REVIEW OF THE OCCUPATIONAL SAFETY AND HEALTH ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

 

HEARING HELD IN WASHINGTON, DC, MARCH 27, and APRIL 29, 1998

 

Serial No. 105-84

 

Printed for the use of the Committee on Education

and the Workforce


REVIEW OF THE OCCUPATIONAL SAFETY AND HEALTH ACT

Table of Contents

TESTIMONY OF MS. CLAUDIA BRUMM, DIRECTOR, RISK MANAGEMENT, BORG WARNER AUTOMOTIVE, INC., CHICAGO, ILLINOIS傍ESTIFYING ON BEHALF OF THE LABOR POLICY ASSOCIATION *

TESTIMONY OF MR. LYNWOOD SMITH, VICE PRESIDENT, RISK AND SAFETY MANAGEMENT, T. A. LOVING COMPANY, GOLDSBORO, NORTH CAROLINA傍ESTIFYING ON BEHALF OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA *

TESTIMONY OF MR. JAMES "MIKE" McMICHAEL, THE McMICHAEL COMPANY, CENTRAL, SOUTH CAROLINA傍ESTIFYING ON BEHALF OF THE NATIONAL ASSOCIATION OF HOME BUILDERS *

TESTIMONY OF RONALD W. TAYLOR, ESQ., VENABLE, BAETJER & HOWARD, BALTIMORE, MARYLAND傍ESTIFYING ON BEHALF OF THE UNITED STATES CHAMBER OF COMMERCE *

TESTIMONY OF MR. JERRY HARTMAN, PRESIDENT, REESE PRESS, INC., BALTIMORE, MARYLAND傍ESTIFYING ON BEHALF OF THE PRINTING INDUSTRIES OF AMERICA, INC. *

TESTIMONY OF MS. MARGARET M. SEMINARIO, DIRECTOR, OCCUPATIONAL SAFETY AND HEALTH DEPARTMENT, AMERICAN FEDERATION OF LABOR - CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO), WASHINGTON, DC *

Appendix A Opening Statement of the Honorable Cass Ballenger, Member of Congress (R-NC); Chairman, Subcommittee on Workforce Protections *

Appendix B Statement of the American Subcontractors Association, Alexandria, Virginia *

Appendix C Statement of Mechanical Electrical Sheet Metal Alliance, Washington, DC *

Appendix D Statement of the Honorable Scott McInnis, Member of Congress (R-CO) *

Appendix E Statement of Ms. Claudia Brumm, Director, Risk Management, Borg Warner Automotive, Inc., Chicago, Illinois釦estifying on behalf of the Labor Policy Association *

Appendix F Statement of Mr. Lynwood Smith, Vice President, Risk And Safety Management, T.A. Loving Company, Goldsboro, North Carolina釦estifying on behalf of the Associated General Contractors Of America *

REVIEW OF THE OCCUPATIONAL SAFETY AND HEALTH ACT

 

 

沫覧覧

 

 

FRIDAY, MARCH 27, 1998

 

 

House of Representatives, Subcommittee on Workforce Protections,

Committee on Education and the Workforce, Washington, DC

 

 

The subcommittee met, pursuant to call, at 9:30 a.m., in room 2175, Rayburn House Office Building, the Honorable Cass Ballenger [chairman of the subcommittee] presiding.

Present: Representatives Ballenger, Fawell, Barrett, Hoekstra, Graham, Johnson, Owens, Martinez, and Woolsey

Also Present: Representative Roemer (not a member of the Subcommittee).

Majority Staff Present: Gary L. Visscher, Workforce Policy Counsel; Ashley Rehr, Professional Staff Member; and Karen A. Wayson, Assistant to the Workforce Policy Counsel.

Minority Staff Present: Peter Rutledge, Senior Legislative Associate/Labor;

Maria Cuprill, Legislative Associate/Labor; and Shannon McNulty, Receptionist.

 

Chairman Ballenger. A quorum being present, the Subcommittee on Workforce Protections will come to order.

The subcommittee is meeting today to hear testimony, to review pending OSHA legislation. Under Rule 12(b) of the Committee Rules, any oral opening statements at the hearings are limited to the Chairman and the Ranking Minority Member. This will allow us to hear from our witnesses sooner and to help Members keep to their busy schedules. Therefore, if other Members have statements, they may be included in the hearing record. Without objection, all Members' statements and witnesses' written testimony will be included in the hearing record.

In 1995, President Clinton announced his Administration's plans to reinvent OSHA, to apply common sense to OSHA's regulations and enforcement. I agree with the President that OSHA needs change and reinvention. Today, the Subcommittee on Workforce Protections will hear testimony on several specific measures which move OSHA in a more common sense direction.

I want to first thank all of our witnesses for taking time from their busy schedules to come here to testify today. We benefit greatly from your expertise, and I want to express my appreciation for your willingness to be here.

Let me just briefly describe each of the bills that we are considering today and tell you why I believe each one is appropriate and helpful towards bringing common sense to OSHA.

The first bill, H.R. 2869, would protect the confidentiality of a voluntary safety and health audit. A few years ago, during the Bush Administration頬ust to show you that it is not partisan亡ecretary of Labor Lynn Martin sent a letter to about 600 corporate chief executives personally encouraging them to take a leadership role in worker health and safety by implementing comprehensive internal safety and health audits of their workplaces in the same way that they had conducted financial audits of their company operations. Let me quote from Secretary Martin's letter:

"As you do with financial audits, report the results of your safety and health audits to your Board of Directors. Being mindful of worker health and safety is as much a part of management's commitment to upholding corporate responsibility as striving to maintain shareholder value."

Republicans and Democrats on this Committee applauded the Secretary's effort to ensure high-level corporate attention was brought to each employee's safety and health. A lot of those companies followed the Secretary's advice.

So what did OSHA do? It went out and inspected them and demanded to see the audits so that the inspectors would have a road map for finding possible violations. One of the companies challenged OSHA's access to these internal audits. A Federal judge who had to rule on the issue basically said that OSHA was stupid to demand these audits after encouraging companies to conduct them, but the law didn't prohibit OSHA from being stupid, so the company had to give it to OSHA to use in their inspection.

That is the state of the law. OSHA can and does demand access to a company's own voluntary internal safety and health audits. You are basically a fool to put down on paper anything more than you absolutely have to because OSHA can use it against you. On the other hand, if you don't write anything down or you don't do a self-audit, you are protected. OSHA can't use your own audit against you if you don't have one. I hope we can all agree that that policy is crazy, and certainly counterproductive to worker safety. H.R. 2869 is intended to fix that.

H.R. 2661 and 2871 both require peer review of the science and economic foundations of OSHA standards. I am guessing that no one admits to actually opposing peer review, but the argument will be made that it will delay standards. I don't believe that this is the case, and if anyone has actual empirical information demonstrating that it does, I would like to see it. Peer review is likely to take some of the argument out of the standard, and thereby speed up the process, as it is to add any time to the regulatory process. Fundamentally, peer review is about making sure that standards are based on sound science, and I don't know how anyone could be opposed to that.

H.R. 2873 requires OSHA to identify the industries that will be covered by a standard when the proposed standard is published in the Federal Register. OSHA in fact did exactly this when the proposed standard on tuberculosis was published last year, so this is no dramatic departure or radical reform. What it does is give industries, and particularly smaller industries that perhaps don't have so many Washington attorneys and lobbyists looking out for them, fair notice that they will be covered by the standard. Quite frankly, had OSHA done this in the past, it would have saved itself a lot of litigation. So again, this is not a matter of delaying standards

but, as the President said, creating OSHA standards that "are as simple and sensible and flexible as they can be."

H.R. 2879 is intended to clarify the rules regarding responsibility on multi-employer worksites. OSHA has attempted to expand the employer's liability, particularly if there is any evidence that the employer has any controlling or supervisory role over the worksite. So what happens? Owners and general contractors, who are the targets of this expanded liability, refuse to take any responsibility for safety and health issues for fear that if they do anything, it will be used by OSHA to establish responsibility for everything on the jobsite.

So, for example, a general contractor who sees another contractor on the site doing something in an unsafe way may be reluctant to intervene肪ecause OSHA could use the fact that the general contractor intervened in one instance to claim that the general contractor had overall responsibility for safety and health on the worksite. Again, OSHA's current enforcement policy is contrary not only to common sense but also to the health and safety of workers.

Finally H.R. 3519, introduced by our colleagues, Representatives Granger and Roemer, would make some long overdue clarifications and changes in the Hazard Communication Standard to make it more user friendly for employees and employers. I appreciate the work that our colleagues have put in on this issue, and I hope that we can finally bring some common-sense changes to OSHA's Hazard Communication Standard.

By any measure these are narrow bills. They deal with specific problems. They simply move OSHA down the path of more common-sense regulation and enforcement. I don't consider any of the bills to be in final form. I welcome comments and suggestions today and after the hearing on how to improve the language of the bills.

Again, I want to thank the witnesses for appearing today. I turn to Mr. Owens for his opening statement.

[The written statement of Chairman Ballenger is attached as Appendix A.]

 

Mr. Owens. Thank you Mr. Chairman.

Let me begin by stating that the public does not support weakening of worker health and safety. Polls show that people want the Federal Government to do more to regulate the safety practices of businesses.

I believe I have already demonstrated I am willing to work with you where the result of that effort will improve the safety and health of workers. Today, however, you are making that very difficult. We will examine no less than six bills this morning, each of these bills covering a different subject and affecting different parties. However, despite the breadth of this hearing, the Minority was limited to only one witness. The consequence of this is that the subcommittee is not and can not conduct a full and impartial hearing.

To give one example, the Majority has invited two witnesses representing the Home Builders and the Association of General Contractors, AGC, to testify on H.R. 2879. You refused to invite and have denied us the right to invite other parties that also have a vital interest in this legislation. Groups representing subcontractors, including the American Subcontractors Association and the Mechanical Electrical Sheet Metal Alliance have submitted statements indicating they have significant concerns regarding H.R. 2879. Apparently, the Majority thinks it is all right to hear redundant testimony from general contractors who would benefit from

H.R. 2879, while at the same time failing to afford any presence to subcontractors who are equally affected by the bill.

To give only one more example, H.R. 3519 imposes new direct responsibilities on the chemical industry. Regardless of whether one believes those responsibilities are appropriate, we have an obligation both to ourselves and to the public to at least hear from the industry upon whom the responsibilities would be imposed. Once again, the Majority has failed to provide that opportunity.

Mr. Ballenger, I have listened for four years to retort that Republicans are only doing to Democrats what Democrats did to Republicans when Democrats were in the Majority. In the first instance, that simply is not true, particularly in the case of this subcommittee's equivalent. But even if it were, it does not begin to justify your present procedure, which distorts the fact-finding purpose of the hearing process.

When we conduct legislative hearings, we have a duty and obligation as Representatives to ensure that all reasonable points of view regarding the legislation before us have an opportunity to be fully and fairly expressed. Clearly, today's hearing fails to meet that standard. When this standard is not met, the consequence is that Congress is likely to act on the basis of inaccurate and incomplete information. My disappointment with the structure of today's hearings is exacerbated by the fact that I have significant reservations regarding the policies reflected in the bills before us.

H.R. 2869 allows employers to keep secret the results of safety and health audits that are not requested by specific OSHA standards. This audit privilege would permit employers to withhold information from OSHA and workers even where serious hazards are identified and the employer takes no corrective action. In effect, it would seem we are being asked to sanction willful and possibly harmful violations of the law.

H.R. 2871 and H.R. 2661 require OSHA to establish panels to review the economic and scientific data and analyses in every OSHA standard-setting. More seriously, it allows representatives of industry with direct economic interest in the rule to serve as peer reviewers. This measure would not only delay OSHA standards, but also give additional opportunities to industry representatives who want to stop or weaken the rules that they oppose.

H.R. 2873 requires OSHA to conduct an individual specific risk assessment and cost-benefit analysis for every industry that will be affected by a particular standard. Currently OSHA conducts cost and feasibility estimates for industry groups, not specific industries, and does an overall risk assessment for all workers affected. To do a specific risk assessment and cost-benefit analysis for every industry may impose unreasonable costs on taxpayers and will significantly lengthen the time that it takes to develop standards, while at the same time severely reducing the number of workers who will be protected by those standards.

H.R. 2879 prohibits OSHA from citing an employer for a violation if the employer does not have any employees exposed to the violation, and has not created the violation or assumed responsibility for ensuring that other employers at the worksite comply. What this bill does is shift the burden of responsibility to the subcontractor, who will be used as a shield against culpability by the prime contractor.

Let me conclude by saying that this new Republican crusade to maintain death and injury in the workplace represents a form of guerrilla warfare against working families. Instead of a broader comprehensive attack on OSHA utilizing one regressive and oppressive legislative missive, one killer bomb, instead of war on one front, this new offensive represents coordinated multiple probes and attacks against many vitally needed components of OSHA. A few weeks ago we had hoped that the war against working families was winding down. Today's hearing dramatically exposes the fact that we have been misled. There will be no peace.

Mr. Chairman, I ask unanimous consent to submit for the record two statements. One is the statement of the American Subcontractors Association, which represents more than 6,500 firms representing all major construction trades in 69 states and local chapters. Another statement is the Mechanical Electrical Sheet Metal Alliance, a coalition of more than 12,000 construction contracting corporations in a special sector of the construction industry.

 

Chairman Ballenger. Without objection.

[The written statements of the American Subcontractors Association and the Mechanical Electrical Sheet Metal Alliance are attached as Appendices B and C, respectively.]

 

Mr. Owens. Thank you Mr. Chairman.

 

Chairman Ballenger. At this point, if I may, I would like to have entered into the record, Congressman McInnis's statement. He will not be able to put it in, if that is satisfactory.

 

Mr. Owens. No problem.

 

Chairman Ballenger. Thank you, Mr. Owens, for your opening statement. Without objection, that's what will be done.

[The written statement of Mr. McInnis is attached as Appendix D.]

I would now like to introduce our panel of witnesses. Here with us today we have

Ms. Claudia Brumm, Director of Risk Management at Borg Warner Automotive in Chicago, Illinois; second, Mr. Linwood Smith, Vice President of Risk and Safety Management at T. A. Loving Company in Goldsboro, North Carolina; next, Mr. James "Mike" McMichael, of The McMichael Company in Central, South Carolina; then we have Mr. Ronald Taylor, an attorney with the firm of Venable, Baetjer & Howard in Baltimore, Maryland; followed by

Mr. Jerry Hartman, President of Reese Press, Incorporated, in Baltimore, Maryland; next is

Ms. Margaret Seminario, Director of the Occupational Safety and Health Department with the American Federation of Labor - Congress of Industrial Organizations, AFL-CIO, located here in Washington, DC.

I want to thank everybody for coming here today. Before the witnesses begin their testimony, I would like to remind the Members that they will be allowed to ask questions of the

witnesses after everyone on the panel has testified. In addition, Committee Rule 2 imposes a five-minute limit on all questions.

With that said, Ms. Brumm, we won't hold your feet to the fire, but we would like to hold each person's testimony to about five minutes if we can. The little red light will come on. The yellow light means you have a little time left. When the red light comes on, it doesn't mean you'll be cut off, but we would like to have time later for Members' questions. You may begin your testimony.

 

 

TESTIMONY OF MS. CLAUDIA BRUMM, DIRECTOR, RISK MANAGEMENT, BORG WARNER AUTOMOTIVE, INC., CHICAGO, ILLINOIS傍ESTIFYING ON BEHALF OF THE LABOR POLICY ASSOCIATION

Ms. Brumm. Thank you. Good morning, Chairman Ballenger and Members of the Subcommittee. My name is Claudia Brumm. I am Director of Risk Management for Borg Warner Automotive, Inc. I would like to thank you for this opportunity today to testify in support of Representative Ballenger's legislation, H.R. 2869, to protect voluntary workplace health and safety audits or surveys from disclosure that would otherwise deter employers from using this valuable health and safety tool. I respectfully request the opportunity to submit a longer written statement for the record.

I am testifying today on behalf of the Labor Policy Association. The Labor Policy Association is a public policy advocacy organization of senior human resources executives of over 250 major U.S. corporations, whose purpose is to ensure that U.S. employment policy supports the competitive goals of its member companies and their employees. LPA members are leaders in providing healthier and safer working conditions for their employees. I also come to you today as a certified safety professional with 14 years experience who has firsthand knowledge as to the value of self-audits as an effective safety and health tool.

I would like to thank Congressman Ballenger for his leadership on this issue and for introducing H.R. 2869, which provides that an employer does not have to disclose self-audit materials in any inspection, investigation or enforcement proceeding unless required under section 6(b)(7) of the Occupational Safety and Health Act.

Self-audits do play a critical role in achieving and maintaining workplace safety and health. Employers perform self-audits to help discover and eliminate unsafe working conditions, as well as to determine their compliance with OSHA.

Attached to my written testimony are copies of self-audit forms used by two large companies. From these forms, you can see that extensive fact-finding and troubleshooting occurs with the self-audits. To be effective, the self-audits must contain candid descriptions of problems and solutions. However, many employers will not conduct the audits or will not commit them to paper for fear they will be used against them by OSHA.

Under current law, OSHA is allowed unfettered access to employers' self-audit reports, and OSHA has shown no reluctance in using a self-audit document against an employer.

Congressman Ballenger's bill, H.R. 2869, would permit employers to conduct self-audits without the fear that they would end up in OSHA's hands as a road map for inspections.

A 1995 survey by Price Waterhouse on environmental self-audits suggests that reducing the fears about audits being used against employers will actually encourage employers to conduct more self-audits. The survey also found that the fear of information being used against them was the predominant factor in not conducting these audits. The survey also found that among the companies already performing audits, 66 percent said they would be encouraged to conduct even more audits if regulators would adopt an enforcement policy that eliminated penalties for self-identified, self-reported and self-corrected items.

Unfortunately, in my own company, the environmental surveys must be performed under the cloak of the client-lawyer privilege, which by design limits the number of people who are exposed to the improvements that are needed. I do not want the safety audits to follow this path. The safety survey process is educational to all those involved. It concentrates not only on compliance, but also on best-in-class safety practices designed to reduce workplace injuries and illnesses. We as a corporation feel that we must conduct these surveys. We ask that you allow us to continue to do this process without the threat of OSHA intervention.

Critics of the self-audits proclaim that employers would abuse such a privilege and use it to cover up problems that are discovered in a self-audit. In response, I ask you to remember that these self-audits are strictly voluntary. No one is required to conduct these audits. Indeed, the motivation for an employer who conducts a self-audit is to discover and fix problems, not to hide them. Few employers would bother going through the time and the expense of conducting a self-audit simply to hide the problems. If a self-audit reveals a problem and the employer does nothing about it, the situation is no different than if an employer had never conducted the self-audit in the first place. If the audit were not conducted, the problem may have gone undiscovered until an accident occurred.

Unfortunately, OSHA is on the record as opposing protection of self-audits from disclosure. OSHA argues that it does not want any interference with its enforcement authority. The self-audit protection in no way prohibits or hinders OSHA's authority to conduct an inspection. OSHA's enforcement authority, including the authority to demand documents required under its own regulations, is not affected in any way.

According to statistics compiled by the AFL-CIO, OSHA's resources allow it to inspect every workplace in the country only once in every 167 years. In light of those numbers, we believe OSHA should welcome with open arms any opportunity to encourage more self-audits. In fact, OSHA would be wise to follow the precedent set by the Environmental Protection Agency. The EPA recognizes that "routine agency requests for voluntary audit reports could inhibit the quality and quantity of audits conducted." As a result, the EPA has adopted a policy of limiting access to self-audits.

LPA sincerely believes that protecting workplace health and safety audits will encourage employers to conduct more audits which will ultimately create a safer and more healthful workplace, which is something that both OSHA and employers can agree upon.

In closing, I would like to thank you and the other Members for giving me this opportunity to testify in support of H.R. 2869.

[The written statement of Ms. Brumm is attached as Appendix E.]

