[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
ARE OSHA'S PENALTIES ADEQUATE TO
DETER HEALTH AND SAFETY VIOLATIONS?
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 28, 2009
__________
Serial No. 111-16
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Joe Wilson, South Carolina
Rush D. Holt, New Jersey John Kline, Minnesota
Susan A. Davis, California Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Tom Price, Georgia
Timothy H. Bishop, New York Rob Bishop, Utah
Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
David Loebsack, Iowa Bill Cassidy, Louisiana
Mazie Hirono, Hawaii Tom McClintock, California
Jason Altmire, Pennsylvania Duncan Hunter, California
Phil Hare, Illinois David P. Roe, Tennessee
Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
[Vacant]
Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director
C O N T E N T S
----------
Page
Hearing held on April 28, 2009................................... 1
Statement of Members:
McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
Committee on Education and Labor........................... 4
Prepared statement of.................................... 5
Additional submissions:
Statement of the Cintas Corp......................... 94
Letter, dated May 12, 2009, from groups opposing H.R.
2067............................................... 95
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Foster, Becky................................................ 7
Prepared statement of.................................... 9
Additional submissions:
Article: ``Deltic Timber Fined in Deadly Fire,''
Associated Press, 2008............................. 10
Letter, dated May 12, 2009, from Lawrence P. Halprin,
Keller and Heckman LLP............................. 10
Letter, dated February 9, 2005, from OSHA to Deltic
Timber Corp........................................ 15
``Workplace Tragedy Family Bill of Rights''.......... 19
Inspection documentation............................. 27
Halprin, Lawrence P., partner, Keller and Heckman, LLP....... 42
Prepared statement of.................................... 45
Seminario, Peg, director, Safety and Health, AFL-CIO......... 28
Prepared statement of.................................... 30
Uhlmann, David M., Jeffery F. Liss professor and director of
the environmental law and policy program, University of
Michigan Law School........................................ 49
Prepared statement of.................................... 52
ARE OSHA'S PENALTIES ADEQUATE TO DETER HEALTH AND SAFETY VIOLATIONS?
----------
Tuesday, April 28, 2009
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:02 a.m., in room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Kildee, Payne, Andrews,
Scott, Woolsey, McCarthy, Tierney, Kucinich, Holt, Davis,
Bishop of New York, Loebsack, Hirono, Altmire, Hare, Courtney,
Shea-Porter, Fudge, Polis, Tonko, Sablan, Titus, McKeon, Petri,
Ehlers, Platts, Price, and Cassidy.
Staff present: Aaron Albright, Press Secretary; Jody
Calemine, General Counsel; Lynn Dondis, Labor Counsel,
Subcommittee on Workforce Protections; Carlos Fenwick, Policy
Advisor, Subcommittee on Health, Employment, Labor and
Pensions; Alex Nock, Deputy Staff Director; Joe Novotny, Chief
Clerk; and Meredith Regine, Junior Legislative Associate,
Labor; Andrew Blasko, Minority Speech Writer and Communications
Advisor; Robert Borden, Minority General Counsel; Cameron
Coursen, Minority Assistant Communications Director; Ed Gilroy,
Minority Director of Workforce Policy; Rob Gregg, Minority
Senior Legislative Assistant; Richard Hoar, Minority
Professional Staff Member; Jim Paretti, Minority Workforce
Policy Counsel; Molly McLaughlin Salmi, Minority Deputy
Director of Workforce Policy; Linda Stevens, Minority Chief
Clerk/Assistant to the General Counsel; and Loren Sweatt,
Minority Professional Staff Member.
Chairman Miller [presiding]. The Committee on Education and
Labor will come to order this morning for their purposes of
conducting a hearing on the question of whether OSHA's
penalties are adequate to deter health and safety violations.
This is an effort to explore whether current penalties are
adequate to protect the health and safety of American workers.
It is fitting that we recognize Workers' Memorial Day today.
This day honors the thousands of workers who fall sick or are
injured or killed each year due to hazardous conditions on the
job.
The landmark Occupational Safety and Health Act became the
law in 1970, opening the door to safer and healthier workplaces
for millions of workers. In nearly 40 years in its existence,
the Act protections has saved hundreds of thousands of lives
and millions more of avoided exposure to preventable illnesses
and injuries.
I applaud the hard work of those Occupational Safety and
Health Administration employees who ensure that workers can
return home to their families safe and healthy after their
shift.
However, over the last decades evidence suggests that we
have seen an erosion of workplace protections guaranteed by the
Occupational Safety and Health Act. The erosion of OSHA's
effectiveness was particularly acute during the last several
years.
Beginning in the last Congress, the committee and Ms.
Woolsey's subcommittee conducted a systematic examination of
OSHA and the agency's ability to adequately protect workers.
Since assuming the majority, we have held at least 15
hearings into workplace health and safety issues, most often
issues regarding the failure of the last administration to
properly protect American workers.
We found well-documented hazards, like the exposures to
chemicals that cause popcorn lung disease, the combustible dust
dangers, as well as basic regulatory work like updating
construction standards, were not being addressed.
In fact, OSHA's regulatory function shut down. The Bush
administration promulgated only one significant health and
safety standard during its tenure, and that was under court
order. Additionally, we found that the enforcement tools were
left on the shelf at times.
These facts uncovered by the committee show that the last 8
years have left OSHA significantly weakened. OSHA has the
ability to reverse some of the problems with new leadership,
and that is why I am confident that Labor Secretary Hilda Solis
will be able to get the agency back on firm footing.
But good leadership alone may not be enough to sufficiently
protect workers' health and safety. Long overdue reforms to the
OSHA Act are needed.
Last week Representative Woolsey introduced Protecting
America's Workers Act. This bill will update OSHA penalties,
strengthen whistleblower protections, and ensure that bad
employers are held accountable. This legislation is vital to
improving the worker health and safety.
Today's hearings will examine adequate OSHA penalties, and
we will look at whether Congress should modernize and
strengthen penalties against those who put Americans at
unnecessary risk while at work.
Penalties under the OSHA were last updated in 1990 and were
not indexed for inflation. And these penalties for failing to
protect workers pale in comparison to penalties for failing to
protect animals or environment generally.
While both civil and criminal penalties are available under
OSHA, criminal prosecutions for egregious violations of the law
are only possible when willful violations lead to the death of
a worker.
Even then, no matter how bad an employer acted, killing a
worker is only a Class B misdemeanor. Under federal law
harassing certain animals can bring twice as much prison time
as killing a worker with willful health and safety violations.
While the law currently provides low penalties for health
and safety violations at the outset, those penalties often get
lower. Unscrupulous employers often avoid being held
accountable by their actions by negotiating finds down or away
altogether.
This is exactly what happened in a Las Vegas strip during a
particularly dangerous year and a half when 12 workers died on
a construction site. George Cole testified before our committee
last June on how Project City Center in Las Vegas negotiated
away all of the penalties for violating safety rules in private
that directly related to the death of his brother-in-law. This
is an outrageous example that negotiating away egregious
violations is not uncommon, as we will hear today.
Penalties are often key enforcement mechanisms under OSHA,
but they must be real. They must be meaningful, and they must
function to deter violations. They must get people's attention.
And these enforcement mechanisms must not be mere cost of doing
business.
Today we will hear testimony on the need to update and
modernize the key enforcement mechanisms under OSHA.
Before introducing the witnesses, I want to recognize the
committee's ranking Republican, Mr. McKeon, for the purposes of
an opening statement.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, Committee on
Education and Labor
The Committee on Education and Labor meets this morning to explore
whether current penalties are adequate to protect the health and safety
of American workers.
This hearing is fitting as we recognize Workers' Memorial Day
today. This day honors of the thousands of workers who fall sick, are
injured or killed each year due to hazardous conditions on the job.
The landmark Occupational Safety and Health Act became law in 1970,
opening the door to safer and healthier workplaces for millions of
workers.
In the nearly forty years of its existence, the Act's protections
have saved hundreds of thousands of lives and millions more have
avoided exposure to preventable illnesses and injuries.
I applaud the hard work of those Occupational Safety and Health
Administration employees who ensure that workers can return home to
their families safe and healthy after their shift.
However, over the last few decades, evidence suggests that we have
seen an erosion of the workplace protections guaranteed by the OSH Act.
The erosion of OSHA's effectiveness was particularly acute during
the last several years.
Beginning in the last Congress, this committee and Ms. Woolsey's
subcommittee conducted a systematic examination of OSHA and the
agency's ability to adequately protect workers.
Since assuming the majority, we have held at least 15 hearings into
workplace health and safety issues; most often issues regarding the
failure of the last administration to properly protect American
workers.
We found that well documented hazards, like exposure to a chemical
that causes popcorn lung disease and combustible dust dangers, as well
as basic regulatory work like updating construction standards, were not
being addressed.
In fact, OSHA's regulatory function shut down. The Bush
administration promulgated only one significant health and safety
standard during its tenure. And that was under court order.
Additionally, we found that enforcement tools were left on the
shelf at times.
These facts uncovered by this committee show that the last eight
years have left OSHA significantly weakened.
OSHA has the ability to reverse some of these problems with new
leadership. That's why I am confident that Labor Sec. Hilda Solis will
be able to get the agency back on a firm footing.
But good leadership alone may not be enough to sufficiently protect
workers' health and safety. Long overdue reforms to the OSH Act are
needed.
Last week, Representative Woolsey introduced the Protecting
America's Workers Act. The bill will update OSHA penalties, strengthen
whistleblower protections, and ensure that bad employers are held
accountable.
This legislation is vital to improving worker health and safety.
Today's hearing will examine the adequacy of OSHA penalties. We
will look at whether Congress should modernize and strengthen penalties
against those that put Americans at unnecessary risk while at work.
Penalties under the OSH Act were last updated in 1990 and were not
indexed for inflation.
And, these penalties for failing to protect workers pale in
comparison to the penalties for failing to protect animals or the
environment generally.
While both civil and criminal penalties are available under the OSH
Act, criminal prosecutions of egregious violations of the law are only
possible when a willful violation leads to the death of a worker.
Even then, no matter how bad an employer acted, killing a worker is
only a class B misdemeanor.
While the law currently provides comparatively low penalties for
health and safety violations, those penalties often get lower.
Unscrupulous employers often avoid being held accountable for their
actions by negotiating the fines down or away altogether.
This is exactly what happened on the Las Vegas strip during a
particularly dangerous year and a half where 12 workers died on
construction sites.
George Cole testified before our committee last June on how Project
City Center in Las Vegas negotiated away all the penalties for
violating safety rules in private that directly resulted in the death
of his brother-in-law.
This is an outrageous example, but negotiating away egregious
violations is not uncommon we will hear today.
Penalties are the key enforcement mechanism under the OSH Act. They
must be real. They must be meaningful. They must function to deter
violations. They must get people's attention.
And, these enforcement mechanisms must not be a mere cost of doing
business.
Today we will hear testimony on the need to update and modernize
that key enforcement mechanism under the OSH Act.
Before introducing the witnesses, I first want to recognize the
Committee's ranking Republican, Mr. McKeon, for purposes of his opening
statement.
______
Mr. McKeon. Thank you, Chairman Miller, and good morning.
One injury, one illness or one death on the job is one too
many. We Republicans do not defend and do not support bad
employers who put their employees at risk, and I offer my
sincere condolences to those families who lost a loved one this
way.
But instead of focusing on punishment, as we do with
today's hearing, we should also look at strategies that prevent
accidents in the first place. Current health and safety
regulations are complex and confusing. Simply increasing
penalties and creating even more rules will not work.
If anything, this ``Gotcha'' approach will lead to more
employer challenges and lawsuits, and in the end it won't be as
effective in keeping workers safe. Instead, Republicans believe
that cooperation with employers to fix potential problems,
along with strict enforcement, works best.
Indeed, there is evidence that when OSHA works with
businesses, particularly small ones, there has been great
progress. The Bureau of Labor Statistics backs that up. It
notes that in 2007 the number of deaths on the job fell to less
than four for every 100,000 workers. The Bureau also says that
in 2007 nonfatal injuries and illnesses also were down by 4
percent, or 122 cases for every 10,000 workers.
OSHA's figures tell the same story. They say that since
2001 workplace deaths have declined 14 percent. Meanwhile,
injuries and illness rates have dropped 21 percent. This is
good news, although I repeat: one injury, one illness or one
death on the job is one too many.
That is why I suggest to you, Mr. Chairman and my fellow
committee members, that we approach this problem with a
measured and balanced response. This response should look at
prevention and cooperation with employers, not just punishment.
After all, the evidence shows that prevention and
cooperation are making American workplaces safer, which in the
end is something that we all want.
Thank you, Chairman Miller, and I yield back.
[The statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
Member, Committee on Education and Labor
Thank you, Chairman Miller and good morning.
One injury, one illness or one death on the job is one too many.
We Republicans do not defend and do not support bad employers who
put their workers at risk. And I offer my sincere condolences to those
families who lost a loved one this way.
But instead of focusing on punishment, as we do with today's
hearing, we should also look at strategies that prevent accidents in
the first place.
Current health and safety regulations are complex and confusing.
Simply increasing penalties and creating even more rules will not work.
If anything, this ``gotcha'' approach will lead to more employer
challenges and lawsuits. And in the end, it won't be as effective in
keeping workers safe.
Instead, Republicans believe that cooperation with employers to fix
potential problems--along with strict enforcement--works best.
Indeed, there is evidence that when OSHA works with businesses,
particularly small ones, there has been great progress.
The Bureau of Labor Statistics backs that up.
It notes that, in 2007, the number of deaths on the job fell to
less than four for every 100,000 workers.
The bureau also says that, in 2007, non-fatal injuries and
illnesses also were down by 4 percent--or 122 cases for every 10,000
workers.
OSHA's figures tell the same story. They say that since 2001,
workplace deaths have declined 14 percent. Meanwhile, injuries and
illness rates have dropped 21 percent.
This is good news, although I repeat: One injury, one illness or
one death on the job is one too many.
That's why I suggest to you, Mr. Chairman and my fellow committee
members, that we approach this problem with a measured and balanced
response.
This response should look at prevention and cooperation with
employers, not just punishment.
After all, the evidence shows that prevention and cooperation are
making American workplaces safer, which, in the end, is something that
we all want.
Thank you, Chairman Miller. I yield back.
______
Chairman Miller. Thank you.
Pursuant to committee rule 7c, all members may submit an
opening statement in writing, which will be made part of the
permanent record.
By prior agreement, Representative Lynn Woolsey, the chair
of the Subcommittee on Workforce Protections, will give an
opening statement this morning. The gentlewoman is recognized
for 5 minutes.
Ms. Woolsey. Thank you very much, Mr. Chairman, and thank
you for holding this important hearing on OSHA penalties.
In the more than 2 years that I have chaired the
Subcommittee on Workforce Protections, I, like you and like the
rest of the members of this committee, have heard story after
story of worker tragedies that could have been prevented. That
is the biggest tragedy. It is when there could have been a
prevention, if only the employer had safety and health
protections in place and followed them.
My heart goes out particularly to Becky Foster, who is here
today, and all of the other family members who have senselessly
lost their loved ones to workplace incidents.
I can think of no more fitting tribute to workers on
Workers' Memorial Day--that is what today is, by the way--than
to dedicate ourselves to putting policies in place that would
protect workers and will deter employers. That is why this
hearing is so very important.
OSHA penalties against employers are shockingly low. It is
rare that an employer gets more than a slap on the wrist, even
when a worker dies or is seriously injured, even in the most
egregious cases.
It is rarer still that they are referred for prosecution.
H.R. 2067, the Protecting America's Worker Act--PAWA we will
call it from now on--which was introduced last week, provides
needed reforms to the Occupational Safety and Health Act,
including increasing penalties.
And I thank you, Mr. Chairman, for your strong support of
PAWA. Under this legislation civil penalties are raised to the
level to account for inflation since 1990, and then they will
be indexed to inflation in the future.
Criminal penalties are extended to not only cover willful
violations resulting in death, but those willful violations
that result in serious injury as well. Also, these criminal
penalties would be subject to felony prosecution and provide
for up to 10 years in jail.
Possibly even more importantly, workers and their families
will have a right to participate in OSHA's enforcement process
against the employer. They can appeal, and they can modify a
decision. In fact, they can weigh in ahead of time, giving
advice as we go along.
Mr. Chairman, thank you for being a fierce advocate for
American workers. As the head of this committee, you make all
the difference. I look forward to this hearing, and I look
forward to passing strong safety and health legislation. I will
yield that.
Chairman Miller. Thank you.
I want to welcome all of the witnesses to the committee
this morning. Thank you for your time and for your expertise
that you are sharing with us.
We will begin with Ms. Becky Foster, who is before the
committee today to testify about how her stepson, Jeremy
Foster, was fatally injured on the job at a timber company 6
months after his 19th birthday. Ms. Foster is a lifelong
resident of Danville, Arkansas, and she has worked for a
poultry company for the past 23 years, currently serving as a
clerk.
Ms. Margaret Seminario has worked for the AFL-CIO for more
than 25 years and has served as director of safety and health
for the AFL-CIO since 1990. She has served on a number of
federal government advisory committees, including the National
Advisory Committee on Occupational Safety and Health, and she
received a BA in biological science from Wellesley College and
a Masters of Science degree in industrial hygiene from Harvard
School of Public Health.
Mr. Lawrence Halprin is a partner at Keller Heckman, where
he works on a broad range of workplace health and safety,
environmental product safety and business transaction issues.
Mr. Halprin works with clients in the developing, implementing
and auditing environmental, health and safety management
programs. He has a BS from the University of Pennsylvania, a JD
from Duquesne School of Law, and an MBA from George Washington
University.
Mr. David Uhlmann is the Jeffrey F. Liss professor and
inaugural director of the Environmental Law and Policy Program
at the University of Michigan Law School. Prior to joining the
faculty, Professor Uhlmann served for 7 years as the chief of
the United States Department of Justice Environmental Crime
Section, where he was the top environmental crimes prosecutor
in the United States. Professor Uhlmann received his BA from
Swarthmore College and his JD from Yale Law School.
Welcome to the committee. Just a quick note. When you begin
testifying, in those little boxes in front of you, a green
light will go on. You will have 5 minutes for your testimony.
When you have 1 minute remaining, an orange light will go on,
and we would like you to try to start to wrap up your
testimony, but we also want you to be able to complete your
thoughts and complete it in a manner of which you desire to
convey the information to the committee, all within 5 minutes.
Imagine that. Thank you.
So also we will begin with you.
Ms. Foster. Thank you, Mr. Chairman.
Chairman Miller. We are going to ask you to pull that
microphone a little bit closer to you.
Ms. Foster. Is this better?
Chairman Miller. That is better. Thank you.
STATEMENT OF BECKY FOSTER
Ms. Foster. Good morning, Mr. Chairman and Ranking Member.
Thank you for giving me the opportunity to testify today on
behalf of families of fatally injured workers.
My name is Becky Foster. My testimony today is honor of my
stepson, Jeremy Foster. Jeremy was the best son a family could
hope for. He was a respectable young man, who loved his family
and enjoyed spending much of his time outdoors. Our Jeremy
would have celebrated his 24th birthday last Saturday.
Our time with Jeremy was cut short--tragically short--in
the early hours of Friday, October 1st, 2004. His mother called
me at 2 a.m., very upset and saying that a friend of Jeremy's
that was working with him at the Deltic Timber Sawmill in Ola,
Arkansas, had called his aunt. This was the only phone number
that the friend could think of. And he said that Jeremy had
been badly hurt while working near the chipper.
We naturally assumed that he would be taken immediately to
the local hospital only 15 miles away, so we chose to meet
there. I called his dad at work, and we all went to the
hospital and waited for the ambulance to arrive. It never did.
After waiting approximately 45 excruciating minutes, a
nurse walked into the room to repeat what she had been told
from a phone call. At the same time Jeremy's aunt, who had also
met us at the hospital along with his uncle, received another
call on her cell phone. She looked at us and said, ``Jeremy is
gone.''
I will not describe what we went through in those moments.
The pain cannot be described. We all left from the hospital,
called family members, and then we met at his oldest sister's
house.
Later that morning two men from Deltic Timber came to the
door to express their condolences. They wouldn't tell us what
happened, but they assured us that they would find out, and
they would keep us updated. Those two men left that morning,
and we have never seen or heard from them again.
It was our friend, who worked with the coroner at the
funeral home, that told us what happened, that he had been
strangled. She said that his shirt had caught on something and
was wound continuously until the shirt became so tight around
his neck that he could no longer breathe.
It was later that we learned that this equipment caught his
shirt because it had been modified by maintenance workers at
Deltic Timber. They had welded a piece of cheesepot to an auger
shaft, and by not placing a guard over this modified area, they
created a catch point.
It is stated in the OSHA report that this modification was
the direct result of our son's death.
When we received our copy of the OSHA report, we were not
surprised at all to see the notation of the company's actions
being at fault for the fatality. But we were appalled to see
the amount they were fined at $4,500. Surely, this was an
error.
Shortly afterwards, we read in our state newspaper that
this fine had been reduced to only $2,250. Did they place the
value of our only son's life at this amount? It was as if OSHA
had Pat said Deltic Timber on the back and said, ``Good job,
guys. You only killed one person.''
This company walked away from us and was only at a loss of
$2,250. They sent flowers to the funeral, and they walked away.
Jeremy was employed with Deltic Timber through a temp agency.
The temp agency paid for the funeral under workers'
compensation regulations.
We were left with nothing but pain and loss--still are. We
did consult lawyers--several of them--but our state of Arkansas
does an excellent job of protecting employers. Because of
workers' compensation statutes and the dual employment law, we
were denied our day in court with Deltic Timber.
At the very least Deltic Timber should have been penalized
with a substantial fine. Yes, we understand that companies are
in business to make a profit, and a very large fine could
result in loss of profits. But of course, they would have a
chance to make up for this loss in the next fiscal quarter.
What about the worker that is killed? There is no second
chance. All of this could have been avoided simply by reviewing
OSHA equipment regulations before modifying this equipment.
Just one moment to consider the options would have saved
Jeremy's life.
Why even have regulations, if they are not being enforced?
Why have penalties, if they are not substantial enough to get
the company's attention and to prevent more accidents?
Obviously, this meager fine had no lasting impression on
this company. Since Jeremy's accident, there have been at least
two other accidents. One was a fire at another location that
resulted in one death and two serious burn injuries.
The posters that you see behind me represent the thousands
of other people that are killed on the job every year.
Mr. Chairman and Ranking Member, I plead for your support
in any efforts that are presented to ensure a safer workplace.
Thank you.
[The statement of Ms. Foster follows:]
Prepared Statement of Becky Foster
Good morning Mr. Chairman and Ranking Members. Thank you for giving
me the opportunity to testify today on behalf of families of fatally
injured workers. My name is Becky Foster. My testimony today is in
honor of my step-son, Jeremy Foster.
