Three weeks ago, a U.S. District Court judge in Kansas City handed regional Labor Department attorneys what they thought was a substantial victory, giving new protections to workers who talk to reporters about work-place hazards.
But when Labor Department Solicitor T. Timothy Ryan found out about it, he started exploring ways to undo the judge's decision.
An about-face by the government in the midst of a pending court case brought by government attorneys is "highly unusual," and no final decision has been made on what to do in the case, according to one Labor Department attorney familiar with the arguments. Ryan's statements about reversing course on the case came as a surprise and were widely discussed among department lawyers last week, one source said.
The case was brought by OSHA earlier this year after Ronald Fent, a former employe of the R. D. Anderson Construction Co. Inc. of Topeka, complained that he was fired after telling a newspaper reporter about dust clouds that Fent thought were composed of asbestos around a construction site.
Most decisions to pursue OSHA complaints in court are made by Ryan's subordinates, according to a source familiar with department practice, but the solicitor expects to have potentially important legal issues brought to his attention before they are pursued.
Ryan refused to comment on the case yesterday, but sources say that at a recent meeting of top department lawyers, he expressed unhappiness at the decision of Judge Richard D. Rogers and discussed the possibility of settling the case against the company. Had Ryan known about the case ahead of time, it would not have been brought, according to one department attorney.
According to those familiar with the case, settling it now would mean abandoning a probable victory. The judge's order, which came in response to the construction company's motion to dismiss the suit, nullified one of the firm's best defenses. The firm still could contest the Labor Department's statement of the facts in the case, Housh said.
Yesterday, Ron Andersen, president of the firm, said in a telephone interview that Fent was fired because "he reported an unsafe working condition to a newspaper rather than to his supervisor," in violation of company policy.
OSHA argued that a worker who talks to the press should be afforded the same protection from retribution that is already guaranteed to workers who file a safety complaint.