[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
EXAMINING VOLUNTARY EMPLOYER COMPLIANCE PROGRAMS THAT IMPROVE
OCCUPATIONAL SAFETY AND HEALTH
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
May 12, 2005
__________
Serial No. 109-15
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN A. BOEHNER, Ohio, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California
Chairman Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon, Major R. Owens, New York
California Donald M. Payne, New Jersey
Michael N. Castle, Delaware Robert E. Andrews, New Jersey
Sam Johnson, Texas Robert C. Scott, Virginia
Mark E. Souder, Indiana Lynn C. Woolsey, California
Charlie Norwood, Georgia Ruben Hinojosa, Texas
Vernon J. Ehlers, Michigan Carolyn McCarthy, New York
Judy Biggert, Illinois John F. Tierney, Massachusetts
Todd Russell Platts, Pennsylvania Ron Kind, Wisconsin
Patrick J. Tiberi, Ohio Dennis J. Kucinich, Ohio
Ric Keller, Florida David Wu, Oregon
Tom Osborne, Nebraska Rush D. Holt, New Jersey
Joe Wilson, South Carolina Susan A. Davis, California
Jon C. Porter, Nevada Betty McCollum, Minnesota
John Kline, Minnesota Danny K. Davis, Illinois
Marilyn N. Musgrave, Colorado Raul M. Grijalva, Arizona
Bob Inglis, South Carolina Chris Van Hollen, Maryland
Cathy McMorris, Washington Tim Ryan, Ohio
Kenny Marchant, Texas Timothy H. Bishop, New York
Tom Price, Georgia John Barrow, Georgia
Luis G. Fortuno, Puerto Rico
Bobby Jindal, Louisiana
Charles W. Boustany, Jr., Louisiana
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New
York
Paula Nowakowski, Staff Director
John Lawrence, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
CHARLIE NORWOOD, Georgia, Chairman
Judy Biggert, Illinois, Vice Major R. Owens, New York
Chairman Dennis J. Kucinich, Ohio
Ric Keller, Florida Lynn C. Woolsey, California
John Kline, Minnesota Timothy H. Bishop, New York
Kenny Marchant, Texas John Barrow, Georgia
Tom Price, Georgia George Miller, California, ex
Thelma Drake, Virginia officio
John A. Boehner, Ohio, ex officio
------
C O N T E N T S
----------
Page
Hearing held on May 12, 2005..................................... 1
Statement of Members:
Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce
Protections, Committee on Education and the Workforce...... 1
Prepared statement of.................................... 3
Owens, Hon. Major R., Ranking Member, Committee on Education
and the Workforce.......................................... 4
Prepared statement of.................................... 6
Statement of Witnesses:
Migliaccio, Frank L., Jr., Executive Director of Safety and
Health, International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers.................... 18
Prepared statement of.................................... 20
Morikawa, Dennis J., Esq., Morgan, Lewis & Bockius LLP,
Washington, DC............................................. 23
Prepared statement of.................................... 24
Pressly, David, Incoming President, National Association of
Homebuilders, Washington, DC............................... 13
Prepared statement of.................................... 14
Response to questions submitted for the record........... 45
Turnipseed, Jon, M.S., CSP, Safety Program Manager, City of
San Bernardino Municipal Water Department, San Bernardino,
CA......................................................... 8
Prepared statement of.................................... 10
Additional materials supplied:
American Industrial Hygiene Association, Statement submitted
for the record............................................. 42
EXAMINING VOLUNTARY EMPLOYER COMPLIANCE PROGRAMS THAT IMPROVE
OCCUPATIONAL SAFETY AND HEALTH
----------
Thursday, May 12, 2005
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:33 a.m., in
room 2175, Rayburn House Office Building, Hon. Charlie Norwood
[Chairman of the Subcommittee] presiding.
Present: Representatives Norwood, Biggert, Kline, Marchant,
Price, Drake, Owens, and Woolsey.
Staff present: Kevin Frank, Professional Staff Member; Ed
Gilroy, Director of Workforce Policy; Donald McIntosh,
Legislative Assistant; Jim Paretti, Workforce Policy Counsel;
Molly McLaughlin Salmi, Deputy Director of Workforce Policy;
Deborah L. Samantar, Committee Clerk; Kevin Smith, Senior
Communications Advisor; Loren Sweatt, Professional Staff; Margo
Hennigan, Minority Legislative Assistant; Marsha Renwanz,
Minority Legislative Associate; Peter Rutledge, Minority Senior
Legislative Associate/Labor.
Chairman Norwood. A quorum being present, the Subcommittee
on Workforce Protections of the Committee on Education and the
Workforce will come to order. We're meeting today to hear
testimony on examining voluntary employer compliance programs
that improve occupational safety and health.
Under Committee rule 12(B), opening statements are limited
to the Chairman and the Ranking Minority Member of this
Subcommittee. Therefore, if other Members have statements, they
may be included in the hearing record. With that, I ask
unanimous consent for the hearing record to remain open 14 days
to allow Members statements and other extraneous materials
referenced during the hearing to be submitted to the official
hearing record.
Without objection, so ordered.
STATEMENT OF HON. CHARLIE NORWOOD, CHAIRMAN, SUBCOMMITTEE ON
WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE
Chairman Norwood. Today's hearing will examine voluntary
employer compliance programs that improve occupational safety
and health. We will explore the voluntary efforts employers and
workers are undertaking to improve workplace safety. Our
witnesses are from a broad spectrum of the safety and health
community. I want to thank you for being here and sharing your
information and time with this Committee.
I've heard employers say many times that, actually from my
own first-hand knowledge, that OSHA regulations are too complex
and difficult to understand. Clearing up this regulatory jungle
has been one of my top priorities since coming to Congress in
1995, and continues to be so today. I believe a regulatory
jungle is an apt description for the myriad of OSHA rules,
regulations, gigantic documents, and interpretive letters that
employers must come to understand. With all of these documents
and the increased use of outside materials that are
incorporated by reference, the small businessman, and that was
what I was, is quite literally being choked by the underbrush
of government regulations.
Small businesses want to comply with the nation's health
and safety laws--frankly, because it makes very good sense to
do so. It pays to do so. However, OSHA must simply find a way
to simplify the process to ensure that businesses are operating
in a safe manner.
Proactive and voluntary compliance with agency health and
safety regulations, after all, is far more effective than the
``gotcha'' enforcement tactics that drive businessmen and women
into the bunker and away from agency cooperation. Fortunately,
OSHA has already recognized the need for compliance assistance,
and Secretary Chao, in my opinion, is to be commended for a
vision and leadership in this regard. The cooperative
strategies that have been implemented in the past 5 years, we
are beginning to see positive results, and result is all that
really counts, the bottom line far fewer people or more people
being made safe and healthy by what we're trying to do. That's
the whole point of all of this.
In March 2004, the Government Accountability Office, GAO,
evaluated these results in a study of voluntary compliance and
found that safety improvements were being made by companies
involved in OSHA's compliance programs, programs that have
contributed to the safest workforce in our nation's modern
history.
Indeed, one of the key recommendations from GAO during the
course of its study was to urge Congress to gather more data on
the utility of the voluntary compliance programs. It is my hope
that we can begin that process today, through the holding of
this hearing.
During today's proceedings we will also hear about
voluntary efforts employers are making to work with private
consultants and industrial safety specialists to actually
foster a safer workplace. This is an important story that needs
to be told. After all, it is a simple fact that OSHA will never
have the resources to visit every American workplace to ensure
compliance. We can wish for that until the cows come home. This
government will never have enough inspectors to go into every
small business in this country. Once we recognize that, then we
have to go down the road to find another, more sensible, way to
try to solve the problem.
Given that fact, we should encourage employers to
proactively take steps to ensure that workplaces are safe,
healthy, and OSHA-compliant. I especially look forward to our
witnesses shedding additional light on these issues. Employers
should be congratulated for their proactive efforts in
implementing comprehensive safety and health programs. Further,
they should be encouraged to invite OSHA to their work sites
and engaged the agency and compliance assistance without fear
of reprisals from Federal bureaucrats. That is critical to
this.
However, I think there's still resistance to cooperative
programs for fear that the government is only looking to punish
and not to praise. We can have another hearing and go over all
the examples we know about. Given my own experience with the
``gotcha'' tactics the agency employed in unfairly citing my
business many, many years ago, I can certainly understand that
fear. But that fear should not prevent this Committee from
further examining the potential of voluntary compliance, and
that is exactly what we are going to do today.
There are many proposals to expand compliance programs and
encourage employers to implement comprehensive, safe, and
healthy programs and to leverage OSHA's existing resources.
Today we will examine some of these proposals and weigh the
employers' exposure when they work with OSHA, and hear the
positives and the negatives of going beyond compliance.
I look forward to the testimony of our distinguished panel
of witnesses, and I am very eager to learn how current law
encourages or discourages employers from taking these very
crucial steps.
With that, I would like to recognize my good friend from
Brooklyn for any opening statement that he may wish to make.
[The prepared statement of Chairman Norwood follows:]
Statement of the Hon. Charlie Norwood, Chairman, Subcommittee on
Workforce Protections, Committee on Education and the Workforce
Good Morning, the Subcommittee on Workforce Protections will now
come to order.
Today's hearing, Examining Voluntary Employer Compliance Programs
that Improve Occupational Safety and Health, will explore the voluntary
efforts employers and workers are undertaking to improve workplace
safety. Our witnesses are from a broad spectrum of the safety and
health community, and I welcome them here today.
I have heard employers say many times, and know from my own
firsthand knowledge, that OSHA regulations are too complex and
difficult to understand.
Clearing up this regulatory jungle has been one of my top
priorities since coming to Congress in 1995, and it continues to be
today.
I believe that ``a regulatory jungle'' is an apt description for
the myriad OSHA rules, regulations, guidance documents, and
interpretive letters that employers must come to understand.
With all these documents, and the increased use of outside
materials that are incorporated by reference, the small businessman is
quite literally being choked under the ``brush'' of onerous government
regulations.
Small businesses want to comply with our nation's health and safety
laws because it pays for them to do so.
However, OSHA must find a way to simplify the process to ensure
that businesses are operating in a safe manner.
Proactive and voluntary compliance with Agency health and safety
regulations, after all, is far more effective than ``gotcha''
enforcement tactics that drive business men and women into the bunker
and away from Agency cooperation.
Fortunately, OSHA has already recognized the need for compliance
assistance, and Secretary Chao is to be commended for her vision and
leadership in this regard. Through cooperative strategies implemented
in the past five years, we are beginning to see positive results; and
results are all that count.
In March 2004, the Government Accountability Office (GAO)
illuminated these results in a study of voluntary compliance, and found
that safety improvements were being made by companies involved in
OSHA's compliance programs; programs that have contributed to the
safest workforce in our nation's modern history.
Yet one of the key recommendations from GAO during the course of
its study was to urge Congress to gather more data on the utility of
the voluntary compliance programs. It is my hope that we can begin that
process today by holding this hearing.
During today's proceedings, we will also hear about voluntary
efforts employers are making to work with private consultants and
industrial safety specialists to foster a safer workplace.
This is an important story that needs to be told. After all, it is
a simple fact that OSHA will never have the resources to visit every
American worksite to ensure compliance.
Given that fact, we should encourage employers to proactively take
steps to ensure their workplaces are safe, healthy, and OSHA-compliant.
I especially look forward to our witnesses shedding additional
light on this issue.
Employers should be congratulated for their proactive efforts in
implementing comprehensive safety and health programs.
Further, they should be encouraged to invite OSHA to their worksite
and engage the Agency in compliance assistance without fear of
reprisals from federal bureaucrats.
However, I believe there is still resistance to cooperative
programs for fear that the government is only looking to punish, not to
praise.
Heck, given my own experiences with the ``gotcha'' tactics the
Agency employed in unfairly citing my business not too many years ago,
I certainly understand that fear.
But that fear should not prevent this Committee from further
examining the potential of voluntary compliance, and that is exactly
what we are going to do today.
There are many proposals to expand compliance programs, encourage
employers to implement comprehensive safety and health programs, and to
leverage OSHA's existing resources.
Today we will examine some of those proposals, weigh an employer's
exposure when they work with OSHA, and hear the positives and negatives
of going beyond compliance.
I look forward to the testimony of our distinguished panel of
witnesses, and am eager to learn how current law encourages--or
discourages--employers from taking these steps.
With that I would like to recognize my good friend from New York
for any opening remarks that he may have.
______
Mr. Owens. Thank you very much. Mr. Chairman, I have a
written statement for the record that I would like to have
submitted in its entirety.
Chairman Norwood. So ordered.
STATEMENT OF HON. MAJOR R. OWENS, RANKING MEMBER, SUBCOMMITTEE
ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE
WORKFORCE
Mr. Owens. I would like to make a few modifications by
saying at the outset that let us not go to extremes, from one
extreme to the other. You're proposing extreme voluntary
compliance and you're going to surrender completely to the
voluntary process. We've never had adequate inspections and
have sought to get some kind of reasonable percentage of
businesses and industries inspected. We are, as a result of the
emphasis on voluntary compliance, allotting less and less
resources to the existing feeble system of inspections.
Voluntary compliance in this day and age seems certainly to
have no evidence in other sectors to recommend it.
You know, we have for a long time left corporations to take
care of their own business in terms of their books. We have
Enron, you know, voluntary. We have WorldCom. We have the drug
problem in the baseball, football, and basketball sectors, and
they are all saying that we have taken care of it by voluntary
compliance. Every day more and more evidence indicates that
where you have human beings, a great proportion of them are
going to be honest and you can depend upon them to comply and
to seek to do what is right.
But there is a percentage, always, that will violate the
normal and seek to swindle others. It is like corruption--where
there is intelligence, there is corruption. All we can hope in
this society is to have enough regulation, enough inspection to
hold the corruption to a minimum, and to minimize the
suffering.
That's the real purpose here. Everybody wants to--I mean
most Americans, they file their income taxes properly and they
seek to obey the law. But nobody would propose that we don't
have any tax audits. The very existence of a tax audit and the
possibility that there may be tax audits helps to keep the
situation reasonably under control in terms of a minimal amount
of dishonesty and corruption.
So we shouldn't go to extremes and go overboard, as we are
here, in the area of pushing voluntary compliance. Let's be
more reasonable and look at voluntary compliance as an adjunct
and extension of what exists already, instead of what is
actually happening--that is, there is an effort to replace it,
to use voluntary compliance to replace what exists already. As
we increase voluntary compliance, we decrease the resources for
inspections.
With that said, let me switch to the topic I was told would
be the focus of this hearing, and that's an overall look at
voluntary programs to assist employers in achieving OSHA
standards for safety and health. According to the official GAO
report that you requested, and you quoted at great length, in
the 108th Congress, OSHA has an exemplary track record in
providing a range of voluntary employer compliance options.
Thirty years ago, OSHA established the State Consultation
Program, which provides smaller companies in hazardous
industries on a voluntary basis with free and confidential
individualized worksite safety assessments as well as workable
solutions. This voluntary employer compliance program is
available in all 50 states, with OSHA footing the bill. In
fiscal year 2003, OSHA sent $53 million--more than 10 percent
of its entire budget--to state governments to carry out these
voluntary consultations.
The 2004 GAO report also highlighted three other voluntary
employer compliance programs administered by OSHA. They include
the Voluntary Protection Program, Strategic Partnerships, and
Alliances. I do not have the time here to summarize the
business targets and cornerstone principles of each of these
voluntary programs. However, I wish to draw attention to the
central finding in this GAO report. GAO emphasized that
although OSHA's voluntary employer programs show promise, each
must be carefully evaluated before any of them are expended.
GAO repeated numerous times that to date, the data used to
assess program outcomes has been entirely anecdotal. In fact,
GAO felt so strongly about this that they put this central
finding in the report's title. The reports title is ``OSHA's
Voluntary Compliance Strategies Show Promising Results, but
Should Be Fully Evaluated before They Are Expanded.''
GAO also documented that between 1996 and 2003, the
percentage of OSHA's budget devoted to voluntary compliance
efforts increased by 8 percent, whereas that designated for
enforcement decreased by 6 percent.
I want to remind my colleagues on the other side of the
aisle that OSHA's enforcement efforts are a key statutory
requirement. The Occupational Safety and Health Act of 1970
clearly states at the outset that the Secretary of labor shall
set mandatory workplace safety and health standards and shall
enforce them effectively. Thus, volunteer programs are an
adjunct to OSHA's central mission of setting and enforcing
occupational safety and health standards.
As I said before, it should not be a substitute. We should
not go to extremes of moving the mandatory statutory
requirements in favor of experimenting with voluntary programs.
Let me point out that both corporate lobbyists and AFL-CIO
members agree about the condition of OSHA's chronically
underfunded inspection system. Both cite a statistic that given
current funding and current staffing levels at OSHA, it would
take 108 years--given the situation as it is now--it would take
108 years to inspect every workplace in America. So, Mr.
Chairman, I request that the next Subcommittee hearing be
focused on ways to reinvigorate OSHA's enforcement apparatus,
from reconfiguring the targeted inspection process to stepping
up citations and penalties for repeated safety violators.
Mr. Chairman, let me close by reminding everyone that we
have a serious corporate manslaughter problem in this country.
