[Senate Hearing 109-133]
[From the U.S. Government Publishing Office]
S. Hrg. 109-133
OSHA AND SMALL BUSINESS: IMPROVING THE RELATIONSHIP FOR WORKERS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
EXAMINING WAYS TO IMPROVE THE RELATIONSHIP BETWEEN OSHA AND SMALL
BUSINESS, FOCUSING ON OSHA RULES AND REGULATIONS TO PROTECT THE HEALTH
AND SAFETY OF SMALL BUSINESS EMPLOYEES
__________
MAY 10, 2005
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
MICHAEL B. ENZI, Wyoming, Chairman
JUDD GREGG, New Hampshire EDWARD M. KENNEDY, Massachusetts
BILL FRIST, Tennessee CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee TOM HARKIN, Iowa
RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia JAMES M. JEFFORDS (I), Vermont
MIKE DeWINE, Ohio JEFF BINGAMAN, New Mexico
JOHN ENSIGN, Nevada PATTY MURRAY, Washington
ORRIN G. HATCH, Utah JACK REED, Rhode Island
JEFF SESSIONS, Alabama HILLARY RODHAM CLINTON, New York
PAT ROBERTS, Kansas
Katherine Brunett McGuire, Staff Director
J. Michael Myers, Minority Staff Director and Chief Counsel
______
Subcommittee on Employment and Workplace Safety
JOHNNY ISAKSON, Georgia Chairman
LAMAR ALEXANDER, Tennessee PATTY MURRAY, Washington
RICHARD BURR, North Carolina CHRISTOPHER J. DODD, Connecticut
JOHN ENSIGN, Nevada TOM HARKIN, Iowa
PAT ROBERTS, Kansas BARBARA A. MIKULSKI, Maryland
MICHAEL B. ENZI, Wyoming (ex JAMES M. JEFFORDS (I), Vermont
officio) EDWARD M. KENNEDY, Massachusetts
(ex officio)
Glee Smith, Staff Director
William Kamela, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, MAY 10, 2005
Page
Isakson, Hon. Johnny, Chairman, Subcommittee on Employment and
Workplace Safety, opening statement............................ 1
Enzi, Hon. Michael B., Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 3
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
opening statement.............................................. 4
Norwood, Hon. Charles, a U.S. Congressman from the State of
Georgia, opening statement..................................... 7
Dodd, Jerrold, General Manager, Dayton United Metal Spinners,
Dayton, OH; Roy Swindall, Masonry Arts, Bessemer, AL; Arthur
Sapper, OSHA Practice Group, McDermott, Will and Emery,
Washington, D.C.; and Lynn Rhinehart, Associate General
Counsel, AFL-CIO............................................... 11
Prepared statement of:
Jerrold Dodd............................................. 14
Roy Swindall............................................. 18
Arthur Sapper............................................ 22
Lynn Rhinehart........................................... 32
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Questions of Senator Enzi to Mr. Sapper...................... 4
Tom Howley, Academy of General Dentistry (AGD)............... 45
(iii)
OSHA AND SMALL BUSINESS: IMPROVING THE RELATIONSHIP FOR WORKERS
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TUESDAY, MAY 10, 2005
U.S. Senate,
Subcommittee on Employment and Workplace Safety, Committee
on Health, Education, Labor, and Pensions,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:08 p.m., in
room SD-430, Dirksen Senate Office Building, Senator Johnny
Isakson (chairman of the subcommittee) presiding.
Present: Senators Isakson, Enzi, and Murray.
Senator Isakson. The committee will come to order.
Ranking Member Murray is on the way and, in the interest of
your time, we will make our opening statements as chairman,
subcommittee chairman and full committee chairman. And as soon
as Ms. Murray comes we will recognize her for her opening
statement. I will begin.
Opening Statement of Senator Isakson
Senator Isakson. I wish everybody a good afternoon. I would
like to welcome everyone to the first hearing of the
Subcommittee on Employment and Workplace Safety. I look forward
to working with Senator Murray, Chairman Enzi, ranking member
Kennedy on all the important issues under our jurisdiction.
Today specifically, we are looking at the Occupational
Safety and Health Administration and its relationship with
small businesses. I want to welcome Representative Congressman
Charlie Norwood from the State of Georgia, my home State, and a
gentleman with whom I served in the United States House of
Representatives on the same committee dealing with this issue.
I appreciate his leadership that he has provided and we will
hear from him shortly.
Having run a business for 22 years before coming to the
Congress of the United States, I am familiar with a myriad of
government regulations that small businesses, unquestionably
the biggest employer of economic growth in this country, face
daily.
Among those regulatory burdens are those imposed by OSHA.
Fortunately for small businesses and their employees, Secretary
Elaine Chao has consistently adopted an effective proactive
approach to workplace safety emphasizing compliance, assistance
and cooperative approaches to small employers in addition to
strong, fair and effective enforcement. This approach has
indisputably produced results as both the rates of workplace
fatalities, four deaths per 100,000 workers, and the injury and
illness rate, five per 100,000 workers, are the lowest level in
OSHA's 32 year history.
In light of these successes, we in Congress must continue
to work with OSHA and small employers to find ways for them to
cooperate to keep the workplace safe.
To this effect I anticipate hearing from Mr. Swindal who
will discuss his thoughts on how workplace safety can be
improved through voluntary cross-training and education,
especially if OSHA personnel have a better understanding of the
businesses they are regulating and inspecting.
Accordingly, small employers tell me they are often unable
to fight a questionable case that is brought before them
because of time and cost, and too often are forced to settle
questionable cases with OSHA. Mr. Dodd will testify to cases
such as that.
The appeals process for questionable citations goes like
this: A small business's case will first be heard before an
administrative law judge. If unsuccessful, the case can be
taken to the Occupational Safety and Health Review Commission,
a supposedly independent agency created by Congress. The sole
function of the commission is to carry out adjudicative
functions under the OSH Act. Unfortunately, frequent absences
on the commission make timely adjudication of citations rare.
If still dissatisfied, an employer can appeal an OSHRC
decision to an appropriate U.S. Court of Appeals by any person
adversely affected or aggrieved. However, once in the Appeals
Court, the courts must defer to OSHA's judgment, making OSHA
the judge and jury on its own actions. Essentially, the courts
must defer to OSHA interpretations of its own regulations,
which as Mr. Sapper will describe, is inconsistent with
legislative history of the act.
All of this litigation is extremely costly, but let us
suppose that a small employer actually fights and is victorious
over OSHA in court. Under current law, that company may recoup
its attorney's fee if and only if OSHA cannot show that the
action was ``substantially justified.''
This threshold is far too low. If a smaller employer is
able to go through a process heavily slanted against him or her
and prevail against OSHA he or she could receive full
reimbursement of attorney's fees, backed by the Solicitor of
Labor's office--a group of lawyers so large that if it were a
private law firm it would rank as one of the largest law firms
in the country.
On a personal note, I would like to add this. I have toured
lots of companies. And to mention a few specifically, in recent
years in my own district, the Coca-Cola Company and UPS. The
thing that impressed me on the tours of both of those were the
first thing I saw after the corporate logo were signs that
focused on safety in the workplace.
The investment that I have seen by those companies in their
company and in their employees is always safety-oriented,
whether it is loading, whether it is ergonomics, whether it is
awareness, whether it is hard hat requirements, whatever it
might be.
The American workplace that is not safe is the most
expensive thing an employer can have. All of us want a safe
workplace and all of us want a regulatory environment that
induces safety but does not overly burden a company that
otherwise would try its dead level best anyway to be sure it
had the safest workplace possible.
With that said, I would like to introduce our distinguished
chairman for his opening statement, Chairman Enzi.
Opening Statement of Senator Enzi
The Chairman. Thank you, Mr. Chairman. I appreciate your
holding this as your first hearing of the subcommittee covering
small business and OSHA. I want to express my appreciation for
all of the hard work and leadership that you provide on the
committee as a whole and your diligence in attending
everything.
I know that you have been working in these areas of
employment and workplace safety for a long time and have a real
grasp of the information, besides the diligence that you have
done in doing the tours.
I reflect back on my start on this. I am an accountant. And
I had a client that was an oil well servicing company and I did
some numbers on it. And I went to the boss and I said you know,
you could really save a lot of money if you had a safety
program here. And he said okay, do it.
And I looked like the telephone guy. I said no, no, I do
not do safety, I just recommend safety. He said well, you
already know more about it than anybody in my company, so go
ahead and do it.
So I did some safety programs and built quite an interest
in it and know that safety programs do make a difference. I
also know that businessmen recognize that safety programs make
a difference and the only way they can work this thing harder
is if they had better information, more understandable
information. That is one of the difficulties that we have.
Improving workplace safety and the way the procedures and
regulations under the Occupational Safety and Health Act have
been administered are issues of longstanding concern. The
relationship between OSHA employers and employees should be one
of mutual assistance, guidance and support. OSHA, the business
community and employees should not be adversaries. All sides
want the same thing and that is a safe workplace. That common
goal should bring them together, not push them apart.
That is why OSHA must recognize that small businesses have
unique safety and health issues and they need to be helped not
hindered in an effort to make their workplace safer. OSHA has
already begun to address the needs of small businesses.
I look forward to the additional efforts they can make to
increase the level of dialogue and ensure the lines of
communication and trust and understanding are kept open between
them and the employers of this country.
Workplace safety is just as important for the small
employer as it is for the large employer. The importance of a
worker's health and safety has nothing to do with the size of
an employer's workplace or the annual payroll.
Still, as we examine these issues, we must keep in mind the
fact that all government regulations, no matter how necessary
or useful, do impose a burden on those businesses that are
regulated. And the weight of that burden is often directly
proportional to the size of the business. This is a reality we
have to consider whenever we assess the fairness and practical
effect of any system of regulation and enforcement.
Employers have to read through and implement over 1,000
pages of highly technical safety regulations. Too often
employers are left on their own to try and understand and
comply with all of these regulations. It is hard enough for
large employers who have an in-house staff of safety experts.
For the small employer, whose safety expert is also the human
resources manager, accountant and systems administrator--and
probably waits on customers, too--the task is nearly
impossible. We are talking about employers who want to do the
right thing, who want to comply with the law and protect their
workers. They just need help doing so, more help than OSHA can
currently give them.
We need a system that encourages these good faith employers
to find out how to achieve safety voluntarily. The fact is that
enforcement alone cannot ensure the safety of America's
workforce. I want to prevent the accident in the first place.
Although inspection and enforcement must be a part of any
comprehensive regulatory system, we understand that we will
never be able to rely on them alone. Inspections and fines by
themselves will never lead the way to a safer workplace. The
overwhelming majority of employers who are committed to
ensuring the health and safety of their employees need more
help not more headaches.
That is why we must continue to encourage cooperation,
foster the exchange of ideas and increase the level of trust
between the regulators and the regulated community. If we do,
we will advance the cause of workplace safety.
Today's hearing continues that discussion about what is
involved in achieving greater safety and health for our most
important resource, our great American workers.
Thank you Mr. Chairman.
Questions of Senator Enzi to Arthur Sapper
Question 1. Currently, under the Equal Access to Justice Act, small
businesses can't recover costs of litigation if OSHA can show the
action it brought was substantially justified even when the company
successfully challenged the citation. In your experience, is it
difficult for the agency to be able to show substantial justification?
Should this standard be changed? If so, how should it be changed?
If an employer that believes he was incorrectly cited nonetheless
does not contest the citation for financial reasons what are the
potential future effects of that citation?
Question 2. As you may be aware, there have been legislative
proposals to exempt employers that are cited for non-willful violations
from any monetary fine if they correct the violation within 72 hours.
Do you believe such a proposal, if enacted, would have any positive
effects on improving workplace safety?
Senator Isakson. Thank you, Mr. Chairman. Senator Murray.
Opening Statement of Senator Murray
Senator Murray. Mr. Chairman, let me personally welcome you
to the HELP Committee. I am looking forward to working with you
on a bipartisan basis to strengthen the safety and health
protections that America's workers depend on.
As the Ranking Member of the Subcommittee on Employment and
Workplace Safety, I worked closely with our chairman, Senator
Enzi, who is here as well. I look forward to working with you
to develop an equally productive partnership.
I want to thank you for calling this hearing today to
discuss how OSHA can do a better job of working with small
businesses to protect the health and safety of their workers.
Like you, Mr. Chairman, I do recognize that small
businesses are engines for our economy. They create jobs and
economic development and we want them to be strong, productive
and safe. We need to ensure that health and safety standards do
not unfairly burden small businesses while at the same time
ensure that all workers are safe, no matter how many people
their company employs. We all recognize that there are costs to
these regulations. But when workers are killed or injured on
the job, there is also a high cost to businesses, to
communities and families and we need to be mindful of that.
Several Members of Congress have suggested changes to OSHA
and before Congress looks at those changes we need to
understand the context today. We need to examine how safe
America's workers are and how effective OSHA is.
And frankly, the statistics are troubling. Each day more
than 12,800 workers are killed or injured on the job. Think
about that. More than 12,000 are killed or injured every day.
Those are not just numbers. That is someone's mom or dad. It is
the family breadwinner. It is someone whose life will never be
the same.
To me, that really says we need to do a much better job of
protecting workers and enforcing our laws on workplace health
and safety.
So how is OSHA doing today? As I look at the staff levels
and enforcement history and penalty assessments, frankly the
picture is not very encouraging. First, OSHA does not have
enough inspectors to protect American workers. At its current
staffing and inspection levels it would take OSHA 108 years to
inspect each job site in America just once. Think about that.
We have got more than 12,000 Americans being killed or injured
every day. And at this rate OSHA will not even reach every
workplace until the year 2113.
That inadequate level of staffing does not give me a lot of
confidence that American workers are adequately protected. I
would hope that any OSHA reform proposal would increase the
number of inspectors to catch up on this tremendous backlog
because it is killing and crippling American workers every day.
Beyond staffing, OSHA has among the weakest enforcement
capabilities of any Government Agency. For the past few years,
I have worked on legislation relating to asbestos so I have
looked closely at how OSHA has enforced asbestos regulations.
As you may know, exposure to asbestos in the workplace skills
some 10,000 Americans every year. Over the last 30 years OSHA
has had a very poor track record of enforcing asbestos
regulations in the workplace.
Auto repair workers, particularly our brake mechanics, are
extremely vulnerable. The EPA is in the process of reexamining
its Gold Book Guidance for brake mechanics. If the EPA decides
to change or eliminate that guidance, then OSHA will need to
issue and promote new guidelines quickly so that auto mechanics
are alerted to the dangers of asbestos exposure and can take
the appropriate precautions.
OSHA's history of enforcement is not encouraging so it
would not make sense to further weaken OSHA's ability to
protect America's workers.
Beyond staffing and enforcement, OSHA financial penalties
are often much smaller than similar penalties at comparable
Government Agencies such as the Employment Standards
Administration, the Equal Employment Opportunity Commission and
the Mine Safety and Health Administration. For example, OSHA's
penalty for a serious violation, one that poses a substantial
risk of death or serious harm, is less than $900. I would
expect that any OSHA reform bill would revise the penalty
formula so it truly serves as a deterrent rather than just the
cost of doing business.
So when I look at today's context, more than 12,000 workers
killed or injured on the job every day, an agency that has too
few inspectors, inadequate enforcement and weak penalties, it
is not hard for me to suggest new ways to improve the agency so
we can better protect America's workers.
I am troubled by some of the proposals I have seen so far
because to me they appear to move in the wrong direction. I
realize the purpose of today's hearing is not to review any
particular piece of legislation, but I do want to take this
opportunity to raise some serious concerns about some of the
bills I have seen because I think we all agree with their
stated goal to alleviate some real-time burdens without
sacrificing health and safety.
But when I look at these bills, it is clear to me they
would seriously undermine and weaken enforcement of the job
safety law and will drain resources away from OSHA, an agency
that is chronically underfunded.
For instance, requiring OSHA to pay the legal costs for
most small private sector employers, regardless of whether the
action was substantially justified, will have a very chilling
effect on both OSHA enforcement and OSHA standard setting.
Today small businesses can already recover litigation costs
if the Government position was not substantially justified.
That protection is already available through the Equal Access
to Justice Act. Changing the law only as it applies to OSHA
treats the enforcement of work and safety protections
differently than the enforcement of all other laws. That sends
the wrong message in our country where, as I said, 12,000
workers are killed or injured every day.
It is also worth remembering that smaller businesses have a
higher rate of deadly job injuries than businesses with more
than 100 workers. In fact, according to the Congressional
Budget Office, employers with fewer than 100 employees
constitute 70 percent of OSHA's case load. Most of the small
employers cited are construction-related terms--half of all
occupational deaths in the construction industry occur in small
employer companies. Hampering OSHA's enforcement ability in
these establishments would be devastating to workers, resulting
in even higher rates of worker fatalities and injuries and
illness.
In addition, these bills would undermine the power of the
Secretary of Labor to interpret and enforce our Nation's job
safety law. We should not be expanding the size of the role of
an outside commission that hears only a small portion of the
enforcement cases brought by the Secretary and really lacks the
comparable knowledge, experience and expertise.
So if we are going to reform OSHA, we need to understand
the facts today and make sure any legislation moves us in the
right direction to a safer and healthier workplace.
