TESTIMONY OF THE HONORABLE THOMAS E. PETRI, A MEMBER OF CONGRESS FROM THE STATE OF WISCONSIN *

TESTIMONY OF THE HONORABLE ROBERT E. ANDREWS, A MEMBER OF CONGRESS FROM THE STATE OF NEW JERSEY *

TESTIMONY OF THE HONORABLE ROY BLUNT, A MEMBER OF CONGRESS FROM THE STATE OF MISSOURI *

TESTIMONY OF THE HONORABLE NANCY PELOSI, A MEMBER OF CONGRESS FROM THE STATE OF CALIFORNIA *

TESTIMONY OF FRANK A. WHITE, VICE PRESIDENT, ORGANIZATION RESOURCES COUNSELORS, INC., WASHINGTON, DC *

TESTIMONY OF STANLEY J. BIGOS, M.D., BONE AND JOINT CENTER, UNIVERSITY OF WASHINGTON MEDICAL CENTER, SEATTLE, WASHINGTON *

TESTIMONY OF MICHAEL I. VENDER, M.D., HAND SURGERY ASSOCIATES, ARLINGTON HEIGHTS, ILLINOIS *

TESTIMONY OF STANLEY D. WEINRICH, M.D., VICE-CHAIR, VOLUNTARY PROTECTION PROGRAMS (VPP) PARTICIPANTS ASSOCIATION *

TESTIMONY OF ERIC FRUMIN, DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH, UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES, NEW YORK, NEW YORK *

Appendix A – H.R. 987, THE "WORKPLACE PRESERVATION ACT" *

Appendix B – H.R. 1438, THE "SAFETY AND HEALTH AUDIT PROMOTION ACT" *

Appendix C – H.R. 1439, THE "SAFETY AND HEALTH AUDIT PROMOTION AND WHISTLEBLOWER IMPROVEMENT ACT" *

Appendix D – H.R. 1459, THE "MODELS OF SAFETY AND HEALTH EXCELLENCE ACT" *

The subcommittee met, pursuant to notice, at 10:30 a.m., in room 2175 Rayburn House Office Building, the Honorable Cass Ballenger [chairman of the subcommittee] presiding.

Present: Representatives Ballenger, Barrett, Hoekstra, Boehner, Isakson, Owens, Martinez, Woolsey, and Sanchez.

Majority Staff Present: Gary L. Visscher, Workforce Policy Counsel; Ashley Rehr, Professional Staff Member; Mark Rodgers, Workforce Policy Coordinator; and Jason Ayeroff, Staff Assistant.

Minority Staff Present: Peter Rutledge, Legislative Associate/Labor; Maria Cuprill, Legislative Associate/Labor; Cassandra Lentchner, Special Counsel, Investigations; and

Marjan Ghafourpour, Staff Assistant/Labor.

Chairman Ballenger. A quorum being present, the Subcommittee on Workforce Protections will come to order. According to Rule 12(b) of the Committee Rules, any oral opening statements at the hearings are limited to the Chairman and the Ranking Minority Member. If other Members have opening statements, they will be included in the printed hearing record. This will allow us to hear from our witnesses sooner and will help Members keep up to their schedules. Without objection, all Members’ and witnesses’ written statements will be included in the hearing record.

Today, the subcommittee is meeting to receive testimony on four bills: H.R. 987, the "Workplace Preservation Act"; H.R. 1438, the "Safety and Health Audit Promotion Act";

H.R. 1439, the "Safety and Health Audit Promotion and Whistleblower Improvement Act"; and H.R. 1459, the "Models of Safety and Health Excellence Act." A copy of each bill will also be included in the hearing record.

[Copies of H.R. 987, H.R. 1438, H.R. 1439, and H.R. 1459 are attached as Appendices A, B, C, D, respectively]

I want to thank our witnesses for coming today and giving us the benefit of their perspective and their expertise on these bills. I especially want to acknowledge the appearance of our colleagues Representatives Petri, Andrews, Blunt, and Pelosi who will testify on our first panel today.

Rather than talk about the bills on which we have such expert testimony today, I am going to confine my opening remarks to section 3 of H.R. 1439, which contains the changes I am proposing to the whistleblower provisions in section 11(c) of the OSH Act. Let me say first that these changes are substantially the same whistleblower protections that I first proposed in the 105th Congress as part of my comprehensive OSHA reform bill. They are consistent with my approach to OSHA, which is that, as much as possible, OSHA ought to foster voluntary employee-employer initiatives to ensure safe working conditions.

As I have said many times, OSHA can't be the policeman of the workplace. A regulatory and enforcement approach based on such a mistaken notion is certain to be highly ineffective and inefficient. Safe working conditions are primarily the result of employers and employees efforts, not OSHA enforcement. Employees who are legitimately concerned about safety and health in their workplace ought to feel assured that they can raise those concerns without losing their jobs for doing so. The vast majority of employers, I believe, does welcome legitimate complaints and seek to address them. Employers don't want accidents and injuries to happen. I am realistic enough to know, however, that not all employers respond to employee complaints as they should. That's why the protections afforded in 11(c) are important. I am also realistic enough to know that any such provision in the law can be misused by disgruntled employees who have been disciplined or discharged for reasons unrelated to safety and health. For these reasons, it is important that this legal process provide a balanced, fair, and timely way of resolving any complaints for violating an employee's 11(c) rights.

Under section 11(c), as it written currently, an individual who files a complaint has no assurance that the complaint will be resolved in a timely and fair fashion. The individual files a complaint with the Department of Labor, and it is then completely up to the department to decide whether, when, and how to proceed. Occasionally, the department becomes a black hole. Complainants have waited for years for people in the Department of Labor to simply make a decision. There is truth to the saying that justice delayed is justice denied. A decision, even one against the complainant, is better than having no decision at all while the matter sits for years in a Government office. So my proposal, which I made four years ago, is to assure the complainant the opportunity for hearing and then a decision, an administrative private right of action. I believe that this, along with giving employees additional time to file their complaint, addresses the issues that have been identified in the current 11(c) provisions.

I am aware of the fact that next week the Clinton Administration intends to announce its proposed changes to section 11(c) of the OSHA Act. Based on the reports that I have seen, the Administration’s proposal would not ensure a timely hearing and decision, but would undermine the procedural balance so important to fair adjudication of whistleblower cases. I hope the Administration will reconsider their approach. We have an opportunity, I believe, to work together to achieve constructive changes that will benefit employees; however, it will be very difficult to achieve constructive change if the Administration's goal is to go beyond the issues that I have mentioned and to pursue changes that would undermine the fairness and balance of 11(c) decisions.

Again, I want to thank our witnesses. I expect that shortly the Subcommittee will mark up the bills that are before us today, so your testimony is very helpful to our consideration of them.

I now recognize Mr. Owens, who wishes to make an opening statement.

[The written statement of Chairman Ballenger, along with letters submitted for the record, is attached as Appendix E.]

Mr. Owens. Mr. Chairman, I would like to note that in a speech last night on the floor, I talked about the attack on working families.

I talked about the need to reward working families by allowing them to share in the wealth and prosperity of America. We have gone from $3 trillion value of the stock market in 1989 to a $13 trillion value of the same stock market in 1999. That's a great increase in wealth and prosperity, and I think we ought to spend some of our time talking about ways that working families can share in this, beginning with the minimum wage increase, some healthcare legislation, and some improvements in education, which can help families.

I also talked about the fact that in the 105th Congress the attacks on working families and the provisions of the Government and the provisions in our laws that protect them_the 105th Congress it was a frontal attack. We had to defend ourselves beginning in January of 1997 from H.R. 1, the attempt to take away cash payments for overtime. And there was the Paycheck Protection Act that followed that, and numerous other bills that were frontal attacks on working families.

Today we have a collection of bills which, except for one, represents a new approach. It's guerrilla warfare now. You are ambushing and bushwhacking the working families with small, chip-away actions. I would like to make note of that from the very beginning.

I would also like to thank Mr. Petri and the one here that we are really working together on something solid. An effort to reach out to Democratic Members that he and his staff have used, employed is to be commended. H.R. 1459, a bill to codify the Voluntary Protection Programs, is a great step forward. While I believe that there are modest improvements that can still be made to the bill, I look forward to working with Mr. Petri and Mr. Andrews on this issue.

Additionally, I want to welcome Mr. Blunt for his participation in the debate, which has been going on for sometime. I also want to welcome an ally on the ergonomics issues, Mrs. Pelosi, from the powerful Appropriations Committee. We appreciate her being here.

Since I will have to leave before this hearing is over, I want to take this opportunity to welcome Eric Frumin, who is from my district. Mr. Frumin is director of occupational safety and health at the Union of Needletrades, Industrial and Textile Employees and a foremost advocate for OSHA in New York State.

As the Voluntary Protection Program has shown, voluntary cooperative programs can be very beneficial in promoting and protecting the health and safety of workers. However, to be effective, volunteer programs must be backed by an effective OSHA enforcement program.

That leads me to H.R. 1438 and H.R. 1439. These bills are similar to legislation we considered last Congress that sought to extend a privilege to health and safety information generated by an employer. While I note that changes have been made, regrettably the bills appear to suffer the same overriding defects as last year's bill, H.R. 2169.

I certainly share Mr. Ballenger's desire to encourage employers to perform health and safety audits, but not at the expense of effective OSHA enforcement. Before I will support an audit privilege bill, I must have confidence that hazards identified in the audits will be corrected.

Far from ensuring that the bills before us today seem to protect the ability of some from ensuring that, the bills before us seem to protect the ability of the employers to hide the fact that they did not comply with the law.

Now, on to even more dangerous business at hand, H.R. 987, that is a smokescreen to keep OSHA from issuing its ergonomic regulation. There is no mandate from the Appropriations Committee that inhibit OSHA from moving ahead to issue its ergonomic regulation.

The National Institute on Occupational Safety and Health reviewed the scientific literature and found a substantial body of credible epidemiological research providing strong evidence of an association between musculoskeletal disorders and certain work-related physical factors. And the National Academy of Science concurred.

At the insistence of the majority in the House, the National Academy of Science conducted a six-month study, not a two-day study, as the majority would like us to believe. And they found compelling evidence that interventions can avert injuries. Work-related musculoskeletal disorders cost employers between $15 and $20 billion in workers compensation cost each year.

In testimony before this subcommittee, Dr. Linda Rosenstogg, Director of the National Institute for Occupational Safety and Health, summarized it best, and I quote, "In science as in life, knowledge may be imperfect, but to deny what we know about these complex problems is to deny the American worker the benefits of that knowledge."