Even by conservative estimates, a worker is killed on the job
every 96 minutes as a result of an employer's gross negligence
and safety lapses. As we will hear from our witness Mr.
Migliaccio, who represents millions of workers in the building
and construction trade unions, we know how to prevent these
deaths. We know how to prevent trench collapses where workers
are suffocated and free falls from construction sites.
Part of the blame here must be laid at the congressional
doorstep. Every year in the appropriations process, we exempt
businesses with 10 or fewer employees from targeted OSHA
inspections. Yet as we will learn, more than half of all
construction fatalities occur in these small businesses.
I welcome Mr. Migliaccio to this hearing. I look forward to
hearing his testimony and that of the other witnesses. I yield
back the balance of my time, Mr. Chairman.
[The prepared statement of Mr. Owens follows:]
Statement of Hon. Major R. Owens, Ranking Member, Subcommittee on
Workforce Protections, Committee on Education and the Workforce
Mr. Chairman, this is a small Subcommittee with a membership of
only 5 Democratic Representatives and 7 Republican Representatives. In
representing our Congressional districts and constituencies, we
routinely disagree on legislative matters and policy issues within this
Subcommittee's jurisdiction.
It is our sworn duty as Members of Congress to do just that--uphold
the U.S. Constitution, represent our respective constituencies, and
vote according to individual conscience. But hearings in this
Subcommittee should not become ``caveat emptor'' or ``minority members
beware'' scenarios. We ought to be able to get our signals straight on
whether a hearing is to be an oversight session on a given topic or a
legislative hearing about specific bills.
Especially in light of our small size, we ought to be able to have
clear communication channels about that. Now it was my understanding--
and that of all the Members on this side of the aisle--that this was to
be an oversight hearing on voluntary employer compliance approaches to
occupational safety and health. In reviewing the written testimony last
night of witnesses selected by your side of the aisle, however, this
appears to have morphed into a hearing about specific bills to amend
the Occupational Safety and Health (OSH) Act. Mr. Chairman, we need
some truth-in-advertising here. By all means, you have the prerogative
as Chair to call a legislative hearing at any time. But it is only fair
to disclose that fact in advance to Members on this side of the aisle,
so we can prepare ourselves and the one witness we are granted
accordingly.
That said, let me switch to the topic I was told would be the focus
of this hearing--voluntary programs to assist employers in achieving
OSHA standards for safety and health. According to the official GAO
report you requested in the 108th Congress, OSHA has an exemplary track
record in providing a range of voluntary employer compliance options.
Thirty years ago, OSHA established the State Consultation Program,
which provides smaller companies in hazardous industries on a voluntary
basis with free and confidential individualized worksite safety
assessments as well as workable solutions. This voluntary employer
compliance program is available in all 50 States, with OSHA footing the
bill. In fiscal year 2003, OSHA sent $53 million dollars--more than 10
percent of its entire budget--to state governments to carry out these
voluntary consultations.
The 2004 GAO report also highlighted 3 other voluntary employer
compliance programs administered by OSHA. They include the Voluntary
Protection Program, Strategic Partnerships, and Alliances. I do not
have the time here to summarize the business targets and cornerstone
principles of each of these voluntary programs. However, I wish to draw
attention to the central finding in this GAO report. GAO emphasized
that although OSHA's voluntary employer programs show promise, each
must be carefully evaluated before any of them are expanded.
GAO repeated numerous times that to date, the data used to assess
program outcomes has been entirely anecdotal. In fact, GAO felt so
strongly about this that they put this central finding in the report's
title: ``OSHA's Voluntary Compliance Strategies Show Promising Results,
but Should Be Fully Evaluated before They Are Expanded.''
GAO also documented that between 1996 and 2003, the percentage of
OSHA's budget devoted to voluntary compliance efforts increased by 8
percent, whereas that designated for enforcement decreased by 6
percent. I want to remind my colleagues on the other side of the aisle
that OSHA's enforcement efforts are a key statutory requirement. The
OSH Act of 1970 clearly states at the outset that the Secretary of
Labor shall set mandatory workplace safety and health standards and
shall enforce them effectively. Thus, voluntary programs are an adjunct
to OSHA's central mission of setting and enforcing occupational safety
and health standards.
Let me point out that both corporate lobbyists and AFL-CIO members
agree about the condition of OSHA's chronically underfunded inspection
system. Both cite a statistic that given current funding and current
staffing levels at OSHA, it would take 108 years to inspect every
workplace in America. So, Mr. Chairman, I request that the next
Subcommittee hearing be focused on ways to reinvigorate OSHA's
enforcement apparatus, from reconfiguring the targeted inspection
process to stepping up citations and penalties for repeated safety
violators.
Mr. Chairman, let me close by reminding everyone that we have a
serious corporate manslaughter problem in this country. Even by
conservative estimates, a worker is killed on the job every 96 minutes
as a result of an employer's gross negligence and safety lapses. As we
will hear from our witness Mr. Migliaccio, who represents millions of
workers in the building and construction trade unions, we know how to
prevent these deaths. We know how to prevent trench collapses where
workers are suffocated and free falls from construction sites. Part of
the blame here must be laid at the Congressional doorstep. Every year
in the appropriations process, we exempt businesses with 10 or fewer
employees from targeted OSHA inspections. Yet as we will learn, more
than half of all construction fatalities occur in these small
businesses. I welcome Mr. Migliaccio to this hearing. I look forward to
hearing his testimony and that of the other witnesses.
______
Chairman Norwood. Thank you very much, Mr. Owens. We will
begin with our panel of distinguished witnesses, and I would
like to introduce all of you, and then Mr. Turnipseed, we will
start with you.
Our first witness today is Mr. Jon Turnipseed, the safety
program manager for the city of San Bernardino Municipal Water
Department. Mr. Turnipseed is also a certified safety
professional, certified safety supervisor, and certified
occupational hearing conservationist, and we do welcome you,
Mr. Turnipseed.
Next, we're going to hear from Mr. David Pressly, the
president of Pressly Development Company and the incoming
president of the National Association of Homebuilders. The
Pressly Development Company builds single-family homes and
light commercial projects. Mr. Pressly has been involved in the
home building industry for more than 25 years.
Our next witness will be Mr. Frank L.--all right, I'm going
to try--Migliaccio, is that--say it out loud for me?
Mr. Migliaccio. Migliaccio.
Chairman Norwood. Well, you're most welcome, and with your
permission, I will call you Frank and you can call me Charlie.
[Laughter.]
Chairman Norwood. Frank is Executive Director of Safety and
Health of the International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers, and you're most
welcome.
And finally, we will hear from Mr. Dennis Morikawa. How did
I do?
Mr. Morikawa. You can call me Dennis.
Chairman Norwood. OK.
[Laughter.]
Chairman Norwood. That will work, you can call me Charlie.
That will be fine. A partner at Morgan Lewis and specializing
in employment law. Dennis assists his clients with OSHA
Voluntary Protection Programs and represents clients in a
variety of matters regarding the Occupational and Safety Health
Act. He is also the author of several articles regarding
occupational safety and health and employer compliance.
Now, before our witnesses start with their testimony, I
want to remind our Members that we will ask questions after the
entire panel has testified. In addition, the Committee Rule 2
imposes a 5-minute limit on all questions. Now, I don't like to
impose on our guests, but I do point out to you that in front
of you there is a set of lights, and when you see that yellow
light, I would ask you to start thinking about closing up
before it gets to be red, so that we can do this in an
expedient manner.
Mr. Turnipseed, you're up for 5 minutes.
STATEMENT OF JON TURNIPSEED, M.S., CSP, SAFETY PROGRAM MANAGER,
CITY OF SAN BERNARDINO MUNICIPAL WATER DEPARTMENT, SAN
BERNARDINO, CA
Mr. Turnipseed. Chairman Norwood and Members of the
Subcommittee, I want to thank you for this opportunity to
represent 30,000 members of the American Society of Safety
Engineers who all share your interest in finding ways to
advance our nation's commitment to occupational safety and
health.
I am a certified safety professional who has worked in the
profession for over 20 years. Since 1996, I have been the
safety program manager for the city of San Bernardino one
municipal water Department in California. From my experience I
can tell you that the ideas that the Subcommittee is examining
today, like third-party audits and providing more useful
information on OSHA closing conferences, are ideas that
complement and strengthen OSHA's enforcement role, which our
members also support.
However, enforcement is never enough. The challenge ASSE
members face in today's workplace is to help employers move
beyond compliance toward establishing proactive safety and
health measures. The ideas under consideration today will
encourage more employers to do that. ASSE has long supported
legislation that would encourage employers to engage in
voluntary safety and health audits.
The approach of Senator Enzi's ``SAFE Act'' calls for a
third-party independent audit and evaluation program separate
from OSHA. These voluntary audits will not supplant OSHA's
enforcement and cooperative efforts only add one more tool to
increase the number of safe and healthy workplaces. OSHA is
simply not given enough resources to provide the inspections
and consultation services that can reach as many employers as
we would all like.
Qualified auditors with necessary experience, education,
and skills, to be set by the Department of Labor advisory
committee, would perform workplace inspections and provide
consultation services to employers. Their greatest value will
be in helping employers provide a safe culture to those
businesses lacking the internal resources for their own health
and safety programs.
Reaching out to such employers may be the biggest challenge
for OSHA. ASSE believes creative ways to meet this challenge,
like this program, are needed. To help ensure auditors'
competence, a program must rely on widely accepted mechanisms
for certifying safety and health professionals who can
participate. Auditors should have professional safety and
health credentials like the CSP or CIH that meet the stringent
requirements of quality accreditation bodies such as the NCCA,
CESB, and ANSI's ISO.
With the assistance of qualified auditors, employers would
be more open to making suggested improvements, especially if a
safe harbor from routine OSHA penalties were offered as an
incentive for participation.
A third-party audit program would not lessen OSHA's
enforcement. It would provide additional resources for
employers and encourage them in a less intimidating and
positive way to take responsibility for safe and healthy
workplaces.
ASSE also believes that proactive employer efforts to
advance safety and health can be encouraged through Senator
Tiahrt's proposal to provide employers with a written statement
on OSHA closing conferences. An OSHA inspector would be
required to provide written results of the inspection as well
as provide to the employer rights to conference and contest
penalties and procedures involved in exercising these due
process rights.
Most important is that this measure would give employers
timely notice of any perceived hazards or regulatory violations
so that the employers could take prompt voluntary corrective
actions to protect workers. It would also assist employers,
especially small businesses, by giving fair notice of
procedural requirements minimizing the potential for confusion
when dealing with OSHA.
Important also is that this requirement would not unduly
burden OSHA, since any procedural information could easily be
given through a preprinted statement. However, one difficulty
needs to be addressed before the bill goes forward. At the
closing conference it is unlikely that an OSHA inspector can
know precisely which citations OSHA officials will ultimately
approve. Additional review following accident investigations or
help monitoring analysis, for example, may be necessary. While
the inspectors should identify specific conditions that pose a
threat to the workers' health and safety, initial citation
recommendations at the closing conference cannot be made
binding by OSHA.
With the support of ASSE, with these changes, ASSE hopes
the Committee can support this proposal.
Mr. Chairman, we thank you for this opportunity, and ASSE
looks forward to working with the Subcommittee to advance these
initiatives and help encourage employers to proactively address
workplace safety and health risks.
[The prepared statement of Mr. Turnipseed follows:]
Statement of Jon Turnipseed, M.S., CSP, Safety Program Manager, City of
San Bernardino Municipal Water Department, San Bernardino, CA
Chairman Norwood and Members of the Subcommittee:
My name is Jon Turnipseed and I am a member of the Government
Affairs Committee of the American Society of Safety Engineers (ASSE).
In my professional capacity, I am Safety Program Manager for the City
of San Bernardino Municipal Water Department in California. On behalf
of ASSE, I am pleased to submit the following testimony on the subject
of ``Examining Voluntary Employer Compliance Programs that Improve
Occupational Safety and Health.''
ASSE is the oldest and largest society of safety engineers and
safety professionals in the world. Founded in 1911, ASSE represents
approximately 30,000 dedicated safety and health professionals. ASSE's
membership includes Certified Safety Professionals, Certified
Industrial Hygienists, and Professional Engineers who are leaders in
their fields with the knowledge and expertise needed to move safety and
health forward on a global level.
We will focus our comments today in two areas: incentives to
implement third party safety and health audits and, the significance of
closing conferences in the Occupational Safety and Health
Administration (OSHA) inspection process.
ASSE's members support safety and health agencies such as OSHA and
believe these agencies help maintain a national focus on the importance
of occupational safety and health. However, ASSE believes that
enforcement is but one facet of a national effort. Our members strive
to help their companies, and those outside employers who are assisted
by their consultative efforts, to move beyond compliance by focusing on
proactive measures rather than reactive remedial steps. More forward-
looking initiatives are needed if American business hopes to break
through the plateau of injuries and illnesses that currently exists.
The Role of Third Party Audits In Improving Workplace Safety
ASSE has consistently supported legislative initiatives that would
encourage employers to conduct voluntary safety and health audits. The
``third party audit'' envisioned in previous legislative proposals,
such as Senator Enzi's ``SAFE Act,'' encompass these aspects and ASSE
is hopeful that, once employers realized the benefits of such
evaluative action, they would continue to implement this practice
voluntarily on a regular basis.
The ``SAFE Act'' approach calls for a ``third-party independent
audit and evaluation program'' separate from OSHA. It would establish
qualified ``auditors'' who would provide consultation services to
employers and perform workplace inspections. The qualifications for
such auditors could be established by an advisory committee under the
U.S. Department of Labor, to ensure that the participating safety and
health professionals had the experience, education and skills to
perform the assigned functions within their respective areas of
expertise.
The participating professionals would not be ``deputized'' OSHA
inspectors but would help increase safety awareness and improve the
safety culture of businesses that lack internal resources to initiate
their own programs. Because there would be no enforcement action
associated with identification of hazards or non-compliant situations,
employers would be more open to making the suggested improvements--
especially if a safe harbor from routine OSHA inspections was offered
as an incentive for participation. Employers who resist making
improvements to identified hazardous conditions would, of course, not
qualify for any inspection-related incentives.
The third party audit program will both impart an improved attitude
toward safety among the business community and have practical, positive
impacts on actual workplace conditions by identifying problems and
implementing suggestions proactively. Simply put, the federal
government does not have the resources necessary to provide either the
inspections or consultation services necessary to help ensure safe and
healthy workplaces across the country.
If OSHA compliance officers had to visit every workplace, this
would only occur once every 102 years. Under the current system, most
businesses will complete their entire life cycle without the experience
of an OSHA inspection--and without the purported benefits of compliance
assistance gained by this experience, unless they are ultra-hazardous
industries. OSHA normally inspects a worksite only after there is an
accident, an employee complaint, or a plainly visible hazard that is
brought to OSHA's attention by agency personnel or a professional
referral. This approach is not geared toward prevention, but toward
``after-the-fact'' punishment.
The ``third party audit'' legislative approach encourages voluntary
efforts of employers to seek out safety and health practitioners with
proven competence and professional independence to put in place
effective safety and health programs. These voluntary audits will not
supplant federal enforcement and cooperative efforts but will add
another tool for increasing the number of safe and healthy workplaces.
We disagree with those who claim that such audits are an impermissible
delegation of OSHA's enforcement authority. Moreover, there is
precedent within the federal government for this approach. The U.S.
Department of Transportation (DOT) has contracted with outside entities
to conduct third party audits of ``new entrant'' motor carriers.
Specific criteria ensure the qualifications of those auditors and also
effectively address conflict of interest issues.
Similar criteria could be applied by OSHA most effectively to any
third party audit program. If OSHA developed a network of qualified
third party auditors--to be deployed either voluntarily through agency
policy or under a statutory mandate--they would have more flexibility
to provide compliance assistance than under their current system. With
a process that insures consistency in the application of the compliance
audit process and the prohibition of conflicts of interest, this system
should work very well.
With respect to ``credentialing'' of program participants, ASSE
recommends that legislation recognize the administrative mechanisms for
credentialing/certifying safety and health professionals that have been
in place for decades in the private sector. Our recommendation is that
future legislation should specify that certifications be accredited by
one of the following accreditation bodies be the Council of Engineering
and Scientific Specialty Board (CESB), the National Commission for
Certifying Agencies (NCCA) and ISO/ANSI.
Finally, there is little incentive for a consultant to go against
the tenets of the ``SAFE Act'' as they would risk criminal prosecution
by the federal and/or state governments, civil penalties, lost of
certification/licensure, potential tort litigation exposure, and the
loss of reputation and livelihood. We hope that this Subcommittee will
agree that the qualified consultants who would be eligible to
participate in such a program would be an asset to employers,
employees, government, and the country. Their proven level of integrity
would be an overall enhancement to safety and health in the workplace.
More Effective Utilization of OSHA Closing Conference Will Improve
Safety
ASSE also wishes to comment on the pending legislative proposal
contained in HR 979, which was introduced by Rep. Todd Tiahrt (R-KS).
This legislation would amend Section 8 of the Occupational Safety and
Health Act of 1970 (29 USC 657, the ``OSH Act'') to require OSHA to
provide the employer with a written statement at the closing
conference, following completion of an inspection, that clearly and
concisely provides information on the results of the inspection,
including each alleged hazard and each citation that would be issued.
