Safety Perspectives From the Dallas Region: Anatomy of an OSHA Whistleblower Investigation, Part 2

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John Surma: Welcome to another episode of the Dallas Regional Safety Podcast. My name is John Surma. I am a shareholder in the Ogletree Deakins Houston office. I would say that I am broadcasting from Ogletree Deakins Tower today, except I’m deep in the Piney Woods of East Texas right now, at home, doing this remotely. Today, I’ve got my normal podcast partner, Frank Davis. Frank, do you want to say hello to everybody?

Frank Davis: Hello, everybody.

John Surma: And we’ve also been very fortunate to have a special guest with us, retired NCIS special agent, marine, and whistleblower investigator, Jeff Cedar. Jeff, thank you for coming back for a second podcast with us. I thought the first podcast was really great.
It’s very insightful to talk to folks once they leave their employment and learn a little bit more about the inner workings of what they did. And Frank and I both really genuinely appreciate you coming back, and I’m sure our audience is equally appreciative. And so just again, a big hearty thank you to you, and we want to let you know that we really appreciate what you’re doing for us and our audience today.

Jeff Cedar: Yes, sir.

John Surma: I want to give a high-level overview of the portion of the podcast, the last half or so of the prior podcast, when you kind of describe the whistleblower process. And that involved basically you receive a complaint, you interview the complainants, and that’s the employee who’s alleging or the former employee who’s alleging that they suffered some sort of discrimination or retaliation as a result of whether it’s under 11C, reporting a workplace health and safety condition, or under one of the other whistleblower acts.
Then you engage in an investigation, outreach to the employer, person with knowledge, and you try to interview them and get a sense of whether or not the complaint is completely invalid or not. Ultimately, you get a response or position statement from that employer, and that seemed to be kind of where the majority of the decision-making, if you were going to close a claim out without going any further, took place. Is that kind of a fair overview of the process, a very high-level overview of the process?

Jeff Cedar: Yes.

John Surma: And then one of the questions I had with regard to the process was when you get that position statement back from the employer, what evidence do you find, or did you find, as an investigator, to be the most credible evidence?

Jeff Cedar: The most credible evidence is stuff that can be documented, emails, and documentation from HR concerning their discussion with a decision maker as to why this person should be terminated. So let me give you an example…is a lot of times complainants will claim that it’s because of their engagement in protected activity and that they told their supervisor.
Well, when I talk to the decision maker, I want to make sure that, number one, he has the information. Did he have this information? ‘Cause sometimes there has to be knowledge. Like I said on the first part of the podcast, is that there has to be knowledge by the company. The decision maker has to have knowledge that there was an issue.
Now, what really hammers these things home is that there have been emails, probably two weeks, going back and forth between HR and the supervisor concerning an employee. A lot of times, the companies don’t provide that email or those emails. They just give me a blank position statement with no evidence to support.
So, to help the companies safeguard themselves is to provide the evidence, because this is…and I understand why they don’t want to provide it. Sometimes, because of the Freedom of Information Act, they don’t know where it’s going to wind up, but that is evidence that I’m looking for, especially documentation to support what the company is saying.
The company, sometimes because of vacations and these things, say it takes two weeks for a company to make a decision to terminate somebody. Well, when I get a position statement and they don’t have any documentation to support what they’re saying, it’s like a radar to me saying, “Okay, you’re making this decision, but you have no documentation to support it.”
As to a company that provides, “Hey, Jeff, here’s the position statement. Here’s our evidence that goes with that. Here’s this email traffic saying the supervisors have trouble with this employee for a number of days.” So, therefore, when you get to that nexus, that nexus falls apart.
A complainant can have a protected activity, knowledge, adverse employment action, or termination, but the nexus is the interlining link between those three. I always explained it like a chain-link fence that you put a rung on. First, you have a protected activity, second, knowledge, third, adverse action, and fourth, the nexus.
The nexus lines that pole of all the first three. And a lot of times, when the companies provide the appropriate documentation, the whole complaint falls apart because there’s not a nexus. The termination has to be a result of the protected activity.
Well, when a company provides emails, documentation to support, “No, this is how it was. We were going to terminate him. This decision was made two weeks before he even filed a complaint.” Well, that automatically is a non-merit complaint.
This happens a lot with contractors, or it happens a lot where somebody comes on to a company for, say, he signs on, “I’ll work for you for six months.” Well, at the near the end of the six months, he’s going to given a pink slip, he’s going to be terminated.
Well, he thinks that filing a safety and health complaint can circumvent his contract with the company and say, “No, you can’t terminate me ’cause I brought up a safety.” That’s not how it works.