Mr. Chairman, you have my commitment to work with you on a
bipartisan basis to adopt solutions to worker health and safety
that experts around the years have spent years developing. One
example is the global system for classifying and labeling
chemicals. We have a real opportunity to forge a bipartisan
consensus on those kinds of health and safety issues, and I
hope this subcommittee will move quickly to adopt a uniform
approach on chemical safety and to correct the current failings
of the Material Safety Data Sheets.
This approach will be crucial to the ongoing economic
success of any business or industry, especially small
businesses, that are becoming increasingly frustrated with the
confusing and misleading safety information that they receive.
So again, Mr. Chairman, I look forward to working with you
as we move forward on the critical issue of workplace health
and safety.
Thank you, Mr. Chairman.
Senator Isakson. Thank you very much, Senator Murray.
Senator Isakson. Before I introduce the witnesses, it is a
real personal pleasure for me to introduce Congressman Charlie
Norwood, with whom I worked in the United States House for 6
years and for years before that in the State of Georgia. He has
been a tireless worker on behalf of workplace safety issues,
issues directly engaged in dealing with OSHA, and has been a
real leader on the Committee on Education and the Workforce in
the House of Representatives.
Congressman Norwood, we are delighted to have you today and
we would recognize you for any remarks you would like to make.
STATEMENT OF THE HON. CHARLES NORWOOD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Mr. Norwood. Thank you, Mr. Chairman.
Mr. Chairman and Ranking Member Senator Murray, we really
appreciate the opportunity to come and spend a few minutes with
you on this what I consider a very important issue.
My background in this is pretty simple. I have had to deal
with OSHA most of my adult life, as a dentist. And I have had
to deal with OSHA the last 11 years as being a member of the
Education and Workforce Committee, the last 6 years being the
chairman who had authorization over OSHA. So I am pleased to be
here to be part of this gathering.
I do thank you, Mr. Chairman, for holding this hearing to
explore a relationship between American small businesses and
OSHA. As you all know, it is critically important, this
relationship, in order to enhance workplace safety and health,
and to allow the American small businesses to grow and prosper.
That is really what this is all about.
To me, that is what these bills are all about, the
relationship between the worker and their safety and health and
the relationship between the small business owner and OSHA
itself just simply have to be improved in order to solve the
problem, for example, of not having enough inspectors. You will
never have enough inspectors to inspect every small business.
The only hope we have is being a consultant with small
businesses, having small businesses come to us and seeking help
in how to have a safer and healthier workplace.
This is part of what I see these bills doing. These are
twin goals that I have sought to achieve for the past 4 years
as Chairman of the Workforce Protection Subcommittee in the
other body. And I am pleased to report to you that indeed I
believe we are making progress on both fronts.
Mr. Chairman, the GAO reported to Congress last year that
the American workforce is safer today than any other period in
modern times. Workplace related injuries and fatalities are on
the decline and employer cooperation with OSHA is on the rise.
That is, in my view, what this is all about. That is what we
should shoot for.
As the GAO study suggests, this is in large part due to the
expansion of the voluntary compliance strategy that the
administration has fought hard to strengthen and expand. And
Secretary Chao is to be commended, in my mind, for her hard
work in this regard.
While the administration has taken strides to reverse the
old gotcha enforcement policies of the past--and I know about
those gotcha programs enforcement firsthand--I believe that
American small businesses deserve additional protection in
order to level the playing field when they are dealing with
this Federal Agency. Gotcha enforcement does not increase
workplace safety and health and it does not promote economic
growth.
However, I believe that the gotcha enforcement strategy is
still alive and well in too many OSHA field offices across this
country. At no other time is this more evident than when a
hard-working small business owner attempts to appeal an OSHA
citation.
Mr. Chairman, for too many employers, the systems for
appealing an OSHA citation is simply unfair and unjust.
Fairness is all the American small businessman is asking for
but fairness is not what the Government promotes due to
burdensome regulatory policy for the appeal of OSHA citations.
In the 109th Congress I introduced four bills that will
level this playing field and restore fairness for small
American businesses. And I believe fully in my heart, and our
committee in the House believes, that this will in no way hurt
the employer in terms of health and safety.
These four bills make commonsense reforms to OSHA and they
do not reduce health and safety standards in any way, shape or
form. In any forum I would debate that.
My first bill resolves the conflict between OSHA and
Federal Rules of Civil Procedure rule 60(b) as it pertains to
the unfairly enforced 15-day contest of citation period. It
simply provides that a small employer gets his day in court
when a response to a citation is delayed for a mistake or good
reason.
As Chairman Enzi pointed out, not every small business can
have a safety director on their payroll. Sometimes the same guy
is at the front desk or on the counter selling a product is the
same guy who is the safety inspector. And maybe they get a
citation. And maybe it drops in the back seat of their car and
they do not find it for 3 weeks later. But they ought to have,
if for good reason or for a mistake, they ought to have their
day in court.
The second bill increases the Occupational Safety and
Health Commission from three to five members. This is not hard.
We hope to solve the quorum problem that has left this
commission unable to function almost two-thirds of its entire
existence. That is not satisfactory if you have a citation laid
on you by the Federal Government that it can be very
destructive if you cannot come to a end. Sometimes you simply
pay the fine rather than having that hang over your head. This
problem effectively denies an employer or can deny an employer
a day in court.
The third measures ensures that legal deference is given to
OSHRC. This simply restores congressional intent. Look at the
history. OSHA was signed by Richard Nixon. It almost did not
get through until they came up with this independent commission
that was truly an arbitrator and independent of OSHA citations.
It would never have passed and been signed had that not been
put in there. Now what we have done is we have simply taken
that way.
Finally, the last bill provides attorneys' fees to small
employers who prevail in litigation against OSHA. In testimony
before my subcommittee, we repeatedly heard that small
businesses settled with OSHA rather than challenging an unjust
citation. They do this because it is cheaper to settle than pay
an attorney to fight, no matter how strong you may believe that
you are innocent.
Mr. Chairman, that is simply an unfair choice for a small
businessman or a small businesswoman. The owner should not have
to make these kind of choices.
By introducing this legislation, I hope to put an end to
the loose conundrum for small employers and force OSHA to think
very, very carefully, to think twice before they issue a
frivolous citation or an unjust citation or issue a citation by
an incompetent inspector. They need to think about that. We are
not trying to not get the citations issued. What we are trying
to do is make them think twice before they force a small
business owner into this kind of situation.
Mr. Chairman, it really comes down to this. These four OSHA
bills will prevent small employers from deciding to pay an
unfair OSHA fine or making an investment in his company. It
comes down to that. They are modest. They are simple. They are
straightforward. They will improve the relationship between
employers and the Federal Government, which is what we must
have if we want a healthier, safer workplace. And very likely,
in my belief at least, it will lead to that.
I thank my friend from Georgia, Chairman Isakson, for
exploring these policies today and let us start thinking about
them. I have thought about them so long I am tired of thinking
about them. I would like to get this done.
I especially appreciate this opportunity to testify before
this distinguished committee. I actually look forward to the
testimony of some of the other witnesses.
Mr. Chairman, with that I yield back the balance of my
time.
Senator Isakson. Thank you very much, Dr. Norwood. And on a
personal note, I personally, and I am sure the members of the
committee commend you on your miraculous recovery. You are
doing great and we are very proud of you and proud that you are
here today.
Mr. Norwood. Thank you, sir. So am I.
Senator Isakson. If the witnesses will assume their place
at the table, I will introduce them all at once and then we
will hear the testimony in the order of the introduction.
First with us today is Mr. Jerrold Dodd. Mr. Dodd has been
General Manager and Chief Operating Officer of Dayton United
Metal Spinners in Dayton, OH for the last 12 years. Mr. Dodd
has been in manufacturing for over 35 years. Before that he
served his country from 1964 to 1970 in the United States
Marine Corps as an E-5 platoon sergeant.
After his service he started out as a welder while
attending college at night, eventually earning a bachelors of
science degree in manufacturing engineering. Most importantly,
he did all this while raising three children with his wife of
39 years.
Mr. Dodd will discuss his experiences with OSHA and any
suggestion he has to improve OSHA's inspection and adjudication
process.
Second, we have Mr. Roy Swindal. Mr. Swindal is President
of Masonry Arts, Inc., a specialty contractor company which
installs exterior brick skin components. Mr. Swindal
apprenticed as a bricklayer in high school and college and
later worked with his father as a journeyman bricklayer and
foreman. He opened his own shop, Masonry Arts, in 1979 and has
seen it grow into a nationally recognized company.
He will discuss his own experience with OSHA regulations
and inspections and suggest methods to encourage trust and
cooperation between a small business and OSHA to ultimately
make the workforce safer in a joint effort between both
parties.
Third, we are pleased to welcome Mr. Arthur Sapper, a
graduate of Georgetown University Law Center and the State
University of New York at Buffalo. Mr. Sapper is a partner in
the law firm McDermott, Will and Emery. Mr. Sapper's practice
focuses on all areas of occupational safety and health law,
including inspections, litigation, rulemaking, counseling and
lobbying.
He litigates regularly before the Occupational Safety and
Health Review Commission, the Federal Appellate Courts and
various administrative bodies. Prior to joining the firm, Mr.
Sapper held the position of Deputy General Counsel of the
Occupational Safety and Health Review Commission.
We are also very happy to have Ms. Lynn Rhinehart with us
today. Ms. Rhinehart is an Associate General Counsel for the
AFL-CIO, a position she has held since 1996. Ms. Rhinehart is a
former staff member of this subcommittee, serving as a staffer
to former Senator Howard Metzenbaum.
Among her current responsibilities is the coordination of
the Federation's legal work on occupational safety and health
issues. Ms. Rhinehart graduated magna cum laude from Georgetown
University Law Center in 1994, which means she is a whole lot
smarter than I am. Following graduation, she clerked for 2
years in the Honorable Joyce Hens Green of the United Sates
District Court for the District of Columbia.
She is here today to share her views of the AFL-CIO and
proposed OSHA reform legislation.
Finally, I would like to add that we asked Mr. Earl Ohman,
former general counsel of the Occupational Safety Health Review
Commission to testify today but he was unable to do so due to a
family commitment. He has agreed to submit testimony for the
record, for which we thank him very much for his cooperation
and for his willingness.
[The statement of Mr. Ohman not available at time of
print:]
Senator Isakson. I would ask each of the members to try and
stay as close to 5 minutes as they can so we can get in the
testimony and all the questions for the panel.
I recognize Mr. Dodd.
STATEMENTS OF JERROLD DODD, GENERAL MANAGER, DAYTON UNITED
METAL SPINNERS, DAYTON, OH; ROY SWINDAL, MASONRY ARTS,
BESSEMER, AL; ARTHUR SAPPER, OSHA PRACTICE GROUP, McDERMOTT,
WILL AND EMERY, WASHINGTON, DC; AND LYNN RHINEHART, ASSOCIATE
GENERAL COUNSEL, AFL-CIO
Mr. Dodd. Thank you and good afternoon, Mr. Chairman,
members of the subcommittee.
I am Jerrold Dodd, General Manager, Chief Operating
Officer, Human Resources Manager. I am all of those above, as
you have heard before. I am the safety officer of Dayton United
Metal Spinners Company.
I am pleased to have the opportunity to testify on behalf
of the National Association of Manufacturers on ways to improve
the relationship between OSHA and small businesses that benefit
not only employees but their employers and their workers.
As you are aware, the NAM is the Nation's largest
industrial trade association, representing large and small
manufacturers in every industrial sector and in all 50 States.
NAM's mission is to enhance the competitiveness of
manufacturers and improve American living standards by shaping
legislative and regulatory environment conducive to U.S.
economic growth.
In light of our dedication to that mission, the NAM
commends the chairman and ranking Democrat for your efforts on
this subcommittee to improve this relationship between small
business and OSHA.
Thank you for allowing me the time to tell you about what
is unfortunately a very troublesome episode from my company's
own history with OSHA.
First off, Dayton United Metal Spinners has been in
business for 57 years. My brother and his wife bought the
company back in 1993, but they left the running of the business
in my hands. We are a manufacturer of quality metal spun
products in a safe and family atmosphere. We are small, under
20 workers, but each of the jobs in our plant is a good job
which is valuable to the workers and their families.
The reason I am here today is to relate a firsthand
experience of what I believe to be an OSHA injustice. I think
the small business OSHA due process reforms, when passed, will
certainly be a step in the right direction to correct some of
the unfavorable OSHA conditions small businesses confront and
maybe even prevent what I experienced from happening in the
future.
On or about September 10th of 2004, one of my punch press
employees severed the tips of two fingers. We packed the
fingers on ice, called the emergency squad and had him flown to
an amputee specialist at the Jewish Hospital in Louisville,
Kentucky. The fingers were saved, reattached. He came back to
work for light duty within 3 months.
Approximately 1 week after the accident an investigator for
the Cincinnati, OH OSHA office stopped in. She started asking a
few questions about what happened, when by sheer coincidence
the injured worker stopped with his girlfriend. He came into my
office so I told the investigator that she was welcome to ask
him what happened.
It was at this moment that the injured worker told the OSHA
investigator in front of me, his girlfriend, and my
administrative assistant, that the accident was his fault. He
told the investigator he was trying to set the punch press up
while it was still running and he knew better. He told the
investigator--he admitted his mistake, his mistake, and he said
he was trained otherwise.
The investigator took him out in the parking lot and spoke
with him. A little while later she came back in and said she
wanted to take some pictures and talk to some more employees.
The injured worker came back to my office and told me that
while outside alone with the investigator she told him never to
admit wrongdoing in front of your employer and that he had
grounds for a major lawsuit. The investigator also told him
that he may not have a worker's compensation claim if he
admitted wrongdoing and he would have to pay for all of the
medical expenses himself.
I asked the injured worker if he would sign an affidavit to
that effect and he later did just that. He also stated again he
told the investigator the accident was his own fault. The
machine should have been locked out. He failed to do that. He
was also upset that an OSHA investigator would even tell him to
sue the company and he should never admit to wrongdoing.
My story does not stop there. The OSHA investigator also
spoke outside to an employee who was working at a machine
behind the injured worker at the time of the accident. The
repeated investigation of this employee was just short of
harassment. The employee, after being repeatedly asked the same
questions with the tape recorder being selectively turned off
and on, said the investigator made her feel like she was lying
and that the company was being attacked for wrongdoing. The
investigator asked the second employee for her home phone
number and address so she could contact her away from the
plant. I also have a signed affidavit from this employee
stating exactly what happened during the OSHA interview.
Needless to say, the manner and scope of questioning by the
OSHA investigator left not only my employees but me very upset.
I wrote a letter to the regional director of OSHA in Chicago
expressing my displeasure. To my chagrin, this letter seemed to
provoke the agency even further and resulted in another visit
from the first investigator with her superior, an OSHA Area
Director.
In the meantime I had to hire an attorney from Dunlevey,
Mahan and Fury to represent me. Remember, this entire chain of
events was caused by an employee forgetting to follow safe
operational procedures.
When the second visit occurred, it became more an
interrogation of me than an investigation of what happened with
the worker and the severed finger. The OSHA investigator was
vindicated by her superior and all of a sudden then I was the
bad guy.
I explained that I wanted no part of an interrogation,
called my attorney, put him on the phone with the Area Director
and they left.
Some time passed, but when I next heard from OSHA, it was
in the form of a notice that I had been fined $17,000. Of
course, small companies such as mine have little option but to
pay an attorney to try to negotiate a lesser fine, despite
having to pay the eventual fine and the attorney's fees. This
is less than having an attorney fight the charges which would
cost even more. To date I have paid over $8,000 in attorney's
fees which got my fine reduced to $3,500.
The incident gets worse. In addition to the above, this
injury got me kicked out of my BWC group, which I was in for
having a good safety record. My projected BWC premiums are now
going to run between $45,000 and $50,000 a year, compared to
the $15,000 I pay now.
All of this expense is for something that an employee
admitted was his fault. With the shrinking manufacturing work
my company sees each year, this is all money that I cannot
afford to pay.
Instead of understanding and help from OSHA, I get fined,
thrown out of a group, and faced with possibly closing my doors
if the money keeps flowing out for the wrong reasons.
We have worked very hard at writing safety and operational
procedures that have allowed us to be audited and found
compliant to AS9000 standards, necessary in our industry. We
train all of our employees in these safety and operational
procedures and spend large sums of money to keep our equipment
safe.
If I were to make a recommendation or two, I would first
suggest that OSHA investigators be retrained to get out of the
employer always guilty first, then the employee mindset. They
should be more of a help in showing employers what needs fixing
and give the employer time to make the repairs. Fines should be
a last option. There should be absolutely--they should be
absolutely prohibited from giving legal advice or suggesting
legal remedies to any employees that they interview.
It is next to impossible for a person running a small
business to know everything there is to know in the OSHA
standards manual. Investigators need to recognize that, look at
what safety devices the company already has in place, what
training exists for employees and take these into
consideration.
Manufacturing in the United States is under assault like
never before. I believe that providers of jobs in this Nation
are taxed, sued and regulated to death by what are largely
unintended consequences of government action. I do not think
our competitors have these same issues to contend with.