Chairman Ballenger. As you were speaking, I was sitting here looking through your self-audit. I hope you don't give that to OSHA. You ought to look at it, Peggy. The people in my own company would say, "My God. Where did you come up with something like that? It must be 25 or 30 pages long." I appreciate the effort that you've put into it.

Mr. Smith, you may begin your testimony.

 

 

TESTIMONY OF MR. LYNWOOD SMITH, VICE PRESIDENT, RISK AND SAFETY MANAGEMENT, T. A. LOVING COMPANY, GOLDSBORO, NORTH CAROLINA傍ESTIFYING ON BEHALF OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA

Mr. Smith. Good morning. My name is Linwood Smith. I am Vice President of Risk Management for T. A. Loving Company, a general contractor located in Goldsboro, North Carolina. I am testifying on behalf of the Associated General Contractors of America, where I currently serve as the Chairman of the Multi-Employer Task Force. I also serve as Vice Chairman of the Loss Prevention Committee of the Carolinas Associated General Contractors.

I would like to extend my personal thanks to a fellow North Carolinian, Congressman Ballenger, for introducing H.R. 2879, which is much-needed legislation to correct OSHA's multi-employer citation policy.

Since 1973 I have worked as a safety and health professional, with my main objective being the prevention of injuries and illnesses in our workplaces. For 12 years I was a compliance officer with the North Carolina state-run OSHA program, where in that capacity I issued multi-employer citations. However, I did not issue citations to contractors where there was no exposure unless they created the hazard.

Today I work for a general contractor that has received four multi-employer citations, all on the same inspection. In our case, T. A. Loving Company did not create, was not aware, had no equipment involved and had no workers exposed to the hazardous condition that resulted in a violation. We had contractually asked for safety compliance from our subcontractor and received a safety plan for the conditions that were cited by OSHA. Despite these facts, my company was cited under a standard requiring the employer to initiate and maintain safety programs and provide for frequent and regular inspections of the jobsite. From this citation, it appears that OSHA has concluded that subcontractors' employees are in fact employees of T. A. Loving. OSHA has drawn this conclusion from the fact that a contract exists between the general contractor and the sub. I submit that OSHA's concept destroys the contractual relationship that exists between different parties on a construction site.

It is doubtful that the authors of the Occupational Safety and Health Act intended for contractors to be cited when they were not aware of the hazard and had no employees involved. My company example is not unique. General contractors all over the country are receiving citations for violations committed by their subcontractors. OSHA is now holding general contractors liable for the safety and health of all workers on the construction site. This enforcement policy was enacted without any formal rulemaking and lacking a legal basis. To the best of my knowledge, the only guidance for the multi-employer citation policy is contained in the OSHA field operations manual.

AGC can only speculate about the reasons why OSHA has changed its multi-employer citation policy. OSHA may be attempting to build case law in anticipation of several draft regulations such as ergonomics, written safety and health programs, and record-keeping. OSHA compliance officers may be issuing citations to both general contractors and subcontractors because it allows them to issue several citations for one violation.

An alternative option that may provide general contractors protection from multi-employer citations is to remove all references about safety from contract documents and deny all responsibility for safety. Holding a general contractor liable for violations of a subcontractor removes accountability from the subcontractor for safety and health improvements along with safety training.

Mr. Chairman, OSHA's multi-employer citation policy is not improving safety and health on construction worksites. Instead, this policy discourages general contractors from working with subcontractors to improve safety and health. It is also creating unnecessary friction, we believe, between contractors and subcontractors over safety issues.

AGC believes passage of H.R. 2879 will correct OSHA's current policy. I want to thank Chairman Ballenger and the Members of the Subcommittee once again for the opportunity to testify this morning. I will be happy to answer any questions that you may have about my testimony.

[The written statement of Mr. Smith is attached as Appendix F.]

 

Chairman Ballenger. Our next witness is Mr. Mike McMichael.

 

 

TESTIMONY OF MR. JAMES "MIKE" McMICHAEL, THE McMICHAEL COMPANY, CENTRAL, SOUTH CAROLINA傍ESTIFYING ON BEHALF OF THE NATIONAL ASSOCIATION OF HOME BUILDERS

Mr. McMichael. Mr. Chairman and Members of the Subcommittee, I am pleased to have the opportunity today to comment on the issue of Occupational Safety and Health Administration reform, and further to indicate the housing industry's support for

H.R. 2879, which is legislation to clarify the OSHA Act regarding responsibility on multi-employer worksites. My name is Mike McMichael. I appear before you today to present the perspective of a small business owner in regard to the impact OSHA has on my business and on the housing industry in general.

I must also mention that I am a member of the National Association of Home Builders. NAHB is a building trade association with over 190,000 general contractor and subcontractor member firms nationwide. In that capacity, I speak to you on behalf of the builders in your home state on this important issue.

I would like to commend the sponsor of H.R. 2879, Chairman Ballenger, for his leadership in pursuing OSHA reform in the House. Meaningful OSHA reform remains one of the housing industry's highest legislative priorities, just as it ranks highly for so many other small businesses across the United States. The issue of builder liability for the actions of their subcontractors' employees on multi-employer worksites is a top priority issue for the building industry.

Mr. Chairman, let me first state that home builders not only acknowledge a legal and moral obligation to provide their own employees with a safe workplace, but also share the concerns of this subcommittee for the safety and health of all men and women employed in the building industry. Further, we share the same ultimate goal of ensuring a safe working environment. Builders know that creating a safe work environment makes good business sense. It is no secret that safety saves lives and money. Builders have learned that the money saved through reduced workers' compensation costs, lost time due to worker injuries, and less time

spent on accident claims and reports can be converted to improvements in the way they operate their businesses, including the management of safety and health on the jobsite.

Opponents of OSHA reform have mischaracterized H.R. 2879 as weakening OSHA's ability to punish offenders. This legislation does nothing of the sort. What H.R. 2879 will do is to place the responsibility of worker safety and health squarely where it belongs, with the employer to whom the worker is employed. H.R. 2879 will force OSHA to end its practice of holding builders responsible for the employees of their subs and to return to a fair enforcement policy, a policy that recognizes and respects the contractual allocation of responsibility on a residential construction site.

To fully appreciate the impact that OSHA policy has on the residential construction industry, we must first understand the character of the industry. Home builders could not survive without subcontracting out a large portion of the work performed on a typical residential construction site. It is not uncommon for a builder to employ subcontractors to handle any number of tasks, including electrical, plumbing, roofing, painting, dry wall, just to name a few. Considering this, it is safe to say that a great number of workers on a given jobsite at any time are employed by someone other than the builder.

By entering into an agreement with the subcontractor, the builder does not intend to assume liability or responsibility for that subcontractor's employees. It is understood that the subcontractor is agreeing that he and his employees will do a specific job. Unless it is contained within the contractual agreement, the builder exhibits no control over and assumes no responsibility for these employees.

By continuing its policy of citing both the builder and the subcontractor for the sub's violation, OSHA demonstrates that it lacks a clear understanding of the residential construction process. They mistakenly assume that a builder is always at the construction site and in complete control of all activities at all times. One self-employed builder with no employees, such as myself, can have several scattered sites under construction and must travel back and forth between them all. This builder clearly cannot be at every site at all times. H.R. 2879 would change OSHA's current policy to recognize this fact.

I would like to offer just two examples of OSHA's multi-employer citation policy in action in the home-building industry:

(1) A Texas-based home builder was cited $25,000 when OSHA found that a subcontractor's employees were not using their own ladders properly. The builder did not create the hazard and had no employees exposed to the hazard at the time of the citation and was not even on the site.

(2) A builder in the State of North Carolina was sited $7,000 when the roofing contractor that was hired did not follow the proper fall protection requirements while applying shingles. The subcontractor was aware of the need for fall protection, and he was aware of the builder's requirements for having fall protection. The builder was not on the site at that time, yet he was still fined.

The home-building industry is perhaps more heavily regulated than any other, with virtually every aspect of our business being subjected to scrutiny under Federal, State and local laws and regulations. In fact, an SBA report illustrates that small businesses bear a disproportionate share of the cost of the Nation's regulatory burden. A significant share of these regulations come from OSHA. OSHA, to its credit, has made great strides in recent years to improve its perspective of the residential construction industry. I would point out the joint effort of NAHB and OSHA to produce the Jobsite Safety Handbook and the recent release of the Selected Construction Regulations for the Home Building Industry as examples of this effort. However, we are still faced with hundreds of pages of OSHA rules for construction. As a result, builders, like the vast majority of small business owners, are overwhelmed by the complexity and breadth of the OSHA requirements imposed upon them.

OSHA still mistakenly envisions a typical home builder as a high-volume contractor, someone with a perceived ability to spread production and regulatory costs across many projects. This is simply not an accurate assessment. The majority of our industry is comprised of truly small businesses that build fewer than 10 homes a year. A typical builder may have several homes under construction at scattered sites at any one time and cannot afford the resources to monitor every site at all times. Yet, OSHA continues to ignore this fact and hold the builders liable for the violations of their subcontractors by issuing multi-employer citations.

Mr. Chairman, I have a copy of the Occupational Safety and Health Act, and I have read through it. Nowhere can I find any mention of my responsibility for the employees of my subcontractors. To date, OSHA has never issued a regulation or promulgated a rule that holds builders liable for violations of others' employees. In fact, the current citation policy has never even been scrutinized by the regulation promulgation process. While there is clearly a moral obligation for an employer to ensure that everyone on a worksite is safe from recognized hazards, the OSHA Act states that employers are accountable only for the safety and health of their own employees. It is for this reason that Congress should direct OSHA to revise the policy for holding builders responsible for sub's violations. OSHA's multi-employer citation policy should be discontinued; builders should not be cited for their subcontractor's violation if the builder has no employees exposed to the hazard. Congress can and should reverse OSHA's multi-employer citation policy by enacting H.R. 2879.

In conclusion, I would like to reiterate that the members of NAHB are committed to worker safety and health. Reform opponents wrongly assert that those in favor of this legislation are attempting to gut efforts to protect workers. There is no basis for such a claim. Irrespective of the level of government involvement through OSHA, those who really make the difference in worker safety are employers and their employees. H.R. 2879 seeks to solidify the responsibility for safety and health that each employer has for his or her employees.

We are firmly committed to OSHA reform in the 105th Congress, and we intend to work with the Members of the appropriate Committees and others in the House of Representatives to deliver meaningful, responsible OSHA reform such as H.R. 2879.

Thank you, Mr. Chairman.

[The statement of Mr. McMichael is attached as Appendix G.]

 

Chairman Ballenger. Next we have Mr. Taylor. Go right ahead,

Mr. Taylor.

 

 

TESTIMONY OF RONALD W. TAYLOR, ESQ., VENABLE, BAETJER & HOWARD, BALTIMORE, MARYLAND傍ESTIFYING ON BEHALF OF THE UNITED STATES CHAMBER OF COMMERCE

Mr. Taylor. We are both from Baltimore, Mr. Chairman.

Mr. Chairman, my name is Ron Taylor. I am an attorney with the Baltimore office of the Baltimore, Washington, northern Virginia and suburban Maryland law firm of Venable, Baetjer & Howard. I thank you for the opportunity today to appear on behalf of the U.S. Chamber of Commerce to present its views on two important pieces of OSHA reform legislation, H.R. 2871 and H.R. 2661. I have previously prepared, Mr. Chairman, formal remarks, which in order to remain within the time allotted to me I would ask be made part of the record, and instead I would highlight various aspects of that.

The purpose of H.R. 2871 and 2661 is clear and simple. It is really designed to improve the rulemaking process at OSHA. Very simply, what those bills provide is that OSHA, once it determines a need for a hazard or a need to amend a hazard to further effectuate the purposes of act to ensure that employees have safe and healthy workplaces, and in fact the most safe and healthy workplaces in the world, that OSHA review, appoint a panel to undergo peer review for the scientific and economic basis for that standard or for its modification and for the relevance of that to the industries that are affected. This is not an alien or unworkable concept, and will further the act's goal of requiring that American working men and women are protected from real hazards by sound standards.

A couple of points to make. First, the pending peer review legislation will not interfere with OSHA's mandate to promulgate standards, but rather will help the agency ensure that it meets its mandate by assuring the qualitatively its standards are sound and appropriate. The legislation does not alter the fundamental requirement of OSHA to promulgate standards where scientific evidence indicates that there is a need to do so in order to further the interests of safety and health in the workplace. Rather, what these bills do is assure that the risks that OSHA perceives are critically assessed. By doing that, it will further the mandate of the act.

Second, peer review will not stymie the promulgation of standards. Peer review is conceptually similar to a concept that was originally part of the act and recognized by the original passers of the act back in 1970. That is the notion of national consensus standards.

When the Act was initially promulgated, OSHA was permitted during the first two years to adopt standards which had been promulgated by non-governmental agencies as a result of a national consensus-making process. The reason that it did that was because that process affords an opportunity for parties of diverse viewpoints who have a body of knowledge appropriate to that sort of rulemaking, to come up with a standard which is workable and effective.

Peer review will provide a conceptually similar basis, and thus will result in standards which are sounder and more credible and thus more likely to receive wide acclaim within the regulated industry. That furthers the goal of the act of achieving voluntary compliance, voluntary safety for all working men and women in the United States. OSHA itself has recognized that the peer review process can assure that the data supporting the method has been scrutinized and found acceptable. That recognizes the salutary purpose and goals of these two bills.

Third, peer review will not slow the development of standards. It is hard to imagine making the development of standards any slower than it already is, but peer review will not slow this down because, first, it does not affect OSHA's mandate to promulgate standards where a need arises. Rather, what it will do is qualitatively enhance this process so that there is some sort of agreement on the need, and thereafter the procedure should go faster, not slower.

OSHA has recognized this. In January of this year, in the preamble to its own new respiratory standard, OSHA noted that peer review should make the rulemaking process proceed more quickly than if OSHA were itself to evaluate the data that had not previously been scrutinized by an expert body.

Finally, this is not an alien or unworkable concept. In fact, the statute itself already provides for OSHA's use of an advisory panel. Peer review is nothing more than an enhancement of a system that already exists within the statutory framework that is out there.

Earlier this year, Deputy Assistant Secretary Emily Sheketoff at OSHA noted that OSHA could best achieve its goal of assuring workplace safety and health for all working men and women in the United States by everybody working together. Peer review will afford a forum for doing exactly that, and thereby achieve voluntary compliance, workable, sound regulations that do not lessen or detract from the laudable goal of assuring that every working man in the United States has a safe and healthy workplace.

Again, I thank you for the opportunity to present the views of the U.S. Chamber of Commerce this morning, and at the appropriate time I would be happy to answer any questions you may have.

[The statement of Mr. Taylor is attached as Appendix H.]

 

Chairman Ballenger. Thank you.

Mr. Hartman, please proceed.

 

 

 

 

 

TESTIMONY OF MR. JERRY HARTMAN, PRESIDENT, REESE PRESS, INC., BALTIMORE, MARYLAND傍ESTIFYING ON BEHALF OF THE PRINTING INDUSTRIES OF AMERICA, INC.

Mr. Hartman. Thank you. Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity to testify on H.R. 3519.

I am Jerry Hartman, President of Reese Press of Baltimore. Reese Press specializes in color printing. We employ 50 people, several of whom use chemicals on a daily basis. I am also appearing on behalf of the Printing Industries of America, which represents over 14,000 printing companies in the United States.

Printing is a major industry in this country, employing more than a million workers. The majority of printers have fewer than 20 employees. Small companies cannot afford to hire a person to track down and take care of all the chemical information required by the Hazard Communication Standard. However, if we in industry can get better and more reliable safety information at far less expense, we can make a safer work environment. The last thing that any company can afford is to have valued employees injured. In order to avoid accidents, my supervisors need access to accurate and current information that is easy to locate and understand, particularly on the second and third shifts where there is not a manager on duty. While we do our best to properly use Material Safety Data Sheets, much can be done to improve this information.

Several types of electronic MSDS services are on the market today, including on-line, CD-ROM, and fax-on-demand services. Several years ago another printer, Bob Murphy of Japs-Olson Printing purchased a fax-on-demand service. In brief, all the phones on Mr. Murphy's shop floor have stickers with an 800 number. At any time, an employee can call that 800 number to get the current MSDS on any chemical. If an accident occurs, the fax-on-demand service provides medical and cleanup advice. Gentlemen, that is the 911 number in our industry. Bob had this service only for a few months when an employee got solvent in his eye. His coworkers called the service and took the employee to the hospital 2 miles away. By the time they arrived at the hospital, the service was on the phone with the hospital. Instead of the employee possibly losing an eye, he was able to go back to work that very day.

To me, this is just what the Hazard Communication Standard was supposed to accomplish朴rovide training on chemicals and help companies protect employees.

It should come as no surprise that I signed up for the fax-on-demand service. For about $150 a year, I can ensure that my employees have access to up-to-date information and that they will get assistance if something happens.

Unfortunately, OSHA does not fully recognize the utility of the electronic systems. Some OSHA inspectors have cited employers for using electronic systems and not maintaining a paper backup system, claiming the information is not always readily accessible such as in the case of a power outage. However, I would argue that OSHA is missing the boat. For 99 percent of the time, the electronic system is far better. It is much more likely to be up to date and is available by fax or phone within minutes. We can easily locate information on the standardized forms, and the service has technical experts available if needed.

Even in the case of a power outage in this modern age of cell phones, it is certainly easier and faster to dial a phone number than it is to find one specific MSDS in a file cabinet in the dark. However, if OSHA does not fully recognize them, many employers and particularly smaller employers fear relying on these systems.

Passing H.R. 3519 would ensure that electronic systems fulfill the requirements of the Hazard Communication Standard to ensure that workers have the information they need to handle chemicals in the workplace and to deal with emergencies.

While my company relies on an electronic MSDS service, we still keep paper copies as well. Without question, MSDSs need to be improved. When we receive MSDSs with products we purchase, the information in many cases is in different formats. In just a quick look through our files, I found the information displayed in at least a dozen different ways. For example, the protective equipment and medical information is on the second and third pages. When I am working with employees who may not have much knowledge of chemistry, it is hard to explain why a colorless, odorless liquid might be dangerous. If the safety information is buried in the middle of an MSDS, sometimes employees pay just as much attention to the information as the manufacturer apparently does墨ot much.

We, as employers, want to get over this hurdle by always being able to locate the information we need at a glance. Standardizing MSDSs will be a significant step forward in worker safety.

Lastly, H.R. 3519 would simplify the language used on MSDS forms. It is something of a joke in our industry that one MSDS said, "Avoid ocular contact" instead of "Keep this out of your eyes." There is absolutely no need to use wording that does more to mystify than clarify. While some of the information on MSDSs needs to be targeted to medical personnel and toxicologists, simplifications can be used in the sections pertaining to handling, first aid, and cleanup. If these sections are clear, there will be less need for medical personnel and toxicologists since fewer incidents would likely occur.

Most employers want to ensure that their workplaces are safe for their employees and themselves. H.R. 3519 would be a significant step forward in making the workplace across American safer.

Thank you for this opportunity to share my views with you, and I will be happy to answer any questions.

[The statement of Mr. Hartman is attached as Appendix I.]

 

Chairman Ballenger. Ms. Seminario.

 

 

TESTIMONY OF MS. MARGARET M. SEMINARIO, DIRECTOR, OCCUPATIONAL SAFETY AND HEALTH DEPARTMENT, AMERICAN FEDERATION OF LABOR - CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO), WASHINGTON, DC

Ms. Seminario. Thank you very much, Mr. Chairman, Members of the Subcommittee. My name is Peg Seminario. I am Director of Safety and Health for the

AFL-CIO. I appreciate the opportunity to testify today to present the AFL-CIO's views on a number of pieces of legislation to amend the Occupational Safety and Health Act. I have submitted a written statement which deals with all six bills and will try to summarize our position in the time that is allotted to me.

