by the 
stakeholders noted above and may not include all factors that could be 
identified. Also, the factors that we have identified should not be 
viewed as being representative of all transportation sector 
representatives and stakeholders. However, the factors identified are 
illustrative of key issues affecting the number of whistleblower 
claims that were consistently raised by the various stakeholders. 

We conducted this performance audit from May 2013 to March 2014 in 
accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

[End of section] 

Appendix III: Disposition of Whistleblower Claims from the Office of 
Administrative Law Judges and Administrative Review Board: 

After OSHA investigates a whistleblower claim and makes a finding, 
either party to the claim may appeal OSHA's finding to the Office of 
Administrative Law Judges. After the Office of Administrative Law 
Judges reviews and issues a decision, the finding can further be 
appealed to the Administrative Review Board. Most of the claims that 
the Office of Administrative Law Judges and Administrative Review 
Board decided in fiscal year 2012 have been dismissed or 
withdrawn.[Footnote 51] Some reasons for dismissal included: employee 
failure to meet one or more elements of a claim, lack of timeliness of 
complaint, or employee abandonment of the claim. Figures 6 and 7 
illustrate the disposition of whistleblower claims that were closed in 
fiscal year 2012 from the Office of Administrative Law Judges and the 
Administrative Review Board, respectively. 

Figure 6: Disposition of Whistleblower Claims That the Office of 
Administrative Law Judges Closed in Fiscal Year 2012: 

[Refer to PDF for image: illustrated table] 

Transportation-related statutes: Federal Railroad Safety Act (FRSA); 
Favorable to complainant: 3 (17%); 
Settled: 13 (30%); 
Dismissed: 22 (51%); 
Withdrawn: 5 (12%); 
Total: 43. 

Transportation-related statutes: Surface Transportation Assistance Act 
(STAA); 
Favorable to complainant: 4 (7%); 
Settled: 18 (32%); 
Dismissed: 28 (49%); 
Withdrawn: 7 (12%); 
Total: 57. 

Transportation-related statutes: Wendell H. Ford Aviation Investment 
and Reform Act (AIR21); 
Favorable to complainant: 2 (12%); 
Settled: 3 (18%); 
Dismissed: 10 (59%); 
Withdrawn: 2 (12%); 
Total: 17. 

Transportation-related statutes: Pipeline Safety Improvement Act 
(PSIA); 
Favorable to complainant: 0; 
Settled: 0; 
Dismissed: 1 (100%); 
Withdrawn: 0; 
Total: 1. 

Transportation-related statutes: National Transit Systems Security Act 
(NTSSA); 
Favorable to complainant: 2 (40%); 
Settled: 0; 
Dismissed: 3 (80%); 
Withdrawn: 0; 
Total: 5. 

Transportation-related statutes: Total: 
Favorable to complainant: 11 (9%); 
Settled: 34 (28%); 
Dismissed: 64 (52%); 
Withdrawn: 14 (11%); 
Total: 123. 

Source: GAO analysis of the Office of Administrative Law Judges data. 

Note: Percentages may not sum to 100 because of rounding. 

[A] Settled claims may also have merit but they were categorized as 
"settled" if both parties reached an agreement. 

[End of figure] 

Figure 7: Disposition of Whistleblower Claims That the Administrative 
Review Board Closed in Fiscal Year 2012: 

[Refer to PDF for image: illustrated table] 

Transportation-related statutes: Federal Railroad Safety Act (FRSA); 
Favorable to complainant[A]: 
Merit: 0; 
Procedural: 0; 
Dismissed[B]: 
Merit: 1; 
Procedural: 2; 
Settled[C]: 0; 
Withdrawn by either party: 0; 
Denied review: 0. 

Transportation-related statutes: Surface Transportation Assistance Act 
(STAA); 
Favorable to complainant[A]: 
Merit: 1; 
Procedural: 3; 
Dismissed[B]: 
Merit: 5; 
Procedural: 4; 
Settled[C]: 0; 
Withdrawn by either party: 1; 
Denied review: 2. 

