[Senate Hearing 111-843]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-843
 
 INTRODUCING MEANINGFUL INCENTIVES FOR SAFE WORKPLACES AND MEANINGFUL 
                  ROLES FOR VICTIMS AND THEIR FAMILIES

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON EMPLOYMENT AND 
                            WORKPLACE SAFETY

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

  EXAMINING INTRODUCING MEANINGFUL INCENTIVES FOR SAFE WORKPLACES AND 
            MEANINGFUL ROLES FOR VICTIMS AND THEIR FAMILIES

                               __________

                             APRIL 28, 2009

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


      Available via the World Wide Web: http://www.gpo.gov/fdsys/


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              JOHN McCAIN, Arizona
BERNARD SANDERS (I), Vermont         ORRIN G. HATCH, Utah
SHERROD BROWN, Ohio                  LISA MURKOWSKI, Alaska
ROBERT P. CASEY, JR., Pennsylvania   TOM COBURN, M.D., Oklahoma
KAY R. HAGAN, North Carolina         PAT ROBERTS, Kansas          
JEFF MERKLEY, Oregon                 
  

           J. Michael Myers, Staff Director and Chief Counsel

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                               __________

            Subcommittee on Employment and Workplace Safety

                   PATTY MURRAY, Washington, Chairman

CHRISTOPHER J. DODD, Connecticut     JOHNNY ISAKSON, Georgia
BARBARA A. MIKULSKI, Maryland        JUDD GREGG, New Hampshire
SHERROD BROWN, Ohio                  RICHARD BURR, North Carolina
KAY R. HAGAN, North Carolina         JOHN McCAIN, Arizona
JEFF MERKLEY, Oregon                 ORRIN G. HATCH, Utah
AL FRANKEN, Minnesota                LISA MURKOWSKI, Alaska
MICHAEL F. BENNET, Colorado          MICHAEL B. ENZI, Wyoming (ex 
TOM HARKIN, Iowa (ex officio)        officio)

                      Gerri Fiala, Staff Director

                  Edwin Egee, Minority Staff Director

                                  (ii)

  
?



                            C O N T E N T S

                               __________

                               STATEMENTS

                        TUESDAY, APRIL 28, 2009

                                                                   Page
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  opening statement..............................................     1
    Prepared statement...........................................     2
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...     4
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio.......     5
Monforton, Celeste, Ph.D., MPH, Lecturer and Researcher, Project 
  on Scientific Knowledge and Public Policy at George Washington 
  University's School of Public Health and Health Services, 
  Washington, DC.................................................     6
    Prepared statement...........................................     8
Frederick, Jim, Assistant Director for Safety and Health, United 
  Steelworkers, Pittsburgh, PA...................................    17
    Prepared statement...........................................    19
Miser, Tammy, Founder, United Support Memorial for Workplace 
  Fatalities, Lexington, KY......................................    22
    Prepared statement...........................................    24
Brown, Warren K., President, American Society of Safety 
  Engineers, Des Plaines, IL.....................................    25
    Prepared statement...........................................    27

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Kennedy..............................................    40

                                 (iii)

  


 INTRODUCING MEANINGFUL INCENTIVES FOR SAFE WORKPLACES AND MEANINGFUL 
                  ROLES FOR VICTIMS AND THEIR FAMILIES

                              ----------                              


                        TUESDAY, APRIL 28, 2009

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:34 a.m., in 
Room SD-430, Dirksen Senate Office Building, Hon. Patty Murray, 
chairman of the subcommittee, presiding.
    Present: Senator Murray, Isakson and Brown.

                  Opening Statement of Senator Murray

    Senator Murray. This hearing of the Subcommittee on 
Employment and Workplace Safety will come to order. Today marks 
the 20th anniversary of Worker's Memorial Day. It's a day many 
mark by honoring loved ones lost in a workplace tragedy.
    And to all of those families and friends who are here today 
we offer our sincerest condolences and want you to know that we 
all join you in honoring the memory of your loved ones. Thank 
you so much for being here. I want to extend a very special 
welcome to those families here today who've lost family members 
due to tragedies on the job and who continue to fight for 
better workplace safety policies. All of us want to thank you 
for your efforts.
    We are here today to talk about how government can be a 
stronger partner in helping to ensure that every worker who 
punches in for their next shift returns home safe and healthy 
at the end of the day. To do that we have to think about the 
role of penalties in preventing workplace injuries. We also 
have to ensure that when a worker is killed, injured or made 
sick on the job, those workers and their families are respected 
and honored throughout the process.
    In 2007 alone, 5,488 workers were killed on the job. Nearly 
four million were injured, and an estimated 50,000 to 60,000 
died from occupational diseases.
    These aren't just numbers. They're men and women with 
families who now have to live every day with the memory of 
their loss. We must honor those families and their memories by 
working to reduce worker deaths and injuries.
    Unfortunately over the last several years OSHA has not 
lived up to its mission to make workers safer on the job. Many 
of us have been truly concerned about an enforcement strategy 
that relied too heavily on voluntary employer compliance 
programs and watered down fines against bad actors. We remain 
concerned about the validity of workplace safety data and the 
adequacy of resources given to our State OSHA programs like the 
one in my home State of Washington.
    Our country has made great progress since the passage of 
the Occupational Safety and Health Act, 39 years ago. But we 
need to do more. A new year, a new Administration and a new 
Congress provide us with a fresh opportunity to revisit the 
law's effectiveness and the agency responsible for 
administering it.
    I look forward to working with Secretary Solis and the next 
Assistant Secretary for OSHA to ensure that the agency is 
enforcing the law and doing all it can to prevent workplace 
tragedies. Because where the policy is currently inadequate it 
is our job to change it. So we're here to talk about how 
increased penalties in the law can help increase 
accountability, prevent future accidents and provide parity to 
other public safety laws.
    We're also here to talk about how to better engage workers 
and their families in the OSHA process. While no fine or 
penalty could ever make up for losing a loved one, families 
like the ones here in this room today deserve a voice in 
ensuring there's a price to pay. Their participation in this 
process will help hold bad actors accountable and help to spare 
other families the same pain they have experienced.
    Tomorrow marks the fifth anniversary of the introduction of 
Chairman Kennedy's OSHA Reform bill Protecting America's 
Workers Act. It's a bill that I've been proud to co-sponsor. 
And we carry that work on here today sending a clear message 
that one workers death, injury or illness is unacceptable if 
it's preventable.
    We depend on our workers everyday to keep our economy 
going. And they should be able to depend on us to protect them 
on the job. So I look forward to hearing from our witnesses 
today.
    I will introduce them in a few minutes after members of 
this committee deliver their opening statements.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    This hearing of the Subcommittee on Employment and 
Workplace Safety will come to order.
    Today marks the 20th anniversary of Workers Memorial Day. 
While some may not be aware of today's significance, others 
will mark this day by remembering loved ones lost in a 
workplace tragedy. And to those, we offer our sincerest 
condolences and we honor the memory of your loved one.
    I want to extend a special welcome to those with us today, 
who have lost family members to tragedies on the job, and who 
will testify about their fight for better workplace safety 
policies. But we would do a disservice to those workers and 
their families if we were to stop there.
    We're here today to talk about what more government can do 
to ensure that every worker who punches in for their next 
shift, returns home safe and healthy at the end of the day. And 
to do that, we have to think about the role of penalties in 
preventing workplace injuries.
    We also have to ensure that when a worker is killed, 
injured or made sick on the job, those workers and their 
families are respected and honored throughout the process. It's 
part of recognizing the value of every worker and the job they 
do to support their families and this country.
    In 2007 alone,

     5,488 workers were killed on the job,
     nearly 4 million were injured, and
     an estimated 50,000 to 60,000 died from 
occupational diseases.

    Those aren't just numbers--they're individuals who 
represent a family or other loved ones equally impacted by the 
tragedy.
    Our country has made great progress in protecting workers 
on the job since the passage of the Occupational Safety and 
Health Act 39 years ago. But, clearly, more needs to be done.
    A new year, a new Administration, and a new Congress 
provides us with an opportunity to revisit the law's 
effectiveness and the agency responsible for administering it.
    I look forward to working in partnership with Secretary 
Solis and her future Assistant Secretary for OSHA to ensure 
that the agency is enforcing the law and doing all it can to 
help prevent workplace tragedies.
    For far too long, many of us were deeply disturbed by 
OSHA's failure to live up to its mission to make workers safer 
on the job.
    We were concerned about an enforcement strategy that relied 
too heavily on voluntary employer compliance programs and 
watered down fines against bad actors.&
    As policymakers, we remain concerned about:

     the validity of workplace safety data; and
     the adequacy of resources given to our State OSHA 
programs, like the one in my home State of Washington.

    But where the policy is inadequate, it's our job to change 
it. So, we're here to talk about how increased penalties in the 
law can help:

     hold bad actors accountable,
     prevent future accidents, and
     provide parity to other public safety laws.

    We're also here to discuss what role the workers who are 
hurt or who get sick on the job or the families of those who 
are fatality injured in the workplace should have in the OSHA 
process.
    And, we celebrate another anniversary of sorts. Tomorrow 
marks the 5th anniversary of the introduction of Chairman 
Kennedy's OSHA reform bill, Protecting America's Workers Act. 
It's a bill that I've been proud to co-sponsor.
    We carry on that work here today, sending a clear message 
that one worker's death, injury, or illness is unacceptable if 
it's preventable.&
    The foundation of our economy is the hard-working Americans 
across this country. And they deserve a government that works 
as hard as they do to protect them on the job.
    I look forward to hearing from our witnesses today on this 
important topic.
    Dr. Celeste Monforton is a lecturer and researcher for the 
Project on Scientific Knowledge and Public Policy at George 
Washington University's School of Public Health and Health 
Services. Her research interests include regulatory policy and 
its affect on implementing timely protection for workers from 
occupational health hazards. Dr. Monforton served as a senior 
investigator on the Governor of West Virginia's special 
investigation of the January 2006 Sago Mine disaster. &
    Jim Frederick is the Assistant Director for Safety and 
Health for the United Steelworkers.&
    Tammy Miser founded the United Support Memorial for 
Workplace Fatalities, a Web page for the families of workers 
who have died on the job. She was inspired to do this project 
by the death of her brother, Shawn Boone, who was killed in an 
October 2003 explosion at a manufacturing plant in Huntington, 
IN.&
    Mr. Brown has 33 years of occupational safety and health 
experience, working for major manufacturers in Ohio. He is 
currently President of the American Society of Safety 
Engineers. He is a Certified Safety and Health Manager and 
possesses an MBA from the University of Dayton.
    Welcome to all of you.