The federation has had a long and deep involvement in efforts to improve safety and health protection for all American workers and in the Occupational Safety and Health Act. We were an active participant in bipartisan efforts to enact OSHA in 1970, and since that time we have worked hard for the effective implementation of the law.

During the past 28 years we have seen how the OSHA law, its standards, enforcement, and assistance program can make a real difference in improving safety and health and saving workers' lives in reducing exposure to toxic substances like asbestos. That is why we appear here today to oppose the proposed legislation to amend the Occupational Safety and Health Act. It is the AFL-CIO's view that these measures would significantly decrease safety and health protection for American workers.

These bills and others introduced in recent years seem to be based on the premise that OSHA standards and enforcement have been too strong, that employers' obligations to protect safety and health are too great, and that workers have too much safety and health protection. The reality of the situation, though, shows a very different picture.

Last year 6,112 workers were killed by traumatic injuries and an estimated 50,000 workers died from occupational diseases. More than 6.2 million workers in the private sector were injured. The cost of these injuries is enormous. Put at about $171 billion a year, that cost is equivalent to the estimated cost of cancer and cardiovascular disease. It is a very big problem. And even though progress has been made, we have some very serious problems that remain and new problems have emerged.

When you look at employment in the country, when you look at safety and health, what you find is just as the employment has shifted, so has the safety and health burden. One half of all injuries that occur that are reported now occur in service, finance, wholesale, and retail trade sectors; 50 percent of the injuries, 3.1 million workers are injured in those sectors each year. When you look at the data, you see that in some of these industries, like health care, the injury rates are higher now than they were 20 years ago when OSHA was passed. The injury rate today among nursing home workers is now higher than the injury rate for construction workers. We have problems like ergonomic hazards, infectious diseases, poor indoor air quality, exposure to solvents and other toxic chemicals. Congress' efforts and, indeed, our collective efforts and energy should be devoted to addressing these serious problems which threaten the safety and health and workers' lives.

The measures that the committee is considering today are admittedly not as far-reaching as some earlier legislative proposals. However, the basic thrust is the same: to reduce the responsibility of employers to provide a safe workplace, to impose new requirements on OSHA in the standards-setting process, and to limit workers' rights under the law. The effect of these measures in our view would be to reduce safety and health protection for American workers, and that is why we must oppose them. Some of our specific views on and objections to these measures are as follows:

H.R. 2869 would create an audit privilege that would allow employers to keep secret important safety and health information and seriously undermine OSHA's ability to enforce the law, particularly against willful, egregious, or criminal violators. The disclosure exemption is very broad and far-reaching, since most safety and health audits and assessments conducted by employers are not specifically mandated by section 6(B)(7) of the Act and OSHA standards. The bill would permit employers to withhold from OSHA exposure monitoring, medical surveillance results for workers exposed to known hazards like silica and mercury since there are no specific assessments required for those hazards. We are also deeply concerned that the proposed bill would serve to limit worker and union access to this important safety and health information since it would be impossible for OSHA to enforce its access to medical and exposure record standards.

H.R. 2661 and 2871 are similar measures requiring OSHA to engage in peer review in setting standards. We believe that the proposed bills would create a process that is closed and not subject to public scrutiny, in contrast to the current process which allows for review in public and allows participation by everyone with an interest in the issue. We believe that peer reviews would not serve to strengthen the scientific data analysis but rather would delay rules and provide new opportunities to those who oppose rules to block or delay them.

H.R. 2873 would require OSHA to conduct individual specific risk assessments and cost-benefit analyses for each industry that is affected by a particular standard. This is a very, very difficult burden for OSHA to meet. When you look at rules like the Hazard Communication Standard, it applies to all employers. To do a specific risk assessment and cost-benefit analysis on every industry affected by that rule would make it impossible to issue a rule.

H.R. 2879 would prohibit OSHA from citing an employer for a violation if the employer has no employees, has not created a violation or assumed responsibility for ensuring that other employees at the worksite comply. This really would deal with multi-employer worksites, and some of those worksites are among the Nation's most hazardous. The OSHA policy for multi-employer responsibility or primary contractor responsibility came out of some very significant tragedies: the L'Ambiance Plaza building collapse in 1987 which killed 28 workers; the 1978 Willow Island cooling tower collapse which killed 51 workers; and the 1989 Phillips Petroleum explosion which killed 23 workers. All were multi-employer worksites and the primary contractor or owner had failed to carry out its responsibilities. That is why the policy exists today.

H.R. 3519 deals with Material Safety Data Sheets and OSHA's Hazard Communication Standard and would require OSHA to promulgate a rule permitting access by electronic means and also to come up with a standardized format. We believe this proposal is well intentioned. We think there are very serious problems with data sheets and information on chemical hazards. We supported more standardized formats when the standard was issued some 15 years ago. Under the current rule, the data sheet is the primary means for conveying information and if, as this bill would suggest, that information doesn't have to be available for 24 hours. That's a real problem because workers wouldn't have the kind of ready access that Mr. Hartman indicated. We don't have a problem with electronic access. We do have a problem with a 24-hour delay before information has to be provided to workers. On the question of a standard format, again, we think it is a good idea. It is something we have supported. But what has evolved in the last 15 years is that data sheets serve a large number of purposes. They now satisfy chemical manufacturers' obligations not under OSHA but also community right to know laws and a number of State laws. So what has happened, it has become a multipurpose sheet which really isn't serving the purposes in the workplace. But to require OSHA to come up with a standardized format isn't quite as easy as it would seem. A lot of effort has been directed to this end, years of effort, and nobody has been able to do it. The government is involved in an international effort at the present time to try and work with other countries to harmonize internationally labels and data sheets, and there is progress there. I would suggest that is a better avenue for trying to come up with a uniformed format and that we should direct our efforts towards that end of international harmonization rather than just a standard format for OSHA.

Mr. Chairman, as you and Members of the Subcommittee know, the AFL-CIO is not opposed to all efforts to amend the OSHA Act. We supported very strongly efforts to reform OSHA in the 101st and 102nd Congresses. And we also have endorsed the recent compromises on two bills, H.R. 2864 and H.R. 2877, which were reached between Members of this Committee and endorsed by the House. We believe this compromise reached earlier was a constructive step in changing the atmosphere and the legislative discussion on OSHA, and we thank you for steering that legislation through the House without further amendment and for recommending that the Senate pursue the same course of action.

We would hope that with that step, it will now be possible to turn our attention to constructive efforts to address the very real serious problems that workers face and the real deficiencies in the OSHA law. In our view, these include the exclusion of millions of State and local public employees from any coverage under the OSHA law; the failure of the current whistleblower processes and rights to protect workers who raise job safety concerns; the failure of the OSHA standard-setting process to protect workers in a timely manner; and the gross deficiencies in the OSHA budget.

In our view, these are the real issues in job safety and health, the real problems that American workers are facing. There have been bipartisan efforts in the past to address some of these issues and we hope that those kinds of efforts could be resumed.

In closing, the AFL-CIO believes that the test for judging any legislative proposal to amend the Occupational Safety and Health Act must be whether or not it improves safety and health protection for American workers. For H.R. 2661, 2869, 2871, 2873, 2879 and 3519, we believe the answer is no, and we urge you to reject these measures and to turn your attention to the major safety and health issues confronting the Nation.

Thank you.

[The statement of Ms. Seminario is attached as Appendix J.]

 

Chairman Ballenger. Thank you, Mrs. Seminario.

At this time, I would like to remind Members of the Rule 2 that imposes a 5-minute limitation on questions. I will start the questioning, if I may.

Ms. Seminario, you mentioned it in your statement, and I don't remember how many of the people here will remember it, but Congressman John Boehner asked OSHA to inspect his office. OSHA inspected his office and found about 15 violations/citations. I don't know what it added up to; it probably would have been a couple thousand dollars if they had been outside the government. In other words, the government has kind of a free ride, and you mentioned that in there. But I am just curious. Does the AFL-CIO have safety audits for their operation as far as your office is concerned?

 

Ms. Seminario. What we have, Mr. Ballenger, is sort of a Joint Safety and Health Committee at the AFL-CIO. I am on that committee. One of my staff members has served on it. That position currently has been vacant for the last month and will be filled in a week by an industrial hygienist. Also, members of our local unions are on that committee, along with someone from our human resources department as well. And we need to discuss issues and, indeed, there are issues: video display terminals and indoor air quality being the major ones; concerns of noise exposures; some chemical exposure in our production.

 

Chairman Ballenger. But do you have an audit, a written audit?

 

Ms. Seminario. As far as an audit, per se, no, we don't conduct ongoing audits. We do address problems as they arise. We have had audits on certain issues. For example, indoor air quality had a number of audits because there were concerns about the indoor air quality, and those were addressed. We had an outside expert come in to look at things and to prepare a report, which was shared with everyone. Similarly, with respect to our reproduction mailing room, there are some current concerns about some chemicals. I had somebody come in and look at those issues.

 

Chairman Ballenger. Okay. I wonder if each individual, since each of you represent kind of a different bill, would have, starting with Ms. Brumm, say, a critique of Ms. Seminario's critique of each particular bill. Ms. Brumm, do you have a feeling about that?

 

Ms. Brumm. Well, I think there is some concern that we are trying to hide information from either OSHA or from members of our union organizations. And I first would like to start off with a point of member union organizations. Generally, we always do have a joint subcommittee, obviously, with the union and they have full access to all of that information. We believe in sharing the information as much as possible.

The concept that we are going to try and hide something from OSHA is entirely wrong. What we are trying to do is create an environment to have a progressive safety program where we are continually identifying and looking at larger overall issues. What we would like to do is to be able to continue to do that without the threat that if someone comes in they can try and find something against us.

 

Chairman Ballenger. Mr. Smith.

 

Mr. Smith. Did you want me to refer to the audit?

 

Chairman Ballenger. Well, actually, no. Your bill is more interested in contracting.

 

Mr. Smith. Okay. Certainly. I appreciate the opportunity to respond.

First, you know, and it's pretty important, I think, OSHA has never had a multi-employer citation standard. There has been no rulemaking. The only access we find or the only basis to their citations is in their Field Operations Manual. We certainly are for accident prevention; that's our number one goal.

I am a little unique in that when I worked for OSHA, and I had the opportunity to issue citations. I learned that citations and accident prevention sometimes may be very different. We spent a lot of time talking about enforcement. We need to spend some time talking about cooperation.

If you go back and look at the original bill in 1970 and the original authors, you will see in the preamble to the Act that there was, I think, 12 subparts. I have not looked at this to prepare for my testimony, but if you look, of maybe 12 subparts, approximately 9 of those address means other than enforcement to achieve compliance.

We are, of course, very interested in jobsite safety. We are interested in worker safety. We don't believe the best way to achieve it is by holding one party on that construction site responsible for the violations of everyone.

 

Chairman Ballenger. Mr. McMichael.

 

Mr. McMichael. I am not particularly familiar with the catastrophic accidents that Ms. Seminario referred to. I think my basic point to be made here is that the

multi-employer citation policy itself, aside from the fact that it is not an official rule, has never gone through the promulgation process, per se.

 

Chairman Ballenger. Excuse me. Could you pull the mike over?

 

Mr. McMichael. I am sorry.

The particular point I would like to make this morning is that this citation policy is clearly inconsistent with the language of the Act itself. The Act itself has never even been modified to allow for this policy. The policy itself has never been given the scrutiny of the normal regulatory promulgation process. It hasn't been tested in rulemaking procedures. It is merely a field policy that does not have a basis in the Act itself. Not only is it unfair, but if we have no control over the hazard, we have no direct involvement in the hazard, and we have no one exposed to the hazard, there is no basis in fact for us to be cited for the hazard itself.

 

Chairman Ballenger. Mr. Taylor, I hate to cut myself off, but if I am going to play by the rules and observe time restraints, I guess I will maybe have to come back to this later.

 

Mr. Taylor. Thank you.

 

Chairman Ballenger. Major Owens.

 

Mr. Owens. Mr. Chairman, I would like to yield for the first 5 minutes to my colleague, Mr. Roemer, who has an expert witness with him who has to go.

 

Mr. Roemer. I thank my good friend from New York and the gentleman who serves on the full committee with me and works so hard on so many of the education issues.

My good friend with me today is my son Patrick, who has done the entire subcommittee a great service by drawing all over my prepared remarks. So I can't see them any longer, and I have to talk off the top of my head for hopefully just a minute or two.

I am proud to sit here and listen to the testimony here this morning from people from across the country, people from different States and different regions, and from my good friends at the AFL-CIO. I do want to say that my very first hearing back in 1991, that I sat in on as a freshman Member of Congress, was a hearing on the tragedy that happened down in the south when doors were nailed shut in a poultry plant and workers could not get out of that plant.

We certainly have many, many things to continue to be vigilant about, to continue to work hard on, to continue to improve on, to ensure safety and productivity and higher morale for the working men and women in this country.

I salute the AFL-CIO's work on the compromises that we were able to obtain on H.R. 2864 and H.R. 2877, and I do say, in light of those compromises, that we need to continue to work together in some additional areas.

In one year, 6,000 workers are killed from traumatic injuries and 50,000 workers die from occupational diseases. That's in one year. That equals the number of people killed in the Vietnam War, a 20-year war.

However, when it comes to bills such as H.R. 3519, a bill that I have worked hard on, I think that in terms of standardization, where the MSDSs are important safety documents, we do need to make sure that they do not change dramatically from manufacturer to manufacturer or from State to State. I think that there are some improvements that we can make there in uniformity.

Secondly, in terms of the reading level, I think Mr. Hartman stated the case well. It doesn't do anybody any good to talk about things such as "avoid ocular contact." I am not sure I understand that one too well, and I did graduate work with a Master's and a Ph.D. I think we can use more common sense and simpler language for everybody involved in reading those documents.

Thirdly, as we move into a more technologically advanced world, we should take advantage of using that technology. Ms. Seminario also said that those documents, those paper documents, can sometimes be awkward. They can be difficult to deal with. Maybe my bill isn't perfect, but maybe we can work on some ways to utilize technology and incorporate your concerns, Mrs. Seminario, to improve the 24-hour period that you remarked about in your previous testimony.

I am excited about some of the possibilities in H.R. 3519. However, I continue to be very committed to safety in the workplace, and continue to be very committed to many of the AFL-CIO's concerns, but I do think that on H.R. 3519 there is a lot of common sense hopefully embedded in that bill, and I encourage the Subcommittee to take a good, careful look at that.

With that, I yield back the balance of my time and, again, I want to thank the distinguished gentleman from New York who yielded me time.

 

Chairman Ballenger. Thank you, sir.

Mr. Hoekstra.

 

Mr. Hoekstra. Thank you, Mr. Chairman. The thing I always like about these hearings is that everybody is right. You know, I think there is reasonable testimony that says there are issues with how OSHA is being implemented today. And there are perhaps reasonable concerns as to what the proposed solutions are.

That is why I hope everybody listened seriously to the Subcommittee Chairman's comments saying that, you know, let's work together. Because I can tell you that as long as there are serious issues about the effectiveness and the costs of OSHA and how it may hurt our competitiveness and how it may not promote as much safety in the workplace as we would like,

it is unreasonable to expand that to some of the other groups that we may want to expand it to or some people may want to expand it to.

You know, the things that we are talking about here釦he audit privilege, peer review, cost-benefit analysis, electronic access謀on't appear to be and shouldn't be that controversial. So, I hope that we can get the different groups together to work out compromises like we have in the other couple of OSHA bills already.

Ms. Seminario, regarding the first bill, regarding audit privilege, you guys do audits; correct?

 

Ms. Seminario. Right.

 

Mr. Hoekstra. Or you have your safety committee, and you have indicated some of the things that you do within the AFL-CIO. If we asked you to turn over the minutes and the records for the last calendar year, for 1997, would you give those to Mr. Ballenger for our review and committee review?

 

Ms. Seminario. I must say I don't even really know what exists. One thing I should tell you is that my union counterpart on the safety and health committee is the chief shop steward for our OPIU clerical unit, who also happens to be my secretary and has been for many, many years. And so much of what we do is obviously in the form of joint daily communication.

As far as turning things over, and the issue of audit privilege, we had discussions, I would say maybe 5 years ago now, when we were considering OSHA reform legislation, very significant discussions with a lot of industry people trying to come to agreement on some of those measures at that time. And ultimately we didn't. This was a very big issue for a lot employers, and we understood that.

The question here, I think, is how do you basically set up a situation where you are encouraging the kind of reviews and audits of safety and health, but at the same time that doesn't become a shield essentially to willful misconduct?

 

Mr. Hoekstra. I know what the question is about. The bill . . .

 

Ms. Seminario. Yes.

 

Mr. Hoekstra. But I am more interested in the answer to the specific question that I asked you.

 

Ms. Seminario. In terms of what we would turn over?

 

Mr. Hoekstra. No, no, not what you would turn over. Would you turn over all of the documents? I mean, you have, I am assuming, a lot of clerical workers. There's the whole issue with video terminals, keyboarding and those kinds of issues. You know, there are ergonomic standards being considered. We will probably vote again later this summer on whether OSHA should or should not be allowed to promulgate those standards.

I am asking you the same question that OSHA would ask you when they come in the door. If they came in, you would have to turn over all of your documents to them. I am asking whether you will turn those documents over to this Subcommittee so that we can review those documents as we consider legislation this year.

 

Ms. Seminario. Mr. Hoekstra, I really don't feel comfortable answering that question. I mean, you know better than anyone that there has been a lot of requests for documents from yourself and the full committee and other subcommittees to the AFL-CIO.

 

Mr. Hoekstra. But this is a very simple question. If OSHA were to come in today . . .

 

Ms. Seminario. If OSHA came in today, yes, we would turn over those documents.

 

Mr. Hoekstra. You would turn them all over to OSHA?

 

Ms. Seminario. In terms of the context of that inspection and what they were looking at, the documents dealing with safety and health, we would share that information with the government with respect to safety and health in the workplace. That is part of that process.

 

Mr. Hoekstra. Right. Okay.

 

Ms. Seminario. That is something we would do.

 

Mr. Hoekstra. Right. So you would turn them over to OSHA, but you wouldn't turn them over to us? I am just asking.

 

Ms. Seminario. I don't know. I don't know. As I said, that is for the purpose of an inspection in the workplace dealing with those conditions. That is their job, to look at that.

 

Mr. Hoekstra. It is our job. We write the legislation. Mr. Ballenger has oversight for that law in this subcommittee, and that is why we are considering this. And I am hoping that Mr. Ballenger and Mr. Owens will join me in submitting a letter to you, to the AFL-CIO. I am just trying to put you in the same position that a lot of businesspeople believe that they are in when OSHA can come in and demand these documents. They are uncomfortable with it, and apparently you are no different because you won't give it to us.

 

Ms. Brumm. May I comment on this?

 

Mr. Hoekstra. The red light is on, and my time has expired. But, let the record show that you would not agree to provide us with these documents, that you would be uncomfortable doing so, and that you would prefer not to provide us with that information. Is that correct?

 

Ms. Seminario. Well, no, that is not correct. I said I don't know. I said we would provide them to OSHA.

 

Mr. Hoekstra. If we would follow up with a letter, would you write us, give us a yes, or no?

 

Ms. Seminario. Yes.

 

Mr. Hoekstra. And if it was a yes, you would give us those documents?

 

Ms. Seminario. I would respond to your letter. Yes, I would.

 

Mr. Hoekstra. Great. Thank you very much.

[No letters were submitted for the record by Mr. Hoekstra.]

 

Chairman Ballenger. I was going to ask . . . well, Ms. Brumm, did you have a comment? Please keep it short.

 

Ms. Brumm. Real short. The whole issue with the legislation is when OSHA comes in, say, on ergonomics and would ask everything that you are doing, we would again provide everything that we were doing, and they would then assess whether or not we were doing it. If they were to get access to our audits, they could see that ergonomics had been an ongoing issue for many years with us, and at that point in time may decide that we haven't done enough. So it is turning it into a value judgment, which is why, again, we are reluctant and the AFL-CIO would be reluctant to release that information.