Jeremy was the best son a family could hope for. He was a
respectable young man who loved his family and enjoyed spending much of
his time outdoors. Our Jeremy would have celebrated his 24th birthday
last Saturday. (Apr25th)
Our time with Jeremy was cut tragically short in the early hours of
Friday October 1st, 2004. His mother called me at 2am--very upset and
saying that a friend of Jeremy's that was working with him at the
Deltic Timber sawmill in Ola Arkansas had called his Aunt--this was the
only phone number the friend could think of--and said that Jeremy had
been badly hurt while working near the chipper. We naturally assumed
that he would be taken immediately to the local hospital only 15 miles
away. So we chose to meet there. I called his Dad at work and we all
went to the hospital and waited for the ambulance to arrive--It never
did.
After waiting approximately 45 excruciating minutes, a nurse walked
into the room to repeat what she had been told from a phone call. At
the same time Jeremy's Aunt--who had also met us at the hospital along
with his Uncle--received another call on her cell phone. She looked at
us and said ``Jeremy is gone''.
I will not describe what we went through in those moments. The pain
cannot be described. We all left from the hospital, called family
members and then met at his oldest sister's house. Later that morning
two men from Deltic Timber came to the door to express their
condolences. They wouldn't tell us what happened but assured us that
they would find out and keep us updated. Those two men left and we have
never heard from them again.
It was our friend who works as the coroner at the funeral home that
told us that he had been strangled. She said that his shirt had caught
on something and was wound continuously until the shirt became so tight
around his neck that he could no longer breathe.
It was later that we learned that this equipment caught his shirt
because it had been modified by maintenance workers at Deltic Timber.
They had welded a piece of keystock to an auger shaft. By not placing a
guard over this modified area, they created a `catch point'. It is
stated in the OSHA report that this modification was the direct result
of our son's death.
When we received our copy of the OSHA report we were not surprised
to see the notation of the company's actions being at fault for the
fatality. But we were appalled to see the amount of the fine: $4,500.
Surely this was an error. Shortly afterwards we read in our state
newspaper that the fine had been reduced to only $2,250. Did they place
a value of our only son's life at this amount? It was as if OSHA had
patted Deltic Timber on the back and said ``Good job guys. You only
killed one person''.
This company walked away from us and was only at a loss of $2,250.
They sent flowers to the funeral and they walked away.
Jeremy was employed with Deltic Timber thru a temp agency. The temp
agency paid for the funeral under workers compensation regulations.
We were left with nothing but pain and loss. We did consult
lawyers; several of them. But our state of Arkansas does an excellent
job of protecting employers. Because of workers compensations statutes
and a dual employment law we were denied our day in court with Deltic
Timber.
At the very least Deltic Timber should have been penalized with a
substantial fine. Yes, we understand that companies are in business to
make a profit and a very large fine could result in loss of profit. But
of course they would have a chance to make up for the loss in the next
fiscal quarter. What about the worker that is killed? There is no
second chance.
All of this could have been avoided simply by reviewing OSHA
equipment regulations before modifying the equipment. Just one moment
to consider the options would have saved Jeremy's life. Why even have
regulations if they are not enforced? Why have penalties if they are
not substantial enough to get the companies attention and prevent more
accidents?
Obviously, this meager fine had no lasting impression on this
company. Since Jeremy's accident there have been at least two other
accidents. One was a fire at another location that resulted in one
death and two serious burn injuries.
Mr. Chairman and Ranking Members; I plead for your support in any
efforts that are presented to ensure a safer workplace.
I ask that each of you please visit the website http://
www.usmwf.org/. for additional stories from families of fatally injured
workers. The United Support & Memorial for Workplace Fatalities (USMWF)
was created by Tammy Miser. Tammy also has personal experience with
these issues, as she lost her brother in unsafe working conditions.
Her story is included in the attached ``FAMILY BILL OF RIGHTS''.
I also ask for your support of the ``PROTECTING AMERICA'S WORKERS
ACT''.
Thank you for your service to workers and their families.
______
[Additional submissions of Ms. Foster follow:]
[Copyright 2008 by The Associated Press. All Rights Reserved.]
Deltic Timber Fined In Deadly Fire
Deltic Timber Corp. has been fined $13,500 for safety violations at
its sawmill near Waldo after a fire caused the death of one worker and
injured two others.
The Occupational Safety and Health Administration inspected the
mill following the Aug. 9 fire. OSHA said an enclosure for the planer
room, where the fire broke out, and the dust-collection system were not
built to national standards, and exposed employees to intense flames,
heat and sparks.
Diana Petterson, a spokeswoman for OSHA, said Deltic Timber has
addressed the problems, although the company is contesting the citation
and fine.
Craig Douglass, a spokesman for the El Dorado-based company, said
Deltic completed the corrective actions recommended by OSHA before
starting the mill back up October 30th.
In the fire, Darrell Richards of Junction City suffered burns on
most of his body and died September First at a hospital in Memphis.
Andy Emerson of Taylor and Billy Pope of Springhill, Louisiana,
were injured and hospitalized. The two men have not returned to work
but are back at home and receiving physical therapy.
______
Keller and Heckman LLP,
1001 G St., NW, Suite 500 West,
Washington, DC, May 12 2009.
Hon. George Miller, Chairman,
House Education and Labor Committee, Rayburn House Office Building,
Washington, DC.
Re: Adequacy of OSHA Penalties and the PAW Act
Dear Chairman Miller: I sincerely appreciated the opportunity to
testify before the House Education and Labor Committee on the
critically important issues of OSHA penalties addressed at the April 28
hearing, and appreciate the opportunity to file this supplemental
statement and information on the adequacy of OSHA penalties and the
interrelated OSH Act enforcement issues raised by the proposed PAW Act.
As was the case with my testimony on April 28, I am expressing my
personal views as a safety and health professional committed to the
goals of the Occupational Safety and Health Act. My statement and
comments are not intended to represent the views of Keller and Heckman
LLP, or any of our clients. My objective is to provide the Committee
with practical and helpful insights that address the issues before the
Committee and hopefully will assist the Committee in advancing
workplace safety and health.
It seems appropriate to begin any discussion of proposed
legislative initiatives by (1) identifying the overall goal; (2)
examining the system and measures currently in place and their
effectiveness in achieving that goal; (3) determining (through a
thorough and unbiased analysis) the underlying causes of the failure to
achieve that goal; (4) re-assessing whether the goal is appropriate;
and (5) identifying (through a thorough and unbiased analysis)
appropriate additional measures--both legislative and non-legislative--
that would be expected to significantly increase the effectiveness of
the existing system in achieving the stated goal.
The expressly stated ``purpose and policy'' of the OSH Act is ``to
assure so far as possible every working man and woman in the Nation
safe and healthful working conditions and to preserve our human
resources.'' In short, that goal was to be achieved ``by authorizing
enforcement of the standards developed under the Act; by assisting and
encouraging the States in their efforts to assure safe and healthful
working conditions; by providing for research, information, education,
and training in the field of occupational safety and health; [and by
other appropriate measures]. Through the flexibility provided by the
OSH Act, OSHA--with the participation of Congress, the employer
community, the employee community, the Review Commission, the courts
and the media--have fashioned a system that has made tremendous
progress in addressing workplace safety and health issues in the United
States.
The data published by the Bureau of Labor Statistics (BLS)
demonstrate that work-related fatalities have been reduced by nearly
two-thirds since the adoption of the OSH Act, and that workplace
fatality and injury rates are currently the lowest they have ever been
since BLS began recording statistics in 1992. In other words, much of
what we are doing is working, and we should be careful about making
dramatic changes without the careful deliberation necessary to avoid
counterproductive measures and the significant problems created by
uncertainty and instability.
The current level of workplace fatalities and injuries suggests
that our country is still some distance away from its stated goal,
which is ``to assure so far as possible every working man and woman in
the Nation safe and healthful working conditions and to preserve our
human resources.'' From a moral standpoint, our stated goal can be
nothing less, but at the same time we must recognize that it is an
idealistic goal that seems impossible to achieve given: (1) the ongoing
interaction between workers and their work environment; and (2) the
reality that human beings have human qualities that lead to
shortcomings in communication, understanding, perception, performance,
assessment and judgment. As of 1993, the risk of dying from an accident
in the home was greater than the risk of dying on the job. In the most
recent year for which BLS statistics are available, American workers
were over three times more likely to be killed in their motor vehicle
than at their place of employment. I believe those statistics provide a
useful point of reference and avoid creating unrealistic expectations.
My experience is that the overwhelming majority of employers
sincerely care about the safety of their employees, both because it is
morally correct and because it is in the best interests of their
business, and do their best within the limits of their resources to
provide a safe workplace for their employees, protect the environment
and comply with the multitude of other federal, state and local laws
governing the operation of a business in this country. According to the
attached OSHA statistics, the agency conducts approximately 40,000
inspections per year at workplaces where it believes it is more likely
to find violations, and issues approximately 85,000 citations per year,
a significant portion of which are eventually withdrawn. That comes out
to a fairly low number of two citations (alleged violations) per site.
In contrast, the PAW Act appears to reflect a view that workplace
deaths and injuries are due almost entirely to some callous misconduct
on the part of employers, and that increased OSHA penalties and
increased enforcement driven by granting employees full party status in
every enforcement proceeding will eliminate these events. I
respectfully disagree with that view.
One point of view expressed at the April 28 hearing was that
enhanced criminal penalties will deter criminal behavior and the
enhance civil penalties will deter civil violations. In fact, the
attached history of criminal referrals by OSHA shows that the maximum
number in recent years was 12 referrals whereas the number of workplace
fatalities was approximately 5600. In other words, OSHA determined that
approximately 0.2% of the fatality cases involved conduct meriting a
criminal referral. That strongly suggests that the focus on increased
criminal sanctions would do little to address the current level of
workplace injuries, illnesses and deaths in this country. Furthermore,
as has been demonstrated by the criminal enforcement activities of the
Department of Justice, the threat of far more severe criminal sanctions
under, for example, the environmental and securities laws, does not
completely deter crime. If, on the other hand, the primary objective of
the greatly increased criminal penalties is to exact retribution from
the few employers guilty of truly egregious conduct, then we should
acknowledge that objective and assess whether the ability to exact that
retribution outweighs the greatly magnified potential for harm from
prosecutorial abuse that would accompany the change in criminal
penalties.
As demonstrated by the attached BLS statistics, approximately 57%
of the workplace fatality cases involve workplace violence and
transportation incidents that are traditionally handled by the local
police department and outside the reach of OSHA enforcement. Therefore,
for purposes of the OSH Act, it appears that the situation has been
overstated, and Congress should recognize that fact.
The case for a change in criminal and civil sanctions of the
magnitude proposed by the PAW Act should be based on statistical
evidence of a major shortcoming in the OSH Act. To the best of my
knowledge, no such evidence has been presented to the Committee. The
details of only one case were brought before the Committee at the April
28 hearing. The discussion of the 1996 Evergreen Resources case by a
former DOJ prosecutor demonstrated that one can find a person willing
to engage in outrageous conduct that is particularly deserving of
criminal prosecution, but that was only one case and there is no
evidence to suggest that any Federal or state criminal laws would have
had a deterrent effect on the individual involved in that case.
The other case presented to the Committee on April 28 was a tragic
2004 case (``the 2004 Case''). The 2004 Case was described in a very
summary fashion that did not provide the details necessary to
understand the facts of the case or indicate why the OSHA enforcement
action proceeded as it did. Unfortunately, I did not have adequate time
to pursue an FOIA request that would have yielded a fairly complete
copy of the enforcement file. But what I did obtain in a limited
response to my FOIA request suggests the discussion at the April 28
hearing was substantially incomplete and that the Committee should not
rely on that limited information in deciding how to proceed on the PAW
Act.
According to the OSHA enforcement file, the 2004 Case involved a
facility with a low total OSHA Recordable Case Rate of 1.8 and 3.4 for
2003 and 2002, respectively, and a very low OSHA Days Away Restricted
Transferred (DART) Rate of 0 and 1.1 in 2003 and 2002, respectively.
Turning to the facts of the case, OSHA found that a metal bar had been
welded to the end of an elevated turning shaft and, with the benefit of
20/20 hindsight, that it created a potential catch point. However,
OSHA's machine guarding rule does not prohibit creating a catch point;
it generally prohibits creating a catch point where there is
anticipated employee exposure to that catch point in performing
assigned tasks. There was no possibility of employee exposure to the
elevated catch point unless the employee was elevated. In this case,
the OSHA enforcement file indicated that the employee was standing on a
stepladder and reaching across the shaft to clear a jam. See attached
excerpt. The enforcement file also appears to indicate that task was
supposed to be performed from the floor using a pole, which would have
avoided the tragic outcome in that case.
During my testimony, I made the point that a responsible employer
might perform an audit, use a risk assessment to determine what
recommendations to address first and, then be exposed to a citation
alleging a willful violation if OSHA determined the employer had taken
too long to address a particular issue. Representative Andrews asked
for a citation to support that concern. Attached is an excerpt from the
OSHA Field Operations Manual that acknowledges that such a situation
may arise. See Note on page 4-29.
The PAW Act raises many issues beyond the adequacy of OSHA
penalties. On the positive side, one of the most effective ways of
advancing workplace safety and health in the United States would be to
extend the coverage of the OSH Act to all government employees. In
addition to the enormous benefit of bringing those employees under the
protections of the OSH Act, I believe it would have a useful effect in
tempering OSHA's tendency, described in my April 28 statement, to adopt
overreaching and ambiguous rules, and to improperly reinterpret
existing rules to require substantially more than was ever
contemplated.
The proposed change to Section 4 of the OSH Act appears to
eliminate the presumption that OSHA's rules are preempted by the rules
of another Federal agency. It appears that, unless and until OSHA makes
the ``equally protective'' certification that would be authorized by
the PAW Act, there would be great uncertainty, if not chaos, as to
which agency's rules applied. In the interim period, parties would have
to resort to the responsible administrative tribunals and the courts to
resettle what would previously been reasonably well settled law.
Furthermore, it seems likely that OSHA would find it difficult to make
the ``equally protective'' determinations because: (1) it would find
some agency's rules more protective and some less protective than
OSHA's with respect to different aspects of the same hazard; (2) there
would be inevitable interagency disputes over the interpretation of
those rules; and (3) neither OSHA nor the Solicitor's Office has the
resources to engage in this massive undertaking. OSHA has been unable
to establish uniform interpretations of its own rules just within OSHA,
much less within the 24 state plan states which, with a few exceptions,
have largely adopted OSHA's rules. This proposed change in the law
should be carefully reconsidered. If there is a particular industry
that Congress believes should be subject to certain OSHA's rules, it
would be better to address that objective in a more focused manner.
While no regulatory enforcement system is perfect, the current OSHA
enforcement system provides a reasonable balance that, in my
experience, protects an employer's due process rights while encouraging
and generally achieving prompt abatement of conditions that clearly
require abatement. The PAW Act would violate basic due process
requirements in requiring an employer to ``abate'' an alleged violation
before OSHA ever established that the cited condition or practice was a
violation of the OSH Act.
My experience is that the current enforcement system achieves
substantial compliance with the OSH Act by the great majority of
employers for the great majority of the time. When citations are
issued, the current enforcement process generally results in a
settlement that avoids the costs of litigation and advances workplace
safety. Only about 7% of OSHA citations are contested and the great
majority of the contested cases are settled prior to trial. If the
maximum OSHA fines are increased, and OSHA makes aggressive use of that
additional authority, the number of contested cases is likely to rise
dramatically, and there is a real potential that employers will
reconsider their current practice of allowing warrantless OSHA
inspections or allow OSHA to expand the scope of a limited inspection
without a warrant.
When OSHA issues citations, my experience is that disputed facts
and legal issues are addressed between the parties in an objective and
professional manner, and that personal agendas rarely enter the
picture. OSHA and the employer understand the process and generally are
able to successfully negotiate a mutually acceptable informal
settlement agreement. They proceed with the knowledge that, assuming
the cited condition has been abated or must be abated within a
reasonable time, the matter is resolved and their agreement will not be
subject to being second-guessed or overturned by a third party,
particularly a third party which is often likely to have a
counterproductive personal agenda or bias.
An amendment to the OSH Act that would subject OSHA's prosecutorial
discretion in settling a case under particular terms to a legal
challenge through a formal administrative process and litigation would
have a tremendous chilling effect on the entire system. Much of the
incentive for the employer, OSHA and the Solicitor's Office would be
eliminated if those entities believed an employee was likely to pursue
a legal challenge to the settlement. In many cases, it may be simpler
for OSHA or the Solicitor's Office to try the case than to write the
contemplated legal justification explaining why the settlement would
effectuate the objectives of the OSH Act. In many cases, the
Solicitor's Office would not be willing to write the referenced legal
justification because it would disclose legal strategy or weaknesses in
OSHA's case. In many cases an employer would not be willing to disclose
what it was willing to commit to in a settlement to avoid litigation if
it would eventually end up litigating the case.
The risk of this type of post-settlement litigation will reduce
cooperative efforts between employers and employees, and between
employers and OSHA. In short, it may be appropriate to increase the DOL
resources available to enforce the OSH Act, but it would turn a
generally effective process on its head to allow affected employees or
their representatives to control OSHA prosecutorial discretion, or to
place the responsibility for reviewing challenges to that prosecutorial
discretion on the Review Commission and the courts.
Again, I appreciate the opportunity to file this supplemental
statement and information on the adequacy of OSHA penalties and the
interrelated OSH Act enforcement issues raised by the proposed PAW Act.
Please let me know if there are any questions or I may be of further
assistance regarding these issues.
Thank you for your consideration.
Lawrence P. Halprin.
b. If a standard does not apply and all criteria for issuing a
Section 5(a)(1) citation are not met, yet the Area Director determines
that the hazard warrants some type of notification, a Hazard Alert
Letter shall be sent to the employer and employee representative
describing the hazard and suggesting corrective action.
IV. Other-than-Serious Violations.
This type of violation shall be cited in situations where the
accident/incident or illness that would be most likely result from a
hazardous condition would probably not cause death or serious physical
harm, but would have a direct and immediate relationship to the safety
and health of employees.
V. Willful Violations.
A willful violation exists under the Act where an employer has
demonstrated either an intentional disregard for the requirements of
the Act or a plain indifference to employee safety and health. Area
Directors are encouraged to consult with RSOL when developing willful
citations. The following guidance and procedures apply whenever there
is evidence that a willful violation may exist:
A. Intentional Disregard Violations.
An employer commits an intentional and knowing violation if:
1. An employer was aware of the requirements of the Act or of an
applicable standard or regulation and was also aware of a condition or
practice in violation of those requirements, but did not abate the
hazard; or
2. An employer was not aware of the requirements of the Act or
standards, but had knowledge of a comparable legal requirement (e.g.,
state or local law) and was also aware of a condition or practice in
violation of that requirement.
Note: Good faith efforts made by the employer to minimize or abate
a hazard may sometimes preclude the issuance of a willful violation. In
such cases, CSHOs should consult the Area Director or designee if a
willful classification is under consideration.
3. A willful citation also may be issued where an employer knows
that specific steps must be taken to address a hazard, but substitutes
its judgment for the requirements of the standard. See the internal
memorandum on Procedures for Significant Cases, and CPL 02-00-080,
Handling of Cases to be Proposed for Violation-by-Violation, dated
October 21, 1990.
EXAMPLE 4-26: The employer was issued repeated citations addressing
the same or similar conditions, but did not take corrective action.
B. Plain Indifference Violations.
1. An employer commits a violation with plain indifference to
employee safety and health where:
a. Management officials were aware of an OSHA requirement
applicable to the employer's business but made little or no effort to
communicate the requirement to lower level supervisors and employees.
b. Company officials were aware of a plainly obvious hazardous
condition but made little or no effort to prevent violations from
occurring.
EXAMPLE 4-27: The employer is aware of the existence of unguarded
power presses that have caused near misses, lacerations and amputations
in the past and does nothing to abate the hazard.
c. An employer was not aware of any legal requirement, but knows
that a condition or practice in the workplace is a serious hazard to
the safety or health of employees and makes little or no effort to
determine the extent of the problem or to take the corrective action.
Knowledge of a hazard may be gained from such means as insurance
company reports, safety committee or other internal reports, the
occurrence of illnesses or injuries, or complaints of employees or
their representatives.
Note: Voluntary employer self-audits that assess workplace safety
and health conditions shall not normally be used as a basis of a
willful violation. However, once an employer's self-audit identifies a
hazardous condition, the employer must promptly take appropriate
measures to correct a violative condition and provide interim employee
protection. See OSHA's Policy on Voluntary Employer Safety and Health
Self-Audits (Federal Register, July 28, 2000 (65 FR 46498)).
d. Willfulness may also be established despite lack of knowledge of
a legal requirement if circumstances show that the employer would have
placed no importance on such knowledge.
EXAMPLE 4-28: An employer sends employees into a deep unprotected
excavation containing a hazardous atmosphere without ever inspecting
for potential hazards.
2. It is not necessary that the violation be committed with a bad
purpose or malicious intent to be deemed ``willful.'' It is sufficient
that the violation was deliberate, voluntary or intentional as
distinguished from inadvertent, accidental or ordinarily negligent.
3. CSHOs shall develop and record on the OSHA-1B all evidence that
indicates employer knowledge of the requirements of a standard, and any
reasons for why it disregarded statutory or other legal obligations to
protect employees against a hazardous condition. Willfulness may exist
if an employer is informed by employees or employee representatives
regarding an alleged hazardous condition and does not make a reasonable
effort to verify or correct the hazard. Additional factors to consider
in determining whether to characterize a violation as willful include:
a. The nature of the employer's business and the knowledge
regarding safety and health matters that could reasonably be expected
in the industry;
b. Any precautions taken by the employer to limit the hazardous
conditions;
c. The employer's awareness of the Act and of its responsibility to
provide safe and healthful working conditions; and
d. Whether similar violations and/or hazardous conditions have been
brought to the attention of the employer through prior citations,
accidents, warnings from OSHA or officials from other government
agencies or an employee safety committee regarding the requirements of
a standard.
Note: This includes prior citations or warnings from OSHA State
Plan officials.
4. Also, include facts showing that even if the employer was not
consciously violating the Act, it was aware that the violative
condition existed and made no reasonable effort to eliminate it.
VI. Criminal/Willful Violations.
Section 17(e) of the Act, as amended, provides that: ``Any employer
who willfully violates any standard, rule or order promulgated pursuant
to Section 6 of this Act, or of any regulations prescribed pursuant to
this Act, and that violation caused death to any employee, shall, upon
conviction, be punished by a fine'' of not more than $250,000 for an
individual and $500,000 for an organization or by imprisonment for not
more than six months nor less than 30 days, or by both. Note that this
provision of the Act does not apply to Section 5(a)(1) violations
classified as willful. See Chapter 6, Section XIII, Penalties and Debt
Collection, regarding criminal penalties.