Transportation-related statutes: Wendell H. Ford Aviation Investment 
and Reform Act (AIR21); 
Favorable to complainant[A]: 
Merit: 1; 
Procedural: 0; 
Dismissed[B]: 
Merit: 4; 
Procedural: 2; 
Settled[C]: 0; 
Withdrawn by either party: 0; 
Denied review: 0. 

Transportation-related statutes: Pipeline Safety Improvement Act 
(PSIA); 
Favorable to complainant[A]: 
Merit: 0; 
Procedural: 0; 
Dismissed[B]: 
Merit: 0; 
Procedural: 0; 
Settled[C]: 0; 
Withdrawn by either party: 0; 
Denied review: 0. 

Transportation-related statutes: National Transit Systems Security Act 
(NTSSA); 
Favorable to complainant[A]: 
Merit: 0; 
Procedural: 1; 
Dismissed[B]: 
Merit: 0; 
Procedural: 1; 
Settled[C]: 1; 
Withdrawn by either party: 0; 
Denied review: 0. 

Transportation-related statutes: Total: 
Favorable to complainant[A]: 
Merit: 2; 
Procedural: 4; 
Dismissed[B]: 
Merit: 10; 
Procedural: 9; 
Settled[C]: 1; 
Withdrawn by either party: 1; 
Denied review: 2. 

Source: GAO analysis of the Administrative Review Board data. 

Note: Whistleblower claims that reversed the Office of Administrative 
Law Judges' (OALJ) decisions and/or remanded it back to OALJ were not 
included in this analysis. Claims that did not fall under the 
categories above were also excluded. 

[A] Of the 29 whistleblower claims that the Administrative Review 
Board closed in fiscal year 2012, 6 (or about 21 percent) were found 
favorable to complainants based on merit or procedural grounds. 

[B] Of the 29 whistleblower claims that the Administrative Review 
Board closed in fiscal year 2012, 19 (or about 66 percent) were 
dismissed based on merit or procedural grounds. 

[C] Settled claims may also have merit, but they were categorized as 
"settled' if both parties reached an agreement an agreement. 

[End of figure] 

[End of section] 

Appendix IV: Comments from the U.S. Department of Labor: 

U.S. Department of Labor: 
Assistant Secretary for Occupational Safety and Health: 
Washington, D.C. 20210: 

February 26, 2014: 

Lori Rectanus: 
Acting Director, Physical Infrastructure Issues: 
Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Dear Ms. Rectanus: 

Thank you for the opportunity to comment on GAO's proposed report, 
Whistleblower Protection Program: Opportunities Exist, for OSHA and 
DOT to Strengthen Collaborative Mechanisms. The following comments are 
submitted on behalf of the Department of Labor's Occupational Safety 
and Health Administration (OSHA). 

OSHA appreciates the time and effort that GAO placed in its 
evaluation. OSHA believes the report accurately describes the 
statutory and regulatory procedures for handling whistleblower 
complaints filed with OSHA under the Department of Transportation 
(DOT) whistleblower statutes, and the steps OSHA has taken to include 
auto employees in the Whistleblower Protection Program. The report 
also acknowledges the measures OSHA has taken to improve efficiency 
and transparency within the Whistleblower Protection Program. 

As noted in your report. OSHA agrees that clearly defining agency 
roles and responsibilities and monitoring outcomes are key practices 
that are beneficial to effective collaboration between OSHA and its 
DOT agency partners. OSHA believes that our current and pending 
memoranda of understanding (MOAs) with DOT agencies do incorporate 
these practices by providing flexible frameworks under which the 
agencies may establish more specific processes, and may change these 
processes as needed over time. However. OSHA agrees that there is room 
for improvement in the implementation of these key practices when 
collaborating with DOT agencies, whether included in an MOA or 
developed through other interagency communications. 