I have in my hand, a videotape of television appearances by then-Secretary of Labor Elizabeth Dole in which she promises to move promptly to develop an ergonomics standard. The tape is from 1990. It is now almost a decade later, and OSHA has yet to even propose a standard.

Six hundred and fifty thousand workers a year suffer lost workdays as a consequence of work-related repetitive motion injuries and illnesses. This suffering can be abated. It is past time to do so.

I yield the balance of my time.

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

Chairman Ballenger. Thank you, Mr. Owens.

Today, we have two panels of witnesses here to testify. I will introduce our first panel of witnesses now. Our first panel will begin with Congressman Tom Petri, the Vice Chairman of our Committee, who represents the 6th District of Wisconsin. Next we will hear from Congressman Robert E. Andrews, the Ranking Minority Member on the Employer-Employee Relations Subcommittee, who represents the 1st District of New Jersey. Next we will hear from Congressman Roy Blunt, who represents the 7th District of Missouri. Our fourth and final witness on this first panel will be Congresswoman Nancy Pelosi, who represents the 8th District of California.

I want to thank all of you for being here today. Before the witnesses begin, I would like to remind Members that we will ask questions of the witnesses after the entire panel has testified. In addition, Committee Rule 2 imposes a five-minute limit on all questions.

That being said, Representative Petri, please begin.

Mr. Petri. Thank you, Mr. Chairman.

Last week our colleague from New Jersey, a senior member of this committee,

Rob Andrews, and I introduced the "Models of Health Safety and Health Excellence Act," which would codify the Voluntary Protection Program. This program has been popular among both employers and employees. It offers companies with good employee safety records the opportunity to continue those high standards while reducing red tape in a spirit of cooperation with OSHA.

Too often workplace safety has been a source of animosity between labor and management, between OSHA and industry, and between Republicans and Democrats. I believe that the VPP program is an opportunity for us to work together in a bipartisan fashion to reach higher standards for health and safety in the workplace, which is something that everyone wants.

Back in 1982, OSHA established the Voluntary Protection Program as an alternative to relying on safety enforcement alone. Under the VPP formula, managers and employees work cooperatively with OSHA in establishing and constantly improving their effective health and safety programs. In exchange for being taken off OSHA’s general inspection list participating companies commit to provide their employees with a level of protection that substantially exceeds that required by traditional OSHA standards.

Over 500 worksites in a wide cross-section of businesses currently participate in the program, covering over 300,000 workers. By taking a cooperative rather than punitive approach, participating businesses have lost workday rates that are about 50 percent lower than the industry average, and the companies are enjoying reduced worker compensation costs. So it is apparent that the approach is an effective way to provide for worker safety.

The "Models of Safety and Health Excellence Act of 1999" takes the Voluntary Protection Program out of the experimental stage and establishes it as an ongoing option under OSHA. Employers and employees who are currently in the program need to know that it will not simply be eliminated with little warning.

The bill includes a stringent application process, which requires employee support for the initial application and employee involvement for companies accepted into the program. Any company accepted in the program must keep continue to keep OSHA informed of its efforts at maintaining safety and health.

OSHA will conduct periodic re-evaluations to ensure that companies are qualified for continued participation in the program.

The bill encourages OSHA to look for opportunities to expand the VPP program to smaller programs as well as those with non-traditional worksites such as construction companies whose worksites change for each contract and those who have mobile worksites such as home repair companies.

In addition to ensuring that this program continues in the future, the bill is also a recognition of the employers and employees already in the program who have made it work and have produced an exemplary safety record.

So in closing, I would hope that this program can be the beginning of a new era of cooperation and understanding in labor policy as we seek to put the conflicts and bad feelings of the past behind us. Thank you, Mr. Chairman, for scheduling this hearing today.

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

Chairman Ballenger. Thank you, Representative Petri.

Rob, you may begin.

Mr. Andrews. Thank you, Mr. Chairman. I want to thank you and ranking member, Major Owens, for moving this legislation forward and for your very kind words of support. My co-author, Congressman Petri, and I look forward to any constructive input that would improve the legislation as we go forward. It should be enacted.

This is legislation that does three things very well. First of all, it requires standards. In order to be in the VPP program, you have to be very, very good at worker safety. It is very rigorous standards that require employers all over the country, large and small, to excel at the business of worker safety.

Data from 1977 show that VPP star sites had lost workday injury averages that were about 50 percent below overall industry averages, so these are people who are the super-achievers in employee safety.

In 1997, VPP sites avoided 4,430 lost workday injuries that would have occurred had they been at the industry average. It is estimated that the Federal OSHA estimates that VPP sites saved over $119 million in employee health costs and lost productivity and so forth.

So the standards are very high, and the results are very good.

The second thing that this has is cooperation. This has been a cooperative effort between the Republican and Democratic parties, as evidenced by the remarks of our leaders of this committee, between the Administration and the Congress, and between labor and management. It shows that these often very contentious issues, and I know that there are many contentious issues in the area of OSHA, two of which you are going to talk about today. It shows that it is possible to bridge some of those gaps and I commend Tom Petri for being the leading architect of that bridge to the 21st century, to coin a phrase.

[Laughter.]

I am sure he appreciates being associated with that phrase.

[Laughter.]

The third thing this does is employee involvement. It is common sense, and I believe a very powerful argument, that when every employee is given a voice and a stake in worker safety, the performance of the entire enterprise improves.

One issue on which we part company, frankly, is that in a bill introduced by the former Chairman of this Committee, Bill Ford, when we were in the Majority, and supported by virtually all the Democratic Members, we called for the inclusion of employer and employee involvement in all OSHA worksites because we think it is a very, very good idea. I still support that idea. That's a question for another day.

What I would say to you, though, is that the experience of the VPP program, I think, is powerful evidence that when employees are given a meaningful stake in the planning and the decisionmaking process, a safer workplace ensues.

Again, I want to thank Chairman Ballenger and Ranking Member Owens. Certainly our hand of cooperation in further improving legislation, and I look forward to moving it to the floor and having it enacted.

Thank you very much.

Chairman Ballenger. Excuse me. I would like to thank both of you gentlemen for sponsoring the bill that might even go through this committee unanimously. Anyone who knows this committee very well knows that is not a common occurrence.

[Laughter.]

But, anyway, I thank you, Representative Andrews.

Representative Blunt, you may begin.

Mr. Blunt. Thank you, Mr. Chairman. I noticed nobody suggested this morning that my bill was going to go through the committee.

[Laughter.]

But I am glad to be here, and I want to thank you and members of the subcommittee for letting me appear. I would also like to thank Dr. Michael Vender and Dr. Stanley Bigos for appearing today before the committee on the next panel to talk about the feelings in the healthcare community on this particular topic.

I am here today to discuss the issue of ergonomics. I recently introduced H.R. 987. We had 21 bipartisan co-sponsors when that bill was introduced. That has grown to over 90 co-sponsors today. As I expect you will hear today from Dr. Vender and Dr. Bigos, there continues to be significant debate in the scientific and medical communities over what constitutes and how to treat so-called ergonomics disorders.

In an effort to identify the possible causes and cures of these disorders, the Congress and the Administration agreed last fall to spend nearly a million dollars of taxpayer money on a study by the National Academy of Sciences to examine the relationship that may exist between workplace tasks and repetitive-stress injuries. This comprehensive study is expected to be completed in 18 to 24 months. In fact, just last week the National Academy of Sciences appointed the independent panel of specialists that will conduct this study. I am submitting their names and qualifications for the official hearing record, attached to my written statement.

They have started. There is a website. They are collecting information. I think the study will have value.

Unfortunately, OSHA intends to ignore this first-of-a-kind study by rushing forward with the promulgation and issuance of ergonomics regulations. They released their draft on February the 19, 1999. Two weeks later, our legislation was introduced. I believe it would be a mistake to move forward with the draft regulations prior to seeing the study.

The crux of the problem with drafting ergonomics regulations today is the complete lack of consensus in the scientific and medical communities as to the causes and cures of these injuries.

OSHA contends that the results of a National Institute of Occupational Safety and Health (NIOSH) study and a two-day National Academy of Sciences (NAS) workshop constitute solid scientific evidence on which to base comprehensive ergonomics regulations. In reality, neither of these studies came close to providing an adequate basis for that regulation.

The two-day NAS workshop was never intended to allow for an in-depth, comprehensive analysis of the ergonomics issues. The NAS report actually acknowledges that more work needs to be done. In fact, the report states, and I quote, "Although the research base contains valuable information and shows consistent patterns, additional research would provide a better understanding of the process involved."

Both the NIOSH report and the NAS workshop failed to examine and answer fundamental questions, such as: How many repetitions are too many? How heavy a lift is too heavy? How much lifting causes back pain? What are the possible effects of non-work factors such as poor physical fitness, a worker who smokes, a worker with diabetes, a worker with an unrelated injury, or a worker who plays video games 20 hours a week?

OSHA's draft really creates many questions. I think that having the answers to these questions should be the first step OSHA takes in drafting a reasonable and scientific regulation. In reality, OSHA's draft regulation fails to provide adequate answers to any of these basic

questions. It would only create new problems if OSHA were to proceed on an ergonomics standard without answering these questions.

My primary concern with the draft standard s my belief that it would ultimately force employers to replace workers with machines out of their fear of being cited by OSHA. The requirements for employers in the draft standard are ill-defined and ambiguous. For example, the draft regulation states that employers, and I quote, "must identify, evaluate, and implement feasible control measures to control work musculoskeletal disorders hazards." But of course, OSHA puts the burden on the employer to determine what "feasible" means and fails to define what specific legal requirements exist for the employer.

What if an ergonomist recommends that the owner of a local florist shop implement devices to mechanically arrange flowers that may reduce workplace injuries by 5 percent at a cost of a million dollars to the employer? Does the employer have to follow these recommendations under the proposed rules? If so, to what extent? Even if the person making the recommendation is unsure if it will make any difference, what will OSHA consider as feasible action taken by the employer?

I don't believe that OSHA can answer these questions yet. The only fully effective way for employers to comply with OSHA's definition of "feasible" may be to "eliminate potential exposures," or in plain English, eliminate jobs. I think this is about jobs, the very jobs that people do every day.

I think this report has the potential to study them. Another important consideration is the fact that Congress and the Administration just agreed last October to spend a large sum of money for a study. Now a million dollars may not seem like a lot of money to some people here in Washington, and it may not seem like much in the final debate over an appropriations bill, but I can tell you that the average taxpayer still considers a million dollars to be a lot of money. If OSHA doesn't take the results of this study into account when drafting the ergonomics regulations, what was the point of spending nearly a million dollars of taxpayer money?