A. Area Director Coordination.
The Area Director, in coordination with the RSOL, shall carefully
evaluate all willful cases involving employee deaths to determine
whether they may involve criminal violations of Section 17(e) of the
Act. Because the quality of the evidence available is of paramount
importance in these investigations, there shall be early and close
discussions between the CSHO, the Area Director, the Regional
Administrator, and the RSOL in developing all evidence when there is a
potential Section 17(e) violation.
B. Criteria for Investigating Possible Criminal/Willful
Violations
The following criteria shall be considered in investigating
possible criminal/willful violations:
1. In order to establish a criminal/willful violation OSHA must
prove that:
a. The employer violated an OSHA standard. A criminal/willful
violation cannot be based on violation of Section 5(a)(1).
b. The violation was willful in nature.
c. The violation of the standard caused the death of an employee.
In order to prove that the violation caused the death of an employee,
there must be evidence which clearly demonstrates that the violation of
the standard was the direct cause of, or a contributing factor to, an
employee's death.
1. If asked during an investigation, CSHOs should inform employers
that any violation found to be willful that has caused or contributed
to the death of an employee is evaluated for potential criminal
referral to the U.S. Department of Justice.
2. Following the investigation, if the Area Director decides to
recommend criminal prosecution, a memorandum shall be forwarded
promptly to the Regional Administrator. It shall include an evaluation
of the possible criminal charges, taking into consideration the burden
of proof requiring that the Government's case be proven beyond a
reasonable doubt. In addition, if correction of the hazardous condition
is at issue, this shall be noted in the transmittal memorandum, because
in most cases prosecution of a criminal/willful case stays the
resolution of the civil case and its abatement requirements.
3. The Area Director shall normally issue a civil citation in
accordance with current procedures even if the citation involves
charges under consideration for criminal prosecution. The Regional
Administrator shall be notified of such cases. In addition, the case
shall be promptly forwarded to the RSOL for possible referral to the
U.S. Department of Justice.
C. Willful Violations Related to a Fatality
Where a willful violation is related to a fatality and a decision
is made not to recommend a criminal referral, the Area Director shall
ensure the case file contains documentation justifying that conclusion.
The file documentation should indicate which elements of a potential
criminal violation make the case unsuitable for referral.
VII. Repeated Violations.
A. Federal and State Plan Violations.
1. An employer may be cited for a repeated violation if that
employer has been cited previously for the same or substantially
similar condition or hazard and the citation has become a final order
of the Review Commission. A citation may become a final order by
operation of law when an employer does not contest the citation, or
pursuant to court decision or settlement.
2. Prior citations by State Plan States cannot be used as a basis
for Federal OSHA repeated violations. Only violations that have become
final orders of the Review Commission may be considered.
______
Chairman Miller. Ms. Seminario?
STATEMENT OF MARGARET SEMINARIO, DIRECTOR OF HEALTH AND SAFETY,
AFL-CIO
Ms. Seminario. Chairman Miller, Ranking Member McKeon and
other members of the committee, I appreciate the opportunity to
testify today on the issue of the adequacy of penalties for
violations of the Occupational Safety and Health Act.
Today is Workers' Memorial Day, a day the unions and others
here and around the globe remember those who have been killed,
injured and diseased on the job. It also marks the 39th
anniversary of when the OSHA Act went into effect.
While progress has been made since the Act was passed, the
total of workplace injuries, illnesses and fatalities is still
enormous. In 2007 5,657 workers died on the job. That is an
average of 15 workers every day.
Nearly 4 decades after the OSHA law was passed, the job
safety law remains essentially the same today as when it was
enacted in 1970. Enforcement is weak, and OSHA penalties remain
low, particularly when compared with other safety and
environmental laws, all of which have been updated by the
Congress since they were first enacted.
Yesterday the AFL-CIO released its annual report on job
safety in conjunction with Workers' Memorial Day. Our analysis
found that the average penalty for serious violation of the
OSHA Act nationwide is about $900.
In some states, particularly the state plan states, the
penalties are much lower. For example, in South Carolina the
average penalty for serious violation was just $331.
Even in cases involving workers' deaths, OSHA enforcement
is weak and penalties are low. On average nationally last year,
the penalty for worker fatalities was just--the average penalty
was just about $11,000.
But this average includes high penalty cases and doesn't
represent the penalties in typical cases. And moreover, it
doesn't reflect the final penalties after cases are settled.
Last year the Senate Labor Committee conducted an in-depth
investigation of enforcement and penalties in fatality cases.
And what they found in the typical case, the median penalty
that was issued and then was settled out was $3,700.
And so what we heard from Becky Foster about the OSHA
citations and penalty in her case are typical of what happened
in thousands of fatality investigations for job fatalities in
this country.
Clearly, this type of penalty provides no deterrent to
employers to prevent future violations of the law and to
prevent deaths and injuries. So why are the penalties so low?
The problems are largely systemic, and they start with the
OSHA law itself. Under the OSHA Act the maximum penalty for
serious violation--and that is the most common violation
associated with fatality cases--the maximum penalty is $7,000.
But the maximums are rarely assessed. And throughout its
history OSHA's procedures for considering the factors of
employer size and gravity and history end up and result in
penalties that are well below these maximums.
As I said, for serious violations the Act says you start at
$7,000. But the OSHA formula says, ``No, you start at $5,000
and you go down from there.'' And so as I said, at the end of
the day what we have, even in fatality cases, are penalties
that are in the range of $3,000 to $4,000 for cases of worker
deaths.
And the end result of this process and the Act and penalty
procedures is that we end up with serious violations that put
workers in danger, that can cost workers their lives, that are
pitifully low and provide no deterrence.
The OSHA Act provisions for criminal penalties are just as
weak. Under the law criminal prosecutions are limited to those
cases where a worker death is the result of a willful
violation.
In the case of Jeremy Foster's death, it was a serious
violation, not even willful, even though the employer had taken
action to modify the equipment intentionally. And so it wasn't
even a willful violation, and so there was no possibility of
criminal prosecution.
But again, it is only a misdemeanor, and so there are very
few criminal prosecutions under the OSHA law. Since 1970 only
71 cases have been prosecuted for criminal provisions under the
OSHA law, with a total time in jail of 42 months. During that
time there were 350,000 worker fatalities, but there were only
71 prosecutions.
By comparison under the environmental laws, there is much
tougher criminal prosecution. Last year alone, there were 319
criminal enforcement cases initiated by EPA, charging 176
defendants, that resulted in 57 years of jail time. That is 1
year, compared to 71 cases in 40 years under the OSHA Act.
And as I said, all of the environmental laws have been
updated by the Congress. And so we would urge that both OSHA
and the Congress should act to strengthen enforcement and
penalties for job safety law.
The legislation that was introduced last week, the
Protecting America's Workers Act, would move and enhance OSHA
penalties particularly in cases of fatalities and would enhance
criminal penalties under the OSHA Act. We would encourage the
committee to move quickly to enact that legislation. Thank you.
[The statement of Ms. Seminario follows:]
Prepared Statement of Peg Seminario, Director,
Safety and Health, AFL-CIO
Chairman Miller, Ranking Member McKeon, and other members of the
committee, I appreciate the opportunity to testify today on the issue
of the adequacy of penalties for violations of the Occupational Safety
and Health Act.
Today is Workers Memorial Day--a day unions and others here and
around the globe remember those who have been killed, injured and
diseased on the job. Here in the United States, it also marks the 39th
anniversary of when the Occupational Safety and Health Act went into
effect.
While progress has been made since the OSH Act was passed, the toll
of workplace injuries, illnesses and fatalities is still enormous. In
2007, 5,657 workers died on the job, an average of 15 workers every
day, and an estimated 50,000 more lost their lives due to occupational
diseases. In 2007, the Bureau of Labor Statistics reported more than 4
million work-related injuries. But this number does not reflect the
full extent of job injuries, and the real number is estimated to be 2
to 3 times greater.
Nearly four decades after the Act was passed, enforcement of the
job safety law remains weak and OSHA penalties remain low, particularly
when compared with other safety and environmental laws. Yesterday the
AFL-CIO released its annual report on job safety--Death on the Job: The
Toll of Neglect--in conjunction with Worker's Memorial Day. Our
analysis found that the average penalty for a serious violation of the
OSH Act is less than $1,000, and the average penalty involving worker
deaths is $11,300, but there is great variability in enforcement and
penalties, particularly in the states that operate their own state
plans. Only a handful of fatality cases are prosecuted for criminal
violations. OSHA's capacity to inspect workplaces and oversee job
safety has greatly diminished, as the number of job safety inspectors
has been reduced while the size of the workforce and number of
workplaces has grown.
Improvements in OSHA's enforcement and penalty policies could help
strengthen enforcement. But many of the deficiencies in enforcement
rest with the OSH Act itself and must be addressed through
Congressional action.
OSHA Enforcement and Penalties are Too Weak to Create an Incentive to
Improve Conditions and Deter Violations
The Occupational Safety and Health Act places the responsibility on
employers to protect workers from hazards and to comply with the law.
The law relies largely on the good faith of employers to address
hazards and improve conditions. For this system to work, it must be
backed up with strong and meaningful enforcement. But at present, the
Occupational Safety and Health Act and the OSHA enforcement program
provide little deterrence to employers who put workers in danger. OSHA
inspections and oversight of workplaces are exceedingly rare. There are
no mandatory inspections even for the most dangerous industries or
workplaces. Between federal OSHA and the states there are approximately
2,050 inspectors. OSHA has the capacity and resources to inspect
workplaces on average once every 94 years--once every 137 years in the
federal OSHA states. Over the years OSHA's oversight capacity has been
diminished, as the number of inspectors has declined at the same time
the workforce has increased. Today federal OSHA's capacity to inspect
workplaces is the lowest level in the agency's history.
Since there is no regular oversight, strong enforcement when
workplaces are inspected and violations are found is even more
important. But the penalties provided in the OSH Act are weak. Serious
violations of the law (those that pose a substantial probability of
death or serious physical harm to workers) are subject to a maximum
penalty of $7,000. Willful and repeated violations carry a maximum
penalty of $70,000 and willful violations a minimum of $5,000. These
penalties were last adjusted by the Congress in 1990 (the only time
they have been raised). Unlike all other federal enforcement agencies
(except the IRS), the OSH Act is exempt from the Federal Civil
Penalties Inflation Adjustment Act, so there have not even been
increases in OSHA penalties for inflation, which has reduced the real
dollar value of OSHA penalties by about 39%. For OSHA penalties to have
the same value as they did in 1990, they would have to be increased to
$11,500 for a serious violation and to $115,000 for a willful violation
of the law.
By comparison, the Mine Safety and Health Act requires mandatory
inspections--four per year at underground mines and two per year at
surface mines. As a result of Congressional action following the Sago
mine disaster and other disasters in 2006, the Mine Act now provides
for much tougher penalties. The MINER Act increased maximum civil
penalties for violations to $60,000 (from $10,000), which may be
assessed on an instance-by-instance basis. The 2006 mine safety
legislation also added a new provision for ``flagrant'' violations,
with a maximum civil penalty of $220,000. Since the MINER Act was
passed, there has been a significant increase in MSHA penalties. In
December 2008, MSHA assessed $23 million in penalties for violations,
compared to $3 million assessed in December 2006.
The maximum civil penalties provided for under the OSH Act are
rarely assessed. Indeed, just the opposite is the case. In FY 2008, the
average penalty for a serious violation of the law was $960 for federal
OSHA and $872 for the state OSHA plans combined. Again this is the
average penalty for violations that pose a substantial probability of
death or serious physical harm. California had the highest average
penalty for serious violations ($4,890) and South Carolina had the
lowest ($331). Both of these are state plan states. For violations that
are ``other'' than serious, which also carry a statutory maximum of
$7,000, the average federal OSHA penalty was just $215. Clearly, for
most employers these levels of penalties are not sufficient to change
employer behavior, improve workplace conditions or deter future
violations.
OSHA penalties for violations that are willful or repeated also
fall well below the maximum statutory penalties. For both willful and
repeat violations, the OSH Act provides a maximum penalty of $70,000
per violation. For violations that are willful, a $5,000 mandatory
minimum penalty is also prescribed. In FY 2008, the average federal
OSHA penalty for a willful violation was $41,658, and the average
willful penalty for state plans was $28,943. For repeat violations, the
average federal OSHA penalty was only $4,077 and for state plans the
average was $2,021, a fraction of the statutory maximum penalty for
such violations.
Even in cases where workers are killed, penalties are abysmally
low. According to OSHA inspection data, the average serious penalty in
fatality cases for FY 2008 was just $2,476 for federal OSHA and $3,978
for the state plans combined. The average total penalty assessed in
fatality cases was just $11,311 nationally ($13,462 for federal OSHA
and $8,615 for the OSHA state plans). (Attachment 2). These averages
include open cases, which when finally resolved, will result in a
reduction in these average penalty levels. Average penalties in
fatality cases for FY 2003--2007, where most cases have been resolved,
show a national average of $6672 ($6646 for federal OSHA and $5363 for
the state plan states). All of these average penalties include several
high penalty cases. The median penalty, which is more representative of
the typical penalty in a fatality case, is much lower.
A state-by-state review shows that there is wide variability in
penalties assessed in cases involving worker deaths, with the penalties
in some states exceedingly low. For example, in FY 2008, in the state
of Iowa, the average penalty in worker fatality cases was $45,499, but
in the state of Utah the average penalty in worker fatality cases was
just $1,106, and in South Carolina the average penalty was $1,383.
(Attachment 3).
Last year the Senate Committee on Health, Education, Labor and
Pensions Majority staff conducted an in-depth investigation of OSHA
enforcement in fatality cases. Their study--Discounting Death: OSHA's
Failure to Punish Safety Violations That Kill Workers--analyzed
detailed enforcement data for thousands of fatality investigations and
individual case files for hundreds of enforcement cases. It found that
OSHA penalties in cases involving worker deaths were consistently low
and routinely reduced in settlement negotiations. For all federal OSHA
fatality investigations conducted in FY 2007, the median initial
penalty was just $5,900. But after negotiation and settlement, the
median final penalty for workplace fatalities was reduced to only
$3,675. For willful violations in fatality cases, the final median
penalty was $29,400, less than half the statutory maximum of $70,000
for such violations.
The following examples are typical of OSHA enforcement and
penalties in many fatality cases:
In 2004, two Pennsylvania sewer workers, Robert Hampton, 43 and
Larry Dunning, 61, were asphyxiated and died while working in a 10-foot
deep manhole. No confined space entry procedures were followed or
protection provided. The contractor, Rittenbaugh, Inc., was cited for
one serious violation of the general duty clause (since there still is
no confined space entry standard for construction) and one serious
violation of safety training requirements, with an initial penalty of
$1,500. The case was settled for $1,000.
In New Jersey, Jose Duran Painting was cited for one serious
violation and penalized $2,000 in the death of an immigrant worker, for
failing to provide fall protection. The penalty was reduced to $1,400.
In Michigan, in 2006, Midwest Energy Cooperative was fined $4,200
for 2 serious violations for excavation and safety program requirements
in the death of Danny Young, 27, who was killed when a backhoe hit a
gas line that exploded. The case was settled for $2,940.
In Austin, Texas, in September 2004, a worker was killed in a
trench cave in. The sewer contractor, ID Guerra, was cited for one
serious and one repeat violation of OSHA's trenching standards, and
penalized $8,400, including a $5,600 penalty for the repeat violation.
Despite being cited by OSHA for a similar trenching violation in 2003,
OSHA reduced the repeat penalty in the fatality case to just $2,800.
(Under the Act, the maximum penalty for a repeat violation is $70,000).
What kind of message does it send to employers, workers and family
members, that the death of a worker caused by a serious or even
repeated violation of the law warrants only a penalty of a few
thousands dollars? It tells them that there is little value placed on
the lives of workers in this country and that there are no serious
consequences for violating the law.
The OSH Act and OSHA Enforcement Policies Discount Penalties for
Violations Even in Cases of Worker Death
So why are OSHA penalties for workplace fatalities and job safety
violations so low? The problems are largely systemic and start with the
OSH Act itself. The Act sets low maximum penalty levels, particularly
for serious violations, which carry a maximum of $7,000. For a willful
or repeat violation the maximum penalty is $70,000. In assessing
penalties, under the Act, employer size, good faith, history, and
gravity of the violation are to be taken into consideration.
Throughout its history, OSHA procedures for considering these four
factors have resulted in proposed penalties that are substantially
below the maximum penalties. The agency starts with a gravity based
penalty, which is then reduced by specified percentages for each of the
other 3 factors (except in certain circumstances). Under OSHA's current
penalty policy, for high gravity serious violations, except in rare
cases, OSHA starts with a base of $5,000, not $7,000 to determine the
penalty. This is true even for fatality cases, which under OSHA policy
are supposed to be classified as high-gravity. In fatality cases, no
reductions are allowed for good faith, but penalty reductions are still
allowed for employer size and history.
Under the penalty policy, reductions for employer size range from
20 percent (for employers with 101-250 employees) to 60 percent (for
employers with 1-25 employees), but a larger reduction of 80 percent
reduction is provided for serious violations that are willful for
employers with 10 or fewer employees. The reduction for no history of
serious, willful or repeat violations in the past 3 years is an
additional 10 percent. So in many cases there is an automatic 30 to 90
percent discount in penalties, regardless of the gravity of the
violations that are found.
OSHA's general policy is to group multiple instances of the same
violation into one citation, with one penalty. So, for example, if five
workers are injured due to an employer's failure to provide guarding
for machines, the employer will only be cited once for the violation,
even though five workers were hurt. This policy further minimizes the
level of overall penalties in enforcement cases, including fatalities.
In 1986, OSHA instituted a policy to provide for instance-by-
instance penalties in those cases where there was a flagrant and
willful violation of the law. This ``egregious'' policy as it came to
be known, was designed to penalize employers who put workers at risk
and to send a message to other employers about the potential
consequences of not complying with the law. Over the years, the
egregious policy has had some positive impact, particularly when used
as part of an industry-wide enforcement initiative, as was the case in
the 1980's and early 1990's, when it was used for widespread injury
reporting and ergonomic hazard violations. But in recent years, the
impact of the policy was reduced, as the Bush appointees to the
Occupational Safety and Health Review Commission (OSHRC) took an
exceedingly restrictive view of the types of violations that may be
cited on an instance-by-instance basis.
The initial citations and penalties in OSHA enforcement cases, weak
to begin with, are reduced even further in the resolution of cases. Due
to limited staff and resources, OSHA area directors and Department of
Labor solicitors are under tremendous pressure to settle cases and
avoid time consuming and costly litigation. In both informal
settlements by the agency, and formal settlements after employer
challenges to OSHA citations, penalties are routinely cut by another
30--50 percent. Indeed, it is OSHA practice to offer employers an
automatic additional 30 percent penalty reduction at the time the
citations are issued, no questions asked, if the employer agrees to
correct all violations. (Attachment 4). The effect of these policies
and practices in most cases is to reduce penalties to a level too
minimal to have any effect.
Last year the Las Vegas Sun conducted an in-depth investigation of
construction worker fatalities on the Las Vegas Strip that highlighted
the weakness of OSHA enforcement in responding to and preventing
workplace fatalities. In an 18-month period from December 2006 to June
2008, 12 workers died on a massive construction project overseen by
some of the nation's largest contractors.
The Sun reported that Nevada OSHA inspections of many of the
fatalities initially resulted in findings of serious violations of
safety standards and penalties, albeit fairly low. However, in case
after case during informal conferences with the contractors, the agency
withdrew many citations and reduced the penalties, in some cases
removing all the citations and penalties in their entirety. For
example, in a case involving the death of Harvey Englander, a veteran
operating engineer, who was killed when struck by a man-lift in August
2007, Nevada OSHA issued 3 serious violations with $21,000 in penalties
against the Pernini Building Company for lock-out and training
violations. The citations and penalties were later withdrawn. Just a
few months later, in October 2007, Harold Billingsly, a 46 year-old
iron worker fell to his death, falling 59 feet through an unguarded
opening. SME Steel Contractors was issued three serious citations and
penalized $13,500 for failing to provide fall protection and other
violations. But, as in the Perini case, following an informal
conference with the company, Nevada OSHA withdrew all the citations and
penalties.
The Sun expose, which recently was awarded the Pulitzer prize,
brought intensive scrutiny to the safety practices at the Las Vegas
construction projects on the Las Vegas strip, and led to improvements
in training and safety measures. It also led to examination of Nevada
OSHA enforcement practices by federal OSHA and the Nevada legislature,
and some changes in those practices. There have been no deaths on the
Strip since June 2008. But, if it hadn't been for the enterprising work
of the Sun reporters, it's unlikely likely that these dangerous
practices and conditions would have changed.
Another way the impact of OSHA enforcement is minimized is through
downgrading the classification of citations from willful to serious,
which greatly reduces civil penalties and undermines any possibility of
criminal prosecution under the OSH Act. In some cases OSHA has utilized
a practice of changing the characterization of willful or repeat
violations to ``unclassified,'' even though the OSH Act makes no
provision for the issuance of such citations. Employers will seek
``unclassified'' violations, particularly in fatality cases, not only
to undermine the potential for criminal prosecution, but to lessen the
impact of the violations in any civil litigation and to keep willful or
repeat violations off their safety and health record.
In FY 2003 there were 50 unclassified violations in federal OSHA
fatality cases and in FY 2004 there were 49 such violations. In recent
years that number has dropped, and for FY 2008, OSHA inspection data
shows 13 unclassified violations, but no unclassified violations
associated with fatality cases.
The use of these ``unclassified'' violations may allow for
settlements with higher monetary penalties or additional safety and
health requirements. But these ``unclassified'' violations greatly
weaken the deterrent effect of OSHA enforcement to prevent future
occurrence of similar violations.
For example, in a fatality investigation of a worker death at
McWane Inc. Atlantic States Cast Iron Pipe Company in March 2000, OSHA
downgraded four repeat violations to ``unclassified'' violations, even
though the company had been cited previously for serious violations in
a fatality that occurred at the same facility the year before. Within 6
months of these citations, 2 more workers were killed at other McWane
facilities. The company was subsequently prosecuted for a series of
violations at multiple facilities, with most of the criminal charges
being brought under environmental laws due to weaknesses in the OSH
Act.
In another case that involved a planned inspection at the Bayer
Cropscience chemical plant in Institute, West Virginia, in 2005 OSHA
originally cited the company for 2 willful violations and 8 serious
violations of the process safety management (PSM) standard and related
requirements and proposed $135,000 in penalties. In a formal settlement
the serious violations were deleted, and the 2 willful violations were
changed to ``unclassified'' with a $110,000 final penalty assessed.