Frank Davis: Is there a way for an employer to give you that same information without having to expose it to possible FOIA release?

Jeff Cedar: It could be, if we do it as CBI, which is confidential business information. We are allowed to label that. We are not, OSHA does not, I am not allowed to tell a company, “Well, that’s not CBI.” But if a company tells me, “Jeff, this is CBI,” then I have to label it as CBI.
Therefore, there are seven exemptions to the Freedom of Information Act under Title 5, Section 552, there are seven exemptions, and one of those exemptions is confidential business information. So yes, a company can label it as CBI and help forego that type of issue. Hopefully that answers a question, but I think-

Frank Davis: That was nicely answered, actually. And I was even looking for something softer, like is there a possibility of having that on a Teams call and just showing it to you, or do you need to have that information in the file? ‘Cause you can share a screen on a call and nobody gets a copy of it. I didn’t know if that would be adequate from your perspective.

Jeff Cedar: Well, that’s a great point, Frank, and how I would handle that is that the company would have to describe to me that if I disclose this information, it would be detrimental to another employee or the workforce itself, such as maybe a volatile situation.
And I often said this to my supervisors in Region 6, I’ve used my hostage negotiation tactics, ’cause I was a certified hostage negotiator for NCIS, NCID, that I use my hostage negotiation tactics more in DOL with whistleblowers than I ever did when I was with NCIS. Because sometimes things are very volatile, and you don’t want to make sure that you’re making it worse, if that makes sense.
So, a company would have the ability to tell me, “Hey, Jeff, we have this document. We’ll show it to you, but it could be CBI, but if this gets in the wrong hands, this is our concern.” And then I probably would brief the US solicitors and say, “Hey, this is what has been presented to me.” What are their thoughts? We don’t want to make it worse.

Frank Davis: Your characterization’s cracking me up, Jeff, ’cause you’re doing a hostage negotiation for the release of CBI, of confidential business information.

Jeff Cedar: That’s so true, though. I use more of my tactics of hostage… I’ve talked I don’t know how many people off the roof when I called them because they are upset. People put their blood, sweat and tears in their jobs, they’re upset when something like this goes south, and they’re upset. When I call them, I have to calm them down. I have to explain to them what the statute says, what it doesn’t say, and I do the same thing for the companies.
I think we kind of touched on this in the first hour: Is it that a lot of times when I go to a STAA, like a trucking company, Surface Transportation Assistance Act, I ask them, “Have you ever heard of STAA?” “No.” “How do you know you’re not violating a statute you don’t even know anything about?”

Frank Davis: Okay, I like this. I like this. It’s a good transition. In the first session, we talked about you used to investigate up to 25 different statutes that have whistleblower components to it. What are the three most frequent whistleblower statutes you had to deal with in the Dallas region during your time in service?

Jeff Cedar: Now, most of mine were 11C STAA, which is the Surface Transportation Assistance Act, and the FRSA, Federal Railroad Safety Administration.

Frank Davis: Now that you said you go in and ask employers when you’re starting an investigation, “Do you know what STAA is?” First, tell us what STAA is, and then tell us what response you got from employers.

Jeff Cedar: So, STAA is the Surface Transportation and Assistance Act, S-T-A-A. And it was created in 1978 or so, late ’70s as a result of, it’s primarily for trucking companies to ensure that truckers don’t go over hours of service, they have a certain amount of time, 10-hour reset, those type of things.
So our subject matter experts in STAA, we would handle the whistleblower complaint or the aspect of it, but the Federal Railroad Safety Administration would be the ones, the Federal Motor Carrier Safety Administration would be the ones that would enforce that. That’s the laws we would look at concerning over the hours of service, those type of things.
So, when I wound up going to a trucking company, I would just ask him, “This is who I am, this is what I do. Have you ever heard of STAA?” And the owner would say, “What?” “Well, if you don’t know what STAA is, how do you know you’re not violating that statute?” I said, “It’s incumbent upon you because you have a DOT number, Department of Transportation number. That means you had to understand all the rules and regulations of the Federal Motor Carrier Safety Act.”