The inspector would also provide written information on the rights of
the employer to conference and contest citations, penalty assessments
and the procedures involved in exercising these due process rights.
The Society believes this legislation will contribute to enhanced
safety and health by providing timely notice to employers of any
perceived hazards and/or regulatory violations so that they can take
prompt and appropriate corrective action. HR 979 would also assist
employers--especially small businesses--by providing fair notice of
procedural requirements and minimizing the potential for confusion that
has resulted in some cases becoming final by mistake.
We do not see providing the procedural information as being unduly
burdensome on the agency, insofar as this procedural information could
easily be imparted through a preprinted written ``statement of rights''
handed to the employer at the time of the closeout. Employers who do
not understand this information should have an opportunity to ask
questions of the inspector at the closing conference. This could be
especially important for non-English speaking employers who may not be
able to comprehend written information but who can converse with many
of OSHA's multi-lingual compliance officers.
With regard to a written statement of findings, ASSE believes that
it is both practical and necessary for OSHA to give prompt notice of
the results of the inspection and to identify the hazards at this
stage, rather than waiting up to six months (under current law) to
issue citations to the employer and having such citations be the first
notification of the allegedly violative conditions.
Section 8 of the OSH Act is silent concerning closing conferences.
However, OSHA policy calls for three main phases of inspection
activity: in addition to the actual ``walkaround'' portion, the CSHO is
also required to conduct an opening conference, and a closing
conference. OSHA's Field Inspection Reference Manual (the ``FIRM'', CPL
02-00-103 (1994)), states, in relevant part: ``The CSHO shall describe
the apparent violations found during the inspection and other pertinent
issues as deemed necessary by the CSHO.''
OSHA's May 1996 Construction Safety and Health Outreach Program
document describes the Closing Conference in the following manner:
It is a time for free discussion of problems and needs; a time
for frank questions and answers. The compliance officer
discusses with the employer all unsafe or unhealthful
conditions observed on the inspection and indicates all
apparent violations for which a citation may be issued or
recommended. The employer is told of appeal rights. The
compliance officer does not indicate any proposed penalties.
Only the OSHA area director has that authority, and only after
having received a full report.
Reading these policies, it would appear that the agency--at least
informally--comprehends the value of prompt communication to the
employer concerning hazardous or allegedly violative conditions at the
conclusion of an inspection or voluntary compliance audit. If this were
actually occurring, HR 979 would largely be redundant. Unfortunately,
the experience of ASSE members appears to be that the closing
conference sometimes lacks this vital element and, as such, as been
stripped of much of its safety value.
The lack of prompt notice is especially harmful in the construction
industry, where conditions change quickly and a project may be
completed (or a building fully demolished) between conclusion of the
inspection and issuance of the citations. If a General Contractor does
not receive timely notice of an alleged violation, not only will
workers continue to be at risk but the ``GC'' may find it impossible to
fully identify all parties involved and to ascertain what actually
occurred, who participated in creating the hazard, who was exposed, and
what conditions were present. This interferes with the GC's ability to
hold subcontractors accountable for OSHA compliance and to utilize
contractual disciplinary provisions fully.
ASSE does wish to clarify that, at the closing conference, it is
unlikely that the inspector will know precisely what citations will
ultimately be approved by OSHA officials as this may require additional
review of documentation obtained through the accident investigations
and/or analysis of health monitoring and other samples.
Finally, although the compliance officers should identify with
specificity those conditions that he/she believes pose a threat to
worker safety and health, their initial citation recommendations must
not be binding on the agency in terms of precluding deviation when the
formal citations ultimately are issued. It may be sensible to modify
the language of this paragraph to reference ``citations under
consideration'' rather than those that ``will be issued.''
Conclusion
The American Society of Safety Engineers greatly appreciates the
opportunity to provide testimony at this important hearing on
significant issues affecting the safety and health of American workers
and the ability of their employers to manage workplace safety. We look
forward to working with this subcommittee and Congress to advance these
and other legislative initiatives that will encourage proactive steps
to more effectively protect people, property and the environment.
We will be happy to answer any questions you may have and will work
to provide any additional information that may be requested.
Thank you.
______
Chairman Norwood. Thank you very much, Jon. I appreciate
your timeliness there.
David, you're up next for 5 minutes.
STATEMENT OF DAVID PRESSLY, INCOMING PRESIDENT, NATIONAL
ASSOCIATION OF HOMEBUILDERS, WASHINGTON, DC
Mr. Pressly. Mr. Chairman, Ranking Member, and Members of
the Subcommittee, on behalf of the more than 220,000 members of
the National Association of Home Builders, I would like to
thank you for the opportunity to testify before you today. My
name is David Pressly, and I am a home builder and developer
from Statesville, North Carolina. I will be the president of
NAHB in 2006.
Mr. Chairman, let me begin by saying that home builders
made only acknowledge a legal and moral obligation to provide
their employees with a safe workplace, they share the concerns
of this Committee, as well as OSHA, to ensure the health and
safety of all of their employees in the home building industry.
As a small business owner, I know that taking seriously the
health and safety of my employees is one of my most important
jobs. I have in my hand my own company's safety policy and
health plan, which I wrote about 15 years ago with the help of
NAHB, and I understand the importance of providing our
employees with safety orientation and ongoing safety awareness
training.
Now, the vast majority of NAHB's members are classified as
small businesses. Over 80 percent of NAHB's members build fewer
than 25 homes a year, and a typical member firm employs fewer
than 10 workers. Many of our small homebuilders are often
puzzled by the complexity and range of OSHA requirements. Most
don't have a full-time safety professional or a legal team at
the ready, because it is simply not possible or affordable for
them. Builders use their limited resources to target and
prevent serious job site hazards. Most, due to their size, will
never have the opportunity to participate in OSHA's voluntary
protection program, or VPP Program.
NAHB has long been successful in collaborating with OSHA in
a variety of voluntary endeavors to advance job safety in an
industry. Let me give you several examples of our
collaboration. First, participation in the OSHA Alliance
program, where NAHB and OSHA combine resources to focus
attention on safety needs in our industry. The alliance has
helped increase awareness at OSHA of the differences between
``best practices'' at residential versus commercial
construction job sites.
Next is participation in OSHA's Harwood Training Grant
program, which has allowed NAHB to provide valuable safety
training for thousands of our smallest members, helping us
target the growing Hispanic workforce in our industry with
Spanish safety materials, such as this book we developed with
OSHA on scaffold safety. So we continue to urge OSHA to ensure
that their safety materials target this Hispanic population, as
well.
Finally, we participate within the OSHA Partnership program
by our local associations, which has a positive impact on
construction safety in our industry. We are concerned, however,
that recent policies issued by OSHA will jeopardize the ability
of our small members to continue participating in the
Partnership program.
Collaborative efforts with OSHA have helped improve the
regulatory environment so it is effective, efficient, and has
assured that construction job sites are safer than ever.
However, additional efforts are required to improve OSHA's
inspections and citation process, including reviewing the
amount of time OSHA is allotted to issue citations. The
Occupational Safety and Health Act allows OSHA to issue
citations up to 6 months following an inspection. Far too often
in our industry, OSHA utilizes all of the allowable 6 months to
issue a citation. Home builders have received citations from
OSHA 5 months and 28 days after the inspection. Typically, a
house takes about 3 months to build, and often OSHA issues a
citation, although the house is no longer under construction
and legally turned over to the homeowner. The employees and
supervisors of this site are no longer there, and in the
residential construction industry time is of the essence.
In order for a builder to appropriately correct a violation
and retrain employees that might have committed the infraction,
OSHA must be required to issue the citations in a timely
manner.
Additionally, OSHA requires a response from employers
within 15 days for contesting the citations. Often, a small
business like ours have a lot on their plate and inadvertently
miss the deadline, or misplace paperwork, leaving no recourse
to contest OSHA citations.
So we support Chairman Norwood's legislation, H.R. 739, and
any legislation which would provide flexibility on the 15-day
contest period if the missed deadline was the result of a
mistake, inadvertence, or surprise.
We also believe that prompt notification in the form of a
written summary at the conclusion of an OSHA inspection, before
they leave the job site, would be beneficial to our industry.
This would provide timely notice to homebuilders of potential
safety hazards and allow them to correct any hazard or
violation quickly.
Finally, we strongly believe that at the conclusion of an
inspection, OSHA should be required to provide employers with
all of the necessary information to help them understand the
OSHA citation procedures. Inspectors should explain in clear,
plain English and Spanish how the citation process works, what
the employer's rights are. For this type of reform, though
small, it is an important step in helping our small businesses.
Mr. Chairman, it is our pleasure to be with you, and I look
forward to entertaining your questions.
[The prepared statement of Mr. Pressly follows:]
Statement of David Pressly, Incoming President, National Association of
Home Builders, Washington, DC
Introduction
Mr. Chairman, Ranking Member, and members of the Subcommittee, on
behalf of the more than 220,000 members of the National Association of
Home Builders (NAHB), I would like to thank you for the opportunity to
testify before you today on the issue of Occupational Safety and Health
Administration (OSHA) reform and to further express the housing
industry's support for efforts to address some of the most frequent
concerns our members have when dealing with the OSHA inspection and
citation process. My name is David Pressly and I am the First Vice
President of NAHB and a home builder and developer of both single
family homes and apartments in Statesville, North Carolina. I will be
the President of NAHB in 2006.
Meaningful OSHA reform remains one of the housing industry's
legislative priorities--just as it ranks highly for so many other small
businesses across the United States. In recent years, OSHA has
significantly increased its inspection activities in the home building
industry, and the process by which many of those inspections were
undertaken has raised concerns from our members about OSHA's
enforcement practices and procedures. We believe that there are several
ways in which we can improve OSHA's procedures that would make
regulatory compliance more cost-effective and make OSHA more user
friendly for small businesses, while improving housing affordability
and continuing to protect the safety of workers in the home building
industry. We applaud the efforts of Chairman Norwood to promote several
pieces of procedural reform legislation that were approved by the full
House Education and the Workforce Committee in April, and look forward
to the opportunity to discuss other ideas for procedural and process
reforms.
Mr. Chairman, let me begin by saying that home builders not only
acknowledge a legal and moral obligation to provide their employees
with a safe workplace, they share the concerns of this committee, as
well as OSHA, to ensure the health and safety of all men and women
employed in the home building industry. Further, we share the same
ultimate goal of ensuring a safe working environment. Builders know
that creating a safe work environment makes good business sense. It is
no secret that safety saves lives--and money. Builders have learned
that the money saved through reduced workers' compensation costs, lost
time due to worker injuries, and less time spent on accident claims and
reports can be converted to improvements in the way they operate their
businesses, including the management of safety and health on the
jobsite. It is also no surprise that a safe jobsite is also the key to
retaining good employees. The building industry anticipates that we
will need to build almost 18 million new homes during the next decade.
The continuing increase in the demand for housing will create almost 1
million new jobs in the residential construction industry. As a small
business owner, I know that taking the health and safety of my
employees seriously is not only my moral obligation, but also one of
the best ways I have of recruiting and retaining good employees.
About the Home Building Industry
NAHB is a building trade association that represents more than
220,000 member companies nationwide. Our membership consists of
builders and remodelers of single-family homes, townhomes, apartments,
and condominiums, as well as thousands of specialty trade contractors.
A vast majority of NAHB's members are classified as ``small
businesses'' and our members employ approximately 8 million people
nationwide. Our association's builder members will construct about 80
percent of the more than 1.8 million new housing units projected for
2005, making housing one of the largest engines of economic growth in
the country. Our members provide Americans the opportunity to realize
the American dream of homeownership.
The home building industry continues to be one of the most heavily
regulated industries in the nation, which is a significant reason why
home ownership is beyond the reach of many Americans. Currently, small
businesses in the United States bear a disproportionate share of the
cost of our nation's regulatory burden. According to the Small Business
Administration, federal regulations cost small businesses 60 percent
more per employee than it costs large businesses, and compliance with
these existing regulations can be very costly--averaging $7,000 per
employee. In our industry, a sizeable share of these regulations comes
from OSHA, and the costs imposed by OSHA regulations are financially
onerous to every aspect of the home building industry.
The majority of the home building industry is comprised of very
small businesses. Over 80 percent of NAHB's member's build fewer than
25 homes per year and more than half build fewer than 10 homes per
year. A typical NAHB member firm is truly a small business, employing
fewer than 10 workers.
In most small home building companies the owner is the president or
chief executive officer. Many businesses are a family affair with
husband and wife teams, brothers, sisters, or kids frequently involved
in the business. Many times, owners employ only a few workers and view
them as family, regularly working in the same conditions as their
employees. The staff and owners at these small companies also wear many
hats, such as: investor--responsible for funding construction projects;
salesman--meeting with prospective home buyers; purchasing manager--in
charge of ordering construction materials and supplies; marketing
manager--promoting the company and its products; accountant--ensuring
creditors and employees are paid; construction manager--ensuring that
the home gets built on time and within budget; and even construction
worker--swinging the hammer to ensure a quality product.
Many small home builders are often puzzled by the complexity and
range of OSHA requirements imposed upon them. Most small construction
firms do not have a full-time safety professional to implement the
array of regulations because it is simply not possible or economically
feasible for these small businesses. They use their limited resources
to prevent recognized and serious jobsite hazards, such as falls,
excavations/trenching, electrical safety and improving other worker
safety and health concerns. A safe and productive workforce is crucial
to any company, particularly a small one, and it should be stressed
again that these employers want jobsites free of dangerous hazards.
As a small business owner, I am concerned for the safety and health
of my workers--my company's most important asset. I have brought with
me today a copy of my own company's safety and health plan. I
understand the importance of providing our employees safety orientation
and ongoing safety awareness training, and I am not alone. Tens of
thousands of home builders across the nation also recognize the value
of providing a safe construction site for their workers.
Alternative to More Regulation
NAHB supports alternatives to the regulatory approach for ensuring
worker safety, and we have been successful in collaborating with OSHA
in a variety of voluntary endeavors to advance jobsite safety
throughout the home building industry.
Similar to our efforts with the Environmental Protection Agency to
improve the storm water permitting program and with the U.S. Fish and
Wildlife Service to enhance its methods for designating critical
habitat under the Endangered Species Act, we believe that our
collaborative efforts with OSHA have helped our home builders work more
safely, which has saved them time and money--savings which builders can
then pass on to home buyers. Some of the collaborative efforts between
NAHB and OSHA that have had a positive impact on construction safety in
the home building industry include:
Participation in the OSHA Alliance program, where NAHB
and OSHA have combined its collective resources and focused its
attention on addressing the safety educational needs of the home
building industry workforce. This Alliance has been vitally important
to increasing the awareness at OSHA, and among OSHA inspectors, of the
differences between residential and commercial construction jobsites,
and the often crucial differences between ``best practices'' at
residential vs. commercial build sites.
Participation on the OSHA Crane and Derrick Negotiated
Rulemaking Advisory Committee (C-DAC), which has helped us to ensure
that OSHA better understands how this revised regulation will impact
the home building industry.
Participation in OSHA's Harwood Training Grant program,
which has allowed NAHB to provide valuable safety training, for free,
at our local home building associations to nearly 1500 home builders
and trade contractors. Participating in this program has given us a
greater ability to reach some of our very small builders, who otherwise
would have no access to organized OSHA training opportunities.
Additionally, this program has helped us to target the growing Hispanic
workforce in our industry. As many of the small businesses in our
industry will tell you, it is vitally important that the training and
safety materials we provide reach the non-English speaking employee
population. NAHB is working hard to get Spanish-language safety
materials out to our builder members, and we continue to urge OSHA to
do more to ensure that their inspectors and safety materials can target
this population.
Participation on the OSHA's Advisory Committee on
Construction Safety and Health (ACCSH), which has opened line of direct
communication for home builders with OSHA and has ensured that home
builders' viewpoints and opinions are taken into account prior to OSHA
issuing construction safety regulations.
Participation in the OSHA Partnership program by our
local associations, which has improved communication between our
members and OSHA and has had a positive impact on construction safety
in our industry.
NAHB is not an opponent of safety regulations, as long as these
safety regulations are practical, feasible, cost-effective, and improve
worker safety, but we believe that more can be accomplished working
collectively--through non-regulatory efforts--to improve worker safety
in our industry.
We believe that collaborative efforts with OSHA have helped improve
the regulatory environment so it is effective, but not inefficient, and
has ensured that construction jobsites are safer than ever. The hope is
that these collaborative efforts will continue far into the future.
Need for OSHA Reform Legislation
NAHB believes that additional efforts are required to fix OSHA's
inspection and citation process. For example, one of the most pressing
issues among our members is the lengthy amount of time that often
occurs between an inspection and the receipt of a citation. The
Occupational Safety and Health (OSH) Act directs OSHA to issue
violation citations with ``reasonable promptness'' following a site
inspection, but allows OSHA to issue citations up to 6 months following
any violation found during a jobsite inspection. In addition, any
citation issued by OSHA includes a timeframe for correcting the alleged
violation.