I know that my friend Ms. Pelosi and others will cite a letter signed by the ranking member, Mr. Obey, and the chairman at that time, Mr. Livingston, saying that really, OSHA doesn't have to wait for this study. But I have to tell you that neither I nor most of the Members who voted for that million-dollar appropriation knew about that letter when we cast our vote. I don't think that's the way to legislate. I also don't think that helps the appropriations process. When the process is over, we are told there's really something that's not apparent in what we voted for that Members should be aware of

Mr. Chairman, we all share the goal of protecting American workers and providing safety in the workplace. That is exactly why I am asking OSHA to wait for this study. It is irresponsible to rush forward with an experimental regulation that may actually hurt workers rather than help them.

It is critical, I think, that we take the jobs of working Americans very seriously and not do anything that needlessly eliminates the jobs of people who work hard for a living.

Thank you, Mr. Chairman.

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

Chairman Ballenger. Thank you, Representative Blunt.

Representative Pelosi, please begin.

Ms. Pelosi. Thank you very much, Mr. Chairman. I am very grateful to you for the opportunity to be here today here to discuss ergonomics. Thank you, Mr. Chairman, and members of your committee. I also want to extend my appreciation to your ranking member, Mr. Owens and thank him for his extraordinary leadership.

This is a very important issue. Workplace safety and health is vital to American businesses and to American workers. Ergonomics-related health problems are costly and preventable. Each year, they harm nearly 650,000 employees and cost American businesses

$60 billion.

Working together, employers and employees can reduce hazards, increase productivity, and strengthen our economic competitiveness. OSHA's proposed draft ergonomic standard accomplishes these goals.

Because H.R. 987 unnecessarily delays OSHA from finalizing this standard, I urge my colleagues, very respectfully Mr. Blunt, to oppose the bill. The delay of 18 to 24 months will exact a toll to the health of American workers and a cost to America's business.

Ergonomic risk factors are related to health disorders, and we can reduce the risk. The facts are these. First, researchers and scientists have conclusively demonstrated that work-related musculoskeletal disorders, now to be referred to as WMSDs, are related to workplace risk factors. Second, it is clear that the ergonomic programs and interventions that adequately address these risk factors reduce the number and severity of WMSDs, reducing their financial cost and health problems.

Since we know ergonomic workplace risk factors contribute to health problems and we know ergonomic programs reduce these risks, we should work to reduce these risks. Where needed, management and employees should work together to implement ergonomic programs that identify and control workplace hazards to the extent feasible.

OSHA's proposed draft ergonomic standards accomplish this goal. Scientific evidence already supports OSHA's ergonomic standard. Supporters of H.R. 987 claim current evidence does not support OSHA's standard, and H.R. 987 blocks OSHA's standard until the National Academy of Sciences completes it literature review.

Ranking Member Mr. Owens addressed this in his opening remarks, and I strongly disagree with this delay that would be presented by the Blunt bill. The National Academy of Sciences and scientific organizations already have consensus that workplace risk factors contribute to health problems and that ergonomic programs, again, reduce these risks.

The National Academy of Science 1998 study reported that workplace risk factors cause musculoskeletal disorders, and these are preventable. It stated that research, and I quote, "clearly

demonstrates that specific interventions can reduce the reported rate of musculoskeletal disorders for workers who perform high-risk tasks."

My written testimony quotes NIOSH's 1997 peer review analysis and GAO’s 1997 report, aptly entitled, Worker Protections: Private Sector Ergonomic Programs Yield Positive Results.

OSHA's ergonomic standard is sensible, limited in scope, and based on success. OSHA's approach avoids a one-size-fits-all national requirement and provides employers flexibility to individually tailor programs. OSHA's approach is limited and emphasizes manual handling operations, which account for 60 percent of lost workday WMSDs. Elsewhere, until WMSDs occur, OSHA's approach requires nothing from employers. OSHA listened to employers, and OSHA's proposal is based on successful programs.

Employer ergonomic programs are effective: they decrease costs and reduce health problems. Employers who have invested in ergonomic programs have decreased recordable cases, reduced compensation costs, and more than offset the total cost of implementing their program. This evidence is available from companies as diverse as Minnesota-based 3M, North Carolina's Charleston Forge, and California's Fresno Bee newspaper. Mr. Chairman, companies in your State and mine have adopted effective ergonomic programs. GAO's 1997 report stated, and I quote, "Officials at all the facilities we visited believed their ergonomic programs yielded benefits, including reductions in workers’ compensation costs associated with WMSDs."

Past Congresses and the GOP Administration have supported OSHA issuing ergonomics rules. In 1997 and 1998, Congress specifically agreed not to delay OSHA from finalizing an ergonomic standard. H.R. 987 would violate these agreements. In 1998, Appropriations Chairman Livingston and Ranking Member Obey wrote a joint letter to Labor Secretary Herman to make clear that funding the NAS study is in no way their intent to block or delay issuance by OSHA of a proposed rule on ergonomics.

Previous GOP Labor Secretaries supported an ergonomic standard. In 1990, Elizabeth Dole stated, "By reducing repetitive motion injuries, we will increase both the safety and productivity of America's workforce. I have no higher priority than accomplishing just that . . ." In 1992, Lynn Martin stated, "OSHA's review of the available data has persuaded the Agency that there may well be significant risk to support a Section 6(b) rulemaking and that there

is a need to embark promptly on such rulemaking to address ergonomic standards in the workplace . . ."

OSHA's standard is broadly supported in the medical, scientific, and labor community. Again, I have this information in my written statement in the interest of time.

In closing, Mr. Chairman, I want to point out that women are disproportionately affected by ergonomic injuries. While women comprise 46 percent of the workforce and 33 percent of injured workers, they represent a much higher percentage of ergonomic injuries. Women represent 63 percent of repetitive-motion injuries, 69 percent of lost work-time cases from carpal tunnel syndrome, and 61 percent of lost work-time cases from tendonitis. Ergonomic hazards produce approximately one half of all female workplace injuries and illnesses, higher than 34 percent for all workers. An ergonomics standard is vital to America's working women.

Here we are today on America's Secretary's Day. Our distinguished colleague Mr. Blunt, referred to a florist earlier, and I would say that, in addition to sending flowers to our secretaries

to commemorate Secretary’s Day, we should also allow for a health and safety ergonomics study of their workstations as an appropriate tribute to them as well.

In closing, Mr. Chairman, I am going to quote Elizabeth Dole one more time: "After 20 years of study, Congress should allow OSHA to finalize an ergonomic standard." Elizabeth Dole was right when she said that ten years ago. Let's not wait another ten years to protect working women.

Thank you very much, Mr. Chairman, for the opportunity to be here today and for your consideration of this important issue.

[The written statement of Ms. Pelosi, along with letters submitted for the record, is attached as Appendix I.]

Chairman Ballenger. Thank you, Ms. Pelosi.

Let me just thank all of the Members for being here this morning. I know that you have conflicts with other commitments, so unless any Members of the committee have questions that they need to ask, I suggest we hear from the next panel. But we are open to anybody who has any questions.

I know two or three of them got to go.

All right with all of you?

[Members nod agreement.]

Thank you for being here.

[Panel members thank the chairman.]

Now, let me remind the Members that Rule 2 imposes a five-minute limit on questions, and the Chairman will ask Members later if they need to make a speech.

Let me thank the first panel and ask our second panel to please come forward, if you will, please. On our second panel, we have Frank White, Vice President of Organization Resources Counselors. We also have Dr. Stanley Bigos from the Bone and Joint Center at the University of Washington Medical Center;. Next is Dr. Michael Vender, a hand surgeon with the Hand Surgery Associates in Arlington Heights, Illinois. We also have Dr. Stanley Weinrich. When Congressman Ford arrives, he will formally introduce Dr. Weinrich. Since he’s not here at the moment, though, let me just briefly introduce him. We will open it back up when Congressman Ford arrives. Harold Ford, representing the 9th District of Tennessee, wanted to introduce Dr. Weinrich. Dr. Weinrich, thank you for being here. You are to testify on behalf of the Voluntary Protection Program Participants Association. We will also hear today from Eric Frumin, the Director of Occupational Safety and Health with the Union of Needletrades, Industrial and Textile Employees.

I thank all of you for being here. Mr. White, you may begin.

Mr. White. Thank you. Good morning, Mr. Chairman and Members of the Subcommittee. It is a pleasure to be here. I would be pleased to summarize for the Subcommittee the results of a recent survey conducted by Organization Resources Counselors that was designed to elicit information on whether OSHA’s policy of unfettered access to and use of a company's voluntary safety and health audits in the Agency's enforcement proceedings has had any impact on the effectiveness of those audits.

The ORC survey clearly supports the need for the kinds of protections contained in

H.R. 1438. Currently, more than 150 large, most Fortune 500 companies in diverse industries, are members of ORC's occupational and safety health groups. The importance of safety and health audits to the wellbeing of workers is widely recognized. Effective audits and follow-up action are invaluable for identifying and correcting potential problems and conditions that could increase the likelihood of future accidents and illnesses.

In the experience of ORC and its member companies, audits must have a few essential characteristics for them to work as intended in the business world. First, the results must be candid and self-critical. Watered-down findings do not always elicit prompt action from corporate and facility managers who have many competing priorities. Second, audit results must be widely and openly circulated and discussed with all affected company personnel. Limiting distribution of the results only to a few individuals in the company inevitably limits understanding, acceptance, and effective follow-up. Third, the results must be retained and openly available until the findings are fully resolved. Limiting the retention of or selectively documenting the results leads to misunderstanding and a lack of accountability and complete resolution.

Now OSHA, too, recognizes the value of voluntary self-audits and has encouraged employers to conduct them. However, the Agency's current enforcement practice is to demand on an ad hoc basis full access to company documents generated during the company’s voluntary self-audits. This really means whenever the spirit moves a compliance officer during a particular inspection. And OSHA may and does use the employer's own audit records to identify potential violations as evidence of violations or as evidence it can use to prove that a violation is willful.

For nearly a decade, ORC and several other industry groups have persistently endeavored to convince the Agency, without success, I might add, to modify its policies on this issue and to place some limits, like its sister agency EPA has done, on the circumstances in which it will seek to compel voluntary self-audit information from employers.

One of the stumbling blocks to a resolution of this issue appears to have been a lack of reliable quantitative information about the particular detrimental effects of OSHA's enforcement policy with respect to its access to and use of audit results on the effectiveness of voluntary audits.