    Senator Murray. At this point I would turn it over to 
Senator Isakson for his opening statement. Thank you.

                      Statement of Senator Isakson

    Senator Isakson. Well, thank you very much, Senator Murray. 
I would like to welcome our witnesses today. I look forward to 
their testimony. And with all due respect and appreciation for 
those who are here as loved ones for victims of workplace 
accidents, we're delighted to have you here today. And welcome 
you anytime to this committee and the Senate.
    This is the fourth year that Senator Murray and I have 
worked together on workplace safety issues. And it remains our 
challenge to persuade every employer and every employee to make 
safety the top priority at all levels of their organization. 
Through a concerted effort on the part of Congress, workers and 
employers we've made some progress.
    Related workplace fatalities is now down to 3.8 deaths per 
100,000. While zero is the targeted goal, the numbers are 
moving in the right direction. Similarly the national injury 
and illness rate is down to 4.2 per 100 workers. Both of these 
are the lowest levels in the 33-year history of OSHA.
    OSHA issued 26 standards in the last Administration. The 
last fiscal year the agency conducted nearly 39,000 
inspections, an increase of 6 percent over the last fiscal 
year. During these inspections the agency issued 87,000 
violations, 11 percent more than OSHA issued in fiscal year 
2000.
    I continue to favor to ensure that family members are fully 
informed of OSHA's findings when a workplace fatality occurs. 
Last Congress Senator Kennedy and I co-authored and co-
sponsored an amendment to the budget that would have provided 
families with fatally injured workers with an opportunity to 
meet with the Secretary of Labor prior to the release of the 
final OSHA report. While no legislation has been introduced in 
the Senate as of yet on this proposal, like any other OSHA 
reform proposal we must receive proper consideration and 
hearings by the entire HELP Committee and must go through 
regular order.
    We all recognize that achieving workplace safety requires 
an effort on all fronts. OSHA only governs the physical 
environment in which employees work. It in no way regulates the 
worker's behavior within that environment which is every bit as 
important nor does OSHA have jurisdiction over transportation 
accidents and workplace homicides which account for more than 
half of all workplace fatalities.
    When I was in business I recognized my biggest asset were 
my employees. For most American employers, employees have never 
been just an expenditure. They have always been an asset.
    Rather employees are the people with goals, opportunities 
and families. It should be our goal to return them every night 
safely to their home.
    Thank you, Madame Chairman.
    Senator Murray. Thank you, Senator Isakson. Thank you for 
your hard work over the years. I really appreciate the 
opportunity to work with you on this important issue.
    Senator Isakson. Thank you.
    Senator Murray. Senator Brown.

                       Statement of Senator Brown

    Senator Brown. Thank you, Madame Chairman. I appreciate the 
courage of people who showed up today in honoring their loved 
ones. Thank you for joining us. I appreciate this hearing today 
and that we celebrate Worker's Memorial Day.
    Some 10 years or so ago I was at a Worker's Memorial Day 
event in Lorraine, OH and right on Lake Erie at City Hall. I 
was given at that event this pin I've worn ever since. It's a 
depiction of a canary in a bird cage and other people have that 
same pin on.
    I've worn it for 10 years to show understanding what so 
many do. The canary in the coal mine was used at a time when 
workers had no unions strong enough to protect them and no 
government that cared enough to protect them. The worker was so 
much on his own. And there are still too many cases of that in 
this country.
    The creation of OSHA, as the Chairwoman pointed out--the 
creation of OSHA back in 1970 was a huge step forward. We need 
to continue those steps forward evidenced by the fact that 
loved ones of people that were killed on the job are still here 
today.
    I wanted to bring up one particular issue. While we've made 
progress we saw a good bit of back sliding in the last few 
years. And there is, as many know, there's something called the 
Popcorn Lung Disease--diagnosed in hundreds of workers 
including Keith Campbell in Caledonia, OH.
    The danger of diacetyl exposure is well documented. Even 
the companies that make diacetyl recognize the danger so that 
American workers need protection from it. For too long the Bush 
administration relied on voluntary compliance from food 
manufacturers to keep their workers safe from this toxin.
    Fortunately this is a new day. Secretary Solis has 
withdrawn the proposed rule on diacetyl so that the 
Administration can develop a standard that actually protects 
workers. It's too often a national tragedy like a mining 
disaster that brings these issues out and causes us to 
modernize and keep up with the times on what OSHA needs to do.
    This hearing today, the courage of people who are here 
representing family members who were killed, really does 
inspire all of us to continue to make a difference and to make 
sure as Senator Isakson said, that that number gets to zero. 
Decreases are great. But that number needs to get to zero. I 
thank the Chair.
    Senator Murray. Senator Brown, thank you very much for your 
opening statement and being a great part of this discussion. I 
appreciate it.
    With that we are going to hear from our witnesses. I'll 
introduce them to you. And then they will speak in the order I 
introduce them.
    We begin with Dr. Celeste Monforton who is a lecturer and 
researcher for the Project on Scientific Knowledge and Public 
Policy at George Washington University's School of Public 
Health and Health Services. Her research interests include 
regulatory policy and its effect on implementing timely 
protection for workers from occupational health hazards. Dr. 
Monforton served as the Senior Investigator on the Governor of 
West Virginia's special investigation of the January 2006 Sago 
mine disaster.
    Jim Frederick is the Assistant Director for Safety and 
Health for the United Steelworkers.
    Tammy Miser founded the United Support Memorial for 
Workplace Fatalities. It's a Web page for families of workers 
who've died on the job. She was inspired to do this project by 
the death of her brother Shawn Boone, who was killed in an 
October 2003 explosion at a manufacturing plant in Huntington, 
IN.
    And finally, Warren Brown who is the President of the 
American Society of Safety Engineers. He's worked as a safety 
expert with Delphi GM and a number of other companies.
    Welcome to all of you.
    Dr. Monforton, we'll begin with your statement.

  STATEMENT OF DR. CELESTE MONFORTON Ph.D., MPH, LECTURER AND 
 RESEARCHER, PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY 
 AT GEORGE WASHINGTON UNIVERSITY'S SCHOOL OF PUBLIC HEALTH AND 
                HEALTH SERVICES, WASHINGTON, DC

    Ms. Monforton. Senator Murray, Senator Isakson, Senator 
Brown, thank you for allowing me this opportunity. I'm Celeste 
Monforton. I'm an Assistant Research Professor at the George 
Washington University School of Public Health. And I ask that 
my written statement be made part of the record.
    One of the most rewarding and enlightening experiences in 
my public health career was my involvement in 2006 in the Sago 
mine disaster investigation. I came to understand and 
appreciate that family member victims can make a meaningful 
contribution to the accident investigation process. There is no 
one more interested in finding the truth about the cause of an 
on-the-job death than a worker's loved one.
    I heard then and I still hear today that family members 
will impede the investigation. That family members will have a 
conflict of interest. And that family members are too emotional 
for fact finding purposes.
    My experience tells me that nothing is further from the 
truth. With Sago no one paid closer attention to the details, 
pressed the investigators harder for answers and raised the bar 
higher for mine safety reforms than those daughters, wives and 
brothers. Proponents of the status quo reject proposals for 
family member involvement saying they'll want to bring their 
lawyers as if attorneys are not already part of OSHA's 
settlement process.
    Besides the OSHA process does not offer any personal 
economic gain for family members. In contrast to employers who 
do have an economic and reputational interest in reducing the 
impact of OSHA's actions. Families simply want to know what 
happened and to see that it doesn't happen again.
    Putting oneself in the shoes of family members you realize 
that dozens of people, people they don't know, people they have 
never met, are learning the circumstances that led to their 
loved one's death. But they--the parent, the child, the 
spouse--are left in the dark. Traditionally, MSHA, like OSHA's 
policy is to not share details about the incident until the 
investigation is completely closed, potentially years down the 
road.
    But with Sago we realized that we needed to balance the 
family's right to know with the needs and the legal 
responsibilities of the technical investigators. In an 
unprecedented decision we gave each family a complete set of 
the interview transcripts. This happened as soon as all the 
interviews were completed, but well before the investigation 
was done and any final citations issued.
    Despite the unease and anxiety expressed by some, no 
calamity ensued. In fact, some of the family members devoted 
long days and nights to studying the transcripts and were able 
to alert us to inconsistencies in witnesses' testimony and 
identify topics deserving further scrutiny. Their contributions 
to the process eclipsed any potential administrative hurdles.
    I recommend among other things that family members or their 
designee be given full party status in OSHA investigations. And 
that the Secretary of Labor appoint a Federal Advisory 
Committee made up of injured workers and family member victims 
to provide advice to the Solicitor's Office, OSHA and MSHA on 
improving the prevention potential of the Department's 
enforcement systems. Our surveillance data, limited as it is, 
shows us that the same hazardous conditions that killed workers 
20 years ago are largely the same hazardous conditions that 
kill or maim U.S. workers today.
    In 2009 in the richest country on earth there is no 
acceptable reason why U.S. workers still suffocate to death in 
unshored trenches. Yet last year at least two dozen workers in 
our Nation died this way. Likewise workers in the United States 
continue to die from falls in residential construction projects 
or become tangled in unguarded equipment and so on. Because of 
OSHA's responsibilities which are grossly mismatched with its 
budget and resources, we need to amplify the prevention 
potential of OSHA citations and penalties.
    In my written statement I provide a number of 
recommendations to enhance their deterrent effect. These 
include OSHA's penalty calculations should include a specific 
factor that assesses the economic benefits reaped by employers 
for violating health and safety regulations. Employers who 
comply and embrace the letter and spirit of occupational safety 
and health regulations should no longer be placed in an 
economic disadvantage because their competitors are failing to 
invest in worker safety.
    OSHA must have the authority to compel immediate abatement 
of hazards that are known to contribute to serious injury, 
illness or death. Our Nation can't make advances in preventing 
harm to workers when our system forces local OSHA managers to 
bargain with employers choosing between leveeing a hefty 
penalty or getting a hazard corrected quickly.
    In closing people around the globe are marking Worker 
Memorial Day, a day of remembrance and action. By making 
improvement to our Nation's occupational health and safety 
system we can honor the men and women whose lives were cut 
short or irreparably harmed by hazards at work. I would be 
pleased to answer your questions.
    [The prepared statement of Ms. Monforton follows:]

           Prepared Statement of Celeste Monforton, MPH, DrPH

    Senator Murray, Senator Isakson and other members of the 
subcommittee: I am Celeste Monforton, an assistant research professor 
in the Department of Environmental and Occupational Health at the 
George Washington University School of Public Health & Health Services, 
and chair of the Occupational Health & Safety Section of the American 
Public Health Association. I appreciate the opportunity to appear 
before you today to discuss occupational health and safety policy, 
including:

     Using civil penalties to censure employers who disregard 
their legal and moral responsibility to provide a healthy and safe 
workplace;
     Remodeling the OSHA penalty system to spur implementation 
of worksite-
specific illness and injury prevention programs; and
     Promoting avenues for meaningful participation in OSHA's 
citation and penalty process by current workers, injured workers and 
family-member victims of workplace hazards in order to address the 
social consequences of worker injuries, illnesses and death as well as 
the economic and legal factors that dominate the current OSHA system.