All people like me ask of lawmakers like the ones on this
subcommittee is to keep a perspective of what each new law and
regulation means to people trying to make a living in the rest
of the country. For a long time there has been a Dayton United
Metal Spinners Company and we would like to keep it that way
for a long time. But when the Government comes knocking on your
door, they see retribution and condemnation as its role in what
amounted to a worker failing to do his job properly.
The NAM and its members are working to extend this great
American economy. We want to lower the costs of production that
hamstring us against the world competitors that are taking away
so much of our national wealth. This subcommittee can play its
part by examining new methods for agencies like OSHA to employ
when reaching out to employers and workers.
No one wants an unsafe workplace. I live and work with my
employees and see them around town. Do I want to alienate them
and drive them away and see harm done to them? No. I am not
that kind of a person and my company is not that kind of a
company.
This experience with OSHA shows how sometimes its
inspectors can stray from their mission of safety and health
and get out of control. Legislation that would allow small
businesses to have their attorneys' fees reimbursed when they
successfully defend a citation would be a step in the right
direction to help small manufacturers like myself in dealing
with these unruly situations.
I invite you to visit your local manufacturing companies to
see firsthand what they are making. The American manufacturer
wants to work. Let us keep it that way. Thank you again for
this opportunity and I look forward to answering any questions
that you may have.
[The prepared statement of Mr. Dodd follows:]
Prepared Statement of Jerrold Dodd
Good afternoon, Mr. Chairman and members of the subcommittee. I am
Jerrold Dodd, General Manager and Chief Operating Officer of Dayton
United Metal Spinners, Inc. I am pleased to have the opportunity to
testify on behalf of the National Association of Manufacturers (NAM) on
ways to improve the relationship between OSHA and small businesses that
benefit not only employers, but their workers.
As you are aware, the NAM is the Nation's largest industrial trade
association representing small and large manufacturers in every
industrial sector and in all 50 States. The NAM's mission is to enhance
the competitiveness of manufacturers and improve American living
standards by shaping a legislative and regulatory environment conducive
to U.S. economic growth. In light of our dedication to that mission,
the NAM commends the Chairman and ranking Democrat for your efforts on
this subcommittee to improve this important relationship between small
business and OSHA.
Thank you for allowing me the time to tell you about what is
unfortunately a very troublesome episode from my company's own history
with OSHA.
First off, Dayton United Metal Spinners has been in business for 57
years. My brother and his wife bought the company in 1993, but have
left the running of the company in my hands. We have a proud history of
producing high-quality metal spinning products in a safe, family
atmosphere. We are small, with under 20 workers, but each of the jobs
at our plant is a good job; valuable to the workers and their families.
The reason I am here today is to relate a first-hand experience of
what I believe to be an OSHA injustice. I think the Small Business OSHA
Due Process Reforms, when passed, will certainly be a step in the right
direction to correct some of the unfavorable OSHA conditions small
businesses confront and maybe even prevent what I experienced from
happening in the future.
On or about September 10, 2004, one of my punch-press employees
severed the tips of two fingers. We packed the fingers on ice, called
the emergency squad and had him flown to an amputee specialist at the
Jewish Hospital in Louisville, Kentucky. The fingers were saved,
reattached, and he came back to light duty within 3 months.
Approximately 1 week after the accident, an investigator from the
Cincinnati, Ohio, OSHA office stopped in. She started asking a few
questions about what happened, when by sheer coincidence the injured
worker stopped in with his girlfriend. He came into my office, so I
told the investigator that she was welcome to ask him what happened.
It was at this moment that the injured worker told the OSHA
investigator in front of me, his girlfriend, and my administrative
assistant, that the accident was his fault. He told the investigator
that he was trying to set up the punch press while it was still turned
on. He admitted this was a mistake--his mistake--and said he was
trained otherwise.
The investigator then took him out in the parking lot and spoke
with him. A little while later she came back in and said she wanted to
take some pictures and speak with some other employees. The injured
worker came back into my office and told me that while outside alone
with the investigator she told him to never admit wrongdoing in front
of his employer and that he had grounds for a ``major'' lawsuit. The
investigator also told him that he may not have a workers' compensation
claim if he admitted wrongdoing and he would have to pay for all the
expenses himself.
I asked the injured worker if he would sign an affidavit to that
effect and he later did just so. He also stated again that he told the
investigator the accident was his own fault. The machine should have
been locked out and he failed to do that. He was also upset that an
OSHA investigator would even tell him that he could sue the company and
should never admit to wrongdoing.
My story does not stop there.
The OSHA investigator also spoke outside to an employee who was
working at a machine behind the injured worker at the time of the
incident. The repeated investigation of this employee was just short of
harassment. The employee, after being repeatedly asked the same
questions with a tape recorder being selectively turned on and off,
said the investigator made her feel like she was lying and that the
company was being attacked for wrongdoing. The investigator also asked
this second employee for her home phone and address so she could
contact her away from the factory. I also have a signed affidavit from
this employee stating exactly what happened during the OSHA interview.
Needless to say, the manner and scope of the questioning by the
OSHA investigator left not only my employees, but me very upset. Later,
I wrote a letter to the Regional Director of OSHA in Chicago expressing
my displeasure.
To my chagrin, this letter seemed to provoke the agency further and
resulted in another visit from the first investigator and her superior,
an OSHA Area Director. In the meantime, I had to hire Mr. Gary Auman of
Dunlevey, Mahan and Fury, to represent me. Remember, this entire chain
of events was caused by an employee forgetting to follow safe
operational procedures.
When this second visit occurred it became more of an interrogation
of me than an investigation of what happened with the worker and his
severed fingers. The OSHA investigator was vindicated by her superior,
and all of a sudden I was the bad guy.
I explained that I wanted no part of an interrogation, called Mr.
Auman, put him on the phone with the Area Director, and they left.
Some time passed, but when I next heard from OSHA it was in the
form of a notice that I had been fined $17,000. Of course, small
companies, such as mine, have no option but to pay an attorney to try
and negotiate a lesser fine, despite then having to pay the eventual
fine and attorney's fees.
To date, I have paid over $8,000 in such fees and got my fine
reduced to $3,500.
This incident gets worse. In addition to the above, this injury got
me kicked out of my BWC group, which I was in for having a good safety
record. My projected BWC premiums are now going to run between $45,000
and $50,000 a year versus the $15,000 I used to pay.
All this expense is for something that an employee admitted was his
fault. With the shrinking manufacturing work my company sees each year;
this is all money that I can't afford to pay.
Instead of understanding and help from OSHA, I got fined, thrown
out of a group rating, and possibly faced with closing my doors if the
money keeps flowing out the door for the wrong reasons.
We have worked very hard on writing safety and operational
procedures that have allowed us to be audited and found compliant to
meet the AS9000 standards necessary in our industry. We train all of
our employees in these safety and operational procedures and spend
large sums to keep our equipment safe.
If I were to make a recommendation or two, I would first suggest
that OSHA investigators be re-trained to get out of the ``employer
always guilty first, then the employee'' mindset. They should be more
of a help in showing employers what needs fixing, and then give the
employer time to make repairs. Fines should be a last option. They
should also be absolutely prohibited from giving legal advice or
suggesting legal remedies to any employees they interview.
It is next to impossible for a person running a small business to
know everything there is to know in the OSHA standards manual.
Investigators need to recognize that, look at what safety devices the
company already has in place, what training exists for employees, and
take these into consideration.
Manufacturing in the United States is under assault like never
before. I believe that providers of jobs in this nation are taxed, sued
and regulated to death by what are largely unintended consequences of
government action. I don't think our competitors have these same issues
to contend with.
All people like me ask of lawmakers like the ones on this
subcommittee is to keep a perspective on what each new law and
regulation means to people trying to make a living in the rest of the
country. For a long time there has been a company called Dayton United
Metal Spinners, and we'd like to keep it that way for a long time to
come. But, when the government comes knocking on the door, like they
did in my case, and only sees retribution and condemnation as its role
in what amounted to a worker failing to do his job properly, then I
just don't know what to think about the future.
The NAM and its members are working to extend this great American
economy to a new century of growth and opportunity. We want to lower
the costs of production that hamstring us against the world competitors
that are taking away so much of our national wealth. This subcommittee
can play its part by examining new methods for agencies like OSHA to
employ when reaching out to employers and workers. No one wants an
unsafe workplace. I live and work with my employees and see them around
town. Do I want to alienate them, drive them away and see harm done to
them from my own incompetence? No way. I'm not that kind of person and
my company is not that kind of business.
This experience with OSHA shows how sometimes its inspectors can
stray from their mission of safety and health and get out of control.
Legislation that would allow small businesses to have their attorneys'
fees reimbursed when they successfully defend a citation would be a
step in the right direction to help small manufacturers like myself in
dealing with these unruly situations.
I invite all of you to visit your own local manufacturing companies
and see firsthand what they're making. The American manufacturer wants
to work, let's keep it that way for a long, long time.
Thank you again for this opportunity and I look forward to
answering any questions you may have.
Senator Isakson. Thank you, Mr. Dodd. Your testimony was
very informative, albeit slightly a little long. So I would
tell the other members if they will watch the red light and try
and sum up when it is on, that would be greatly appreciated.
Mr. Swindal.
Mr. Swindal. Chairman Isakson, members of the subcommittee,
thank you for the opportunity to testify before you today on
small employer concerns with rules and regulations promulgated
and enforced by the Occupational Safety and Health
Administration, OSHA.
I own a masonry construction business in Birmingham, AL. We
do a variety of masonry, stone and blast-resistant construction
in the United States.
As I am sure most of you are aware, OSHA has a variety of
programs in place to exchange ideas with trade associations
about best practices which their member companies have a place
to protect employees on the job and improve upon the
effectiveness of standards impacting their industries.
The Mason Contractors Association of America has an
alliance with OSHA which focuses on scaffolding, fall
protection, wall bracing and forklift safety issues. Our
director of engineering, with the help of several others in the
industry, has written a handbook on wall bracing which OSHA
actually refers to for guidance.
These alliances are, in our view, invaluable because they
allow us to share ideas with OSHA on how we can better protect
health and safety of our workers. I commend OSHA for the
resources they dedicate to this important effort.
The Mason Contractors Association would like to expand on
this concept through our existing alliance. In essence, take it
one step further and allow qualified safety personnel from our
industry to train OSHA compliance officers and agency personnel
responsible for writing, interpreting and enforcing health and
safety standards, primarily those impacting construction
including masonry and other specialty trades.
We have had some initial conversations with OSHA about this
and they seem very willing to work with us to establish what we
like to call a ``Training Exchange Program.'' We have also
asked the agency to add a masonry specific course to its
curriculum at the OSHA Training Institute and again have
someone with broad experience from our industry assist in
teaching OSHA officials about the practical applications, some
of the standards they write and enforce that are specific to
our specialty trade.
By way of example, 2 years ago in Florida and Massachusetts
two companies were cited for leaving materials on the
scaffolding at the end of the work day. The materials are left
on scaffolding for a number of reasons. First and foremost, it
would be impractical to remove part of a pallet of bricks from
the scaffolding without creating some very precarious and
potentially life-threatening problems.
Moreover, many of these materials remain so the masons can
simply pick up their tools the next morning and go to work.
OSHA's strict interpretation of this standard would have forced
contractors to bring laborers on the site an hour prior to the
start of a work day and pay them overtime to remove the
materials at the end of the workday, this requiring materials
to be handled two or more times and opening the door for
possible injury. This simply made no sense.
A group of contractors met with the Directorate of
Construction of OSHA to explain to them that they were actually
creating more safety problems. OSHA ultimately issued a
different interpretation to allow contractors to leave
materials on the scaffolding without being cited.
But it is this type of situation which could easily be
avoided if we as contractors were allowed to offer very
detailed training guidance to agency officials, most of whom
have very little hands-on experience. While it may be the case
that only the larger mason contractors would have the resources
to make this training exchange program work, every mason
contract construction company small and large would ultimately
benefit. Our goal here is information sharing and the
resolution of interpretations and/or citations in a
nonconfrontational fashion. The number one goal of any
contractor is the health and safety of its employees.
If our industry is allowed to work more cooperatively with
OSHA to help avoid the issuance of these certain citations due
to the lack of understanding about a particular provisions'
applications, we will do a great service to the industry, the
OSHA officials and the Administrative Law Judges who are
already overwhelmed with work. It simply makes sense to have
this type of collaborative structure in place. The contractors
and their employees will feel less threatened if they know OSHA
has more knowledge and insight into the specifics of the trade.
And the OSHA officials should be grateful for the knowledge
they gain about an industry that contributes a tremendous
amount of jobs and economic stability to our country.
Remember, there are literally millions of construction
workers in this country today.
Again, thank you for the opportunity to present these ideas
to you and I would be glad to answer any questions. Thank you
very much.
[The prepared statement of Mr. Swindal follows:]
Prepared Statement of Roy Swindal
Chairman Isakson, members of the subcommittee, thank you for the
opportunity to testify before you today on small employer concerns with
rules and regulations promulgated and enforced by the Occupational
Safety and Health Administration (OSHA).
I own a mason contracting business in Bessemer, Alabama. I do a
variety of masonry work throughout the country.
As I'm sure most of you are aware, OSHA has a variety of programs
in place to exchange ideas with trade associations about ``best
practices'' which their member companies have in place to protect
employees on the job and improve upon the effectiveness of standards
impacting their industries. The Mason Contractors Association of
America has an Alliance with OSHA which focuses on scaffolding, fall
protection, wall bracing and forklift safety issues. Our Director of
Engineering, with the help of several others in industry, has written a
handbook on wall bracing which OSHA actually refers to for guidance on
wall bracing issues. These Alliances are, in our view, invaluable
because they allow us to share ideas with OSHA on how we can better
protect the health and safety of our workers. I commend OSHA for the
resources they dedicate to this important effort.
The Mason Contractors Association would like to expand on this
concept through our existing Alliance--in essence take it one step
further--and allow qualified safety personnel from our industry to
train OSHA Compliance officers and agency personnel responsible for
writing, interpreting and enforcing health and safety standards,
primarily those impacting construction and masonry. We have had some
initial conversations with OSHA about this and they seem very willing
to work with us to establish what we like to call a ``Training Exchange
Program.'' We have also asked the Agency to add a masonry specific
course to its curriculum at the OSHA Training Institute and, again,
have someone with broad experience from our industry assist in teaching
OSHA officials about the practical applications of some of the
standards they write and enforce such as scaffolding, fall protection,
the overhand bricklaying exemption and other issues specific to our
specialty trade.
By way of example, 2 years ago contractors in Florida and
Massachusetts were cited for leaving materials on the scaffolding at
the end of the work shift. The materials are left there for a number of
reasons. First and foremost, it would be impossible to remove part of a
pallet of bricks from the scaffolding without creating some very
precarious and life-threatening problems. Moreover, many of these
materials remain so the masons can simply pick up where they left off
the previous day. OSHA's strict interpretation of this standard would
have forced contractors to bring laborers on the job site an hour prior
to the start of a shift and pay them overtime to remove the materials
at the end of the shift. This simply made no sense and we met with the
Directorate of Construction at OSHA to explain to them that they were
actually creating more safety problems. OSHA ultimately issued a
different interpretation to allow contractors to leave materials on the
scaffolding without being cited. But it is this type of situation which
could easily be avoided if we as contractors were allowed to offer very
detailed training and guidance to agency officials, most of whom have
very little hands-on construction experience.
While it may be the case that only the larger mason contractors
would have the resources to make this Training Exchange Program work,
every mason contracting company, small and large, would ultimately
benefit. Our goal here is information sharing and the resolution of
interpretations and/or citations in a non-confrontational fashion. The
number one goal of any contractor is the health and safety of their
workforce. If our industry is allowed to work more cooperatively with
OSHA to help avoid the issuance of certain citations due to a lack of
understanding about a particular provisions application, we will do a
great service to the industry, the OSHA officials and the
Administrative Law Judges who are already overwhelmed with work. It
simply makes sense to have this type of collaborative structure in
place. The contractors and their employees will feel less threatened if
they know OSHA has more knowledge and insight into the specifics of
their trade. And the OSHA officials should be grateful for the
knowledge they gain about an industry that contributes a tremendous
amount of jobs and economic stability to our country.
Again, thank you for the opportunity to present these ideas to you
today. I'd be happy to answer any questions.
Senator Isakson. Mr. Swindal, thank you very much. Mr.
Sapper.
Mr. Sapper. Thank you, Mr. Chairman.
My name is Art Sapper. I am a partner in the OSHA practice
group of the law firm of McDermott, Will and Emery here in
Washington. I represent today the Chamber of Commerce of the
United States.
I have been practicing OSHA law for 31 years, both in the
government and out. I also taught a course at Georgetown in
OSHA law. And I would like to focus my remarks today on the
problem that really amounts to an underlying pathology in the
current enforcement of the OSHA Act, and that is judicial
deference to OSHA instead of the Review Commission.
That deference was required indeed by a U.S. Supreme Court
case. The U.S. Supreme Court held, in a case called CF&I Steel,
that if OSHA's interpretation is merely reasonable it wins,
even if the Review Commission and even if a court thinks OSHA's
interpretation is wrong. They do not have to be right. So OSHA
is awarded a home run, you might say, even if it, in fact, hit
only a foul ball.