Additionally, OSHA would like to clarify that the outcomes included 
within its operating plan, referred to on page 12 of the draft report, 
are OSHA's outcome goals for the program overall, rather than outcome 
goals for a specific MOA or collaboration effort. Collaboration with 
federal agency partners, including DOT agencies, is one method OSHA 
utilizes to reach its program goal of conducting effective and 
efficient whistleblower investigations. 

With respect to specific outcome measures for a given MOA. OSHA 
recognizes the value in tracking and monitoring the referral process 
between OSHA and DOT agencies. For example, the MOA with the Federal 
Railroad Administration includes a reporting provision, under which 
the agencies will submit annual reports to each other summarizing 
actions taken throughout the year under the MOA. While the Federal 
Aviation Administration (FAA) MOA does not include a reporting 
provision, FAA and OSHA regularly compare data to track the referral 
process under the MOA and, as noted in the draft report, have improved 
the process by which the agencies submit these referrals. 

OSHA appreciates that opportunity to review and respond to GAO's draft 
report. 

Sincerely, 

Signed by: 

David M. Michaels, PhD, MPH: 

[End of section] 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Lori Rectanus, 202-512-2834, or rectanusl@gao.gov. 

Staff acknowledgments: 

In addition to the contact mentioned above, Sally Moino, Assistant 
Director; Thomas Beall; Colin Fallon; David Hooper; Jennifer Kim; 
Joshua Ormond, and Lisa Shibata made key contributions to this report. 

[End of section] 

Related GAO Products: 

Whistleblower Protection: Actions Needed to Improve DOD's Military 
Whistleblower Reprisal Program. [hyperlink, 
http://www.gao.gov/products/GAO-12-362]. Washington, D.C.: February 
22, 2012. 

Whistleblower Protection: Sustained Management Attention Needed to 
Address Long-Standing Program Weaknesses. [hyperlink, 
http://www.gao.gov/products/GAO-10-722]. Washington, D.C.: August 17, 
2010. 

Whistleblower Protection Program: Better Data and Improved Oversight 
Would Help Ensure Program Quality and Consistency. [hyperlink, 
http://www.gao.gov/products/GAO-09-106]. Washington, D.C.: January 27, 
2009. 

[End of section] 

Footnotes: 

[1] The transportation industries are automotive, aviation, commercial 
motor carriers, pipeline, public transit, and rail. 

[2] In all, OSHA is responsible for investigating whistleblower claims 
under 22 statutes. 

[3] Pub. L. No. 112-141, § 31307, 126 Stat. 405, 765 (2012). 

[4] Pub. L. No. 112-141, § 31307(b), 126 Stat. 405, 765 (2012). 

[5] These statutes cover transportation industry employees, not 
federal government employees who work for DOT. 

[6] 49 U.S.C. § 30171. 

[7] 49 U.S.C. § 20109. 

[8] 6 U.S.C. § 1142. 

[9] 49 U.S.C. § 31105. 

[10] 49 U.S.C. § 60129. 

[11] 49 U.S.C. § 42121. 

[12] GAO, Managing for Results: Key Considerations for Implementing 
Interagency Collaborative Mechanisms, [hyperlink, 
http://www.gao.gov/products/GAO-12-1022], (Washington, D.C.: Sept. 27, 
2012). In conducting its work, GAO interviewed experts in the field of 
collaboration, reviewed collaborative mechanisms used by federal 
agencies, and reviewed and analyzed literature on interagency 
collaborative mechanisms. 

[13] GAO, Whistleblower Protection Program: Better Data and Improved 
Oversight Would Help Ensure Program Quality and Consistency, 
[hyperlink, http://www.gao.gov/products/GAO-09-106], (Washington, 
D.C.: Jan. 27, 2009). 

[14] 29 C.F.R. §§ 1978, 1979, 1981, 1982, and 1983. 

[15] [hyperlink, http://www.gao.gov/products/GAO-09-106]. 

[16] Additional information about the status of these recommendations 
is available at http://www.gao.gov/products/GAO-09-106]. 