    Today, people around the globe are marking Worker Memorial Day, the 
day set aside to remember workers killed, disabled, injured or made 
unwell by their work, and to act to improve protections for the world's 
workers. In our own country, we can honor the men, women and young 
workers whose lives were cut short or irreparably harmed by on-the-job 
conditions by making needed changes to our Nation's occupational health 
and safety system.
    Ultimately, our Nation's health and economy would be served best by 
an occupational health and safety regulatory system that emphasizes 
prevention of work-
related injuries and illnesses. The topic ``prevention of occupational 
injuries and illnesses'' could be the subject itself of the entire 
subcommittee hearing, but one piece of prevention--penalties--is the 
topic for today.
    In a regulatory system like OSHA's, penalties must be severe enough 
to compel violators to change their behavior, and to deter lawbreaking 
by those who might be tempted to flout safety and health regulations in 
an effort to increase production or cut costs.
    Davitt McAteer, former Assistant Secretary of Labor for Mine Safety 
and Health, notes that employers (and individuals) generally fall into 
three categories. One group is the top performers: companies that 
strive for operational excellence. They don't worry about OSHA 
inspections; they already have worker injury and illness prevention 
programs that are grounded in employee involvement and continuous 
improvement and, frankly, put OSHA's bare-minimum regulations to shame.
    At the other end of the spectrum are the bad actors. These 
individuals intentionally disregard the law or are indifferent to it--
they act as though the rule of law doesn't apply to them. 
Unfortunately, there are employers who fall into this category. These 
are employers who violate the law, without care or concern for the 
individuals or communities potentially affected by their decisions. 
They flout rules designed to protect our air, water and other natural 
resources, defy minimum wage and overtime rules and collective 
bargaining rights, and ignore workplace health and safety standards. 
Employers in this category deserve to get the book thrown at them--not 
just the book, the whole book shelf.
    Our occupational health and safety (OHS) regulatory system must 
provide harsh penalties for employers who fall into this category. The 
system should require the equivalent of ``points on their permanent 
record.'' Employers who flagrantly, willfully or repeatedly violate 
laws designed to protect workers from injuries and illnesses should see 
their finances and reputations suffer. Our system should take advantage 
of the times when such employers are caught, and capitalize on these 
grievous situations for their value as a deterrent for companies 
nationwide. It may not deter other bad actors, but it will catch the 
attention of those who might be tempted to cut a few corners when under 
pressure.
    The majority of employers and the majority of people in general are 
neither stellar performers nor bad actors. We respect laws' aims and 
purposes, and we comply with them--most of the time. At times, however, 
competing forces color our judgment, and we break a rule because we 
think the likelihood of causing harm is low, as is the risk of getting 
caught. I'm going to make a confession: a time or two I've run through 
a traffic light as it turned red. Did I know I was breaking the law? 
Yes. Did I do it intentionally? Yes. Were there extenuating 
circumstances? Yes, but regardless, I violated a traffic law.
    I was probably running late for an appointment, and made a risk 
calculation that considered the chances of causing an accident and the 
chances of getting caught by the police, with the benefits of making it 
to my appointment on time. I obey traffic safety rules nearly all of 
the time, but on occasions, I used bad judgment. Do I deserve an 
appropriate penalty? Yes. If the penalty is stiff enough (i.e., a steep 
fine and points on my driver's license), will I think twice before 
running a red light again? You bet.
    I believe that many employers and their managers act similarly when 
it comes to OHS rules. They know that workplace OHS standards are based 
on lessons learned and have a public health and safety purpose. But, 
from time to time, when certain competing forces weigh on them, they 
make a calculation. They weigh the risk of suffering harm or causing 
harm to another and the likelihood of getting caught breaking the law. 
Whether it is my late-for-an-appointment red-light running analogy, or 
a manager's decision to allow Joe Laborer to work on inadequate 
scaffolding because they're running behind schedule and Joe Laborer 
will only be up there a few minutes, competing forces (e.g., production 
goals, time constraints, economics, competitors) influence our 
judgment. The deterrent effect of OSHA's penalty system could be 
amplified to outweigh the influence of competing forces. This is 
particularly relevant today; the U.S. needs an effective system to 
prevent occupational injuries and illnesses, but OSHA's 
responsibilities are grossly mismatched with its budget and resources.

             OSHA CIVIL PENALTIES AND THE DETERRENT EFFECT

    A penalty's effectiveness as a deterrent is influenced, in part, by 
its economic impact on the individual or entity that pays it. With 
respect to OSHA's civil penalties, many employers will make a practical 
calculation to assess economic factors such as:

     the cost of implementing safety and health interventions 
(e.g., purchase and maintenance of equipment, continuous worker 
training);
     the cost savings associated with foregoing safety and 
health interventions (e.g., delaying equipment maintenance for another 
few months);
     the benefits to safety and performance of the 
intervention; and
     the potential financial cost of an OSHA citation and 
penalty (e.g., monetary fee, human resource time corresponding with 
OSHA, legal services).

    These economic costs are weighed against the likelihood of having 
an inspection and being cited for OHS violations.
    The present OSHA enforcement system ignores, however, the potential 
role of reputational damage in enhancing the deterrent effect of OSHA 
penalties. For many firms, the average OSHA penalty for a serious 
violation is just a rounding error in their overall budget. If the 
firm's customers learn of its violations and then decide to take their 
business to competitors, however, the firm could suffer a penalty much 
larger than an OSHA fine. Companies value their reputations, which are 
built on the quality of their products and services and their 
relationships with the communities in which they operate. By making 
violation information available to the public and press, OSHA could 
demonstrate to companies that OHS violations put their reputations at 
risk. For example, OSHA could make prominently available and easily 
searchable on its Web site items such as the following:

     details of a fatality or serious injuries or illnesses 
among the company's employees or contractors;
     evidence that the company's management allowed employees 
to be exposed to serious safety or health hazards, or knowingly 
violated OHS standards; and
     data depicting the company's nationwide inspection 
history, violations cited, performance in abating hazards promptly, and 
history of contesting citations and penalties.
    OSHA could use its Web site much more effectively to make workers, 
competitor businesses and the public much more aware of companies who 
have violated worker protection laws. The agency should also explore 
what other tools it has at its disposal to ensure that the public and 
the press can take workplace OHS data into effect when they evaluate 
companies' reputations.
    The final major factor influencing the deterrent effectiveness of a 
penalty system is the likelihood of enforcement--that is, the 
probability of getting caught exposing workers to OHS hazards. With 
respect to OSHA's presence in workplaces, the facts are well-known: 
there are about 8.97 million workplaces nationwide,\1\ and in 2007, the 
Federal and State OSHA programs combined conducted 96,704 inspections. 
A substantial portion of these (about 40 percent) were conducted in 
response to fatalities and catastrophes, employee complaints about 
hazardous conditions and referrals. Less than 1 percent of non-mining 
workplaces were visited last year by Federal or State OSHA inspectors.
    I've developed a model I'm calling the ``Deterrent-Effect Matrix'' 
(Figure 1) to evaluate the potential capability of a penalty system. 
Using the matrix to examine the current OSHA penalty system, I'd 
classify it as ``inadequate'' as a deterrent. On the y-axis, the 
probability of having an inspection is low; on the x-axis, the economic 
cost of an OSHA civil penalty is low (i.e., initial assessed penalty 
for a serious violation is $1,400) and the risk of reputational damage 
is also low. Modifications to one or both axis-factors are needed to 
transform OSHA's penalty system into one with a sufficient deterrent 
effect.



    In contrast, I'd classify the penalty authority given to the U.S. 
Environmental Protection Agency as ``significant'' or ``robust.'' Under 
the Clean Water Act and Clean Air Act, for example, there are 
requirements for continuous monitoring and the initial penalty for 
violating emission and discharge standards is typically $25,000 per 
violation per day.\2\ In this case, the likelihood of enforcement and 
the economic cost of the penalty are both in the medium to high range. 
Moreover, under EPA policy, the penalty amounts assessed to companies 
are supposed to take into account the economic benefit the firm gained 
from not complying with the law. As noted in a 1992 GAO report,

          ``. . . allowing a violator to benefit from noncompliance 
        punishes those who have complied by placing them at a 
        competitive disadvantage, which creates a disincentive for 
        compliance. EPA's policy is to remove the incentive to violate 
        the law.'' \3\

    This particular GAO report was not, however, about EPA; rather, it 
was an assessment of how well OSHA had implemented the 1991 
Congressional mandate increasing OSHA penalties. In this GAO report 
``OSHA: Penalties for Violations are Well Below Maximum Allowable 
Penalties,'' the auditors recommended that the economic benefits reaped 
by an employer for violating health and safety regulations should be a 
specific factor included in OSHA's penalty calculation. I suspect that 
firms that have invested in progressive, effective worker health and 
safety programs would welcome a penalty system that levels the playing 
field. Employers who comply and embrace the letter and the spirit of 
OHS regulations should no longer be placed at an economic disadvantage 
because their competitors are failing to invest in OHS.
    Finally, the OSHA enforcement system does not operate in a vacuum. 
I urge this committee to consider its deterrent effect in conjunction 
with other related social institutions: the independent Occupational 
Safety and Health Review Commission (OSHRC) and our State-based, 
exclusive remedy workers' compensation system. I offer recommendations 
about these institutions at the end of my testimony.