In August 2008, there was a powerful explosion and fire at the
Bayer facility that killed two plant operators and threatened the
community. The explosion occurred when there was a runaway reaction
during the restart of a methomyl unit. Methomyl is a highly toxic
substance that is sold as a pesticide. In the preliminary report on its
investigation of the explosion, the Chemical Safety Board found
significant deficiencies in process safety management that according to
the Board likely contributed to the accident. The CSB also found that
the explosion could have been catastrophic. Within 80 feet of the site
of the explosion, there is a 37,000 pound capacity tank of methyl
isocyanate (MIC), the same chemical that caused the deaths of thousands
in the toxic gas release in Bhopal, India in 1994. The CSB found
explosion debris near the MIC unit, which if compromised could have led
to a catastrophic outcome.
The OSHA investigation of the 2008 Bayer explosion found extensive
violations of the process safety management standard. OSHA issued 11
serious and 2 repeat violations, but no willful violations, and
proposed $143,000 in penalties. The company has contested all the
citations.
OSHA's Enhanced Enforcement Program Needs Enhancement
In 2003, in response to a New York Times expose on McWane, Inc's
history and pattern of worker deaths and OSHA's weak enforcement
actions, OSHA adopted a new Enhanced Enforcement Program (EEP). The
purpose of the program as described by then-OSHA Assistant Secretary
John Henshaw was to target ``employers who are indifferent to their
obligations under the OSH Act. Under the program, employers with worker
fatalities with willful or repeat violations, or who have a history of
previous violations or fatalities, are subject to enhanced oversight.
This enhanced scrutiny is supposed to include follow-up inspections
and/or inspections at other facilities of the employer and may result
in stricter settlement practices and enforcement actions in future
cases.
In FY 2008, after OSHA modified the EEP program criteria to focus
on more significant violations, there were 475 inspections involving
EEP cases. This compares to 719 inspections involving EEP cases in FY
2007, 467 EEP cases in FY 2006, 593 EEP cases in FY 2005 and 313 EEP
cases in FY 2004. Many of the cases in the earlier years were among
small employers (25 or fewer) who had workplace fatalities with a
serious violation, but no prior OSHA history. The 2008 changes in the
program eliminated these types of cases.
The concept behind the EEP program--enhanced enforcement for
persistent violators--is a good one. But unfortunately, in practice the
program has been highly deficient. A recent investigation of the EEP
program conducted by the U.S. Department of Labor Office of Inspector
General (OIG) found that in 97 percent of the EEP cases OIG evaluated,
OSHA's follow-up was deficient or lacking. At 45 of the worksites where
OSHA oversight and follow-up was deficient, 58 workers were
subsequently killed by job hazards, deaths that may have well been
prevented if proper procedures were followed.
There are also significant problems in the design of the EEP
program itself. The program includes no provisions for actually
enhancing penalties against serial violators or even changing practices
for informal settlements or penalty reductions in future cases. For
example, in one EEP case at ADM Milling in Nebraska, in 2003, the
employer was cited for serious and repeat violations of lock-out/tag-
out, machine guarding and electrical safety requirements. Initial
penalties of $124,000 were proposed, reduced to $62,000 in an informal
settlement. Two years later a follow-up inspection at the same plant
found 2 repeat violations for machine guarding standards. Penalties of
$50,000 were proposed, but were later reduced by OSHA to $32,500 in an
informal settlement--clearly not a deterrent for a company the size of
ADM, which had $44 billion in sales in 2007.
Under the EEP, expansion of investigations to other facilities of
the same employer is not automatic, and only occurs in limited cases.
Thus, the program provides little leverage to force employers who have
similar violations and unsafe practices at multiple facilities to
change the behavior and address hazards on a corporate-wide basis.
OSHA keeps an internal list of employers who are targeted for this
enhanced enforcement and notifies employers that they have been
targeted for enhanced scrutiny. But there is no public disclosure of
the list of companies that are being targeted under the EEP due to
their history of fatalities and serious, willful or repeat job safety
violations. Publicizing this list could increase public awareness and
scrutiny of these companies and create an added incentive for these
companies to change their safety and health practices.
OSHA Criminal Penalties Are Weak and Provide Almost No Deterrence
If the civil penalties under the Occupational Safety and Health Act
provide little deterrence or incentive for employers, the criminal
penalties are even weaker. Under the Occupational Safety and Health
Act, criminal penalties are limited to those cases where a willful
violation of an OSHA standard results in the death of a worker, and to
cases of false statements or misrepresentations. The maximum period of
incarceration upon conviction is six months in jail, making these
crimes a misdemeanor.
The criminal penalty provisions of the OSH Act have never been
updated since the law was enacted in 1970 and are weaker than virtually
every other safety and environmental law. For example, since 1977 the
Mine Safety and Health Act has provided for criminal penalties for
willful violations of safety and health standards and knowing
violations for failure to comply with orders or final decisions issued
under the law, and the Mine Act makes these violations a felony. Unlike
the OSH Act, these criminal penalties are not limited to cases
involving a worker's death.
Federal environmental laws have also been strengthened over the
years to provide for much tougher criminal penalties. The Clean Air
Act, the Clean Water Act, and the Resource Conservation and Recovery
Act all provide for criminal prosecution for knowing violations of the
law, and for knowing endangerment that places a person in imminent
danger of death or serious bodily harm, with penalties of up to 15
years in jail. Again, there is no prerequisite for a death or serious
injury to occur.
The weak criminal penalties under the OSH Act result in relatively
few prosecutions. With limited resources, federal prosecutors are not
willing or able to devote significant time or energy to these cases.
According to information provided by the Department of Labor, since the
passage of the Act in 1970, only 71 cases have been prosecuted under
the Act, with defendants serving a total of 42 months in jail. During
this time, there were 350,000 workplace fatalities according to
National Safety Council and BLS data, about 20 percent of which were
investigated by federal OSHA. In FY 2008, there were 14 cases referred
by DOL for possible criminal prosecution. To date, 2 of these cases
have resulted in guilty pleas, with monetary penalties and probation.
Prosecutions have been initiated in 2 additional cases, and the other
10 cases are still under review by the Justice Department.
By comparison, according to EPA in FY 2008 there were 319 criminal
enforcement cases initiated under federal environmental laws and 176
defendants charged resulting in 57 years of jail time and $64 million
in penalties--more cases, fines and jail time in one year than during
OSHA's entire history. The aggressive use of criminal penalties for
enforcement of environmental laws and the real potential for jail time
for corporate officials, serve as a powerful deterrent to environmental
violators.
In recent years the Justice Department launched a new Worker
Endangerment Initiative that focuses on companies that put workers in
danger while violating environmental laws. The Justice Department
prosecutes these employers using the much tougher criminal provisions
of environmental statutes. Under the initiative, the Justice Department
has prosecuted employers such as McWane, Inc. a major manufacturer of
cast iron pipe, responsible for the deaths of several workers; Motiva
Enterprises, which negligently endangered workers in an explosion that
killed one worker, injured eight others and caused major environmental
releases of sulfuric acid; and British Petroleum for a 2005 explosion
at a Texas refinery that killed 15 workers.
These prosecutions have led to major criminal penalties for
violations of environmental laws, but at the same time underscore the
weaknesses in the enforcement provisions of the Occupational Safety and
Health Act.
In the Motiva case, the company pleaded guilty to endangering its
workers under the Clean Water Act and was ordered to pay a $10 million
fine. The company also paid more than $12 million in civil penalties
for environmental violations. In contrast, in 2002 following the
explosion, OSHA initially cited the company for 3 serious and 2 willful
violations with proposed penalties of $161,000. As a result of a formal
settlement, the original serious and willful citations were dropped and
replaced with ``unclassified'' citations carrying $175,000 in
penalties, greatly undermining any possibility of criminal enforcement
under the OSH Act.
In the BP Texas City refinery disaster, where 15 workers were
killed and another 170 injured, under a plea agreement, the company
pleaded guilty to a felony violation of the Clean Air Act and agreed to
pay $50 million in penalties and serve a 3-year probation. BP also
agreed to pay $100 million in criminal penalties for manipulating the
propane market. But BP paid no criminal penalties under the OSH Act,
even though 15 workers died and OSHA issued hundreds of civil citations
for willful, egregious violations of the law. And under the OSH Act,
even if BP had paid criminal penalties, it would have been a
misdemeanor, not a felony. Cases like this send a terrible message to
workers about the value our laws place on their health and safety on
the job.
OSHA and the Congress Should Act to Strengthen Enforcement and
Penalties for Job Safety Violations
Current OSHA enforcement and penalties are far too weak to provide
any meaningful incentive for employers to address job hazards or to
deter violations. As a result, workers are exposed to serious hazards
that put them in danger, and cause injury and death.
Action is needed to put teeth into enforcement of the job safety
law, and to bring OSHA enforcement into line with the enforcement
practices and authorities under other safety and environmental laws.
OSHA can and should take action under the existing law to make
enforcement more effective and to enhance penalties for violations that
put workers in serious danger and cause death and injury.
The entire OSHA penalty policy and formulas should be reviewed and
revamped. The agency should use its the full statutory authority to
impose meaningful penalties for serious, willful and repeat violations
of the law, particularly in cases involving worker deaths.
OSHA should cease the practice of issuing ``unclassified''
violations in all enforcement cases.
The Enhanced Enforcement Program (EEP) should be overhauled to
actually provide for enhanced enforcement, stiffer penalties and
follow-up for employers who persistently violate the law.
Federal OSHA should conduct an in-depth review of the enforcement
and penalty policies and practices in the state plan states to
determine whether they are ``as effective as'' the federal OSHA
enforcement program, as required by law, and take action where plans
are found to be deficient.
OSHA should greatly expand the access to and disclosure of
information on employer's enforcement records. The list of employers on
OSHA's EEP list should be posted on the web, along with reports about
the employers' violations and progress towards addressing hazards. The
OSHA inspection data base should be not only searchable by
establishment, but also by industry, geographic area, standards
violated and types of violations and linked to the data bases on
exposure measurements and injury rates reported under the OSHA data
initiative.
The Congress must also act to address the serious deficiencies in
the OSH Act itself.
The OSHA civil penalties should be increased--significantly. The
enhanced penalties for mine safety adopted by Congress in the MINER Act
in 2006--$60,000 for serious violations and $220,000 for flagrant
violations--provide a good guide. There should also be a floor for
penalties in fatality cases, to take into account the harm that has
been done. These increased penalties should be automatically adjusted
for inflation, as is the case with other federal laws, so their impact
is not diluted with the passage of time.
OSHA's authority to issue violations and assess penalties for each
instance of a violation should be made clear and unambiguous. The
greater the number of workers put at risk or in danger or who have been
injured or killed due to workplace violations, the greater the penalty
should be. The use of ``unclassified'' citations should be prohibited.
Consideration should be given to adopting special provisions to
address safety and health practices at the corporate level. Presently,
the enforcement structure of the OSH Act is focused primarily at the
establishment level, which is inadequate to change the practice and
culture at the corporate level. Requirements for corporate officials to
address identified violations and hazards on a corporate-wide basis
would greatly enhance the Act's effectiveness, and result in improved
workplace conditions and greater protection for workers.
The criminal enforcement provisions of the Act must also be
strengthened and expanded. At a minimum, criminal violations should be
made a felony carrying a significant prison term and monetary fines,
and expanded to cover cases where violations cause serious injury to
workers. The law should make clear that responsible corporate officials
are subject to prosecution in appropriate cases. As a matter of
fundamental fairness and sound public policy, the criminal provisions
of the Occupational Safety and Health Act should be strengthened so
that violations of workplace safety laws carry at least the same
potential consequences under our criminal justice system as violations
of federal environmental statutes.
For these legislative improvements to be effectively implemented,
OSHA and the Department of Labor must be given additional resources to
enforce the law.
The Protecting America's Workers Act (H.R. 2067), introduced last
week by Rep. Miller and Rep.Woolsey with the support of others
incorporates many of these needed measures. The bill would strengthen
OSHA enforcement by increasing civil and criminal penalties and
expanding their scope. It would also put in place a mandatory minimum
penalty in cases involving worker deaths, so that we would no longer
see the current meager fines of a few thousand dollars in fatality
cases. Worker rights in enforcement cases would be expanded and family
members of victims would also be given rights in OSHA investigations.
In addition to strengthening enforcement, the Protecting America's
Workers Act (PAWA) would extend the Act's coverage to state and local
public employees, flight attendants and other workers who currently
lack OSHA protection. It would enhance the anti-discrimination
provisions of the OSH Act to better protect workers from retaliation,
by bringing the law into line with other federal whistleblower
statutes.
The Protecting America's Workers Act is a good, sound bill that
should be enacted into law.
Four decades after the passage of the Occupational Safety and
Health Act, its time for the country and the Congress to keep the
promise to workers to protect them death, injury and disease on the
job.
______
Chairman Miller. Thank you.
Mr. Halprin?
Mr. Halprin. Thank you, Chairman Miller. Is my microphone
on?
Chairman Miller. Yes.
STATEMENT OF LAWRENCE P. HALPRIN, PARTNER,
KELLER AND HECKMAN, LLP
Mr. Halprin. Thank you.
Ranking Member McKeon, members of the committee, my name is
Lawrence Halprin. I am an attorney with the law----
Chairman Miller. You may want to drag it a little closer to
you or speak a little bit more into it. Thank you.
Mr. Halprin [continuing]. Attorney with the law firm of----
Chairman Miller. There you go.
Mr. Halprin [continuing]. Keller and Heckman. I appreciate
the opportunity to present my views on these issues today.
As you can see from my background, I have had extensive
experience in workplace safety and health issues for most of my
life, always advancing the goal of workplace safety in what I
consider to be a balanced and cost effective manner
Appearing before you today, I am presenting solely my
views, not the views of my firm, Keller and Heckman, or any of
our clients.
I do my best to practice what I preach in the area of
workplace safety and health. In our law office people know not
to block fire extinguishers, not to block aisles. File drawers
don't get left open unattended. When we had a water leak, we
brought in an outside expert to make sure there weren't any
mold issues.
My family uses protective gear when it plays, and except
for the dog Muffin--we have a family dog who leaves things on
the steps--that is a prohibited activity for anybody else in
the house.
For the reasons stated in my written statement, I believe
the current penalty scheme is generally fairly effective in
bringing about the objectives of the Occupational Safety and
Health Act, and it provides a fair balance between enforcement
and the other tools available to the agency, and I would like
to briefly emphasize my reasons for this thinking.
First, as has been already mentioned, based on my personal
experience for over 30 years, BLS data indicate that adoption
of the OSHA Act and the work from various stakeholders,
including the ones that Ms. Seminario represents, have brought
about a thinking change in this country.
And through the adoptions at work of the Occupational
Safety and Health Act, workplace fatalities have been reduced
by two-thirds since the Act was adopted. Workplace fatality and
injury rates are the lowest they have ever been since BLS
started collecting data in 1992.
There for, the Act in many ways is working. Could it be
improved? Yes. There is always room for improvement in any
activity we are engaged in.
I think it is important to remember that the data suggests
you have twice as great a chance of dying in your home and six
to eight times the chance of dying on the highway as in the
workplace.
So we have to keep things in perspective. We are dealing
with human beings. They are far from perfect. They make
mistakes. Management makes mistakes. Employees make mistakes.
It is impossible to totally eliminate them. The cost and
resources that would be required to make a workplace foolproof
or failsafe simply are not available to our society.
We have to do the best we can in balancing things, that
means an appropriate balance between enforcement and writing
rules that people can understand. Right now they are generally
incomprehensible to most, except for some attorneys and highly
educated regulatory people.
Now, with the economic benefits or the impact of fines that
were adopted in 1990 may be slightly reduced. The point is they
are still substantial. The maximum fine is $7,000 for serious
violation. OSHA has great flexibility in how to assess those
violations--$70,000 for repeat, $70,000 for willful.
If you go into a confined space without following the
program and OSHA determines it is a willful violation, there
are probably 15 steps that have to be followed to go into a
confined space, and OSHA has the ability to cite an employer
for every single one of them. You end up with a $1 million fine
fairly quickly.
Whether the agency chooses to take that approach, that is a
matter of its discretion. Part of the problem, the funding for
the agency has basically at best kept up with cost of living,
which means basically you have enough time to--or have enough
more resources that almost fund salary increases.
That means an overworked inspector doesn't have time to get
the training needed to understand their jobs properly. They
don't have time to carry out an appropriate investigation. I
talked to one local state inspector recently, who said he
handles 100 cases a year. I think it is extremely difficult to
handle 100 cases a year and do an effective job.
When a solicitor's office has cases that are brought to
them with inspectors were not necessarily prepared or have the
time to carry out an investigation properly, they don't have
the time to go reinvestigate the case to see whether it should
have been handled differently, and they have so many cases on
their docket that they don't have time to try them all. They
have to pick and choose which ones are important.
Third, my experience has been, despite all these other
issues, the fact that the current fines are low reflects the
fact that most employers are in substantial compliance with the
Act.
I don't know how many of you have taken the time to read
the thousands of pages in the Code of Federal Regulations that
employers have to comply with. They are ambiguous. They are
confusing. They are developed by a dysfunctional rulemaking
process.
And then when it is time for compliance directives and
guidance to help people better understand them, they are
written in the same ambiguous language as the original rules.
Now, I detailed in my statement many reasons why the
rulemaking process in my mind is dysfunctional. Under basic
principles of due process, for an agency rule to be enforced,
it must be reasonably capable of being understood by those
subject to its requirements.
In my view many OSHA requirements at best barely pass that
test. Many are ambiguous. A significant number require
impractical, unfeasible, and later are interpreted by the
agency in ways that were never contemplated to understand it
was written.
When you take all factors into account, there are serious
problems with enhancing penalties against employers, who really
don't understand what is required.
Again, employers shouldn't be totally excused for
noncompliance with rules, but they need to be given credit for
substantial compliance, not penalized for lack of ability to
understand things.
Finally, I want to make the point that in the last years,
the last 20 years almost, at least 15 since BLS has been
collecting data, the Department of Justice has only referred 12
cases at maximum for criminal prosecution, which means 0.2
percent of the fatality cases in this country that were work
related were referred to criminal prosecution.
If all of them were tried, that would not make a
significant difference in reducing the current fatality rate in
this country.
I realize I am a little over my time, so I think I would
just say that overall I think the current theme is balanced,
and I appreciate the opportunity to make this presentation.
[The statement of Mr. Halprin follows:]
Prepared Statement of Lawrence P. Halprin, Partner,
Keller and Heckman, LLP
Good morning Chairman Miller, Ranking Member McKeon and Members of
the Committee. My name is Lawrence Halprin. I am an attorney with the
law firm of Keller and Heckman, LLP, and appreciate the opportunity to
provide you with my views on the important issues raised by this
hearing.
Before addressing the substantive issues raised by this hearing, I
would like to provide you with a brief background on my experience so
that you can better appreciate my perspective on the issues before the
Committee. While growing up, I spent many hours working on major home
projects with my dad who taught me the importance of working safely. I
have a Bachelor of Science in Chemical Engineering. During summer
vacations, while an undergraduate, I worked hourly jobs on rotating
shifts in a unionized ceramic tile factory. In those jobs, I was
regularly exposed to many of the more common health and safety hazards
potentially found in American workplaces. At the beginning of each new
job assignment, I spent at least a full shift and sometimes longer
getting on-the-job training from the regular operator.
At Keller and Heckman, my practice largely focuses on
environmental, health, safety and security issues. I have spent a
substantial portion of the last 30 years assisting clients in the area
of workplace safety and health--providing counseling, performing
audits, providing training, developing and reviewing programs, and
representing clients in a wide range of enforcement proceedings brought
by OSHA and its state counterparts. In addition, I am a member of
several ANSI and ASTM committees that develop safety and health
standards, have represented one or more clients in almost every major
OSHA rulemaking since the mid 1980s, and have extensive experience
working with OSHA staff both informally and through alliances and other
cooperative activities, SBREFA panels and joint speaking engagements.
In appearing before you today, I am expressing my personal views as
a safety and health professional committed to the goals of the
Occupational Safety and Health Act. My statement and comments are not
intended to represent the views of Keller and Heckman LLP, or any of
our clients. My objective is to provide the Committee with practical
and helpful insights that address the issues raised by today's hearing
and hopefully will assist the Committee in advancing workplace safety
and health.
I do my best to practice what I preach. I wear goggles and ear
plugs when working with a power saw. My daughter and I wear a full set
of pads and a helmet when skateboarding or roller blading. My daughter
wears sports goggles when she plays soccer, and our whole family wears
ear plugs at loud concerts. Nobody in our house is ever allowed to
leave anything on a stairway. Unfortunately, I am still having a
problem getting that message across to Muffin, our family dog, who
leaves her toys everywhere.
As has been made clear, the success of the OSH Act depends on
voluntary compliance because OSHA will never have the resources to
inspect every worksite. In rough terms, my understanding is that OSHA
conducts approximately 40,000 inspections per year and has jurisdiction
over 6 million workplaces. That means it would take the agency over 100
years to inspect every worksite, if the sites remained in operation for
that long. Most construction worksites are temporary and would
completely change their character to fixed worksites and be dropped
from OSHA's inspection rolls before OSHA would ever visit them.
Given that reality, OSHA, with substantial Congressional input,
has, over the years, experimented with various combinations of
regulatory interventions--rulemaking, outreach and education,
compliance assistance and enforcement--and continues to refine the mix
of interventions to make the most effective use of its limited
resources. The focus of this hearing has been described as an inquiry
into whether ``employers who fail to protect their workers are
adequately penalized and deterred from committing future violations,''
and the recently introduced Protecting Americas Workers Act indicates a
belief by some Members that there should be an increase in the civil
and criminal sanctions that may be imposed for violations of the OSH
Act.
For the reasons stated below, with two possible exceptions, I
believe the current penalty scheme provided by the OSH Act is adequate
to achieve the goals of the OSH Act. However, while there has been a
significant improvement in OSHA's enforcement efforts, I do believe
OSHA needs to significantly enhance its ability to quickly, but
responsibly, identify and take action against those few employers who
demonstrate a callous disregard for their responsibilities to provide a
safe workplace for their employees. Finally, I believe OSHA could most
effectively advance workplace safety by improving the clarity of its
standards and implementing more effective education and outreach and
cooperative programs. Employers and employees need more information
that provides meaningful guidance on what is required and why it is
required. Too often, current guidance materials repeat the ambiguous
language currently contained in the OSHA standards and compliance
directives.