So to assess more objectively and thoroughly, the effect of OSHA's enforcement policy on audits, ORC conducted a membership survey. Approximately 150 surveys were sent to ORC members, and 41 members completed and returned the surveys. The survey responses, I believe, present dramatic evidence of the adverse impact of OSHA's enforcement policy on the effectiveness of ORC member company voluntary auditing programs.

First, there is some good news. The good news is that every one of the 41 survey respondents performed some type of voluntary safety and health audits, either at the corporate, the division, or the facility level. In many cases, it was at all three levels. The second piece of good news is that over 90 percent of the respondents reported that they systematically follow up on audit results by developing action plans, setting abatement schedules, and remedying the problems identified. So they conduct audits and take follow up action. Now that is good news.

The bad news, unfortunately, is that just over half of the respondents stated that OSHA's right to review audit results had an impact on their company's audit practices or policies. A little more specifics. Half of the respondents to the survey performed their audits under some kind of legal privilege. More discouraging yet is the fact that 91 percent of the survey respondents placed limitations on the circulation and retention of the audit results and introduced other practices that reduced the effectiveness of voluntary audits. The survey responses describe some of these limitations. For example, one respondent states, and I quote, "Findings are written in very ambiguous, benign terms following a great deal of scrutiny and rewrites." Another respondent reported, quote: "Increased efforts are necessary to maintain the restricted circulation of results and recommendations. If we were free to schedule and conduct the audits and widely circulate the results and recommendations, the efficiency of the system would obviously increase, leading to quicker mitigation of potential issues." And again, quote: "We now destroy the audit findings as soon as the corrective action plan is developed. The hope is that specific items are not identified, and only a generic term, such as conduct training, is used."

Finally, of those respondents that do invoke a privilege or place another restriction on their audit process, 44 percent stated that a Federal law from prohibiting OSHA from using the audit results against them as a basis for an OSHA citation would encourage the company to perform audits without the privilege or restriction.

In sum, OSHA's policy of unlimited access has led many of the most sophisticated companies in America to accept as inevitable the need for closely held voluntary self-audit results, vague report language, restricted discussion, and limited retention of documents.

With the protections of H.R. 1438 in place, companies would be free to implement the most effective voluntary auditing practice, and the end result would be a more effective, more safe and healthful workplace for employees.

Now, as one final note, ORC and its member companies want to emphasize that they do not have a desire for some exemption from scrutiny by OSHA of their audit documentation if hazards are found through the audits and there has been no good-faith effort to abate the conditions. Audits are indeed worthless if the results are not used to eliminate hazards. No employer should be able to hide behind an audit report that identifies hazards that the employer decides not to address. H.R. 1438 wisely does not allow audits to be used as a shield from liability in those circumstances.

We appreciate the opportunity to present the results of the survey and would be pleased to respond to questions at an appropriate time.

[The written statement of Mr. White is attached as Appendix J.]

Chairman Ballenger. If I may interrupt for just a second. Congressman Ford came in, and I am sure he can do a much better job than I did of introducing Dr. Weinrich, one of our witnesses, so let us hear from Congressman Ford.

Mr. Ford. Thank you, Mr. Chairman. I apologize for my tardiness. As my colleagues on the committee and others in the room know, H.R. 800 is on the floor this morning. I was there with those on both sides of the aisle who support that. I apologize to the panelists, and I certainly want to apologize to my constituent Dr. Weinrich.

I am here this morning not only to introduce him but also to talk about this company, International Paper, how strong of a corporate partner it is in the Memphis community, but more so than that what International Paper has done to advance the notion of VPPs not only in my district but also throughout the nation.

Dr. Weinrich serves as the manager for environmental health and safety at International Paper. Since the company moved to Memphis in 1987, it has been one of the most important, and I might add responsible, corporate citizens in my district, employing more than 2,000 citizens.

I am certain that Dr. Weinrich as well as all of the other panelists will talk a lot more about the benefits of the VPP, but just for a moment, the merits of this legislation I think warrant amplification.

Representative Petri and Andrews, who have really been the stalwarts in this legislation, introduced what I believe to be a very sensible and progressive bill in the House, and I am proud, along with many of my colleagues, to be a co-sponsor. Codifying the VPP into law not only validates the work that firms such as International Paper and the good work that Dr. Weinrich has done or is doing to improve safety and health conditions in American work places, but also ensures that these firms will be able to share their experiences with other companies and encourages more sites to adopt similar practices. More so than that, it is heartening on this committee and certainly this Congress to see Members from both parties come together to support legislation that will save money and save lives.

Dr. Weinrich, I thank you, and I thank International Paper and all the panelists for the good work you are doing. I look forward to seeing this legislation codified, and I look forward to continuing to work with you and all of your colleagues out at IP. Also, please tell my neighbor, your general counsel, Steve Kypal at International Paper that I said hello.

Thank you, Mr. Chairman. Again I apologize for being tardy.

Chairman Ballenger. Thank you, Mr. Ford.

Dr. Bigos, if you will please go ahead.

Dr. Bigos. Mr. Chairman, Members of the Subcommittee, as you have already heard, this is a complex issue. I have enjoyed listening to the testimony. Unfortunately, I am going to be able to address only one small area. It is a great honor and a privilege to share my concerns about musculoskeletal problems at work. I am not here to represent any medical community or any community I know of other than trying to represent reliable science. I think my CV gives you a good idea of where I’m coming from and what I have tried to do in this particular area.

I am a professor at the University of Washington in the departments of Orthopedics and Environmental Health. I have led both retrospective and prospective studies. I have seen more back patients than anyone else in my institution, many of them work related, and I have chaired the Federally mandated Public Health Service Agency for Health Care Policy and Research Panel of experts for the 1994 Low Back Guideline. I am the one who insisted on a methodologic process to rule out the bias as much as possible in coming to some recommendations. I have also had the opportunity to lead a group of experts in evaluating the scientific aspects of risk factors for industrial musculoskeletal problems. And I continue to do direct methodologic processes to evaluate the literature in both realms.

Many groups marshal science to support their view. While this may well seem a very dull issue, it is critical to decisionmaking. I know you are bombarded on all sides by all kinds of papers and all kinds of claims, but what I would like to talk about today are the tools to separate the wheat from the chaff so that you can make good decisions. I ask the committee to bear with me, to review the difference between retrospective "searching" studies and more reliable prospective question "testing" trials, since both are touted as science. The difference is especially important when dealing with indistinct labels such as repetitive strain injuries and cumulative trauma disorders, even though we can't define them very well.

Prospective "testing" trials allow less room for noticeable error, as investigators must explain all data, not just those that best support their views. Only prospective "testing" trials allow the study of dynamic factors such as non-physical pressures that can greatly vary the reports of all these problems up to fourfold in my experience.

Our Seattle group first performed a retrospective "searching" study of 30,000 hourly employees, searching for hypotheses to be tested. We subsequently tested in what has been termed the largest, broadest prospective cohort effort to date. Over 3,000 volunteers were followed for over five years, and the study provided scientific proof that non-physical factors, like distress in life and not enjoying your job tasks (that are almost impossible to study retrospectively) can overshadow physical factors in predicting musculoskeletal problems at work. More importantly, other prospective studies continued to support these findings.

The reliability of prospective studies has been further substantiated in the AHCPR Low Back Guideline as well as in a review of over 15,000 publications about work-related musculoskeletal complaints and injury claims through the Orthopedic Research and Educational Foundation. The bottom line is that retrospective "searching" studies of similar merit argue both sides of almost any issue. Prospective cohort "testing" studies and trials, where bias can best be controlled, are more consistent. The bottom line is that reliable prospective "testing" studies do not substantiate the guidance we need to establish ergonomic theories about repetitive strain or cumulative trauma. When more reliable "testing" studies are separated from hypothesis generating "searching" studies, the results are actually condemning. Whether performed by NIOSH in 1997 or by a future National Academy of Science group, you must demand that any attempt does not hide the reliable "testing" science by mixing them with the less reliable "searching" studies. They do not provide data; they provide hypotheses.

In desperate situations, you may make the best decision possible, but always with caution. History provides very many interesting examples. One in particular was in 1665: as a plague swept through London, a reasonable hypothesis was proposed that people were getting the plague from their pet dogs and cats. Systematically, dogs and cats were killed to curb the disease. The problem only worsened, as rodents quickly multiplied without the dogs and cats as predators. It was the great fire of 1665 that decimated the city and large portions of its rodent population which saved the people of London from the worsening plague.

Are we so desperate as to risk the destruction of many well-paying jobs? Do our citizens not deserve at least one reliable "testing" study to prove a positive impact of an ergonomic mandate?

We can only provide a universal mandate when we know specific dimensions that might work. How tall is too tall? What is too short? What about differences in age? How many is too many? Who will all of a sudden determine without data what is right? What's wrong? What's legal? What's illegal? What's borderline? What’s punishable?

Who will pay for the added costs? As usual, the money will usually come from employees' take-home pay. That is the unfortunate part.

For the most part, conventional wisdom from unreliable "searching" studies does not provide sufficient information to take such risks.

Conventional wisdom continued medicine's use of bleeding people for infection for years after the data showed it didn't help. More recently, conventional wisdom supposed that vibration was danger to our spines. Then a study on identical twins that eliminates much of the individual variation and uses measurable outcomes found that a six-fold increase in vibration exposure was not damaging but actually protective to the spine as far as changes that could be seen in an MRI.

I strongly believe we should prevent harm and alleviate discomfort in working people. However, before making decisions that will take millions of dollars out of the pockets of hourly employees, please demand at least one reliable prospective "testing" study to substantiate the hypothesis.

In summary, I urge you to consider the following:

Demand the National Academy of Science provide evidence of predictability for an ergonomic mandate that is not available at the present time. Demand at least one prospective cohort study or trial that erases the bias to guide implementation.

Don't be confused by those who want to over-simplify the model of the human body. Using the human body does not mean that you wear it out. Discomfort from spring gardening or spring training is not caused by damage but by the deconditioning of the winter rest. I don't know how we call that a disorder.

Finally, do not increase labor costs that cause the loss of jobs to robotics or less expensive labor markets without strong proof from reliable science.

I thank you for your attention and willingness to help the citizens, but do not reduce their paychecks to pay for unproven and ineffective theories. I plead to you to demand proof from the National Academy of Science above conventional wisdom before taking such risks with the lives of many people who need well-paying jobs.

Thank you very much.

[The written statement of Dr. Bigos is attached as Appendix K.]

Chairman Ballenger. Thank you, Dr. Bigos.

Dr. Vender, you may begin.