Far too often in our industry, OSHA utilizes all of the allowable
six months to issue a citation. NAHB believes that allowing OSHA up to
6 months to issue a citation creates uncertainty for home builders and
does not improve safety of workers. I would like to offer an example of
how OSHA has issued citations to our members:
Home builders have received citations from OSHA 5 months
& 28 days after the jobsite inspection. Typically, a house takes
approximately 90 days to build. In this scenario, OSHA has issued a
citation and proposed a date to abate the alleged violation, although
the house is no longer under construction and legally turned over to
home owner.
A review of, and changes to, the OSHA citation process would
improve jobsite safety by allowing for prompt notification AND
correction of any jobsite hazards discovered during an OSHA inspection.
If OSHA issues a citation nearly 6 months after the jobsite inspection,
how ``serious'' can the alleged violation be if it takes this much time
to notify the builder of a potential jobsite hazard? It does no good to
issue a citation months after the home is completed, when the site is
no longer operating, and the opportunity to alert the employees and
site supervisors to the hazard--and how to correctly fix the hazard--no
longer exists. OSHA must realize that, in the residential construction
industry, time is of the essence. In order for a builder to
appropriately correct a violation, and re-train the employees who might
have committed the infraction, OSHA must be required to issue the
citations in a more timely manner.
In addition, if a company receives an OSHA citation, OSHA requires
a response from employers within 15 days for contesting citations.
Often, small businesses have too much on their plate and inadvertently
miss the 15 day deadline or even misplace paper work, further delaying
a response to OSHA. In these circumstances where the 15 day deadline
has passed, the small business owners have no recourse to contest OSHA
citations. We support Chairman Norwood's legislation, H.R. 739, and any
legislation that would provide flexibility on the 15-day contest period
if the missed deadline was the result of a mistake, inadvertence,
surprise, or excusable neglect.
The imbalance of OSHA utilizing 6 months to issue a citation, while
employers must contest any citation within 2 weeks is not only unfair
to employers, but most importantly does not improve safety on the job.
NAHB believes that OSHA procedural reforms would go a long way to
ensure that small businesses are able to contest OSHA citations and any
proposed penalties by leveling the playing field and by making OSH Act
easier to understand.
In addition, NAHB supports another procedural OSHA reform that
could improve jobsite safety in our industry. Prompt notification, in
the form of a written summary at the conclusion of the OSHA inspection.
This would provide timely notice to home builders of potential safety
hazards and allow them to correct and hazard or violation quickly. The
alternative to a written summary after the inspection of for builders
to wait several weeks, and possibly up to 6 months, for OSHA to issue
citations notifying them of the nature of a violation found during the
inspection. Employers have a right to know about any potential hazards
discovered by OSHA on the jobsite, without any delay. This full
disclosure by OSHA following an inspection, and before they leave the
jobsite, would allow for the timely abatement of safety hazards by home
builders, which provides the desired protection to construction
workers.
Additionally, we strongly believe that OSHA should be required to
provide employers with all of the necessary information to help them
understand the OSHA citation procedures. Employers should be given
clear, plain-English information on how the citation process works,
what their rights are to contest any citations they receive, and how
the process of contesting the citation takes place, including the
procedures undertaken at the OSH Review Commission (OSHRC). Finally,
all employers should be provided with a list of contacts at the local
or regional OSHA office, so that they can call with questions about
their inspection or citations. We believe that this type of procedural
reform, though small, is an important step towards helping our small
business employers who are so often intimidated and confused by the
OSHA inspection and citation process.
Conclusion
In conclusion, I would like to reiterate that the members of NAHB
are committed to worker safety and health. We urge Congress to review
the OSHA citation and inspection process, and make changes that will
ensure fair and consistent OSHA enforcement practices in the home
building industry.
NAHB is firmly committed to OSHA reform in the 109th Congress. We
intend to work with the members of the appropriate committees and
others in the House of Representatives to deliver meaningful,
responsible OSHA reform legislation to President Bush for enactment as
soon as possible.
I thank the Chairman and Members of the Subcommittee for allowing
me the opportunity to testify on behalf of the 220,000 member firms of
NAHB. We look forward to working with this committee, the Congress, and
the administration to pass needed OSHA reform.
Thank you.
______
Chairman Norwood. Thank you very much for your testimony.
Frank, you're now recognized for 5 minutes.
STATEMENT OF FRANK L. MIGLIACCIO, JR., EXECUTIVE DIRECTOR OF
SAFETY AND HEALTH, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS,
WASHINGTON, DC
Mr. Migliaccio. Thank you. Mr. Chairman, Members of the
Committee, my name is Frank Migliaccio, and I am the Executive
Director of Safety and Health for the International Association
of Bridge, Structural, Ornamental, and Reinforcing Iron
Workers. I am here today to testify on behalf of the 3 million
members and 15 unions that make up the Building and
Construction Trades Department of the AFL- CIO, where I serve
as chairman of the Safety and Health Committee. I appreciate
the opportunity to testify today. Workers in the construction
industry suffer more fatal injuries than any other industry
sector.
The building and construction trade has long been a strong
proponent of voluntary joint labor-management safety and health
initiatives as a supplement to mandatory OSHA enforcement, not
as a replacement for OSHA enforcement. We believe that any
measure to substitute OSHA inspections and enforcement with an
unproven third-party certification and penalty exemption scheme
would significantly decrease safety and health protection for
workers.
The GAO's Workplace Safety and Health Report, dated March
2004, provided the Chairman of the Subcommittee on Workforce
Protections, Committee on Education and the Workforce, and
House of Representatives a state of the OSHA Voluntary
Compliance Strategies; it shows promising results, but should
be fully evaluated before they are expanded. To be effective,
safety and health programs have to be site-wide and should
include the employer and control of the entire site.
Evaluations must be based on the actual work site, and the
worker participation is key to the success of any program. The
larger employers already do this and have the resources to do
this. OSHA needs to focus its resources on the small employers
and others at high risk.
The targets of the VPP are generally your larger
contractors, the 1.1 percent of construction employers with
more than 100 employees--the employers with 30 percent of the
construction workers. Yet they suffer only 14 percent of
construction fatalities. The larger companies usually have
safety and health programs already in place. These programs
commonly use some form of voluntary third-party or internal
performance auditing without legally exempting such audits from
fact-finding by the court.
Similarly, safety audits should not be made exempt from
court fact-findings. The VPP should try and target for small
companies that employ one to ten employees. These companies
employ 23 percent of the construction workers, yet suffer more
than 50 present of construction fatalities, double the average
of the construction industry. Hispanic construction workers
make up 16.6 percent of the construction workforce, but suffer
19.6 percent of the fatalities. The small companies and the
Hispanic workforce are the groups that need to be reached.
The Federal Government employs approximately 25 percent of
the construction dollars. There's a lot of room for
improvement, and the government has control over these jobs. On
such jobs, safety and health programs should be required in the
job specifications. One job specification requirement should be
that every worker in their position have an OSHA 10-hour
construction workers standard safety and health card. This
training is very generic, but requires that workers have some
background on safety and health training. By requiring this,
you reach the small one to ten employee contractors and also
the Hispanic workforce, some of which do not even know that
OSHA exists.
By providing large contractors with VPP status without
inspecting every job site would dilute the health and safety
programs they have in existence already. Each job site has
different subcontractors, supervisors, suppliers, rules and
regulations, and a new workforce. Any assumption that you can
inspect and/or audit only one employer's work site and predict
conditions on other sites is false. You must evaluate
performance by looking at each site you wish to be recognized
as a model or VPP status.
Reducing enforcement and lowering penalties will only lead
to more unsafe jobs, injuries, and fatalities. Any company that
knowingly puts workers in harm's way should have increased
criminal and civil penalties placed upon them. The best way to
improve voluntary compliance is to pass the Workplace Wrongful
Death Accountability Act and the Protect the American Workers
Act. Without the passage of these two Acts, the burden is
placed on all taxpayers to pay the bill for those employers
with uncontrolled hazards, including disability costs,
uncompensated medical care, lost productivity, lost income tax
revenue, and other costs.
Voluntary protection programs like VPP require a great deal
of OSHA manpower to provide what amounts to free consulting
time for those employers or sites which already have some of
the most effective safety and health programs in existence.
In order for any VPP program to work, you must have worker
and employer participation. Any voluntary program must engage
workers and provide mechanisms for addressing hazards even when
their immediate supervisors or employers have different
priorities.
In closing, I would like to again thank this Committee for
the opportunity to testify in front of the Committee. Thank
you.
[The prepared statement of Mr. Migliaccio follows:]
Statement of Frank L. Migliaccio, Jr., Executive Director of Safety and
Health, International Association of Bridge, Structural, Ornamental and
Reinforcing Iron Workers, Washington, DC
Mr. Chairman, members of the committee. My name is Frank
Migliaccio, Executive Director of Safety and Health for the
International Association of Bridge, Structural, Ornamental, &
Reinforcing Iron Workers. I am here today to testify on behalf of the 3
million members and 15 unions that make up the Building and
Construction Trades Department (BCTD) of the AFL-CIO, where I serve as
Chairman of the Safety and Health Committee. I appreciate the
opportunity to testify today to present the BCTD's views on voluntary
OSHA compliance programs including the Voluntary Protection Program or
VPP. Workers in the construction industry suffer more fatal injuries
than any other industry sector, and we recognize and control serious
occupational hazards every day on the job.
The BCTD has long been a strong proponent of voluntary joint labor-
management safety and health initiatives as a supplement to mandatory
OSHA enforcement activities. Voluntary compliance programs, which may
include internal or third-party audits, are a key part of efforts to
take the next step beyond minimal OSHA compliance. These should not,
however, be seen as a replacement for OSHA enforcement. Given that for
most employers the average time between OSHA inspections can be
measured in decades, the unions within the BCTD work closely with our
employers and site owners (in cooperation with the Construction Users
Roundtable) to make safety and health a priority in our dangerous
industry. Where employers or owners want to implement voluntary
programs that go beyond the minimal requirements of OSHA compliance, we
are ready to step up with a highly skilled workforce to solve problems
and move paper programs into real improvements in working conditions.
We believe that any measures to substitute OSHA inspections and
enforcement with an unproven third-party certification and penalty
exemption scheme would significantly decrease safety and health
protections for workers. Several proposals have been advanced that
include taking away workers' rights to an OSHA site inspection in
response to a complaint and permitting warnings instead of citations
for most violations. We do not believe that reducing penalties, or
shifting OSHA enforcement resources to support voluntary efforts by
large employers with model safety programs, will prevent occupational
injuries and illnesses. OSHA should have greater flexibility to use
workers' compensation data and other data sources to experiment with
more effective inspection targeting processes. Occupational injuries
and illness cost our economy billions of dollars per year and result in
preventable pain and suffering. Ignoring existing hazards or reducing
penalties and paperwork for employers does not control these hazards.
These are real problems that need to be recognized and solved on a day
to day basis.
Small employers are at greatest risk, yet are unlikely to participate
voluntarily without clear and immediate incentives
In construction, more than 80% of the establishments have less than
10 employees. These 1-10 employee establishments employ 23% of the
construction workforce, but they suffer more than 50% of the fatal
injuries. Hispanic construction workers (60% foreign born) are also at
high risk, making up 16.6% of the workforce and suffering 19.6 % of the
fatal injuries (2001). The only way very small employers currently
participate in programs like those promoted in VPP is if the client/
owner of the site, or the construction manager on the site requires
contractors and subcontractors to participate. Yet OSHA chooses to
focus enforcement on the 1.1% of construction employers with more than
100 employees. These employ over 30% of the construction workforce, and
yet they suffer only 14% of the fatalities. Although there is always
room for improvement, programs like OSHA VPP, focus on large employers
with model programs and little need for government assistance. Funds
for voluntary compliance assistance should be shifted to enforcement
focusing on those employers that are truly at high risk and high risk
worker training.
Accurately identifying and publicly recognizing model safety programs
is of value
Whether recognition is from private organizations, professional
associations, or the federal government, recognizing the true top
safety performers can raise the visibility of safety concerns. As the
number of recognized firms increases and the minimum standards required
for recognition decrease, VPP designation is of less and less value.
Reduced enforcement is not a necessary component of a voluntary
program. Increased penalties may provide a more effective incentive.
Voluntary Compliance is Undermined by Reduced Enforcement and Low
Penalties
Whether it is paying taxes or controlling work site hazards that
could kill an employee, most of us voluntarily comply with laws and
regulations. Penalties for non-compliance both create an incentive and
are a statement that certain actions are unacceptable in our society.
Reducing OSHA enforcement and accepting low penalties for violations,
says quite clearly that you find killing workers to be an expected part
of doing business in high-risk industries.
The best thing Congress could do to improve voluntary compliance is
to pass the ``Workplace Wrongful Death Accountability Act'' and
``Protecting Americas Workers Act'' and increase the criminal and civil
penalties that are appropriate for willful acts which put workers lives
at risk.
If, instead, Congress and OSHA were to reduce the incentives for
compliance, the effect would be to place the burden on all taxpayers to
pay the bill for those employers with uncontrolled hazards including
disability costs, uncompensated medical care, lost productivity, lost
income tax revenue, and other costs.
For workplace safety programs to be effective, employers that control
the work must share responsibility for compliance.
On multi-employer job sites, and on sites where subcontractors,
employers of joint venture partners, self-employed or temporary workers
are simultaneously engaged in work, it is common that someone other
than a worker's formal employer controls workplace conditions and
workplace hazards. OSHA compliance, even in the context of a voluntary
compliance program, must focus on the entity that is in the position to
best ensure compliance on a worksite, whether it is the owner,
construction manager or general contractor, or other subcontractors.
Conditions and practices on one site cannot predict practices on other
sites
OSHA has proposed admitting employers to its VPP program based on
their records on other worksites, or on a sample of worksites. This is
extremely problematic. Construction work sites are constantly changing
as the project progresses. Workers, employers, managers, kinds of work,
the safety problems, and the manner in which all of these elements
interact change continuously. Any assumption that you can inspect or
audit one of an employer's work sites and predict conditions on other
sites, is false. To determine whether to grant an employer VPP status,
OSHA must evaluate performance at the actual sites to be recognized as
model or VPP sites.
Effective compliance programs should not effect enforcement but should
effect penalties
Construction is a complex and dangerous industry, and even with
model programs, mistakes are made. Employers who implement effective
safety programs should receive special consideration in defining
penalties. As in other corporate crime, the existence of ``effective''
compliance programs should logically be a consideration in sentencing
or setting penalties. It should not simply be an OSHA's certification
of a site as VPP, but the employer's direct documentation of its
effective safety program on the work site, which should legitimately be
considered in determining appropriate penalties. In other parts of the
law, including anti-trust and price-fixing, the Federal Sentencing
Commission has defined criteria for effective corporate compliance
programs. The government does not subsidize or formally approve
corporate compliance programs related to these financial regulations.
Why is it necessary or appropriate for the government to approve (with
VPP status) and subsidize (with free OSHA manpower) large employer
corporate compliance programs for OSHA? Logically, OSHA compliance
should be a part of an employer's overall corporate compliance system.
OSHA should be required to use the most effective inspection targeting
and enforcement strategies
Because OSHA doesn't have enough inspectors to reach the millions
of US employers, it must depend on news of criminal penalties and
citations reaching employers and creating an incentive for them to
voluntarily evaluate risks and control hazards. VPP in its current
form, third party safety audits, and other voluntary safety initiatives
may have benefits on the specific site where OSHA provides its free
services, but they provide no incentives for other employers to comply.
Direct, aggressive, and highly visible enforcement remains the way to
maximize visibility and create the most benefit to workers per dollar
of OSHA budget. OSHA should pilot and evaluate innovative inspection
targeting strategies. Evaluations must consider the overall impact on
the safety and health of the US workforce, rather than the presumably
positive impacts on VPP sites as a result of OSHA allocating
disproportionate resources to assist a small number of receptive
employers with model safety programs and already low reported injury
rates.
Federal subsidies for the best corporate compliance programs is
unnecessary
Our opposition to VPP or other voluntary programs is not because
they don't work, but because they represent an inefficient use of OSHA
resources. Voluntary programs like VPP require a great deal of OSHA
manpower to provide what amounts to free consulting time for those
employers or sites which already have some the most effective OSH
programs in the nation. This group of employers would employ safety and
health professionals even if VPP did not exist. To the extent that
paper plans are actually moved into the multiemployer workplace, they
can be very positive, and should be considered in determining penalties
but not in inspection targeting. Larger employers have corporate
compliance programs to oversee legal compliance, and OSHA enforcement
should allow these compliance efforts to be easily integrated into
broader corporate compliance efforts. These programs commonly use some
form of voluntary 3rd-party or internal performance auditing, without
legally exempting such audits from fact finding by the courts.
Similarly, safety audits should not be made exempt from court fact
finding. As with any form of audit, failing to act on identified
problems is not good. However, the fact that compliance audits are
conducted demonstrates that many employers have decided that the risks
of not knowing the problems exist is greater.