 

Chairman Ballenger. All right. Major Owens.

Are you in a hurry, Mr. Martinez?

 

Mr. Owens. I will be here. Are you in a hurry, Mr. Martinez?

 

Mr. Martinez. No, go ahead.

 

Mr. Owens. I want to thank you, Ms. Brumm, for stating that OSHA inspections take place only once every 100 years. Theoretically, they have only enough people to inspect only once every 167 years. There is an attempt to give the impression that OSHA inspectors are hanging around all the time.

Let us assume that the self-audit identifies a serious violation and the employer refuses to correct the problem. This is a critical point. Why would they refuse to correct the problem? Because I think, as your statement and your self-audit shows that correcting problems requires a lot of work and resources. I mean, you do a very thorough job, and I am sure your employer wants you to do a thorough job because it saves costs, enhances profits and this is good business to identify these problems and take care of them.

But the problem is, if you identify a problem and don't take care of it, if you refuse to correct a serious violation, it is a prima facie willful violation. Is it your testimony that OSHA should be denied access to proof of that willful violation? Is it your testimony that we should condone a willful violation and protect employers who commit them?

 

Ms. Brumm. I would, again, like to restate that self-audits are something that we do voluntarily. No one is making us do it.

 

Mr. Owens. Yes.

 

Ms. Brumm. Which means the issue with us is not so much if OSHA comes in and sees an item that is identified, that is a willful violation. In my opinion, that is not going to happen in our corporation. However, what could happen and what has happened紡nd I think the reason why most people are afraid of this吠s what happened with, I think it was Pepperidge Farm, where OSHA came in basically used the audit as a road map and decided that they hadn't done enough. That is what we are afraid of. If, for instance, they come in and see that we have been working on this for this long period of time, and they decide that it is not enough. A willful citation would follow.

 

Mr. Owens. I think the legislation is not as direct and specific as you are. But thank you.

Mr. McMichael and Mr. Smith, isn't it a fact that a general contractor may require a subcontractor, as a condition of employment, to assume liability for and to reimburse the general contractor for any OSHA penalty the general contractor may pay as a result of a violation received on a particular job?

You are the contractor. You are in control of the situation. The Federal Government, in any form of government contract with you, looks to you to assume responsibility for everything. If the work is shoddy, you are responsible. If it is improper work, you are responsible. You are responsible for your subcontractor. Why should you not be responsible for the subcontractor in every respect?

 

Mr. Smith. Before I respond to that, and I certainly want to respond to it, let me make one comment on the audit process, if I may.

 

Mr. Owens. My first question is, Can't you write that in the contract? You are in control of the subcontractor. In the subcontract, can't you hold them responsible for any fines you receive as a result of violations that they commit?

 

Mr. Smith. I assume that you are talking about indemnification agreements. And that would vary State by State, regarding what laws are in various States probably.

 

Mr. Owens. You can't make a subcontractor comply with what you want them to comply with?

 

Mr. Smith. In some instances, yes, but not in all instances, not in all States, in all areas. We have different legislation on that around the country, as I understand it, and I am no authority on this subject.

 

Mr. Owens. In your State, can you hold them responsible?

 

Mr. Smith. For certain actions, yes, but not for all actions.

 

Mr. Owens. You can move to another subcontractor if he won't assume responsibility, can't you? Can they accuse you of harassment if you say, "If you won't be responsible, I will get another subcontractor who will be"?

 

Mr. Smith. I have never entertained those thoughts. I have . . .

 

Mr. Owens. Mr. McMichael, what about you?

 

Mr. McMichael. I suppose that, contractually, I could enter into any agreement with one of my subcontractors if he so desired to enter into that agreement.

Mr. Owens. If he so desired. You are in charge. You don't give him the subcontract if he doesn't agree.

 

Mr. McMichael. Well, I am only in charge if I have a number of individuals who can perform the work and are willing to perform the work. If I am in a situation where I have only one person who can perform the work, then he is pretty much in charge in terms of whether or not he wants to enter into a contract.

The reality of the situation is that I can control the overall, general scope of the work and that I can control the requirements for the performance of the work. That is why, in fact, I guarantee them to the homeowner because I am controlling the requirements for the performance of the work.

In terms of the subcontractors, I can certainly include in my contract that the subcontractor is responsible for complying with all safety, regulatory safety requirements.

 

Mr. Owens. You can? You can also make them pay?

 

Mr. McMichael. I can certainly point out to him on the jobsite when I see that he is in violation of one.

 

Mr. Owens. Can't you make him pay for it; write that into the contract?

 

Mr. McMichael. I have never been able to.

 

Mr. Owens. If you get fined, you must pay for it.

 

Mr. McMichael. I suppose that could be. I don't know.

 

Mr. Owens. Thank you. Thank you.

Just one quick question, Ms. Seminario, in terms of the peer review process. Will we have a better public discussion and more input into the process if we go to peer review or will we have less?

 

Ms. Seminario. We think you will have less because it is a closed process. Mr. Ballenger asked for an example of where things might be delayed, and ergonomics may not be a good example because of all the controversy about it, but that is really the heart of the issue as to whether or not we should send that standard and the science off to the National Academy of Sciences where the experts can decide whether there is science on it, or whether we should move

into a public process where everyone who is involved with the issue has the ability to come in and comment on the science, comment on the analysis, comment on the cost-benefit analysis.

That is the way the process works now. We think that is a much better process because it gets all the issues out there, gets a much fuller review. The closed process tends to be one that the industry, quite frankly, can dominate and particularly would be able to under the construction of this bill.

 

Mr. Owens. Thank you.

 

Mr. McMichael. I would like to respond to that.

 

Mr. Owens. I have run out of time. I am sorry.

 

Mr. McMichael. Well, I see that the AFL-CIO had plenty of time. I would just like to have just a moment to answer the question.

 

Chairman Ballenger. Your compatriot is going to have the next time on here. I am sure he will give you a chance to respond to that. Also, I understand that

Mr. Hartman may have to leave a little early., so when the time comes, don't worry, just get up and leave.

 

Mr. Owens. Mr. Chairman, since we have such expert panelists, I would like to ask unanimous consent that we be allowed to submit written questions to these witnesses.

 

Chairman Ballenger. Sure.

 

Mr. Owens. And get answers for the record.

 

Chairman Ballenger. Without objection. I am sure it is acceptable to all of you to accept written questions.

 

Mr. Owens. Thank you.

[No letters were submitted for the record by Mr. Owens.]

 

Chairman Ballenger. Congressman Graham.

 

Mr. Graham. Thank you, Mr. Chairman. Just everybody slow down a little bit while I get to talk.

Mike, thanks for coming up. I am sorry I didn't introduce you. Half of South Carolina is here today, so I have been running around trying to say hey to everybody. Mr. McMichael is my constituent, and I am very proud for what he has been able to do for our area and for coming up and getting involved.

Ms. Seminario, let me ask you a question. If you had a program anywhere, on any topic, and you were asked to voluntarily comply and participate and make things better, and if you found out that by doing so it could hurt you financially, would you be more likely to do so or less likely to do so?

 

Ms. Seminario. Well, I think you are getting at the audit privilege issue here, or perhaps you are getting at the multi-employer worksite issue.

 

Mr. Graham. It is not that complicated a question. It goes to basic human behavior.

 

Ms. Seminario. Well, hopefully it would be basic human behavior to protect the safety and health of workers.

 

Mr. Graham. That is not my question. My question is, If you are asked to do something that will help improve safety and everybody tells you from the get-go that it's voluntary, and the agency involved takes the information to try to punish you, are we sending good signals to the people in the workforce?

 

Ms. Seminario. I think it is more complicated than that.

 

Mr. Graham. All right. Thank you.

Mr. McMichael, you wanted to say something. Go ahead and say it.

 

Mr. McMichael. Well, I would just like to extend an example to cover Mr. Owens' scenario. If, for instance, I had two jobsites going and two different electrical contractors working on different sites, if one electrical contractor was fined, say, $500 for a drop cord violation because he had a bad drop cord or something on the job, I would be cited also because that happened on the job.

Now, should the other electrical contractor on the other job, 2 days later or 3 days later or even the same day, be cited for that same violation, now all of a sudden I get a willful violation because I am already on record as being fined for it once. Now how could I ask the second subcontractor to pay the multi-thousand dollar fine that I would probably get for a willful violation when he is only getting a $500 fine for his own. He had no control over what the other electrical contractor did. It would be impossible for me to recoup that cost, and there would be no reason for me to have to have that fine to begin with.

 

Mr. Graham. Mr. McMichael, one of the problems, I think, that we have with this multi-employer citation process is that OSHA is doing something where there is no standard.

 

Mr. McMichael. That is right.

 

Mr. Graham. They are basically doing it and making it up on their own, and that makes you a little uncertain as to where it is coming from and who is going to do it and what the standards are. Is that a fair assessment?

 

Mr. McMichael. That is a very accurate assessment.

 

Mr. Graham. Now, I want to ask the gentlelady from the AFL-CIO whether she thinks it is good public policy for an agency to have the ability at the field level to create a whole new way of fining people, without Congress or someone else who is elected by the people having some say so, to totally deviate from the traditional way of doing business without going through the rulemaking process? Is that a good business practice?

 

Ms. Seminario. Well, either it is legal or it is not. If it is upheld by the courts, it is permissible under the statute. And so I think to that extent, if it has been upheld紡nd I am not an expert in this whole area of multi-employer sites. It is a very complicated issue. As Mr. Owens said, it makes sense to hear from people on this who are the subcontractors, the unions involved. These worksites are complex, some of them. That is why, as I said in my testimony, the failure of a primary contractor or a primary employer to take responsibility overall has led to some really serious situations. We can't be changing the law in such a way that they have no responsibility to coordinate safety and health on those worksites.

 

Mr. Graham. Yes, ma'am. But would you agree with this general proposition that we make the law here in Congress, that the agency involved implements the law; that the Court interprets it, and that it is really not good public policy to have the agency make up rules and regulations without going through some due process system? That is what is going on here.

Whether you agree with the bottom line effort, I think we have a serious problem that, if allowed to continue, basically the courts become Congress. Nobody wants that to be the case. I would hope that you would join in with us to try to get some certainty to this process and follow rules that have been good for lawmaking for a long period of time.

Mr. Smith, what would your comment be regarding that situation?

 

Mr. Smith. Thank you very much.

Let me try to help you understand the concept of what we as general contractors do when we sub out work.. When we bring in a specialty contractor, we do cede responsibility to that contractor, primarily because he may have expertise that we do not have. In the example of the electrical work, he has licensed electricians, and he may have electrical engineers. We are, you know, not the ones who should be out there taking charge of his work and telling him the means and methods of performing his work. Yes, we may have a contract with him, and, yes, we may coordinate some safety efforts on the job site, but the OSHA law never intended for us to assume responsibility from a strict legal liability sense for all of his violations.

 

Mr. Graham. Well, thank you. My time is up now, but I just want to state for the record that whether it is a good or bad idea, this is not the way you implement changes in the law and that this is dangerous if we let it go forward.

 

Chairman Ballenger. Thank you.

Mr. Martinez.

 

Mr. Martinez. Thank you, Mr. Chairman.

Let me start off by saying, Mr. McMichael, you will never convince me in a million years that as a primary contractor you don't have a responsibility, because you do. The subcontractors are there because you hire them, and the outcome of that job is your responsibility. It is the same thing as if the person that hired you expected a certain quality but you say well, I am not responsible for the quality that the subcontractors perform because I hired them. It is their fault if they do a bad job.

I don't think the guy that hired you would accept that, because ultimately you are responsible for the quality so you ought to be responsible for everything else. You place those people there in that position, and you are responsible for the outcome of that job and the safety on that job.

But having said that, I understand Mr. Graham's concern that regulations are made by an agency after a law is passed by Congress and there sometimes seems to be a conflict in how those regulators interpret that law and how they turn out. Well, that is subject to oversight and we make corrections where we have to, and I think that is why we are in the process of doing what we are doing now.

The fact is that when you want a reward, such as, to put it quite bluntly, want to make money on a particular job, you accept a certain amount of responsibility. With that responsibility comes risk. In this case, it is the risk of the safety of the employees. So you have to be willing to accept that.

My dad always used to tell me, "Look, if you can't stand up and pay the piper, don't take the chance." All right? If you can't stand up to the responsibility, don't put yourself in the leadership role of responsibility. It's that simple.

But I do have some problems with the idea of the audits where OSHA had encouraged companies to do self-audits, and that is a good idea. You do an audit, and you find out what is wrong with your particular place of business or your production systems or whatever, and you see you want to make corrections. You are planning for that and then they come in and grab that file that you have made, that audit, and then start finding all the things that you found wrong, but without giving you an ample time to correct the measures, which you were probably in the process of doing or you wouldn't have done the audit.

Anybody who undertakes to do an audit from the safety aspects of their business has to do it with the idea that they are going to correct those things. If they wanted to use the audit, I would say there ought to be some requirement that they couldn't use it against you; that all they could do was help you bring about the correction of those things, maybe some technical advice, technical help, other things, anything they could do to help, because I have always believed that our agencies ought to be like ombudsmen and not policemen. They ought not to be coming down hard on people and finding out how much they can cite them for and how heavy a fine they can extract from them but how they could help them.

And I have always had a little problem with OSHA. I can remember way back when I was in business myself, and OSHA first got started. They came into my business, and some of those inspectors didn't know what they were inspecting. They didn't have the background or expertise in the area where they were inspecting. They would start requiring things that were unreasonable. I find that still happens today.

I have often cited a case of Zacky Farms in my district where one OSHA inspector told the gentleman to move his equipment here and there to be in compliance; another inspector comes along from a higher level, a regional inspector, and tells him that he has got to move the stuff back where it was. Then it gets into a confusion. You know, there ought to be some kind of control on those people that tell them to use common sense and get together with trying to help the employer.

But I think that audits are a good idea. I don't think it is even a real bad idea if OSHA has those audits to look at what you are doing. The only problem I have is them using it against you. If they wanted the audit to see how they can help you, fine. But if they wanted to use it punitively, I do not agree with that.

As the law was in the case that was cited in the testimony, the judge had to comply with the law and say they could use that because there were those violations. I don't know how you get around that. I am not a lawyer. But there ought to be some way so that those audits could be used beneficially for not only the company that did the audit but OSHA, when they review the audit; some stipulation that they could not be used in any punitive way against you.

The other area that I have a problem with is the idea that somehow or another we are going to take away powers or control from OSHA to protect workers. Some of them would restrict OSHA in their ability to do their job. You should be concerned about the safety of your workers because the liability is a greater cost in the long run than what OSHA could come up with.

If some person gets maimed or crippled or even dies because of unsafe working conditions, that liability, I would think, would be the catalyst that would cause you all to want to make sure that your workplaces were safe.

I worked years ago in places before OSHA, where in one particular factory, Buehler Tank and Welding, while I was working there one man got killed. Three men got severely injured and lost parts of their bodies. Limbs. I worked later at a place, Cannon Electric, where in one week 7 people were injured because of no safety conditions. Since OSHA, all of that has changed. So OSHA has done a good job, and I think our rush to try to handcuff OSHA is a misguided effort. What we ought to be doing is trying to find ways to make it really work for the people that it is supposed to work for.

I see my time has run out. Thank you, Mr. Chairman.

 

Chairman Ballenger. Congressman Johnson.

 

Mr. Johnson. Thank you, Mr. Chairman.

You know, Mr. Owens talked about how there wasn't any reason why a general contractor shouldn't be responsible for a subcontractor. Let me just tell you, I used to be in that business myself, and I have to tell you that sometimes you won't find the guys with the expertise to do the job if you start listing a whole bunch of stipulations in the contract.

Would you concur with that, Mr. McMichael?

 

Mr. McMichael. Absolutely.

 

Mr. Johnson. So, it is just baloney to say that you can put it in a contract and make them responsible.

I think that it would be similar to somebody saying that you, as a Congressman, are responsible for every person in your office. You are to a degree, but if the guy gets caught doing some crime, a felony, for instance, or even doing drugs, are you held responsible? I don't think so. Are they going to fine you? Are they going to put you in jail because your employee did something? I don't think so.

I think we have to let the companies run their own business the way they need to, and when you hire a contractor or a subcontractor to do a job, you are trying to find the best expertise in the business. You have a whole group to choose from. If you are hiring a roofer, you want the best roofer in your area. That is who you try to get, but you can't always get them. And you can't stand over them 24 hours a day watching them do the work.

So I think it is ridiculous that we are holding contractors liable for what they can't control. And I think this bill is good in that regard.

Do any of you want to elaborate on that?

 

Mr. Smith. Yes, sir, I would like to say something. I think you are exactly right. If we as general contractors are going to watch over the sub during his entire work shift to make sure that he doesn't violate any OSHA standard, then we don't need the subcontractor. We might as perform the work ourselves. That is just not the way construction works. Yes, we monitor the quality of his work, his production. But to hold us strictly liable for his safety and for all safety violations that he might have when we do not know of the hazard and when we have no employees exposed ourselves, that is just ludicrous.

But responsibility and accountability are two separate things. In our company, we hold our foreman, we hold our superintendents, and we hold our employees liable. And we have a very successful and proactive accident prevention plan.

We do the same thing with the subcontractors. Yes, we hold them accountable. But, you know, we have to hold them accountable. When you remove that accountability, there is no incentive on their part to comply with the Occupational Safety and Health Act. There would be no accountability on their part to provide their own safety training and their own safety equipment and efforts. And we need that in order to have a safer worksite. It takes everybody on the site performing his or her own individual responsibilities to truly make that worksite safe.

 

Mr. Johnson. That is an excellent point. Mr. Chairman, I think that fact ought to be emphasized. Where is the incentive for the subcontractor if you hold the prime contractor responsible, and the guy knows he is not going to have any penalty?

Mr. McMichael, do you want to say anything?

 

Mr. McMichael. Well, I would just like to say it is impossible, as a practical matter, for me to comply with this policy. I have no employees. I will give you a perfect example. It takes me about 6 months to complete a home. If I build, say, four homes a year, I am going to build two homes in the first half of the year and two in the second half. To protect myself under this policy, I would have to hire someone to stay at two of those jobsites for 8 hours a day, the entire time, to protect my interests. That means I would probably have to pay somebody with a competency level adequate to the job probably $30,000 a year. If that person is looking after only two jobs, that means it costs me $15,000 per home to have somebody standing there 8 hours a day to supervise what may or may not occur safety-wise as far as my subcontractors are concerned. And at that point in time, I would have an employee exposed to a hazard.

There is just no practical way for small builders to comply with this policy. It can't be done. It is impractical.

 

Mr. Johnson. Thank you for your comments.

Thank you, Mr. Chairman. I have no further comment.

 

Chairman Ballenger. Thank you. Representative Woolsey.

 

Ms. Woolsey. Thank you, Mr. Chairman. I have so much to say and so little time to say it.

First, safety and health is the responsibility of the employer. And isn't there an incentive to hire the least expensive subcontractor, and wouldn't it be less costly if the subcontractor didn't have to worry about safety and health factors?

I mean, there is an incentive that goes the other way around, and don't kid yourself. And you know, you absolutely know, when you are hiring employees, you interview and you interview for their skills, you interview for their background and experience. When you are deciding on a subcontractor, you know what their reputation is. You know if they have safety and health protections. You can ask and you can find out. All you have to do is put the effort into it.

It is not okay to say that safety and health is not your responsibility on your jobs because it is.

I am going to leave at least half of my time for Mrs. Seminario because I want her to be able to respond to Congressman Graham's questions in a more complete fashion, like she wanted.

But I would like to talk about self-audits and voluntary self-audits. I was a human resources manager for 12 years. We audited. We had safety and health committees. When we found something, we did something about it. When OSHA came, that showed a good faith effort. Why wouldn't that be the same now?

It's one thing to find a problem. It's quite another thing to do something about it. If you find it 15 minutes before OSHA arrives and then they slap a fine on you, that is one thing. If you find it 15 days or 15 months before, that is different. Good faith effort is working on a problem, making sure that you come up with a solution, and start working on it.