[17] During our review, OSHA initially planned to develop a memorandum 
of agreement (MOA) with the National Highway Traffic Safety 
Administration (NHTSA) for auto employees covered under MAP-21. In 
their technical comments on a draft of this report, the agencies said 
OSHA and NHTSA agreed that due to the low complaint volume under MAP-
21, an MOA was not needed at this time. 

[18] When an agency finds that it has good cause to issue a final rule 
without first publishing a proposed rule, it often characterizes the 
rule as an "interim final rule," or "interim rule." This type of rule 
typically becomes effective immediately upon publication. In most 
cases, the agency stipulates that it will alter the interim rule if 
warranted by public comments. If the agency decides not to make 
changes to the interim rule, it generally will publish a brief final 
rule in the Federal Register confirming that decision. We did not 
review the interim final rule because it was being developed during 
our review. 

[19] The regulatory agenda is how agencies announce future rulemaking 
activities and update the public on pending and completed regulatory 
activities. 

[20] OSHA's Whistleblower Investigations Manual provides guidance for 
investigating complaints of retaliation under all the whistleblower 
statutes administered by OSHA. 

[21] Pub. L. No. 110-314, § 219, 122 Stat. 3016, 3062 (2008). 

[22] OSHA has developed and posted fact sheets for other 
transportation industry employees in aviation, commercial motor 
carriers, pipeline, public transportation agencies, and railroad 
workers. 

[23] Since 1993, DOT's component agencies have been authorized to 
enter into MOAs with OSHA in regard to setting and enforcing 
occupational safety or health standards and whistleblower protections 
for employees in DOT-regulated industries. 49 C.F.R.§ 1.81(a)(23). 

[24] In OSHA's technical comments, OSHA said the agency is considering 
whether certain MOAs are necessary, specifically those involving 
transportation statutes with low complaint volume. 

[25] We were unable to review any draft of MOAs because they were in 
the beginning stages of development during our review. 

[26] [hyperlink, http://www.gao.gov/products/GAO-12-1022]. 

[27] [hyperlink, http://www.gao.gov/products/GAO-12-1022]. The key 
practices for collaboration include outcomes and accountability, 
bridging organizational cultures, leadership, clarity of roles and 
responsibilities, participants, resources, and written guidance and 
agreements. 

[28] [hyperlink, http://www.gao.gov/products/GAO-12-1022]. 

[29] Although FAA refers to its agreement as a memorandum of 
understanding, in this report we use MOAs to refer to agreements 
between OSHA and DOT components. 

[30] There is no direct referral from DOT to OSHA. It is left to the 
individual employee whether he or she wants to file a claim with OSHA. 

[31] [hyperlink, http://www.gao.gov/products/GAO-12-1022]. 

[32] When employees contact DOT about a potential claim of 
retaliation, DOT informs the employees that they should contact OSHA 
directly to file a claim. 

[33] The factors were commonly identified by stakeholders; however, 
not all stakeholders identified each factor. 

[34] Ethics Resource Center, Inside the Mind of a Whistleblower: A 
Supplemental Report of the 2011 National Business Ethics Survey, 
Arlington, VA (2012). 

[35] The goal of FAA's Aviation Safety Action Program is to enhance 
aviation safety through the prevention of accidents and incidents. Its 
focus is to encourage voluntary reporting of safety issues and events 
that come to the attention of employees of certain aircraft 
certificate holders (i.e., aircraft carriers). The program is based on 
a safety partnership that includes the FAA and air carriers as well as 
any third party entities, such as the employee's labor organization. 
Other self-reported safety programs include the Voluntary Disclosure 
Reporting Program. For more information on these safety programs, see 
GAO, Aviation Safety: Enhanced Oversight and Improved Availability of 
Risk-Based Data Control Could Further Improve Safety, [hyperlink, 
http://www.gao.gov/products/GAO-12-24] (Washington, DC: Oct. 5, 2011) 
and GAO, Aviation Safety: Improved Data Quality and Analysis 
Capabilities Are Needed as FAA Plans a Risk-Based Approach to Safety 
Oversight, [hyperlink, http://www.gao.gov/products/GAO-10-414] 
(Washington, DC: May 6, 2012). 