Dr. Vender. Mr. Chairman, I am honored to have been invited to share my experience with the committee today. I’ve been a practicing hand surgeon in Chicago for the last thirteen years. As a member of the American Society for Surgery of the Hand, I have participated in the Industrial Injuries and Prevention Committee and have been chairman of that committee for the last three years.

As a clinician, I have concerns that OSHA's proposed ergonomics program standard is at best misguided and at worst counterproductive. The standard refers to hazards generally, describing routine activities performed by people every day, but in a critical lapse, it does not describe what it is about those activities that makes them dangerous or hazardous.

For example, the basic premise of ergonomics is that use of the hands and upper extremities is detrimental. This would lead to the absurd conclusion that the optimal amount of hand use is no use. In my clinical experience, the ultimate lack of use is when I place a person's arm in a cast. This creates the disease of disuse- atrophy and osteoporosis. The idea that no use is good is also counter to all the basic concepts of rehabilitation, including cardiac rehabilitation, occupational therapy, physical therapy, along with exercise physiology, sports, and conditioning.

In the workplace, repetitive use is said to be bad. Outside work is prescribed to rehabilitate and improve one's state of health, otherwise known as exercise.

The definition of work-related musculoskeletal disorders unfortunately includes symptoms, not disease. There are numerous potential contributing factors to these symptoms, with work representing only one potential, and in my experience small, contributing factor. Even if one were to assume certain physical use may contribute to these work-related symptoms, we don't have the ability to determine what, when, how, and where, and whether changing the activity will make any difference considering all the factors involved. It is not uncommon in my practice to see people with medical conditions such as thyroid disorders, diabetes, and arthritis, along with smoking, obesity, and general de-conditioning. These are all conditions well proven to be causes of musculoskeletal complaints, sometimes erroneously referred to as repetitive stress injuries.

Some people point to NIOSH's 1997 report along with the results of the 1998 NAS workshop as demonstrating a scientific consensus regarding causation of work-related musculoskeletal disorders. Our own research, as published in the Journal of Hand Surgery, demonstrates that at best little adequate scientific literature exists to substantiate a conclusion of work-relatedness to upper extremity disorders.

NIOSH reviewed 600 out of 2,000 articles on work-related disorders to the upper extremities. In utilizing only four basic criteria, they identified only 30 articles they considered of sufficient value discussing the relationship of carpal tunnel syndrome to work activities.

They then stated that a full 14 of their 30 articles met one of their four criteria and that only five of their 30 articles met all of their four basic criteria.

It hardly seems appropriate to include in a critical weight-of-the-evidence review of studies which are so flawed with regard to basic scientific criteria.

In closing, I would like to say that in our practice, we do it better. As physicians, we owe it to our patients to make sure that we understand what causes their complaints before we subject them to what can be painful and sometimes dangerous treatment. We don't adopt treatments for widespread use unless we are reasonably sure that the cure will not be worse than the disease.

I would like quote something for you. As the authors of a Journal of the American Medical Association editorial said in a recent discussion of the scientific method and its application to clinical medicine:

Ultimately, answering fundamental questions about efficacy, safety, appropriate clinical applications, and meaningful outcomes for all medical therapies, . . . requires critical and objective assessment using accepted principles of scientific investigation and rigorous standards for evaluation of scientific evidence. For patients, for physicians, and other healthcare professionals, . . . - indeed, for all who share the goal of improving the health of individuals and the public- there can no alternative.

I couldn’t have said it better myself.

Thank you.

[The written statement of Dr. Vender, along with materials submitted for the record, is attached as Appendix L.]

Chairman Ballenger. Thank you, Dr. Vender.

Dr Weinrich.

Dr. Weinrich. Mr. Chairman, Members of the Committee, I am pleased to appear before you today on behalf of the Voluntary Protection Program Participants Association in support of legislation recently introduced by Representatives Petri and Andrews to codify OSHA's voluntary protection programs. I especially want to thank Congressman Ford for his kind introduction, for his support of this legislation, and for his outstanding service to the citizens of Memphis' 9th District.

For the past seven years, I have coordinated International Paper's efforts in support of achieving VPP qualification and improving the overall effectiveness of our safety and health programs. I have also served as Director for the past four years and as Vice-Chairman of the Board of Directors of the VPP Participants Association.

The VPPPA, a non-profit organization with more than 450 member sites nationwide, is a leader in health, safety, and environmental excellence, promoting cooperative efforts among labor, management, and government. Directors of our association include hourly employees from sites with unions and without unions and managers responsible for safety and health.

I want to express my sincere appreciation to Congressmen Petri, Andrews, and Ford for their recognition of the value of the VPP and the powerful impact that such models of excellence can have in promoting workplace safety and health. I want to express strong support from the association and its member companies for this legislation and to encourage other Members of this Committee to join with them in this bipartisan effort to improve workplace safety. The legislation would ensure the longevity of these valuable programs in improving worker safety and health. It would recognize the efforts of the employees, management, and OSHA, who in partnership have built VPP models of workplace safety and health excellence. Finally, VPP codification will highlight this Congress' vision and expectations for organizational effectiveness from other government agencies.

The Voluntary Protection Programs were first initiated in 1982. Participation grew gradually in the 1980s, witnessing a dramatic growth in the number of participants in the 1990s. You may want to refer to charts that are over there on the side. Currently, there are more than 530 work sites nationwide in the VPP.

VPP is clearly a bipartisan success story. Both Republican and Democratic Administrations helped the program grow to where today it has become a model for effective agency-employee-management partnership. In 1995, the Clinton Administration awarded OSHA and the VPPPA the coveted Hammer Award, symbolic of a government that operates smarter and cheaper.

Recognizing these benefits, International Paper began its VPP efforts in late 1989 and achieved it first VPP site approval in 1992. They subsequently received approval for 31 work sites with an additional 11 currently already reviewed and recommended by OSHA but awaiting final approval the Assistant Secretary. This makes us the company with greatest number of participating sites in the Federal VPP.

Our experience has been that VPP works effectively in large or small facilities, either workers unionized or not represented by a collective-bargaining agent. Approximately 30 percent of our VPP sites have employees represented by unions while the remaining 70 percent are non-represented.

Our VPP sites span the spectrum, from a small six-person tree nursery to a large 1,500-person complex paper mill. The chart over there illustrates the breakdown in overall VPP participation according to the number of employees at the site. Nationwide, the greatest percentage of sites in the VPP have fewer than 200 workers.

Please allow me to share with you some of the specific benefits we have seen from participation in the VPP. International Paper's injury and illness rates for 1998 average 47 per-cent below the average for the pulp and paper industry. Rates for our VPP sites were 50 percent below the average rate for our industry. Over the past 10 years, we have realized an annual average 15 percent reduction in recordable injuries and illnesses. To put that in human terms, over the last 10 years, 45,000 employee accidents did not happen because of the improvements we made over that period of time in our company and our safety and health programs.

VPP is also allowed member organizations to develop a very different relationship with OSHA than was typical. Historically, our relationships were reactive and confrontational. VPP has allowed OSHA to see firsthand many of the nation's worksites, to know the employees on a partnership basis, and to understand the quality of strong safety programs they put in place.

Through VPP, barriers to communication have been broken down. We no longer speak to OSHA only through attorneys and with layers of business management filtering communications. Many sites have hourly employees speaking directly with OSHA, helping to resolve problems. Many of our facilities have served to mentor other sites, which include small businesses. In the past three years, 24 of these mentored sites have graduated to full VPP status.

To help OSHA in extending the VPP effort, member companies have volunteered employees who serve as special government employees, assisting OSHA in leveraging their resources in conducting VPP reviews. One hundred and twelve employees nationwide have been trained to serve in this role.

In summary, codification of VPPs will send a clear message to the employees and management of all the nation's worksites and to OSHA that this Congress is committed to the longevity of the VPP and to the importance of models of excellence in workplace safety and health.

The Voluntary Protection Programs have proved themselves to be effective in reducing workplace injuries and illnesses by leveraging OSHA's resources in partnership with management and employees of worksites nationwide.

On behalf of the VPPPA and its members companies, including International Paper, I encourage your support for this legislation.

Thank you very much.

[The written statement of Dr. Weinrich is attached as Appendix M.]

Chairman Ballenger. Thank you, Dr. Weinrich. Now we will hear from our final witness. Mr. Frumin, please begin.

Mr. Frumin. Good morning, Mr. Chairman and Members of the Committee. My name is Eric Frumin. On behalf of the 250,000 workers represented by UNITE, I thank you for providing us the opportunity to testify today.

I wish I could honestly say that I welcome it. Like most Americans, I rely on the judgment and wisdom of the Members of this Subcommittee to ensure that workers get the protection they need from their government. Your predecessors understood the importance of this mission and enacted the OSH Act in 1970. We all know the results. During the past 29 years, we have seen how OSHA's standards, enforcement, and assistance programs have made a real difference in improving safety and health, saving workers' lives, and saving employers from the growing costs of worker death, injury, and disease. We have seen the job fatality rate cut by more than half, and injury rates decline significantly, especially in manufacturing and construction where the standards in enforcement have been targeted.

These dramatic results have been replicated and, indeed, bettered in the mining industry.

Mr. Chairman, this is no minor matter. Exactly four years ago today, at 7:45 in the morning, there was an explosion at a chemical factory in Lodi, New Jersey. Because of the outrageous and inexcusable incompetence of the top managers of that company, they withheld any report to the Lodi Fire Department and ordered the previously evacuated workers and supervisors back into the factory to save the raw material. The massive explosion that shortly followed killed five people, injured eight workers and dozens of emergency service personnel, terrorized the town of Lodi, destroyed the factory, and threw 80 workers onto the unemployment line. To this day, the owners of the Napp Technology plant have never been properly called into account.

Last month, OSHA and EPA released the results of an expert outside review of the incident. One of the reviewers was Mr. Gerald Scannell, the current president of the National Safety Council, former Safety Director for Johnson and Johnson, and President Bush's Assistant Secretary of Labor for OSHA. Here is Mr. Scannell's view of the Napp management, quote:

One of the major recommendations [of the OSHA/EPA report] is essentially that companies should comply with existing [OSHA/EPA chemical safety] regulations. . . . Do companies not know about the rules? Aren't they worried about the consequences of non-compliance? Or don't they think they will ever get caught? Essentially, the question is why did this company ignore the law and what should be done to reduce the likelihood of companies ignoring the law in the future?