Factors supporting the current penalty structure of the OSH Act
First, the existing penalty scheme under the OSH Act provides
significant penalties for each serious, repeat, willful and failure-to-
abate violation. It is important to keep in mind that OSHA has the
authority to impose these sanctions regardless of whether there has
been an injury, illness or death.
Second, the many flaws inherent in OSHA's dysfunctional rulemaking
process, for which the business community must accept some
responsibility, result in rules with broad and ambiguous requirements
that are widely misunderstood, often impractical, frequently
infeasible, and later interpreted in ways not contemplated by either
OSHA or the regulated community.\1\
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\1\ Most OSHA standards were adopted verbatim from outdated,
national consensus standards developed by ANSI and NFPA prior to 1970.
The often-ambiguous consensus standards were developed with the idea
that the users would voluntarily conform to the spirit of those rules;
they were not developed for use as enforceable government standards.
Furthermore, presumably because of copyright issues rather than a
concern about saving printing costs, many of those standards were
simply incorporated by reference rather than being printed in the
Federal Register and the Code of Federal Regulations.
While industry has to share much of the blame for its inadequate
participation in OSHA rulemakings, most OSHA standards are developed as
generic standards by well-intentioned professionals who unfortunately
do not have enough information to adequately understand the spectrum of
real world operations to which the rules will be applied and how those
operations will be affected by the proposed rule. Furthermore, instead
of writing a practical and relatively straightforward standard designed
to address 85 to 90% of the problem, I believe OSHA drafts a complex
standard designed to address 99.9% of the problem. Finally, taking
advantage of Supreme Court case law that requires the courts to defer
to an agency's interpretation of its ambiguous rules, OSHA adopts rules
with ambiguous language that the agency later interprets and
reinterprets to give it the broadest and most protective application
possible, regardless of whether that interpretation is consistent with
the agency's original intent or the additional burden it imposes on
employers.
In reinterpreting its standards, OSHA often turns to later-
developed national consensus standards, which it then applies
retroactively to equipment and processes that pre-dated the new
consensus standards. The apparent theory of this approach is that, over
time, the requirements of performance-based OSHA standards should
evolve to reflect advancing technology and current thinking on the
proper balance between engineering controls and safe work practices.
While I can understand the application of this approach to new
equipment and processes, I believe it unfairly ignores the huge
difference in the burden on employers between designing new protective
measures into new equipment and processes, and retrofitting old
equipment and processes with the latest technology.
I have been referring to OSHA as though it is a single agency with
a uniform approach to the interpretation of its standards. Let me
assure you, that is not the case. Interpretations of OSHA standards
vary both between regions and within regions. They also vary between
OSHA and the twenty plus states with their own state plans.
---------------------------------------------------------------------------
This situation leads to great uncertainty and frustration, and
widely varying interpretations of OSHA requirements within OSHA, within
the 20 plus states with state plan programs, and within the regulated
community. This situation also suggests that both Congress and OSHA
proceed with due caution in penalizing violations of OSHA standards so
as to avoid the fundamental unfairness of penalizing employers for the
shortcomings of OSHA's rulemaking processes.
Third, it is a daunting task for most small employers to
familiarize themselves with, much less comprehend, just the thousand
pages of OSHA requirements in the Code of Federal Regulations, which
incorporate by reference hundreds of additional pages of national
consensus standards. When one adds to that burden, the thousands if not
tens of thousands of pages of OSHA directives, letters of
interpretation and other guidance materials needed to more fully
understand the applicable OSHA requirements, the task becomes
insurmountable.
Fourth, even if it were possible to fully understand what is
required by the OSH Act, it would be infeasible for any significant,
active industrial operation in the United States to be in full
compliance with the requirements of the OSH Act.
Fifth, faced with these practical challenges and limitations, a
diligent employer will often turn to sound risk management principles
to guide its workplace safety and health process. Applying those
principles, an employer would perform risk assessments and manage its
operations to minimize the risk of serious physical harm to employees.
There are two problems with that approach. First, there is some
divergence between what is called for through the application of risk
management principles and what is required by OSHA requirements.
Second, risk assessment requires an effective identification and
evaluation of the relevant factors, includes a subjective component,
and is always subject to criticism based on 20/20 hindsight.
Sixth, my experience is that the overwhelming majority of employers
sincerely care about the safety of their employees, both because it is
morally correct and because it is in the best interests of their
business, and do their best within the limits of their resources to
provide a safe workplace for their employees, protect the environment
and comply with the multitude of other federal, state and local laws
governing the operation of a business in this country.
A review of the exisiting OSHA penalty structure
The OSH Act subjects an employer to a civil fine of up to $7,000
for each serious violation. In general, OSHA establishes a serious
violation of a standard by proving that (1) the standard applied to the
condition, (2) the condition was prohibited by the standard, (3) the
employer had either actual or constructive knowledge of the non-
compliant condition, (4) there was employee access or exposure to the
condition, and (5) the condition was likely to result in serious
physical harm if an accident were to occur. OSHA is not required to
show that the employer was aware of the OSHA requirement or that an
accident was likely to occur. Furthermore, OSHA frequently asserts
there was constructive knowledge based on a shortcoming in a particular
program or the lack of adequate supervision, determinations often made
by OSHA inspectors with the benefit of 20/20 hindsight. As I hope the
Members recognize, these cases are heavily fact dependent and the
outcome is often subject to an honest difference of opinion. As noted
previously, this penalty scheme diverges from a traditional risk
assessment approach (which does not assume an accident will occur) and
may force employers, working with limited resources, especially under
current economic conditions, to choose between prudent risk management
of workplace safety, and regulatory compliance.
The OSH Act subjects an employer to a civil fine of up to $70,000
for each repeat violation. A repeat violation is generally a violation
of the same or a substantially similar requirement by the same employer
at the same or a different facility. As a practical matter, this
provision provides a strong incentive for multi-site employers to
comply with known OSHA requirements and to promptly implement
corporate-wide remedial measures when an OSHA inspection identifies a
previously unknown requirement governing a hazard common to multiple
facilities.
The OSH Act subjects an employer to a civil fine of up to $70,000
for each willful violation of an OSHA standard or the General Duty
Clause. A willful violation is generally one in which the employer is
shown to have been aware of and intentionally violated the applicable
OSHA requirements, or acted with such reckless disregard or plain
indifference to workplace safety that one can reasonably presume the
employer would have intentionally violated the applicable requirements
if it had been aware of them. The foundation for a willful violation
may be based on a pattern of conduct at the cited facility or a pattern
of conduct at multiple facilities within the same company.
In what it deems to be cases of particularly egregious willful
violations, OSHA has, as a matter of prosecutorial discretion, alleged
a separate violation and proposed a separate penalty for each instance
of non-compliance with an OSHA standard.\2\
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\2\ When the OSHA standard is written so that the duty runs from
the employer to each employee, the case law supports the position that
OSHA has the prosecutorial discretion to separately charge and
prosecute a separate violation with respect to each employee that was
not protected by the required safety measure. OSHA recently amended its
training and personal protective equipment standards so that the legal
duty would run from the employer to each employee. Similarly, it
appears that OSHA has the discretion to group violations of a single
standard into one item or to allege a separate violation and penalty
for non-compliance with each element of a required procedure. For
example, a complete failure to apply lockout/tagout or to implement a
confined space entry procedure provides OSHA with the prosecutorial
discretion to issue a separate citation and proposed penalty for the
failure to comply with each required element of the procedure.
---------------------------------------------------------------------------
The OSH Act subjects an employer to a civil fine, for each failure-
to-abate violation, of up to $7,000 per day for each day beyond the
required abatement date that a condition remains unabated.
Finally, the OSH Act subjects an employer or responsible corporate
officer to a criminal fine of up to $250,000 and 6 months incarceration
for the first willful violation resulting in the death of an employee,
and a criminal fine of up to $500,000 and 12 months incarceration for
the second willful violation resulting in the death of an employee.
Clearly, these are substantial sanctions that should and do provide
employers with the incentive to comply with the requirements of the OSH
Act and to cause those who have violated the OSH Act in the past to
change their ways.
The issue of enhanced criminal sanctions
It has been suggested by some that the criminal provisions of the
OSH Act are inadequate to deter criminal conduct. I do not believe that
is correct. For the typical corporate executive, incarceration for a
period of six months would be viewed as a terrible and inconceivable
outcome. Furthermore, as has been demonstrated by the criminal
enforcement activities of the Department of Justice, the threat of far
more severe criminal sanctions under, for example, the environmental
and securities laws, does not completely deter crime. In addition, the
history of criminal referrals by OSHA shows that the maximum number in
recent years was 12 referrals whereas the number of workplace
fatalities was approximately 5600. In other words, OSHA determined that
approximately 0.2% of the fatality cases involved conduct meriting a
criminal referral. That suggests that the focus on increased criminal
sanctions would do little to address the current level of workplace
injuries, illnesses and deaths in this country. BLS statistics indicate
that approximately 60% of those cases involve workplace violence and
transportation incidents beyond the reach of traditional workplace
safety and health programs.
Possible changes to the penalty provisions of the OSH Act
I mentioned two areas where some adjustment in the penalties
authorized by the OSH Act may be appropriate. I believe the current
criminal provision of the OSH Act is too broadly written to justify an
increase in criminal penalties. From a moral standpoint, if the
criminal provisions of the OSH Act were revised to distinguish between
what are currently described as willful violations, and the much
smaller group of cases equivalent to an employer taking out a gun,
aiming it at an employee and pulling the trigger, then it would be
morally appropriate to increase the criminal penalties for that small
category of crimes. Second, given the passage of time, it does seem
appropriate to add an escalation clause to the OSHA penalty structure.
Conclusion
Based on my personal observations of hundreds, if not thousands, of
workers and their working conditions at the numerous workplaces I have
visited over the last 30 years, it is clear that there have been vast
improvements in workplace safety and I believe the injury and illness
statistics published by the Bureau of Labor Statistics (BLS) reflect
that trend.
When OSHA was established in 1970, almost 15,000 employees died
each year due to work related injuries. In the time since then, that
number has been cut down by nearly two-thirds. According to a census
conducted by BLS, workplace fatality and injury rates are currently the
lowest they have ever been since BLS began recording statistics in
1992. There were 3.8 fatalities per 100,000 workers in 2007, which was
down from 4 per 100,000 in 2006.\3\ In comparison, the Department of
Transportation found that in the same year automobile accidents
accounted for 13.61 fatalities per 100,000 people.\4\ American workers
were over four times more likely to be killed in their car than at
their job. Non-fatal injuries and illnesses have also continued to
decline each year. According to BLS,\5\ there were 4.2 cases per 100
full-time workers.
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\3\ See the National Census of Fatal Occupational Injuries in 2007
(revised), available at http://www.bls.gov/iif/oshwc/cfoi/cfoi--
revised07.pdf
\4\ See: http://www-fars.nhtsa.dot.gov/Main/index.aspx
\5\ See Workplace Injuries and Illnesses in 2007, available at
http://www.bls.gov/news.release/pdf/osh.pdf
---------------------------------------------------------------------------
Civil monetary penalties and citations, coupled with the criminal
penalties that are given to the most egregious violations, have been
sufficient to assure compliance with the regulations. I believe
workplace safety and health could be far more effectively advanced
through greater emphasis on clarifying OSHA standards and implementing
effective training, outreach and cooperative programs.
Regrettably, there are still employers in this country who do not
value the lives and safety of their workers, despite the repercussions
that could occur from their continued violations of regulations. These
employers are a very small minority. Far more companies are OSHA
compliant, adhering to the rules and taking steps to resolve situations
in which they are found lacking.
The current system is balanced, adaptable, and effective. Any
legislation that aims to change this system should be carefully
considered, especially during the incredibly difficult economic
situation facing our country. Thank you for the opportunity to make
this presentation. I welcome any questions you may have.
______
Chairman Miller. Thank you.
Mr. Uhlmann?
STATEMENT OF DAVID M. UHLMANN, JEFFERY F. LISS PROFESSOR AND
DIRECTOR OF THE ENVIRONMENTAL LAW AND POLICY PROGRAM,
UNIVERSITY OF MICHIGAN LAW SCHOOL
Mr. Uhlmann. Good morning, Chairman Miller, Ranking Member
McKeon and members of the committee.
My name is David Uhlmann, and I am a professor at the
University of Michigan Law School. I previously served for 17
years as a federal prosecutor, the last seven as the chief of
the Environmental Crimes Section of the Justice Department.
Every day in our great country, 15 people go to work and
never come home again. Hundreds more go to work healthy and
come home severely injured. While some deaths and injuries
cannot be avoided, far too many occur because of worker safety
violations.
We can do better in the United States of America. We can
spend hours debating about whether the costs of regulatory
compliance are too high or about whether our worker safety laws
are too complex.
But that debate will not bring comfort to Becky Foster and
her family or to the thousands of families who have lost loved
ones because of worker safety violations.
More debate also will not change one simple fact. The
problem with our worker safety laws is not the rules. The
problem is that there are no consequences for breaking the
rules.
Today and the United States of America it is only a 6-month
misdemeanor if you commit a willful violation of worker safety
laws and a worker dies. Now, if the same employer who commits
that violation goes out over the weekend and shoots a deer
without a state permit, transports that deer across state
lines, it is a 5-year felony.
Surely, surely, the sanction for committing a willful
violation of the law that results in a worker death should be
at least as great as the sanction for killing a deer.
The weak penalties for violations that result in worker
death are not the only problem with the current version of the
Occupational Safety and Health Act. I would like to talk just
briefly about one of the cases that I prosecuted at the Justice
Department, which I think highlights the problems with the
worker safety laws.
It involved an employer named Allan Elias, a company called
Evergreen Resources in Soda Springs, Idaho. And Allan Elias was
one of the most notorious violators of environmental health and
safety laws in the state of Idaho. His facilities had been
inspected for years. He would receive penalties for years.
But none of that stopped him from sending his workers on a
hot summer day in August of 1996 into a tank of cyanide waste,
a confined space just like the type that Mr. Halprin testified
about just a few moments ago.
He provided no safety equipment for those workers. He did
no testing of the air inside the tank, and a 20-year-old young
man named Scott Dominguez in his first job out of high school
collapsed inside the tank, suffered severe and permanent brain
damage.
And to tell you everything you need to know about that
defendant, that employer, when firefighters were they are
responding to this worker injury, trying to save Mr.
Dominguez's life, they asked Mr. Elias what was inside the
tank. And he told them, even though he put cyanide in that
tank, he told them there was nothing in the tank that could
hurt anyone.
When the emergency room doctors called him, desperately
trying to save Scott Dominguez's life, and asked Mr. Elias was
there any possibility that there was cyanide in the tank, Mr.
Elias lied and said no.
Now, and we were able to prosecute Mr. Elias under the
environmental laws, and after a 3\1/2\ week trial, he was
convicted and sentenced to 17 years in prison, which until
recently was the longest sentence ever imposed for
environmental crime.
But Mr. Elias did not commit a criminal violation of the
Occupational Safety and Health Act. He didn't commit a criminal
violation, even though he may have committed 15 violations of
the confined space entry program, even though OSHA did cite him
for willful violations of the OSHA Act.
He didn't commit a criminal violation even though a jury
unanimously found beyond a reasonable doubt that he had
knowingly exposed his workers to imminent danger of death or
serious bodily injury. He didn't commit a violation of the
Occupational Safety and Health Act because the doctors were
able to save Scott Dominguez's life.
There is something wrong with the law, when an employer,
who knowingly endangers his workers, commits a 17-year felony
under the environmental laws, but doesn't even commit a crime
under the law designed to protect the health and safety of
America's workers.
We began a Worker Endangerment Initiative at the Justice
Department based on the Elias case and others like it to target
companies that were serial violators of the environmental laws
and the health and safety laws.
That initiative has continued in the last 2 years since I
left the department and has enjoyed many successes, including
sentencings last week in the prosecution of the McWane Division
Atlantic States in New Jersey. Four corporate officials were
sentenced to jail terms in that case. The company was sentenced
to pay an $8 million fine.
But the success of the Worker Endangerment Initiative owes
more to the strength of the environmental laws and the
creativity of prosecutors than it does to the OSHA Act.
Like prosecuting Al Capone for taxes, prosecutors charge
worker endangerment in cases like Atlantic States under Title
18 of the United States Code under the environmental laws.
Moreover, the success of the Worker Endangerment Initiative
only addresses a fraction of the worker safety problem, because
according to the most recent Department of Labor data, only 9
percent of worker fatalities occur because of environmental
hazards.
It is time to bring the OSHA Act into the 21st century by
enacting meaningful penalties for criminal violations of the
Act. I have detailed in my written testimony the ways the Act
can be strengthened.
Many of those changes are included in the Protecting
America's Workers Act introduced last week by Congresswoman
Woolsey, and I would urge the enactment of that law. And I
would be pleased to work with Congresswoman Woolsey and other
members of the committee about ways to strengthen the law.
On this Workers' Memorial Day, we cannot provide justice
for those whose lives have been lost because of worker safety
violations, but we can honor their memories. Everyone deserves
a safe place to work and the ability to come home to their
families in good health at night.
By passing the Protecting America's Workers Act, you can
make good on the promise of a safe workplace made nearly 40
years ago when Congress enacted the Occupational Safety and
Health Act.
Thank you for the opportunity to testify today.
[The statement of Mr. Uhlmann follows:]
------
Chairman Miller. Thank you.
Ms. Foster, thank you very much for your testimony. At any
time were you consulted are involved in the discussion of the
sanctions against the company where Jeremy worked, in terms of
the penalties that were to be imposed?
Ms. Foster. No, sir, we were not.
Chairman Miller. I am sorry. Can you just pull the
microphone closer?
Ms. Foster. No, we were not. No one contacted us and asked
for our opinion on the penalty or anything.
Chairman Miller. How did you find out about the penalties?
Ms. Foster. OSHA sent us a letter with the citation being
serious and a fine of $4,500. That was the only letter that we
have received from them. And then it was later that we actually
read in the newspaper that the fine had been reduced, so we----
Chairman Miller. Ms. Seminario, we heard in the discussions
of the accidents and the fatalities in Las Vegas at City
Center, again, of people learning about this sort of after-the-
fact with respect to settlements and reductions of the
settlement. Is that common practice?
Ms. Seminario. Yes, it is very common. Under the OSHA Act
itself, family members have no rights.
Chairman Miller. Mr. Halprin, is that your understanding? I
mean that is a correct reading of the Act? I mean that is what
we have been told several times in these hearings.
Mr. Halprin. The Field operations manual requires that OSHA
enforcement officials advise family members of the status of
the investigation and provide copies of citations immediately
when they are issued, and further involvement, but they are
not----
Chairman Miller. But no involvement in the----
Mr. Halprin. They are not involved in the substance----
Chairman Miller. Of the settlement.
Mr. Halprin [continuing]. Of investigation on the theory
that it is considered confidential investigatory information.
There many times when an investigation goes forward, and OSHA
actually changes its mind about what it thinks happened or what
level of fault might have been involved in the----
Chairman Miller. So Ms. Seminario, there is no notice of
what the pending penalty will be before it is imposed?
Ms. Seminario. For family members, no. For workers or for
represented workers, they are supposed to be advised and have a
right to participate in settlements, if they have been involved
in the investigation or if indeed they have elected to----
Chairman Miller. And that is true after--when there are
further negotiations for the reduction after the penalty has
been imposed?
Ms. Seminario. That is true. The practice, however, is such
that the union often finds out after the fact that there are
separate negotiations going on with the employer, and the
settlement is presented to them as a fait accompli.
Chairman Miller. As does the family.
Ms. Seminario. The family generally isn't even advised as
to what happens. Workers and unions have stronger rights in the
law. Family members under the law have no rights currently.
Chairman Miller. Let me ask you a further question, Ms.
Seminario. In your testimony you discuss the various discounts
that can be provided once a penalties established. And I am
paraphrasing, but I think there is a discount for workplace
history, which I guess if you don't have a bad history, you can
receive a discount.
And then there is another discount with respect to size.
And they understand why that conceivably would be in the law,
but let me ask you this. Does that discount continue so if you
have a bad history, and this is a repeated offense, you could
still get a discount because of size?
You may not get the workplace history discount, but you get
a discount because of the size of the employer?
Ms. Seminario. Yes, under OSHA's penalty procedures, the
Act itself lays out certain factors that are supposed to be
taken into consideration. What OSHA has done over the years is
basically made those a matter of fact, and there is a formula
that reduces.
You start at a penalty, and it gets reduced by these
factors. And except in very, very, very rare cases, the field
operations manual does provide in, you know, the rarest of
cases that the penalty might not be reduced by size.
But the practice, as we see in case after case after case,
is that the penalties are reduced, and it is exceptional
cases----
Chairman Miller. So conceivably, there is for a very small
employer--I think it is under 10, and then there is something
between one and 100 and over 100; again, unfortunately I am
paraphrasing because I--100 to 250, and one to 25, and 10 or
under, I think is how you stated it in your testimony.
So a small employer could have a bad history and a repeat
violator, and they still get a discount on penalties?
Ms. Seminario. Yes. For very small employer, the size of
reduction actually for willful violation is 80 percent for size
one to 10. If it is a serious, it is only 60 percent. So if you
are willful, you get a bigger discount than you do if it is
only a serious violation, it seems a little strange.
Chairman Miller. Okay. It does seem--okay.
Mr. Halprin stated in his testimony that if you look over
the history, only .2 percent of the fatality cases involve
meriting criminal referral.
Mr. Uhlmann, you are telling us that is because it is not
worth the Justice Department's time to prosecute or even OSHA's
to refer to them, because at the end of the day for killing
this person, if that what happens under whatever circumstances,
it is--what is it--it is a misdemeanor, right?
Mr. Uhlmann. That is correct, Mr. Chairman.
You know, the reality of life in the Justice Department is
that prosecutors focus on the crimes that Congress has told
them are the ones that Congress wants them to focus on by
making them felonies.
And there are felony violations for every single violation
of the environmental laws that involves knowing conduct as a
felony. The same is true under the food and drug law. The same
is true under the security laws.
The OSHA Act is----
Chairman Miller. So in Ms. Foster's case, the Justice
Department would have had to decide to prosecute a case if it
was referred to them for a misdemeanor, where they put a value
on the crime of $2,500?
Mr. Uhlmann. Well, I mean that is correct. I mean the
maximum penalty for criminal prosecution in that case would
have been higher. But of course, OSHA didn't even find that to
be a willful violation, so it would have been difficult to
prosecute that case criminally, even if the department made it
a practice of prosecuting misdemeanor cases.
But the reality is in prosecutors' offices across America,
misdemeanors aren't the focus of prosecution efforts. They are
rarely prosecuted.
Chairman Miller. We have got prosecution offices all across
the country. Because of budget problems, they are suggesting
they are going to let like really criminal guys go, you know,
that are--they are bopping people on the head in the streets.