Federal OSHA certification (with VPP Star status) of private programs
is of limited value, unless it is for the government's
contractors and vendors
Although OSHA involvement can have a positive impact and identify
persistent safety problems in work sites pursuing VPP status, these are
already among the safest worksites in the nation. There are a variety
of industry consensus standards including ANSI A10.38 Construction
Safety Programs and the new ANSI Occupational Health and Safety
Management Systems Z10 standard, that provide guidance for those
interested in voluntarily improving their safety performance. Since a
variety of trade and professional organizations provide recognition of
top performing employers/members, and national and international
standard setting bodies have defined guidelines similar to VPP,
duplicating these efforts within the federal government at taxpayer
expense is of limited value. Efforts to codify voluntary compliance
programs in the law would inappropriately divert funds from enforcement
and training. Corporate compliance programs focused on compliance with
financial statutes such as anti-trust and price-fixing laws function
effectively without government certification or personalized government
assistance too employers interested in developing these programs.
Private consultants, third-party auditors, and legal specialists
implement programs with no government involvement until the
effectiveness of such a corporate compliance program is considered in
the sentencing phase of a trial to support reductions in penalties.
Worker Participation or Employee Involvement is Central to any
Voluntary Program
Workers must be involved in any effective safety program. Any
voluntary program must engage workers, and provide mechanisms for
addressing hazards even when their immediate supervisor or employer
have different priorities. The importance of this involvement is made
clear in OSHA VPP and in ANSI consensus standards. OSHA's proposed
budget eliminates all funding for safety and health training grants.
This reflects a fundamental misunderstanding of the importance of
employees in identifying and controlling hazards in the workplace.
While safety and health is the employer's responsibility, if workers
themselves are not able to anticipate or recognize hazards and work
with their employer to implement controls, then construction workers
will continue to die on the job. These OSHA training funds should be
renewed and increased.
I would also like to submit for placement in the record
1. BCTD comments on OSHA VPP in construction dated November 1, 2004
(OSHA Docket No. C-06).
2. Statement of Lynn Rhinehart, Associate General Counsel, AFL-CIO.
Submitted to the Subcommittee on Employment and Workplace Safety Of
theSenate Committee on Health, Education, Labor and Pensions On The
Occupational Safety and Health Act and Small Employers. May 10, 2005.
[The information referred to has been retained in the Committee's
official files.]
______
Chairman Norwood. Dennis Morikawa, how did I do that time?
Mr. Morikawa. You did very well.
Chairman Norwood. OK, you're recognized for 5 minutes.
STATEMENT OF DENNIS J. MORIKAWA, ESQ., MORGAN, LEWIS & BOCKIUS
LLP, WASHINGTON, DC
Mr. Morikawa. Thank you. Mr. Chairman and distinguished
Members of the Subcommittee, I am very pleased and honored to
be here today to provide commentary to the Subcommittee in
pursuit of your very valuable task.
My name is Dennis Morikawa, and I am a partner in the law
firm of Morgan, Lewis and Bockius and Philadelphia,
Pennsylvania. I am past management co-chair of the Committee on
Occupational Safety and Health Law of the American Bar
Association. Since 1974, I have focused my practice on
occupational safety and health law issues from enforcement
matters to rulemaking, and in the last several years advising
clients with respect to their participation in the very
valuable OSHA cooperative compliance programs, including
Voluntary Protection Programs or VPP's, and OSHA's Strategic
Partnerships or OSP's as they are referred to.
Now, I think it's very clear that the magnitude of the task
facing OSHA in its duel role of providing enforcement as well
as cooperative programs is a daunting job. The realities are
and there over seven million workplaces in the United States.
OSHA currently conducts inspections at the rate of 39,000
inspections per year, but at that rate, as Mr. Owens correctly
points out, it would take OSHA almost 180 years to visit every
single workplace in America just once.
With respect to cooperative programs, which I think have
been very, very successful, VPP's, Partnerships and Alliances,
the reality is they are scarcely 1500 such programs in the
United States when faced with more than seven million
workplaces.
Now I am here to tell you today, Congress needs to support
Cooperative Compliance efforts by OSHA, and I think it's very,
very important. What can be done? A former partner of mine once
told me something that I have never forgotten. He said that if
you don't know where you're going, any road will get you there.
Well, I'm here to tell you today, that we need a plan. There
has to be an approach. We have to take into account OSHA's
limited resources and its abilities with respect to enforcement
and cooperative programs, to face the reality that Congress can
indeed help OSHA in this very valuable task.
First, clarify, direct and support OSHA in working with
employers in determining and preventing workplace accidents
through these types of cooperative programs.
Second, and very importantly, remove disincentives that
discourage employers from engaging in voluntary compliance
efforts, and create incentives for employers to engage in these
voluntary compliance issues, such as voluntary auditing, and
third-party auditing.
Current policies, while calling for voluntary self- audits
as it currently exists, encouraging employers on one hand to
voluntarily self-audit their compliance with OSHA standards,
but at the same time, this policy allows OSHA to use the
results of these self-audits against these employers in
enforcement actions. This makes no sense. Indeed, we believe
this has had a chilling effect on employers' willingness to
engage in self-critical analysis of OSHA compliance issues.
Now, we urge the Subcommittee to provide immunity for these
self-audits so that employers will be incented to engage in
this very valuable activity. I am not suggesting that Congress
remove enforcement powers from OSHA, indeed, OSHA enforcement
activity is very important to its mission. But we have to face
the stark reality and that is OSHA simply can get the job done
by itself. It needs help from the community that it regulates.
Voluntary programs such as VPP, OSHA Strategic
Partnerships, alliances and other programs reflect a growing
acknowledgment that the industries themselves can and should be
encouraged to collaborate and join hands to find common
solutions through a process of acknowledgment, commitment,
identification, enablement, and execution. These programs,
indeed, leverage OSHA's resources dramatically by providing
maximum impact on large numbers of employees that simply could
not be reached by OSHA enforcement efforts. Therefore, we
believe these are the kinds of programs that the Subcommittee
should back.
The National Electrical Transmission and Distribution
Partnership is one such example. A combination of union and
nonunion companies. Nonunion companies and the IBEW, the
International Brotherhood of Electrical Workers, banding
together--these are prime competitors in an industry all across
the country who have joined together and joined hands to face
the realities of workplace injuries, and try to bring down
injuries in their industry. They have collaborated and joined
in a partnership with OSHA. A high hazard industry has for the
first time confronted these issues and is working successfully
now to reduce injuries in their industry--a great achievement.
I will be happy to answer questions about that later.
There's nothing in the Act regarding any of these programs.
Congress should clarify and direct OSHA regarding them. But
even with cooperative programs, OSHA doesn't have the resources
to partner with every workplace in America. Congress needs to
find ways to encourage employers to help direct their safety
and compliance issues themselves. We believe that providing
immunity for self-critical analyses and audits is one tool that
can be used by employers to accomplish those valuable goals.
I appreciate the opportunity to address the Committee
today, and I will be available to answer questions.
[The prepared statement of Mr. Morikawa follows:]
Statement of Dennis J. Morikawa, Esq., Morgan, Lewis & Bockius LLP,
Washington, DC
Chairman Norwood and members of the subcommittee, I am pleased and
honored to be here today. Thank you for your kind invitation.
By way of introduction, I am a partner at the law firm of Morgan,
Lewis & Bockius LLP. I work in Philadelphia, Pennsylvania. My practice
focuses on advising employers regarding occupational safety and health
matters--both compliance advice and litigation of citations and
penalties. I have been practicing in this area of law for more than 30
years-since 1974. I am a past Management Co-Chair of the Occupational
Safety and Health Law Committee of the American Bar Association. I am
testifying today on behalf of myself--but with the experiences of many
clients behind me.
I am sure that you are aware of the magnitude of the task
confronting the Department of Labor's Occupational Safety and Health
Administration (OSHA). OSHA is responsible for enforcing the
Occupational Safety and Health Act (OSH Act) and its regulations and
standard for the 7.2 million workplaces in the United States. As you
are aware, no employer is exempt from the OSH Act, no matter how small.
Over the past five years OSHA has conducted an average of 39,000
inspections per year. At that rate, if OSHA started tomorrow, it would
take them 184 years and 7 months to inspect every workplace in America
once.
Obviously OSHA does not have the resources to rely solely on
compliance inspections to enforce the OSH Act and Standards. Thus,
almost from its inception OSHA began exploring compliance assistance
efforts under which individual employers partner with OSHA to reduce
injuries and illnesses and to comply with OSHA standards. In exchange
for their undertakings, some employers have enjoyed immunity from or
deferral of general scheduled inspections, although they are not exempt
from either employee complaint inspections or inspections triggered by
worksite fatalities or catastrophes. This immunity or deferral offers
employers a respite from traditional enforcement and leverages OSHA's
limited resources. In addition, OSHA's compliance assistance efforts
offer employers the ability to resolve difficult compliance issues in
non-adversarial settings. Unfortunately, skeptics of voluntary
compliance measures both inside and outside the a seek to limit OSHA's
efforts. Further, OSHA routinely seeks employer self audits for use
against employers in citation cases. These actions unnecessarily limit
the cooperative compliance absolutely necessary to prevent accidents.
Background On OSHA's Cooperative Programs and Incentives
A. The Voluntary Protection Program
Although it arose out of the agency's earliest efforts at
cooperative compliance, OSHA's Voluntary Protection Program (VPP) was
not an official program until the Reagan administration formally
implemented it and recognized the first worksite in 1982, more than 10
years after the effective date of the OSH Act. VPP was designed to
recognize and promote effective safety and health management. Under
VPP, management, labor, and OSHA establish a cooperative relationship
at an individual workplace with a strong safety and health record
(primarily identified by a days away, restricted and transfer (DART)
injury and illness rate below the industry average) \1\, with the
following understandings:
---------------------------------------------------------------------------
\1\ The current VPP requirements exclude from participation any
facility whose DART rate is above its industry average. Accordingly,
those employers whom OSHA identifies as having the high injury and
illness rates in the country--presumably those most in need of
compliance assistance--are excluded from participation in VPP.
---------------------------------------------------------------------------
1. management agrees to operate an effective program that meets an
established, detailed set of criteria;
2. employees agree to participate in the program and work with
management to assure a safe and healthy workplace;
3. OSHA initially verifies that the program meets the VPP
criteria; then OSHA publicly recognizes the site's exemplary program
and removes the site from routine scheduled inspection lists (though
OSHA may still investigate major accidents, valid formal employee
complaints, and chemical spills); and
4. OSHA periodically reassesses the site to confirm that it
continues to meet VPP criteria (every three years for the STAR program;
every year for the MERIT program).
OSHA has published guidance for Voluntary Protection Programs,
which enumerate the specific requirements of VPP. After initial
application and approval of their safety management systems and safety
and health programs, employers are subject to a compliance inspection
by a team of OSHA enforcement personnel. Any noncompliance identified
during the inspection must be corrected within 90 days but no citations
or penalties will be issued. Unfortunately, as currently established,
under VPP OSHA will only partner with those employers who already have
low injury and illness rates and excellent programs. By setting
application criteria for its primary cooperative program so high, OSHA
has eliminated the perceived risk of partnering with an employer to the
detriment of those employers who could probably benefit most from
cooperative programs.
B. Consultation Service and SHARP
Although it was the first formal compliance assistance offered by
OSHA, the Consultation Service did not become a cooperative program
with incentives from federal OSHA until after VPP was established. As
originally established, and currently operated, the Consultation
Service allows employers to request an on-site inspection and review of
safety and health compliance from OSHA. Rather than reviewing
compliance or conducting an inspection itself, OSHA uses state
government staff--usually through a state department of labor--or
consultants to conduct the inspection. The results of the inspection
are kept confidential and not normally shared with OSHA. Rather, a
participating employer's only obligation is to commit itself to
correcting ``serious'' job-safety problems and health hazards
identified during the inspection. In a situation where a serious
violation would exist under OSHA criteria, the employer and consultant
are required to develop and agree to a reasonable plan and schedule to
eliminate or control the hazard. Consultants will offer general
approaches and options and they may also suggest other sources for
technical help. In rare instances, a consultant may find an ``imminent
danger'' situation; if so, the employer must take immediate action to
protect its employees.
After working with Consultation Services for several years, OSHA
established the Safety and Health Achievement Recognition Program
(SHARP) whereby small employers, which have had a consultation
inspection, can request recognition. To participate in SHARP, an
employer must:
Request a consultation visit that involves a complete
hazard identification survey;
Involve employees in the consultation process;
Correct all hazards identified by the consultant;
Implement and maintain a safety and health management
system that, at a minimum, addresses OSHA's 1989 Safety and Health
Program Management Guidelines;
Lower the company's Lost-Workday Injury and Illness rate
(LWDII) and Total Case Incident Rate (TCIR) below the national average;
and
Agree to notify your state Consultation Project Office
prior to making any changes in the working conditions or introducing
new hazards into the workplace.
Certification of compliance with these requirements will qualify
the small employer for a one-year exemption from routine OSHA
inspections.
While such state-supported programs constitute an important step in
closing the ``credibility gap'' between OSHA and private employers,
employers participating in this program sometimes find that the state-
provided consultants are not fully cognizant of OSHA's standards,
because they do not enforce them routinely. In the worst cases,
employers utilizing the Consultation Service have found that
consultants have failed to identify OSHA-covered hazards when federal
OSHA conducts an inspection and issues citations. In addition to
substantive problems, employers often find that the states sometimes
lack adequate funding and personnel to conduct inspections. Because of
their limited funding, states limit or prioritize inspections in favor
of small employers and exclude larger employers. Even where small
employer requests for inspections are approved, it may take weeks or
months to schedule the inspection. Finally, like VPP, membership in
SHARP is predicated on being below the national average injury rate for
the employer's industry thus excluding many employers.
C. OSHA Strategic Partnerships
The OSHA Strategic Partnership Program for Worker Safety and Health
(OSPP), adopted on November 13, 1998 and revised December 9, 2004, is
an expansion and formalization of OSHA's pilot programs and experiments
with voluntary compliance outside of VPP. In a partnership, OSHA enters
into an extended, voluntary, cooperative relationship with groups of
employers, employees, and employee representatives (sometimes including
other stakeholders, and sometimes involving only one employer) in order
to encourage, assist, and recognize their efforts to eliminate serious
hazards and achieve a high level of worker safety and health. OSHA and
its partners have the opportunity to identify a common goal, develop
plans for achieving that goal, and cooperate in implementation. Most of
the worksites that have chosen to partner with OSHA are small
businesses, with an average of 22 employees. Many of these partnerships
focus on areas of concern addressed in OSHA's Strategic Plan. Some of
these partnerships are seeking solutions to silica and lead exposures
and serious hazards in the nursing home, food processing, shipbuilding,
logging, and construction industries. Unlike VPP, employer eligibility
criteria for entry into a partnership are not rigidly defined but OSHA
maintains a discretionary ability to refuse to partner with any
employer. Accordingly, employers seeking to partner with OSHA must
demonstrate their commitment to OSHA and propose a partnership that is
of value to the agency.
Among other benefits, participating in a partnership program with
OSHA may provide employers with Onsite Non-enforcement Verification
inspections where no citations or penalties are issued. It is important
to understand, however, that all partnerships must stipulate that
partnering employers remain subject to OSHA inspections and
investigations in accordance with established agency procedures. The
agency's policies do, however, allow deferral of programmed inspections
where focused verification inspections are part of the Partnership
Agreement.
Advantages and Disadvantages of Cooperative Programs
Although the programs outlined above are similar to one another,
there are some key differences that employers must consider. A critical
difference between Strategic Partnerships and VPP relates to the so-
called ``immunity provision,'' which exempts VPP sites from general
scheduled inspections. OSHA has been careful to explain that Strategic
Partnerships are different from VPP in that they do not offer complete
exemption from inspections and that employers that fail to abate
alleged safety and health violations identified during the course of
the audit and review process could find themselves subject to
inspections and citations for noncompliance. Similarly, utilization of
the Consultation Service does not provide inspection immunity or
deferral unless the employer takes the further step of certifying its
programs and allowing verification of abatement of all Serious
violations.
On the other hand, if an employer is looking to simply further its
working relationship with OSHA without attempting to assert itself as
the best in industry in all areas of health and safety, a Strategic
Partnership may be appropriate. While these programs do not necessarily
provide exemptions from inspections similar to VPP, employers that are
willing to make the commitment to engage in a voluntary compliance
program under a partnership arrangement with OSHA can expect to enjoy
distinct but intangible advantages not generally available to an
employer that does not enter into such a partnership. These advantages
include, for example, constant interaction with OSHA with respect to
compliance programs and the establishment of a cooperative
relationship.