The correctness of the Review Commission interpretation is
literally irrelevant. Why is it important? Because it was the
Review Commission that Congress established in 1970 as the
oversight agency over OSHA, to look over OSHA citations
carefully. Yet it does not matter if the Review Commission has
an opinion on the matter any more. OSHA wins if it is
reasonable, even if everybody thinks it is wrong, including the
court, including the Review Commission.
Now OSHA is essentially a prosecuting agency. And like all
prosecuting agencies, it is supposed to do its job with zeal.
It would not be doing its job if it did not do it with zeal.
But when you have an agency that is supposed to act like that,
you must have an oversight body over it. You must have a body
that can say that OSHA is wrong, not merely that its lawyers
can cobble together an argument that sounds reasonable, which
is the case now. But for all practical purposes, there is no
such oversight today because of that U.S. Supreme Court
decision.
What are the bad effects of this? First of all, it
undermines rulemaking. You see, deference kicks in only if the
standard is ambiguous. So if you are an OSHA rule writer, you
are going to write ambiguities into your standards. That way
you avoid all of the hard work that goes into making hard
policy decisions on the public record and with evidence. You
can just write the standards to be ambiguous and settle the
policy issue through the back door later through
interpretation. And as long as you cobble together a reasonable
sounding interpretation, you are going to win.
And that is exactly what happened in the American Cyanamid
case. There a major policy decision was never made in
rulemaking. After the hazard communication standard was
adopted, there was an internal controversy within OSHA over
whether or not to impose something called target organ
labeling.
It is not important what it is. Let us just say when you
read the OSHA standard when it was adopted it was not there.
The only thing that was there was a vague allusion to it in an
appendix to the standard. The Review Commission said it is not
there. So that if the label said do not breath this stuff, that
is bad. It must say it causes lung damage. OK, it is a policy
decision. But it was never made in rulemaking.
When it was challenged, the Review Commission said it is
not there. The Sixth Circuit reversed, saying it does not
matter if it is not there. OSHA's interpretation is reasonable
so we are going to require millions of product labels to be
rewritten based on a policy decision that was never actually
made in rulemaking.
Another problem with deference. It makes for some really
far out interpretations. Remember, I said the Agency is
supposed to enforce the act with zeal? Well, it does. And that
is the problem sometimes.
I once had a client, who happened to be a small employer
but it could have been a large one, that was not guilty of an
OSHA violation. This we knew to a dead certainty. It received a
citation. We went to the OSHA supervisor in charge of the case
and we said we would like you to withdraw this. Why? Because my
client did not know of the violation. He did not know of it and
he could not have known of it with the exercise of reasonable
diligence.
Now if that sounds familiar to people in this room, that is
because that has been the case law under the OSHA Act for over
a quarter of a century. The commission and the courts all agree
that that is a requirement that OSHA must satisfy before it can
issue a citation.
This supervisor, a man I have known personally for many
years, and who has had many years of experience in OSHA law,
was unaware of the case law. Why? Because the OSHA field manual
does not inform him of it because OSHA has never acceded to all
of this case law. Why? Because its lawyers believe that they
can cobble together a reasonable sounding argument that says
that all this case law is wrong. So they do not tell their
inspectors about it, they do not tell their supervisors about
it. We asked this gentleman to withdraw the citation based on
this case law. He did not know about it. He was not going to
take my word for it so he, logically, refused.
Now my client happened to be a small employer. He could not
afford to fight this case. So he had to confess to a wrong he
did not commit. He paid the citation. Yes, right, we got the
penalty reduced. But he had to admit to something that he did
not do wrong, all because this supervisor was never informed of
this case law. And the reason that he was not informed of it is
because of judicial deference to OSHA.
OSHA does not have to accede to any court decision if it
thinks it can come back with a merely reasonable counter
argument.
Now there is absolutely no doubt that Congress never
intended this. It is not even arguable. On the floor the U.S.
Senate, Senator Javits assured the Senate that the Review
Commission would decide cases ``without record regard to the
view of OSHA''. And in fact, it was that assurance that assured
the passage of the Javits compromise. And that compromise
permitted the passage of the OSHA Act. Without it, we would
have no OSHA today.
Unfortunately, through fate, the lawyers brief to the U.S.
Supreme Court in the CF&I Steel case did not bring that up to
the U.S. Supreme Court. It was not there. I do not blame the
U.S. Supreme Court for coming out nine to zero against the
employer. It just was not there. But we know today that it is.
We know today that the Senate was assured that the role of the
commission would be an important one, that it oversee OSHA,
that it could say when OSHA is wrong.
Finally, another problem I would like to bring to your
attention about judicial deference is that yes, the U.S.
Supreme Court doctrine says that OSHA can be reversed if it is
unreasonable. Well, try and prove that OSHA is unreasonable. A
small attorney who does not have a lot of experience with OSHA
is simply not going to be able to do it. Not that I don't have
a lot of respect for my colleagues in smaller towns and cities
or in large towns who do not specialize in OSHA, but they do
not specialize in OSHA. Even I have had tremendous difficulty
trying to prove that OSHA is unreasonable, even when it is.
For example, I have had one case pending before the Review
Commission where OSHA's interpretation is just crazy. It has
been pending there for 10\1/2\ years by the way, at least.
The interpretation, by the way, is that whenever a
maintenance mechanic has to work on a piece of equipment he has
to have been trained on how to lock out that very piece of
equipment before he works on it. It sounds reasonable at first
glance. Then you realize that there are tens of thousands of
machines in a large manufacturing plant. It would seem crazy,
therefore, it would seem enough to have trained him on general
lockout skills that he can then apply to each machine as he
comes across them. But that issue is now pending before the
Review Commission and the Review Commission is not free to
decide whether OSHA is right or wrong.
So there is an underlying pathology. It makes for arrogance
and not just ignorance on the part of the OSHA inspectors. And
the Review Commission was established, Mr. Chairman, to make
sure that that is cabined, that zeal is controlled.
I thank the chairman for his time.
[The prepared statement of Mr. Sapper follows:]
Prepared Statement of Arthur G. Sapper
Mr. Chairman, and members of the subcommittee, I am pleased to be
testifying before you this afternoon. I am a member of the OSHA
Practice Group of the law firm of McDermott Will & Emery LLP.
I am testifying today on behalf of the U.S. Chamber of Commerce. I
am a member of the Chamber's Labor Relations Committee and its OSHA
Policy Subcommittee.
For 31 years, I have been deeply involved in OSHA law. For 12 of
those years, I served in the Government. I spent over 10 years at the
Occupational Safety and Health Review Commission, where I became Deputy
General Counsel. I also spent 2 years at the Federal Mine Safety and
Health Review Commission as its Special Counsel. For over 17 years, I
have advised employers regarding their obligations under the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, and I
have litigated some of the groundbreaking cases under the statute. I
have written and lectured on OSHA law. I have helped to co-author
treatises on the OSH Act, including the well known American Bar
Association treatise, OCCUPATIONAL SAFETY AND HEALTH LAW (2d ed. 2002).
I was for 9 years an adjunct professor at Georgetown University Law
Center, where I taught a graduate course in OSHA law.
Many of the U.S. Chamber's members are small-and medium-size
companies. The burden of OSHA enforcement falls with special weight
upon them, for they can rarely afford to defend themselves against OSHA
charges. Unfair aspects of OSHA enforcement--and there are unfair
aspects--make it especially difficult for them to assert their rights
and often deprives them of a fair hearing entirely.
We therefore encourage the subcommittee to favorably report several
bills amending the Occupational Safety and Health Act that we hope will
be introduced shortly. These are moderate and limited bills. They are
narrowly targeted at some of the worst problems with OSHA enforcement.
They do not affect OSHA's ability to adopt standards. They do not
affect OSHA's inspection authority. They do not diminish the
obligations of any employer or diminish workplace safety. They do not
take away any power that Congress in 1970 intended that OSHA have. Yet,
they will make important improvements in the OSH Act. They will restore
balance to OSHA's enforcement of the act, and give small businesses a
fair chance to plead their case. They will enhance public respect for
the fairness of OSHA enforcement, which is essential if the act is to
be effective.
A PATHOLOGY IN THE ENFORCEMENT OF THE OCCUPATIONAL SAFETY AND HEALTH
ACT
Mr. Chairman, there is a pathology in the enforcement of the OSH
Act. It causes courts to issue wrong decisions. It undermines the
rulemaking process. It lets OSHA's prosecutorial zeal go unchecked. It
encourages arrogance in OSHA's attitude toward employers. It
effectively strips from many employers a fair opportunity to assert
their rights. And it betrays a promise made to the United States Senate
in 1970, when the OSH Act was passed.
That pathology is the emasculation of the agency that Congress
established to be a check on OSHA's excesses--the Occupational Safety
and Health Review Commission.
That emasculation occurred in Martin v. OSHRC (CF&I Steel Corp.),
499 U.S. 144 (1991), where the Supreme Court held that an OSHA
interpretation of an ambiguous regulation must be upheld if the
interpretation is merely ``reasonable''--even if the court believes
that the interpretation is wrong. The decision awards OSHA a home run
even if the Review Commission and a court think that OSHA has hit only
a foul ball. Some courts have even extended that decision to require
deference to OSHA even when OSHA interprets the OSH Act, as opposed to
OSHA's own standards. As I shall show later, this course of decisions
is contrary to known congressional intent and to a pledge made directly
to the United States Senate.
I can hardly exaggerate the adverse effects of this decision on the
fairness of enforcement under the OSH Act.
As I have said, the decision emasculates the Review Commission as a
check on OSHA. Now, OSHA is supposed to enforce the law with zeal. But
zeal comes with a price--it can cause enforcement officials to get
carried away. It can cause OSHA enforcement officials to resort to
wrong legal interpretations merely because their lawyers can make them
sound reasonable. Zeal needs to be held in check and overseen by
persons chosen for their impartiality. That is why the commission was
created--to serve as an impartial check on prosecutorial over-
zealousness. But the Review Commission can no longer do that.
Chief Justice John Marshall once said that the duty of the courts
is ``to say what the law is.'' The Review Commission may no longer say
what the law is. It may say only whether OSHA's lawyers are
reasonable--not right--when they say what the law is. This disability
prevents the Review Commission--the body that Congress established to
act as a check on OSHA--from doing its job. The Commission cannot
restrain over-zealous enforcement officials if it must follow legal
interpretations because they are merely defensible, and ignore whether
they are wrong. That is the nub of the issue.
SOME EXAMPLES
The following are just a few examples of the unfortunate
consequences of judicial deference to OSHA:
Depriving small employers of their day in court. A clear
example of the destructiveness of deference to OSHA is the Second
Circuit's decision in Chao v. Russell P. Le Frois Builder, Inc., 291
F.3d 219 (2d Cir. 2002). There, OSHA's lawyers had devised an absurdly
hyper-technical argument that the Review Commission could not relieve
even deserving employers from merely procedural defaults. The court
held that it was required by CF&I Steel to follow that interpretation.
(See the fuller description of the case below.)
Telling the public to ignore the commission. In 1995, OSHA
issued an interpretation letter (Letter to L. Kreh from R. Whitmore
(April 4, 1995) \1\) that told an employer to ignore a Review
Commission decision. OSHA did not appeal the decision. Instead, it just
ignored it and, worse, told the public to ignore it too. This is the
kind of the arrogance that the CF&I Steel decision breeds.
---------------------------------------------------------------------------
\1\ The letter can be found at http://www.google.com
---------------------------------------------------------------------------
Imposing target organ labeling without rulemaking. In
Martin v. American Cyanamid Co., 5 F.3d 140, 16 BNA OSHC 1369 (6th Cir.
1993), rev'g 15 BNA OSHC 1497 (Rev. Comm'n 1992), the issue was whether
millions of product labels had to be re-written. OSHA decided--after
the rulemaking was over and after internal disagreement--that labels on
chemical containers must state the bodily organs they affect. So, ``Do
Not Inhale'' was no longer good enough; only ``Causes Lung Damage''
would do. Neither the standard nor its legislative history said that
OSHA was right, and OSHA could point to only an ambiguous statement in
an appendix to the standard. The Review Commission held that OSHA's
interpretation was wrong. A court of appeals upheld OSHA's
interpretation, however, not because it was right, but because it was
merely ``reasonable.'' OSHA thus used deference to avoid rulemaking
requirements, to evade scrutiny by the Office of Management and Budget
under the Paperwork Reduction Act, and to force millions of perfectly
sensible product labels to be re-written.
Machine-specific lockout training. OSHA has interpreted
its lockout standard (29 C.F.R. 1910.147) to require that maintenance
employees be trained on how to lock out every machine they service. Do
the words of the standard clearly require such machine-specific
training? No. Did OSHA decide in rulemaking that it should be required?
No. Would such a requirement be massively expensive? Yes. Would
employees remember such training? No. Is such a requirement
unreasonable? Yes, but it is very expensive to prove it. We were
counsel to a large industrial corporation that received a citation
requiring machine-specific training. To our client, the expense of
litigating the issue would have been too high and, given CF&I Steel,
the probability of success too uncertain, to justify litigation. This
employer was thus forced to admit violations it did not commit.
Chemical-specific hazard training. OSHA has taken the
position that when employees are given chemical safety training, the
employees must be told the name of every plant chemical and the hazard
it presents. This is an absurd interpretation. For example, if you run
a gasoline refinery, which has literally thousands of different
flammable liquids, you must have a trainer uselessly recite to
employees a mind-numbing list of the name of each flammable liquid. To
challenge this view, a coalition of seven major trade associations had
to finance and file an amicus curiae brief documenting in detail the
error in that interpretation. That substantial effort was driven by the
effect of the CF&I Steel decision. Ordinary employers--even large
employers--simply cannot afford to mount such an effort. And so they
forgo their rights.
These are just a few examples of the destructiveness of judicial
deference to OSHA. What cannot be cited to the Senate are the thousands
of cases that are never brought because this destructive doctrine makes
it too expensive and, frankly, fruitless for employers to seek justice
in the first place.
EFFECTS ON RULEMAKING
The CF&I Steel decision has also had the perverse effect of
rewarding OSHA for writing ambiguities into its standards. The reason
for this is that, under CF&I Steel, ambiguity enhances OSHA's
litigating position. If a standard is ambiguous, OSHA need only put
forth a ``reasonable'' interpretation and it will win. This permits
OSHA to resolve major policy issues through ``interpretation'' and
without rulemaking. That is why key provisions of the ill-fated
ergonomics standard, for example, repeatedly used the ambiguous words
``reasonable'' or ``reasonably'' to describe the employer's duty.\2\
---------------------------------------------------------------------------
\2\ See 29 C.F.R. 1910.900(j)(iv), (s)(2), and (z), published in
65 Fed. Reg. 68261 (2000).
---------------------------------------------------------------------------
The decision also encourages OSHA to evade congressionally imposed
requirements for OSHA standards, such as proving ``feasibility'' and
``significant risk.'' It encourages OSHA to evade congressional
oversight, to evade oversight by the Office of Management and Budget
under the Paperwork Reduction Act, and to evade the requirements of the
Small Business Regulatory Enforcement Fairness Act. This is precisely
what happened in American Cyanamid, for example. There, OSHA was able
to impose a major policy decision without rulemaking and without
scrutiny by the Office of Management and Budget under the Paperwork
Reduction Act.
The CF&I Steel decision has also caused OSHA to develop at least
two non-rulemaking avenues for making new rules--interpretation letters
and compliance directives. Especially since the CF&I Steel decision,
the interpretation letter culture has flourished in the OSHA field. The
issuance of such letters is often featured in occupational safety and
health journals \3\ and newletters.\4\ OSHA's abortive ``home office''
policy was announced in an interpretation letter.\5\ OSHA's lawyers
cite such letters against employers when they favor their litigating
position.\6\ Similarly, OSHA has taken to announcing major policies in
compliance directives, such as its policy on multi-employer
worksites.\7\ As the home-office debacle shows, this secret law-making
process encourages loose thinking and irresponsible decisions. Instead
of OSHA regulating through rulemaking, where public comment must be
considered and other protections (such as those in the Regulatory
Flexibility Act) must be provided, OSHA issues interpretations based
merely on internal discussions. The result is rules made without
rulemaking.
---------------------------------------------------------------------------
\3\ E.g., Bureau of National Affairs, Occupational Safety and
Health Reporter: Currents Reports, Index to Vol. 33, Nos. 1-38 (Jan.
2--Sept. 25, 2003) (listing 15 stories in 9 months).
\4\ E.g., AcuTech, Acusafe News ``Insider: Update to OSHA Changes
on PSM Interpretation'' (January 2000) (Attachment T).
\5\ See ``OSHA's Policy Concerning Employees Working At Home,''
Hearings before the Committee On Education and the Workforce,
Subcommittee on Oversight and Investigations, United States House Of
Representatives (Jan. 28, 2000). News reports about the controversy
were broadcast on, for example, CNN Headline News on January 5, 2000.
The letter was withdrawn. See Letter from Richard E. Fairfax to T.
Trahan (November 15, 1999).
\6\ E.g., Beaver Plant Operations, Inc., 18 BNA OSHC 1972, 1974 n.6
(No.97-152, 1999).