      DELINKING CITATIONS AND PENALTIES WITH ABATEMENT OF HAZARDS

    Law-abiding employers are not the only ones put into a difficult 
position by OSHA's inadequate response to violations. Because of the 
way the OSH Act is written, local OSHA managers often have to choose 
between levying a tough penalty and getting a hazard corrected quickly. 
Under the OSH Act, employers are not required to correct a hazardous 
condition(s) until the citation(s) assessed by an OSHA inspector 
becomes a final order of the OSHRC.\4\ Briefly, when an employer 
receives an OSHA citation and penalty, s/he has 15 working days to: (1) 
accept the citation, abate the hazards and pay the penalties; (2) 
schedule an informal conference with the local OSHA area director to 
negotiate an informal settlement agreement; or (3) formally contest the 
citation and/or penalty before the OSHRC.
    An employer has the right to contest four aspects of the citation: 
(1) the classification of the violation (e.g., serious, willful); (2) 
the OSHA rule, standard or statutory clause affixed to the violation; 
(3) the abatement date; and/or (4) the proposed penalty. Instead of 
formally contesting one of these aspects, an employer may request to 
meet with the director of the local OSHA office for an informal 
conference before the 15-day period to file a notice of contest 
expires. The majority of employers who receive OSHA citations 
participate in informal conferences, and the majority of OSHA 
inspection cases are resolved this way. OSHA's area directors have the 
authority to reclassify violations (e.g., downgrade from willful to 
serious, serious to other-than serious); withdraw or modify a citation, 
an item on a citation, or a penalty; and negotiate the proposed 
penalty. If both parties agree to the negotiated terms, the employer 
must then abate the hazard in the agreed upon time period; if no 
agreement is reached, the employer will likely choose to formally 
contest it through the OSHRC system and can refrain from correcting the 
safety problem in the meantime.
    When cases move through the OSHRC system, the administrative law 
judges and Commissioners typically reduce the penalty amount proposed 
by OSHA. (OSHA proposes a penalty amount, but the OSHRC determines the 
final penalty.) In practical terms, when a citation is contested, years 
and years can pass before an employer can be compelled to abate the 
workplace safety or health problem. Even if the employer doesn't 
succeed in their OSHRC appeal, they have bought substantial time (and 
saved money) by not correcting the hazard during the appeal process. 
Furthermore, by holding in abeyance the correction of hazardous 
conditions, these employers have gained an economic advantage over 
their competitors, employers who do obey OSHA standards and 
regulations.
    OSHA's area directors offer penalty reductions and 
reclassifications of citations (e.g., from serious to other-than-
serious) in order to compel prompt correction of the hazard. From a 
local OSHA manager's perspective, s/he would rather get the dangerous 
situation rectified so that workers at the site are protected from 
potential harm, rather than risk a chance that the employer will 
contest the citation and penalty.
    OSHA's inspectors and local managers are truly in a difficult 
position because the citations and penalties are linked to hazard 
abatement. Compare the situation of OSHA inspectors and supervisors to 
that of their colleagues at the Mine Safety and Health Administration 
(MSHA). Under the Mine Act, when a Federal mine inspector identifies a 
violation of an MSHA standard or regulation, mining companies are 
required to begin fixing the problem immediately. Employers in the 
mining industry have the right to challenge citations and penalties 
before the Mine Safety and Health Review Commission (MSHRC), but an 
employer's decision to litigate an inspector's finding and/or the 
proposed penalty does not give him permission to let workplace hazards 
persist. OSHA needs comparable authority.
    The principle of prevention must be enshrined in our workplace OHS 
regulatory system. This means providing OSHA the authority to compel 
immediate abatement of hazards that are known to contribute to serious 
injury, illness or death. We can't make advances in preventing harm to 
workers when our system forces local OSHA staff to bargain with 
employers for worker protections that they are already required to 
implement. The informal settlement process should not only expedite 
abatement of the hazard, but also give OSHA leverage to require 
employers to implement measures that go above and beyond what is 
required by OSHA.
    I envision a transformed OSHA penalty system that would offer a 
more significant deterrent effect and would provide incentives for 
employers to enhance their OHS systems beyond the bare-minimum OSHA 
requirements. For example, modest reductions in the penalty amount 
could be reserved exclusively as a negotiation tool to compel abatement 
of other-than-serious violations. (As noted above, immediate abatement 
should be required for a class of hazards known to contribute to 
serious injury, illness or death.) In order for an employer to secure a 
reclassification of a violation (e.g., from serious to other-than-
serious), the firm would be required to implement a meaningful worker 
injury and illness prevention measure at their worksite (e.g., a 
worker-involved hazard identification and correction program). 
Likewise, if an employer sought a reclassification of a willful 
violation to a serious violation, the firm would be required to 
implement a comprehensive health and safety management system, or would 
be required to implement a meaningful and verifiable intervention at 
all of the firm's locations.
    The pragmatist in me recognizes that making such changes to the 
current penalty system is likely to increase the number of citations 
and penalties that are contested. That's true. In fact, MSHA staff tell 
me that since the agency's penalties were increased substantially in 
April 2007, the contest rate has quadrupled.* In order to temper 
employers' race to the courtroom (which would be a windfall for 
attorneys who specialize in employer OHS defense), OSHA could 
capitalize on the reputation costs to firms of OHS violations, by 
making accessible to the public in a searchable format data on 
employers' specific violations, informal settlement demands, contest 
history, etc. Potential employees, communities, competitors and the 
press should have access to employer-specific data, to make an 
assessment for themselves about a firm.
---------------------------------------------------------------------------
    * Recall however that contesting an MSHA citation does not absolve 
the mine operator from abating the hazard. This substantial jump in 
contested cases is a resource and management problem, but has far less 
significance for workers' immediate health and safety.
---------------------------------------------------------------------------
  MANDATORY MINIMUMS FOR EXPOSING WORKERS TO WELL-KNOWN EXTREME DANGER

    An examination of occupational injury, illness and fatality data 
shows that the same hazardous conditions that killed and maimed U.S. 
workers 20 years ago are largely the same hazardous conditions that 
kill or maim U.S. workers today. In 2009, in the richest Nation on 
earth, there is no acceptable reason why workers still suffocate to 
death in unshored trenches. Trench collapses are preventable: the 
methods are well-established, and the equipment inexpensive and 
available. Yet last year, at least two dozen workers in our Nation died 
this way. Likewise, workers in the United States continue to die or be 
seriously maimed on the job from falls on residential construction site 
projects or because of unguarded equipment, inadequate lock-out/tag-out 
procedures, and uncontrolled combustible dusts and gases.
    Isn't it time that we, as a nation, proclaim that certain hazardous 
conditions in workplaces are not tolerated? Just as drunk drivers now 
receive hefty legal penalties and scorn from their peers, employers 
should pay dearly for allowing workers inside an unshored trench, 
permitting unguarded floor openings, tolerating inoperable safety 
devices and sending workers into confined spaces without proper 
training and equipment.
    Congress should direct OSHA to publish a list of specific hazardous 
conditions or work practices that will be deemed automatic willful 
violations. Citations issued under this provision would not be eligible 
for reclassification and would remain on the company's enforcement 
history record for a minimum of 10 years. This congressional mandate 
would include a requirement for OSHA to update the ``automatic 
willful'' list biennially.

        INADEQUATE STATUTORY MINIMUM AND MAXIMUM PENALTY AMOUNTS

    In 1991, after 20 years on the books, Congress amended Section 17 
of the OSH Act, authorizing OSHA to assess no less than $5,000 but no 
more than $70,000 for a willful or repeated violation, and up to $7,000 
for serious, other-than-serious and posting violations.\5\ It's time 
for another congressional update of OSHA's minimum and maximum penalty 
amounts, along with a mandate for OSHA to index them regularly to 
account for inflation.
    Figure 2 shows the inflation-adjusted equivalent of $7,000, the 
current maximum for a serious violation. In today's dollars, this 
maximum penalty--which, by the way, is rarely proposed by OSHA--has 
eroded to $4,428. If indexed to inflation, the $7,000 maximum would now 
be $11,065.



    Under the OSH Act, OSHA proposes the penalty amounts and the OSHRC 
assesses them through a final order. Within the minimum-maximum 
structure established by Congress in 1991, OSHA and OSHRC are also 
required by statute to consider four factors when determining the 
penalty amount:

    (1) the size of the business;
    (2) the gravity of the violation;
    (3) the employer's good faith; and
    (4) the employer's history of previous violations.

    The gravity of the violation, assessed in terms of the severity and 
the probability that an injury or illness could result from it, is the 
primary consideration in determining the penalty amount. This gravity-
based penalty amount ranges from $2,000 to $5,000,\6\ from which OSHA 
considers percentage reductions for the remaining three factors.\7\ For 
example, a firm with 1-25 employees nationwide will typically receive a 
60 percent reduction off the gravity-based penalty amount; for an 
employer with 26-100 employees or 101-250 employees, typical business-
size reductions are 40 percent and 20 percent, respectively.
    Congress should reset these penalty amounts and express its intent 
on how the statutory reduction factors should be applied. OSHA's 
current operations manual, for example, directs inspectors that the 
starting point for serious violation is $5,000, not $7,000 as 
authorized by Congress.\6\ In addition, the Department of Labor (that 
is, OSHA and the Solicitor's Office) should be prohibited from using 
the so-called ``Section 17'' designations to make willful and repeat 
violations disappear.\8\ They use this reclassification scheme even in 
the case of a worker's death or maiming. This practice poisons the 
potential deterrent effect of OSHA citations, and improperly allows a 
firm to preserves its reputation. The lawyers who negotiate these deals 
with OSHA on their employer-clients' behalf know a firm's bottom line 
is contingent on its reputation--a precious commodity in the business 
world. Most employers who receive willful or repeated violations from 
OSHA will pay almost any monetary fee to get a ``Section 17'' 
designation. Ultimately, these designations convey that their grievous 
violation of worker protection standard never occurred. By contrast, 
the families of workers maimed or killed on the job cannot pretend it 
never happened.
    Finally, Congress should consider the 1992 recommendation by GAO in 
their report examining OSHA penalties, specifically, that the economic 
benefits reaped by an employer for violating health and safety 
regulations should be a specific factor included in OSHA's penalty 
calculation.\3\