One such partnership I had the privilege of helping negotiate is
the Electrical Transmission and Distribution Construction Contractors
Partnership. This national partnership among OSHA, the International
Brotherhood of Electrical Workers (IBEW), the major electrical
transmission and distribution contractors--normally fierce commercial
competitors--both union and non-union, the Edison Electric Institute,
and the National Electrical Contractors Association, was formed when
the CEOs of these contractors--representing more than 70% of this
industry--decided that their high hazard industry was not preventing
enough accidents. These employers did not start with the best injury
rates--indeed for the first time that I can remember OSHA partnered
with a group that had high injury rates. Instead they started with a
plan to reduce injury rates by doing all that they could to review
their accidents as a group, to identify the causes of those accidents,
to establish general qualifications for performing the work, for
training, and for best practices. They started with an agreement to
work as a group to consistently apply their actions across the country
and to raise the bar for everyone. Even though this partnership
involves no inspection or citation immunity--and indeed OSHA's lawyers
demanded that right of OSHA to use information generated by the
partnership against the participating employers be maintained--there
was opposition to the partnership from within OSHA. The argument was
that OSHA would be stopped or limited in its ability to cite these
employers for violations, particularly willful violations, in the event
of an accident or inspection because the employers were doing all that
the could--in conjunction with OSHA, the IBEW, and the trade
associations--to prevent accidents. Thankfully, smart and courageous
people within OSHA were willing to work with industry to prevent
accidents and not simply to wait and develop a patter of blame and try
to punish those who have accidents. And this partnership is working. It
has identified four areas of concern with respect to fatalities and is
working to develop best practices to address these areas. It has also
reviewed voluminous data for benchmarking, worked to develop training
for employees and supervisors, and developed best practices to be
implemented by partnering employers. In part through this partnership,
OSHA has worked to overcome its role as simply an investigator of
fatalities and accidents and to become a partner in the prevention of
accidents. Prevention, not punishment, should remain OSHA's primary
mission.
Neutrality: Voluntary Self-Audits Without OSHA Involvement
In early 2000, I was a member of an advisory committee requested by
then Assistant Secretary Charles Jeffress to review a draft of a self
audit policy prepared by OSHA. The audit policy was a response by OSHA
to growing congressional criticism of its enforcement policies, which
permitted OSHA compliance officers to seek employer self-audits during
the course of compliance inspections. A congressional bill introduced
by Representative Cass Ballenger in 1998 would have made employer self-
audits immune from disclosure, in order to encourage employers to
evaluate their own OSHA compliance without fear that their own analyses
could later be used against them in subsequent enforcement actions. On
July 28, 2000, OSHA published its Final Policy Concerning the Treatment
of Voluntary Employer Safety and Health Self-Audits in the Federal
Register. Unfortunately many of the advisory committee's comments were
rejected in the final version of the policy.
OSHA's audit policy has four main components. First, it provides
that OSHA will not ``routinely request self-audit reports at the
initiation of an inspection.'' Second, the audit policy provides that
where a voluntary self-audit identifies a hazardous condition and the
employer corrects it prior to an OSHA inspection (or a related
accident, illness, or injury triggering the inspection), no citation
will be issued so long as steps have been taken to prevent recurrence
of the condition. Third, it provides that where a voluntary self-audit
identifies a violation, so long as the employer is responding in ``good
faith,'' OSHA will not use the audit report to cite the employer for a
willful violation. Finally, the audit policy provides that a self-audit
may be used for a good faith reduction in any penalties assessed.
While the audit policy represents a so far successful attempt by
OSHA to head off Congressional criticism and to attempt to assure the
regulated community that it will not be seeking self-audits as part of
routine compliance inspections, there are some aspects of the policy
that are problematic. For example, OSHA's policy on the avoidance of
willful violations does not offer clear guidance; worse, it suggests
that for an employer who is not acting in ``good faith''--or not taking
``reasonable, timely, and diligent'' action after the audit--its audit
can be evidence of willfulness.
The most troublesome aspect of the policy, however, is part
C(1)(b), which provides that compliance officers can request an
employer audit during the course of an inspection. This includes
situations where OSHA ``has an independent basis to believe that a
specific safety or health hazard warranting investigation exists.''
Unfortunately, this exception is so broad that it seems to encompass
the entire rule. The policy permits any compliance officer to request
an audit so long as he believed a safety or health hazard exists. Of
course, one might reasonably suppose that the very reason a compliance
officer was conducting an inspection was because of a belief that such
a hazard might exist; and indeed, this provision would appear to be met
in the event of any employee complaint or referral investigation. In
addition, the audit policy describes situations involving fatalities or
catastrophic accidents as incidents in which OSHA has a ``significant
interest'' in evaluating whether the employer had prior knowledge of
circumstances that could have been corrected prior to the accident.
Thus OSHA might more often request self-audits in the very cases in
which employers have the most exposure. Indeed, in our experience
representing clients we have often found this to be the case with OSHA
inspectors routinely asking for copies of self audits, audits by
consultants, and even subpoenas for insurance company audits.
Overall, the current policy does not do enough to protect against
abuse. As it now stands, there is not enough encouragement of employers
to audit their worksites voluntarily. What is needed is to afford
employer audits protection from discovery in all but the most exigent
cases. Otherwise, employers' concern about their own work being used
against them will inhibit the undertaking of the sorts of detailed and
documented audits that could really make a difference in the safety and
health of America's workers.
Future Prospects for Cooperative Programs and Voluntary Compliance
Efforts
It is obvious from OSHA's commitment--in both monetary and
personnel resources--that it will not abandon cooperative programs
during this or any administration. The stated goal of the Agency is
increased cooperative participation. Indeed, as of January 31, 2005
each program has an all time high participation rate: 1231 VPP
worksites more than 215 active Partnerships.
The question should be: What limits employer participation in
cooperative programs? Why aren't more employers attempting to obtain
the benefits offered by the cooperative programs? As noted,
historically VPP eligibility requirements made the program available
only to the employers who already have the lowest injury and illness
rates in their industry and excellent written programs. Through
retention of absolute discretion regarding with whom it partners and
the requirements it imposes, OSHA has similarly limited the number of
partnerships. Thus, even if a given employer was willing to undertake
the burden and commitment of VPP or a Partnership they might be
excluded. OSHA maintains these exclusions in order to control the
perceived risk of partnering with employers and to maintain maximum
enforcement ability against employers. OSHA should eliminate these
artificial barriers. OSHA should not allow its interest in maintaining
the ability to cite employers to the maximum extent possible prevent
the entry of willing and committed employers into cooperative programs.
As is expressly stated in partnership agreements, employers entering
into partnerships remain subject to programmed, complaint and fatality
inspections in accord with agency procedures. Further, both VPP and
partnership agreements provide that employers remain subject to
citation and penalty. Congress should continue to review OSHA's
programs and policies to make sure that eligibility requirements are
not unduly limiting the number of employers participating in
cooperative programs. In addition, because OSHA does not have the
resources to partner with every employer in America and actively
excludes some employers, Congress should protect self audits conducted
by employers from disclosure. While such protection would not be the
same as the citation and penalty free inspections conducted by OSHA in
VPP, SHARP, and partnerships, it would encourage excluded employers by
removing the existing disincentives. I for one am in favor of any
measure that would help an employer explain how it prevented an
accident, rather than having to explain how a fatality occurred.
______
Chairman Norwood. Thank you very much, gentlemen. Very
interesting testimony from all of you, and I look forward to
everybody asking some questions.
Hopefully, you will be willing to submit some answers in
writing, because we certainly can't get all of the questions
asked. But there's a lot more I would like to know, and maybe
we can put into the record.
With that, Mr. Kline, you are recognized for 5 minutes for
questioning.
Mr. Kline. Thank you, Mr. Chairman, and thank you,
gentlemen, all for being here today. Interesting how we got to
the first name basis here very quickly. The names don't look
quite that hard to me, Mr. Chairman.
Chairman Norwood. Well, for now, some of them.
Mr. Kline. Oh, no, no.
[Laughter.]
Mr. Kline. No, no, I'm following up on your lead here. I
thought that was very well, very well done.
I believe I can say that all of us on this Committee, and I
know all of you down there, want to see safe workplaces. I
think it's beyond question that as currently configured OSHA
simply doesn't have the resources or the number of people to go
and inspect every site, particularly challenging for home
builders where the site exists for 90 days or so. So we have to
look for ways to make it possible to ensure that our employers
are providing safe workplaces for our employees in some sort of
a reasonable way.
Mr. Morikawa--I'm trying, Mr. Chairman. We're working on it
here. I think you stated very well when you say that OSHA
doesn't have the resources and we have to find a way to do
this, and with voluntary agreements and third parties and so
forth.
I want to underscore and I want you to expand on that just
a little bit.
But I want to underscore that certainly now when we are
spending our resources in expanding our capability to defend
Americans in homeland security and supporting our defense
forces as we fight in this global war on terror overseas, the
notion that we could possibly expand OSHA at this time to the
number of inspectors and employees it would take to police the
work site is just not reasonable. So we do have to look for
some alternative sources.
You mentioned, and I got a little quote here, that it may
be necessary to create third-party audit privilege, and to
prevent the audit from being used in outside litigation. Could
you expand on that and tell me also if we create such a
privilege, how do we resolve the issue of companies that
receive an audit and then don't do anything to correct the
legitimate safety concerns that were identified in that audit?
Mr. Morikawa. Mr. Kline, the issue of self-critical
analysis and self-audits has always been a topic of some
controversy, because there was always a concern expressed and
your question certainly includes that, that there are going to
be employers in the United States who audit but don't correct
violations as they find them.
My personal experience has been that companies that
actually go to the trouble to engage in a self-audit program do
so with the best intention in mind, with the purpose of
correcting those violations. In other words, it would make
little sense to self-audit your compliance with OSHA standards
and then decide to do nothing about it.
I have seen many, many clients that we represent and
represented by other companies in the United States who engage
in self-auditing on a regular basis. They do that because they
want to know what their workplace conditions are, and what are
the causes of accidents they are experiencing.
The Homebuilders do this kind of activity. The transmission
and distribution electrical construction contractors have
engaged in this activity, and they have found remarkable things
in these audits. They have found things that they could
discuss, they can analyze, and they could develop rules and
procedures to prevent accidents in the future. That's the
valuable function of auditing.
Many times people have criticized OSHA because OSHA tends
to be an accident investigator. OSHA comes in and they
investigate totality. An OSHA official once told me something
that I'll never forget. He said, ``We come in and investigate a
workplace facility. In that sense we've failed, because now we
are investigating something that happened at a workplace that
we didn't prevent or couldn't prevent.''
I think self-auditing does provide a tremendous means for
identifying and heading off the causes of injuries and
fatalities in the workplace, and that's why I think auditing is
such a valuable function.
Now, auditing should have an immunity for this reason. If
every employee that engaged in self-auditing believed that OSHA
would then walk in and use those audit results against them in
enforcement proceedings, in litigation, they would be
disinclined to do that for practical reasons, not creating a
paper trail or creating a record that could be used against
them, as an admission or as a legal matter.
It is important to engage in this type of self-auditing,
and for Congress to encourage self-auditing because it will
expand the scope of compliance to many, many more workplaces
than OSHA can currently reach through their enforcement
efforts, or even their formal compliance efforts. So we applaud
this type of approach. We support companies that do this.
But we believe that we need Congress's help to try to make
this an institutional requirement, a codification, a procedure
that would be followed and supported by Congress, to let
everybody know that Congress supports voluntary efforts in the
United States to accomplish safety and health goals that can't
be accomplished just by the agencies themselves.
Chairman Norwood. Thank you, Mr. Kline. Good question. Mr.
Owens, you are now recognized.
Mr. Owens. I yield to my colleague from California, Ms.
Woolsey.
Ms. Woolsey. Thank you. Thank you, gentlemen. I heard most
of you. I'm sorry that I got here late.
All right, here's the deal on resources. If OSHA was valued
by our leaders, by our budgets, by our government, it would be
funded, it would be staffed, we would have the resources to do
what is necessary to prevent injury and consider and hold our
workers in the highest regard.
But we don't do that. We instead make sure that the large
corporations have huge tax breaks, and we could use that money
to protect our workers.
Now, on the other hand, injuries, death--that's very
costly, not only to the family, if it's the breadwinner,
anybody in the family. The company costs just soar with
insurance and workers' comp when that happens. So it makes good
sense that good employers, smart employers, are going to take
care of their workers from the get-go.
But what we're dealing with here is not that good, heads-up
employer, whom you all represent when you're sitting here
talking to us. We're talking about the employer that not only
ignores an audit, but also would ignore a near-miss and pretend
that near-miss wasn't--or couldn't tomorrow be somebody's eye
being taken out, or something, or a death. But sometimes this
employer will actually ignore a real serious injury or death.
To give an employer the right to self-audit is a big
mistake. If somebody can tell me, up there, how we could take
that irresponsible employer and give them the right to--the fox
in the hen house--to oversee these programs, I'll listen some
more. But maybe we could start at the head of the table. Why
would that employer do the right thing when they are not doing
it now?
Mr. Turnipseed. From my experience, a lot of these
employers don't really understand what the requirements are.
It's not so much an obvious thing of trying to not follow the
laws and regulations. A lot of them are simply ignorant of the
requirements.
I honestly believe by going to a voluntary program, where
there is some relief from penalties, that would encourage those
folks to bring in someone to look at them.
Ms. Woolsey. OK. Now we will move on to the next one. I'm
going to tell you that any employer that is ignorant of OSHA
laws now hasn't been around very long. I mean, that is just--I
can't believe that.
Mr. Pressly. Thank you, Ms. Woolsey. I would love to
address that. I'm a very small businessperson from North
Carolina, and I have usually between 10 to 13 employees.
Because of the close proximity, I have--not to impose on
employees, but I have a personal interest and knowledge of
what's going on in their lives. A technician that has been with
me 7 years yesterday lost his wife from lung cancer. I know
these things. I know in a very personal sense what their health
and their safety means to these men and women who are on my
team.
Ms. Woolsey. OK. So you're doing the right thing, right?
Mr. Pressly. For a handful of reasons.
Ms. Woolsey. OK.
Mr. Pressly. For personal interest. Second, I know as a
small businessperson how costly it is to lose a key person, or
to lose any person--whether it's the training, recruitment, or
missing production that takes place because a person is
injured. So I wanted to say that at least from my personal
experience, and the many folks that I work with, they care
about their team.
Ms. Woolsey. Right.
Mr. Pressly. They care about their team, the team members--
--
Ms. Woolsey. What about your competitor who is going to
turn their backs on their workers, because in the short-term is
less costly to them to have poor work?
Mr. Pressly. I won't speak for anyone else, or characterize
the thoughts of anyone else. But certainly in my business, as a
small homebuilder, I know the financial cost that the loss or
injury an employee makes to my bottom line, and I am not
willing to take that chance as best I can.
Ms. Woolsey. Because then we should never have any
accidents or injuries. Frank, do you want to respond to this?
Mr. Migliaccio. Yes, ma'am. I have listened to what
everybody else has said has so far, and it is usually the small
contractor. It is that one to ten, and a good example was an
accident that occurred in--it was a trenching accident in South
Carolina at a school were two Hispanic workers were killed.
They were engulfed in the trench. What happened here was the
contractor probably--maybe knew, maybe didn't know what the
rules were.
A lot of your contractors, smaller contractors, especially
who are in business for two or 3 years, and then they're on
their way. If they are--if their insurance mod does go up,
you're going to see them change their name to something else,
and go into business and start on again.
What happens when you have a company that doesn't care
about their people--that's that type of company right there, if
there had just been some sort of a training mechanism, and I
think that the esteemed gentleman to my right here, David, does
have training. He showed there's training given to his people.
You have to train the people, you have to let them know
what's out there. Like I said in my oral statement, a lot of
people don't know that OSHA exists, and most of those people
are minorities, the Hispanic minorities.
Chairman Norwood. Ms. Woolsey, your time has expired, but I
would like to ask Mr. Morikawa to respond to your question.
Ms. Woolsey. Thank you very much, Mr. Chairman.
Mr. Morikawa. Thanks, Ms. Woolsey. To respond to your
question, my experience in representing companies in a wide
variety of different industries has shown that employers that
Frank has just identified who don't care don't generally audit,
either.
Ms. Woolsey. Right.
Mr. Morikawa. They don't care so they don't audit. They are
not trying to find out if they are in compliance or out of
compliance with OSHA standards. Companies that do care do
audit.
The issue here is does OSHA lose anything? The safety and
health in America lose something by the fact that an employer
audits and sometimes doesn't correct.
No. 1, the rule that we are asking for, the support from
Congress that were asking for, relates to the vast majority of
good employers that do engage itself auditing and deserve this
type of immunity. You can't make a rule based on the fact that
you have some bad apples who may audit but not correct
violations. No. 1.
Second, with respect to OSHA's rights to inspect these
workplaces, OSHA loses nothing in this. OSHA can still inspect
workplaces and indeed they do. But we have seen in many cases
is OSHA comes in and inspects an employer, and in the process
of that inspection, they ask for the self audits.
Now, they can look into the workplace, they can inspect it,
they can talk to employees, they can examine documents, all
perfectly within their rights. All of that is made available
through the investigation process.
What we're talking about is a small little category of
self-audits that a company has done, which OSHA is now seeking,
notwithstanding asking employers to engage in it. That's why we
think immunity is important.
Ms. Woolsey. Mr. Chairman, may I just----
Chairman Norwood. No ma'am, time.
Ms. Woolsey. I'm not going to ask another question. I just
wanted to finish my thought.
Chairman Norwood. Your time really is up, and it's somebody
else's turn, and we have gone way over on your time out of
courtesy to you.
Ms. Woolsey. And there is five panelists.
Chairman Norwood. I would like to remind Members that we
are trying to stay in 5 minutes. If you want to ask a question
that requires an answer from all four witnesses, please ask it
first.
I now recognize Dr. Price for 5 minutes.