But anyway, Mr. McKeon? My time is over.
Mr. McKeon. Thank you, Mr. Chairman.
Mr. Halprin, in the last several years OSHA has
cooperatively worked with employers to provide assistance to
employers and employees, particularly small businesses. During
that same period there has also been remarkable progress in
declines in the workplace fatality rates, as well as the injury
and illness rates.
What is the level of concern that a return to the
adversarial ``Gotcha'' mentality on the part of OSHA may
reverse these positive trends?
Mr. Halprin. I personally believe the overwhelming
improvement has been through outreach, communication and
education, and there needs to be certainly a reasonable level
of enforcement.
But the experience I have had was in one case there was an
outstanding facility. The agency came in to do a wall-to-wall
inspection, looking at chemical safety issues, couldn't find
anything after doing all the monitoring you would have
expected, that through the hazard communication program, and
finally got into the point of digging through the company's
confined space entry records and citing them because in one
case a person had been listed as an entrant into a confined
space, but not an attendant.
Now, so my point is there is a concern about that. The
current program is based on the idea that targeting of
employers is supposed to address those with more significant
problems or those in an activity that is generally thought to
be more significant, and therefore inspectors are expected to
come up with citations.
And I think there is more of a need for inspectors to go
into a site and say, ``You know, this one is really doing a
darn good job. We should go elsewhere.'' Leave. Say, ``You are
doing a good job,'' and say to the supervisor, ``Send us
someplace else.''
Mr. McKeon. You know, I think we hear this--the stories
like what happened to Mr. Foster and most of us in here could--
common sense--figure that that was a real tragedy, and
something should be done about that--more than was done about
it.
On the other hand, trying to write a law that covers all
kinds of intentions and actions, and then having it interpreted
by different prosecutors across the country, and then the
investigators being limited with maybe inadequate budgets,
enough to supervise all locations, it kind of boggles your mind
how much we try to solve all the world's problems here and
don't seem to be able to.
And I think we need here a case like, Mr. Uhlmann, that you
talked about in Idaho. Seventeen years probably wasn't enough
for that person. On the other hand, when you hear other cases
where truly there are accidents that happen--I heard a story
just last week that a husband and wife were out playing golf,
and while the wife was teeing off, the husband tried to run
over to the refreshment cart in his cart and bounced across the
hill and flipped over and killed himself.
And we had a former congressman die last week out on four
wheelers with his children. Came over off of a steep decline,
or whatever happened, and flipped and broke his neck and killed
himself. You know, you hear just tremendously sad things that
happen.
Now, when you hear the Foster case, where they have changed
the equipment and made it more dangerous, you know we should do
something about that.
But to be spending time hitting a lot of things that are
less of a problem and then skipping over some of the things
that are real problems, that is where I think there should be
an adjustment. But the mentality, I think, should be trying to
fix things, trying to make things better, rather than trying to
punish.
And that is I think the dilemma that we are kind of faced
with. Some people, only punishment gets a response. Some
people, if you go in and show them that there is a problem in
your business, you know, appreciate that and fix it, and they
can move on.
So I think this is going to be a very interesting work as
we go through this progress and see how we can make things
better and not inadvertently make things worse. Thank you.
Ms. Woolsey [presiding]. Thank you, Ranking Member McKeon.
I want to respond to that. It is my law that we are
rewriting. We have written a law to strengthen a piece of
legislation that is 30 years old. Over those 30 years, we have
learned. Over those 30 years, we have moved into the 21st
century. It is time for OSHA to join the 21st century.
And as we go through the process with PAWA, we will make
sure that that is exactly what it does--gets us to where we
need to be in the 21st century and strengthen what needs to be
strengthened. And we are not going to be picayune on the wrong
things, because we don't have time for that.
Now, Mr. Kildee?
Mr. Kildee. Thank you, Madam Chair.
Madam Chair, when my daughter was in high school, and
injury on the job took place in my district. And that injury
helped my daughter for her moral and legal sense of
responsibility for employees.
A young lady working in my district on a press was
grievously injured. She worked on a press, and she was required
to put the raw material in the press. And under the rules and
under the mechanics of the kept in condition machine, she had
to remove both hands from the material, simultaneously press
two buttons, and then the press would come down.
That day she put her hands into the press with the
material, and the press came down, and it utterly, utterly
destroyed both her hands. I remember I brought the Flint
Journal home that Sunday after my visit back to my district,
laid it down, and my daughter picked it up, and she started to
cry.
She said, ``Dad, how could that happen?'' They had a
minimal fine, by the way, and minimal settlement for her--very
minimal. How could that happen? And she just cried some more,
and I read the article again, and the thing that really tripped
her, and we need to make is a human issue. It is a moral issue.
It is not just a legal issue. It is a moral issue.
She said, ``Dad.'' She said, ``Look, it says here, `I can't
even pet my kitten anymore every again.' '' now, my daughter
was a tenth grader, and she saw the immorality of that and this
insignificant settlement she got. The rest of her life--she was
about 22 years old or so--the rest of her life she must go
through life without hands.
Now, that should move us. First of all, that should enrage
us. Anger is good. Even great religious leaders have been
angry. Christ knotted ropes and drove the moneychangers out of
the temple. Sometimes we have moneychangers who are more
concerned about profit and making sure that the equipment that
can be dangerous--can be productive, can be dangerous--is taken
care of.
We have a moral obligation.
Ms. Woolsey, God bless you. She is one of my favorites, and
she really believes in human dignity.
She has a bill. Dr. Uhlmann, is that bill--would that be
helpful, or should we go even further than that bill? I am co-
sponsor of that bill, following her great leadership.
Mr. Uhlmann. Sir, the bill would be tremendously helpful. I
think it would make a huge difference in the ability to deter
violations, you know, recognizing as the ranking member says,
that obviously the first thing you want to do is try and help
companies do the right thing before violation even occurs. I
mean I fully support OSHA emphasizing compliance counseling.
But the reality is there are a lot of companies who, with
all the counseling in the world--they are not Mr. Halprin's
clients, and they are not spending the money on compliance that
it costs to engage Mr. Halprin. And for those companies you
need more than just counseling. You need the threat, the
credible threat of enforcement.
I think the Protecting America's Workers Act would do that.
It could go further, and I think there are ways that that could
be improved, and you know I am happy to talk about that and
work with the committee on ways to make the law even better,
but no question it would be a significant improvement over
existing law.
Mr. Kildee. Well, I appreciate that. You know, my daughter
now is an employer. She is a very, very good businesswoman. And
one of her highest priorities--she still remembers it; she
still remembers that Sunday when I brought that newspaper back
from Flint, Michigan--one of her highest priorities, and she is
roaming her buildings.
She is in charge of two buildings, all the time looking for
safety positively, not just you know have something happen--
positively trying to anticipate something that could go wrong.
It is really high priority with her.
And when we don't have employers that have this high
priority, then we need law, right, to make sure.
Thank you very much. And God bless you, Madam Chair.
Ms. Woolsey. Thank you very much, Mr. Chairman.
Mr. Cassidy?
Dr. Cassidy. I think we all agree that we need to decrease
these terrible things that just happen to your stepson. I guess
my question is what is the best way to do it.
First, Mr. Halprin, you talked about the thousand pages and
the ambiguity. And I think of the small businessperson trying
to get their equipment lined up. And I kind of took from what
you said that the current arrangement, we would go into that
small business person and say, ``Listen, ma'am, this is the way
you need to set it up so as to be in compliance.''
Can you give us an example of the ambiguity and where that
sort of partnership would be effective? Is there a clear-cut
example of, ``My gosh, how would you ever understand this
unless we employed you, and we can't afford you, because I
think your rates are probably too hard for us?''
Mr. Halprin. The best example, at least one of them with
the problems, is with those whose machine guarding locked-out,
tag-out standards.
Dr. Cassidy. I am sorry. Say it louder, please? I can't
hear you.
Mr. Halprin. OSHA's machine guarding locked-out, tag-out
standards. There is exception for full lock-out when you engage
in minor servicing activities. The idea is to lock out a
machine, take away its energy sources said that it is basically
in a neutral state, and it won't accidentally start up.
And the standard was adopted with the best of intentions.
There was, unfortunately, in adequate industry support, so
certain practices that had gone on for years that were expected
to be permitted to continue suddenly became question or
prohibited under OSHA's interpretations.
Those interpretations are so impractical in some cases.
There is divergent enforcement with any regions, across
regions, between federal, OSHA and the states. And in some
cases the best consultant can do is come in and say, ``This is
what I think you should do, but I really can't tell you what
the law requires.''
That is not unusual. That is a reality of a generic
rulemaking process that doesn't get enough input, that doesn't
take into account what is going to happen. And that is a
pervasive problem throughout the United States.
Dr. Cassidy. Mr. Uhlmann, I gather that you have had some
regulatory background, and I saw you nodding your head as Mr.
Halprin spoke to that.
I guess in my mind is it possible to have this tension
between on the one hand, we are going to bust you and throw you
in jail, and on the other hand, we are going to come to give
you good advice to help you discern what these regulations mean
in terms of how to make worker safety, because it is our--
safer--because it is our goal.
So I am just asking you, is it possible to kind of have
that sort of tension exists and still have a working
relationship that would allow that small businesswoman to
modify her equipment appropriately? Do you follow what I am
saying?
Mr. Uhlmann. I do. I mean first of all, the situation that
you asked Mr. Halprin about is not a situation where I think
criminal enforcement would be appropriate. And you don't
prosecute people for criminal violations of the law, and the
law is clear.
Dr. Cassidy. Now, I am a doctor, so I understand--I mean
this--so if I seem a little confused, I am.
But when you speak about willful, when I was reading the
definition of ``willful,'' if somebody had a piece of equipment
which by law was supposed to go into neutral, die, stop, if not
being used, but doesn't do it because it is impractical, that
actually seems like that would make the definition of
``willful'' as I read ``willful.'' Is that correct?
Mr. Uhlmann. Well, I mean ``willful'' generally means that
you know you are doing something that the law forbids. So, you
know, as a doctor I mean, you know, if you had medical wastes,
which you know has the potential to harm other people, I mean
you have got an obligation to handle that waste properly,
right?
Dr. Cassidy. I understand that, but going back to Mr.
Halprin's example where the machine is not put in neutral or
not shut off automatically, that would be a willful disregard
of the law, even though it is impractical to do so. I don't
know the particular situation, so I am just assuming--and you
are nodding your head--so how would you, knowing that the
machine didn't shut off, but the law says it should shut off,
and something bad happened, would that constitute a willful
infraction is a question.
Mr. Uhlmann. Yes, and what I am trying to say is I mean
accidents happen. I mean you are describing an accident, and an
accident is not a willful violation.
Accidents happen, and the ranking member talked about those
accidents happen throughout American life. And they are
unfortunate, and we obviously want to do everything we can to
prevent them. That is not what this is about.
I mean, the issue here is what do we do about those
companies, even if they are the minority of companies? What do
we do about the companies who don't care about the law, don't
care about doing the kinds of things that Mr. Halprin pounces
his clients to do?
How do we deter them? How do we make sure that they meet
their obligations to America's workers?
Dr. Cassidy. So I guess my question, though--I am not sure
I have got it. And agree with what you are saying, obviously,
but my first question was, is it possible to have
simultaneously two different relationships, one in which you
are threatening criminal penalties and the other where you are
seeking a cooperative relationship? Show us where you are
wrong, and we won't bust you, but rather we are going to help
you fix what is wrong. Does that make sense?
Mr. Uhlmann. No, it does. And you know, I think it is a
fair question. It is not a question, of course, in the OSHA
context, right?
Dr. Cassidy. Yes.
Mr. Uhlmann. It is a question across the whole area that we
regulate. And I think we see this across the federal regulatory
programs. You know, every regulatory program that I know about,
there is always that--the effort to reach out and to educate
and to try and get people to follow the law.
That is what we want, right? I mean, you know, I used to
say as a prosecutor that my office existed to put itself out of
business. If we prosecuted enough cases and if EPA did its job
well enough, we wouldn't have any more pollution, no more
crime. We could all go off and do something else with our
lives, you know.
But unfortunately, it is not a perfect world, so I think
you do that education, but you also need to have the ability to
deter violations with strong enforcement in the circumstances
when that is necessary.
Dr. Cassidy. Mr. Halprin, what do your comments to my----
Mr. Halprin. Well, EPA, for example, has a self-audit
policy, where you can in good faith go out, find problems,
disclose them to the agency, reduce the fine substantially, if
not zero, and then go on through a program of fixing them.
OSHA doesn't have a program like that. If you go out and do
an audit, I would venture to say most facilities in the United
States, if you actually did a fine toothcomb audit of every
facility, you would find problems, and you would make a grocery
list.
And then you have no choice but to do a risk assessment and
say which ones need priority to do first, because you can't
possibly fix them all. The resources simply aren't there.
Now you have got this list. If you made a misjudgment, or
despite the fact that you are diligently proceeding through
this list, something goes wrong and somebody gets hurt and in
the worst-case scenario dies, then the agency come back and say
you have a willful violation.
Now, if you have got, let's say, a dust scenario, and you
have been identified having problems, there are some things
that can be done right away. You can make sure that you don't
have accumulations of dust.
On the other hand, retrofitting a whole factory to put
monitoring devices in to see whether a motor is overheating,
putting explosion panels in, designing all those things,
putting suppression systems in--they take time.
Ms. Woolsey. The gentleman's time is complete.
Mr. Andrews?
Mr. Andrews. Thank you, Madam Chairwoman.
Ms. Foster, thank you for your testimony here today. It was
a very difficult thing to do, and you did it eloquently and
very, very well. Thank you.
And to the other families that are representing their loved
ones today, welcome. We are sorry that you are here, but we are
fortunate that you are here to remind us of our
responsibilities. I think Ms. Woolsey has proposed legislation
that would honor the memory of those that you are depicting
here today.
And I wanted, Mr. Halprin, to ask you a couple of specifics
about Ms. Woolsey's legislation.
The first has to do with extending criminal liability when
there has been proof of a willful violation and there has been
serious injury as opposed to just staff, which is the Dominguez
case that we heard about. What is wrong with that? Why
shouldn't we do that?
Mr. Halprin. As I think I explained in my statement, giving
the example if somebody pulls out a gun, aims it at somebody
and shoots him intentionally, clearly that is a horrible crime,
whether they killed him or whether they wounded them.
Mr. Andrews. Yes.
Mr. Halprin. Now, using that as an example and looking for
equivalents, when you can find a crime along those lines, I
have no problem increasing penalties.
Mr. Andrews. Well but if somebody pulls out a gun and aims
it at someone and shoots them and they just maim them and don't
kill them, it is a criminal offense.
Mr. Halprin. Correct.
Mr. Andrews. But what happened to Mr. Dominguez was not a
criminal offense, because he didn't die. Shouldn't we fix that
to make it fit your analogy?
Mr. Halprin. I am suggesting that there is an area there
that needs to be looked at. My concern----
Mr. Andrews. Well, we are looking at it. Do you favor or
oppose that provision?
Mr. Halprin. The broad definition of willful violations
right now is too broad to penalize----
Mr. Andrews. Not the issue.
Mr. Halprin [continuing]. At the level----
Mr. Andrews. That is not the issue. The issue is if you
have a finding of a willful violation by jury, which we had
here----
Mr. Halprin. My point is the definition of----
Mr. Andrews. But should someone get off the hook because
the person survived and they didn't die? That is the issue.
Mr. Halprin. But that is not my point. My point is the
definition of ``willful'' is quite now too broad to penalize
people at that level you are talking about.
Mr. Andrews. How is it too broad, by the way? Tell me how
the definition of ``willful'' is too broad.
Mr. Halprin. I gave you an example. If you have somebody
that conducts an audit in good faith and doesn't fix a
particular problem in time and something goes amiss, I don't
see that person as in a sense in the moral situation that they
would be subjected to----
Mr. Andrews. With all due respect, the definition of
``willful'' is a little more specific than that. They would
have to have done the audit, known that there was a violation,
and intentionally choose to ignore the violation, which would
then have to result in the death of a person.
Mr. Halprin. No, no. It doesn't mean intentionally ignore.
It means they didn't fix it in time.
Mr. Andrews. I disagree with that interpretation. Can you
give me a case where someone has been found a willful violator
under those facts, where they didn't intentionally choose to
ignore it; they just didn't fix it in time?
Give us some cases that say that.
Mr. Halprin. I would have to go do the research and find
it.
Mr. Andrews. I wish you would. And we will hold the record
open for the committee to take a look at that. But I think that
mistakes what ``willful'' means.
I mean, do you agree in the Dominguez case that the facts
establish a willful violation?
Mr. Halprin. Is Dominguez the case where people were sent
into the confined space?
Mr. Andrews. Yes.
Mr. Halprin. From everything I have heard, and I would like
to look at the file, it certainly sounds like it.
Mr. Andrews. Oh, yes. Here are the facts there, that the
gentleman was told to go into the steel tank and clean cyanide
waste material. He gets very sick, not surprising. The
firefighters arrive. They ask the employer's representative
what was in the tank. They say it is just mud.
The doctor then examines Mr. Dominguez at the hospital,
calls the proprietor of the business and says, ``Is there any
possibility of any cyanide in the tank?'' He knows there is and
says, ``No,'' willfully. And then he gets a permit and
backdates it to show that he had the permit to get this thing
done. That sounds pretty willful to me.
Mr. Halprin. Right.
Mr. Andrews. Now, that wasn't a crime, because Mr.
Dominguez didn't die. Do you think it should be criminal? Do
you think it should be criminal, as Ms. Woolsey's bill says,
because he was just seriously injured and did not die?
Mr. Halprin. I think that is close enough to taking a gun
out and shooting somebody. That should be a crime.
Mr. Andrews. Is that a yes?
Mr. Halprin. Yes.
Mr. Andrews. Good.
So he agrees with part of your bill, Ms. Woolsey. We
appreciate that.
How about the provision that says that we should update the
fines? You know, presently for a violation of the South Pacific
Tuna Act, it is a $325,000 fine. But a willful violation that
kills a human being in the workplace is $70,000. Do you think
we should update that fine?
Mr. Halprin. A willful violation that results in criminal
conviction is subject to $250,000 for the first violation and
$500,000 for the second under current law.
Mr. Andrews. Do you think we should update those? Do you
think we should equate it with the Tuna Act?
Mr. Halprin. I don't have opinion on that one right now.
Mr. Andrews. Could you keep the record open and give us
your opinion whether we should equate tunas and humans on that
scale?
Mr. Halprin. I would also like to say that the fact that
some environmental crimes or other crimes are sanctioned at the
levels they are doesn't mean those numbers are correct.
Morally, they may be too high, but that is the issue you are
raising.
Mr. Andrews. Okay. We would welcome--if that is your
conclusion, we would welcome those.
I think my time has expired, Ms. Woolsey, but it looks like
Mr. Uhlmann wanted to jump into the fray here.
Ms. Woolsey. Thank you, Mr. Andrews.
Mr. Price?
Dr. Price. Thank you, Madam Chair, very much.
Ms. Foster, our heart and our prayers go out to you and the
tragedy that you suffered in your family. And I want to, on
behalf of those of us on the panel, thank you so very much for
coming today and sharing that with us. And there is an
emotional issue. And it is because lives and livelihood are at
stake.
And for all of the folks who attended today because of a
tragedy in the workplace, we extend our thoughts and prayers to
you and your family.
Because it is emotional, sometimes Congress, when it acts
in emotional ways, draws the wrong conclusions and makes the
wrong laws. So I think it is important that we all talk about
facts in the workplace.
My understanding, not to minimize anybody's tragedy in
their own lives and in their own family, but my understanding
is that from 1994 that in fact workplace fatalities, the rate
of workplace fatalities, has decreased from 5.3 per 100,000
FTEs to 3.9 per hundred thousand FTEs.
Now, something caused that. I don't know what it was, but I
think it is important that as we look at the rules that we
currently have in place and the outliers that exists, that
maybe it is the outliers we ought to be looking at, as opposed
to a broad brush for everybody. But I will get to that in just
a moment.
The workplace injury and illness rate from 1990 to 2006
also shows similar trends, so something is happening in our
society that is making it so there are fewer deaths on the job,
and there are fewer injuries and illnesses on the job.
And that is a good thing. And we ought to congratulate
those who have been working in that area and hold them up as
champions for our nation and for workers.
We have talked a lot about the willful violations, and it
is my understanding, Mr. Halprin--correct me if I am wrong--
that it is my understanding there is no statutory definition of
``willful.'' Is that correct?
Mr. Halprin. It generally developed through case law rather
than statutory language, yes.
Dr. Price. And you would agree with that, Mr. Uhlmann?
There is no statutory definition of ``willful?''
Mr. Uhlmann. That is correct.
Dr. Price. My sense is that given this debate here this
morning about what is willful and don't you believe this is
willful and shouldn't this have been willful, that a definition
of ``willful'' would be helpful, would it not, Mr. Halprin?
Mr. Halprin. Yes.
Dr. Price. Mr. Uhlmann, do you agree?
Mr. Uhlmann. I agree Congress on the definition of
``willful'' would be helpful----
Dr. Price. Would be helpful.
Mr. Uhlmann [continuing]. Although, you know, the committee
should be aware that the willful standard is a much higher
standard, contrary to what Mr. Halprin is saying. It is a much
higher standard than under almost every other federal criminal
law.
Dr. Price. But a definition would be helpful.
Ms. Seminario, do you believe that a definition would be
helpful?
Ms. Seminario. A definition may be helpful. You have under
the OSHA Act willful violations for civil purposes.
Ms. Woolsey. You need to turn on your microphone.
Ms. Seminario. You also have actions under criminal codes
for criminal willful. I am not a lawyer, but I think looking at
those, and I am not sure that they----
Dr. Price. No, but you are playing one right now, and so
are we, so----
Mr. Halprin. My understanding is they are the same. The
only difference is proof beyond a reasonable doubt.
Dr. Price. All right. My sense is that a definition would
be helpful, and we are interested in working with the majority
on trying to come up with a definition, because I think that
would be very, very wise for us as move forward.
Mr. Halprin, I would like to address these charts, if you
will, that there has been a decrease in the incidents of
mortality, a decrease in the incidents of injury and illness on
the job.
Is that the best way to determine whether or not our
current rules are working, or are there other measures? Is the
number of penalties appropriate to look at or fine? What is the
best monitor of whether or not we are making progress?
Mr. Halprin. A proactive safety person will tell you that
they would rather look at some leading indicators instead of
what you are looking at, which is lagging indicators.
However, I do think when you are trying to look for
something objective, how many times you have a safety meeting
and how many times you have a training program are not really
objective enough to be helpful, and therefore lagging
indicators are still the best indication. There is dispute
about whether they are fully accurate.