           AMPLIFY THE PREVENTION POTENTIAL OF OSHA CITATIONS

    Forty years ago, when businessmen needed sales, production or other 
information from factories or construction sites across the country, 
secretaries used shorthand, typewriters and carbon paper to prepare 
memos. The U.S. mail was the communication messenger. Businesses today 
have data at their fingertips, and with the click of a mouse can share 
critical information with their facilities across the county and the 
globe. With the power of this instantaneous communication, it's time to 
capitalize on the prevention potential of OSHA citations. For example, 
if a serious hazard or violation of a workplace standard is identified 
in an employer's workplace, that company should be expected to look for 
this same hazard in all of its other operations, once it has been put 
on notice that the hazard exists. With 21st-century communication tools 
at their fingertips, businesses are well-equipped to correct hazards 
and strengthen prevention programs across all of their sites.
    The OSH Act places a duty on employers to provide safe and healthy 
workplaces,\9\ but it imposes no obligation on them to address hazards 
on a company-wide basis. Congress should mandate such a duty on large 
companies. When a serious hazard has been identified by OSHA at one 
facility, the firm should be required to conduct an audit to determine 
whether the same hazard exists at other facilities. If comparable 
hazards or violations are found at another site, citations for those 
violations should be classified using the new category of ``reckless 
disregard.'' The corresponding civil penalty should be hefty (e.g., 
$220,000 as provided in the MINER Act of 2006.) \10\

               MEANINGFUL ROLES FOR VICTIMS AND FAMILIES

    In the wake of the January 2006 Sago mine disaster, I had the 
privilege to serve on the special investigation team appointed by West 
Virginia Governor Joe Manchin. Through that experience, I came to 
understand and appreciate the fundamental right of family-member 
victims to have a meaningful role in formal accident investigations, 
and the vital contribution that they can make to the process. There is 
no one more interested in finding the truth about the cause of an on-
the-job death than a worker-victim's loved ones.
    I heard then, and still hear today, proponents of the status quo 
argue that family members will impede the investigation, that family 
members have a conflict of interest, or that family members are too 
emotional to be useful in the fact-finding. My experience with the Sago 
families tells me that nothing is further from the truth. Yes, the 
logistics were more complicated managing the needs of 12 different 
families, and yes, many times our interactions were heart-wrenching, 
but no one paid closer attention to details, pressed the Federal and 
State investigators harder for answers, or raised the bar for mine 
safety reforms higher than those daughters, wives and brothers.
    Of the many memorable experiences, one in particular stands out as 
relevant to our purposes today. For many weeks following the disaster, 
MSHA and State investigators conducted closed-door interviews with the 
miners who escaped after the explosion, mine rescue team members, other 
mine workers and management officials. More than 70 private interviews 
were conducted, and investigators collected supporting documents used 
during the interviews (e.g., mine maps, pre-shift examination records, 
etc.). What do you think happened as soon as these interviews 
commenced? Understandably, the families wanted to know who was being 
interviewed and what the investigators were learning. From the prudent 
perspective of the investigators, they will not typically share any 
information until the investigation is completely closed, and this had 
historically been MSHA's firm practice. At the same time, the family 
members yearned to learn as much as they could about their loved ones' 
final hours.
    Putting oneself in the family members' shoes, you realize that 
dozens of people (people you don't know and have never met) are 
learning the circumstances that led to your loved one's death, but 
you--his parent, his wife, his child--are left in the dark. As I talked 
with family members in the early days of the Sago investigation, as 
these interviews were first taking place, I realized that we needed to 
balance the families' right to know with the needs and the legal 
responsibilities of technical investigators. In an unprecedented move, 
we quickly identified a compromise. It was not perfect, but it served 
both goals: once all the witness interviews were completed, but well 
before the investigation was closed, we gave each family a complete set 
of the transcripts and supporting documents. Despite the unease and 
anxiety expressed by some, including the historically based assertion 
that such disclosures would impede the investigation, no calamity 
ensued. In fact, some of the family members devoted long days and 
nights to studying the transcripts and were able to alert us to 
inconsistencies in witnesses' testimony and identify topics deserving 
closer scrutiny. In my professional life, my involvement with the Sago 
investigation and the families has been one of the most rewarding and 
enlightening experiences in my public health career.
    In my recommendations listed below, I offer several suggestions to 
provide fundamental rights to family-member victims of serious 
workplace incidents and opportunities for their meaningful 
participation in incident investigations.

                       RECAP AND RECOMMENDATIONS

Family-Member Victims of Workplace Fatalities and Catastrophes
    1. I respectfully suggest that members of the committee read 
``Workplace Tragedy: Family Bill of Rights,'' \11\ a document prepared 
by family members who have lost loved ones to workplace disasters. It 
contains powerful examples of how the current enforcement system 
ignores the needs of family-member victims. I concur with the spirit of 
many of its recommendations.
    2. The Secretary of Labor should appoint a Federal advisory 
committee made up of injured workers and family-member victims of 
workplace fatalities and catastrophes, to give SOL, OSHA and MSHA 
officials advice on improving the prevention potential of the 
enforcement and accident investigation systems. The advisory committee 
would provide a mechanism for senior DOL officials to interact with 
individuals who have personal knowledge and interest in achieving 
substantial improvement in our Nation's injury and illness prevention 
system.
    3. Victims' family members or their designated representative 
should have status equal to that of employers in OSHA and MSHA 
investigations of fatalities and catastrophes.
    4. Family members should be given access to all documents gathered 
and produced as part of the accident investigation, including records 
prepared by first responders and State and Federal officials, and all 
fees related to the production of documents should be waived for family 
members. The release of this information should be prompt, and no later 
than the day that any citations are issued to the employer. Exceptions 
should be permitted when bona fide evidence demonstrates that a 
criminal investigation could be hampered by such release.
OSHA's Civil Penalty System
    5. Congress should give OSHA the authority to compel abatement of 
hazards regardless of an employer's decision to contest a citation and/
or penalty. Moreover, reclassification of citations (e.g., from serious 
to other-than-serious) should be reserved for circumstances in which 
the employer agrees to implement an intervention that goes above and 
beyond mere compliance with an OSHA standard.
    6. OSHA should capitalize on the reputation costs to employers who 
violate OHS standards by making workers, competitor businesses and the 
public much more aware of companies' OSHA enforcement history. This 
would entail offering a web-based system with data on employers' 
specific violations, informal settlement demands, contest history, etc.
    7. Congress should direct OSHA to publish a list of specific 
hazardous conditions or work practices that will be deemed automatic 
willful violations and that will not be eligible for ``Section 17'' 
designations or other reclassification by OSHA.
    8. Congress should reset the current statutory minimums and 
maximums for OSHA civil penalties and mandate that OSHA index them 
regularly to account for inflation.
    9. OSHA's penalty calculation should include a specific factor that 
assesses the economic benefits reaped by an employer for violating 
health and safety regulations, which will level the economic playing 
field for firms that invest in progressive, effective OHS labor-
management systems.
    10. Congress should impose an obligation on large firms to address 
hazards on a company-wide basis, once they have been identified by OSHA 
at one of the firm's facilities. A new category of violation, 
``reckless disregard,'' should be created for employers who fail to use 
an OSHA citation as notice of a hazardous condition to be corrected 
elsewhere.
Occupational Safety and Health Review Commission
    11. Congress should examine the impact on our workplace injury and 
illness prevention program of OSHRC's decisions and administrative 
performance. Some cases before the OSHRC languish there for years 
(e.g., the April 2009 decision in Secretary of Labor v. E. Smalis 
Painting Co., dating back to a 1993 inspection), and these delays 
likely have a downstream effect on OSHA's enforcement practices.
    12. Congress should examine whether OSHRC's resources are 
sufficient to ensure speedy resolution of disputed citations; 
indecision and delay at OSHRC obstruct the potential deterrent effect 
of OSHA citations and penalties. Appendix A presents data on the number 
of cases received and disposed of by OSHRC in recent years.
    13. Congress should direct OSHRC to provide more information on its 
public Web site about pending cases. This could be a simple electronic 
spreadsheet with data fields such as case number, employer, worksite 
location, date of OSHA citation, status of litigation, date of final 
decision and the URL for the final decision text. Making this 
information available increases the likelihood that frequent and severe 
offenders will suffer deserved reputational damage.
State-Based Workers' Compensation System
    14. Congress should reauthorize for a 2-year period the National 
Commission on State Workers' Compensation Laws. It has been almost 40 
years since the Congress has examined the adequacy and effectiveness of 
these laws for occupational injury and illness prevention. As the 
Administration and Congress move forward on proposals to improve our 
healthcare delivery and financing systems, it would be appropriate for 
the debate to include an informed assessment of State workers' 
compensation laws.\12\

                               References

    1. U.S. Bureau of Labor Statistics. Table 1 ``Total coverage (UI 
and UCFE) by ownership: establishments, employment and wages, 1998-
2007, annual averages, BLS establishment data'' Available at: http://
www.bls.gov/cew/ew07table1.pdf.
    2. Grad FP. The Public Health Law Manual, 3rd ed. Washington, DC: 
American Public Health Association, 2004. See Chapter 11 ``Civil 
Sanctions.''
    3. U.S. General Accounting Office. Report to the Subcommittee on 
Health and Safety, Committee on Education and Labor, U.S. House of 
Representatives. Occupational Safety and Health: Penalties for 
Violations are Well Below Maximum Allowable Penalties,'' April 1992.
    4. Section 10(b) of OSH Act.
    5. H.R. 5835, Omnibus Budget Reconciliation Act of 1990 (Enrolled 
as Agreed to or Passed by Both House and Senate).
    6. OSHA's Field Operations Manual states, ``if the Area Director 
determines that it is appropriate to achieve the necessary deterrent 
effect, a GBP of $7,000 may be proposed instead of $5,000. Such 
discretion should be exercised based on the facts of the case. The 
reason for this determination shall be fully explained in the case 
file.'' OSHA's Field Operations Manual, CPL 02-00-148, March 26, 2009. 
Pages 4-5, 4-6. Available at: http://www.osha.gov/OshDoc/Directive_pdf/
CPL_02-00-148.pdf at page 6-6.
    7. OSHA's Field Operations Manual, Chapter 6: Penalties and Debt 
Collection.
    8. U.S. Senate. Committee on Health, Education, Labor, and 
Pensions. ``Discounting Death: OSHA's Failure to Punish Safety 
Violations that Kill Workers,'' April 29, 2008.
    9. Section 5(a) of OSH Act.
    10. Under the Miner Act of 2006, Congress created a new violation 
category called ``flagrant'' representing ``reckless or repeated 
failure to make reasonable efforts to eliminate a known violation of a 
mandatory health or safety standard that substantially and proximately 
caused, or reasonably could have been expected to cause, death or 
serious bodily injury.'' A civil penalty of up to $220,000 can be 
assessed. Since the law was passed, MSHA has used the ``flagrant'' 
classification 92 times with assessed penalties totaling $14,552,400.
    11. ``Workplace Tragedy: Family Bill of Rights'' available at: 
http://www.usmwf
.org/.
    12. See also: Woeppel P. Depraved Indifference: The Workers' 
Compensation System. IUniverse, 2008.