Mr. Chairman, the lessons are clear. We need a stronger, bigger OSHA with more power, standards, staff, and money, not the OSHA you seem to be seeking. Mr. Chairman, you observe the consequences of a failed, feeble OSHA. The 1991 fire in the Hamlet, North Carolina, poultry plant was bad enough. We do not want any more Hamlets. Mr. Chairman, I am confident you do not want any more either, but we appear to be headed in that direction.

In regard to the Blunt bill, Mr. Chairman, on this day the Bureau of Labor Statistics data predict that 17 more workers will die from traumatic injuries, that before tomorrow morning 5,000 workers will suffer a disabling injury, and that 20 percent of those 5,000 workers, or about 1,000 workers, will suffer disabling strain and sprain injuries from overexertion like lifting, bending, and twisting, and face pain, disability, and potential loss of livelihood.

Every year, a total of about 425,000 disabling strain and sprain injuries occur due to overexertion. Ten percent, 43,000 alone, are truck drivers. For their employers, that amounts to tens of billions of dollars in costs. Ask any insurance executive, this is the most expensive group of job-related injuries in the entire economy.

Mr. Chairman, these are the real problems of American workers. They are also the real problems of the companies they work for, both the big corporations and the small businesses. That is why so many of these companies, both large and small, have successfully undertaken ergonomics programs. They have dramatically cut the injury rates of their employees and substantially reduced labor costs.

In some cases, however, these efforts were undertaken only after a substantial push. A case in point is the Pillowtex Company's Fieldcrest-Cannon towel manufacturing complex employing nearly 2,000 workers in Columbus, Georgia. As a result of a complaint inspection, OSHA cited Fieldcrest in 1993 at its towel and hemming and packaging operation for ergonomic hazards. Now Fieldcrest, as you may know, Mr. Chairman, in North Carolina, of course, is no lover of U.S. labor law. It has an unparalleled record of violating the National Labor Relations Act. Not in your district, but in Kannapolis. Last month, OSHA cited the company for willful violations of the requirements for accurate cotton dust sampling. But the arguments favoring ergonomic programs in Columbus, Georgia, were inescapable, even to the likes of Fieldcrest. Like it or not, ergonomics works, even for those companies that despise Federal labor law and the interventionist philosophy which underlies it.

Mr. Chairman, on behalf of millions of workers exposed to ergonomic hazards and the families of the five good men killed in Lodi, New Jersey, my questions to you and the Members of the Subcommittee are very simple. With all due respect, how in the Lord's name, can you seriously contemplate Mr. Blunt's legislation to stop OSHA from moving ahead on an ergonomics standard? How can you seriously consider legislation to further restrict from enforcing its crucial safety standards when employers, in Mr. Scannell's words, and I quote, "don't think they will ever get caught."

Mr. Chairman, with all due respect, it saddens me to come before your Subcommittee today because I am afraid that I already know the answer to these questions. The motivation is clear. There is a no-holds-barred campaign by the Chamber of Commerce, the National Association of Manufacturers, the United Parcel Service, and the American Trucking Association . . . remember the 43,000 truckers a year . . .to gut OSHA's enforcement authority and stop OSHA from issuing the ergonomic standard.

We all know perfectly well there is no serious scientific controversy about the ergonomics issue. There’s certainly not any dispute which could warrant further delay by the Secretary of Labor from issuing standards based upon, as the Act requires, and I quote, "the best available evidence."

And we take note of Secretary Dole's promise 10 years ago not to waste another 10 years.

The National Academy of Science, at Mr. Bonilla's urging, already addressed that issue just last year.

I have attached relevant excerpts and the conclusions to my written statement, and I request that entire report be entered into the record of this hearing.

To deny the severity of the ergonomics problem is simply a cold political calculation, but it is also betrayal of the workers who suffer every day: the 8,100 workers who in 1996 suffered disabling overexertion injuries in Missouri; the 9,900 workers per year in North Carolina,

Mr. Chairman; the 11,800 workers per year in Georgia; the 28,300 workers per year in Texas. Mr. Chairman, these are hard-working Americans who deserve your support, not your calculated neglect. We again appeal to you and your colleagues to stop this extremist attack on OSHA's ergonomic standards and to allow OSHA to provide the real workforce protection that workers need.

In the interest of time, I refer you to my comments in my prepared statement about the audit protection legislation and the whistleblower legislation. We have very strong reservations about those as well. I will be pleased to answer any questions.

Thank you very much, sir.

[The written statement of Mr. Frumin is attached as Appendix N.]

Chairman Ballenger. Thank you, Mr. Frumin.

As you have heard, the buzzer went off twice. That means we must go vote. At the request of one of the Members, we will take a break until 12:15, which is in 25 minutes. We will be back as soon as we can.

[Recess.]

Chairman Ballenger. If we can, gentlemen, could we ask the group to sit back down again, if they will.

Several of us Members are present. Once again, let me remind the Members of the Subcommittee that Rule 2 imposes a five-minute limit on questions. The Chair now recognizes Members for any questions they may have. I will start.

Dr. Weinrich, a couple of things interested me. I have a company that has about 200 employees. You mentioned that most of the companies involved in VPP, if I remember correctly, have 500 or less employees.

Dr. Weinrich. I said 200 or less employees.

Chairman Ballenger. Two hundred or less. Was that on the company size or the site size?

Dr. Weinrich. Site size.

Chairman Ballenger. Yes.

Dr. Weinrich. There are, for example, International Paper is a large company. We do have a six-person tree nursery in the program, which obviously gets support from the corporate level.

Chairman Ballenger. Yes.

Dr. Weinrich. There are small businesses that have gotten into VPP, that have been mentored by larger companies that are currently in VPP.

Chairman Ballenger. You have past experience? Because my own company has passed whatever the rules and regulations are for something like VPP in North Carolina. Two questions I would like to ask. First, how long does it normally take for a company to qualify for VPP? Second, what do you think of the State VPP programs compared to what you belong to?

Dr. Weinrich. The ability to qualify for VPP is very much dependent on the baseline where you start. For people who have already been developing strong programs, training people, involving their employees, it could probably take a year. However, if someone really hasn't done that and hasn't built a culture of employees playing an active role in the safety and health program, I have seen sites in International Paper where it has taken two to three years.

Chairman Ballenger. Right.

Dr. Weinrich. Second response to your question, the State of North Carolina is one of the States that adopted a State plan VPP. They, like some states, have adopted a more stringent program than the Federal VPP in that there is no merit program. It is a Star Program and requires . . . it's that all or nothing. They have done an excellent job. We have several sites in International Paper that have qualified in the North Carolina VPP Star Program.

Chairman Ballenger. Well, I am glad to hear that because my company qualified for the State program. I was just wondering whether or not it is any good. I am not in management anyhow. Somehow they let me loose up here, and I got away from that.

Dr. Bigos, I get kind of tied up. I read your statement, and I understand vaguely the difference between retrospective studies and prospective studies. I have had, as many people have had, muscle spasms in my back when I used to work. I went to the doctor, but he didn't say anything about what I was lifting or anything. He just said that I had gotten fat and old and that my muscles had deteriorated and that the best thing I could do was to start exercising.

If you could explain your system that you are speaking of, I would greatly appreciate it.

Dr. Bigos. Well, I heard two questions here. One is about methodology, and another is about back problems in general. We used to say that 70 to 80 percent of the adult population by age 50 has a back problem. That is, they can't tolerate life the way they did when they were 18 years of age.

[Laughter.]

The reality is that a Gabriella Holtman out of Stockholm actually studied the other 20 percent and found out that they forgot. So virtually everybody has a back problem by age 50.

Sometimes when I give this presentation, someone 50 years old or older stands up and says he has never had a back problem. I’ll tell him to come to my house on the weekend and we will re-lay my brick driveway by hand and then we'll take movies of him playing basketball like he did when he was 18. This is how I try to explain it to patients as well. Back pain is a part of life. Nobody seems to be able to avoid it by the age of 50 with anything other than death, yet we put it into an insurance box as an injury.

Chairman Ballenger. Now don't take too long with this. They only give me five minutes for my questions.

Dr. Bigos. Okay. From a methodology standpoint, either you have enough data that you can make a grade-school example math problem where you solve for X. Okay? Then you have some reliable data. That is, you have a group who doesn't receive the particular treatment or whatever, and you have a group who does. And, does it make a difference? That is an important issue. If you don't distinguish between those, we are all in trouble, and everybody's consensus is difficult.

For instance, our HCPR panel figured out that we all review the literature in the same way. We would get our journal out at about 11:00 o'clock at night; we would leaf through; try to find something we are interested in. Then we would go to the abstract and start at the bottom and look at the conclusions first. If they agreed with our preconceived notions, we handed them out to all of our residents and students. But if it didn't agree with our preconceived notion, then we went to the materials and methods to figure out how in the hell they screwed it up.

[Laughter.]

My whole point is you need a methodology that looks at the materials and methods and the results, not the opinions of the authors because the opinions of the authors in more than 50 percent of the cases are not substantiated by the results that are there. No reliable data.

Chairman Ballenger. Are there instructions in the NAS study that ask for that specific_

Dr. Bigos. I haven't seen that. No. Believe me, I am sure that there is a lot of pressure not to do it that way. The reality is that the reliable data really heads in one direction, and all these hypothesis-generating studies, you know, are all over the map.

Chairman Ballenger. Well, let me quickly say one thing. When Assistant Secretary Jeffress was in my office, I asked him straight out, if you had to go through the standard operating procedure, how long would it take you to get to your end? He said about two years. Then I asked, if NAS does a study, and something solid comes out of it, how long will that take? Again, he said about two years. I said, well, you know, it seems to me that you have a simple answer there to get me off your back. And maybe some of those people sitting behind you there would no longer beat up on him if they just recognized that two years as a peace-making thing is much better than two years of fighting.

Dr. Bigos. My only suggestion, the only point I was trying to make, is that you have to look at the reliable data. Otherwise, we are going around declaring the world is flat because of how we see the horizon. You really need some good science before you head off on this. I just don't know how you would ever regulate it or how you would ever put it into practice with the data that is presently available.

Chairman Ballenger. Yes, Marty?

Mr. Martinez. Thank you, Mr. Chairman. Before you start my time, I would like to say that you went two minutes over. Could I have the same deal?

[Laughter.]

Chairman Ballenger. Yes, we will be generous.

Mr. Martinez. Thank you, Mr. Chairman. Dennis Kucinich asked me to read his statement into the record, so I would like to do that. It is very short and won't take that long.

"Thank you, Mr. Chairman. I am sorry to see this Subcommittee today once again trying to strip OSHA of its ability to regulate employers and protect the nation's workers.