Mr. Price. Thank you, Mr. Chairman. I want to thank each of
you for coming to be with us today as well, and I appreciate
your testimony. I think it is once again important to mention
that all of us up here are interested in safety on the job
site, and the question is how do you get there.
In my experience, in my district, I believe and understand
that the employers that I work with are interested and safe
work sites. Their interest in safety for their employees. I
also understand and appreciate that the three biggest cost
drivers for doing anything or taxation, litigation and
regulation, and we can regulate people out of business. There
is no doubt about it.
Mr. Migliaccio, how was that?
Mr. Migliaccio. Perfect.
Mr. Price. I appreciated your testimony and I am left with
a question about how--you were talking about the need to look
into the small employers--you have got to get down and find
those folks that are 80 percent, as Mr. Pressly said, of the
folks out there that are building homes in this instance.
How would you do that? How do you get down to the small
employers? Do you hire an OSHA inspector for every single job
site?
Mr. Migliaccio. No sir, that's not feasible. Like everybody
has said already, there's not enough money or inspectors to go
around like that.
Mr. Price. How do you do it?
Mr. Migliaccio. First of all, I guess I was there with a
small employers that are constantly having accidents. If
they're allowed to keep bidding, say, a Federal or State funded
job, that's ridiculous.
Mr. Price. So you look at the outliers?
Mr. Migliaccio. I would look at the outliers right there
first. If there is a problem with this, I would say, well you
know, I don't think I would let you bid on a job for, say 5
years, there would be a penalty to it.
What I would do is try to get that same small employer to
start some sort of informational highway to their workers,
letting them know what's going on, what is expected of them,
safety talks, whatever it takes. The insurance industry could
regulate this also by allowing the small businesses to compete
with a lower premium if they did offer some sort of
informational highway to their workers.
Mr. Price. If we're looking at the outliers then we're
going after the fact. Right? We're waiting for the accident to
occur, and then going after the fact?
Mr. Migliaccio. OK, if you're looking at the accident
occurring, yes sir. The other way that I would do it is just go
around and start making it before they even did the work, some
sort of prerequisite or a specification in the job bids, either
by the owner or the insurance industry, to show that they do
have a record, they do have something that shows that they have
a safety program.
Mr. Price. You would do that for all homebuilders?
Mr. Migliaccio. I would do it for as many as I possibly
could. That would be for one that has been in business for 1
year, or 5 years, or 50 years.
Mr. Price. Mr. Pressly, tell me your thoughts about--I was
struck by the fact that a homebuilder can get a citation 6
months after the fact and be gone. I mean, the home is built,
the family is in the home, and they are getting a citation and
then had to respond to 15 days. That seems fairly ridiculous to
me.
Mr. Pressly. It seems a bit disingenuous, but and the
original statue there was a provision for a reasonable amount
of time, which OSHA has interpreted to be 6 months.
Mr. Price. What do you think it is?
Mr. Pressly. To issue that citation? My thought is, I'm
just an ordinary North Carolina boy and I don't know a lot
about a lot of things, but I want my people to be safe. It
would be meaningful to me if that inspector on my job site
would say David, here are these--here's this frayed cord,
here's this scaffold, here is a ladder in a bad place, to tell
me right then or write me up right then, because at that moment
I'm going to take action to make sure that accident doesn't
occur.
Mr. Price. At the time. At the time.
Mr. Pressly. If it's any time after that, particularly 6
months, everybody is gone and everybody's forgotten about the
situation. If indeed, I'm going to commit an infraction, I want
to learn from that and I want to remedy it at that very moment.
Mr. Price. Thank you. Mr. Morikawa, I wanted to follow up
with you on, you made the comment that it's important to remove
the disincentives to safety on a voluntary basis for employers.
Expand if you would please on those disincentives. You
mentioned one of them. Are there others that we can address?
Chairman Norwood. Make note that the yellow light is on, so
be as brief as you can.
Mr. Morikawa. I'll try to make my comments brief to that,
Mr. Price.
Mr. Price. Thank you.
Mr. Morikawa. I was focusing for the purpose of this paper
on the issue of disincentives in the current policy that OSHA
uses which encourages self-audits on one hand, and then uses
the self-audits and enforcement actions on the other.
I was part of the advisory committee that was consulted by
the administration at that time on the development of the
policy. A number of us who represented management on that site
were urging that there should be a threshold test for when OSHA
could get those types of self-audits, such as when the employer
itself put into issue the fact that they were self-auditing,
they were trying to demonstrate that they were acting in good
faith. If you put the audit into issue, then it should be
produced in a litigation case.
But what we objected to was the notion that a compliance
officer in any case could just simply walk in and ask for the
audit on the first day of an inspection--in some respects kind
of short cut their way to finding violations.
Employers obviously are not incented to create ways for
which OSHA can cite them very easily. It makes common sense. So
that is why we believe it is a disincentive to engage in this
type of voluntary activity.
I believe this self-auditing is an extremely valuable tool.
Who knows better workplace conditions then the employer itself?
They know. They know where they are. They know how to identify
them.
In my experience, employers that engage in self-auditing
also engage in self-correction. It has been a very a successful
venture when companies have done it. I think having
disincentives like that, that is the ability to use these
audits against them, and only in that very limited area, I
think it is something that should be eliminated, and I think
that this Subcommittee could help in a large measure, in
helping employers to accomplish that goal.
Mr. Price. Thank you. Thank you, Mr. Chairman.
Chairman Norwood. Mr. Owens, your recognized for questions.
Mr. Owens. Thank you. I yield 2 minutes to my colleague,
Ms. Woolsey.
Ms. Woolsey. Thank you. I won't take 2 minutes. Here is the
fear, OK. We have all of a sudden less money for OSHA because,
guess what, self-audits do the work of OSHA. Then there will be
nobody to train, to help write the manuals, to help show small
companies how to put together their safety programs and their
safety committees. That's my fear.
The idea that you're saying here, Mr. Morikawa, is ideal,
and I hope that it will work. But I don't think that we should
let the company that self-audits and does not take care or have
good faith steps of how they're going to fix what they find
wrong off the hook, because self-auditing is only stepped on. I
am going to leave it at that, and yield back to Mr. Owens.
Mr. Owens. Yes, I would like to ask Mr. Migliaccio to look
at the BP refinery situation in Texas City.
I understand that they had--15 workers were killed in an
explosion 2 months ago there. They had already been cited for
safety lapses which had killed workers in the year 2003 and
2004. What effect would exempting employers who do self-audits
from penalties for injuring or killing workers have in this
kind of situation?
Mr. Migliaccio. By using that as an example, I would say
nothing.
Evidently they didn't learn from their first two accidents,
fatal accidents, and they are probably not going to learn from
the third one.
Here again, a person who wants to do something right is
going to do it. People who choose not to do it, they're not
going to do it under any circumstances, no matter what the fine
is, no matter what the penalty is. You're going to have people
like that, and they are the people you have to drive out. If it
takes OSHA citations to drive them out through penalties,
financial penalties, whatever it takes, that's what you're
going to need.
But evidently this company you're speaking about hasn't
learned, and they are a large company which is surprising.
Usually your petroleum industry is very well regulated, very
well educated out there, they do have training. But sometimes
they have a subcontractor that might be working for them that
really doesn't have it.
So I don't think that you're going--it's hard to reach a
company that doesn't want to do something voluntarily. That's
why the thing with the voluntary, you know making anything
voluntarily, it is not going to happen.
It's like if the Federal Government asked me to pay my
taxes voluntarily. Am I going to do it? I probably will. Would
my brother, maybe not.
I just look at things and you have to have some sort of
organization, you have to have somebody overseeing, looking
over your shoulder all the time.
If you look at yourselves as the panel, your constituents
back home look over your shoulder all the time. If you're not
doing your job, you're looking for a job. It's the same way in
our business. If our companies, our union companies out there
putting up steel erection, if the company is not making their
money and they are not doing it right, they are out of
business. The companies, the general companies, the owners,
they don't hire them. You've got to reach them. That's it.
Mr. Owens. Mr. Turnipseed, you are a safety expert; what
kind of qualifications would self-auditors have to have? For
people who do self-audits would you want them to have some kind
of licensing, some kind of provision for the person conducts
self-audits, or the organization that pays somebody to conduct
the self-audit, would there have to be some guidelines?
Mr. Turnipseed. Yes, there are several guidelines. As I
said in my opening comments, there are independent accrediting
associations that go through and validate that. Such
organizations as the Board of Certified Safety Professionals,
there's an Industrial Hygiene certification. These are all
independently audited.
People have to have experience, they have to have testing.
Myself, as a certified safety professional, I have a stamp very
similar to professional engineer. The CSP is in fact equivalent
to the engineer in training, the first step in becoming a
professional engineer.
So in the safety and health area there are several areas
where you can actually get people officially trained, certified
by an independent agency that they are in fact experts.
Mr. Owens. So self-auditing then, and employment of experts
would be feasible only for very large companies that can afford
it, right?
Mr. Turnipseed. To a certain extent, but if we go with this
program were talking about Senator Enzi's SAFE Act, where
you're going to have some of these voluntary audits, you should
be able to go to an individual who is certified by the
Department of Labor as an expert in whatever industry or
profession, bring that individual in, you know, at the cost of
the employer obviously, to do that audit.
I think some of the smaller companies could afford some of
these things. It's not going to be cost prohibitive.
Mr. Owens. Mr. Morikawa, why should OSHA pay for these
third-party safety auditors, when OSHA already spends over 10
percent of its entire budget on the free and confidential state
consultation programs in all 50 states? Do you think that
program is working?
Mr. Morikawa. Mr. Owens, I think the state consultation
programs are an excellent idea. I think they're necessary. I
think that the consultation programs provide a valuable service
to small employers, because they provide a means or expertise
to be able to identify safety and health hazards.
The problem, as I see it, is that auditing, which is I
think a very important component of any safety and health
program, is something that can provide tremendous leverage in
reaching compliance across broad spectrums. I think the whole
idea of third party auditing is a good one, for this reason.
No. 1, it will encourage employers to use that service. It
accomplishes OSHA's mission, and OSHA's mission isn't just
punishing employers that violate OSHA standards. OSHA's mission
also should be prevention of accidents, prevention of
illnesses. If they need to do that through these types of
programs involving third-party auditors, that is a worthy
funding source. I think that is money well spent. I would
support money to be channeled in that direction to support that
activity, because I think you really will bring about this
entire evolution of compliance on a voluntary basis across----
Mr. Owens. Instead of the state consultation program you
take some of that money and use of the self-audits, is that
what you're saying?
Mr. Morikawa. Well, I can ask the question about how money
should be allocated. That's for this Congress to decide. I can
only say that there very many valuable functions that are
performed by state consultation and Federal OSHA, a lot of
different agencies trying to address the same issue.
I believe that we ought to try to reduce and eliminate
redundancies were you have both State and Federal doing the
same thing. But I certainly think that there ought to be
collaborative efforts designed to use those funds in a way to
accomplish maximum impact, bang for the buck, if you will.
Mr. Owens. My time is up.
Chairman Norwood. Thank you, Mr. Owens. Well first, let me
just make a comment. OSHA doesn't have anything. The American
taxpayers pay for that. It may be something--including you
gentlemen that are out there working every day. So it is sort
of you are paying your way if we get third-party auditors. OSHA
just doesn't have the right to pay anything.
Mrs. Drake, you're now recognized for 5 minutes.
Mrs. Drake. Thank you, Mr. Chairman. The first question
that I have that hit my mind immediately as you all began to
speak, is do you think, all of you, if you would each answer,
that the American worker is safer because we have this audit,
or do you think they are more in harm's way because of having
this type of voluntary program?
Mr. Turnipseed. From my experience, I believe that the
workers are very safe. I see this as another resource, another
arrow in the quiver, that we can add to improving that. I've
done some independent work as a consultant, and even in places
around the world, and I can testify with all honesty that we do
a very good program here. We can do better, though.
Mrs. Drake. Mr. Pressly.
Mr. Pressly. Mrs. Drake, we as a trade association have
sought out opportunities not only to represent our members, but
simply to do the right thing. We have coalesced with the
Environmental Protection Agency, with Fish and Wildlife and
with Endangered Species, and certainly with OSHA.
This is just one example of what I have given you of the
alliance that we have had in the collaboration that we've had
with this agency, this Federal Government agency, because they
care about the safety of our--in this situation, care about the
safety of our workers in this.
So I recognize in my life that I'm not going to achieve
perfection this side of the Jordan, but I'm going to do
everything I can in this context to have a personal worksite
that these men and women who work for me, simply because I care
about them. Thank you for that.
Mrs. Drake. Frank.
Mr. Migliaccio. I would say yes, we are probably safer now,
today, than we were 50 years ago. I wouldn't necessarily say it
is because of the audit.
Here again, I feel as though it is somebody looking over
everybody's shoulder. I think the training is a lot better out
there now.
Mrs. Drake. But then, don't you think if there were a
company that had violations and you knew they were a problem
that possibly they could be done by OSHA, and we could be using
the audits on other companies that don't have serious
violations, and then use OSHA resources for companies like you
described a little while ago?
Mr. Migliaccio. I don't think, I mean, OSHA resources are
already probably at their max right now. If I understand
everything that has been said today, the audits supposedly--and
the audit should be kept confidential and not be put out there.
So if OSHA was to use them, then it is going against what has
been said today.
Mrs. Drake. But OSHA would know if there were a fatality on
a site.
Mr. Migliaccio. That's correct, but they wouldn't know
about the injuries sometimes. A lot of times injuries aren't
reported. Sometimes they're not reported because the person
that's working on the job, for fear of losing their job,
wouldn't report an injury.
Mrs. Drake. Mr. Chairman, I just wanted to make the comment
that I visited--I visit businesses in my district. I'll have a
new question to ask them about whether they are doing any of
these voluntary and audits or anything.
But a business recently told me that they had $1 million
worth of costs last year in injuries. They did something on
their own, whether it was one of these voluntary, or they just
did it within their own business. So far this year--I mean they
went in and looked at what they were doing, they found right
away that what they thought their workers knew and what their
workers knew were two different things. They began really
focusing on safety. They have had not one injury so far this
year.
So I don't think there's any businessman out there ever
that would want this kind of expense on their bottom line, when
they could be doing things voluntarily to find, and I think you
would agree with me, Dennis?
Mr. Morikawa. I do totally agree with you. In fact, I think
an important point that needs to be made with respect to the
concept of employer self-auditing is that this costs nothing
for OSHA. These are employers who are volunteering to do this
on their own, they are not asking for funding from OSHA. The
Transmission and Distribution Electrical Construction
Contractors Partnerships is a perfect example of that.
This is a case where the five leading companies in the
industry get together. They're both union and nonunion. They
partnered together with the Edison Electrical Institute, which
is the large trade association. The National----
Mrs. Drake. Does that employer pay for that or does OSHA
provide that? I've heard both things. I've heard the employer
pays and I have heard that we're using all of this OSHA money.
Mr. Morikawa. Let me explain that. In this particular
instance, this is funded by the partnership itself, by the
members of the partnership.
Mrs. Drake. OK.
Mr. Morikawa. Not by OSHA. OSHA has basically agreed to
provide some resources to the partnership to study the causes
of injuries and to help devise best practices. But the bulk of
the costs has been borne by the members equally. That is not
just the companies and also the union, and this has worked very
effectively.
We have found that this type of self-help, financed largely
by the sector itself, not by the government is the way that we
have been able to accomplish great, great strides in safety.
Mrs. Drake. Thank you for answering that. Mr. Chairman, I
just want to comment. I am not sure that a lot of these
businesses know about OSHA rules. I bought a business license
for my real estate business to move to another site from my
broker. I never got anything from OSHA about my employees. I
got a bill for my treasurer saying that I had to pay business
personal property tax, but nothing from OSHA.
So I don't know how that word gets out there, or especially
because we're talking about small businesses being much more of
a problem, than a large business that would have attorneys that
know all of this. Thank you, Mr. Chairman.
Chairman Norwood. Thank you, Mrs. Drake. Now I'll recognize
myself to ask a couple of questions.
Mr. Pressly, your particular statement interests me. Why do
you suppose, or do you have any reason to know why all should
take so long, you stated something like almost 6 months, to
issue a citation. Why would they do that?
Mr. Pressly. Sir, I don't know and I'm certainly will
characterize that mind-set. It's human nature. If we have to
operate between these margins and we begin at this point and
complete at this time, there is a tendency to complete the job
here, if I could be done at this time. That's my only guess.
But, being a very pragmatic person, I want to know if my
job site or my workplace is unsafe. And I want to know there,
at that time so I can remedy that problem at that very moment,
and not wait until after the fact and have a chance on another
injury if. So I don't have the precise answer, but I can tell
you that it certainly doesn't make sense to me.
Chairman Norwood. Well, it doesn't do me either. I will try
to find out a little more detail about that as to why it should
take so long. I mean, I know that there is no doubt they are
undermanned, there's no question about that. But we need to
know why there it consistently takes 5-months and 25 days to
have those citations out. I think it would help you to know
immediately too.
In reading your testimony I noticed that the Homebuilders
were concerned that some of the small associations and builders
will no longer be able to participate in OSHA's partnership
program. I would like for you to explain that to me just a
little bit.
Mr. Pressly. A little bit about the partnership program.
