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Oct. 12 — A two-year feud over alleged federal whistle-blower protection violations at an auto parts plant is settled, the Occupational Safety and Health Administration announced late Oct. 11 ( Perez V. Lear Corp., S.D. Ala., No. 15-0250, 10/11/16 ).
The federal court settlement agreement calls for OSHA to end its effort to have a judge impose an injunction against Lear Corp.'s Selma, Ala., factory to prevent the firm from committing whistle-blower violations.
For Lear’s part, the settlement says Lear will reinstate and compensate four workers OSHA claimed were punished by Lear for raising safety and health concerns with the company and in public forums. Lear will allow OSHA representatives to conduct annual whistle-blower rights training at the plant for three years and Lear will provide new workers with an OSHA fact sheet on whistle-blower rights.
In addition, Lear says in the settlement that it made substantial safety and health upgrades to areas in the plant where employees are exposed to chemicals used to make foam for car seats.
Kurt Petermeyer, OSHA’s Region 4 administrator in Atlanta, said the settlement was a victory for the agency. “Our hope is that this case sends a clear message to employers that OSHA will use any and all methods at our disposal to protect workers’ right to raise safety complaints,” he said in written statement.
The settlement is in line with other OSHA settlements in safety and health whistle-blower cases where the agency withdraws its complaint in return for the employer agreeing to terms acceptable to OSHA, the workers and labor advocates involved in the case. In the Lear case, the United Auto Workers, which has tried to organize at the factory, participated in the settlement negotiations.
The case is significant because it was the first time OSHA sought a preliminary injunction to stop an employer from retaliating in the future against workers raising safety or health concerns, agency officials have said. Section 11(c) of the Occupational Safety and Health Act (OSH Act) says workers can’t be punished for reporting safety or health problems.
OSHA interprets Section 11(c) to cover a wide range of actions from firing a worker to sponsoring safety incentive programs rewarding employees who say they are injury free.
In the Lear case, OSHA’s preliminary injunction request was rejected in May by the U.S. Court of Appeals for the 11th Circuit in New Orleans. The appeals court opinion overturned a district court ruling on the grounds that the preliminary injunction was approved by the lower court without first determining whether OSHA’s allegations were baseless or preempted by state court requirements for civil lawsuits ( Sec'y, DOL v. Lear Corp. EEDS & Interiors, 822 F.3d 556, 41 IER Cases 557 (11th Cir. 2016)).
OSHA court documents say the agency’s involvement with the Selma plant began in May 2014 when Lear workers told the agency about their concerns with exposure to the chemical toluene diisocyanate (TDI).
OSHA inspected the plant on May 27, 2014, and didn’t find TDI levels above allowable limits.
However, OSHA on Nov. 18, 2014, cited Lear with two serious violations and two other-than-serious violations and proposed a $9,350 fine. The serious violations involved failing to require workers to wear personal protective equipment and failing to train workers about the hazards of TDI as well as another chemical, methylene diphenyl diisocyanate (MDI).
Lear and OSHA reached an informal settlement and the inspection case was closed on March 19, 2015, according to OSHA enforcement records.
The whistle-blower problems began on Sept. 11, 2014, when Lear transferred three workers to assignments in the plant warehouse, OSHA court documents say. Lear told the workers the change was intended to remove them from the exposures they were worried about.
Later on Sept. 11, the three women filed whistle-blower complaints with OSHA alleging the move was in retaliation for their earlier comments to OSHA.
In addition, the workers talked with reporters and labor activists about their concerns and one participated in a March 2015 protest at an Alabama Hyundai plant that uses seats manufactured by Lear. Lear fired the protesting worker 11 days later.
Lear, based in Southfield, Mich., is ranked 154th on the Fortune 500 list with annual revenues of about $18.2 billion and 140,000 employees.
Lear is represented by John Coleman, Edward Bowron and Kathryn Willis of Burr & Forman LLP.
OSHA is represented by Yasmin Yanthis-Bailey of the U.S. Department of Labor’s Office of the Solicitor.
To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com
To contact the editor responsible for this story: Larry Pearl at email@example.com
The settlement agreement is available at http://src.bna.com/jjU
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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