"Mr. Chairman, as you know, the goal of OSHA is to protect the nation's workers from unjust work environments and employers. Three of the four bills before this subcommittee today, H.R. 987, 1438, and 1439, tear away at the very fabric of OSHA's ability to maintain high standards of protection and safety for the hard-working men and women of the nation.

"H.R. 987 strikes at the heart of OSHA. Work-related musculoskeletal disorders account for 30 percent of all the workday injuries and illnesses. We need to act now to allow OSHA to do its job and help stop this preventable disorder before more workers days are lost.

"This is a critical time for OSHA, and I believe we should be working harder to protect OSHA and its goals and not be looking to undermine it, leaving our nation's workers with great risks and less protections.

"I want to welcome the colleagues as well as other distinguished panelists for what I am sure is going to be insightful testimony. I hope the subcommittee will find ways to help protect this vital Administration to many hard working men and women."

Companies such as 3M, AT&T, and Ford have significantly reduced workers’ compensation costs by implementing ergonomics programs. How can that be consistent? If there is no relationship, why would their implementing those programs reduce injuries so much?

Mr. Frumin. Well, it's disturbing that the companies that have been so active on the ergonomics front in their own workplaces for their own business reasons have not been offered the opportunity, or at least they are not here, to testify about that experience. I would invite the Chairman and other Members to come to these workplaces to see the actual experience that companies have, whether it is those companies or others, saving money implementing ergonomics programs, doing it for a variety of reasons, one of which is concern about potential OSHA liabilities, but also to save money because of the cost that these injuries create in terms of workers’ comp and medical disability issues and so forth.

Now, as to whether there in fact exists that kind of relationship, the relationship that has been called into question here today, I think it is important to look at the report from the National Academy of Sciences. They say it five different ways, 10 different times. I will just read one of them, and I quote: "Strong associations between measured biomechanical stresses at work and musculoskeletal disorders were observed in most studies."

That is just one of a number of quotes I have attached with the relevant excerpts to my prepared statement, Mr. Chairman and Members of the Subcommittee. There is no question that that was a legitimate review. The National Academy of Sciences is not into playing political games. I think it was as an appropriate forum as any to look if the Congress wanted more time, and another look, and they came up unequivocally saying that there is enough known.

Mr. Martinez. Thank you.

Dr. Vender, you are a practicing hand surgeon?

Dr. Vender. Yes.

Mr. Martinez. Do you often treat carpal tunnel syndrome?

Dr. Vender. Yes, I do.

Mr. Martinez. Are you ever compensated through workers’ compensation for those services?

Dr. Vender. Yes I am.

Mr. Martinez. Clearly then, in terms of your pay, you are willing to acknowledge a relationship between occupational activity and musculoskeletal disorders. Correct?

Dr. Vender. No. That is not correct.

Mr. Martinez. Well, then explain to me why not since you receive compensation for treating those injuries.

Dr. Vender. Determination of workers’ compensation benefits is more of a legislative act in the State of Illinois than it is a medical or scientific act. These people are determined to have possibly work-related conditions based on issues other than whether there is science or whether I believe that it is work-related or not.

Mr. Martinez. Mr. White.

Mr. White. Yes, sir.

Mr. Martinez. In your testimony toward the end, you say that audits are worthless, and the results are not used to fix hazards. No employer should be able to hide behind an audit or report that they don't find hazards that the employer decides not to address, which, to me, flies in the face of your ammunition about having audits used against employers.

If EPA doesn't have privilege_and EPA does have a formal policy that provides audit privilege to employers. However, to benefit from the privilege, employers must self-report to EPA. The violations that there are, are covered and must take timely action to address those violations.

EPA policy addresses my concerns that we ensure that an audit fully serves to improve health and safety and is not used to protect bad actors.

How in the devil would the EPA know if there have been discoveries of bad practices by the audit if they are not privy to those audits?

Mr. White. Well, I can't speak for the EPA and what their justification is. I mean many of the EPA statutes are based upon a reporting concept. I mean, things have violations, and events and incidents have to be reported to the EPA or to the State. OSHA doesn't have a similar concept. I mean, an employer doesn't have to report violations to OSHA. But OSHA goes out and does inspections and is perfectly capable of identifying violations, hazards, et cetera. This bill would not give a pass to an employer who discovered violations but failed to act. In those circumstances where there was no good-faith effort to correct those violations, OSHA would have access to the audits. That is entirely appropriate.

Mr. Martinez. Well, I disagree with you because if the company does not have to provide those audits or, even as you say in some cases of a bad actor destroying the audits before the EPA sees them, if they are not required to report those audits, then the bad employers could just as easily destroy the audits and continue practices that have been causing injuries to workers.

Mr. White. Well, I mean, the fact is that nothing is going to prevent an employer from destroying a voluntary self-audit. However, you know, there are Federal laws that prohibit destruction of relevant information provided to Government agencies.

Mr. Martinez. Yes, I find that people who are willing to violate the safety of workers are not that much afraid of violating Federal laws. That is the problem.

Mr. White. Well, this bill does not protect the willful violators.

Chairman Ballenger. Yes, Dr. Bigos.

Dr. Bigos. My name was used in one of the previous questions, and I would like to respond.

Chairman Ballenger. Fire way. I’m sure Congressman Boehner won’t mind waiting just a moment.

Dr. Bigos. The relationship between injuries that we see at work, I don't deny those, the fractures and dislocations. Those people respond in a certain way. Okay? Almost universally, they respond in a certain way. The problem we have is labeling aches and pains disorders, and trying to determine some medical justification for the aches and pains.

We would have to go to spring training and stop it immediately in February because everybody who goes to spring training has these aches and pains. But it is a totally concept. And that is why I said what I did about, I have difficulty with the relationship.

Believe me, I am the first person in my family to finish one year of college. I come from a blue collar family on both sides. I lost both my grandfathers and my great-uncle to injuries in the mines. I have worked hard for a living myself, building silos 90 hours a week, at $1.50 an hour. Okay?

I would do anything to make this happen, to have workers just do wonderfully because we did ergonomic things. I can't explain why companies that have similar setups can also have a four- to seven-fold difference in claim rates and disability rates even though they are exactly the same ergonomically, even though ergonomists have gone through their workplaces with a fine-toothed comb to try to make sure that there are no quote-unquote problems. That is where I am having difficulty.

Chairman Ballenger. Okay. Congressman Boehner.

Mr. Boehner. Well, thank you, Mr. Chairman. My first point was going to be to allow Dr. Bigos to respond to Mr. Frumin.

Dr. Vender, you are an expert in conditions of the hands and the arm. Please describe your impression of the frequency with which these conditions and these problems in this area occur in the general public as opposed to those that you see only as a result of the workplace.

Dr. Vender. Certainly. I need to answer in maybe a little slightly different manner. The types of things that I see in workers, I think best categorize as saying they are the same types of problems I see in people in general. People who are workers are no different than people who are unemployed. They still get the same diseases; they still have the same aches and pains. I see carpal tunnel syndrome in elderly people who have never worked and in young people who don't work. There is no straight correlation between the activities that people are performing at work and what types of disease patterns, or even symptoms, they are experiencing. There is no correlation between the type of symptoms that I see for people who are employed versus the types of things that my kids come and talk to me about at least on a weekly basis about their elbows and their knees and everything else. So, it is the same in the general population as it is in the work population.

Mr. Boehner. Are there any differences in treatments?

Dr. Vender. No. The thing about treatment is, and this goes back to the OSHA standards, it is hard to treat symptoms until you have a diagnosis. Until someone can identify what is causing the symptoms, it is hard to treat it. Simply telling someone not to use their hand because it hurts really doesn't make any sense until there is something to avoid by avoiding using their hands.

Mr. Boehner. Mr. Frumin, in your testimony today, you said, and I quote, "The lessons of Lodi are clear. We need a strong, bigger OSHA with more power, standards, staff, and money and not the OSHA you seem to be seeking."

Now, beyond the fact that I think this is a rather inflammatory statement, with repetitive stress injuries declining, according to the Bureau of Labor Statistics, some 17 percent between 1995 and 1997, don't you think that as public policy-makers we would be wise to make sure we were on sound scientific ground before we permit OSHA to proceed with an ergonomics standard?

Mr. Frumin. Well, I would commend to you, Mr. Boehner, the National Academy of Sciences report, which unequivocally provides that sound scientific ground for you. Their conclusions are repeatedly stated, that there is a clear association, as I said earlier, between exposure to ergonomic hazards and the higher risk of the occurrence of these kinds of disorders. It is unfortunate that, you know, we are having to replay this dispute about it here and waste the time of this Subcommittee going over that ground again.

You paid good taxpayer money for the study. Read it. The conclusions are quite strong, and what's particularly strong there is their finding that interventions to prevent these injuries have been well established. Of course, we are talking not only about repetitive stress injuries, carpal tunnel syndrome, upper extremity cases, but also about the back injuries that are afflicting so many workers in the workplace, 20 percent, according to the same BLS data. These are disabling injuries, and interventions are well known to reduce the risk of back injuries. You can go to any trucking terminal or warehouse and look at the kinds of exposure to lifting hazards in the State of Ohio or elsewhere and find ergonomic hazards which could be ameliorated and the risk injuries reduced.

The insurance industry is well versed in this. Employers are well versed in this. It is unfortunate that we have to spend time arguing about it instead of moving ahead to make sure that these injuries are in fact prevented where employers are not doing what needs to be done.

This is a huge proportion of the annual and daily burden of injuries among American workers.

Mr. Boehner. If the report is so conclusive, why do we continue to have a debate in the country about the need for OSHA to mandate an ergonomics standard? We have witnesses here who are in some disagreement with you.

Mr. Frumin. I think you could turn to the testimony of the witness from your last hearing who said he had talked to employers about the problem with the OSHA standard. He said they had the same response: A mandatory standard is not going to help. They see it as one more intrusion by the government in their private lives.

Mr. Congressman, this is not about the facts. This is not about the OSH Act. This is about a philosophical opposition to government intervention. I think we ought to just say so, get it out there, have the argument about that instead of this kind of backdoor attempt to obscure the issue with a smoke and mirrors debate about science.

Mr. Boehner. Well, Mr. Frumin, with all due respect, we have some professionals sitting to your right.

Mr. Frumin. Yes they are there.

Mr. Boehner. These medical professionals disagree with the conclusions that you have raised.

Dr. Bigos, I would like to ask you to respond to the comments of Mr. Frumin.