Frank Davis: I know that’s not completely shocking to John ’cause he’s seen about everything, but how often did you come across that?

Jeff Cedar: Very often. This is kind of the worst story. I had to peel an owner off the ceiling for almost four hours just to calm him down because somebody filed a complaint against this company. And I said, “Sir, you just admitted to me you don’t even know.” And of course, with some education, he understood why it was there.

John Surma: Jeff, I’ve got a question coming from a little different angle. From the standpoint of the employee complaint, what have you found is, number one, most compelling, and then number two, most detrimental to the employee complaint?

Jeff Cedar: From the employee perspective? [inaudible 00:13:40].

John Surma: Yeah. Yeah. I mean when employees come to you, I mean the employer who doesn’t know what STAA is, though they’re a freight company or whatever the case might be, from the standpoint of employees, what are the things that you typically found to be the most fatal to their cases?
And I have some ideas, but in that initial intake interview, what things were big red flags for you that, like, “Oh no, this is really, really bad for your claim and you’re never going to be able to make a claim”? Or then conversely, what were the things that were like, “Okay, these things make this person more credible”?

Jeff Cedar: Well, let’s go with the last one first. The one that makes it more credible is when they have the driving logs, the driver logs. Most of them are now digital, so therefore the digital logs are pretty accurate. Now, there are people that will tell you that they can be circumvented and messed with, but primarily when an employee has the driving logs and there’s no 10 hour reset, and they’re constantly telling him to go through those type of, “Don’t worry about that 10-hour reset” or those type of things, and you’re driving 20 hours a day, those driver logs that they have are pretty compelling because that’s a clear violation. You’re only allowed to drive so many hours a day, and you have to have that 10-hour reset to be able to be within compliance. So that’s number one.
The other one for the companies is that where they actually do have the driver logs and they do have the information, a lot of times… I’ll give you an example. Let’s say a truck driver calls in sick. Let’s say he calls in sick and he can’t drive the load, but yet he’s to a point to where he tells the company, “I’m not going to do it,” but yet he doesn’t provide the company any substantive information as to why he can’t do it, if that makes sense.
I know I’m kind of being vague because there’s so many scenarios that it can comply apply to, but from the company standpoint, as long as the company can show that they did not violate STAA or they did not violate the Federal Motor Carrier Safety, that they did provide him a reset, they did provide him that requirement, and that he didn’t do what he was required to do, then that is a pretty huge hill to climb for a complaint or for an employee to climb because the evidence doesn’t support what he’s saying. Doesn’t mean he doesn’t have a complaint, doesn’t mean maybe he was done wrong. The issue is that I’m only looking at STAA. And if the evidence supports no violation, then it’s automatically I would recommend dismissal.

John Surma: And Jeff, from the standpoint of things that an employee comes to you, and you can just tell that they’re mad at their employer and they’re raging, and they don’t have a lot of real substance behind their complaint, what are the red flags that you saw when you were doing the investigations?

Jeff Cedar: Their story just didn’t seem to make sense. And it goes back to myself as an investigator to vet the defense. And I want to go back to John’s question concerning the employee-employer. It really hinges on that temple proximity, it hinges on animus, it hinges on that nexus. Those other runs of the protect activity, knowledge, adverse action, they could be there, but if there’s not a nexus, if there’s just not enough… And sometimes I’ve had a lot of cases that way where I just wasn’t enough to the needle over.
And the reason why I say that is because under 11C, it is a motivating factor statute. That means that the complainant—it has to be the sole motivating factor was his protected activity under 11C. Sole motivating factor was motivated. Because he raised protected activity, that’s why he got terminated. That’s the motivating factor.
But in an administrative law, ALJ’s case such as STAA and FRSA, it’s only a contributing factor. I only have to show, or the complainant has to show that his protected activity was contributed, no matter how slight, maybe a small portion, but it was a contributing factor. Therefore, that would swing the needle in the complainant’s favor on an ALJ because it depends on what statute you are investigating, if it’s motivating or contributing.

Frank Davis: That’s an important distinction. What is the claim you see most often or that you used to see most often, do you recall?