However, despite those arguments, I have seen no evidence
whatsoever there is any difference in the level of accuracy
between what they were in 1992 and 2007. There is no evidence
that employers are any less responsible or any less truthful
now than they were 10 or 20 years ago. So where there may be
some inaccuracies, overall I think this trend best demonstrates
the fact that overall the program is successful.
Dr. Price. Thank you.
Thank you, Madame Chair. My time has expired.
Ms. Seminario. May I just have a comment on that? I would
say per fatality data is pretty good, because in 1992 we went
to a census of fatal injuries which go beyond employer reports,
and so it is actually a pretty accurate number.
When it comes to workplace injuries, that is all based on
employer reports. And they are I would disagree, because there
has been a lot of activity in the workplace, which puts a lot
of pressure on the reporting of injuries by workers.
There is a lot more focus using that number, the lost work
to injury rate, as an indicator of performance, which ends up
actually injuries not being reported. So I would say on the
injury side that the numbers are not so good.
When you look at workplace that is and you look at what is
killing workers, one of the areas, or two of the areas where
there had been significant decreases since 1992 are in the area
of the rates of fatal injuries for over the road transportation
incidents.
When you look at some of the other factors, the other
causes, such as people being caught in machinery, explosions,
you don't see the same kind of decrease. So you have to look
beyond the overall number and look at what is killing workers
and looking to measures that can address those particular
causes.
So yes, we have made progress, but we have a lot of work to
do. And the OSHA Act isn't quite up to the task.
Dr. Price. If I may, Madame Chair, in response to that, do
you see anything in the current law that is looking at those
specific pieces of information?
Ms. Seminario. In the current law I would say----
Dr. Price. In the proposed----
Ms. Seminario. In the current proposal, what the proposal
attempts to do is to bring the level of enforcement to a level
where it would----
Dr. Price. But not looking at the specific injuries that
you just talked about.
Ms. Seminario. Well, it is looking at outcomes.
Dr. Price. Right, but not the specific----
Ms. Seminario. And so yes, it is focusing on those things
that are killing workers, those things that are seriously
injuring them, and so it is focusing very much on the issues
that you said we should be focusing on, which are the serious
incidents, yes.
Dr. Price. Thank you.
Ms. Woolsey. Thank you.
Ms. McCarthy?
Mrs. McCarthy. Thank you. And thank you for your work on
your legislation.
I have been sitting on this committee for 13 years, and so
that means we have had probably 13 to 15 hearings on OSHA. And
I am hearing the same arguments that I heard 13 years ago.
Now, certainly I believe that OSHA has a part on trying to
educate the employers to keep their workers phase, but the most
recent that we have on death is from 2007, and we have 5,657
workers that have died.
Then if you bring up the injuries and illness, it is
estimated to cost $145 billion to $290 billion a year to treat
those workers. And as far as the work injuries that are
reported, most--all agree that they are underreported, so you
are still looking at between 8 million and 12 million injuries
and illnesses a year.
I think it is time for an improvement.
Mr. Uhlmann, in your testimony I think that one of the best
ways that we can explain why we are trying to do what we are
trying to do and what Ms. Woolsey is trying to do, on page 7
you talk about the McWane case and how many violations that
company had over the years and how many people actually still
continued to die.
On that particular case, you actually prosecuted. And with
that you were able to get jail time for those, because it was a
criminal offense. But in your testimony you also say that you,
when you were working for the Justice Department, could not do
it every case, only if it is--I am not a lawyer--only if the
prosecutors speak volumes about the role of strong criminal
programs promoting work safety.
I think that is why we are here and trying to make a
difference. So if, Mr. Uhlmann, if you could expand on what you
have done over the years and why we need to do something, I
would appreciate it.
Mr. Uhlmann. Thank you, Congresswoman.
Well, the McWane case is a classic example of the problem
that we are talking about today. McWane is one of the largest
pipe manufacturing companies in the world. It is a very
dangerous business. It is a business where a strong safety
program, I think everyone would agree, is particularly
important.
And McWane was a company that a facility, across facility
to facilities, was violating worker safety laws, was lying to
OSHA inspectors, was hiding information, was concealing
injuries.
And you know, they would get an occasional citation from
OSHA, and they would pay fees, you know, $1,000, $2,000 fines.
And it did nothing to deter the corporate officials and McWane,
did nothing to change their behavior.
What change behavior at McWane was the New York Times and
Frontline ran an expose about how many people were injured and
killed at McWane facilities. We use that information at the
Justice Department to develop criminal cases against McWane at
five facilities across the United States.
Those criminal cases were brought under the environmental
laws. Those criminal cases were brought under Title 18, which
is the general criminal code. And those cases resulted in
millions of dollars in fines and years of jail time, and the
plane is now a poster child for change.
You know, Frontline has done a follow-up piece talking
about where they interviewed people at McWane, who talked about
the new McWane and talked about all the money they are now
spending on compliance. They have got former OSHA
administrators advising them about how to do things the right
way.
And you know, I don't know whether McWane has changed in
every way that it said that they have changed, but what I said
in the testimony is I think it is an example of how, you know,
if you have got a strong criminal program, if you have got
strong deterrents in place, you can push companies to change.
But you know, frankly, if McWane hadn't been violating the
environmental laws at the same time they were violating the
worker safety laws, my old office couldn't have done anything
about it.
And I don't think a misdemeanor--a bunch of misdemeanor
prosecutions with, you know, even with the $250,000 fine that
Mr. Halprin described, I don't think that would have changed
the McWane.
Mrs. McCarthy. And McWane is still in business.
Mr. Uhlmann. They are still in business, and they are still
one of the largest pipe manufacturing companies in the world.
Mrs. McCarthy. So it didn't seem to hurt them that much.
Mr. Uhlmann. No, not from a profitability standpoint or
from being able to, you know, be an employer. I think they are
a better employer today. You know, I think we want companies in
America to be employing our citizens in jobs that are safe.
Mrs. McCarthy. But I mean that is a whole part of OSHA, to
make the--where our workers were to be safe, and in the end
hopefully not costing all of us, because to be very honest with
you, if we are spending billions of dollars on health care for
those that have been injured, and sickness, we--every one of
us, the taxpayers--are paying for that.
Mr. Uhlmann. You are correct.
Mrs. McCarthy. Thank you.
Ms. Woolsey. Mr. Hare?
Mr. Hare. Thank you, Madam Chairman.
I hardly know where to begin here today.
Mr. Halprin, you mentioned in your testimony--I might have
been taken the notes too fast--that you believe that there are
very effective penalties. I am wondering in the case of Ms.
Foster's son if you think that penalty was effective.
Mr. Halprin. Do I think that penalty was----
Mr. Hare. Effective. You said we have effective penalties
on companies. Do you think--would you say that the penalty, if
I am correct was down to $2,250, would you classify that as an
effective penalty on that company?
Mr. Halprin. I am very sympathetic to that case and all the
others we have talked about. I would like to think that most of
them are outliers. I don't think it is fair without a full
record to actually comment on what happened. What happened to
sounds terrible, maybe outrageous, but I don't know the facts.
Mr. Hare. Well, I think----
Mr. Halprin. One thing I think----
Mr. Hare. Let me be very candid, Mr. Halprin. I think what
you are doing, from my perspective, is I think you are--you
know, you say that penalties are effective, and then we ask you
is the $2,250 for this young man's life and you need the facts.
The fact is, from what I am hearing, they altered the
machinery. And let me tell you what my position is on this.
Whoever altered that machinery is responsible for this young
man dying. And not only should they pay a fine, because I don't
know what type of a price you could put on taking somebody's
life, which is what they did, but they ought to go to jail, and
they ought to go to jail for a long time.
So I would thoroughly disagree with the effectiveness of
this.
The other thing, too, is you have other companies, and they
seem--Eleazar Torres-Gomez worked for Cintas. He was dragged
into a dryer. This is a company that is probably one of the
most lawbreaking companies we have in this nation.
They sent a letter to the widow--I met his son--that they
thought Mr. Gomez--first of all, they tried to imply that he
threw himself into the dryer to commit suicide. And second of
all, after that when that didn't work, that he was basically
too dumb to operate the equipment. And finally, after that
didn't work, they said, ``Well, maybe we should do it.''
Now, here is a company who has been fined several million
dollars, and they are loaded, and they just pay the fine and
keep on going down the road, and they don't improve the
companies.
Now, I have tremendous respect for the ranking member, but
when he says we are playing ``Gotcha'' here, maybe that is what
we ought to do. If these companies are going to willfully
continue to do this, then I think what we have to do is we have
to have an agency that has teeth. And it ought to really clamp
down.
I don't have graphs, as my friend Mr. Price had, but I have
seen the pictures of these people. And 15 people a day every
day in this nation are dying. And as Mr. Uhlmann says, when the
penalty is stiffer for shooting a deer and taking it across the
state line than it is for taking the life of somebody, there is
something fundamentally wrong here--fundamentally wrong.
And Ms. Woolsey's bill and a bill that I put in yesterday,
part of this thing--we get the numbers--they don't even have to
report them. And I don't care how big the Corporation is, and I
don't care how small they are. Yes, accidents will happen, but
I think fundamentally people have a right to be able to go to
their jobs every day and expect to come home to their families.
When you alter the equipment, as Cintas did, and in Ms.
Foster's case with their son--you know, I don't understand
this.
And I guess what I want to know, Mr. Uhlmann, from you is
what are we really going to do here? I mean, I honestly think
that when companies like Cintas are more--they will pay the
fine, and they will allow people--and they still by the way
have belts out there that don't have these devices on them in
five states.
So we are just waiting for another person to be harmed,
either killed or maimed. And what do we do with companies that
basically thumb their nose at the law and say, ``Well, I will
pay the fine and I will just keep making the profits?''
Mr. Uhlmann. Well, congressman, accidents waiting for a
place to happen are not accidents, and companies who
continuously violate the law and continuously placed their
workers at risk, if we want to stop them from doing that, the
people who run those companies have to fear that they may go to
jail.
It may be exactly the situation you described. What the
thought process has to be in that corporate official has to be
not, ``Well, if we continue to do things this way, we might
have to pay a penalty of a few thousand dollars, but we can
afford that.''
The thought process has to be, ``If we keep doing this, and
I keep letting this happen at my company, I could go to jail.''
And that changes behavior more than anything else we could do.
So make that a credible threat.
Make it a credible threat that the corporate officials, who
are responsible for these kind of violations occurring, could
go to jail, the same way we do under all the rest of our
regulatory laws. That will start to make some change.
But of course, you can't--that isn't going to happen, if
the penalties are just misdemeanors, if they only apply to
willful violations involving death, and if we only clear that
individuals can be prosecuted under the OSHA Act for these kind
of violations.
Mr. Hare. Well, I just--I know my time is up.
Ms. Foster, I would just tell you this. For two people to
come to the door and express their condolences and they never
see them again, the next time you see people like that, you
ought to see them in the jail. And that is how they ought to
get visited.
Ms. Foster. Thank you. I agree.
Mr. Hare. You are welcome.
Ms. Woolsey. Mr. Kucinich?
Mr. Kucinich. Thank you, Madam Chair.
First of all, I want to thank Mr. Miller for calling this
hearing.
And you know, I think we have to be aware of the
capabilities of existing law here, and I would like a response
from the AFL-CIO on this. Currently, OSHA under the statute can
refer a case to the Department of Justice, isn't that right?
Ms. Seminario. It can refer a case if there is a willful
violation that results in the death of a worker.
Mr. Kucinich. Do you know how many cases have been referred
to the Department of Justice?
Ms. Seminario. I believe that there the number is 170.
Mr. Kucinich. Could you speak to the mic?
Ms. Seminario. I think it is 171 over the----
Mr. Uhlmann. Twelve last year, 10 the year, 12 the year
before that, 10, 10--you can go down----
Ms. Seminario. Right.
Mr. Kucinich. And do you know the disposition of those
cases? Has anyone whose corporation was responsible for the
death of a worker ever served jail time? How much time?
Ms. Seminario. In the entire history of OSHA, there have
only been 71 cases that have been prosecuted, resulting in 42
months of jail time over 39 years.
Mr. Kucinich. And how many workers are--isn't it true that
there are about 5,680 workplace deaths each year?
Ms. Seminario. There were last year. Since the OSHA Act was
passed, about 350,000 workers have lost their lives due to
traumatic injuries.
Mr. Kucinich. Okay, 350,000 you are saying?
Ms. Seminario. 1970.
Mr. Kucinich. And how many people were prosecuted?
Ms. Seminario. There were only 71 cases that were
prosecuted.
Mr. Kucinich. And how many people were convicted or sent to
jail?
Ms. Seminario. Last year there were 71 cases where they
were prosecuted and 42 months of total jail time.
Mr. Kucinich. How many?
Ms. Seminario. There were 42 months of total jail time. I
can get you the number----
Mr. Kucinich. Right.
Ms. Seminario [continuing]. Number of people, but only 42
months of jail time.
Mr. Kucinich. You know, when you look at state statutes for
manslaughter, let us say you had 100,000 cases of manslaughter
nationally, and there were only a few dozen prosecuted, people
would start to ask questions about what is wrong with the law.
Now, for some reason workplace safety has not achieved a
level of consistent morality in our society alongside of the
rights of people who are just going along and minding their own
business who suddenly find themselves in a adverse position
across their life.
Why do you suppose that the safety of workers and the
responsibility of employers has taken such a low level of
concern in our society, both legally and morally? Why do you
suppose that is?
Ms. Seminario. I think that is an excellent question, and
it really is one that is hard to answer.
It is an anathema to me as to why, 40 years after the OSHA
law was passed, that we are sitting here today having a
discussion as to whether or not to have the penalties for
violations of the OSHA law that resulted in death or serious
injury to be equivalent to the way they are treated as
environmental laws and other laws that protect wildlife.
You know, I don't know. I mean, once----
Mr. Kucinich. Is it because they are considered accidents?
Ms. Seminario. It may be that they are considered
accidents, but there would be----
Mr. Kucinich. But let me ask you this. Is it an accident if
an employer fails to provide safety equipment?
Ms. Seminario. No.
Mr. Kucinich. And is it an accident if there are not
sufficient workers to safely perform a task?
Ms. Seminario. No. No, it is----
Mr. Kucinich. Without objection, I would like to include
into the record an article that was written by Leo Gerard, the
president of the Steelworkers, who has adequately described
this dilemma over the lack of adequate dedication to workplace
safety in our country.
Now, I think that I am hopeful that either in this
committee or another committee, we will have OSHA in front of
us, because what I would like to hear OSHA saying is that they
are going to refer more cases to the Department of Justice.
And we also need to have the attorney general in here to
indicate how seriously he will take referrals to the Department
of Justice, because it is not as if you don't have a legal
structure available to be able to pursue prosecution. It is
that we have an attitude about workers that they are somehow
less than, let us say, a corporate executive.
There is really a two-class society here when it comes to
the concerns of workers and the concerns of corporate
executives. And it is becoming more and more apparent here.
You know, you can look--Madam Chair and members of the
committee, think about this. All this money that is going to
bail out Wall Street, and unemployment keeps increasing, I mean
these kind of disparities reflect a greater problem in our
culture, and the point that the AFL-CIO makes here, is that,
you know, workplace safety, which should be a basic right, is
not.
And the people who are responsible for creating that
dilemma are making a profit on the adverse conditions that
workers have to function under.
Ms. Woolsey. If the gentleman hadn't taken a breath, I
would have said without objection to your entering into the
record. So thank you, Mr. Kucinich.
Mr. Kucinich. Thank you. I just know that, you know, our
committee----
Ms. Woolsey. Your time, sir, has----
Mr. Kucinich. In other words, they are going to have to do
more on this, and----
Ms. Woolsey [continuing]. Has expired. Thank you.
Mr. Kucinich. Thank you.
Mr. Uhlmann. Congresswoman, I don't want to extend this
unnecessarily, but one point should be clear here. I mean, the
congressman may be right about the disparity in terms of how we
treat our workers, but the laws aren't on the books right now,
and the Justice Department can be as committed as you want them
to be and as I want them to be too worker safety cases, but if
they are just misdemeanors, you are not going to see the
prosecutions. I can guarantee that.
Ms. Woolsey. Okay. Thank you, Mr. Uhlmann.
I will yield myself 5 minutes.
Ms. Foster, your loss is so sad and the way your family,
and the way Jeremy's death was treated by his employer was
appalling. Have you seen any change in the safety and health
conditions for Ola Sawmills since Jeremy's death and since that
ridiculously low fine?
Ms. Foster. No, ma'am. I am not aware of any changes that
have been made. I am aware that there was another accident
there just last September that resulted in the amputation of a
young man's leg. Although this injury was not accounted for,
because it was just one injury, you won't see it on record
anywhere or in anyone's statistics.
Ms. Woolsey. Was that from the same piece of equipment?
Ms. Foster. Not the same piece of equipment, as I am
saying----
Ms. Woolsey. But the same employer.
Ms. Foster [continuing]. But it is the same location, the
same place. And I feel like it is still an unsafe environment.
Ms. Woolsey. Well you have a family bill of rights idea
that you have suggested that employers be required to take into
consideration. Would you like to tell us what you would want to
do to keep families involved?
Ms. Foster. In a case like ours, if the company had only
treated us like human beings, you know, if they had had a
little bit of consideration for us, you know, keep us involved.
The company did not tell us how my stepson was killed. It
was a coroner that told us. The company--you know, they had no
involvement with us. They walked away from us. They ran away
from us. They wanted nothing to do with us.
So I think they just have to be accountable, held
accountable for what they have done. They have got to stand up
and say, you know, we did this. We need to do something to
help.
Ms. Woolsey. Okay. Thank you very much.
Ms. Seminario, do you trust OSHA reporting the system that
we have in place now with, I mean, lack of emphasis, 30-year-
old procedures, shortage of employees. Oh, listen to me. I am
leading you, aren't I?
But I mean at that end, aren't near misses recorded and
reported now?
Ms. Seminario. No. What ends up coming on the OSHA log,
which ends up in the injury statistics, are those cases which
results in medical treatment. Those are the cases that end up
on the OSHA log and get into the statistics. Near misses don't
end up in the log.
What gets reported to OSHA, however, in terms of particular
incidents are only those cases that result in three or more
hospitalizations or worker death. And so if you have a case
where you have a worker that is hospitalized, a single worker,
that is not required to be reported to OSHA, so there is no
immediate action that is taken, you know, by the agency.
And as far as the injury statistics themselves that were
talked about, there have been reason studies that compare
workers' compensation records was what is on the OSHA log and
other sources of information, and what they have found in at
least seven states where those detailed comparisons have been
made, that the OSHA log is underreporting injuries by one-third
or two-thirds.
And so there are two to three times as many workplace
injuries occurring as there were being reported on the log and
recorded in the overall statistics.
Ms. Woolsey. Okay. Thank you very much.
Mr. Halprin, you mentioned that we couldn't have a
foolproof, failsafe system. So how would you look at Ms.
Foster's situation with her stepson? How does that stack up, as
far as you are concerned?
I mean, the equipment was modified. They didn't have the
safety guard. Was that a misunderstanding? Was that a mistake?
What common sense--you know, everybody who knows anything knows
that that shouldn't have happened; therefore----
I mean, how would you handle that and prosecute it?
Mr. Halprin. I would have done a full investigation. Now,
the gentleman unfortunately is part of the temporary workforce.
One of the problems in this country, especially the economic
times, is that temporaries frequently are brought into a site,
don't have the background that a regular worker would have.
There are obligations that temporary employers are supposed to
provide----
Ms. Woolsey. Well, yes. Whose responsibility is it--the
temporary worker or the employer on this one?
Mr. Halprin. Definitely both.
Ms. Woolsey. No way. It is the employer.
Mr. Halprin. The temporary worker--the employer is supposed
to provide information if the employee is subject to the day-
to-day supervision of the host employer. The host employer is
also responsible.
The question is clearly the equipment is modified. Somebody
needs to take into account whether there is going to be
exposure to it. I don't know whether that person was injured,
killed unfortunately, and I feel for that person, was supposed
to be in that area, what instructions they had, whether they
had the right equipment on. Something obviously went wrong, and
there should be some clear lines.
Probably what OSHA needs, for example, is a machine
guarding standard that clearly says if you have anything but a
smooth bore, it needs to be guarded. By the time you go through
thousands of pages of regulations, things get lost.
I think that particular case, it is obvious. It should have
been done, but----
Ms. Woolsey. All right. It should have been done, and yes
indeed, we do have machine guarding regulations. That is one of
the things we have.
Mr. Halprin. The question is why the person was there, and
everything else that goes along with it. And I just think we
are taking particular cases that were tragic, and we don't know
enough about them to say for sure in those cases what went
wrong and what happened.
Ms. Woolsey. Okay. Thank you so much.
And my time is up, but I am going to ask Mr. Uhlmann if--
the record is going to remain open, and I would really
appreciate it if you would comment on where PAWA can be
strengthened. If you would, I would so appreciate your insight.
And yes, of course, we would like to talk to in person about
it, too.
Ms. Titus?
Ms. Titus. Thank you very much.
I appreciate the panel's testimony. You certainly made a
compelling case for the need to strengthen the OSHA
requirements, both in terms of the plan and to the enforcement.
But I would like to ask an additional question about the
problems created in those 20, 21 states that run their own OSHA
program, because with the exception of maybe Washington and
California, states may not be enforcing the plan that is
supposed to be as effective as the federal level.
And I know that is certainly the case in Nevada. You heard
the chairman mention, and I believe you reference this, Ms.
Seminario, in your written testimony about the Las Vegas
Pulitzer Prize winning story about nine deaths that occurred at
construction sites run by one big construction company along
the Las Vegas strip, where work occurs 24 hours a day, and the
economy and time become more important than safety.
Let me just give you a few facts about Nevada OSHA, and
then I want you to tell me what we can do to be sure that the
states are doing a good job when they run their own program.
In Nevada, OSHA is under the Department of Business and
Industry. It is headed by a person appointed by the governor.
That person has intervened in at least one case to reduce
penalties for a company that is known as a big donor of the
governor. The budget in the state is always too low, and the
office is understaffed, so the enforcement is dreadful.
If we fix the law at the federal level, how are we going to
be sure that at the state level it gets enforced as well?
Ms. Seminario. That is a very good question. As you point
out, under the OSHA law, states have the ability to run their
own state OSHA plans. Under the law they are supposed to be as
effective as the federal government, and federal OSHA has got
the responsibility to monitor those plans to see that they are.
One of the things that has happened over time is that the
agency has not really kept up with the monitoring of plans.
They did a better job of it when the plans were being developed
in the earlier years, but since the plans have been certified
as being final, essentially that oversight does not take place.
And so again, you point out the problems in Nevada. There
are problems in Indiana. There are problems in South Carolina.