                               Appendix A

                                          Occupational Safety and Health Review Commission Performance Measures
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 ALJ decisions                           Commission decisions
                                                                 ---------------------------------------------------------------------------------------
                                                                    Cases                                       Cases
                            Fiscal year                            carried                No. of    Balance    carried                No. of    Balance
                                                                  over from    No. of     cases     for the   over from    No. of     cases     for the
                                                                   previous  new cases   disposed  next year   previous  new cases   disposed  next year
                                                                     year                   of                   year                   of
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008............................................................        625      1,962      1,848        736         25         13         18         20
2007............................................................        685      1,998      2,058        625         27         25         27         25
2006............................................................         nr         nr         nr         nr         40         13         26         27
--------------------------------------------------------------------------------------------------------------------------------------------------------
nr = Not reported.


            Percentage of Cases Over 2 Years Old Disposed Of
------------------------------------------------------------------------
                                                                 Percent
                          Fiscal year                               of
                                                                  cases
------------------------------------------------------------------------
2008...........................................................       23
2007...........................................................       32
2006...........................................................       22
2005...........................................................       52
2004...........................................................       42
------------------------------------------------------------------------
Source: Occupational Safety and Health Review Commission. Performance
  and Accountability Reports. Available at: http://www.oshrc.gov/
  performance/performance.html.


    Senator Murray. Thank you very much.
    Mr. Frederick.

 STATEMENT OF JIM FREDERICK, ASSISTANT DIRECTOR FOR SAFETY AND 
          HEALTH, UNITED STEELWORKERS, PITTSBURGH, PA

    Mr. Frederick. Thank you and good morning. I appreciate the 
opportunity to appear before you this morning to discuss the 
Union's response to workplace fatalities and severe injuries.
    My name is Jim Frederick. I'm a member of the United 
Steelworkers and also the Assistant Director of the Union's 
Health, Safety and Environment Department. I've spent my 19-
year career identifying and addressing workplace health and 
safety hazards and responding to worker deaths, injuries and 
illness. Over the course of my career I have personally 
investigated dozens of fatalities. And have overseen the 
investigation of hundreds of fatal and catastrophic injuries.
    On Friday April 18, 2008 a USW member named Roger said good 
bye to his wife and went to work like he had done almost every 
day for the past 41 years. His plant had seen its ups and 
downs, bankruptcy, buyout and a new ownership. He had been laid 
off, had lost his job when the plant went out of business, lost 
much of his retirement and rehired in recent years.
    His co-workers described him as an extremely capable, 
conscientious and competent maintenance person. He and his crew 
had performed maintenance on a piece of equipment that he had 
helped install and maintained over the years. He knew the piece 
of equipment well. He had walked past the machine many times 
every day to get back and forth to the maintenance shop.
    Through a miscommunication Brother Roger returned to check 
on the equipment while it was operating and in manual mode 
because the machine didn't sound like it was running correctly. 
While he was checking the equipment it was placed into 
automatic mode. When the machine started running Brother 
Roger's head was crushed in the equipment due to a missing 
machine guard.
    The employer, OSHA and the USW all investigated the 
fatality. OSHA eventually issued four citations and proposed a 
penalty of $13,000. OSHA then met in a conference with the 
employer, dropped one of the citations and reduced the penalty 
to a little bit over $6,000.
    Through the course of the Union's investigation, we 
contacted Roger's family. But the family did not receive 
information from OSHA except for the letter that they received 
from Washington asking the family to accept OSHA's sincerest 
sympathy. The family cared about the OSHA investigation, but 
was not afforded an opportunity to participate in the process.
    This scenario was unfortunate. It's unfortunately typical 
of OSHA's practice today. But it doesn't have to be the norm.
    The USW usually receives notification of USW members killed 
at work within hours of the accident. The USW responds to every 
member fatality and many serious injuries every year. We 
respond as quickly as possible, 24 hours a day and 365 days a 
year.
    Our response is twofold.
    First the member of the Union's health, safety, environment 
department responds to assist the local union regulators and 
others investigating the accident. Our role is to identify root 
causal factors, serve as an advocate for the victim, co-workers 
and local union and to assist the local union in advocating for 
changes needed to prevent such a tragedy from happening again.
    Second, a member of the USW Emergency Response Team is 
dispatched to act as a liaison between the victim and/or their 
family, the local union and the employer. The ERT staff also 
provides the family with access to support and services from 
the USW local union, the international union and other sources. 
Finally the ERT staff facilitates counseling and assistance for 
witnesses and co-workers to assist them in dealing with their 
own emotional trauma.
    Both elements of the response are equally important to the 
process and aid us in correcting the hazards at the workplace 
that caused the incident and sharing the information about the 
incident to others.
    When the USW team arrives at the local union hall we 
evaluate the facts available. The team recognizes that there 
are three sets of victims, the injured or deceased members, the 
co-workers or witnesses and the family members of those 
involved. We recognize that each has much to offer in the 
investigation process.
    In some instances valuable information about a faulty piece 
of equipment or bad process has been shared between the 
accident victim and their co-workers or family. Although there 
are inherent challenges with obtaining information from any 
person the information from co-workers and sometimes family 
members is often crucial to the union's investigation. The USW 
investigation response process provides us with a framework to 
obtain information from these valuable sources.
    It's impossible to express the extent of the depth of a 
loss to a family that a family experiences when a loved one is 
killed at work. The emotions involved are immense. In some 
cases involvement by the family in the OSHA process provides 
them an outlet for the family members to address some measure 
of these emotions and understand how and why their loved one 
was killed.
    The first question almost always asked to us by the family 
is, ``What happened to my loved one?'' Our department, the 
Union's Health Safety and Environment Department spends as much 
time as we can working with local unions to establish 
proactively good health and safety programs in our workplaces. 
But, unfortunately, the union still experiences a fatality to a 
member at a rate of approximately one every 9 days. This 
doesn't take into account occupational disease and when we take 
that into account, we recognize that we lose a member due to 
workplace hazards daily.
    The Protecting American Workers Act will provide an 
important link for injured workers and families of workers 
killed on the job to meet with OSHA regarding the inspection or 
investigation conducted and to ensure that the agency and 
family understands everything they can about the circumstances 
of the accident. Before OSHA determines what citation needs to 
be issued, the family and the victims must have a say. The 
Union also should have a better opportunity to provide OSHA 
with relevant details to ensure that the agency is working with 
all the facts.
    The proposed act will also provide victims and their 
families with access to the citations issued in a timely 
manner. Currently many serious injury and fatality inspections 
take place and neither the local union nor the international 
union receives copies of the citations in a timely fashion. 
Sometimes the union does not receive them at all. The victim, 
their family and the union should receive copies of the 
citation on the same day as the employer.
    So, Madame Chair, you and your subcommittee have a unique 
and important opportunity. By taking the lead in advocating for 
standard rights of injured workers and their families in the 
OSHA process, you can ensure that the voices of workers and 
family members who have much to contribute will be included in 
the deliberations of the OSHA inspection, thus insuring the 
agency's better implementation of the intentions of the 
Occupational Health and Safety Act. Thank you again. And I'll 
submit my written testimony as well.
    [The prepared statement of Mr. Frederick follows:]

                Prepared Statement of James S. Frederick

    Madame Chair and members of the subcommittee, thank you for the 
opportunity to appear before you this morning to discuss the Union's 
response to workplace fatalities and severe injuries. This issue is 
extremely important to me and to the United Steelworkers' officers, 
staff, our thousands of health and safety activists, and the Union's 
membership generally. My name is Jim Frederick. I am a member of the 
United Steelworkers, and the assistant director of the Union's Health, 
Safety and Environment Department in Pittsburgh, PA. I have spent my 
19-year career identifying and addressing workplace health and safety 
hazards and responding to worker deaths, injuries and illnesses. Over 
the course of my career, I have personally investigated dozens of 
fatalities and have overseen the investigation of hundreds of fatal and 
catastrophic injuries.
    The USW represents workers in a diverse set of industries and 
occupations. They manufacture steel, slurry and smelt aluminum, mine 
for iron ore and create cement. They make glass and mattresses, produce 
paper and paper products, craft energy-saving wind turbines that help 
save our Earth, and toil as nurses and nurses' aides helping to save 
lives. We represent the rubber workers who make your tires; metal 
workers who make the materials that go into buildings, homes, 
automobiles, planes and roads. Our members serve you at banks, assist 
you in retail stores, drive school busses and work at universities. You 
will find our members working in oil refineries, utility companies, and 
chemical plants. We represent workers in the public sector in town 
libraries and water treatment plants. Our members log forests. In 
total, the USW represents 1.2 million active and retired members in the 
United States, Canada and the Caribbean.

                           SAFETY INCENTIVES

    The title of this hearing is ``Introducing Meaningful Incentives 
for Safe Workplaces and Meaningful Roles for Victims and Families.'' I 
will spend my time discussing the role of victims and families in 
accident and fatality investigations; however, I want to mention the 
concern raised by the connotation of incentives in workplace safety and 
health from the perspective of workers and unions.
    The USW recognizes that the incentive reference in today's hearing 
as it relates to the legislation before the subcommittee deals with 
increased penalties and other provisions to improve workplace safety 
and streamline the role of OSHA in protecting workers and workplaces. 
However, we want to make a distinction between ``incentives'' used in 
the title of this important hearing, and the problematic way in which a 
growing number of employers link ``incentives'' to ``safety'' in their 
version of ``safety incentive programs,'' because these are, in fact, 
incentives to underreport workplace injuries and illnesses.
    Workers and Unions in every sector of the economy are struggling 
with employer-implemented programs, policies and practices that 
discourage the reporting of workplace injuries and illness. Employers' 
``safety incentive programs'' provide prizes or rewards to individuals 
or workplace groups based on the absence of reported injuries and 
illnesses. Last year, Congressman George Miller, Chair of the U.S. 
House of Representatives' Committee on Education and Labor, convened a 
hearing and released a report titled ``Hidden Tragedy: Underreporting 
of Workplace Injuries and Illnesses'' which documented that up to 70 
percent of job injuries and illnesses go unrecorded. The report 
presented four employer ``incentives'' to underreport workplace 
injuries and illnesses: low injury/illness rates decrease the chance of 
having an OSHA inspection; they decrease workers' compensation claims; 
they can earn businesses and supervisors bonuses; and, they look good 
to customers and the public.
    Our goal in occupational health and safety is to create safe 
workplaces and prevent workplace injuries, illnesses and death. Unsafe 
workplace conditions that put our members' health and lives at risk are 
identified in many ways, including injury reports and subsequent 
incident investigations. When injuries are not reported, unsafe 
conditions go unchecked. As a result, the unsafe condition or hazard 
remains in the workplace, threatening the health, limbs or lives of 
others. I have personally investigated a steelworker workplace fatality 
where a co-worker of the victim explained that if he would have only 
reported the minor injury that he received from the same process, 
perhaps the hazard would have been addressed and his co-worker and 
friend would still be alive. This workplace had a safety ``incentive'' 
program that rewarded the group of workers in the area each month if 
none of them reported an injury. These kinds of employer-implemented 
safety ``incentives'' are the opposite of the incentives being promoted 
today; the two should never be confused.