Nobody is going to punish anybody if they are on their way to resolving a problem. That is what this is all about. It is about caring about your employees. It is about saving money, the morale of the company, workers' compensation, and the reputation of your company. That is more than an offset for any economic concerns you have about implementing this bill, because we are undercutting some very good, solid, safety and health cooperation between OSHA and the employers.

I want us to work together. Anything in it that doesn't have OSHA as a help to you does not work for me either.

But now, Ms. Seminario, let's talk about implementing these changes and what you wanted to say to Mr. Graham.

 

Ms. Seminario. Well, what I wanted to say is that things are more complicated. I fundamentally believe that most employers do take very seriously their responsibility, legal and moral, to protect workers. And so in asking, well, wouldn't it be human nature if you did something voluntarily and it was going to have an economic downside, would you not do it? I would hope that employers would find protecting their workers more important than some economic consequence. And so I do think it is indeed more complicated.

I want to make just a couple of clarifications. The audit privilege and the bill on employer, multi-employer worksites, are quite similar because they have to do with employer responsibility, and I think that is an important issue. And these bills would essentially relieve employers of some of the responsibility that they currently have.

On multi-employer worksites, there is nothing in the current process which eliminates responsibility of the subcontractors. I think Mr. Johnson suggested, well, if the subs aren't responsible, wouldn't they comply? They are responsible right now under the OSHA law.

I don't think anybody is suggesting that subcontractors shouldn't be responsible for their own employees. So I think that is important to clarify.

The whole interaction between the primes, the subs and, the overall manager of a site, is a complicated situation in many of these multi-employer worksites. A bill that just simply says that you have no employees, you didn't create the hazard, you are not responsible, is going to make safety and health at a lot of multi-employer worksites much worse than it is. And we have evidence as to what the impacts of that lack of responsibility can result in, and that is the concern that we have.

 

Ms. Woolsey. Thank you.

 

Chairman Ballenger. Ms. Brumm, Ms. Woolsey was talking, I think to you, and never asked you the question. Did you have some reaction?

 

Ms. Brumm. Yes. She was saying that the issue with the surveys is that basically OSHA is reasonable and will give you time to fix something and that they won't cite you. Saying that shows kind of a naivete about what OSHA does. When OSHA comes in, they don't say, okay, you have identified this and you have said you are going to complete it in 60 days or 30 days. They come in and take a snapshot.

If, at this point in time, you said this drill press was supposed to be secured to the floor and it wasn't, you are cited for that drill press not being secured to the floor even though your maintenance department was scheduled to take care of it tomorrow.

Even when we are cited by OSHA, they give us 30 days to comply and many, many extensions. So, in other words, the thought that they would basically take our own self-audit and assess their own time frame to it, even though we may have had our own time frame and gotten cited for it. Unfortunately, the way that it is designed is not a cooperative environment. It is a snapshot environment of what happens the day they walk into your facility with the exposures they see while they are at your facility, period, end of subject.

 

Ms. Woolsey. Well, excuse me, but they do give you time to fix the problem30 days. If your self-audit had been 45 or 60 days before and you still hadn't secured the piece of equipment, well, then you would be out of compliance.

 

Ms. Brumm. If the self-audit was one day before they came in and it was on that self-audit, I guarantee you that they would go out there and look to see if the exposure exists, if the hazard is there. There would be a citation.

 

Ms. Woolsey. Thank you.

 

Chairman Ballenger. Mr. Fawell.

 

Mr. Fawell. Thank you, Mr. Chairman.

I am sorry I wasn't here to hear earlier testimony, but I have learned a lot just in listening here.

I must confess that it seem to me that anything one can do to give business the incentive to conduct voluntary audits is a big plus. And, I understand that the EPA has acknowledged that forced disclosure of audits discourages companies from conducting them. It seems to me to be common sense that OSHA really should greet these types of self-help with a real positive attitude and be thankful that it is happening and work from that viewpoint. But that is just my view.

I am glad that is occurring, and I hope we can make it clear that somebody doesn't have to worry about self-incrimination when they do things like that.

In regard to the liability in multi-employer worksites, I have learned a lot just listening to Mr. McMichael point out the very practical situation of a small business person, self-employed, in attempting to build maybe 4 homes in a year and, in effect, to have to be responsible for every subcontractor on the jobsite to make sure that they are doing things correctly. As Mr. Johnson pointed out, somebody might shoot somebody. Technically speaking, I suppose it is a violation of some OSHA standard, for which you would be responsible.

But what really interests me is the comment I think Mr. Smith made釦hat basically this is only field policy . Yes, Ms. Seminario makes the statement that this is very arcane, very complex, something that we ought to think about for awhile before we begin to institute it in the field. Yet, it just grows sort of like Little Topsy. It is just there.

And then from time to time, there is a squabble in court, which is expensive, and the court issues an opinion and then we get a little more guidance. The average business person isn't sitting there reading all of the court decisions. That I can guarantee you.

It would seem to me that OSHA, the management, would say, we ought not to be instituting something like this when we don't really know what the ramifications are. If they would have had the opportunity to listen to just what I have been able to listen to, they would say we ought to go very carefully. We ought to have some due process procedures here. We ought to understand all the harm that we can do. How can we put something in that is just plain dumb. It seems to me it fits all of those appellations.

I don't know if there is anybody from OSHA here listening, but I would hope that they would take seriously the fact that courts should not be making these decisions for us and determining just where we are going to go with multi-employer worksite liabilities and so forth and so on. It all ought to be done clearly beforehand, before the regulations ever start out, and the regulations should go down to the field. The field shouldn't be handing them up. Basically, the field workers are handing them up to judicial decisions.

If anybody would like to comment about what I have said. I appreciate very much the opportunity I have had to listen to your testimony.

Yes, Mr. Smith.

Mr. Smith. Thank you. I would like to make a couple of comments. When I worked with OSHA, I determined back then that they may not be contributing significantly to accident reduction. When I got in private industry, I greatly appreciated the opportunity to try to put an accident prevention plan in effect. It has almost been alluded to that OSHA has to protect the workers. OSHA does play a role. But at our company and at most contractors across this country, we are not safer today. It was alluded on the panel that some industries, such as nursing homes, may have worse records now than the contractors, and we welcome that news.

But we are having a significant effect on accident reduction. That is occurring through accountability programs, incentive programs, substance abuse programs, employee orientation and training. Yes, we are a contractor, but we do self-audits to help us evaluate our program. And, you know, to put the ball completely in OSHA's court to prevent accidents by enforcement and we know the limited effect they are going to have on enforcement, that is just not the total answer. Holding the general contractor completely responsible 100 percent of the time for all safety on a multi-employer worksite will not create a safer and better workplace. And that is what we are about, is trying to bring positive results, and we think we can show you positive results over the last few years, but not from this policy.

 

Mr. Fawell. Fine. Thank you very much.

 

Chairman Ballenger. My understanding is Mr. Graham wanted to ask another question.

 

Mr. Graham. Yes. I got mentioned a couple of times. I would like to ask a question I was not able to ask before. Has anyone here had their views solicited by OSHA, AFL-CIO, anybody in the business community who does the work, about multi-employer worksite violations? Has anybody come and talked to you at all?

 

Mr. McMichael. No.

 

Mr. Graham. Have you had any input?

 

Mr. McMichael. No.

 

Mr. Graham. The answer is no?

 

Mr. McMichael. Never had any input into the policy at all.

 

Mr. Graham. Okay. One thing I have learned from this hearing is that the actions of this agency very much put workers in jeopardy. The voluntary compliance program makes imminent sense to make companies more aware about what they can do to help their employees. The day the government takes that information to gets in their wallet, their behavior will change. The government is at fault, not the employer, because I think they care about the employees. They see them every day The government is going to change behavior for the worse, and they are doing it on their own in a dumb fashion. We need to correct it, and I hope everybody, including the AFL-CIO, would help us because it is going to have a disastrous effect. The day we allow an agency to make up a rule on its own殆ithout going through Congress, without getting input from the people it affects紡nd violate the statute that was created is the day this body loses control and the day the people lose control. Workers are going to be hurt because business will start playing games they wouldn't have played otherwise because the agency is coming after their money.

I don't believe being fined equates to worker safety.

 

Mr. Smith. Mr. Graham, if I could, I was pleased recently when the AGC and the construction office in OSHA and some of its people and some of the OSHA people did sit down together to talk about the multi-employer issue. The Associated General Contractors asked for this meeting to begin discussion on that issue.

 

Mr. Graham. Okay.

 

Chairman Ballenger. Mr. Owens, did you want to add something?

 

Mr. Owens. Yes. A couple of comments. Is there a representative of the Chamber of Commerce here?

I am sure the Chamber of Commerce has been consulted. And their representative testified many times with respect to OSHA regulations across the country. So organizations that represent categories of people have been involved. Their input has been sought.

I also would like to point out that in defense of OSHA, OSHA is doing business the way the rest of America does business. A general contractor is held liable for what he is responsible for.

The city of New York, like any other city, wants the electricians to hook up the wires to the boxes appropriately. The electrician must be licensed, but the city doesn't hold the electrician directly responsible. He must be licensed, but the general contractor must get a licensed electrician, and the general contractor must make sure that the licensed electrician did it right. He can almost assume if he gets the right person, he is going to do it.

So getting responsible subcontractors in every other respect is important. And what you are saying is the health and safety is not really that important, so you shouldn't have the same set of standards with respect to health and safety. But OSHA is doing business the way the rest of America does business when they do that, and that should be taken into consideration.

Finally, for those people who are asking for the submission of records from

Mrs. Seminario's department, we in the Minority would like to see the time sheets from

Mr. Hoekstra's subcommittee for the consultants that he has hired. We have been asking for

submission of that for some time. We have a better basis for asking for that, I think, than he has for asking for any records from Ms. Seminario. Thank you.

 

Chairman Ballenger. I understand that Mr. Johnson wanted to ask another question.

 

Mr. Johnson. Thank you, Mr. Chairman. I just want to make one comment. I think Mr. Martinez hit it when he said that OSHA ought to be there to help. That is what government ought to be there for, not to penalize or punish. And I think even the AFL-CIO would agree with that.

If we can have a safer work environment through them deriving some kind of standards that make it better for our workers, then that is what ought to happen. But we shouldn't punish the businesses for doing that if they are trying, and I think most of them are.

Thank you, Mr. Chairman. I appreciate the hearing.

 

Chairman Ballenger. And I would like to say, Mr. Taylor, you never got to say a word. Truthfully speaking, if there is an issue that should be nonpartisan and so forth and so on, your specific idea that you defended on OSHA, at least notifying the industry that they are going to be affected by their next ruling and so forth. It appears to me to be only fair.

Mr. Taylor, is there anything you would like to say?

 

Mr. Taylor. Thank you, Mr. Chairman. I do have a couple of comments.

I will try to be brief considering the time of the day in particular.

I would like to direct my comments to the two peer review bills and also to touch briefly on H.R. 2873, which, Mr. Chairman, you just alluded to.

I heard Ms. Seminario raise two primary concerns with the peer review, both of which

I think are unfounded.

The first concern is that use of peer review will delay rulemaking. I am not aware of any empirical evidence that would support that statement, other than speculation, and I think the comments of OSHA are to the contrary, as I alluded to in my earlier remarks. In its preamble relating to the respiratory protection standard, OSHA in alluding to the development of new fit testing protocols, specifically recognized that prior peer review may enable the rulemaking process actually to go further. These bills are not directed at trying to prevent OSHA from regulating hazards.

I appreciate that OSHA has a Herculean task to do that, to assure that throughout the wide array of workplaces and work situations and hazards that employees might confront across the Nation, of establishing a body of regulations that will ensure that those people have a safe and healthy workplace and can go home every night as everybody hopes that they can. I think that peer review helps in a couple of ways. First of all, it helps by assisting OSHA in doing the critical analysis to ensure that the basis for the regulation or standard that it wants to impose is there scientifically and from a credibility standpoint. Once you get over those sort of hurdles and get the sort of credible foundation and the scientific review, it will enable a speedier process and create a more welcome attitude in the regulated community because everyone will have an opportunity to participate in the process.

In that sense, it builds on the success of the negotiated rulemaking, which former Assistant Secretary Dear is reported to have said has resulted in some standards貿or example the steel erection standard殆hich are better than OSHA could have done itself precisely because people with a body of expertise, representing widely divergent viewpoints, were able to get together and to vet the soundness of the proposals. So I think that the peer review bills have a salutary effect that is not counterbalanced by any severe negative effect.

The final point I would mention on that is simply that this is not alien to the very process that already exists in the bill, which enables the Secretary in promulgating these standards, once there is determined to be a need, to appoint an advisory committee. I don't see that this is fundamentally any different than that.

With respect to the second criticism, which was that this would somehow be a secretive, closed process, I don't see that. OSHA didn't see that. In fact, the bill requires that the data be made a part of the public record in promulgating the rule. OSHA has recognized that, again, in its comments, at the time the rulemaking begins, interested members of the public would know the scientific basis on which the approval is sought and would be able to afford OSHA the benefit of their views.

The rulemaking process should, therefore, be able to proceed more quickly.

 

Chairman Ballenger. Don't make it too long now.

 

Mr. Taylor. Okay. Let me wrap up then, Mr. Chairman.

 

Chairman Ballenger. Okay.

 

Mr. Taylor. With respect to industry domination, I don't see that. The bill specifically requires that the viewpoints be balanced, that the membership be balanced.

On the second bill, H.R. 2873, I haven't heard any criticism of what I perceive肪ased on, Mr. Chairman, your remarks when you introduced it釦o be the primary thrust of the bill, which is to afford notice to all the members of the industries to be regulated that, in fact, this regulation or standard is going to have an impact on them. Again, I think that helps promote public commentary and criticisms of bills because it puts people clearly on notice that they are going to be affected, and therefore they will have an opportunity to think about it and present their views.

Thank you very much.

 

Chairman Ballenger. All right. Thank you.

Let me thank everybody for participating. I know you took a lot of time from your schedules to be here. The hearing ended up more on construction than anything else, and our friend from the printing business got completely left out. He had to go catch a plane without saying a word.

But anyhow, Ms. Brumm, I want to say that I am going to take your little folio that you have here and send it to my company back home> They'll go into absolute shock when they see that somebody actually fills out something that thorough.

 

Ms. Brumm. I will be more than happy to do a survey down at your facility for you.

 

Chairman Ballenger. I don't think they would particularly care to have you around.

 

Mr. Owens. Mr. Chairman, we know the printing industry has an excellent role model for safety in you so we don't worry about the printing industry.

 

Chairman Ballenger. Okay. Well, let me thank you again for being here. The hearing is adjourned.

[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]


REVIEW OF THE OCCUPATIONAL SAFETY AND HEALTH ACT

Table of Contents

TESTIMONY OF ASSISTANT SECRETARY CHARLES N. JEFFRESS, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, DC *

TESTIMONY OF GEORGE R. SALEM, ESQ., PARTNER, AKIN, GUMP, STRAUSS, HAUER & FELD, LLP , WASHINGTON, DC, AND NATIONAL HEAD OF THE U.S. DEPARTMENT OF LABOR PRACTICE, WASHINGTON, DC傍ESTIFYING ON BEHALF OF THE NATIONAL ASSOCIATION OF MANUFACTURERS *

TESTIMONY OF RICHARD E. SCHWARTZ, ESQ., PARTNER, CROWELL & MORING, WASHINGTON, DC傍ESTIFYING ON BEHALF OF THE AMERICAN IRON & STEEL INSTITUTE *

TESTIMONY OF MR. JOHN W. BISHOP, PRESIDENT, GURNEE HEATING AND AIR CONDITIONING CORPORATION, CLOSTER, NEW JERSEY傍ESTIFYING ON BEHALF OF THE ASSOCIATED BUILDERS AND CONTRACTORS *

TESTIMONY OF DAVID G. SARVADI, ESQ., KELLER AND HECKMAN, LLP, WASHINGTON, DC *

TESTIMONY OF MR. THOMAS J. MEIGHEN, SAFETY & RISK MANAGER, AND VICE PRESIDENT, STROMBERG SHEET METAL WORKS, INC., BELTSVILLE, MARYLAND傍ESTIFYING ON BEHALF OF THE MECHANICAL ELECTRICAL SHEET METAL ALLIANCE *

Appendix A Opening Statement of the Honorable Cass Ballenger (R-NC), Chairman, Subcommittee on Workforce Protections *

Appendix B 飽pening Statement of the Honorable Major R. Owens (D-NY), Ranking Democrat, Subcommittee on Workforce Protections *

Appendix C Statement of Assistant Secretary Charles N. Jeffress, Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC *

Appendix D Statement of George R. Salem, Partner, Akin, Gump, Strauss, Hauer & Feld, LLP, and National Head of the U.S. Department of Labor Practice, Washington, DC釦estifying on behalf of the National Association of Manufacturers *

Appendix E Statement of Richard E. Schwartz, Esq., Partner, Crowell & Moring, Washington, DC釦estifying on behalf of the American Iron & Steel Institute *

Appendix F Statement of Mr. John W. Bishop, President, Gurnee Heating and Air Conditioning Corporation, Closter, New Jersey釦estifying on behalf of the Associated Builders and Contractors *

Appendix G Statement of David G. Sarvadi, Esq., Keller And Heckman, LLP, Washington, DC *

Appendix H Statement of Mr. Thomas J. Meighen, Safety & Risk Manager, and Vice President, Stromberg Sheet Metal Works, Inc., Beltsville, Maryland釦estifying on behalf of the Mechanical Electrical Sheet Metal Alliance *

Appendix I Statement of the Printing Industries of America *

Appendix J Statement of Jack Pohlman, Vice President, Taylor-Pohlman, Inc., Washington, DC撲n behalf of the American Foundrymen's Society *

Appendix K Legislation to Amend the Occupational Safety and Health Act (H.R. 2661, H.R. 2869, H.R. 2871, H.R. 2873, H.R. 2879, H.R. 3519, H.R. 3725) *

Table of Indexes *

REVIEW OF THE OCCUPATIONAL SAFETY AND HEALTH ACT

沫覧覧

WEDNESDAY, APRIL 29, 1998

 

House of Representatives, Subcommittee on Workforce Protections,

Committee on Education and the Workforce, Washington, DC

 

 

The subcommittee met, pursuant to notice, at 10:22 a.m., in room 2175 Rayburn House Office Building, the Honorable Cass Ballenger [chairman of the Subcommittee] presiding.

Present: Representatives Fawell, Barrett, Hoekstra, Owens, Martinez, and Woolsey.

 

Also Present: Representative Norwood (not a member of the Subcommittee).

Majority Staff Present: Gary L. Visscher, Workforce Policy Counsel; and

Karen A. Wayson, Assistant to the Workforce Policy Counsel.

Minority Staff Present: Peter Rutledge, Senior Legislative Associate; and

Shannon McNulty, Staff Assistant.

 

Chairman Ballenger. A quorum being present, the Subcommittee on Workforce Protections will come to order.

The subcommittee is meeting today to hear testimony, to review pending OSHA legislation. Under Rule 12(b) of the Committee Rules, any oral opening statements at the hearings are limited to the Chairman and the Ranking Minority Member. This will allow us to hear from our witnesses sooner and to help Members keep to their busy schedules. Therefore, if other Members have statements, they may be included in the hearing record. Without objection, all Members' statements and witnesses' written testimony will be included in the hearing record.

Today, the subcommittee on Workforce Protections is holding a second hearing on several bills intended to move OSHA in a more "common-sense" direction. The first hearing was held on March 27th of this year, and the subcommittee heard very helpful testimony on the need for these changes. Today, we hear from a panel that includes the current Assistant Secretary of Occupational Safety and Health, Mr. Charles Jeffress, and five other witnesses. Let me just say that I very much appreciate all of you taking time to appear and provide testimony today.