Dr. Bigos. Number one, in 1980, there was established a lifting guide to prevent back problems at work. It was based on three studies: one published in English, one published in Japanese, and one that was not published. And it was conservative enough that any woman over 50 years of age should not take a gallon of milk out of the refrigerator. It is harmful to her health. It was very conservative. It took us well beyond what the physiologic limits are because they were studies on cadaver bones and cadaver spines.

In 1993, it was re-done. The main reason was that it had no effect having an ergonomic lifting guide. In 1985, I was at a NIOSH 10-year planning workshop. The plan was to wipe out back problems as an industrial injury through presently known ergonomic principles. Well, 1995 has come and gone and with that 10-year planning. I made an offer that I won't repeat right now that if they did do that within the 10-year period of time, I would distinguish myself in a very unfavorable way and it didn't happen.

[Laughter.]

I wish it worked, but we have not been able to show that it does work.

Mr. Boehner. Dr. Vender, do you have anything to add?

Dr. Vender. Very briefly, I would like to make just a few comments. One, I think NIOSH itself has demonstrated very well that ergonomics is not the answer. When they studied US West plants on the west coast, one of the conclusions that they came up with was that the ergonomic quality of the plants was exemplary, but this certainly did not prevent the need to inspect it because of the upper-extremity complaints. So ergonomics did not correlate with the number of complaints there.

Two, I think even the most vocal proponents of ergonomics, that is, the ergonomists themselves, have stated actually in a very well-known book that there are no studies to show that ergonomics has affected disease incidence. So there has been no change in the carpal tunnel syndrome rate. This comes from their words; these are not my words.

The last statement I would like to make is, speaking for Dr. Bigos, too, that I treat these patients. I know what I have done over the years. I know what I have tried over the years. I know what the best options are to make things work. Taking someone with carpal tunnel syndrome or upper-extremity complaints out of work and saying don't use your hands, don't lift, push, or pull, is not going to better their lives or their general health.

Mr. Boehner. Thank you, Mr. Chairman.

Chairman Ballenger. Marty?

Mr. Martinez. Yes. There are a couple of things that I wasn't really going to get into, but since it has been brought up by someone else, I will get into it.

The fact is that you have three people on a panel disagreeing with Mr. Frumin. I could arrange that panel so that you would have everybody agreeing with Mr. Frumin. The problem here is that we don't get two and two or three and three. We get what the Chairman decides we will have here as witnesses. Certainly he is going to get witnesses who are going to be favorable to his legislation. So let's not phony that up with three people disagreeing with Mr. Frumin because these three people would disagree with Frumin.

But you, Dr. Bigos, gave an indication that there were two companies that have the identical ergonomic working conditions but have the differences of four to five times the reported musculoskeletal disorders. Name some of the companies. Identify some of the situations.

Dr. Bigos. The first one, I think, was Hanes Pantyhose. They were going to have one of their plants shutdown, and the question was raised as to whether they have another plant like it. They did, in a different State, where the incidence of all these injuries were virtually zero. I mean they were almost non-existent.

So subsequently, they took a hard look at their labor-management relations, and they changed the management techniques they were using in the one. It brought things down, but obviously not as low as the other plant despite the fact that these were cookie-cutter situations. I have seen this in grocery stores. I have seen this in people who move produce. I have seen this in people who move packages.

Mr. Martinez. Yes, but now you are talking about you have seen this here and there, but you are not giving me the names of two companies where these_

Dr. Bigos. Okay. IGA, they are a grocery store chain. I have seen it in Safeway bakeries. I don't know the names of the companies within the San Joaquin Valley. I can't give you that information.

Mr. Martinez. That is good enough.

Mr. Frumin, would you like to respond to that.

Mr. Frumin. Well, Dr. Bigos has mentioned Hanes and Sarah Lee. That’s actually quite interesting. We represented the workers at the Hanes plant in Galax, Virginia, where in 1979, as the result of a complaint that the workers filed, OSHA issued the first citation for ergonomic hazards in the apparel industry. It was quite a learning experience for Hanes, for Sarah Lee Corp. They were behind the ball. They had a huge number of disabling cases, workers’ comp cases. They had terrible problems. Galax is not too far from Hickory, Mr. Chairman.

Chairman Ballenger. One of my best customers.

Mr. Frumin. I should hope so. They are a good North Carolina company. Now they learned a lot from their abatement effort. They signed a settlement agreement. They implemented an abatement effort with Dr. Ayoub from North Carolina State helping them out. And they then took that program out to a lot of their other plants.

Were there differences between plants? Sure there are differences. You are making lightweight T-shirts versus heavyweight T-shirts versus underpants versus a variety of different products. There were different workforces. There is no question about it. But Hanes learned a lot there. I don't think they would be in a position- and I say this with some fear of contradiction, but not too much- to disavow all the time and effort they have spent on ergonomics. They have done a lot, and a lot of it has to do with the same principles that we have been talking about here in the OSHA standards: look at the job, make it safe, protect the workers.

Chairman Ballenger. If I may just add a little bit to that, Marty. I saw every one of those Hanes plants with packaging and so forth, and I'm not saying that ergonomics or OSHA did it, but none of them are left. They have all moved to Honduras and Nicaragua and so forth, where OSHA is not quite as strict. I am not saying that was the actual reason. I’m sure their moving there had something to do with the labor costs. But sadly, I am sure the additional costs may have been a factor. Somebody else has mentioned the fact that we are going to lose jobs. There is no doubt in my mind, especially at the bottom of the labor scale- and I am not trying to justify anybody mistreating their employees- but the fact remains that as our Government becomes more and more restrictive, people are looking for other places to put their plants. That is what has happened.

Mr. Frumin. Could I respond briefly to that, Mr. Chairman.

Chairman Ballenger. Yes, quickly. I have only one more thing. Fire away.

Mr. Frumin. As you know, we are quite concerned about the U.S. trade policy that encourages employers to do exactly what you have said, to take U.S. jobs and move them to export processing zones with no health and safety programs whatsoever. They saved money at Hanes when they implemented an ergonomics program.

Chairman Ballenger. Oh yes. I don't doubt that.

Mr. Frumin. This approach had nothing to do with their moving their jobs.

Chairman Ballenger. Let me ask Mr. White one question, if I may.

Mr. Martinez. You have used up my time, Mr. Chairman.

Chairman Ballenger. Oh. Excuse me. Fire away.

[Laughter.]

Mr. Martinez. All right. Just one last question because we could go on with this all day, and there is going to be disagreement.

Dr. Vender, let me ask you this:. Is the American Academy of Orthopedic Surgeons doctors?

Dr. Vender. I am sorry. Could you repeat that?

Mr. Martinez. The American Academy of Orthopedic Surgeons, are they doctors?

Dr. Vender. They should be, yes.

Mr. Martinez. What about the American College of Occupational and Environmental Medicine? Are they all doctors?

Dr. Bigos. Probably.

Mr. Martinez. All right. They both endorse ergonomics in the study that OSHA has come up with.

Dr. Vender. I don't think the issue is whether we endorse ergonomics. Do we believe in ergonomics or don't we? I think that ergonomics is of value. I think it can help people under certain circumstances. I think the concern is that it is being touted as an extreme panacea to eliminate musculoskeletal complaints. I think it is being taken out of context.

Chairman Ballenger. Congressman Boehner, do you have any more questions?

Mr. Boehner. Yes. Dr. Bigos, what do you as a physician and researcher see as the danger of premature regulation of ergonomics?

Dr. Bigos. Well, I think there are many. But to be brief, I think it puts ideas in the minds of workers and it makes it much more difficult to treat them. They think there has been damage done to them. I think that is one side just from a clinician.

From a scientific standpoint, my concern is that it is going to increase labor costs and that we are going to lose jobs. Whether we lose them to overseas or whether we lose them to robotics, it is going to happen if things become expensive enough. Unfortunately, many of these are good high-paying jobs. You know, I would like all low-paying jobs to be eliminated and everybody to be paid very well. That is basically my fear.

The other thing is that I am on the committee for the American Academy of Orthopedic Surgery for Occupational Health, and there was no endorsement made. I made the last two meetings when we discussed it.

Mr. Boehner. Thank you, Mr. Chairman.

Chairman Ballenger. Let me ask Mr. White one question. Mr. White, if I may, Mr. Frumin in his testimony said the audit protection bill would limit employees access to important safety and health information. As far as I know, there is nothing in the bill about employee access to information. We aren't changing the rules about that. Is there anything in the present law that restricts employees from getting information?

Mr. White. No, Mr. Chairman. In fact, the National Labor Relations Act and other laws give unions and employees access to safety and health information in a fairly unrestricted way, and I don't think that this bill has the effect of changing that.

Chairman Ballenger. No. We left the law the same. So whatever the way the law is now is what it would be with this bill.

Mr. White. That is correct.

Mr. Frumin. Mr. Chairman, could I respond to that?

Chairman Ballenger. Yes, but make it short. We want to go home.

Mr. Frumin. Yes. The audits are not discloseable to workers. The definition of an audit includes certain documents that workers now have access to.

Chairman Ballenger. No, but we didn't make the audits unavailable to OSHA, except in special cases. Not to workers.

Mr. Frumin. So you say the intent is for the audits to be given to workers?

Chairman Ballenger. If they ask for them.

Mr. Martinez. Well, good. Mr. Chairman?

Chairman Ballenger. The same law that we have on the books right now. Marty.

Mr. Martinez. We would like to introduce these few letters into the record. One of them is from the American Academy of Orthopedic Surgeons, which you obviously missed the meeting.

[The letters are attached as Appendix O.]

Dr. Bigos. Who signed it?

Mr. Martinez. Hold on a second.

Chairman Ballenger. April 13th, 1999.

Mr. Martinez. Robert D’Ambrosia, M.D.

Dr. Bigos. Okay.

Mr. Martinez. It says, and I quote, "The AAOS applauds the vigorous efforts of OSHA in researching and promulgating ergonomic standards. We share your goals for the health, safety and well being of workers and support the intent of your undertaking."

Dr. Bigos. I know Dr. D’Ambrosia, but that did not come from the committee that is supposed to deal with occupational injuries, which is the Occupational Health Committee.

Mr. Martinez. It appropriately in the first paragraph indicates that it is from them, indicating there are 16,000 physicians that are members of the American Academy of Orthopedic Surgery.

Chairman Ballenger. He might have written it on his own.

Dr. Bigos. I don't remember that coming out of our Committee.

Chairman Ballenger. The buzzer just went off again to tell us there is another vote, so I want to thank all of our witnesses for their valuable testimony. We greatly appreciate everyone taking time to be here to testify. If there is no further business, the subcommittee stands adjourned.

[Whereupon, at 12:57 p.m., the Subcommittee was adjourned.]