   USW FATALITY EXPERIENCE AND VICTIM ASSISTANCE TO OSHA INSPECTION 
                                PROCESS

    On Friday, April 18, 2008, a USW member named Roger said goodbye to 
his wife and went to work like he had done almost every day for the 
past 41 years. His plant had seen its ups and downs, bankruptcy, buyout 
and new ownership. He had been laid off, lost his job when the plant 
went out of business, lost much of his retirement and rehired in recent 
years. His co-workers described him as an extremely capable, 
conscientious, and competent maintenance person.
    He and his crew had performed maintenance on a piece of equipment 
that he had helped to install and maintain over the years. He knew this 
piece of equipment well. He walked past the machine many times to get 
to the shop. The plant maintenance staff had been reduced at the plant 
and the job classifications combined.
    Through a miscommunication, Brother Roger returned to check on the 
equipment while it was operating in manual mode because the machine 
didn't sound like it was running correctly. While he was checking the 
equipment it was placed into automatic mode. When the machine started 
running, Brother Roger's head was crushed in the equipment due to a 
missing machine safeguard.
    The employer, OSHA and the USW all investigated the fatality. OSHA 
eventually issued four citations and proposed a penalty of $13,375. 
OSHA then met in conference with the employer, dropped one of the 
citations and reduced the penalty to about $6,375. Through the course 
of our investigation and the OSHA investigation process, the USW 
contacted Roger's family, but the family did not receive information 
from OSHA except for a perfunctory letter from Washington, asking the 
family to accept OSHA's sincerest sympathy in the tragic death of 
Roger. The family cared about the OSHA investigation, but was not 
afforded an opportunity to participate in the process. This scenario 
is, unfortunately, typical of OSHA's practice today. But it doesn't 
have to be the norm. OSHA's Compliance Directive for fatality 
investigations (CPL 02-00-137) states, ``Whenever practical, contact 
family members of employees involved in fatal or catastrophic 
occupational accidents or illnesses at an early point in the 
investigation and give the family an opportunity to discuss the 
circumstances of the accident or illness.'' The Protecting America's 
Workers Act will codify this guideline, making it a mandatory part of 
the investigation.
    The USW usually receives notification of USW members killed at work 
within hours of the accident. The USW responds to every member fatality 
and many serious injuries each year. We respond as quickly as possible; 
24-hours a day and every day of the year. We also respond to non-member 
fatalities (contractors, managers, etc.) in USW-represented facilities, 
when our members are exposed to the same or similar hazards.
    The USW response is two-fold. First, a member of the Health, Safety 
and Environment department responds to assist the Local Union, 
regulator and others investigating the accident. Most of the time, this 
involves immediate travel to the site to participate in the 
investigation. Our role is to identify root causal factors; serve as an 
advocate for the victim, co-workers, and Local Union; and, to assist 
the Local Union in advocating for the changes needed to prevent such a 
tragedy from happening again. Second, a member of the USW Emergency 
Response Team (ERT) is dispatched to act as a liaison between the 
victim and/or their family, the Local Union, and the employer. The ERT 
staff also provides the family with access to support and services from 
the USW Local Union, International Union and other sources. Finally, 
ERT staff facilitates counseling and assistance for witnesses and co-
workers to assist them in dealing with their own emotional trauma. Both 
elements of the response--accident investigation and family/co-worker 
support and assistance--are equally important to the process and aid us 
in correcting the hazards at the workplace that caused the incident and 
sharing the information about the incident, hazards and causal factors 
to the broader USW membership, other workers, employers and others so 
that we can prevent future tragedies and catastrophes.
    When the USW team arrives at the Local Union hall we evaluate the 
facts available. The team recognizes that there are three sets of 
victims; the injured or deceased member(s), the co-workers or 
witnesses, and the family members of those involved. We recognize that 
each has much to offer to the investigation process. In some instances, 
valuable information about a faulty piece of equipment or bad process 
has been shared between an accident victim and their co-workers or 
family. Although there are inherent challenges with obtaining 
information from any person, the information from co-workers and 
sometimes family members is often crucial to the Union's investigation. 
The USW investigation and response process provides us with a framework 
to obtain information from these valuable sources.
    It is impossible to express the extent and the depth of the loss 
that a family experiences when a loved one is killed at work. The 
emotions involved are immense. In some cases, involvement by the family 
in the OSHA process provides an outlet for the family members to 
address some measure of these emotions and understand how and why their 
loved one was killed, and to heal. The first question almost always 
asked by the family is, ``What happened to my loved one?'' They have 
very little access to information and sometimes hear directly or 
indirectly from the employer that their loved one was at fault.
    When our members die at work, they are almost always single 
incidents involving one member. Major catastrophes involving many 
workers occur occasionally, such as the explosion at BP Texas City, TX 
in 2005 killing 15 and injuring more than 170. These large events are 
documented on the evening news, but the single fatalities tend to be 
unnoticed beyond the local media. Few people beyond the workplace 
recognize the extent of worker fatalities. For the industries covered 
by the Occupational Safety and Health Act, OSHA provides a consistent 
thread in the investigation of fatalities and the Protecting America's 
Workers Act will add support to victims and their families.
    The USW Health, Safety and Environment Department spends most of 
our time working with our Local Unions to establish and maintain 
workplace effective health and safety programs, active safety 
committees, and to prevent injuries and illnesses. We provide a variety 
of assistance including training to our members and for joint labor-
management groups. However, the USW experiences a member killed at work 
at a frequency of one every 9 days in workplaces that we represent. 
Most of these fatalities are in workplaces covered by OSHA and usually 
the fatality involves a recognizable workplace hazard. The Union's 
experience of fatalities over the past several years is summarized in 
the following table:


------------------------------------------------------------------------
                                                              USW member
                            Year                               workplace
                                                              fatalities
------------------------------------------------------------------------
2004........................................................         47
2005........................................................         44
2006........................................................         38
2007........................................................         44
2008........................................................         43
2009\1\.....................................................          8
------------------------------------------------------------------------
\1\ 2009 USW member fatality number through April 20, 2009.

    However, this does not tell the whole story. We believe that we 
receive notice of almost every member of the USW Union killed at work, 
but we rarely receive information on member deaths from occupational 
disease. Occupational disease deaths often occur after retirement; many 
are not recognized as work-related. Although some programs exist to 
address occupational disease, such as the U.S. Department of Energy's 
Former Worker Program, the vast majority of occupational disease is not 
properly counted. We recognize that for every member killed at work in 
a traumatic injury, that 8 to 10 members will die from occupational 
disease. In other words, a USW member or retiree dies from work-related 
hazards daily.
    The Protecting America's Workers Act will provide an important link 
for injured workers and families of workers killed on the job to meet 
with OSHA regarding the inspection or investigation conducted and to 
ensure that the Agency and family understands everything they can about 
the circumstances of the accident. Before OSHA determines that no 
citation needs to be issued, the victim, their family and the Union 
must have the opportunity to provide OSHA with relevant details to 
ensure that the Agency is working with all the facts.
    The proposed Protecting America's Workers Act will also provide 
victims, their families and Unions with access to the citations issued 
in a timely manner. Currently, many serious injury and fatality 
inspections take place and neither the Local Union nor the 
International Union receives copies of citations in a timely fashion, 
and sometimes the Union does not receive them at all. Even in those 
cases where the Area OSHA office and/or the OSHA State plan regulator 
provide copies of the citations to the Union or the family, they are 
often received after-the-fact, and not in time for effective 
participation in the process. The victim, their family and the Union 
should receive copies of the citations at the same time as the 
employer. Given the technology available today, the Union can 
facilitate communication between OSHA and the family, in organized 
workplaces.

                             THE NEXT STEPS

    Madame Chair, you and your subcommittee have a unique and important 
opportunity. By taking the lead in advocating for expanded rights of 
injured workers and their families in the OSHA process, you can ensure 
that the voices of workers and family members who have much to 
contribute will be included in the deliberations of an OSHA inspection, 
thus ensuring the Agency's better implementation of the intentions of 
the Occupational Safety and Health Act of 1970.
    Thank you again for the opportunity to testify this morning.

    Senator Murray. Thank you very much.
    Ms. Miser.