I also want to particularly welcome the Assistant Secretary. I believe that this is your first time appearing before the Subcommittee in your capacity as head of the federal OSHA. We, of course, have known each other for many, many years. When you were in North Carolina's OSHA program and as I said when you were nominated, we often don't agree on policy, but given that we have a Democratic administration, we probably have about as good an OSHA director as we could likely get.

[Laughter.]

I hope you won't make me eat my words.

Today's hearing is to receive testimony on and discuss 7 bills dealing with OSHA. Let me briefly describe each of these bills.

H.R. 2869 is designed to protect the confidentiality of voluntary safety and health audits. At our last hearing, we had a lot of discussion about the detrimental effect on safety and health of OSHA's policy of demanding access to any such audits during an investigation or an inspection. The fact of the matter is that OSHA's current policy punishes employers for performing safety and health audits.

H.R. 2661 and H.R. 2871 both require OSHA to conduct peer review for OSHA standards. I understand that OSHA's position is that peer review will simply delay standards. At the last hearing, I asked if anyone had any empirical evidence that peer review delayed standards, that they submit it. No one has. I hope that we might have a discussion on that today.

H.R. 2873 requires simply that OSHA identify which industries they propose to cover when they issue a proposed standard. What I am proposing is what OSHA is already doing with its proposed standard on tuberculosis; where, OSHA specifically identified the types of workplaces the standard would cover, and by doing so OSHA has allowed for much better consideration of how the proposed standard will impact different types of workplaces, such as homeless shelters. So, as I've said before, this is not radical reform. I'm actually endorsing a practice that OSHA adopted with its TB proposal.

H.R. 2879 is intended to clarify the rules regarding the responsibility and liability for OSHA compliance on multi-employer worksites. We heard at our previous hearing how OSHA's current policy is anti-worker safety because it discourages owners and general contractors from taking any responsibility for the safety compliance by the other contractor's employees. Unfortunately, OSHA seems more interested in liability and citations than in worker safety.

Two other bills that are not a specific topic of any of our witnesses today, but are the subject of the hearing as well, are H.R. 3519 and H.R. 3725. H.R. 3519 as very well explained before us at the last hearing by Mr. Hartman, a printer from Baltimore, and our colleague, Representative Tim Roemer, one of the bills co-sponsors. The other bill listed for this hearing is one that was introduced last week by Representative Greenwood, H.R. 3725, which would allow OSHA to issue citations and penalties against the postal service, in effect, to treat the postal service the same as a private employer for the purposes of OSHA.

Again, I want to thank our distinguished panel of witnesses for testifying today. I must admit that I was a little worried when I saw the number of attorneys on the panel today.

[Laughter.]

Every once in a while you might get the opinion that I don't really appreciate attorneys, but don't believe it. I must admit that in the past I have said some unkind things about lawyers, but I know that each of you has had a great deal of experience with OSHA, and I appreciate your expert analysis and advice as we consider these various bills.

At this point, I will yield to the distinguished ranking member, Mr. Owens, for whatever opening statement he wishes to make.

[The written statement of Chairman Ballenger is attached as Appendix A.]

 

Mr. Owens. Thank you, Mr. Chairman.

As I stated at the March 27th hearing, I cannot support most of the bills we are considering today.

H.R. 2869, as introduced, protects employers who wish to hide the fact that they were aware of health and safety hazards but failed to correct them.

H.R. 2661 and H.R. 2871 prolong the already unreasonable period of time it takes for OSHA to promulgate rules. They seem to do so for no other purpose than to provide employers another unnecessary and unwarranted opportunity to influence the outcome of the regulation.

H.R. 2873, by requiring individual risk assessment and cost-benefit analysis for each industry affected by a proposed standard, imposes impossible burdens upon OSHA before it may act to protect workers.

H.R. 2879 denigrates, rather than emphasizes, the importance of worker health and safety. General contractors readily and appropriately assume responsibility for the quality of the work performed by subcontractor employees. There is no justification for permitting a lower standard with regard to the health and safety of those workers employed by the subcontractors.

Finally, regarding H.R. 3725, while I support the principle of extending the Occupational Safety and Health Act to U.S. Postal Service workers, I am troubled as to why this bill applies only to the Postal Service and not to other public employees, including those who would seem to be very similarly situated, such as employees of the Tennessee Valley Authority.

Mr. Chairman, I'm not trying to say that consensus is totally impossible on each of these bills. I take seriously your expressed willingness to work with Democrats, the Administration, organized labor, and others, as well as the business community. I know you want to try to develop consensus legislation. I want to reiterate my willingness to work with you toward that end. However, let me also be absolutely clear that I will continue to oppose legislation that I believe jeopardizes the health and safety of American workers.

A recent report showed that the number of workers killed on the job is declining. There has been a significant reduction from the last set of figures available. I think this is due to the fact that we have a strong OSHA, and we want to keep it that way. Thank you.

[The written statement of Mr. Owens is attached as Appendix B.]

 

Chairman Ballenger. Thank you Mr. Owens, for your opening statement.

I would now like to introduce our panel of witnesses. Today we have with us

Mr. Charles Jeffress, the Assistant Secretary for Occupational Safety and Health, with the U.S. Department of Labor; Mr. George R. Salem, an attorney with Akin, Gump, Strauss, Hauer & Feld, LLP, in Washington, DC, who is testifying on behalf of the National Association of Manufacturers; Mr. Richard E. Schwartz, an attorney with Crowell & Moring, LLP, in Washington, DC, who is testifying on behalf of the American Iron & Steel Institute;

Mr. John Bishop, with Gurnee Heating and Air Conditioning Corporation of Closter, New Jersey, who will be testifying on behalf of the Associated Builders and Contractors;

Mr. David Sarvadi, an attorney with Keller and Heckman in Washington, DC; and,

Mr. Thomas Meighen, with Stromberg Sheet Metal Works in Beltsville, Maryland, who will be testifying today on behalf of the Mechanical Electrical Sheet Metal Alliance.

Thank you all for being here today. Before the witnesses begin their testimony, I'd like to remind the Members that they will be we will be asking questions of the witnesses after everyone on the witness panel has testified. In addition, Committee Rule 2 imposes a five-minute limit on all questions.

That being said, Mr. Jeffress, you may begin your testimony.

 

 

TESTIMONY OF ASSISTANT SECRETARY CHARLES N. JEFFRESS, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, DC

Mr. Jeffress. Thank you, Mr. Chairman. As you said, it's my first opportunity to be before you, and I appreciate very much the invitation. I, too, have valued our friendship over the years, and I'm delighted for the opportunity to work with you here at the National level on OSHA policy. As you say, we may not always agree on principle, but hopefully, we can always talk about wherever we're headed. And I share your commitment to a common-sense OSHA program that delivers good value to the American tax-payer.

And let me say, I was happy to work with you on the passage of the first two bills that came before your subcommittee this congressional session, related to OSHA on the concentration program, and the quota bill, and I'm glad to be able to work with you in a cooperative manner when we can.

I regret to say, however, that the bills today are more problematic, and I have problems with each of them that are before you today. And I will speak briefly to each of them and have one comment at the end on some additional areas I hope this committee would consider.

On the employer audit bill, H.R. 2869, creating the evidentiary privilege for employer self-audit documents, this is a very broad privilege. It would vastly complicate OSHA enforcement. It would force us to arrive at conclusions about workplace hazards and accidents, without critical information that would have been available and is available to the lawyers. In many cases, in our fatality and in our catastrophe investigations, self-audit records and reports from employers are the most reliable, and sometimes the only means of establishing the facts of what happened in a situation or what the reason for a particular hazard.

Under these circumstances, OSHA needs the ability to gather all the information it can to explain why the accident happened and to prevent it from happening again. As an investigator, when I put on my investigation hat, and I assure you that we have compliance assistance and education training in other hats as well, but when we put on that investigation hat, it's our responsibility to get to the bottom of what may have caused an accident or how a hazard may have occurred, and we need to be able to access all information relevant to that.

This bill would be the vast of majority of workplace health and safety assessments required by OSHA, under various OSHA standards, off-limits to us, to the Review Commission, and to the courts. Contrary to the belief of many businesses that audits are used against businesses, I think disclosures of self-audit documents generally benefit employers. We have a provision as you know in our penalty provisions that say if an employer is acting in good faith, they can get a reduction in a penalty.

One of the ways that we establish an employer's good faith is to look at what actions an employer has taken to address hazards in their workplace. So when we see an employer has done an audit and recognized problems and taken some action on their problems, it is evidence of good faith, and in fact, benefits the employer by allowing a reduction in penalty. So, I submit to you that the large majority of cases where audit information is provided to OSHA, it assists and benefits employers.

The proposed evidentiary privilege in this bill, however, would only protect bad actors, those employers who did audits and failed to take any action on them at all. Employers who identify hazards but fail to make good-faith efforts to correct them, and wish to hide the evidence, those are the only employers that this bill benefits. For those employers who do the audits and take some action, in fact, it benefits those employers to share those audits with us; they can get a reduction in a penalty.

Two other bills, H.R. 2661 and H.R. 2871, require the Secretary to create advisory panels to review scientific and economic data every time we propose a new standard. Frequently, these bills are referred to as peer review, and I'm sure that will be the nature of the discussion today. It is important to recognize that the comprehensive standards that OSHA adopts take a long time to develop, frequently as many as eight years for a major standard; some longer than that.

During the course of our rulemaking, we already engage in a number of processes of soliciting public input, and having the public engage in debate on the best rule possible for the particular hazard. We conduct the economic analysis; we conduct risk analysis; we assess the impact of small businesses; depending upon the impact of small businesses, we will convene a small business panel under the Small Business Regulatory and Fairness Act; we survey industry; we do extensive review of research on selected topics; and then, when we actually issue a proposal, we engage in a rigorous public hearing process. In this public hearing process, we have the fullest, most thorough disclosure on every subject relevant to a rule.

The current public process provides the greatest possible public access: we have scientist involved; we have economist involved; we have safety and health professionals involved, as well as representatives of potentially affected industries. I dare say, some of the people on the witness panel today have participated in this process; many other interested parties may, and do participate.

At the public hearings, it is not simply a matter of a peer review panel submitting papers to the agency to evaluate, but the public hearings parties offer testimony, and then can cross-examine one another. So it's a very public process. People can cross-examine one another. It's not simply a small, closed panel that most peer review panels are. Our process is much more open, much more public, and much more available to give-and-take amongst the different parties interested in the rule than any peer review process might be. I invite members of this committee to attend one of public hearings to observe this process in action.

I would also note that the President has asked Congress to show restraint in the creation of new statutory committees. I submit to you this is a very good area where you all might exercise that restraint.

H.R. 2873 requires OSHA to conduct an individual risk-assessment and cost-benefit analysis for each industry affected by our proposed standard. We already conduct detailed risk assessments on proposed standards. We develop extensive significant-of-risk analysis. We have to demonstrate technological and economic feasibility of our standards on an industry-by-industry basis. We evaluate the benefits and assess impacts, as I said, including small business impacts.

However, this bill requires an industry-by-industry risk assessment. It would require there to be data available in each industry of the particular risk that workers are exposed to in that industry. I submit to you such data is not available. For example, one of the standards on our rule-making list or for some future rulemaking, is chromium. If a worker is exposed to a certain level of chromium, that worker is going to have impacts on his or her body regardless of what industry he or she happens to be in. It doesn't matter whether it's in the automobile industry, in the metals industry, or in some other industry. It isn't the industry that determines the risk; it's the amount of chromium that they are exposed to. So a risk-assessment, industry-by-industry is not necessary to determine the hazard of chromium.

Moreover, the information available is not there to do industry-by-industry, chemical-by-chemical what the assessment would call for by this bill. So I submit to you that this bill is flawed in the requirement of risk-assessment for industry-specific data, in that the data is simply not available, and the risk to an employee's health is the same regardless of which industry they work in, reminding you that we already do technological assessments, and feasibility assessments, economic-feasibility assessments, industry-by-industry.

On the multi-employer--okay. I will start to speed up.

 

Chairman Ballenger. You rank high enough that we'll give you a little extra time

[Laughter.]

 

Mr. Jeffress. Thank you, Mr. Chairman.

H.R. 2879, the multi-employer worksite bill, would limit the liability of certain employers, particularly general contractors in construction.

First, let me clean-up some misunderstandings. The OSHA Act holds all employers responsible for hazards under their control regardless of whose employees are exposed. Some people have misconstrued our policy as limiting the liability of the subcontractor by holding the general contractor liable instead. This is not the case. We do hold the subcontractor liable. Where a general contractor has failed to exercise due diligence, we hold the general contractor liable as well. The tragedy that occurred at L'Ambiance Plaza in Connecticut is a good example of why our rule exists. In that case, 28 workers were killed when a high-rise under construction collapsed through the error of one subcontractor, but workers from several subcontractors were killed. The general contractor in this case should have been responsible for safety on that site.

On H.R. 3519, pertaining to electronic MSDS's, let me say that OSHA was working on a directive to accomplish much the same purpose that this bill was introduced to accomplish at the same time that the bill was being worked on. Now that we have our directive out, and we're talking with the sponsors of this bill, I believe we'll be able to arrive at some accommodation where we can achieve by mutual objections on this bill.

Mr. Chairman, let me briefly mention three other areas that I would hope that Members of the Subcommittee would be concerned about when it comes to mending the OSHA Act, and protecting workers better.

First, is strengthening the "whistleblower" protections of the Act. Workers must feel free to inform their employer or the government when dangerous working conditions threaten their life or safety. There is a good deal of evidence, including the General Accounting Office report that employees do not feel free to complain today and that too many employers do retaliate. The 11(c) protections of the OSHA Act for whistleblowers need to be improved.

Secondly, in terms of covering public employees, the OSHA Act does not effectively protect federal employees or state and local employees in non-State plan states. There is no coverage except in those states that have State-OSHA programs. I would encourage you to consider covering all public employees with the OSHA Act. The Supreme Court has ruled that other employment laws in the last few years can be extended, and have been extended, to state and local employees. I submit to you, it's time to do that for the federal government employees and state and local employees not currently covered.

Here is my third and final comment. Currently in the OSHA Act, if there is a willful violation that results in the death of an employee, the criminal consequences for that act are a simple misdemeanor. I submit to you that this is an inadequate response to a willful violation causing the death of an employee, and that this should be upgraded to a felony violation.

Mr. Chairman, thank you for the opportunity to be present before you today. I'd be happy to continue working with you and members of your staff as we continue to develop improved OSHA programs.

[The written statement of Mr. Jeffress is attached as Appendix C.]

 

Chairman Ballenger. Thank you. Next we will hear from Mr. Salem.

 

 

TESTIMONY OF GEORGE R. SALEM, ESQ., PARTNER, AKIN, GUMP, STRAUSS, HAUER & FELD, LLP , WASHINGTON, DC, AND NATIONAL HEAD OF THE U.S. DEPARTMENT OF LABOR PRACTICE, WASHINGTON, DC傍ESTIFYING ON BEHALF OF THE NATIONAL ASSOCIATION OF MANUFACTURERS

Mr. Salem. Good morning, Mr. Chairman and members of the Subcommittee. I am George Salem, a national head of the U.S. Department of Labor Practice at Akin, Gump. I appreciate the opportunity to comment on H.R. 2869, a proposal to encourage increased voluntary employer evaluations of workplace safety and health programs.

I appear before this Subcommittee today on behalf of the National Association of Manufacturers. NAM is the nation's oldest and largest broad-based industrial trade association. NAM member companies and affiliated associations represent every industrial sector and employ more than 18 million people.

As the Subcommittee may recall, I had the honor of serving as Solicitor of Labor, and appeared before this Subcommittee on many occasions from 1985 to 1989, at which time the Occupational Safety and Health Administration was among several client agencies which I served. While my current responsibilities extend beyond OSHA to all laws enforced by the

U.S. Department of Labor, I retain a strong, abiding interest and commitment to the objectives of the Occupational Safety and Health Act, that is, protecting America's men and women in a responsible, cost-effective manner. For these reasons and more, I am pleased to represent the NAM's views, as well as my personal experience with the OSHA Act.

NAM appreciates the opportunity to share its thoughts today on H.R. 2869. We believe, as do you, that removing the threat of having the results from voluntary audits used as a weapon by OSHA in enforcement proceedings will have the effect of encouraging such practices, and thereby enhancing workplace safety and health. We commend you, Mr. Chairman, and your colleagues for introducing this proposal, and NAM wishes to register its strong support.

This statement was prepared in cooperation with NAM's Occupational Safety and Health Policy Subcommittee. In addition, Organization Resource Counselors has reviewed this testimony on behalf of the 150 corporate members of its Occupational and Safety Health Groups and fully supports the positions stated. NAM and ORC, together with several other industry groups, have long advocated the type of protection for voluntary audits that H.R. 2869 would provide.

The bill provides that reports and other information generated from voluntary workplace safety and health audits cannot be required to be disclosed to OSHA for use against companies during inspections or enforcement proceedings. We believe, and H.R. 2869 provides, that where employers go beyond what they are obliged to do by regulation or statute, they should not be penalized. Otherwise, employers are faced with the potential that information developed voluntarily for the purpose of identifying and abating workplace hazards might be used against them during the course of an OSHA inspection.

Unfortunately, OSHA has to date adhered to an unwavering policy of refusing to limit the circumstances under which it may demand from an employer the results of voluntary safety and health audits. Currently, OSHA may use the employer's own audit findings as a basis for enforcement action as evidence, or more frequently, as a road map to look for evidence of the existence of possible violations or to support a willful classification. The threat that OSHA will demand and use the results of an employer's voluntary safety and health audit against it in an enforcement proceeding is a very serious disincentive to effective auditing.

This conflict or tension between employers who want to go beyond their obligations and OSHA, which is unwilling to limit its use of information developed during voluntary audits, is unnecessary and, we believe, unwise public policy. In our view, OSHA's current position leads to the decreased use and effectiveness of a critical component of voluntary employer safety and health programs for the sake of access to a possible source of evidence of a violation or of an employer's willful behavior.

OSHA's own investigatory process provides sufficient access to information necessary to determine whether violations have occurred, and whether violators acted willfully. OSHA's insistence on retaining this mechanism, despite its already capable investigatory authority, leads to the inescapable conclusion that a legislative change is essential to the advancement of workplace safety and health.

The conduct of self-audits by employers and the candid reporting of findings and recommendations have the potential for significantly enhancing the safety and health of American workers. Providing a degree of protection to the resulting reports and information as H.R. 2869 proposes would neither diminish worker protection nor unduly limit OSHA's enforcement authority. It will, however, encourage NAM-member companies and others to critically evaluate their safety and health programs and to identify and abate workplace hazards. Accordingly, the NAM is pleased to present its strong support for H.R. 2869, which we consider to be a voluntary self-audit promotion bill.

Again, personally, and on behalf of the NAM and ORC, we appreciate the opportunity to contribute to the Subcommittee's deliberations on proposals to enhance workplace safety and health. Further, Mr. Chairman, we wish to acknowledge your leadership and commitment to advancing this important issue.

I would be pleased to respond to any questions that the Subcommittee may have.

[The written statement of Mr. Salem is attached as Appendix D.]

 

Chairman Ballenger. Mr. Schwartz.

 

 

TESTIMONY OF RICHARD E. SCHWARTZ, ESQ., PARTNER, CROWELL & MORING, WASHINGTON, DC傍ESTIFYING ON BEHALF OF THE AMERICAN IRON & STEEL INSTITUTE

Mr. Schwartz. Mr. Chairman and members of the Subcommittee, my name is Richard Schwartz. I'm a partner in the law firm of Crowell & Moring. I'm appearing on behalf of the American Iron & Steel Institute, whose members process about 60 percent of the raw steel made in the United States and employ about 110,000 workers.

More importantly, AISI has been an active participant in OSHA rulemaking proceedings for many years. For about the past 20 years, I've represented AISI in many of those rulemaking proceedings, so I have personal experience with the problems that are being addressed by the peer review bill, H.R. 2871, and the notice bill, H.R. 2873.

I'd like to make three points about the peer review bill.