Again, it is a theme and purpose to have a safe workplace. We
have had a series of exceptionally favorable relationships with
OSHA and the folks at OSHA. I have given you a couple of
examples.
One of those aspects relate to inspections at these job
sites by peers, who may see something that I wouldn't see on my
site and help make my site safe. The proposed change as I
understand it, is to have a compliance inspection by OSHA,
which says--which we are going now from a voluntary situation.
If that OSHA inspector comes to my job site, in terms of this
proposed directive, and finds me a violation of some aspect,
that's a fine for me right there. When in turn, if previously I
could have--it could have been a voluntary thing and I could
have remedied that immediately. So I think there will be many
small business people will not participate in that program for
that very reason.
Chairman Norwood. You implied or said to me in your
statement or in your testimony that most homebuilders build 10
homes or less a year?
Mr. Pressly. Yes, sir.
Chairman Norwood. In that category of homebuilders, what
number of employees might they have?
Mr. Pressly. Ten is the number we use. In my family, in my
company, mine is a small family company, in fact, in my company
my wife is a licensed contractor. We all were multiple hats and
my small company. I showed you my plan and my concern.
But I will tell you that they are so many things in a small
company that we all have responsibilities for and safety is
certainly one of the most important ones we have. But our minds
are limited, our focus is limited and for various reasons that
we may not be applying ourselves where we may need to be
applying ourselves at various times.
Chairman Norwood. Well, my interest in all of this is for
the small businessman and woman. You know, the large companies
can well afford to hire somebody or two somebodies to be on
their staff.
Mr. Pressly. Mm-hmm.
Chairman Norwood. But I knew I could never hire anybody to
be in my office to be an OSHA adviser for health and safety. I
thought I was pretty good about advising about health myself,
but you know, you just can't afford that. Someone mentioned
earlier about regulations. I think there are about 18, about
that thick, the number of regulations plus all the other stuff.
I mean, it's pretty hard to anticipate that all of these
small businesses can know everything that these folks up here,
sitting in their ivory tower, are ordering to be done plus what
is happening in your state.
The alliance program, we have heard a lot of praise about
the program and a lot of criticism. How is your alliance with
OSHA working for your industry. Perhaps you could give some
examples of how it may have helped improve safety for your
employees?
Mr. Pressly. Yes. We've had--as I have testified, we have
had a series of exceptionally favorable relationships with your
OSHA team, and we're grateful for that. As I showed you, one of
the issues that is important to us as homebuilders again is the
safety of these scaffolds.
We as the National Association of Home Builders wrote this
book in both English and Spanish, and asked the OSHA staff to
simply review it, to make sure that we were consistent their
expectations. They were and we published it and printed it and
distribute it to our members.
OSHA now has a web site on light residential construction.
It is in both English and Spanish. So any one of our
employees--not only can an employer go to that, but any
employee who has online access can go to that web site now to
see exactly what those requirements are.
So our alliance has benefited us as homebuilders and light
construction folks in a number of ways, and we hope that we can
sustain that dialog and that relationship at our expense and in
our time with your OSHA's staff.
Chairman Norwood. My time is up and I am going to conclude
this hearing with a few comments just for the record to make
sure that it is straight as it can be.
My friend and colleague earlier stated that an employee is
killed every 96 minutes because of ``corporate homicide,'' I
quote, or an employer's willful behavior. Now that's just not
right in the record shouldn't reflect that. We all agree that
even one preventable death in the workplace is one too many.
That said, I think it is important that we get this record to
reflect the correct data.
For the latest year for which we have information, there
were 5,559 deaths in the workplace due to occupational injury
that were reported. But what we failed to point out is that the
5,559 number includes every occupational injury death in the
workplace for whatever the cause. That includes homicide, that
includes suicide, that includes auto accidents, and other
instances which falls nowhere inside the OSHA jurisdiction. In
fact, of the 5,559 deaths in the workplace, almost 60 percent,
3,258 were traffic or highway incidents, or suicides, or
homicides or assaults, but nothing related to corporate
homicide.
In short, if you want to say that on average throughout the
work force of the entire United States of America, one employee
dies every 96 minutes, that may be correct. But you shouldn't
claim that that is caused by corporate homicide or employer
wrongdoing causing these deaths.
Another interesting thing, what we are really after here is
to point out that we're not going to make it a healthier or
safer workplace by hiring more inspectors.
Based on the current numbers that we have, and this is an
estimate and it is rough, and we will get it tightened up but
it is basically about right, we would have to have 108,000 new
OSHA inspectors to inspect every workplace every 2 years. Now
if you could do that, if you could inspect every workplace
every 2 years, I bet you would make some improvements. But
that's not going to happen. Let's try to be realistic about
that.
We currently have 1200. Adding a thousand isn't going to
help much. We've got to think outside the box here and find
another way to make this a safe and healthy workplace other
than saying, oh gosh, we've got to have more inspectors. If
anybody has got a clue to how to hire 50,000 more, I would like
to hear from them.
This would cause us to increase the number of inspectors by
a hundredfold. Now everybody knows that is not going to happen
in this town. So let's find another way to get this job done.
I want to thank the American Industrial Hygiene Association
and recognize that they have submitted testimony for the record
that is very important and recommend that all of our colleagues
read that.
[The material to be provided follows:]
Statement of the American Industrial Hygiene Association, Fairfax, VA,
Submitted for the Record
Chairman Norwood and Members of the Committee:
The American Industrial Hygiene Association (AIHA) is pleased to
submit the following comments to the House Education and the Workforce
Committee--Subcommittee on Workforce Protections on today's hearing
titled ``Examining Voluntary Employer Compliance Programs that Improve
Occupational Safety and Health''.
Founded in 1939, AIHA is the premier association of occupational
and environmental health and safety professionals. AIHA's 12,000
members play a crucial role on the front line of worker health and
safety every day. AIHA is the most diverse professional association
dedicated solely to the prevention of workplace fatalities, injuries,
and illnesses with members representing a cross-section of industry,
private business, labor, academia, and government. One of AIHA's goals
is to bring ``good science'' and the benefits of our workplace
experience to the public policy process directed at worker health and
safety.
As the professionals entrusted to assist employees and employers in
making the workplace healthier and safer, AIHA is particularly pleased
to submit comments on the issue of looking at voluntary programs that
would improve occupational health and safety.
AIHA would also like to thank the Chairman and members of the
Subcommittee on behalf of the millions of Americans, both employees and
employers who desire a healthy and safe workplace, for your involvement
in addressing this issue. Your leadership is critical to improving this
country's record of workplace-related injury and illness impacting
workers, their families, and our communities.
Over the course of the last several years, there have been numerous
legislative proposals to amend the Occupational Safety and Health Act
and/or take a closer look at the way the Occupational Safety and Health
Administration (OSHA) has addressed the issue of enforcement and
compliance assistance to employers. While few of these proposals have
made their way into law, it goes without saying that the sponsors of
these measures all had the same goal--to assure the health and safety
of every worker. AIHA shares this goal.
Prior to offering our comments on some of the approaches that may
be put in place to assist employers, AIHA believes it is important for
you to understand AIHA's view of OSHA. We have reviewed our position
statement on ``AIHA's Global View of OSHA'' and find that while not all
of this position statement addresses the issue of ``voluntary
programs'', we feel it is important for the subcommittee to be aware of
what we feel is necessary for OSHA to be an effective agency for worker
health and safety.
AIHA believes that:
There must be a strong and well-funded OSHA. Continuing
federal oversight is necessary to achieve ``safe and healthful''
workplaces.
OSHA should have primary authority for health and safety
in the workplace. Overlap and duplication among different government
agencies makes compliance difficult, creating confusion and increased
cost for employers.
OSHA should receive adequate resources to provide
coverage and enforcement. OSHA resources should be increased and
coverage extended to the millions of public employees not currently
covered by the OSH Act. OSHA penalties, including criminal penalties,
should be at least as stringent as penalties for environmental laws.
OSHA should set and enforce a set of generic performance
standards. Addressing every hazard with a highly specific standard is
an impossible task. A small number of generic performance regulations
are needed. Generic standards should not replace, but complement,
existing standards.
OSHA should promote occupational health and safety
programs for employers. We encourage the use of innovative incentives,
particularly for small businesses.
OSHA should have a mechanism to encourage employers to
obtain third party assistance. Collaborate with employees and labor.
Assistance should be provided by a competent Health and Safety
professional having credentials recognized by national accrediting
bodies (e.g., a CIH, CSP, ROH, or equivalent).
There must be a mechanism for employee complaints.
OSHA should collect and disseminate health and safety
data.
OSHA should provide education, training and guidance to
employers and employee groups.
OSHA should enhance technical support and research.
There should be a general duty clause.
OSHA should increase incentives for employers and labor
to voluntarily achieve excellence in occupational health and safety.
OSHA should enhance opportunities for employee
participation. Facilitate ``partnering'' among all workplace
stakeholders.
As to some specific programs that might be implemented to improve
occupational health and safety, AIHA suggests:
THIRD PARTY CONSULTATION SERVICES PROGRAM
In a report published in March 2004, the General Accounting Office
(GAO) cited the use of third party consultants among a list of
recommendations by researchers, safety and health practitioners, and
specialists, to achieve voluntary OSHA compliance. According to the GAO
report: ``Using consultants could leverage existing OSHA resources by
helping workplaces that might never otherwise see an OSHA inspector,
especially small employers, and possibly also by enabling employers to
address additional safety and health issues that might not be covered
under an OSHA inspection for compliance standards''.
AIHA agrees and strongly supports creation of a voluntary third
party consultation services program.
To assist in creation of such a program, AIHA has worked with
several others to draft a stand-alone legislative measure that would
introduce a pilot program to put a limited third party program in
place. We are hopeful this measure will be introduced in this session
of Congress.
This legislative measure incorporates the best of the legislative
language that was previously introduced regarding this program, yet
addresses many of the concerns that were raised during hearings on the
proposal.
The draft bill would encourage small employers to conduct voluntary
safety and health audits using the expertise of qualified safety and
health consultants. A pilot program would be established in 3 States
and would be limited to assisting small businesses as defined in the
proposal. Consultants would be required to meet specific educational
and experience qualifications in order to be certified to assist small
business with the consultation. A special advisory committee would be
established to carry out the duties of the program, with employers,
employees and safety and health professionals serving as members of the
advisory committee. Once a consultation has been completed and all
health and safety questions resolved, the employer would be exempt from
the assessment of any civil penalty from OSHA for a period of 1 year.
It should also be noted that AIHA's support of a voluntary third party
consultation services program in no way diminishes the need for
companies to have internal audit programs.
AIHA is convinced that of all the voluntary programs being
discussed to assist small business, this third party consultation
program offers the most assistance with the least cost.
CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION FOR CERTAIN
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION PERSONNEL
AIHA supports efforts to assure employees and employers that OSHA
personnel are qualified to provide expert advice and assistance. In the
past four years, AIHA is aware of the substantial increase in the
number of OSHA personnel attaining nationally recognized health and
safety certifications, such as the certified industrial hygienist and
the certified safety professional designations. Continuation of this
program should continue. AIHA has heard from many individuals that such
certification indeed lends additional credibility to OSHA personnel.
VOLUNTARY PROTECTION PROGRAMS
AIHA supports codification of the Voluntary Protection Program. The
number of participants in this program continues to grow and all
parties can be proud of the results of the program. Additional efforts
need to be made to increase the number of participants, to include
developing and implementing efforts that encourage participation of
more small employers interested in the program. OSHA has made great
strides in the past four years to create new programs for small
employers to enter the program. Legislative confirmation of these
efforts should be a priority.
TECHNICAL ASSISTANCE FOR SMALL BUSINESS
AIHA strongly supports an increase in assistance to small business
through increased funding for consultation programs. In addition to
increased compliance assistance through OSHA, AIHA is also supportive
of legislative efforts to assist small business through other
compliance initiatives. Most notable among these is House Bill 230, the
National Small Business Regulatory Assistance Act of 2005, introduced
by Rep. John Sweeney of New York. This bill would provide an avenue for
small business to attend compliance assistance seminars where they
could be provided help in complying with federal regulations. Qualified
third parties with expertise in the related areas would conduct the
seminars.
CONCLUSION
AIHA is aware that there may be many additional voluntary
compliance programs that have been, or will be, discussed when
addressing the issue of employer programs that improve occupational
health and safety. Our thoughts on the proposals within these comments
should not mean that we may not be supportive of others. AIHA is
supportive of any and all programs that positively address occupational
health and safety in the workplace.
AIHA believes that the view of OSHA over the last several years is
one that does not necessarily focus on enforcement/compliance, but an
OSHA that attempts to build a partnership with business. AIHA is
pleased to be one of over 300 organizations with an Alliance/
Partnership with OSHA that strives to bring forth the best solutions to
workplace health and safety problems and share them with others. This
is the type of cooperation that should continue.
AIHA applauds your efforts and sincerely hopes you will be
successful in your endeavor to advance the cause of worker health and
safety. AIHA stands ready to assist you and Congress in every possible
way in developing solutions that will best protect workers.
Thank you.
______
Mr. Owens. Excuse me. May I have one closing comment?
Chairman Norwood. Yes, you may. Certainly. Mr. Owens,
you're recognized.
Mr. Owens. Yes, just to clarify one point that you're
making. We have not used the word ``homicide.'' You chose to
use that word. We would like to have the record kept open for
us to submit an explanation as to exactly how we arrived at the
figure of 96 deaths.
We would also like to note the fact that no one is
proposing that we hire enough inspectors to inspect every
business, every year, or every 2 years. We're just proposing
that we maintain a level of accountability through enough
inspectors to make people take the law seriously.
No one has ever proposed that every taxpayer have his
income tax audited, but it would be ridiculous to propose that
we eliminate all auditing of income taxes as a remedy to the
situation. We are talking about a situation where there is a
small percentage of corruption or failure to comply and that
can be deadly. The percentage is too great and the amount of
suffering that accumulates as a result of that is too great.
Thank you.
Chairman Norwood. I think the Ranking Member, and I wish to
thank our witnesses for your valuable time, and I know it is,
and your testimony.
I thank all of our Members today that were here
participating in this. If there is no further business, the
Subcommittee stands adjourned.
[Whereupon at 11:56 a.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Response of David Pressly, Incoming President, National Association of
Homebuilders, Washington, DC, to Questions Submitted for the Record
The Honorable Charlie Norwood (R-GA)
Chairman, Subcommittee on Workforce Protections
Committee on Education and the Workforce
2181 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Norwood:
On behalf of the 220,000 members of the National Association of
Home Builders (NAHB), I would like to express my thanks for the
opportunity to testify before your subcommittee on May 12. NAHB's
members are deeply concerned with the continued safety and well-being
of their employees, and appreciate the opportunity to share their
concerns about the Occupational Safety and Health Administration's
(OSHA) enforcement and citation practices and policies with Congress. I
also appreciate the written questions you forwarded to my attention
following the hearing. I have included my response to your questions
below:
1. Can we build into any recommendations that a written list be
given at inspection with the understanding that a written report will
follow?
One of the recurring problems in the home building industry is the
lack of information provided to employers at the conclusion of the
inspection. While we understand that OSHA needs time to formulate and
issue citations following an inspection, we believe that OSHA should be
required to notify employers at the conclusion of the inspection about
the possible violations noticed during the inspection. Since it takes
approximately 3 months to build an average sized home, and OSHA has up
to 6 months to issue citations, it does no good to alert an employer to
jobsite hazards on a jobsite that no longer exists. In order to be able
to correct hazards in a timely manner and re-train employees who may be
involved in a violation, an employer must have prompt notification of
potential problems.
Additionally, OSHA needs to take time at the end of inspections to
explain in plain English how employers can contest citations, and
provide a list of who at the local or regional OSHA office an employer
can call with questions about their inspection or citations. These
reforms, though small, can go a long way towards helping employers in
the building industry mitigate and respond to jobsite hazards, and
provide for enhanced protection for workers.
2. Don't you think 15 days is too short? Maybe 15 with an extension
of 15 upon request?
Many NAHB members have been concerned for some time about the
amount of time given to businesses to contest citations. The majority
of NAHB members are classified as ``small businesses,'' many with 10 or
fewer employees. Most business owners wear many hats, managing day to
day operations, handling safety concerns, and swinging a hammer next to
their employees on the jobsite. When a small company receives an OSHA
citation, it often can go overlooked for several days while an employer
is occupied with another aspect of the company, and by the time they
have reviewed it, and talked to the employees involved in the citation,
it is too late to contest the citation.
NAHB believes that, especially given OSHA's ability to issue
citations up to 6 months following an inspection, it is unfair to only
allow businesses 15 days to respond to a citation. We have strongly
supported Chairman Norwood's legislation, H.R. 739, and any legislation
that would provide flexibility on the 15-day contest period if the
missed deadline was the result of a mistake, inadvertence, surprise, or
excusable neglect. We would support any opportunity to give businesses
the flexibility to request an extension of the 15 day deadline.
I hope these answers provide the subcommittee with further
clarification of NAHB's positions on OSHA policies and practices. If I
can be of any further assistance, or provide any additional
information, please do not hesitate to contact me.
Sincerely,
David L. Pressly, Jr.
NAHB First Vice President