Professionalism/Salvador Castro and Air-Shields, Inc

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Whistleblowing.pdf

A whistleblower is an informant who exposes wrongdoing in the hopes of stopping it [1]. The term originates from the tradition of referees blowing whistles to indicate foul play, and has become synonymous with an individual who alerts an internal or external entity about illegal, dangerous, or unfair activities within an organization.[2] Whistleblowers can be seen as selfless individuals who protect the public interest, even sometimes at a significant personal risk. However, they can also be seen as traitors or snitches, and whistleblowers often face negative consequences or persecution from other employees. Salvador Castro is a prime example of a whistleblower and the repercussions they can face.

Salvador Castro[edit]

In 1995, Salvador Castro was hired as a medical electronics engineer by Air Shields Inc, a Hatboro, PA based engineering company [3]. After a few months of work, Castro was asked by a colleague to look at an infant respirator. Castro noticed a serious design flaw in one of the valves that could subject infants to dangerously high lung pressure. The solution was to simply move the valve closer to the baby, but when Castro brought this flaw to the attention of his manager, nothing was done. After threatening to notify the FDA, he was fired from his job for "having failed to meet the requirements for his position as senior engineer" [3]. The valve problem was not solved until December 1999, when the FDA forced Air Shields to recall the incubator and fix the problem that Castro had discovered four years prior [4].

In 2001, Salvador Castro was given the Carl Barus Award for Outstanding Service in the Public Interest by the Institute of Electrical and Electronics Engineers (IEEE) [5]. Part of the reason Castro was given the award was his strict adherence to the IEEE Code of Ethics, which states that engineers should "protect the safety, health, and welfare of the public and speak out against abuses in those areas affecting the public interest" [6]. In his acceptance speech, Castro criticized laws surrounding protection from unlawful termination in Pennsylvania. He specifically noted that the Federal Water Pollution Protection Act has provisions to protect whistleblowers, while the Food and Drug Act does not. Castro stated, "It would be a criminal offense if I were fired for reporting to the Federal Government that my employer contaminated a stream that killed fish. The Federal Government, in its infinite wisdom, places a higher value on the life of a fish over that of a baby" [5]. While Castro's statements may be extreme, it points out the regulatory flaws surrounding whistleblowing and suggests changes are necessary.

Salvador Castro sued Air-Shields Inc. for wrongful termination, and the case has been tied up in the Pennsylvania court system ever since. Air Shields attempted to get the case dismissed three times, but failed on each occasion. Germany's Draeger Medical has since purchased the company and when they tried to settle out of court with Castro, he declined, saying ""This will set a precedent for all engineers in Pennsylvania, the next guy who figures he can fire an engineer for doing the right thing will think twice".[4]

History of Whistleblowing[edit]

The False Claims Act, created in 1863 by president Lincoln, was the first program to allow individuals to be compensated for reporting fraudulent behavior. This program only applied to companies that directly involved in business with the government and its focus was to prevent the companies from defrauding the government. An official act to protect workers and ensure their safety would not come for another 100 years. In 1970, the Occupational Safety and Health Act was passed under president Nixon’s administration and in April 28 1971, the Occupational Safety and Health Administration (OSHA) became official.[7] Its role is to ensure the health and safety of workers in the Nation.[8]

A case that was paramount in setting the professional business and engineering ethics we have today was the Aircraft Brake Scandal. In 1967 Goodrich, a government contractor, had developed a new prototype breaking system for the A-7D Aircraft and had won the bid to continue onto production for the Air Force[9]. Testing the brakes had to be conducted by two entities, Goodrich, and the Air Force. During internal testing however the brakes failed to perform under regular circumstances. Kermit Vandivier, an engineer was then told to perform a set of tests under false conditions in order for the brakes to prove successful[9]. He voiced this concern to his superiors but was told that a report had to be drafted regardless of the conditions. He assisted in the falsification of the report and it was handed to the Air Force. Shortly after, he got fired under claims of incompetence[9].

The design was put under a Congressional hearing after Vandivier accused B.F. Goodrich of false reporting and further test results proceeded to fail[10]. Four years later, in 1972, Vandivier wrote an article called, “Why Should My Conscience Bother Me” which reported his views of the A-7D Aircraft brake incident [11]. This article formed the basis of what professional business and engineering ethics. This case highlights the problems with companies that knowingly commit fraudulent behavior. Even though the employees of the company were aware of the situation, they had no appropriate channels to report on such misconducts.

Given these situations, a division of OSHA that has gained more relevance is the Office of the Whistleblower Protection Program (OTPP) [12]. This program protects employees from experiencing retaliation by any person after the employee has reported a wrongdoing in the workplace. These retaliations can include laying off, intimidation, denials of benefits, reducing pay or hours, amongst others depending on the case[12]. These protections are being created to promote whistleblowing and change the current stigma surrounding the consequences when a person whistleblows.

Negative Consequences for Whistleblowers[edit]

Negative consequences felt by whistleblowers (as percentage of whistleblowers who experienced each consequence).

Research has shown that there are generally very negative consequences for those who report their companies' violations. The chart to the right shows some of the repercussions whistleblowers have experienced as a result of their actions. In addition, a 2009 study at the University of Richmond uncovered more details about the adverse affects of workplace whistleblowing. The study revealed that 78% percent of whistleblowers felt distrust towards coworkers, while 84% experienced anxiety or depression.[13] These impacts are difficult to quantify because they are not as concrete as others, such as demotions or firings. The study concludes that existing whistleblower laws allow for some protection, but they do not go far enough, "They [current laws] allow employers to use non-workplace-related retaliation to silence whistleblowers as most existing laws only cover workplace-related retaliation. Lawmakers need to fill this void so that legitimate whistleblowers will be encouraged to reveal dangerous behavior that harms the public".[13]

Examples of Whistleblowers[edit]

There are many examples of whistleblowers who have been both successful and unsuccessful at reporting wrongdoing that they encountered.