\7\ OSHA Directive CPL 2-0.124, Multi-Employer Citation Policy
(December 10, 1999) .
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EFFECTS ON ENFORCEMENT AND SMALL EMPLOYERS
But worst of all is the disrespect that these decisions breed for
the commission and even the courts. I will give you an example of how
this attitude deprives employers of their legal rights. For over a
quarter century, the commission has held that a violation cannot be
found unless OSHA shows that the employer knew or should have known of
the violative condition.\8\ The courts have accepted this holding.\9\
One would think that OSHA would, therefore, educate its employees and
compliance officials on this principle and that it would be reflected
in OSHA's Field Information Reference Manual but neither is the case.
---------------------------------------------------------------------------
\8\ E.g., Pride Oil Well Service, 15 OSHC 1809, 1814 (OSHRC 1992);
Southwestern Acoustics & Specialty, Inc., 5 OSHC 1091 (OSHRC 1977).
\9\ N.Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 105
(2d Cir. 1996); Carlisle Equip. Co. v. Sec'y of Labor, 24 F.3d 790 (6th
Cir. 1994); Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350 (3d
Cir. 1984); Capital Elec. Line Builders v. Marshall, 678 F.2d 128 (10th
Cir. 1982); Ocean Elec. Corp. v. Sec'y of Labor, 594 F.2d 396 (4th Cir.
1979); Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1289-92 (6th Cir.
1976); Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir.
1976); Brennan v. OSHRC (Alsea Lumber), 511 F.2d 1139 (9th Cir. 1975).
---------------------------------------------------------------------------
I have had settlement conferences with both long time and new area
directors who give me blank stares when I mention the knowledge
principle. Their unawareness means that the company will have to
contest the citation and then spend time and money fighting charges
that should never have been made. Small and medium size employers can't
afford to do that, and even large employers often find the prospect too
expensive, and so they must accept unjustified citations. The result is
occasional justice for large employers and no justice for small ones. I
have had to tell small employers and medium-size employers who were
innocent of any violation, ``Yes, you are right, OSHA is wrong, but you
can't afford to prove it.''
The decision also encourages in OSHA a palpable arrogance. A safety
expert I once knew complained to me shortly after the CF&I Steel
decision came out that OSHA had suddenly become arrogant in its
behavior. As a great legal scholar once said, ``There is nothing so
calculated to make officials and other men disdainful of the rights of
their fellow men, as the absence of accountability.'' \10\
---------------------------------------------------------------------------
\10\ Leon Green, Public Destruction of Private Reputation--A
Remedy?, 38 Minn. L. Rev. 567, 572-73 (1954), quoted in David W.
Robertson, The Legal Philosophy of Leon Green, 56 Tex. L. Rev. 393, 436
(1978).
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it wasn't supposed to be this way: the promise made to the senate
The great irony is that it was not supposed to be this way. This we
know for certain. The legislative history of the compromise that
permitted the passage of the OSH Act indisputably proves this.
In 1970, the act almost did not pass. Many feared that, if all
functions under the Act were placed in the U.S. Labor Department, that
Agency would become too powerful and the confidence of employers in the
fairness of the act would be shattered.\11\ Proponents of giving all
powers to the Labor Department argued that a departmental appeals board
(i.e., a board established by Cabinet agencies to adjudicate cases
brought by an enforcement bureau) would afford sufficient oversight and
independence.\12\ Such boards decided cases de novo and their views
were given deference by the courts.\13\ But distrust of internal
appeals boards was widespread, and a veto was threatened by the
President.\14\ To permit the passage of the act, a compromise was
agreed upon: An independent Review Commission would be established as a
check on prosecutorial excess. \15\
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\11\ S. Rep. No. 1282, 91st Cong., 2d Sess. 55 (1970), reprinted in
Senate Subcommittee on Labor, Legislative History of The Occupational
Safety and Health Act of 1970, 92d Cong., 1st Sess. at 141, 194 (Comm.
Print. 1971) (debate ``so bitter as to jeopardize seriously the
prospects for enactment . . . ). See also the pointed remarks by
Senators Dominick and Smith appended to the Senate Report at 61-64,
Leg. Hist. at 200-03.
\12\ S. Rep. at 15, Leg. Hist. at 155.
\13\ For example, the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. 801 et seq. (1976), gave all administrative functions
to the Department of the Interior. That department established an
enforcement arm, the Mining Enforcement Safety Administration (MESA),
and an adjudication arm, the Interior Board of Mine Operation Appeals
(IBMA). The IBMA reviewed questions of law de novo, without deference
to MESA (see, e.g., Eastern Associated Coal Corp., 7 IBMA 133, 1976-77
CCH OSHD 21,373 (1976) (en banc); 1 Coal Law & Regulation,
1.04[9][b][iii], p.1-49 (T. Biddle ed. 1990) (``Of course, the Board
could independently decide questions of law.'')), and its views were
given deference by courts. Zeigler Coal Co. v. Kleppe, 536 F.2d 398,
409 (D.C. Cir. 1976) (IBMA's view ``must be given some significant
weight''). (MESA was later transferred to the Labor Department and
became MSHA after the Federal Mine Safety and Health Act of 1977 was
passed; the IBMA's functions were transferred to the newly-created
Federal Mine Safety and Health Review Commission.)
\14\ American Bar Association, Occupational Safety and Health Law
32-33 (2d ed. 2002).
\15\ Id.; Judson MacLaury, The Job Safety Law of 1970: Its Passage
Was Perilous, Monthly Lab. Rev. 22-23 (March 1981).
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The legislative history directly addresses whether the Review
Commission would defer to OSHA. The author of the compromise, Senator
Jacob Javits, whom even the Labor Department's own historian has stated
``played a major role in the passage of the act,'' \16\ specifically
assured the Senate that the commission would decide cases ``without
regard to'' OSHA. He stated that adjudication would be conducted by
``an autonomous, independent commission which, without regard to the
Secretary, can find for or against him on the basis of individual
complaints.'' \17\ On the strength of that assurance, Senator Holland
immediately declared his support, stating that ``that kind of
independent enforcement is required.'' \18\ On the heels of that
remark, the Senate passed the OSH Act. These remarks appear to be the
only legislative history that directly addresses the deference issue.
They indisputably show that the U.S. Senate and the Congress intended
that the commission not defer to OSHA.
---------------------------------------------------------------------------
\16\ Judson MacLaury, ``The Occupational Safety and Health
Administration: A History of its First 13, 1971-1984,'' available at
http://www.dol.gov/asp/programs/history/mono-
osha13introtoc.htm#jud,esp. Chapter 1, ``George Guenther
Administration, 1971-1973: A Closely Watched Start-Up'' (http://
www.dol.gov/asp/programs/history/osha13guenther.htm) (Javits ``a New
York Republican who had played a major role in the passage of the
Act'').
\17\ Leg. Hist. at 463 (remarks of Senator Javits).
\18\ Id. at 463; see also id. at 193-94, 200-03, 380-94, 479.
---------------------------------------------------------------------------
Deference to OSHA is, of course, contrary to congressional intent,
for the commission cannot both decide cases ``without regard to'' OSHA
and also defer to its views. Moreover, deference makes the commission
even more subservient than the department appeals boards that Congress
in 1970 specifically rejected as insufficiently independent.
So why did the CF&I Steel decision come out the other way?
Unfortunately, the employer's brief in that case did not bring Senator
Javits's floor statement to the Supreme Court's attention. The
employer's brief did not quote or cite the remark and, apparently as a
result, the Court did not discuss it. The employer, CF&I Steel, was
then in bankruptcy, used a sole practitioner with almost no OSHA
experience, and apparently could not afford the cost of thorough legal
research.\19\ The remark was briefly mentioned in only an amicus curiae
brief and apparently overlooked. Thus, one cannot blame the Supreme
Court for this misstep. The Senate should, however, cure it.
---------------------------------------------------------------------------
\19\ That CF&I Steel was then in bankruptcy is shown by United
States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213
(1996). That it was represented by a small practitioner is shown by the
legal directory at http://pview.findlaw.com/view/2222453 1?noconfirm=0.
That this small practitioner had not previously litigated OSHA cases
can be shown by a Westlaw or Lexis search of the commission's cases.
---------------------------------------------------------------------------
We urge the Senate to redeem the promise made to its members by
Senator Javits by restoring the Review Commission's proper place under
the OSH Act.
THE VACANCY PROBLEM
Another bill before the committee would expand the Review
Commission from three to five members. This is a much-needed reform,
and we most respectfully urge that it be passed.
For over two thirds of its existence, the commission has been so
paralyzed by frequent vacancies that it has been unable to do its job.
At the moment, the commission has only two members, which nearly always
results in paralysis. Unfortunately, that is common. For about half its
existence, the commission has had two or fewer members and, for over a
third of that time, it has had only two members. For 20 percent of that
time, it lacked even a quorum of two. Between 1996 and 1999, it had a
full complement for only a third of the time. So cases sit, often for
many years, and the backlog mounts as new cases come in. One large and
important case has been pending before the Commissioners for 11 years.
This endemic problem has greatly damaged public respect for the
commission and prevented it from doing what Congress expected--decide
cases expeditiously and keep a watch on OSHA's excesses. This would be
far less likely to happen if the OSHRC had five members. As I mentioned
above, I have served at both the OSHRC and its counterpart under the
Mine Safety Act, the Federal Mine Safety and Health Review Commission
(FMSHRC), which has five members. The difference between the two
agencies is like night and day. A major reason for this is that the
FMSHRC has five members while the OSHRC has only three. Because it has
five members, the FMSHRC has enjoyed a much more stable membership than
the OSHRC. The FMSHRC can usually be assured of having at least a
quorum of three to decide cases. The OSHRC cannot.
We respectfully urge the Congress to expand the commission to five
members.
ATTORNEYS' FEES--LEVELING THE PLAYING FIELD JUST A BIT
The bill on attorneys' fees is a modest step in the right
direction. It would award attorneys' fees and expenses to the very
smallest employers if they win. It applies to employers with not more
than 100 employees and a net worth of not more than $7 million and
applies only to OSHA.
The Equal Access to Justice Act (EAJA) has not succeeded in
protecting small employers from erroneous OSHA prosecutions. The
principle reason is that, under the EAJA, even if an employer wins,
OSHA does not have to pay the employer's attorneys' fees unless OSHA's
position was not ``substantially justified.'' That is far too easy a
target for OSHA to hit. OSHA's specialized lawyers can almost always
come up with a plausible justification for the prosecution, and that is
in practice all that they need to show. And it is difficult and
expensive to prove that OSHA's position was not ``substantially
justified'' even if it was. Even if a small employer proves that he or
she is innocent and OSHA should not have brought the case, that
employer must still start another proceeding, incurring even more
expenses, to prove that OSHA's position was not ``substantially
justified.'' This is a formidable deterrent to seeking fees,
particularly since OSHA can meet this test relatively easily.
The bill will help solve this problem, and somewhat re-open the
door to the courthouse for small employers. To be sure, the bill's
effect will be modest, as it covers only the smallest of the small
employers covered under the EAJA, which applies to employers of 500
employees and not more than $7 million. Few small employers will want
to gamble on winning in court. Few will beat OSHA's specialized
attorneys. Nearly all will continue to settle at the informal
conference stage, to which this provision does not apply. Nevertheless,
the prospect of having to pay attorneys' fees and expenses should
encourage OSHA and its lawyers to be sure of their legal ground before
prosecuting a small employer. It will force them to focus on employers
that truly deserve their attention. That will assuredly be a good
thing.
Now some will argue that this provision will ``chill'' legitimate
enforcement by OSHA, because the expenses will be paid from OSHA's
budget. However, the Congressional Budget Office estimated the cost of
a previous version of this legislation to OSHA at about only 3 million
dollars per year. This seems to be a small price to pay to make OSHA
think twice about the strength of its case before going after the small
employer and to inject a little justice into a system that grinds up
small employers in litigation costs and effectively denies them the
opportunity to vindicate themselves.
GIVING SMALL EMPLOYERS A NEEDED BREAK FROM DEFAULT JUDGMENTS
Right now, the case law under the OSH Act deprives employers--and
especially small employers--of the same right to seek relief from a
default judgment possessed by nearly every other litigant in the
Nation. If a small employer fails to file an answer to a complaint on
time in almost any other court, that court has the power to relieve the
small employer of the default, and give him a day in court. But that is
not true under the OSH Act. According to a recent decision by the U.S.
Court of Appeals for the Second Circuit, which I will soon describe, an
employer flatly loses its opportunity to defend itself before the
Occupational Safety and Health Review Commission, and will be deemed
guilty, if it misses a rigid 15 working day deadline to file a notice
contesting an OSHA citation, even if the employer had a good excuse for
missing that deadline. The employer is out of luck and the Government
wins without even proving its case.
Although OSHA recently announced that it would no longer urge this
interpretation, administrations change and there is no guarantee that a
future OSHA will adhere to this course. Accordingly, a bill to cure
this problem permanently is needed.
the facts of the le frois case--an undisputed case of excusable neglect
Take the case of Russell P. Le Frois Builder, Inc. OSHA issued
citations and $11,265 in proposed penalties to that company by
certified mail. A secretary for the company got the envelope from the
post office, and put it with the day's other mail on the front seat of
her car. The envelope with the OSHA citation apparently slipped behind
the seat, where it was found after the 15 working day contest deadline
expired. The company had used the same mail pickup system for 18 years
and had not previously had a problem with it. Le Frois promptly filed a
notice of contest, and asked the independent Occupational Safety and
Health Review Commission for ``a chance to tell our side and to defend
ourselves.'' The commission excused the lateness of the notice of
contest, finding this to be a case of excusable neglect.
OSHA agreed that the Le Frois case involved excusable neglect. But
OSHA appealed anyway to the U.S. Court of Appeals for the Second
Circuit--and won, with one judge dissenting. Chao v. Russell P. Le
Frois Builder, Inc., 291F.3d 219 (2d Cir. 2002). OSHA convinced the
court that the Review Commission lacked the power to relieve an
employer from a default on the ground of excusable neglect.
THE UPSHOT--EXCUSABLE NEGLECT IS IRRELEVANT
The Review Commission thus stands nearly alone among the courts of
the Nation in lacking the power to relieve an employer of a procedural
default caused by neglect that is excusable. If this result makes no
sense, that is because sense has nothing to do with it. OSHA's
litigation position and the decision of the Second Circuit turn instead
on a hyper-technical reading of the OSH Act and judicial deference to
OSHA. The decision holds that Section 12(g) in which Congress ordered
the commission to apply court rules, including a rule permitting relief
from default judgments--was overridden by Section 10(c) of the OSH Act,
which makes uncontested citations final and not subject to review.
I will spare the subcommittee my technical analysis of the matter.
Suffice it to say that the bill would do away with this unequal result
and put employers on the same footing as nearly every other litigant in
the Nation: They will have the right to ask for relief from a default
judgment and, after explaining, have a reasonable opportunity to obtain
that relief. This bill would permit the commission to grant relief in
rather narrow circumstances--when the default is due to ``mistake,
inadvertence, surprise, or excusable neglect.'' That language is taken
directly from Federal Rule of Civil Procedure 60(b), which has long
been interpreted by the commission and the courts to permit relief if
there is a legitimate reason.
For that reason, the change brought about by this bill will be
modest. Under the bill, comparatively few employers will qualify for
relief from default. The effect on OSHA's enforcement program will be
small. But small employers will notice it. They will know that under
the OSH Act they can at least have a shot at justice. Why is a shot at
justice important? Because the consequences of being unable to appeal
an OSHA citation can be severe and far-reaching. They include:
Payment of proposed penalties. Penalties can range up to
$7000 for ``serious'' and non-serious violations, from $0 to $70,000
for each ``repeated'' violation, and $5000 to $70,000 for each
``willful'' violation.
Inclusion of the citation on the employer's ``history of
previous violations,'' which raises subsequent penalties, and which is
available to the public to see on the Web.
Exposure to subsequent ``repeated'' or ``willful''
violations, even if the subsequent violation occurred at a different
workplace or years later.\20\
---------------------------------------------------------------------------
\20\ See Potlatch Corp., 7 BNA OSHC 1061, 1064 (OSHRC 1979) (no
time or location limit on ``repeated'' violations).
---------------------------------------------------------------------------
Disqualification in some jurisdictions from bidding on
public construction contracts. E.g., Cal. Gov't Code
14661(d)(2)(B)(vi)(II).
Use of the citation against the employer in civil
litigation.\21\
---------------------------------------------------------------------------
\21\ E.g., Felden v. Ashland Chemical Co., 631 N.E.2d 689 (Ohio
App. 1993) (admitting OSHA citation); Industrial Tile v. Stewart, 388
So.2d 171 (Al. 1980) (same).
---------------------------------------------------------------------------
A requirement to abate the cited condition. This might
require that a factory be rebuilt or a construction method be
abandoned. It might require that a machine be modified to meet
specifications in an inapplicable standard. See, e.g., Losli, Inc., 1
BNA OSHC 1734 (OSHRC 1974), where a failure to contest a citation meant
that a metal shear had to be modified to meet inapplicable
specifications for power presses--a nonsensical result.