First, everyone recognizes that peer review is good science. The best example of the use of peer review in government, the most applicable example is the fact that EPA uses it and considers it an important mechanism in developing EPA's decisions on scientific matters. Peer review has been lauded by EPA as doing three things for EPA decisions: it improves their quality; it improves their credibility; and, it also helps EPA conserve resources by keeping it going off on the wrong track, which can be much more costly on the back end, than the amount of time spent on the front end. The EPA takes the position that its measure of scientific and work products should normally be peer reviewed. And this is the sort of requirement that the legislation that has been proposed today would have OSHA follow as well.

EPA has also pointed out that two of the primary source of work products that should be peer reviewed are risk assessment and economic analysis, which leads to my second point, which is that peer review would be good for OSHA because when OSHA sets standards, the two primary techniques that it goes through are, in fact, those very ones: risk assessment and economic analysis--the two things that EPA has identified as being extremely appropriate for peer view.

The third point I'd like to make about the peer review bill, and about peer review in general, is that it should be used well, and there are two aspects of that that are worth noting. The first is the credibility function served by peer review works only if the panel itself is neutral, and regarded as being neutral, which means that it's important that the panel be selected in that manner and that the statute provide for it. Section 7(b) of the current OSHA Act provides for selection of panels and has a specific provision on neutrality. We recommend that the Subcommittee look at it. Second, to conserve resources, peer review should be done not only after a regulation is proposed, but also in the planning stages because that's when the greatest impact of peer review can occur.

Now, the second bill I'd like to talk about is H.R. 2873, the notice bill. I'd like to relate two lessons learned by the American Iron & Steel Institute from its experience with the asbestos standard.

First, ignorance is not bliss. We discovered that we were covered by the asbestos standard only after it was promulgated. The reason was that it was regarded as a construction industry standard, and historically, general industries like the steel industry are not covered by the construction standard. The notices were simply inadequate to inform AISI's members that they would be covered, even though they're experienced professionals who make it their life's work to deal in these sorts of matters. As a result of this ignorance, there were no AISI comments, no steel industry comments on the proposed standard. The final standard had no analysis of the risks that asbestos might pose to the steel workers, and as a result of that, AISI commenced litigation. That was followed by protracted settlement discussions with OSHA which eventually ended in agreement, but only after both OSHA and the steel industry had expended an immense amount of time that should not have been required. This would not have happened if the notice had been proper in the first place.

The second lesson that AISI learned from the asbestos experience is that life is short, but the Federal Register is long. The final rule covered almost 200 pages. The coverage of the steel industry could be discovered only by wading through it and finding mention of the industry in a couple of pages of the Federal Register. Although the AISI-member companies have experienced professionals who make it their life's work to protect their workforces, it is a waste of their time to have to wade through lengthy Federal Register notices that don't apply to them.

What this bill would do is require OSHA to make it clear up front exactly who the proposed or final regulation does apply to. This not only will allow us to know that we're

covered, but also at the proposal stage will make for better regulations because affected industries will be able to comment on what OSHA has proposed. Thank you.

[The written statement of Mr. Schwartz is attached as Appendix E.]

 

Chairman Ballenger. Thank you.

Mr. Bishop.

 

 

TESTIMONY OF MR. JOHN W. BISHOP, PRESIDENT, GURNEE HEATING AND AIR CONDITIONING CORPORATION, CLOSTER, NEW JERSEY傍ESTIFYING ON BEHALF OF THE ASSOCIATED BUILDERS AND CONTRACTORS

Mr. Bishop. Mr. Chairman, members of the Subcommittee, good morning. My name is John Bishop. I am president of Gurnee Heating and Air Conditioning, and I am here today testifying on behalf of Associated Builders and Contractors. It's a privilege to be invited to testify, and we would like to express our views on H.R. 2879.

In this particular matter, ABC may occupy a rather unique posture in that our membership is industry-wide. We have attorneys蜂'm at haste to point out that I'm not one of them.

[Laughter.]

We have general contractors; we have subcontractors, associates, and suppliers. So we represent the full construction industry on this matter.

We have an active interest in safety and health. We have cooperated with OSHA in many cases, and negotiated rulemaking on fall protection, among others; we are strongly in support of jobsite safety. We're here today particularly to talk about multi-employer jobsites, which are difficult problems, and they shouldn't be minimized. There are no easy solutions when you're on the jobsite.

Even though OSHA has given guidance to its field compliance officers, we are still hearing a lot of complaints that citations are being papered toward everybody in sight without any real effort to find and cite only the responsible contractor. To our understanding, the purpose of H.R. 2879 is to codify these instructions that OSHA, in essence, has given to its field personnel to require that they find and cite only the responsible contractor. We support that greatly. We think that this bill does that, and we commend the Chairman for having introduced it.

We do think, however, that there is a problem still to be addressed with respect to that, in that, many times there are contractual agreements that result in transferring contractual liabilities between general contractors and subcontractors to insulate one party or the other from the financial effects of their own actions. We are surveying our members on the subject, but the overwhelming response is to object to that, and we think that some language should be put into

the bill to prevent the delegation of anyone's responsibilities for fines to any other person on the construction site.

When you get to the bottom line of our survey of our members, those members who identify themselves as both general contractors and subcontractors vote their express opinion as over 90 percent, that they believe the contractor responsible for the violation should bear the financial impact of that violation. So, where you have some general contractors who say well, we'd like to sign that out to the subs or we'd like to split it up in the job on a pool, or we'd like to do something like that, subcontractors always say, "Don't assign us anything.'' But even leaving those groups, those groups independently vote as a majority to require that there be no ability to transfer the financial responsibility for an OSHA violation to another party.

Like I said, the people who are in both shoes--over 90 percent穆ay that the responsible party should pay for his own violations and not be able to transfer that cost to somebody else.

Thank you very much for the opportunity to testify, Mr. Chairman. I would be glad to answer questions.

[The written statement of Mr. Bishop is attached as Appendix F.]

 

Chairman Ballenger. Mr. Sarvadi.

 

 

TESTIMONY OF DAVID G. SARVADI, ESQ., KELLER AND HECKMAN, LLP, WASHINGTON, DC

Mr. Sarvadi. Thank you, Mr. Chairman. Thank you for the opportunity to appear here before the Subcommittee.

My name is David Sarvadi. I'm now an attorney with the law firm of Keller and Heckman, but perhaps more importantly for this Subcommittee, I've been an industrial hygienist for 25 years. I spent most of my life, prior to coming to Washington, working on health and safety issues in the field of occupational safety and health, so I think I have a little bit different perspective than perhaps some of the other attorneys on the panel here.

I've participated in OSHA rulemaking since 1974. One of the first things I got involved in that year was the OSHA vinyl chloride proceeding; then subsequently, the benzene proceeding. I'm here today on my own behalf. I'm not representing Keller and Heckman's views. I'm not representing any other group, or any of our clients. I offer you my own views here, leavened by my experience as a health and safety practitioner, and based on my experience for the last 15 years here in Washington.

I will tell you though, that I do work with a couple of groups that have been active with OSHA: one is the Ferroalloys Association's Manganese Subcommittee; the other is the National Coalition on Ergonomics with regard to regulatory issue.

I support the bills that Mr. Ballenger has submitted on both peer review and the industry-by-industry analysis. These bills simply codify what are ordinary and sensible practices: to notify citizens who are directly affected by proposed government action of its eminence, and of the assumed facts that lead the government to act; and then secondly, to require that OSHA's scientific and economic decisions be considered by reputable scientists and experts outside the Agency.

My support for these bills is premised on the following statement: Our system of laws is predicated on due process to ensure that all of the views of interesting parties are heard and properly considered, and that our government does not take arbitrary, capricious, or uninformed and erroneous actions. Notice to and participation by members of the regulated community is essential to due process, and a sense of fairness. But openness is only one essential part of the concepts embodied in the notion of due process; a second one is a sense of being heard by those who make the decisions. And finally, the third element is the belief that the Agency's decision has an objective and substantial basis.

H.R. 2871 and H.R. 2873, in my view, simply codify what courts have long required of OSHA, and which OSHA, to a greater or lesser degree, has also attempted to do. So, I support Mr. Jeffress' statement that OSHA is doing some of these things, and I think the bills simply codify what is present practice.

Unfortunately, OSHA has not achieved a consistent level of performance in these areas that represents true due process and equal protection under the law by making interested parties aware of its initiatives, and in meaningfully responding to citizens' concerns. Without a meaningful response, the participants in the process are left with a half-full, half-empty feeling. Did they hear me or simply ignore my concerns?

Regarding peer review, the scientific decisions being made by agencies today are complex and difficult, often at the cutting edge of scientific knowledge. Given the changing nature of this knowledge, it seems unquestionable that it would be advantageous to have outside review of agency scientists' work. Indeed, in all other endeavors, an individual's efforts are subject to the kind of critical review that we think of when we use the words peer review.

A second reason for supporting peer review is that the agency staff cannot possibly have expertise in all of the areas that a regulation needs to address. It must of necessity consult outside experts. In this sense, the peer review bill simply requires OSHA to formalize what should already be a part of its process. And it offers the benefit of giving greater stature and prestige to the decisions which are now made solely by those on the inside. By involving eminent and knowledgeable experts, the ability of either proponents or opponents of a regulation to challenge the scientific effort, I think, is greatly reduced. Contrary to some other observer's opinions about the bill, I think it will shorten the time it takes to finish the regulatory process.

OSHA has analyzed many of its regulations on an industry-by-industry basis over the years, but its efforts have often been uneven and unsatisfactory. Specifically, it has not addressed issues such as significant risk on an industry-specific basis釦o its detriment in cases like the update of the some of the values in the Permissible Exposure Limit tables which limit exposure to hazardous chemical substances. Because of this failure to address the issues substance-by-substance and industry-by-industry, the courts overturned OSHA's decision, and vacated the new standards leaving in place standards which now have not been updated in more than 25 years. The record in this case, on which OSHA based its decision was, to be most kind, simply inadequate. There are other cases discussed in my written statement where OSHA's decisions and proposals have failed to address the unique situations of individual industries, and which have led unnecessarily to litigation, and often modification of OSHA's final rule.

I believe that the proposed legislation will reduce the number of cases where this occurs, because it will cause OSHA to focus its obligations at the industry-sector level before it proposes regulations affecting the whole of the economy. This is an important outcome, and more importantly need not delay adoption of effective standards.

I want to turn now to the peer review issue in H.R. 2873. This bill addresses an equally important issue. As OSHA continues to deal with scientific questions of cause and effect, both with respect to the injuries and illnesses that occur on the job and the cures that would eliminate them, it seems fair to say that the Agency lacks a complete set of experts to address all the issues.

Peer review of OSHA's scientific assessments will improve them, and bring a new degree of status and prestige to the agency's decisions. Individuals who are then dissatisfied with OSHA's current decision-making are much less likely to challenge a decision of a group of eminent scientists. This should in actuality, if not in effect, reduce the amount of controversy, and therefore, the resulting litigation over the scientific issues, and thereby shorten the time it takes for OSHA to develop standards.

Contrary to others who have considered this issue, I believe that most industry members are willing to live with whatever the science requires. It is only when the science is questionable that the controversy gains its most fervent energy. Indeed, of all the groups I've worked with the last 25 years, all have consistently agreed that where scientific evidence, not merely informed or biased opinion, supports a particular outcome, they have agreed to its necessity. This remains equally true today.

At present, it's unclear whether OSHA's hearing process really provides a real opportunity for critical discussion. There are no standards used to distinguish comments based on emotion and political advocacy in this process, from those comments that are based on reason and scientific research. The peer review process, I think, will change that, and bring the kind of debate to this process that is needed for a good standard-setting procedure.

[The written statement of Mr. Sarvadi is attached as Appendix G.]

 

Chairman Ballenger. Mr. Meighen.

 

 

TESTIMONY OF MR. THOMAS J. MEIGHEN, SAFETY & RISK MANAGER, AND VICE PRESIDENT, STROMBERG SHEET METAL WORKS, INC., BELTSVILLE, MARYLAND傍ESTIFYING ON BEHALF OF THE MECHANICAL ELECTRICAL SHEET METAL ALLIANCE

Mr. Meighen. Good morning, Mr. Chairman and members of the Subcommittee. My name is Thomas Meighen, and I will be testifying today on behalf of the Mechanical Electrical Sheet Metal Alliance in opposition to H.R. 2879.

The Mechanical Electrical Sheet Metal Alliance is a coalition of members of the Mechanical Contractors Association of America, the National Electrical Contractors Association, and the Sheet Metal and Air Conditioning Contractors' National Association. This alliance represents more than 12,000 construction specialty contracting firms nationwide which exclusively employ more than 540,000 union trades people with state-of-the-art technical

abilities. Alliance contractors hold a growing market share of more than 60 percent of the Nation's non-residential construction activity.

Alliance contractors annually spend over $175 million for apprentice training and journey person upgrade training. These union contractor firms and their local association chapters sponsor over 1,000 local training programs staffed by approximately 5,600 qualified instructors. Also, every alliance firm has an established formal training program utilizing a safety trained workforce, and they do make safety the cornerstone of their worksites.

It's worthwhile to note that several years ago, The Business Roundtable, a national association of more than 200 chief executive officers of the nation's largest corporations urged contractors and owners to develop a safety pre-qualification index for construction contract bidding purposes. The Alliance is proud to state that 100 percent of the contractors that they represent provide safety and health training to their employees.

In contrast, well under half of all construction firms invest time or dollars in training programs or jobsite safety, or in company safety personnel.

I act as a Safety & Risk Manager and as Vice President for Stromberg Sheet Metal Works. My responsibilities include safety, health, risk management, and benefits. Stromberg is headquartered in Beltsville, Maryland, and has operations in Maryland, Virginia, Washington, DC, North Carolina, and South Carolina. We are direct members of the Sheet Metal and Air Conditioning Contractors' National Association, and an affiliate member of the Mechanical Contractors Association of America. We employ nearly 450 workers.

Stromberg Sheet Metal has made a commitment to providing quality work without sacrificing the safety and health of our employees. We have a comprehensive safety and health program that has allowed us to work safely on many projects such as National Airport, the MCI arena, Walter Reed Army Medical Facility, the Library of Congress, even currently, the Washington Monument renovation work.

On behalf of the Mechanical Electrical Sheet Metal Alliance, I am pleased to have this opportunity to testify before the Subcommittee on H.R. 2879, legislation affecting liability for safety on multi-employer worksites.

Due to the possible disruption to workplace safety, and the ambiguous safety liability accountability proposed under H.R. 2879, the Alliance cannot support it. We believe that the measure would have the practical effect of degrading worksite safety conditions and performance industry wide. This legislation essentially allows contractors without employees on site to relinquish their safety and health responsibilities even though they control everything else that might occur on that site.

Beyond the major impact that H.R. 2879 would have on workplace safety responsibility on multi-employer sites, it is possible that exemption from OSHA citations for certain contractors or construction managers would lower the level of safety attentiveness, and ultimately, the OSHA compliance on the projects. Furthermore, the measure fails to address other integrally related issues surrounding whether contractors should be permitted to shift or avoid compliance responsibility for Federal safety laws, and subsequent penalties through private contractual provisions.

I understand that Mr. Jeffress, the Assistant Secretary for OSHA, has expressed his intent to request the Solicitor's Office at the Department of Labor to investigate the legality of the practice of requiring subcontractors to pay all or a portion of another contractor's penalties. This is a very important public policy question that affects every contractor and employee under multi-employer construction site nationwide.

Since the vast majority of work on construction sites nationwide is performed by construction subcontractors, we urge you to give strong consideration to the subcontractor perspective, especially since much of the negative impact of this legislation would be felt by subcontractors and their employees.

I would like to thank the members of the Subcommittee for this opportunity to testify on behalf of the Mechanical Electrical Sheet Metal Alliance, and I will be happy to answer any questions that you may have.

[The written statement of Mr. Meighen is attached as Appendix H.]

 

Chairman Ballenger. Thank you Mr. Meighen.

Mr. Jeffress, last week Representative Greenwood introduced his bill to allow OSHA enforcement in U.S. Post Service facilities. The basic idea is they are in a competitive situation where they have a distinct advantage over Federal Express and the other businesses that do the same thing they do, except they don't have to worry about OSHA while everyone else does. I think the idea was to level the playing field. Fact is, I wouldn't mind also covering Federal employees, but it might be too much considering that if we took all the inspectors you have currently divided it into all the businesses that should be inspected, you'd inspect somebody only once very 87 years.

Do you see any rational reason why the Postal Service shouldn't be covered?

 

Mr. Jeffress. Mr. Chairman, I believe all public employees should be covered. The Postal Service is, I guess, quasi-public at this point, but they certainly have employees exposed to substantial hazards having been experiencing worker's compensation injuries. I think that coverage by OSHA is an incentive to employers to improve safety and health programs, and I believe all public employees should be covered. I don't object to their coverage, but I would encourage you to consider a covering all public employees.

If you will recall our experience in North Carolina in 1993, the General Assembly extended the provisions of the OSHA Act to all public employees. Previously, they had been covered for inspection purposes, but not for penalty purposes, similar to the way Federal employees are currently covered. What happened? There was a significant increase in the number of safety and health professionals employed to look at safety and health in public sector worksites, following by a significant increase by the public sector in worker protections. After two years, we saw a significant decline in injuries and illnesses in the public sector. So, I believe that it makes sense to cover all public employees, including the Postal Service.

 

Chairman Ballenger. Well, let me throw one at you since our two subcontractors came up on opposite sides of the fence. Where do you stand on indemnification agreements?

 

Mr. Jeffress. I'm very concerned about the agreements. Current OSHA policy of multi-employer worksites says that the general contractor, who is responsible for everything else on that site, is responsible for safety as well. We can't farm out safety. They have some obligations for safety and health at that site.

There is a small practice, although I fear it may be growing, of general contractors saying to a sub: Well, if OSHA's going to cite us and penalize us, then we're just going to make you pay the penalty. So our public policy of just trying to hold the general contractor responsible for safety and health like they are for everything else is eviscerated if the general contractor simply passes on the penalties to the sub. The responsibility means nothing if there are no consequences, so I am very concerned about that practice. Let me say I've talked to many, many job contractors who don't support that practice and think it's a poor practice. It's not widespread, but I am concerned enough about it to have asked our solicitors to look at whether it is undercutting public policy in some way that might be addressed.

 

Chairman Ballenger. Mr. Salem, let's discuss self-audits. In my own company, back in the days before I was smart enough to be scared of OSHA

[Laughter.]

I invited my insurance company to go through my plant and tell me what was wrong. Obviously, we would try to do most everything that was requested of us. The problem is whether we would have accomplished everything before OSHA came in to inspect. Is that not what you are worried about, Mr. Salem, that a self-audit would convict you in any situation like that?

 

Mr. Salem. That is a great deal of what we're worried about. In the case you described, you're an employer who is trying to provide a safe and healthful workplace, then you also have OSHA coming in and second-guessing a lot of what has been done to comply with the audit. Quite often, the safety and health professional who conducts one of these audits is going to go a little overboard and is not going to consider the bigger picture in terms of dealing with things. Also, it's just one opinion. Then, Mr. Chairman, what is increasingly happening is that OSHA compliance officers will just go straight to the audit and use it as a road map for conducting their investigation. That is directly contrary to the public policy of trying to encourage employers to do exactly what you did, which is to self-identify, voluntarily comply, and for very good business reasons try to provide a safe and healthy workplace.

As a former solicitor myself, I can understand that it is easier to prove a case when you have access to these audits. It is easier also to prove a case if you don't have a privilege against self-incrimination, if you don't have due process, if you don't have any of the Constitutional guarantees that this Country provides.

We have to encourage employers to go above-and-beyond the requirements of the law. We must balance the public policy objective of encouraging voluntary promotion of safety and health against the ability to prove a case. We've proved lots of cases. I've been involved both in the Government and out in dozens of egregious cases including creation of the egregious policy, for heaven's sake. In those cases where there are fatalities, you can prove your case. You don't have to have audits to do that.