Jeff Cedar: Well, it would be 11C, but again, I was a little bit specialized in 11C because I did SOX cases. I did a lot of SOX cases in Region 6, and that’s the Sarbanes-Oxley, which is publicly traded companies. And that’s a whole other different animal, I’m sure we probably don’t have time to get into today, but I got some of the most, I guess you want to say high priority cases, because of the experience that I had to work those types of cases.
11C, STAA, and FRSA are the top three in region 6 because you have so many railroads. I don’t want to name them, but there are a lot of railroads that operate in Louisiana, Texas, Oklahoma, include thousands of trucking companies throughout those five states, include 11C. Plus, you can have dual filing, you can have 11C and STAA complaint at the same time. So those become very difficult as well, to make sure you’re separating the two from because they’re two different-

Frank Davis: Difficult from your side and from the employer’s side, I can tell you that.

Jeff Cedar: Correct. Correct, because they have different appeal rights.

Frank Davis: Different standards of proof, as you just explained?

Jeff Cedar: Correct.

Frank Davis: Out of all the cases that you looked at over the course of your very long career, what was your percentage of merit finding?

Jeff Cedar: Well, I think there was a figure that some people had done. It’s only about 1.67% actually see the light a day because they are difficult to prove. And then again, it’s up to the solicitor, and of course, I don’t speak for the solicitor, so it’s up to them to pick it up. But normally, the cases that actually move forward—it’s very, very low.

Frank Davis: Less than 2 out of 100?

Jeff Cedar: It’s less than 2%. It’s less than 2% that actually see the light of day because they are difficult to prove. You actually have a he said, she said, or he said, he said scenario a lot of times. And if you don’t have recordings, you don’t have evidence to support the fact, it’s not what you say, it’s what you can prove.
And that’s what I tell the complainants all the time, it’s that, “Okay, you’re telling me this is what’s happening to you. However, how are you going to prove it? How do we do it? I’ll investigate it. The issue is, what evidence do you have to support this?”
Because witnesses, a lot of times people will tell me, “Well, I’ve got 10 witnesses.” Well, I go to talk to 10 witnesses, only get one person to call me back because a lot of people don’t want to get involved. Normally, the case, a lot of times the co-workers don’t have no knowledge of what the guys even complaining about.

John Surma: And Jeff, this has been wonderful, and we really appreciate you joining us. We do need to kind of wind down, but before we go, you’ve been so very generous to us.
I think Frank and I would both like you to kind of tell us what you’re doing in your retirement. I think that would be appreciated by both Frank and I, and certainly we’d welcome the opportunity for our audience to hear what you’re doing.

Jeff Cedar: Well, right now, I’m taking it easy. I have loved to do consulting work, helping companies, information and provide information concerning whistleblower. And I was telling Frank this last week, that the more outreach that I did, the less complaints I got from that company.

Frank Davis: The more outreach you did to educate companies, the fewer whistleblower complaints you got from employees?

Jeff Cedar: Correct. The more outreach I did, the less complaints I got from those companies. Why? Because the companies have the knowledge. I give them the information. So now, when somebody brings up a safety issue, they’ve got that in their back of their mind saying, “Oh, you know what? I remember Jeff saying we need to handle it this way because we want to make sure we do it right.” Because a lot of times, the companies, that’s exactly what they say, “Jeff, we think we did everything right.” And of course, after some education and some outreach, they realize, “Jeff, I’m glad you talked to us.”
A lot of them don’t even know these statutes exist because either they haven’t been in the know, so to speak, or they’ve never been down this road. And especially when I got a company that never heard of whistleblower, never heard of OSHA, never heard of anything, and they said, “Jeff, I wish we had this information before this all happened, and we had no clue.”
I’ve kind of seen it all. I’ve done a lot of sig cases over my career. Sig cases are significant cases, which most investigators work 20 years with as a whistleblower investigator, never get a sig case. I had five of them in 12 years, or 14. So I’m able to help, I’m able to assist, if that makes sense, John?

John Surma: No, that makes a lot of sense, Jeff. And certainly, do wish you all the best in those regards, and we certainly do appreciate you coming to join us with us in this podcast and spending as much time as you spent with us. On behalf of the audience, on behalf of Frank, on behalf of everybody associated with this podcast, I thank you very much.

Frank Davis: Thank you so much, Jeff.

Jeff Cedar: Thank you, sir.

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