Moreover, there is more than one way that small employers can
innocently fail to timely contest a citation, aside from losing a mail
envelope. For example, a notice of contest sent to the wrong agency--to
the Review Commission rather than OSHA--is ineffective.\22\
---------------------------------------------------------------------------
\22\ See Fitchburg Foundry, 7 BNA OSHC 1516 (OSHRC 1979) ( 10(a)
requires notice of contest to be sent to ``the Secretary'').
---------------------------------------------------------------------------
Legislation to permanently fix this problem should be introduced.
Thank you for permitting me to participate in this afternoon's
panel. I look forward to answering any questions that you may have.
Senator Isakson. Thank you, Mr. Sapper. Ms. Rhinehart.
Ms. Rhinehart. Thank you, Mr. Chairman, Mr. Chairman and
Senator Murray.
I appreciate the opportunity to testify this afternoon on
measures to improve safety and health protections for America's
workers, and particularly workers at small businesses. Clearly,
a lot of work remains to be done.
I appreciate the opening comments of the Senators and the
panelists. I think it is clear that we all agree and support
job creation in America. We all want to see increased
employment and see our economy grow. We also all support
workplace safety to protect America's workers. The question is
how we get there.
The fact is that there is much work that still needs to be
done. We have serious safety and health problems in America's
workplaces.
Senator Murray recounted these statistics better than I can
and so I will be very brief in summarizing just a couple. Each
day 15 workers die on the job, over 5,500 a year. That is not
counting the tens of thousands of workers who die from
occupational diseases like cancer caused by asbestos, benzene
and other substances. There are more than 12,000 workers a day
who are injured on the job, more than 4 million workers each
year. That is the population of many small towns in America who
get injured on the job every day of every year in this country.
The cost of these injuries, according to data produced by
the Liberty Mutual Insurance Company, is more than $1 billion a
week. Not $1 billion a year, $1 billion a week. So it is an
extremely expensive cost to our Nation, to workers, to their
families. The fact is that prevention of these injuries and
illnesses is good for workers. It is good for families. And it
is good for the bottom line.
Now there are many well-meaning good employers out there
doing the right thing, trying to protect their workforce and
paying attention to job safety issues. But we would not have 4
million injuries in America today and 50,000 to 60,000 workers
being killed and dying from occupational disease in this
country if everybody was doing the right thing. So clearly,
there are problems that still need to be addressed.
One of the problems is that we have a job safety agency
that is chronically underfunded and has just an enormous job to
do with very limited resources. OSHA gets about $450 million a
year to protect the health and safety of more than 100 million
workers at more than 8 million worksites. Federal OSHA has less
than 1,000 inspectors. There are about 2,000 inspectors
nationwide, if you count Federal, OSHA and State plans. As
Senator Murray pointed out, this is enough inspectors to
inspect each workplace in America once every 108 years.
In some States, there are even fewer than average
inspectors. Like for example, Georgia only has 33 inspectors to
cover 220,000 businesses. And so inspectors there can only get
to workplaces once every 158 years. Other States like
Washington State are actually better than the average.
Washington State has 119 inspectors to cover about the same
number of workplaces as exist in Georgia. There, inspectors can
get to workplaces on average once every 33 years. Better, still
not great. It is clearly a very under-resourced Agency.
So given the fact that OSHA cannot get to workplaces all
that often, you would expect to find significant penalties when
they do get to the workplace and find that an employer has been
violating the job safety law. You would expect significant
penalties. But that is simply not the case. The average penalty
for violating the OSHA law is only $955. It is less, it is $872
on average, for series violations of the law which are
violations that pose a substantial risk of death or serious
injury to workers.
And criminal enforcement under the OSHA law, in comparison
to environmental laws for example, is virtually nonexistent.
And that is because the criminal provisions in the OSHA law are
such that an employer can only be prosecuted for a willful
violation of the law if a worker dies. If a worker is injured
or put at great risk, that is not enough. A worker actually has
to die. And in that instance, the penalty is a misdemeanor, 6
months in jail. You can go to jail for longer for harassing a
wild burro on Federal lands than you can for willfully killing
a worker in this country. And that is just not right.
So in our view, the law needs to be strengthened, not
weakened, and much more needs to be done to protect workers in
this country.
I would like to make a couple of points about safety and
health as it pertains to small business in particular. I think
we all would agree that small does not necessarily mean safe,
that there are serious hazards that exist in small businesses,
particularly in certain industries like, for example,
construction.
According to the Bureau of Labor Statistics, in the
construction sector firms with fewer than 20 employees are 38
percent of the workforce but have 55 percent of the fatalities.
There are other studies that have been done around the country.
For example, in Texas a study of Hispanic construction workers
showing the same sort of disproportionate fatality rate as
small construction employers.
There are a number of measures in place in law and by OSHA
to assist small employers in complying with the law. There is a
$53 million per year compliance assistance program that is
directly targeted to small employers. That is four times the
annual budget that OSHA has to set job safety standards. Four
times that budget goes to assist small employers in complying
with the law. Last year about 31,000 employers, all small
employers, received assistance through that program.
Small employers get up to 60 percent penalty reduction when
they are cited by OSHA. Very small employers, employers with
fewer than 10 employees, are exempt through an appropriations
rider from regular job safety inspections.
And there are other laws like SBREFA and the Regulatory
Flexibility Act and alphabet soup of regulatory oversight laws
that direct the Agency to pay particular attention to the
concerns of small business.
We agree that consultation and outreach to small business
is appropriate but we also think that we need strong
enforcement of the law as a deterrent to get employers to focus
on protecting the safety and health of their workers. It is not
one or the other. We really do need both.
I see I am running short on time but I would like to spend
just a minute talking for a few minutes about a small employer
by the name of Eric Ho.
Senator Isakson. 2 minutes, is that good?
Ms. Rhinehart. I can do that. I can do this in 2 minutes.
Thank you, Mr. Chairman.
Senator Isakson. Even two-and-a-half, you are so nice.
Ms. Rhinehart. I appreciate it, Mr. Chairman.
I would like to talk for a couple of minutes about Eric Ho,
a small employer, and how that sad story relates to the issues
that we are talking about today and the legislation introduced
in the House of Representatives.
Eric Ho is a small employer in Houston, Texas. He hired 11
undocumented workers from Mexico to do building renovation work
at a facility in Texas. They were scraping and removing
material that contained asbestos. As you know, asbestos causes
cancer, lung disease and a range of other disorders.
Eric Ho knew there was asbestos and he knew his workers
were being exposed. He provided them no training. He provided
them no respirators, none at all.
The city inspector of Houston inspected the workplace and
he saw dust and he saw that workers were not provided
respirators. That inspector issued a stop work order and told
Eric Ho to stop the job until he got a proper workforce and
inspector on site.
Eric Ho did not stop the job. Instead, he had the work done
at night, under cover of darkness. He locked the gates and had
workers work behind locked gates with no water, one portable
toilet, to get the job done. No respirators, no training or
other safety equipment.
OSHA inspected and cited Eric Ho for 11 willful violations
of its asbestos training standard and its asbestos respirator
standard. One violation per employee who was not provided a
respirator or training. Eric Ho admitted he did not provide the
respirators or training but he took his case to the
Occupational Safety and Health Review Commission which threw
out 10 out of the 11 citations, saying that OSHA only had
authority to cite him once for violating a training standard
and once for violating the respirator standard, even though 11
workers needed a respirator to protect them from the asbestos
and 11 workers needed training to be protected on the job.
Incidentally, Eric Ho was also criminally convicted for
violating the Clean Air Act and letting asbestos into the air
but he could not be prosecuted under the OSHA law because the
workers did not die, they were just put in harm's way. So he
was criminally convicted under the environmental laws but
succeeds before the Review Commission in getting 10 out of his
11 citations thrown out.
What does all that have to do with the price of milk and
what we are talking about here today? Two things. First, one of
the measures introduced in the House of Representatives, HR
742, would give employers like Eric Ho their attorney's fees.
Because he was able to get 10 out of 11 of those citations
thrown out at the Review Commission, he would have taxpayers
pay his attorney's fees for fighting his case. So that bill
would reward rogue employers like Eric Ho and give them their
attorneys' fees at the end of the day. We think that is just an
outrageous use of public funds and taxpayer funds, especially
when you are talking about an agency that does not have enough
money to the job as it is.
Second, the Eric Ho case relates very much to the deference
bill, the bill that Mr. Sapper was talking about, that would
shift the deference from the Secretary of Labor to the
Occupational Safety and Health Review Commission.
Why is that? Well, because the issue in the Ho case was
whether or not the respirator and training standards were
standards that imposed obligations to individual employees,
whether or not the standards meant that each employee got a
respirator or whether just employees as a whole got
respirators. The Secretary of Labor interpreted the rules to
say each employee, the rule means each employee gets a
respirator. The Review Commission engaged in exactly the kind
of second-guessing that the U.S. Supreme Court said it should
not and it said no, the rule only allows one citation and it
threw out all but one of those citations against Eric Ho.
HR 741, the bill in the House of Representatives, would
open the door to more decisions like Ho, by giving the Review
Commission the authority to make decisions like that. And to
give deference to decisions like that, we believe, places
deference and authority in the wrong place. The deference
should go to the policymaker, the rulemaker, not to the
adjudicator.
We think that the legislation moves things in the wrong
direction and we would prefer measures that would actually
strengthen the job safety law, not divert resources away from
OSHA and the important work it needs to do.
Thank you, Mr. Chairman, and thank you for the additional
couple of minutes.
[The prepared statement of Ms. Rhinehart follows:]
Prepared Statement of Lynn Rhinehart
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to testify today about the need to improve safety and
health protections for the millions of workers employed by small
businesses. My testimony will address several legislative proposals
(H.R. 739, 740, 741, and 742) that have been advanced and promoted on
grounds that they will assist small businesses in their efforts to
comply with the requirements of the Occupational Safety and Health Act.
This testimony is submitted on behalf of the 13 million working men and
women represented by the 57 national and international unions that
comprise the AFL-CIO.
The Occupational Safety and Health Act (OSH Act), as written and as
administered by the Occupational Safety and Health Administration
(OSHA), already includes numerous measures to assist small businesses
in complying with the law. In our view, the pending legislative
proposals are either unnecessary or counterproductive. The bills will
drain resources away from an agency that is chronically underfunded and
struggling to fulfill its statutory mandate. And the bills will do
nothing to address the serious job safety hazards faced by American
workers.
Two weeks ago, on Workers Memorial Day (April 28), the AFL-CIO
released a report, entitled, ``Death on the Job: The Toll of Neglect,''
that details the astounding number of deaths and injuries occurring in
workplaces across the United States, and the numerous shortcomings in
our Nation's efforts to deal with this serious problem. Each year,
millions of workers are injured or made ill by job hazards. According
to the Bureau of Labor Statistics, each day, 15 workers die on the job.
The number would be far higher if deaths from occupational diseases
such as cancer and black lung disease were included.
At its current budget levels, OSHA's enforcement reach is severely
limited. There are at most 2,138 Federal and State OSHA inspectors
responsible for enforcing the law at approximately 8 million
workplaces. In fiscal year 2004, 861 Federal OSHA inspectors conducted
39,246 inspections, and the inspectors in State OSHA agencies conducted
58,675 inspections. At its current staffing and inspection levels, it
would take OSHA 108 years to inspect each jobsite in America just once.
The penalties assessed by OSHA for violations of the law are
exceedingly modest. In fiscal year 2004, OSHA assessed a total of $82.6
million in penalties against employers for 86,475 violations of the
law, for an average penalty of just $955. The average penalty for a
serious violation of the Occupational Safety and Health Act--defined as
a hazard posing a ``substantial probability that death or serious
physical harm could result,'' 29 U.S.C. 666(k)--is just $872.
Serious safety and health hazards exist at workplaces across the
United States, in businesses large and small. Just because a business
is small does not mean it is safer. To the contrary, small firms,
particularly in high hazard industries like construction, are very
dangerous.
The Bureau of Labor Statistics' fatality data--which, unlike injury
data, is based upon a government census, and not employer self-
reports--shows that in high risk industries such as construction, small
firms account for a disproportionately high percentage of fatal
injuries. For example, according to BLS, firms with fewer than 20
employees employed 38.2 percent of the construction workforce, but
accounted for 55.5 percent of all construction fatalities. (BLS, 2002
Census of Fatal Occupational Injuries).
Similarly, a study of Hispanic construction workers in Texas found
that 40 percent of fatalities among these workers occurred in
establishments of less than 10 employees. (Fabrega and Starkey, Fatal
Occupational Injuries among Hispanic Construction Workers of Texas,
1997 to 1999, Human and Ecological Risk Assessment, 2001; 7:1869-1883).
And a study of fatalities among teenage construction workers found a
similar result. Sixty three percent of the teenage construction
fatalities investigated by OSHA from 1984-1998 occurred at firms with
fewer than 11 employees. (Suruda et al., Fatal Injuries to Teenage
Construction Workers in the U.S., American Journal of Industrial
Medicine, 2003, 44:510-514).
Clearly, small businesses have their share of workplace hazards,
particularly in high risk industries. Workers employed at these firms
need the full protection of the job safety law.
It is important to point out that OSHA, and the OSH Act, already
include special provisions designed to assist small employers and
provide them special relief in enforcement proceedings. First, for more
than 25 years, through a rider in the annual OSHA appropriations bill,
employers with 10 or fewer employees in ``safer'' industries have been
exempt from OSHA general schedule inspections. This exemption covers
the majority of small businesses in this country. These firms are only
subject to inspections in the event of a fatality or complaint from
employees alleging serious hazards.
Second, the OSH Act itself directs that the size of the employer
must be taken into account in setting penalties, along with the
seriousness of the violation, the employer's compliance history, and
the employer's good faith. 29 U.S.C. 666(j). OSHA has established
specific enforcement policies taking these statutory mandates into
account. Under OSHA's policy, the smallest employers--those with 25 or
fewer employees--are entitled to an automatic 60 percent reduction in
the amount of the assessed penalty. The percentage reduction decreases
as the size of the employer increases. (Field Inspection Reference
Manual, Ch. IV.C.2.c.) Penalties may be further reduced in any post-
citation settlement, and they also may be reduced by the Occupational
Safety and Health Review Commission (OSHRC), which considers the size
of the employer when establishing a final penalty amount.
Third, for decades OSHA has had a small business compliance
assistance program. This program, administered through grants to the
States, is currently funded at more than $53 million in the fiscal year
2005 budget--more than 10 percent of OSHA's entire budget. This is
nearly four times more than the agency spends developing workplace
safety standards. According to OSHA, in fiscal year 2004, there were
31,334 consultation assistance visits conducted under this program, all
of which, pursuant to OSHA's policies, were conducted at business
establishments with fewer than 250 employees.
The AFL-CIO believes that these measures appropriately address the
particular issues and needs of small employers, and they should be
continued. We do not support the additional measures contained in H.R.
739, 740, 741, and 742. It is important to point out that only one of
these bills--H.R. 742--specifically applies only to employers with less
than 100 employees. The other bills apply to all employers covered by
the OSH Act. These bills would chill enforcement of the law and divert
much-needed resources from enforcement and standard-setting, at a time
when the injury, fatality, and enforcement statistics all show that
more, not less, enforcement of the job safety law is needed to protect
American workers.
Our views on each of the bills are set forth below.
H.R. 742, The Occupational Safety and Health Small Employer Access to
Justice Act
H.R. 742 would require taxpayers to pay the attorneys' fees and
legal costs for ``small'' employers (defined as employers with 100 or
fewer employees and up to $7 million net worth) who prevail in any
administrative or judicial proceeding brought by OSHA or any challenge
to an OSHA standard, regardless of whether OSHA's action was
substantially justified. This bill would drain resources away from OSHA
and further weaken OSHA enforcement at a time when it needs to be
strengthened, not curtailed.
Under the age-old American Rule, each party to litigation pays its
own expenses. This is true not only in private litigation but also in
cases in which the Government acts as public prosecutor to enforce
consumer protection laws, environmental laws, safety and health laws,
and labor laws.
The Equal Access to Justice Act (EAJA) provides a limited exception
to the American Rule. Under EAJA, organizations with no more than 500
employees and a net worth of no more than $7 million, can recover their
fees and costs if they prevail in administrative or judicial
proceedings against the Federal Government, but only if they meet two
conditions. First, an award is proper under EAJA only if the agency's
position was not substantially justified. Second, an award can only be
made if there are no special circumstances that would make the award
unjust. 5 U.S.C. 504.
H.R. 742 would create a special exception from the American Rule,
and from EAJA, for legal proceedings under the OSH Act. Employers that
prevailed in administrative or judicial proceedings under the OSH Act
would be entitled to fees and costs from OSHA without having to show
that the Government's position lacked substantial justification and
that there are no special circumstances that would make an award
unjust.
There is no credible reason for carving out this exception either
to the American Rule or to EAJA. By subjecting OSHA to the payment of
attorneys' fees and costs every time the agency loses a case to an
employer falling within the bill's definition, the bill would seriously
weaken OSHA's effectiveness.