[36] Ethics Resource Center, Inside the Mind of a Whistleblower: A 
Supplemental Report of the 2011 National Business Ethics Survey, 
Arlington, VA (2012). 

[37] The Federal Rail Safety Act was amended by the Implementing 
Recommendations of the 9/11 Commission Act of 2007, Pub.L.No. 110-53, 
121 Stat. 444. 

[38] FRA officials also told us that FRA's witness statement form, 
which is used for enforcement activities, includes information about 
whistleblower protections and where to file a claim with OSHA. 

[39] Most drivers are subject to the Hours of Service regulations, if 
they drive commercial motor vehicles. The Hours of Service regulations 
differs for property-carrying drivers and passenger-carrying drivers 
(e.g., Greyhound bus drivers). Passenger-carrying drivers may not 
drive after having been on duty for 15 hours, following 8 consecutive 
hours off duty, while property-carrying drivers may not drive beyond 
the 14TH consecutive hour after coming on duty, following 10 
consecutive hours off duty. (49 C.F.R. Part 395). 

[40] As part of a pre-hiring procedure, nearly all large trucking 
companies will look at a trucker's employment and driving record to 
see if there is any history of accidents, traffic violations, or other 
issues that might disqualify the driver from the job. HireRight 
collects all this information into its database and sells the 
information on individual drivers as a Drive-a-Check report. 

[41] All entry-level drivers who drive in interstate commerce and are 
subject to the commercial drivers license requirements of 49 C.F.R. 
Part 383 must comply with the rules of Entry-Level Driver Training 
Requirements of 49 C.F.R. Part 380, Subpart E. Drivers who are subject 
to the jurisdiction of the Federal Transit Administration or who are 
otherwise exempt under 49 C.F.R. § 390.3(f) are exempt. Information on 
whistleblower protections is included as part of the Entry-Level 
Driver Training Requirements. See 69 Fed. Reg. 29384 (May 21, 2004). 

[42] 49 U.S.C. § 20109. 

[43] The meeting with representatives from air, rail, and trucking 
industries is part of the Whistleblower Protection Advisory 
Committee's Transportation Sector Working Group that was charged to 
consider the effects and successes of the existing laws, gaps in both 
legislation and employer practices, employer practices that raise 
particular concerns, and the effectiveness of current legislation and 
enforcement in addressing these gaps. According to OSHA officials, the 
purpose of the working group is to obtain advice on where and how to 
most effectively and productively focus OSHA's enforcement and 
outreach to the industries to achieve the greatest impact, given its 
current resources. 

[44] The Federal Rail Safety Act was amended by the Implementing 
Recommendations of the 9/11 Commission Act of 2007, Pub.L.No. 110-53, 
121 Stat 444. 

[45] We used data from fiscal year 2012 from these two agencies 
because it was the most recent data available to us during the time of 
our review. 

[46] Department of Labor Office of Inspector General, Complainant Did 
Not Always Receive Appropriate Investigation Under the Whistleblower 
Protection Program, Report Number 02-10-202-10-105 (Washington, D.C.: 
Sept. 30, 2010). 

[47] 49 C.F.R. § 1.81 (a)(23). 

[48] GAO, Managing for Results: Key Considerations for Implementing 
Interagency Collaborative Mechanisms, [hyperlink, 
http://www.gao.gov/products/GAO-12-1022], (Washington, D.C.: Sept. 27, 
2012). 

[49] [hyperlink, http://www.gao.gov/products/GAO-12-1022]. The key 
practices for collaboration include outcomes and accountability, 
bridging organizational cultures, leadership, clarity of roles and 
responsibilities, participants, resources, and written guidance and 
agreements. 

[50] [hyperlink, http://www.gao.gov/products/GAO-09-106]. 

[51] We used fiscal year 2012 data from the two agencies because it 
was the most recent data available during the time of our review. 

[End of section] 

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