There have been whistleblowers who were successful in contributing to revealing wrongdoing, but faced personal negative consequences for their actions. Salvador Castro was fired for threatening to report his company to the FDA.[3] Sean Hoare, who helped to expose the News International phone hacking scandal, is another example. At the time of his death at a premature age, Sean Hoare had become a paranoid recluse and was convinced that "someone was out to get him".[14]. Mark Felt, also known as the pseudonym Deep Throat, is the famous informant to reporters on President Nixon's involvement in what came to be known as the Watergate Scandal was forced to remain anonymous for over thirty one years after Nixon's resignation in order to avoid the backlash that would come from being an informant.

On the other hand, there have been those who have hoped to stop problems they have seen, but were unsuccessful due to the lack of a channel to whistleblow through or organizations that have prevented them from acting. Roger Boisjoly raised objections to the launch of the Space Shuttle Challenger, but was unable to stop its launch and the shuttle's tragic explosion due an O-ring failure. Boisjoly had sent management a memo [15] alerting managers of the potential problems with the O-ring. Management ignored his warnings and even tried to reverse the recommendation not to launch. Boisjoly felt helpless and felt that continuing his arguments has been fruitless.[16] The organizational culture of NASA discouraged whistleblowing and prevented Boisjoly from being able to stop this tragedy.

Organizational Support for Whistleblowing[edit]

According to a recent poll, 78 percent of Americans said they would report wrongdoing in the workplace, but only if they could do it anonymously, without retaliation, and claim a monetary reward.[17] Some industries who have acknowledged the importance of whistleblowing are trying to create programs that fufil these requirements to encourage whistleblowing. They hope to use it as a tool to contribute to the success of the industry.

For example, the U.S. Securities and Exchange Commission has created an entire office, The SEC Office of the Whistleblower, that encourages professionals to come forward with information about fraud and other violations. The SEC hopes that this program will allow them to identify violations much earlier than would otherwise have been possible, which allows the Commission "to minimize the harm to investors, better preserve the integrity of the United States' capital markets, and more swiftly hold accountable those responsible for unlawful conduct."[18] If individuals come forward with high-quality original information that leads to a Commission enforcement action, they will receive an award of 10-30 percent of the money collected.

Conclusion[edit]

The IEEE Code of Ethics states that engineers should "protect the safety, health, and welfare of the public and speak out against abuses in those areas affecting the public interest" [6], but through the examples above, it is clear that a whistleblower runs a high risk of damaging his or her own career through speaking up. Engineering firms and leaders in the industry need to come up with solutions to this problem so that whistleblowing is encouraged, like the SEC is doing with the Office of the Whistleblower [18] for the financial sector. It is reasonable to expect someone to act ethically, but an environment that supports whistleblowing will result in many more participants than one where whistleblowers face persecution and limited legal protection.

References[edit]

  1. The Free Dictionary, Whistleblower, http://www.thefreedictionary.com/whistleblower
  2. Etymonline, Whistleblower, http://www.etymonline.com/index.php?term=whistleblower&allowed_in_frame=0
  3. a b c Online Ethics Center (n.d.). Salvador Castro - Barus Awardee 2001. Retrieved April 15, 2012, from http://www.onlineethics.org/Topics/ProfPractice/Exemplars/AwardWinners/SCastro.aspx
  4. a b IEEE Spectrum (2004), The Whistle-Blower's Dilemma, Retrieved from http://spectrum.ieee.org/at-work/tech-careers/the-whistleblowers-dilemma
  5. a b Carl Barus Award Acceptance Speech, Retrieved from http://users.khbo.be/lodew/Whistleblower%20Castro.htm
  6. a b IEEE Code of Ethics, Retrieved from http://www.ieee.org/portal/pages/iportals/aboutus/ethics/code.html
  7. Reflections on OSHA's History. Retrieved from http://www.osha.gov/history/OSHA_HISTORY_3360s.pdf
  8. OSHA's core mission. Retrieved from http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=98&p_table=TESTIMONIES
  9. a b c The Aircraft Brake Scandal, Retrieved from http://ethics.tamu.edu/ethics/goodrich/goodric1.htm
  10. The Aircraft Brake Scandal Retrieved from http://www.wcatyweb.org/library/documents/err.pdf
  11. B.F. Goodrich. Retrieved from http://www.engineering.com/Library/ArticlesPage/tabid/85/ArticleID/70/BF-Goodrich.aspx
  12. a b Office of the Whistleblower. Retrieved from http://www.whistleblowers.gov/
  13. a b Whistling While You Work: Expanding Whistleblower Laws to Include Non-Workplace-Related Retaliation After Burlington Northern v. White, Retreived from http://lawreview.richmond.edu/whistling-while-you-work/
  14. Sean Hoare Paranoid at time of death, retrieved from http://www.dailymail.co.uk/news/article-2016132/Sean-Hoare-dead-No-involved-phone-hacking-whistleblowers-death.html
  15. Memo from Roger Boisjoly on O-Ring Erosion, retrieved from http://www.onlineethics.org/cms/12703.aspx
  16. Roger Boisjoly on the Challenger Accident, retrieved from http://www.onlineethics.org/Topics/ProfPractice/Exemplars/BehavingWell/RB-intro.aspx
  17. Majority of Americans Would Blow Whistle, retrieved from http://ca.reuters.com/article/businessNews/idCATRE7BB0V020111212
  18. a b SEC Office of the Whistleblower, retrieved from http://www.sec.gov/whistleblower