I believe there are sensible ways to deal with this issue. I believe there are ways that we can deal with the need of an employer to conduct these voluntary self-audits, and not have them used against them--along the lines of the old EPA model. What EPA did in the 1980's made a lot of sense. What they're doing now is insane. It's more of a penalty mitigation mechanism than it is an attempt to deal with safety and health in the workplace.

 

Chairman Ballenger. Let me just say that I sat down with a group of business people, and I won't mention any names, and one of the gentlemen told me he had the ideal way to handle this matter頬ust conduct safety audits then shred them.

Charles, you shake your head, but it's very simple. You can't get somebody for something頬ust ask the President吠f it disappears or has been shredded. You just can't get him. We've discovered that already.

[Laughter.]

 

Mr. Salem. Mr. Chairman, people are laughing, but this is what is happening. Not only are they doing that, but they're bringing in law firms. I can't tell you the number of safety and health consultants I've retained for clients to conduct these audits so that we can attempt to cloak it into privilege. That adds an unduly cumbersome layer, unnecessary expense, and most people probably aren't going to go to such a cumbersome level to get the job done.

 

Chairman Ballenger. Right. Major Owens.

 

Mr. Owens. Mr. Salem, in order to have the benefit of the EPA audit privilege, an employer must inform EPA of all hazardous files, and must agree to correct those hazards within 60 days. I was going to ask whether you propose that all employers should be subject to something similar to that. I was going to agree with you, but it sounds as if you don't exactly approve of EPA audits.

[Laughter.]

Am I correct?

 

Mr. Salem. You're right, Mr. Owens, and I appreciate your raising the question. The old EPA policy of the 1980's, from my perspective, is the one that made a great deal of sense. Back then EPA would not seek audit results unless they were investigating criminal misconduct. That's gone through a few evolutions now, and my EPA-type colleagues are telling me that what happens now is you self-audit.

EPA penalties are so extraordinarily much larger than OSHA penalties that you use it as a penalty mitigation device, and you get into that. I gather that 23 States have

 

Mr. Owens. Thank you very much.

Mr. Salem. Thank you, Mr. Owens. I appreciate the question.

 

Mr. Owens. I want some opportunity for the Assistant Secretary to comment on any of the various testimonies, if he would. He's heard what the other witnesses had to say. We don't have him up here often, so I think it's important to take this opportunity to hear his comments.

 

Mr. Jeffress. Thank you Mr. Owens. I appreciate the opportunity to respond.

I would like to comment on the peer review bill, and the comments of some of the panel members. Mr. Sarvadi and American Iron & Steel Institute expressed a lot of confidence in the peer review process. I'd like to remind the gentlemen that recently the National Institute of Occupational Safety and Health prepared a document on ergonomics that was peer reviewed. Given that confidence in peer review producing good science, it's my expectation now that they will accept the results of this report on ergonomics. My suspicion, however, is that they won't.

[Laughter.]

My suspicion is that peer review as a panacea is not really a panacea. I suspect that people who are pushing peer review have some concern about the outcome of some of our rulemakings, as opposed to the process.

I would again urge you all to consider that a process that involves public debate, that involves cross-examination of individuals who are presenting information is far superior to a panel釦hat is, a panel that gives their report on paper back to the agency and is not subject to the kind of public cross-examination that we have in OSHA.

One further response on the bill on audits. I understand what Mr. Salem is suggesting about the fishing expedition nature of, or the using of the road map by, OSHA compliance officers. It's important to understand that OSHA doesn't go in with the intent of using audits as a road map. In fact, we look at what the employer is required to do by OSHA, and we ask to see information that they are required otherwise to do. When we find a violation, when we are investigating an accident, if that employer has information that bears on that, we need to know that.

If there is room to discuss how the OSHA audits access can be used to mitigate penalties, I'm open to discussing that. If there is a discussion of some over-broad application, as Mr. Salem suggests, I'm open to discussing that. But the bill before you provides a total blanket privilege for any information developed by an employer, and closes OSHA off from information we need to pursue our investigation.

 

Mr. Owens. Thank you.

Mr. Meighen, has your company been forced against its will at any time to accept contract terms which indemnify the general contractor for fines it receives from OSHA, and do you believe that general contractors that are cited and found liable for OSHA violations should

be able to force lower-tier contractors to pay or to share the cost of the fines associated with the citations?

 

Mr. Meighen. I have seen those contracts. We're unfortunately at the bottom of the food chain even as large as we are. Sometimes we're on a jobsite before we even have the contract in hand, and we often work under the mechanical contractor. So, in many situations, we do not even see the contract and its terms and agreements that we are being held to, since it is a contract between the mechanical and the general contractors.

We have signed some of those contracts in the past. Should it be passed down? No, I don't agree that it should be. Part of the concern is that if a large mechanical or a large general contractor that has been cited before in a particular situation might get hit with a repeat citation. What should have started off as a very minor fine of say $1,200 might turn into a fine of $70,000 if it's a repeat violation. To pass that fine down would certainly not be fair to the lower-tiered subcontractor.

But I have seen those contracts, yes sir.

 

Mr. Owens. I think you mentioned large corporations using a safety pre-qualification index similar to experience modification ratings for safety performance to select safe and safety-conscious contractors and subcontractors. Would you explain that a little more?

 

Mr. Meighen. Yes. More and more before we bid, particularly on the larger jobs and more technically oriented jobs, we're required by the qualifying general contractor or owner to submit safety information that might reflect our safety performance over a past period of several years. It might be information regarding our worker's compensation experience over the past several years, and what they call the worker's compensation experience mod, which you can use to judge contractors in comparison to their peers.

Also, some have requested OSHA information on that same form, which I don't necessarily agree with because the larger contractor will stand the greater opportunity of being cited by OSHA than would a smaller contractor, just by the nature and the number of jobs that they do. But more and more, I do see that information being requested, and I do recommend that. I think it helps qualify a better employer.

 

Mr. Owens. Thank you. Are any of the panelists aware of the positions taken by The Business Roundtable, which is a national association of more than 200 CEO's of the nation's largest corporations? What do they have to say about the duty of a general contractor or a construction management team to emphasize and direct jobsite safety? Have you seen their position? Mr. Jeffress.

 

Mr. Jeffress. Yes, sir, I have. They have published a booklet on owner and general contractor responsibility, and they very affirmatively declare that the general contractor should be held responsible for safety and health on the jobsite.

 

Mr. Owens. Mr. Bishop, did you have a comment?

 

Mr. Bishop. Yes. We are aware of those policies, and we understand that. The issue that we're trying to drive at in our comments is that the construction jobsite is a very complicated environment. It goes on for a long period of time. A steel contractor cuts a hole for a stairway, constructs the stairway, puts up some protection, and leaves. He could be gone for a while. We see instances where the work was done properly, the safety was there, but something was disturbed during his absence, and nobody told him about it. He gets a citation, the general contractor gets a citation, maybe, and we object to that. We think there should a responsibility to determine who is responsible and cite only the responsible party. Obviously, in that case, the general contractor has the overall responsibility for the site and he would be the one in the position to know that something has disturbed the safety protections or that something has disturbed the--

 

Mr. Owens. The responsibility should be the general contractor's?

 

Mr. Bishop. In that case, yes, but not if the subcontractor who is doing the work is on the site at the time. Then the subcontractor is responsible. You know, it's my home I've got to protect it.

 

Mr. Owens. Thank you.

 

Chairman Ballenger. Mr. Norwood.

 

Mr. Norwood. Thank you very much, Mr. Chairman. I appreciate your having this hearing. I particularly appreciate your introducing these bills, and I support you in every way.

I'd like to take this opportunity to point out why we so badly need this legislation. Then, I have one other thought I'd love for you to add in addition to what you've already added.

A terrible tragedy occurred down in Atlanta, Georgia, recently at one of the seven primate research centers that we have in this country. Elizabeth Griffin died less than two months after being splashed in the eye with a monkey's bodily fluid. She was wearing gloves, a mask, and a lab coat, but she was not wearing eye shields.

Now none of us ever wants to see something like that happen again, but because of the death in comes OSHA to examine the situation, and I find it pretty interesting what's going on there. Number one, OSHA has no standards regarding the handling of research monkeys. There is no standard about that, but there is a standard about eyewear. I'm not sure I understand it. Apparently, it's one of those situations where if there is a safety situation involving the eyes, then protective eyewear is to be worn. Everybody ought to know that. But the standards in this small industry of seven research centers were worked out pretty thoroughly by these seven centers and CDC in 1990. Worker safety guidelines for the handling of monkeys in these research centers were actually developed by Urgy's and CDC, and other laboratories, not by OSHA. They helped create the industry's standard and were in complete conformity in this case.

Yet, our friend Mr. Jeffress says Urgy should have been aware of some of the dangers because of the reports of the CDC, yet it failed to adopt the clean, simple recommendations for protecting workers. This is just factually incorrect. There are extensive prevention guidelines, and I have them right up here with me. This is one of those cases where you can't always know exactly the right thing to do. The CDC says in one of its early guidelines that all monkeys should be regarded as infected with the Herpes B virus, that direct handling of monkeys should be minimized, and that handling fully awake monkeys by hand is not recommended. That makes sense if you've ever seen a crazy monkey. You wouldn't want to hold one that had not sedated.

[Laughter.]

These standards say that handlers shouldn't remove physically active animals from cages. Well, they don't. They administer sedatives to these animals, so you can actually deal with them and move them from spot to spot. The reason they say that is because there is considerable proof out there that the Herpes B virus is transmitted through biting and scratching.

Now what happened in Atlanta is the first documented case in the country where transmission of the Herpes B virus has occurred through eye contact. But the industry, including CDC, has said there is also a problem with eyewear fogging up because that could lead to what we consider the number one danger of Herpes B transmission殆hich is biting and scratching. So, there are situations where you would be safer not wearing the eyewear.

Now that was the only standard out there, and it was the standard followed by Urgy's. We talk about good faith, but OSHA ran in and fined them over $100,000 for a willful violation. It was not a willful violation. They were doing the best they could under the industry protocol. If OSHA wanted to set protocol, it ought to set protocol, but it doesn't say anything about monkeys.

Mr. Chairman, I hope that at some point in time you will allow us to have a hearing to really look into this because this is probably politics more than it is safety and health. It may have a lot to do with the Humane Society, that doesn't have anything to do in Atlanta, and they're spending a lot of time out there. I don't know, but I want to get to the bottom of it.

[Laughter.]

I get the feeling, Mr. Chairman, there's a contest to see who in this town has the biggest hammer: Will it be HEGPA? the EPA? the IRS? OSHA? That doesn't lend itself to good faith actions when you get that kind of warm and fuzzy and feeling that no matter what you do someone in government is going to bust your chops. So, Mr. Chairman, in your effort to add and codify into law some very good ideas, I would request that we also look at codifying into law a ``loser pays'' provision so that when OSHA cites people for violations that are later thrown out of court for being frivolous or unwarranted citations, OSHA has to pay for that.

Thank you very much, Mr. Chairman.

 

Mr. Jeffress. That wasn't a question, was it?

[Laughter.]

Chairman Ballenger. Ms. Woolsey.

 

Ms. Woolsey. Well thank you, Mr. Chairman.

First of all, I'd like to respond to my colleague's comments about the worker's death in Atlanta not involving safety and health. What could apply more to safety and health than the death of a worker? The woman died. Obviously, something was wrong.

 

Mr. Norwood. Would the gentle lady yield?

 

Ms. Woolsey. Well, let me just finish. When I'm finished, then yes, I suppose. But, I want to go on just a tad, Mr. Norwood.

[Laughter.]

 

Mr. Norwood. Yield at your own risk, madam.

[Laughter.]

 

Ms. Woolsey. Yes. Well, I'm not worried about my risks. Safety and health is something I worry about. I was a Human Resources Manager for over 20 years, a professional, and our safety and health policies erred on the side of caution. In the electronics industry, if a worker was cutting the wires on a printer circuit-board and those wires went flying, there was a lesson to be learned there. Caution would seem to dictate that safety goggles be worn in that situation. That was important because a near miss was as clear as you could get to an accident without a person actually dying.

So, I think we all know that what we're here about today is success for business. But we have to know that businesses will not be successful if their employees aren't safe. A safe workplace results in better morale, better attendance, and absolutely better performance because people feel better about their workplace. There's no question about it.

To be angry at OSHA because a worker died, and OSHA cares, what if OSHA didn't care that this worker died? We've got to do something about that, because we learned something from that lab experience, to say the least. But bottom line, businesses do better, large and small, if their workers are protected because workers do better.

So Mr. Norwood, I'll let you comment for just a minute because I do have a question for Mr. Jeffress.

 

Mr. Norwood. Well, thank you, ma'am. You're kind to yield.

Let me just point out to you that I can fairly well assure you that the people in Atlanta, Georgia, who lost their co-worker care a lot more about that than the people who are in office here in Washington, DC. So they are concerned. They were so concerned that they and the CDC passed guidelines saying that the safest, most protected procedure for our workers is for them not to be bitten or scratched by these monkeys, and don't wear goggles because they fog up, and we have a history of problems with bites and scratches. We have no history at all--

 

Ms. Woolsey. Well, if you'll yield back. First of all, there's new non-glare eyewear, new glass and plastic that actually doesn't fog up. So, I mean, they could have gone beyond that.

Now, my question to you, Mr. Jeffress, is: When OSHA receives information from private audits, are the employers given time to rectify those situations before OSHA would penalize them if they showed up on the scene?

 

Mr. Jeffress. One of the things we look at when we have access to that information is what did the employer do in response to getting that information? If the employer has responded by taking some action, then we credit them with good faith. The only time we react negatively is when they have done nothing.

To give you an example that's perhaps more understandable to everyday folks, it's like taking your car for a car inspection. We're all required to do that from time-to-time. If I don't know that my brakes are bad and an accident occurs on the way to the inspection, folks are going to look at me one way. But if I know that my brakes are bad because an inspector has told me so and an accident occurs when I go ahead and drive the car anyway, then the situation is very different. I think I have an extra duty, an extra obligation because I know the danger is there. So in those situations, we do take action against employers.

 

Ms. Woolsey. So good faith effort does make a difference?

 

Mr. Jeffress. Yes ma'am. Good faith effort does make a difference.

 

Ms. Woolsey. Have we talked at all about the regulations giving an employer some time span to correct a workplace hazard?

 

Mr. Jeffress. Whenever we find a violation, we set an abatement period for an employer to fix that problem. If the employer doesn't fix it within that time period, there are additional penalties.

When we find that an audit was just recently done by an employer, that a problem was just recently discovered, do we site them right then for failing to act on that audit? No, but we would look at it as something you should have known a year ago. There's not a specific period of time, but if they have just discovered it, and they act in good faith, we give them credit for that good faith.

 

Ms. Woolsey. Thank you. I've used my time.

 

Chairman Ballenger. Mr. Fawell.

 

Mr. Fawell. Thank you, Mr. Chairman.

I'm going to zero-in on the peer review concept. It seems to me that if you're setting standards that it is wiser to bring in your critics, to know who out there might be affected. Once you identify them, you can then perhaps neutralize the animosity of your potential opposition. So for that reason, it seems to me that peer review, to try to identify who is going to be affected, certainly would bring in the best science possible. Most certainly, if you bring in those people who will be your greatest critics, and if you're successful there, you're going to have fewer problems down the line. Also, you're bound to get an education; no matter how much we know, or how much we think we know, there are always a lot of things we don't know, of course.

I'd like to hear some comments on that. It seems to me to be imminently consistent with common sense that we suggest in standard setting that we do that when at all possible. Any comments on that from Mr. Sarvadi, and then Mr. Jeffress?

 

Mr. Sarvadi. Thank you, Mr. Fawell. Actually, I thank you for the opportunity to respond to that because I think it is important to distinguish between the process that NIOSH used in the ergonomics preparation, which was a closed door process.

I think what the bill contemplates is one that's open, and in the sunshine. As we all know, the best disinfectant is sunshine. So, I agree with you completely. The opportunity to get together in a room to talk about this in public, to deal with the scientific questions, to understand what the scientific consensus is釦his is the essence of the peer review process that is going to be codified in the bill.

I would support it personally, and I am quite sure that the National Coalition on Ergonomics would support the kind of peer review process that is contemplated by the bill. I think what we would object to is the kind of thing that NIOSH did where they consulted experts privately and did not provide copies of the document for other people to look at, at the same time.

When we reviewed what NIOSH actually did, and how they responded to the peer review, we found that they did not address all of the comments of the peer review. And I think it's pretty obvious that if you're in an open, public forum that kind of response is not going to occur.

 

Mr. Fawell. Yes, Mr. Schwartz.

 

Mr. Schwartz. If I may. I want to respond to two points that Mr. Jeffress made earlier. The first was that people who are complaining about peer review are just doing it because they don't like the result. That's not the case at all. In the PEL litigation, when the 11th Circuit overturned 428 standards, we strongly opposed what OSHA did based on the science. So did the unions. This was not a matter of mere partisanship. There is a concern for good science, and the purpose of peer review is to introduce a neutral and independent viewpoint that no single party has control over. So, if we want peer review, its' not because we don't like OSHA's result its' because we think we're right. If we're wrong, the peer review panel will tell us we're wrong.

The second point is that the EPA's policy has also dealt with the issues that Mr. Jeffress raised. He said that we have all these procedures, therefore, we don't need peer review. My response is that those procedures really aren't a substitute for peer review. The EPA has said that for peer input informal consultation is not a substitute; stakeholder input is not a substitute; and, public comment is not a substitute. They don't provide the credibility; they don't provide the chance to conserve resources; and, they don't provide the formal, neutral, more widespread response and professional response that peer review does supply. That's why peer review can't be substituted for these other mechanisms.

 

Mr. Fawell. Mr. Jeffress.

 

Mr. Jeffress. Let me say, I concur wholeheartedly with your comments. It's very important that we as a Government agency responsible for regulatory activity invite into the process those affected by it, those critical of it, those who wish we didn't exist, or those who wish we weren't regulating a particular area. I think that is a very important part of what we have to do. We make a great effort to do that when we hold public hearings and have people cross-examine one another. Many of the people who come to testify and participate oppose what we're trying to do or have think there's a better way to do it. I think we listen to them very carefully. The opportunity for this to occur in a public setting is very important.

The bill before you doesn't provide a public setting. Mr. Sarvadi commented that it would be a public process, but that's not what this bill says. This bill is a closed, private panel. The public part of it is important; the cross-examination is important. So I endorse wholeheartedly your concept, and I submit to you that what you will find if you come to one of our hearings is that we have invited those critics, that we have invited people to participate. Several people on this panel have said they have participated, and I think we do consider those comments very seriously.

 

Mr. Fawell. All right, thank you.

 

Mr. Owens. Mr. Chairman. For the record, I would like Mr. Meighen and

Mr. Bishop to provide us with copies of contractual provisions that hold a subcontractor liable for violations that were committed by a general contractor. Also, if they have any relevant cases holding these clauses as being enforceable, that would be useful as well. Within the next ten days, if possible, I would appreciate it.

 

Chairman Ballenger. Well, as I've said over and over again, everything we've got drawn up is not set in concrete. And you know, Charles, we try to negotiate.

Mr. Salem said in his statement that he thought he had some efforts that might open up that specific one. If it were an open panel review, would that be acceptable? These are questions that I would just like to plant in your mind because I've already proved two-and-a-half years ago that trying to change OSHA with a great big old bill ain't gonna fly.

[Laughter.]

Maybe we could aim for a few small things that not only would make OSHA work better as a Government operation, but also would help business out. Generally speaking, that's what I'm trying to do with these six or seven bills.

Well, in closing, let me just thank all of you for coming. We realize that your time is rather limited and very valuable. We truly appreciate your coming in to testify today. Thank you.

If there is no further business, the Subcommittee stands adjourned.

[Whereupon, at 11:46 a.m., the Subcommittee adjourned subject to the call of the Chair.]