When Congress enacted EAJA, it considered and rejected automatic
awards to prevailing parties precisely because such an ``approach did
not account for the reasonable and legitimate exercise of government
functions and, therefore, might have a chilling effect on proper
government enforcement efforts.'' GAO, ``Equal Access to Justice Act:
Its Use in Selected Agencies,'' Jan. 14, 1998, at 9. Instead, Congress
crafted EAJA's limited exceptions ``to insure that the Government is
not deterred from advancing in good faith the novel but credible
extensions and interpretations of the law that often underlie vigorous
enforcement efforts.'' H.R. Rep. No. 1418, 96th Cong., 2d Sess. at 11.
H.R. 742's reach is broad. Notwithstanding the label ``small
employer'' in the title, the bill would apply to all employers with not
more than 100 employees and a net worth of not more than $7 million.
Data from the Census Bureau show that establishments with fewer than
100 employees make up 98 percent of all private sector establishments.
(U.S. Census Bureau, Statistics about Business Size, 2001). Excluding
businesses with no employees (i.e., self-employed individuals),
establishments with fewer than 100 employees still comprise 86 percent
of all private sector business establishments. Id. These firms employ
fully 36 percent of all employees, or nearly 41 million workers. Id.
In contrast, Congress traditionally defines ``small business'' for
the purpose of establishing coverage under a range of other employment-
related laws by imposing a far smaller ceiling on the size of the
workforce. The Age Discrimination in Employment Act, for example,
applies to employers who have 20 or more employees. 29 U.S.C. 630(b).
Title VII of the Civil Rights Act, 42 U.S.C. 2000e(b), covers
employers with 15 or more employees. But the vast majority of private
sector establishments would fall within the employee threshold for
coverage established by H.R. 742.
H.R. 742 would provide a monetary incentive for more employers to
challenge OSHA citations, to spare no expense, and to drag out
litigation of the case, because at the end of the day they could
recover their attorneys' fees and costs if they prevailed.
The bill would allow even the worst employers--ones with repeated
and egregious violations--to recover fees if they prevailed on a
particular violation. Take for example Eric Ho, who was cited for 11
willful violations of OSHA's respirator and training standards after he
exposed his immigrant workforce to asbestos by requiring them to
perform building renovation work behind locked gates at night without
any respirators or training. Eric Ho was criminally convicted of
violating the Clean Air Act. But he succeeded in persuading the
Occupational Safety and Health Commission to throw out 10 of the 11
willful OSHA violations, on grounds that OSHA was not allowed to cite
Ho for each employee exposed to asbestos hazards, but could only issue
one citation. Secretary of Labor v. Ho, Nos. 98-1645 & 98-1646 (OSHRC,
Sept. 29, 2003). H.R. 742 would require taxpayers to pay the attorneys
fees and costs of rogue employers like Eric Ho.
EAJA currently provides for fee awards if the Government's position
is not ``substantially justified.'' EAJA thus penalizes--and deters--
the filing of insubstantial complaints. No rational public policy would
be furthered by discouraging OSHA from issuing citations that are
substantially justified but as to which the government ultimately is
unable to carry its burden of proof. Rather, the inevitable result of
such a rule, which would penalize the government every time it loses,
would be to chill the issuance of meritorious citations in close cases
on behalf of employees exposed to unsafe working conditions.
It is important to point out that H.R. 742 is not limited to
enforcement proceedings initiated by OSHA. By its terms, H.R. 742
applies to any administrative or judicial proceeding, meaning that
qualifying employers could recover their attorneys' fees and costs for
successfully challenging an OSHA standard or regulation in court. While
OSHA has been quite successful in defending its rules and standards,
this provision will create a huge financial incentive for businesses to
fight OSHA's rules even more routinely and aggressively, given the
possibility of recovering their attorneys' fees and costs at the end.
As a result, OSHA will be even more reluctant to issue much-needed
workplace safety rules to protect workers.
H.R. 742 will drain resources away from an agency that has
perpetually struggled to do its job with the limited resources
available to it. As estimated by the Congressional Budget Office, this
bill would cost $7 million in fiscal year 2005 and $44 million total
for fiscal year 2005-2009, which must come out of OSHA's budget. This
would require Congress to appropriate additional money to OSHA's budget
to cover the cost of the bill or to cut OSHA's enforcement budget or
reduce compliance assistance to small business. Passage of this bill
would further reduce the resources available for implementing and
enforcing the OSH Act, to the detriment of working men and women who
depend on OSHA to protect their safety and health on the job.
H.R. 741, The Occupational Safety and Health Independent Review of OSHA
Citations Act
H.R. 741 is a misdirected piece of legislation that would undermine
the Secretary of Labor's authority to interpret and enforce the job
safety law. The bill flies in the face of Supreme Court precedent and
longstanding administrative law principles. The bill should be
rejected.
H.R. 741 would overturn the Supreme Court's unanimous decision in
Martin v. Occupational Safety and Health Review Commission, 499 U.S.
144 (1991). Martin v OSHRC dealt with the question of which agency's
interpretation of an OSHA rule should be given deference--the Secretary
of Labor's, or OSHRC's. After reviewing the language, structure, and
legislative history of the OSH Act, the Court unanimously ruled that
the Secretary of Labor, and not OSHRC, should be given deference.
The Court's decision in Martin v. OSHRC was in keeping with well-
established precedent giving deference to administrative agencies that
are given authority by Congress to adopt and implement regulations. 499
U.S. at 150-151 (citing precedent). In Martin v. OSHRC, the Court
elaborated on the important reasons for this rule.
First, the Court pointed out that the Secretary of Labor ``enjoys
readily identifiable structural advantages over the commission in
rendering authoritative interpretations of OSH Act regulations. Because
the Secretary promulgates these standards, the Secretary is in a better
position than is the commission to reconstruct the purpose of the
regulations in question.'' 499 U.S. at 152. By contrast, OSHRC does not
promulgate occupational safety and health standards and has no such
expertise.
Second, the Court pointed out that ``by virtue of the Secretary's
statutory role as enforcer, the Secretary comes into contact with a
much greater number of regulatory problems than does the commission,
which encounters only those regulatory episodes resulting in contested
citations.'' 499 U.S. at 152. This experience makes it ``more likely
[that the Secretary will] develop the expertise relevant to assessing
the effect of a particular regulatory interpretation.'' Id. By
contrast, OSHRC sees only a small slice of the enforcement cases
brought by the Secretary. Employers seek review of less than 10 percent
of all cases before the commission, and only a fraction of these cases
are heard by the full commission. As a consequence, the commission does
not have the same breadth and depth of knowledge and experience as the
Secretary of Labor.
It is also important to note that under Martin v. OSHRC and related
cases, the Secretary of Labor still has the burden of showing that her
interpretation is reasonable. Where the commission or a reviewing court
believes the Secretary's interpretation is not reasonable--for example,
where the Secretary has advanced conflicting or inconsistent
interpretations--no deference is given to the Secretary's view. Thus,
the Secretary does not have unbridled discretion; there is a very real
and substantial check on her authority built into the system.
H.R. 741 would turn this well-established system upside down and
say that the Review Commission, not the Secretary, should get the final
say on the meaning of the Secretary's regulations. This defies
longstanding precedent and common sense. As the Court in Martin
recognized, the Secretary of Labor, as the policymaking entity that
promulgates and enforces workplace safety standards, is in a far
superior position to interpret the meaning of her own regulations, and
to have those interpretations respected so long as reasonable. Policy
decisions like the interpretation of workplace safety standards should
be left with the policymaking body, not given to an adjudicative body
that lacks comparable knowledge, experience, and expertise.
H.R. 739, The Occupational Safety and Health Small Business Day in
Court Act
Under the OSH Act, an employer has 15 days in which to challenge an
OSHA citation. 29 U.S.C. 659(a). If the employer does not file a
notice of contest with OSHRC by that deadline, the OSHA citation
becomes a final order of the commission, enforceable against the
employer. Id.
H.R. 739 would excuse employers from the OSH Act's 15 day deadline
if the employer can show that its failure to meet the deadline was
caused by ``mistake, inadvertence, surprise, or excusable neglect.''
The intent of the bill, according to its proponents, is to
incorporate into the OSH Act provisions for obtaining relief from a
final judgment similar to those provided by Rule 60(b) of the Federal
Rules of Civil Procedure (FRCP).
The bill is unnecessary. The Commission has always taken the
position that Rule 60(b) applies to commission proceedings and that the
Commission has the authority to provide relief from a final judgment
when the employer has made the requisite showing under Rule 60(b). See,
e.g., Secretary of Labor v. Branciforte Builders, Inc., 9 OSHC 2113
(1981). The courts of appeals have generally agreed that Rule 60(b)
applies to commission proceedings and that OSHRC has authority to
provide relief from a final judgment where appropriate under that rule.
See, e.g., Marshall v. Monroe & Sons, Inc., 615 F.2d 1156 (6th Cir.
1980); J.I. Hass Company v. Marshall, 9 OSHC 1712 (3d Cir. 1981); Avon
Contractors, 372 F.3d 171 (3d Cir. 2004).
Proponents of the legislation argue that the bill is needed because
of a contrary court ruling in Chao v. Russell P. LeFrois Builder, Inc.,
291 F.3d 219 (2d Cir. 2002). But that decision is both an anomaly and
irrelevant, given that the Solicitor of Labor has now issued a
memorandum stating that the Department of Labor will no longer seek to
prohibit employers from making a claim for relief under Rule 60(b). See
Memorandum to Regional Solicitors, et al., from the Solicitor of Labor
(Dec. 13, 2004).
The bill is also inappropriately one-sided. It excuses employers
from missing their 15 day deadline but does not provide the same relief
to employees or their representatives who seek to exercise their
statutory rights to challenge the period for abatement in a citation.
Fairness and reason dictate that both employers and employees should be
afforded the same relief if Congress were to adopt this measure.
Finally, it is important to point out that the legislation, while
purporting to incorporate the provisions of FRCP 60(b), does not
actually track the language of that rule. Rule 60(b) includes important
safeguards and limitations, including that the motion for relief under
Rule 60(b) must be made within a reasonable time, and in any event not
more than 1 year after the judgment was entered. Rule 60(b) also
specifies that a motion made under the section does not affect the
finality of a judgment or suspend its operations. Particularly in a
circumstance where, as here, the judgment at issue is one that requires
employers to address workplace safety hazards, Rule 60(b)'s safeguards
and limitations should apply. Parties should be required to make their
motion for relief within 1 year, and the motion should not affect the
employer's obligation to abate the hazard while the employer is seeking
relief from the judgment.
H.R. 740, The Occupational Safety and Health Review Commission
Efficiency Act
H.R. 740 expands the number of members on the Occupational Safety
and Health Review Commission (OSHRC) from three to five, and mandates
that all members have legal training.
In our view, the bill is unnecessary and inappropriate in a time of
severe budgetary constraints. The commission's modest caseload does not
warrant a 40 percent expansion in the number of Commissioners.
Moreover, the fact is that the commission's perpetual case backlog has
persisted regardless of whether the commission is fully staffed or
lacks a quorum. It would appear that factors other than the size of the
commission or the lack of a quorum affect the commission's ability to
issue decisions.
And it is no coincidence that Republican Members of Congress are
pushing to expand the number of seats on the commission at a time when
a Republican president would fill the seats.
Proponents cite to the Federal Mine Safety and Health Review
Commission as an analogous agency with five Commissioners, not three.
However, it is also the case that the FMSHRC has more responsibilities,
and hears more cases, than OSHRC. For example, miners and their
representatives are permitted to bring cases before the FMSHRC alleging
retaliation for exercising their rights under the mine safety law, and
the FMSHRC hears and decides these cases. The OSH Act has no comparable
provision, and OSHRC has no comparable role.
Expansion of the Commission, and restricting the eligibility of
individuals to serve as Commissioners, are unnecessary and unwarranted
proposals that should be rejected.
In sum, the AFL-CIO urges the subcommittee to explore ways of
strengthening the OSH Act and its enforcement in order to address the
high injury and fatality levels that persist in American workplaces
today. Passage of H.R. 739, 740, 741, and 742 will do nothing to
advance this goal; to the contrary, they will deprive OSHA of the
resources and authority they need to do the job.
Senator Isakson. Thank you, Ms. Rhinehart.
We will do our questions 5 minutes each. And then if there
is time and there are other questions, we will go to a second
round. I will start.
I have to ask Ms. Rhinehart a question. I take every story
I hear at every committee hearing at face value. You told a
story with regard to Eric Ho and Mr. Dodd told a story with
regard to his employee that cut off the ends of I think two
fingers. Did you hear that story?
Ms. Rhinehart. I did.
Senator Isakson. Based on your testimony, what Mr. Ho did
was outrageous. I think most people would react in that way. Do
you think the action of OSHA in the case that he talked about,
of the fingers, was as outrageous?
Ms. Rhinehart. Mr. Chairman----
Senator Isakson. That is not a trick question.
Ms. Rhinehart [continuing]. It is not a trick question but
it is a hard question because, just as you do not have the
entire record in the Ho case before you, I do not have the
entire case.
Senator Isakson. I would never hold you to it.
Ms. Rhinehart. I know you would not but I am troubled by
some of the things that Mr. Dodd said. I am troubled by some of
the things he said but I would really like to see----
Senator Isakson. Let me tell you why I asked that, and that
is a tough question and you are a sweet lady and I probably
should not have done that to you.
But I find oftentimes that we sometimes lose sight in these
hearings of--we get an extreme issue. I would hope your
situation and the behavior of that OSHA inspector was an
isolated instance, just like I would hope and pray that the
Eric Ho's of the world are an isolated situation, but recognize
we need to be vigilant to see to it that if those people exist
they are pointed out.
The ideal in enforcement is for people to respect the law
for what it is intended to do. Which brings me to my first
question which I will throw out there.
I will ask Mr. Swindal, in your experience with OSHA
directly, or what you have heard, do you feel like that cases
are made where there is an example that can serve the purpose
to send notice? Or do you think they are always made based on
the most merit of the circumstances?
And I ask that question because Ms. Murray raised a very
good point, and that is the number of inspectors versus the
number of workers. The problem is we could not hire enough IRS
agents or anything else, versus the number of taxpayers, on
compliance. So there is a lot of example setting in terms of--
which do you think? Do you think it is based on merit, in all
cases, or sometimes to set the example to get the word out?
Mr. Swindal. You will hear in town that such and such, that
we have got inspectors coming around, they are all over, they
are trying to do this and that. But there may have been a death
and something very, very serious could have happened in the
city.
I have been involved in cases where an OSHA inspector comes
to the job and the site was ridiculous. It was in terrible
shape. And we had our people on the site having to follow the
rules, making sure everything was right, because we know it was
a dangerous site and we had complained to the general
contractor.
I think that what I was talking about earlier, to avoid
those circumstances where the agents are on this side and the
contractors are on this side or the manufacturers are on this
side, the coming together in a situation like I was discussing,
as a training together to go over situations before we have
these occur. And to get the smaller firms that are involved in
construction, that do not have, as you said, the safety
directors, the people to go out and really help them. They do
not know the rules. How could you know all the rules if you
were a small, 15 or 20 man company? You will not.
Your MSDS books are going to be out of date. They are not
going to be correct. That is part of it. And it is unfortunate,
but that is the way it is.
And I think the partnership that we can create as a company
here and taking the time with professionals in our business,
joining with the OSHA team to look at these regulations: one,
before they are presented; two, to go over some of the
regulations that are--when there is a series of violations
occur, and it seems to me there is nothing you can do about it,
and it does not work, come together, sit down and discuss it
with the contractor community or the safety director as a team
as we were discussing earlier.
That is what we see. It is a problem. As you said, the
construction industry is absolutely the most unsafe of all the
work environments. We are doing everything we can to improve
it. But I go to sleep every night praying that nobody's going
to get killed the next day because I know they are on their
own.
Senator Isakson. Thank you. Ms. Murray.
Senator Murray. Thank you, Mr. Chairman, and I would agree.
The statistic that Ms. Rhinehart cited--spending $1 billion a
week on occupational injuries, is a cost that is hurting all of
us. And it seems to me that one of our challenges is we do not
have sufficient funds within the budget to make sure we are
educating people, that OSHA has what they need, and NIOSH, to
be able to educate companies so they can follow the regulations
without being surprised by them.
And I think that is something that all of us believe we
should be doing a better job of.
I do have a question. Ms. Rhinehart, you talked about Eric
Ho. Was part of the problem that there is not criminal
liability? And the fact that he could keep doing this for some
time without facing some kind of criminal--for something as
egregious as you discussed.
Ms. Rhinehart. That is exactly one of the problems in the
Eric Ho case, is that the OSHA Act only allows a criminal
prosecution in circumstances where a worker died, where an
employer willfully violates an OSHA rule--which Eric Ho did and
the commission found he did--and a worker dies.
Here workers were not killed directly but they were
poisoned by asbestos.
Senator Murray. Which we know you may not know about for 30
years.
Ms. Rhinehart. Correct. There is no authority under the
OSHA law for prosecution in that instance. Ironically, there
is, under the Clean Air Act, for releasing asbestos into the
air but not for poisoning the workers. In our view, it is a
serious shortcoming in the law and we would support legislation
to correct it.
Senator Murray. Mr. Dodd, the chairman asked Ms. Rhinehart
one side of it. Let me ask you the other side of it.
You heard her story about someone who very willfully
violated the law, really put people at risk knowingly. Do you
think that for those egregious--not for your case, which can be
understandable, but for egregious cases should we have criminal
liabilities within OSHA? It does cost business.