There are problems in a lot of states.
And one of the things that I think that the committee needs
to do is to look at the whole issue of state plans--some are
very, very good and have done exceptional work--and to take a
look at what is going on and the fact that we do have this real
differential in protection.
But federal OSHA is supposed to be monitoring. It is
supposed to be looking at what is going on. But under the law
if there are problems, essentially there aren't many options.
And what the federal government can do is to move to
withdraw the plan. They have only done that in very, very rare
circumstances. But clearly they need to be doing the oversight
in trying to move the plans to be as effective as the federal
government.
With the Protecting America's Workers Act, the state plans
will be required to adopt provisions and there are laws that
are at least as effective, and if they don't, the jurisdiction
would revert back to the federal government. So there is a
requirement that they come up to the same standards that is in
the legislation that is being proposed.
Ms. Titus. I just worry about the politics at the different
state levels and the funding at the different state levels so
that we are ensuring that the plan that may look great is
really enforced.
Mr. Uhlmann. You know, this is an issue not just for worker
safety law. I mean many of our federal regulatory programs are
implemented by the state, and the lead role in inspections and
enforcement is done by the states.
What we can do under the OSHA Act--and you know, if the
current version of the Act doesn't provide this authority, it
is authority that can be provided; it wasn't one of the
suggestions that I had in mind when I said I thought there were
ways the Act could be strengthened, but this could be another
way--is we could make clear that the federal government has the
ability to bring enforcement actions when the states don't.
And that is what happens under the--environmental laws are
what I know best because of my background, but when a state
doesn't bring an action under state environmental laws, the
federal government, the Justice Department, can bring either a
civil penalty action, or they can bring a criminal case, if
criminal prosecution is warranted, even though it is a program
that is run by the state.
Now, I don't know that we can do--whether the current
version of the OSHA Act allows that, but that is something that
amendments to the Act could consider. You know, something else
that amendments to the act could consider, that we do under
other laws, is that we let citizens bring suit.
You know, if the government falls down on its job, and you
know I was a public servant for 17 years, so I hate to say that
the federal government and state governments sometimes fall
down on the job, but it is probably no shock to anyone in this
room that that sometimes happens--you know, it is not a bad
idea to let citizens bring suit in appropriate circumstances
when the government doesn't do its job.
So I mean there are ways we can get at this problem of weak
state enforcement. It is not unique to this scenario you
describe in Nevada, and it is not unique to the worker safety
laws.
Ms. Titus. Thank you.
Ms. Woolsey. Thank you.
Mr. Holt?
Mr. Holt. Thank you, Madam Chair.
OSHA, of course, is landmark legislation. I mean it was for
decades after legislation about hiring and firing workers that
we got around to protecting the workplace safety.
And I am always pleased to extol the work of New Jersey's
own Senator Williams in passing the OSHA legislation. And I
often point out that there are hundreds of thousands of people
alive today, who don't know who they are, thanks to the work of
Senator Williams and the others for the OSHA legislation, and
millions more who have their limbs and lungs and health because
of OSHA.
But OSHA has been a learning process. You know, we went
from a time of worker beware and no standards to voluntary
compliance and rather weak sanctions so that OSHA compliance
becomes a cost of doing business.
Now we are looking at Ms. Woolsey's legislation that would
raise the value of life and limb, and it is appropriate we look
at that. But if we want to make sure that were not demeaning
the value of workers and their lives, criminal prosecution is
something that we really should consider to make sure that
workers are--you get the protection they deserve.
We need to a lot of other things though, too, as we evolve
towards better protection in the workplace. We need more
research in setting the standards, and of course, funding for
inspectors and better reporting.
I would like to turn to--and I guess it would be to Ms.
Seminario--to one particular matter of workplace protection,
where we have not kept up with the times.
Nearly 4 years ago in November 2005, the Department of
Health and Human Services issued its pandemic influenza plan.
Now, you may have heard on the news there is some concern right
now about influenza pandemics. This report said, well, this
plan's infection control provisions were really pretty weak.
And despite that, when petitioned by the AFL-CIO and other
representatives of workers to issue standards to protect health
care workers and responders in the event of a pandemic, OSHA
denied the petition, claiming that, well, an emergency standard
wasn't necessary, because there wasn't an emergency. No
influenza virus epidemic or pandemic existed at that time.
So instead of issuing a standard, the Department of Labor
decides it to rely on guidelines, recommendations. The
guidelines are only advisory. And yet a survey by the AFL-CIO,
I understand, has found that a third of facilities are not
adequately prepared to protect health care workers in the event
of an influenza pandemic.
Forty-three percent of the survey respondents believe that
most or some of their fellow workers would stay at home,
presumably with some harm to the general public.
How do we bring the standard up to date? What should we be
doing for the sake of the general public, but for the sake of
the health care workers?
Ms. Seminario. Well, this is an area which obviously there
is much focus on because of reports out of Mexico with a large
number of fatalities that we are seeing.
We think OSHA needs to act. The state of California is
actually moving in this area, once again leading the way. It is
not just this particular strain of swine flu or concerns about
avian flu. We have regular influenza that puts workers at risk.
The state of California has been moving to develop a
standard on airborne transmissible diseases and is actually
close to completing that rule. Hopefully, within the next few
weeks it will actually be adopted as a legally enforceable rule
in the state of California.
And we think it is actually a pretty good rule, and it is
something that federal OSHA could look to immediately as a
model and take action on.
You are right. They did put out guidelines, but from the
survey that was done by the unions through their local union to
steps being taken in health care facilities, in a large number
of health care facilities nothing has been done.
And so I think it is something that we need to focus on,
and we need to focus on now, because we indeed are facing the
potential of some very significant potential exposures, and the
workers on the frontline----
Mr. Holt. If I might politely correct you, I think not now,
but last year.
Ms. Seminario. Last year. Exactly. Exactly. And just to be
clear, the point of our petition wasn't--was basically said
that we would be prepared, because when you are in that
situation facing a pandemic, it is too late, right?
Mr. Holt. Thank you.
Ms. Woolsey. Thank you very much.
Mrs. Davis?
Mrs. Davis. Thank you, Madam Chair.
Thank you to all of you. I am sorry I missed a part of the
discussion, but I am not sure that you have had a chance to
take a look at this particular issue.
And, Mr. Uhlmann, I understand since you were at the
Department of Justice, it appears that there aren't a lot of
cases that go from OSHA to the Department of Justice. Is that
true? And why is that? I mean, what do you think is going on in
that there aren't many referred?
Mr. Uhlmann. Yes, very few referrals. I think Ms. Seminario
testified earlier this morning that in the nearly 40 years that
the OSHA Act has been law, there has been only 71 criminal
cases prosecuted. And the numbers sent each year is very small.
You know, certainly part of the issue is that OSHA needs to
serve up more cases. I mean OSHA needs to view the criminal
sanction as one that is appropriate more often--certainly more
often than twice a year for 40 years.
So you know, I think there is some responsibility within
OSHA, but to be fair to OSHA, you know, they could send 100
cases a year to the Justice Department, seeking misdemeanor
prosecution for worker violations that resulted in death, and
they are not going to see many prosecutions.
And the Justice Department is, you know, like--like
everyone else in the country, they have got--they have got a
lot on their plate, and they focus on felony cases.
And I know I may be sounding a bit like a broken record,
but this is true in--across prosecuting offices. I was a
prosecutor for 17 years. Prosecutors--it is their mantra. They
prosecute felonies.
And, you know, really we tell them to prosecute felonies.
Those other crimes that we are telling them are the ones we
think are the most serious. Congress is telling them that. That
is where they focus their limited resources.
So even if we saw a lot more referrals to the department, I
don't think we will see a lot more in the way of prosecution
until we do something about the fact that these crimes are just
misdemeanors.
Mrs. Davis. If they are good communication between the DOJ
and OSHA? And I think the training that is done for some
inspectors that OSHA is done by the Department of Justice. Is
that correct?
Mr. Uhlmann. Yes, well, what I think you may be referring
to is, you know, we started--when I was the chief in the
environmental crimes section, we started a worker endangerment
initiative, and we reached out to OSHA.
In a Republican administration--I mean I view this--you
can't really tell it sitting in this room, but I view this as a
nonpartisan issue. You know, this is about worker safety for
all Americans.
This is about fairness to all employers. You know, an
employer who hires Mr. Halprin spends a lot of money on worker
safety. They shouldn't be at a competitive disadvantage with a
company that doesn't make any commitment to worker safety.
So we, you know, for 5 years ago started training OSHA,
started working with them about ways cases could be brought
into the criminal justice system and hopefully get better
compliance with the law as a result.
And I mean OSHA was very responsive to the--the training--
certainly out in the field. I mean certainly and the various
OSHA offices around the country, the inspectors really see the
value of this kind of working relationship.
So you know, I think the communication is decent.
Mrs. Davis. Appreciate that.
Mr. Uhlmann. We do need----
Mrs. Davis. But you said the overall problem remains in
terms of the priority for those cases.
Mr. Uhlmann. Absolutely. And I think there needs to be a
little more courage at the political level at OSHA, where was a
little wobbly when we--you know, when we started this work----
Mrs. Davis. Thank you.
Mr. Uhlmann [continuing]. A little more courage to say to
the business community, ``You know what? This is in all of our
interest.'' Because it really is in all of our interest.
Mrs. Davis. Absolutely. Thank you.
I wonder, Mr. Halprin. I don't know whether you have had a
chance to review the legislation that has been referenced here
in the hearing, Ms. Woolsey's Protecting America's Workers Act.
And I just wondered if, you know, just quickly, I mean, are
there some red flags that you see with that? Or do you think
that it represents an improvement in the situation that we have
today? Where would you want to weigh in and say, ``This needs
to have a second look?''
Mr. Halprin. I have only skimmed the bill. When you find--I
have talked about what I mean by ``willful.'' For cases that
are at a high level of willful, not all the ones that are
currently fined in that way, some sort of criminal prosecution
is clearly appropriate.
I would like to think if there is a reason for increasing
the level of sanction, it is because there is a moral issue,
and there is a sense that the worker's value needs to be
reflected.
I am not a sympathetic with the idea that a Justice
Department person feels they need to get a felony conviction on
the record, and therefore they would rather spend that time on
that.
My experience, at least with the people I know, is it will
be incredible trauma to think about any executive I know
thinking they would be in jail for 6 months. Maybe I am
sounding prejudiced, but I think the drug dealers go out there
with the recognition there is a good chance they are going to
end up in jail, and they take that risk.
They would be tremendous trauma for a person and the
family, and so I think in the right circumstance it needs to be
done. It is probably underutilized, but I think the other point
that I would like to make is OSHA has enforcement tools it
hasn't effectively used.
If there was a problem with McWane, and it is not just
OSHA, Mr. Uhlmann has pointed out the fact that it take EPA
with all its enforcement powers years to achieve what it did,
and the fact that it could get some OSHA violations mostly from
criminal misrepresentation helped.
But EPA has the same problems. It is not just OSHA. And as
high as the EPA fines are, it doesn't totally deter crime. So I
am saying that there needs to be a balance.
For example, the current bill would take away the ability
to do away with unclassified violations.
Mrs. Davis. Thank you. I see my time is up.
Ms. Woolsey. Your time is up.
Thank you, Mr. Halprin.
Thank you, Mrs. Davis.
Mr. Cassidy?
Dr. Cassidy. Just to wrap up on our side, so to speak, I
think we all agree that the moral imperative is how do we
decrease likelihood that someone like Mr. Foster dies. And I
think that what is at issue here is what is the best way to
accomplish that.
And as I look at this, and Mr. Uhlmann, in your testimony
you speak about how ignorance of the law under our statute is
not an excuse. And I do have this kind of sense of thousands of
pages of things that it would take--a scholar to try and
decipher.
And so you end up with an adversarial relationship, not one
where, ``Hey, come help me figure this out,'' but rather ``Oh,
my gosh. Here comes the inspector. Let us hide it.''
I do think apparently, as I have gathered, that there has
been a different approach into perhaps helping people interpret
this. And clearly we can see on workplace fatality, there has
been a continued downward slope. In my mind to imply that the
current method of doing it is inferior or immoral kind of
rejects the fact that we have had a continued downward slope.
And I say that because intuitively I know that the first
preventions of death are the low hanging fruit. And then it
gets tougher and tougher, because it becomes more and more kind
of out there as to where we are going to save lives.
Ms. Seminario, you mentioned, well, no, this doesn't
necessarily reflect workplace injury and illness rates, because
look at workers comp. But we heard testimony last year in the
110th Congress in this committee from a Mr. Fellner, who said
that really you can't compare workers comp's records with the
OSHA's records because you got 50 different jurisdictions out
there, and they have got different standards, and they are
privately employed, and groups less than 10 are not applied to,
et cetera.
So I am asking to keep the record open and at a later date
if you can reply in writing to that sort of statement by Mr.
Fellner from last year, I would appreciate that, because I
truly want to learn this.
So I guess I would end up by saying if were going to say
that the low hanging fruit for fatalities has been--I will make
the assumption--has been gathered here, and yet the continued
downward slope has occurred, and that most likely that there is
a statistical relationship between decreased workplace
fatalities and decreased workplace injuries, that perhaps this
cooperative relationship has benefited us all.
That said, if you can get comments to my original question,
how can you ensure the legislation continues to bring
cooperation between the bureaucracy, if you will, the Justice
Department and the employer group without creating an
adversarial relationship that would make people want to hide
their potential errors, as opposed to, ``Well, come look at our
errors and help us correct them.'' Because again, our highest
moral ground is to decrease the frequency and likelihood of
things such as your stepson dying.
Thank you, Madam Chairwoman.
Ms. Woolsey. Thank you, Mr. Cassidy.
I yield to the chairman of the committee, Mr. Miller.
Chairman Miller [presiding]. Thank you very much, Madam
Chair. And thank you for assuming the chair. I had to go to a
panel on the California drought in the Resources Committee.
I want to thank our witnesses.
You know, we argue back and forth about what makes the
reports and what doesn't make the report and whether there is
underreporting and over reporting. And you know there is some
concern that as many as 69 percent of injuries and illnesses
may never make it into the survey of occupational injuries and
illnesses report.
So I guess, you know, we hoped you would continue to have a
downward incidence in the workplace and the rest of that. But I
still think you need the due diligence. Because you know you
have the case of Ms. Foster's son--small workplace, temporary
worker, and put in a place of danger and ends up losing his
life.
And you have the City Center project in Las Vegas that
apparently, while under, you know, under the supervision of
three of the largest engineering companies in the country and
with all of the people managing that job, but for the Las Vegas
Sun, they would have continued to kill people. Because it
wasn't--the safety on the job was outrageous, given the size,
the value and under the working conditions that were being
assumed there. That they are working around the clock because
of time and money.
So we can report this back and forth, and I guess that
gives you some incidence of effectiveness, but I don't think
that we are prepared to accept that as to whether or not the
law is in fact protecting individual workers when they show up
at individual worksites across the country.
So we are going to continue this effort. If the intent of--
my intent is chair to report this bill from this--from this
committee, and I appreciate the suggestions that have been made
about the--about improvements that--that might be made in this
legislation, but this is absolutely critical.
Again, there is a lot of discussion about thousands of
pages of regulations. I don't know--we just went through 8
years of supposedly, you know, with a pro-business
administration with the same secretary of labor. I don't know--
didn't they ever review any of this? I don't know.
I mean, you know, it can't be that complicated. And the
fact is what you have to review are those things that pertain
to your worksite, your business, and the danger to your
employees.
So I want to again thank you. We are going to continue to
consult with you, if we might. And this hearing is going to be
adjourned. And I want to say that--what are we going to do? We
have got to do something here. There is always procedure. We
are like OSHA.
Without objection, members will have 14 days to submit
additional material or questions into the hearing record. And
if there is no objection, the committee will stand as
adjourned.
And thank you again.
[Additional submissions of Mr. McKeon follow:]
Prepared Statement of the Cintas Corporation
Cintas Corporation submits this statement for the record to the
House Education and Labor Committee for the hearing titled ``Are OSHA's
penalties adequate to deter health and safety violations?'' held April
28, 2009 and to the House Education and Labor Subcommittee on Workforce
Protections for the hearing titled ``Improving OSHA's Enhanced
Enforcement Program'' held on April 30, 2009.
Throughout the Committee and Subcommittee hearings on April 28 and
30, 2009, various allegations were made against Cintas that are flatly
untrue and deeply concerning. Allegations that Cintas does not care
about the safety of our employee-partners, does nothing to protect its
workers' safety, and did nothing in response to the 2007 accident in
Tulsa, Oklahoma are completely false and misleading. The accident in
March of 2007 was a tragic event, and we have re-committed our energy
and resources to prevent such an accident again. This submission seeks
to set the record straight.
In March of 2007, one of our employee-partners in Oklahoma lost his
life when he climbed atop a moving conveyor and fell into an industrial
dryer. This tragic accident shook our entire organization deeply. With
our longstanding emphasis on safety, it seemed unimaginable to lose a
friend and employee-partner. Before the tragic accident, the company's
safety record was 11 percent better than comparable-sized facilities in
our industry and had been showing constant improvement. The company is
re-examining all of the facets of the company's safety program and
working with outside experts to enhance the program further.
Below you will find a brief history of Cintas Safety efforts and
more importantly, some of the efforts taken since the tragic accident.
Brief Safety History:
For the past 40 years, each Cintas uniform rental facility
has maintained an employee-driven Safety and Improvement Committee.
Each committee is comprised of frontline partners from production areas
as well as plant management who meet monthly to review workplace safety
procedures and guidelines.
In 2003, the company hired Rick Gerlach, Ph.D. as
Corporate Director of Safety and Health. Dr. Gerlach has more than 28
years of experience in the safety and health industry.
Prior to the 2007 accident, the company had designated
Regional Safety and Health Coordinators and partners responsible for
safety at the locations.
In the three years prior to the Tulsa accident, company
employees attended more than 115,000 hours of classroom and safety
training.
1,350 managers and supervisors completed the two-day OSHA
``ten-hour course.''
We introduced a revised safety compliance auditing program
in 2004. As a result of these efforts, the number of citations we
received per OSHA inspection in 2004 was reduced by more than 75
percent in 2006.
Enhancements to our program since the accident:
In 2007, we created the Executive Safety Council chaired
by the CEO. This Council constantly monitors the compliance and ethics
of our business practices. It helps us develop and implement processes
to lead Cintas to world-class safety performance, and it includes
Cintas executives and three nationally-recognized safety experts
serving as advisors. These experts include former OSHA Administrator
John Henshaw, former Proctor & Gamble worldwide health and safety
director Dr. Richard Fulwiler, and former DuPont corporate safety and
health director Michael Deak.
Expanded wash alley training programs that include weekly
re-training of all wash alley employee-partners.
Limited wash alley access. Only partners trained in wash
alley safety procedures are allowed in the alley.
Implemented full time wash alley safety monitors whose
role is to monitor activities and safe work practices any time a wash
alley partner is working in the wash alley. This control is in place in
all locations unless the location has a permanent engineered solution
installed.
Hired an additional 17 Regional Safety and Health
Coordinators and Safety and Health Specialists around the country to
help in monitoring safety initiatives in all Cintas facilities.
Increased internal safety audits to three times annually.
Several Cintas locations have enrolled in OSHA's Voluntary
Protection Program (VPP) to achieve ``Star'' certification.
Established safety scorecard to ensure compliance with all
required safety initiatives and accountability by management.
Working with manufacturers of wash alley equipment to
create an engineered solution that will shut off all hazardous motion
in the wash alley when someone enters it. This technology will be
available to all companies within our industry.
Cintas is committed to continual improvement in our safety program
and are working to become world class. We welcome the industry to
utilize the best practices we are gathering and implementing to ensure
accidents of this nature do not occur in the future for anyone in the
industrial laundry industry. The results of our commitments are clearly
demonstrated. Our total incident rate for 2008 is more than 20 percent
better than the last reported government data for the same size
facilities in our industry.
Founded on a family business created during The Great Depression,
Cintas has become the leading business-services company in the United
States, providing more than 800,000 business-customers with uniforms,
entrance mats, restroom supplies, promotional products first aid and
safety products, fire protection services and document management
services. It's a unique value-based organization in which all employee-
partners are made shareholders on their first anniversaries, sharing in
combined growth and success of their company. For more than 75 years,
together we have built a successful business based on ``honesty and
integrity in everything we do'' and were recently named by FORTUNE
magazine as one of ``America's Most Admired Companies for the ninth
consecutive year.'' More information can be found at www.cintas.com.
______
Government Finance Officers Association (GFOA);
International Municipal Lawyers Association (IMLA);
International Public Management Association for Human
Resources (IPMA-HR);
National Association of Counties (NACo);
National League of Cities (NLC);
National Public Employer Labor Relations Association
(NPELRA);
May 12, 2009.
Hon. George Miller, Chairman; Hon. Howard ``Buck'' McKeon, Ranking
Member, House Education and Labor Committee, U.S. House of
Representatives, Washington, DC.
Dear Chairman Miller and Ranking Member McKeon: On April 28, 2009
the House Committee on Education and Labor held a hearing on the bill,
H.R. 2067, the ``Protecting America's Workers Act.'' Our associations
would like to express our strong opposition to this legislation.
H.R. 2067 would mandate OSHA coverage for all public employees,
including those currently working in non-covered states. As you know,
OSHA currently excludes state and local governments from the definition
of employers. Twenty- four states and two territories have voluntarily
adopted the federal OSHA standards. (Three of those states and one
territory cover public sector employees only.) The remaining states
have set their own occupational health and safety standards tailored to
the needs of their jurisdiction.
A bill that mandates federal OSHA standards on state and local
governments would violate the spirit of the 10th amendment and
constitute an unfunded mandate on states and localities, in direct
conflict with the Unfunded Mandates Reform Act of 1995. Moreover, state
OSHA protections render the bill largely unnecessary. Finally, the
increasing strain on the budgets and resources of state and local
governments as a result of the economic downturn makes this a
particularly inopportune time to impose unnecessary federal standards.
We would be happy to meet with either of you or a member of your
staff to further discuss our significant concerns with this
legislation. Please feel free to contact any of our groups below.
Barrie Tabin Berger, Assistant Director,
Federal Liaison Center, GFOA (202) 393-8020.
Chuck Thompson, General Counsel and Executive Director,
IMLA (202) 466-5424.
Neil Reichenberg, Executive Director,
IPMA-HR (703) 549-7100.
Deseree Gardner, Associate Legislative Director,
NACo (202) 942-4204.
Neil Bomberg, Principal Legislative Counsel,
NLC (202) 626-3042.
Michael Kolb, Executive Director,
NPELRA (760) 433-1686.
______
[Whereupon, at 12:07 p.m., the committee was adjourned.]