Mr. Dodd. That is a question, I think, for the courts to
settle. But if somebody does something like that, yes. People
like myself, people like Mr. Swindal, I am sure, who have been
working for a long time, trying to run an honest business and
provide jobs for people. We do not need people like that. The
industry does not need people like that. Those are the kind of
people that hurt the industry.
So if it was me that was making the decision, if I was in
charge of that, if I was Senator Isakson and I had the power to
say that, I would say he needs to be prosecuted. He needs to be
prosecuted.
That was more than willful. That was deliberate. If OSHA
came in and shut the place down and then he climbs over the
fence and unlocks it and has his workers back in there, then
that is a criminal action.
But again, that is not for me to decide.
Senator Murray. Mr. Dodd talked about some of the things
that he felt were important for us to look at, training for
OSHA inspectors, more help to businesses to be able to comply
with the law. Ms. Rhinehart, would you concur that those are
some of the things we need to look at? To reduce the number of
injuries and deaths?
Ms. Rhinehart. Yes, I would agree that those are good
suggestions and areas to look at. The only point I would make
is that you are talking about an agency that has $450 million
to do its job. Every time you move resources into this area, it
takes them away from another area like, for example,
enforcement.
So it seems to me that some good suggestions have been made
and that perhaps some additional moneys could be found to
explore those sort of partnerships.
Senator Murray. Which would be my final point, and I have
to go to the floor so I am not going to be able to remain, Mr.
Chairman. We can all talk about helping our companies
understand the rules. But if we do not provide the enforcement
officers out there working with them and the direction to do
that, then we will be back with egregious cases, injured
workers and employers frustrated.
So I think it is an issue that our committee does have to
look at.
Thank you, Mr. Chairman.
Mr. Swindal. Senator Murray, could I ask you one question
in reference to that?
I do not think we will--do you actually think that we are
going to ever have the ability to legislate this to every
company in the United States? We, as companies, have got to
take the responsibility along with OSHA to do this.
Senator Murray. I absolutely think that there are really
good employers out there who work really hard to comply with
this. And there are times when they simply do not have the
knowledge of what they need. How do we get them better
information? As people who want to make sure everybody has
fewer injuries, fewer deaths, we all share that same goal. We
need to educate them.
That was my point, we cannot just expect this information
to somehow transform into businesses. We need to help provide
the resources to make sure it is out there.
Mr. Dodd. That law that you are talking about, the Ho
thing, that law could also be used against--again, if Senator
Isakson had the power to say that he could be criminalized for
that or punished for that criminally, that same law--if the
OSHA people have the power, I guess, to say we are going to
have you arrested for that because you were criminal there,
again that same law could be used against Roy. It could be used
against myself, too, as good employers.
They came in, you had this employee who just nipped off two
fingers on a punch press. That, to me, is criminal in my mind,
the inspector's mind. I am going to have to have you two
arrested and shut your place down.
Senator Murray. Thank you, Mr. Chairman.
Senator Isakson. Thank you, Senator Murray. Mr. Chairman.
The Chairman. Thank you. The accountant in me made me make
some calculations here. I noticed that we have 861 inspectors
now, at the Federal level. And so I made some calculations to
see how many we would have to have in order to get it down to
one inspection per 5 years.
It means that we have to add 18,000 inspectors to do the
job. I do not think anybody is going to consider that a
reasonable number to increase the budget by. So we are going to
have to find some other solutions. We are going to have to find
some cooperative ways where employers and OSHA and employees
are working together.
Incidentally, I also did some calculations based on the
numbers provided in Ms. Rhinehart's testimony. And I can figure
out a way to get that number down without increasing the
workforce quite that substantially. Those numbers indicate that
there is less than one inspection a week done by each of the
employees. If we increase that to one per day, we bring the
number down by 80 percent.
I have got to find out more about what takes so long to do
the inspections, because again when I was a safety officer, I
never had anybody inspect me longer than half a day and it was
at multiple sites. I have got to tell you, I got the violation
once where we did not have a no smoking sign the right number
of feet from the rig. Now that is very important. It was 3 feet
short. And the actual rule of the industry is that it has to be
outside of the guy lines. And it was well outside the guy
lines. So people that were within a dangerous distance to the
rig would know about it. But that took us several weeks to get
resolved.
So Mr. Swindal, I really like your program where industries
do some cross training with the OSHA inspectors so that they
can learn what the best practices are. These guys have a tough
job. They go from a dentist's office to a construction site to
a shoe store to an oil field and that is all different
practices. So there probably needs to be a little bit of
specialization which would speed up that process a little bit.
But you suggested this idea of having safety personnel to
cross train. How do you think such a program--how can we
implement such a program?
Mr. Swindal. The Training Exchange Program which we are
discussing is very similar to how the mason contractors, as I
said earlier, we have created a number of manuals, one for
forklift drivers, one for bracing scaffolding.
We shared all of that information with OSHA. That was the
first way that we started to be able to try to work with them.
And they were very interested in understanding what we are
trying to do.
So now what we do is we take, let us say from one of the
best safety directors of one of the major masonry contractors
or glazing contractors or concrete forming contractors. And he
goes and he actually sits down and discusses any new
regulations or regulations that at the time OSHA is having a
hard time enforcing or there seems to be a rash of incidents
about these.
And they sit down and they discuss what is causing this?
Why is this happening? And what can we do? Is something wrong
with the regulation? Is this really a safe/unsafe thing going
on? Or is it just something that has been on the books and it
is not of any use at the present time, the way it is being
interpreted in this particular occasion?
So I think that would work very well and work with some of
the people that are in charge of the OSHA--we discussed the
OSHA training facility they have here. Do some mockups of any
of the new rules, whether it be for dentistry or whether it be
for whoever or whatever. But construction, in general, there
are so many things that can go wrong that are so dangerous. And
we spend too much time going through those.
The Chairman. But you are kind of saying that through this
process of doing the cross-training, you also have the people
in the industry comparing notes on what the good practices are,
too.
Mr. Swindal. Yes.
The Chairman. Which undoubtedly has some good side
benefits.
Mr. Swindal. With all of the trades involved and--this can
go from manufacture all the way across. It does not just have
to be for the masonry industry. We looked at it in that manner.
The Chairman. I noticed in your testimony, too, that you
have a drug testing program in place.
Mr. Swindal. Yes, sir.
The Chairman. You may not realize that in some States
random drug tests are illegal unless they are based on
reasonable suspicions of drug use. They cannot be a preventive
tool applied across the board so that it does not discriminate.
Clearly that is not the case in Alabama.
Do you believe that your policy keeps your employees safer
and has other positive effects?
Mr. Swindal. The drug policy?
The Chairman. Yes.
Mr. Swindal. Yes. As a whole, it is preemployment, number
one. That stops probably--our HR director said it probably
stops 50 percent of the problems that we were having without
it. Our insurance rates have gone down dramatically and our
injury, lost time injury accidents, have dropped dramatically
over the last 10 or 15 years that we have been doing this.
The Chairman. I would agree. I am probably the only one in
the Senate that is trained to collect urine specimens and do
saliva tests.
Mr. Swindal. We have a number of foremen that can do the
same.
The Chairman. We found that it affected almost four out of
five employees that applied for jobs and we were able to cut
off a lot of accidents in the past that way.
Ms. Rhinehart, it has been observed in some instances the
hazardous communications practices and procedures are pretty
complicated. And we have been trying to work on those MSDS
sheets for quite a while and get them more reasonable so that
they actually provide timely information to people in a crisis
situation. It would be nice if they knew all of that stuff
beforehand, but they do not even know what all the chemicals
are before they get to working on it.
Do you have any suggestions for simplifying that MSDS
process and some way that we can get that information to the
workers when it is more meaningful and more useful?
Ms. Rhinehart. I am wishing I could snap my fingers and
become Peg Seminario, our Health and Safety Director, who would
have a very complete answer for you on that.
But perhaps developing some model MSDS's, OSHA developing
some models and getting them out to businesses and to small
business and providing them to workers would be of assistance
across the board. That is one suggestion.
The Chairman. Good. We would like to work with you on that
and other things that you have suggested in the testimony.
I see that my time is expired. I have some other questions
but I will submit those in writing.
Senator Isakson. Thank you, Mr. Chairman.
Mr. Sapper, you had a comment?
Mr. Sapper. Mr. Chairman, I just wanted to add something
about the Ho case and the effect, or I should say the light it
might shed on the attorney's fees bill. It actually proves the
opposite of the point that I believe Ms. Rhinehart was trying
to make.
Had the attorney's fees bill been law when the Ho case was
brought, OSHA would have easily seen that 10 out of the 11
citations were patently weak. They were so weak, in fact, that
the Review Commission, even under the crippling disability
imposed by the CF&I Steel case, threw them out. Not only that,
they were also thrown out by the Fifth Circuit on appeal.
So had you been an OSHA lawyer looking at the Ho case, as
egregious as it was, and I agree that it was egregious, you
would have said to yourself, this guy should be slammed. But if
we try to do it 11 times, it is going to get thrown out. So you
would have had your mind concentrated mightily by the thought
you will end up paying this guy his attorney's fees. So you
will bring just a straight case, no questionable citation
items, just a straight case. He would have been slammed. That
would be the end of it. And he would not have gotten a penny of
attorney's fees.
So I think it proves the opposite of the point that she was
quite eloquently trying to make. But those are the facts.
Senator Isakson. Well, it proves by my asking that question
about 15 minutes ago I provoked a lot of responses. But two of
the responses that I provoked were actually the intent of the
question and I would like to just tell you what those were.
If this subcommittee were to try and improve OSHA laws,
undertaking one side or the other based on Mr. Dodd's case or
Ms. Rhinehart's example in the Ho case, we would do a great
disservice. Because both of them are extreme examples. And were
we to assume all businesses were like Mr. Ho or all OSHA
inspectors were like the one that inspected you, we would have
a heap of trouble.
Fortunately for us, I think both of those cases, both very
egregious in different ways, should be dealt with as examples
for either inspectors or businesses to never do that again.
But in the meantime in the middle, the broad middle,
wherein I think most all American business is or strives to be,
we need to work for two things. One is good laws that protect
the health and welfare and safety of workers. And second is a
proactive compliance attitude on behalf of business and the
regulator.
To that end, I want to, as chairman of the subcommittee,
commend Mr. Swindal and those that he represents for their best
practices, recommendations and their offering to OSHA from the
standpoint of training in the expertise that they have. And
believe me, high rise skin application is an expertise like
something you have never seen. I do not know what your rate per
100 on worker's comp is but--what is it, by the way?
Mr. Swindal. I do not know right now. We have to be self-
insured with--we are self-insured with a very high deductible.
Senator Isakson. I would be willing to bet you that after
payroll, workers comp might be the number two expense in the
company.
Mr. Swindal. Besides material, yes.
Senator Isakson. Which is another thing that, as a business
person, is so important. And that is that safety is rewarded at
the bottom line by better premiums, meaning lower premiums. And
bad practices are punished at the bottom line very severely.
Did I cut you off, Ms. Rhinehart? I let him say something
and you had a--I do not know whether you were pointing your
index finger at me or whether you wanted to be recognized.
Ms. Rhinehart. I was pointing it at Mr. Sapper.
Senator Isakson. That was the right answer.
Ms. Rhinehart. If I could just have a moment to respond.
Senator Isakson. We have 47 seconds left and then we are
out of time.
Ms. Rhinehart. I just wanted to point out that, in fact,
there was precedent for per employee citations of the sort of
training and respirator standards that OSHA cited Eric Ho for.
So in fact, they were relying on precedent, not just going off
on a lark and citing him for those 11 employees. I would make
that point.
I would also say that I just do not think that any of us
around this table would criticize OSHA for pursuing an employer
like Eric Ho aggressively. I think we can all agree that
employers like Eric Ho need to be dealt with and dealt with
severely. Thank you.
Senator Isakson. That was my point. Both of those stories
indicated violators on all sides of this whole equation that
should have been dealt with and the whole situation would be a
whole lot better off.
I want to thank all of our witnesses for testifying today.
I want to ask unanimous consent that the record be held
open for 10 days for any additional submission or comment.
Hearing no objection, so ordered.
The subcommittee hearing is adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Statement of Tom Howley
Subcommittee Chairman Isakson, my name is Dr. Tom Howley and I
currently serve as President of the Academy of General Dentistry (AGD),
a national professional association representing over 37,000 general
dentists.
Let me begin this testimony by thanking you for your distinguished
leadership on this committee; for your continued and well-known support
of the small-business community; for your strong record as an advocate
for workplace safety; and for your demonstrated support for improving
the programs and operations of the Occupational Health and Safety
Administration (OSHA) through the enactment of appropriate reform
legislation.
As you may know, a major focus of the Academy of General
Dentistry's work, is to afford our members the opportunity to hone and
refine their skills through high-quality continuing education
opportunities; to promote the highest degree of professionalism
possible; and to promote excellent standards of patient care. Members
of the academy also know, from first hand experience, that appropriate
access to oral health care services is essential to maintaining good
health--and that a lack of access to adequate oral health care is
harmful to individuals and families, and is extremely costly to society
as a whole.
As trained health care professionals, members of the academy are
justifiably proud of their long years of training, their special
expertise, and their commitment to quality health care--but our member
dentists also wear another hat. As a practical matter, the vast
majority of the Academy's members practice in a small-business
environment. Most dentists are small businessmen and women who are the
principal owners and operators of their individual dental practices. In
this capacity, they face the same day-to-day challenges faced by any
small businessman or businesswoman. They must manage their cash flow
and control expenses. They must hire and retain a skilled workforce.
They must ensure an accessible and well-equipped facility in which to
provide their skilled services--and, like other small businessmen and
women, they must comply with a myriad of rules and regulations--some of
which, do not always efficiently or fairly address the concerns for
which they were originally intended.
One Federal Agency, well known to our members, is the Occupational
Health and Safety Administration (OSHA). OSHA is primarily concerned
with workplace and workforce safety issues. Without question, the
overall mission of OSHA is vital--and it is clearly appropriate for
this agency and for Members of Congress to be concerned about workplace
safety issues. As small businessmen and women--who employ on average
six persons in each dental practice--our members are committed to
ensuring a safe workplace environment, and invest much of their time
and energy doing so on a continuous basis.
In terms of ensuring a safe workplace environment, both for our
employees and patients, members of the academy and other practicing
dentists have not always found that interacting with OSHA has been an
especially constructive or welcome exercise. There have been instances
where the Agency has gone about its mission in a ham-handed manner--
resulting in unrealistic burdens and unfair enforcement actions being
visited on our members and other small businessmen and women. To
address these concerns, we are pleased to add the support of the AGD to
the large number of business groups, trade and professional
associations, that have called for the enactment of reasonable OSHA
reform legislation. Specifically, we are pleased to endorse the
enactment of four bills (H.R. 739, H.R. 740, H.R. 741 and H.R. 742)
introduced in the House of Representatives by your colleague from
Georgia, Representative Charlie Norwood. We are further pleased that
you are taking a leadership role in addressing the small business
communities OSHA concerns by holding this hearing today and focusing
attention on the need for appropriate OSHA reform legislation.
As you know Mr. Chairman, the reform legislation we seek to
advance, has broad support within the business community, and will go a
long way towards addressing legitimate concerns small businessmen and
women have when it comes to OSHA compliance and enforcement issues. The
Norwood legislation being discussed today will: (1) Provide the OSHA
Review Commission with added flexibility when it comes to applying the
15-day rule for contesting citations or proposed penalties, so that an
employer would not automatically lose their case on technical grounds--
if for legitimate reasons, they are unable to comply with the 15-day
deadline for an appeal; (2) Expand from three to five the number of
members sitting on the OSHA Review Commission in an effort to prevent
unnecessary delays in adjudicating cases; (3) Establish that the
independent OSHA Review Commission--rather than OSHA itself--is the
entity that will be given deference on how to interpret OSHA law by
appellate courts reviewing the Commission's decisions; and (4) Amend
the Equal Access to Justice Act (EAJA) to allow, under some
circumstances, an employer to recover attorney's fees incurred if they
are successful in defending against OSHA citations. Collectively, these
proposed reforms will, if enacted, produce a fairer, more balanced, and
more effective OSHA enforcement environment. Such an environment will
help assist the small business community in meeting its
responsibilities under the law and will help ensure a safer workplace
environment overall.
Mr. Chairman, we look forward to working with you and other Members
of the HELP Committee to advance these needed reforms. We commend your
leadership, the leadership of Representative Norwood in the House--and
we also commend the fine efforts of the U.S. Chamber of Commerce and
the OSHA Fairness Coalition in helping to focus attention on the need
for OSHA reform legislation.
In conclusion, we thank the subcommittee for this opportunity to
express the views of the Academy of General Dentistry regarding OSHA.
For additional information regarding the Academy's views on other
matters likely to be considered by the 109th Congress, please do not
hesitate to contact us at the Academy's national office: 211 East
Chicago Avenue, Suite 900, Chicago, Illinois 60611-1999, (Tel. 312-440-
4300), (www.agd.org).
[Whereupon, at 3:30 p.m., the subcommittee was adjourned.]