STATEMENT OF TAMMY MISER, FOUNDER, UNITED SUPPORT MEMORIAL FOR 
              WORKPLACE FATALITIES, LEXINGTON, KY

    Ms. Miser. Hi. I would like to thank you for holding this 
meeting, caring enough to invite all of us and for the honor of 
being able to represent family members here. When a loved one 
dies or they are injured on the job usually the families have 
no clue where to go for answers.
    They have a special need to understand the death and the 
grief persists and it stays unresolved until they get certain 
answers. There are usually some answers, but it's kind of like 
a homicide. Whether it's voluntary or involuntary the questions 
are, ``Did my son suffer?'' ``Was my Dad alone when he 
passed?'' ``How did my sister die?'' ``Has it happened before 
and will it happen again?''
    When they start asking OSHA these questions, these simple 
questions, they usually explain how the process works. But they 
are also told that they can not disclose any information until 
the investigation is finished. They hardly ever tell these 
families that there are extensive settlement and appeal 
opportunities. So this can go on for years and years.
    If there is a union on site they can have representation. 
But if the union chooses not to represent in this case then 
there is not a voice for the injured, killed or any worker that 
was made ill because of this place. So there's really no voice 
for these individuals.
    It's not about money. So often we hear well it's about the 
money or they're taken care of. Well sadly, half these States 
don't even cover worker's comp.
    So they have had their loved one taken away from them and 
they are footing the bill too. And you know, that right there 
is a tragedy. They should have at least that done, that taken 
care of.
    So it's not about the money. It's about the individual 
families knowing that they have fought for the rights of their 
loved one when they could not do that anymore. It's also so 
that we know that there's not another worker having to go 
through what our loved ones have went through. And that there's 
not another family suffering like we have.
    Families should be given the opportunity to participate in 
these investigations. After speaking to dozens and dozens of 
families and employers, we all agree that these changes need to 
be made in OSHA. The average OSHA fine is $903 for a serious 
violation. These fines need to be raised because it is not a 
deterrent against a poor safety record.
    As important as raising the fines are collecting these 
penalties. OSHA fails to collect almost half of these 
penalties. So even though they are low, they're not even 
collecting these. This makes it cheaper to kill somebody, put 
somebody at risk than it is to fix the immediate danger.
    An advisory committee. We would like to see the Secretary 
of Labor appoint this committee. And it should be comprised of 
the family members, injured or ill workers and other worker 
safety advocates.
    The committee would serve as a conduit between the family 
members, the victims and the Department of Labor. The group 
would share their first-hand experience with OSHA, MSHA and the 
Solicitor's Office and make recommendations from the family 
member's point of view. This would help to make health and 
safety--it would put more of a focus on prevention instead of 
an after-the-fact.
    Families want to have full party status in these legal 
proceedings. We would like to have a designated representative, 
whoever that may be, act on the behalf of the families and be 
notified of all meetings, calls, hearings, communications. The 
involvement of the family members would make a huge difference. 
We would also like to see these representatives actually 
involved in the actual meeting itself, not just have the 
information because families have information that nobody else 
can have.
    If you have a family member that's worked there for 14 
years, they know just as much as the worker that was injured or 
killed. We get information from the workplace itself. We would 
like to have access to all these documents and not have to pay 
for it.
    Family members have to pay for this information. And really 
they should not have to. I mean there's really no need to 
charge them for the paperwork.
    Employers, themselves, on another note, need to be able to 
call OSHA when they have a question and not have the fear of 
being audited. Almost every employer that I've talked to, this 
is their main fear. That they are going to be audited for the 
issue that they are calling for.
    They really do--there are employers out there that are 
good. And they need the guidance. They need to be able to get 
the information when they need it and be directed to the 
correct training because I really believe that some of these 
employers do want to keep our families safe. And they really do 
need this option.
    Thank you very much.
    [The prepared statement of Ms. Miser follows:]

                   Prepared Statement of Tammy Miser

    I would like to thank Chair Senator Murray and Ranking Member 
Senator Isakson for caring enough to hold this hearing and for the 
honor of being invited to represent the family member victims of 
workplace tragedies.
    When a loved one is injured or dies on the job families do not know 
where to turn for answers. Families have a special need to understand 
the death because grief persists and is unresolved unless all available 
information about the circumstances of the work-related fatality or 
injury is shared in a timely manner. It is like homicide, whether the 
incident was voluntary or involuntary, the family strives to find out 
certain information. Simple questions like: Did my son suffer? Was my 
dad alone when he passed? How did my sister die? Has it happened before 
in other workplaces? Can we keep it from happening again? Why was this 
allowed to happen?
    Families may be told how the investigation process will work, but 
this information often comes at a time when you cannot understand it. 
When family members get to a place in their grief where they need 
information about the status of the investigation the standard 
information is repeated and they are dismissed from further 
participation. The most typical response from the agency is that they 
can't disclose any information until the investigation is finished. (On 
the OSHA side that is about 6 months, as required by statute; on the 
MSHA side it can be much longer.) It is rarely explained to family 
members that employers have extensive settlement and appeal 
opportunities which can make the case drag on for years. When this 
happens, family members' long wait for answers goes on and on. Until 
the case is closed, and it becomes a final order of the OSH Review 
Commission, the details and documents assembled by the Labor Department 
are off limits to family members.
    Even when an accident investigation case file is closed, family 
members may still have to fight to obtain all the written records in 
the case file. Being shut-out of the investigation process breeds 
resentment, distrust and compounds their grief, especially in those 
circumstances when families learn that company workers and co-workers 
know more about their loved one's death because they were participants 
in OSHA's investigation. For many family members, it seems like 
everyone else at the worksites knows more about what happened than they 
do even though this information may not be factual. Family member 
victims should be given the opportunity to participate in the 
investigation process throughout the entire process.
    Currently, the investigation involves DOL staff (OSHA, MSHA, and 
SOL) representatives of the company and their attorneys and experts, 
and if there is a union at the site, a representative of the workers 
may also participate. So if there is no union or the union chooses to 
have no representation then there is no one that can speak on the 
behalf of workers killed, injured or made ill by exposures at work. 
Families can often have substantial factual information that could 
impact the case such as prior problems with hazards involved in the 
incident.
    Now before I go any further I want to dismiss the myth that family 
member victims of workplace deaths are money hungry. Time and time 
again I hear ``well at least the families are taken care of '' or that 
families are all driven by greed. Nothing could be further from the 
truth. In fact, in some States the burial allowance provided under 
workers' compensation barely cover today's funeral expenses. That's a 
real slap in the family's face; not only did they have a loved one 
ripped out of their lives but they have to foot the bill too.
    Families cannot sue the employer; some may get involved in third 
party lawsuits but this is rare. When private civil action is taken we 
often can't learn of the end result because gag orders are imposed. 
There is absolutely no way for families to secure compensation through 
participating in the OSHA investigation process. The only thing 
families have (and want) to gain is the knowledge that they fought for 
the rights truth and justice of their loved one when they are no longer 
able to, and that they may be able to keep another worker from 
suffering harm and another family from unbearable loss and grief.
    After speaking with dozens and dozens of families from across the 
country and with concerned employers, these are the changes that we 
think need to be made:

    1. The average OSHA fine is $900.03 for a serious violation. OSHA 
fines need to be raised so that they serve as a deterrent against poor 
safety records.
    2. As important as raising the fines are the collection of the 
penalties. OSHA fails to collect almost half of the fines imposed 
meaning these employers know it is cheaper to risk killing someone at 
work than to address the immediate danger.
    3. An advisory committee should be appointed by the Secretary of 
Labor to be comprised of family members, injured or ill workers, or 
other worker safety advocates. The advisory committee would serve as a 
conduit between family member victims and the Department of Labor. The 
group would share their first-hand experience with OSHA, MSHA and SOL 
officials, and make recommendations from the family member's point of 
view for a H&S regulatory system that focuses on prevention.
    4. Families want to have full party status in these legal 
proceedings by:

        a.  Having a designated representative to act on their behalf 
        that will be notified of all meetings, phone calls, hearings or 
        other communications involving the accident investigation team 
        and the employer.
        b.  The representative should be given the opportunity to 
        participate in these events, recommend names of individuals to 
        be interviewed and any pertinent information that may help with 
        the investigation. Because many times families have information 
        that OSHA will never gain otherwise. Such as the employers past 
        history with deaths injuries and safety conditions.
        c.  Have access to all documents gathered and produced as part 
        of the accident investigation; including records prepared by 
        first responders, State and Federal officials and all fees 
        related to the production of documents should be waived for 
        family members.

    Now on a final note: Concerns from employers echo a common theme. 
Employers want to feel free to call OSHA when they have questions and 
be directed to materials and training without the fear of being audited 
and fined for the very reason they are asking for help. They want real 
guidance and if they are truly interested in keeping our families safe 
and I believe many are, they need to have this option.
    I have inserted the family bill of right which covers most of this 
and has examples of what some families have had to deal with during 
this time.
    [The information referred to above can be found at http://
www.usmwf.org.]

    Senator Murray. Mr. Brown.

 STATEMENT OF WARREN K. BROWN, PRESIDENT, AMERICAN SOCIETY OF 
               SAFETY ENGINEERS, DES PLAINES, IL

    Mr. Brown. Senator Murray, Senator Isakson, Senator Brown, 
panel members and guests, I am Warren Brown. As the President 
of the American Society of Safety Engineers, ASSE, I am pleased 
to be here today on Worker's Memorial Day representing the more 
than 32,000 safety, health and environmental professionals who 
belong to the ASSE. We too want to extend our sympathies to the 
families here and everywhere today who lost loved ones in the 
workplace.
    ASSE was founded in 1911 shortly after the Triangle 
Shirtwaist Factory tragedy in New York City when a group of 
safety engineers decided it was time to build a profession 
committed to helping employers improve workplace safety. Now 
ASSE members work with employers to protect workers in every 
industry, every State and across the globe. They all work hard 
to help make sure workers go home to their families every day, 
safe and healthy. That's why I've been committed to doing every 
day of my nearly 33 years managing occupation safety and health 
for major manufacturers in Ohio, producing vehicle air 
conditioning compressors in diesel engines.
    Employers have much to say about their responsibility for 
safety. Workers, especially those victimized by failure to make 
a workplace safe, have much to offer this subcommittee. Safety 
and health professionals however are responsible for working 
with both management and workers to get safety and health done.
    OSHA has been subjected to strong criticism over 
enforcement, rulemaking and its cooperative programs. ASSE has 
expressed some similar concerns. A strong effective OSHA is 
necessary to this Nation's commitment to safety. No doubt some 
changes are necessary, but ASSE cautions against wholesale 
changes that will diminish OSHA's capability to be this 
Nation's leader in occupational safety and health.
    In safety and health a leader must be many things. To lead 
as a safety and health professional, I, like OSHA, must 
identify hazards and work to make sure employers and employees 
can avoid those hazards. I help my employers set safety rules 
and I often have to be tough and uncompromising to make sure a 
rule is carried out.
    But the most important part of my job and plant is building 
relationships, reaching, teaching, selling safety and 
communicating with both employers and employees. The Federal 
agency leading this Nation's commitment to worker safety must 
have this same multi-faceted capability to meet its mission. 
The fact is the vast majority of employers do not implement 
safety programs out of fear of OSHA, its monetary penalties or 
even the threat of criminal prosecution. They do so because 
it's the right thing to do.
    They also do so because proactive safety programs make 
sense from a productivity and monetary perspective. Just as 
companies target resources where they will reap maximum 
benefits. So too should OSHA direct its enforcement resources 
where the greatest gains in safety can be achieved towards 
those employers with a history of ignoring their compliance 
responsibilities.
    I've been involved in numerous OSHA inspections. On more 
than several occasions inspections help me deal with risk. 
Overall however, most of these inspections were not needed at 
the companies where I work. These companies had a commitment to 
safety. As OSHA knew they had well-trained safety staff and 
highly developed safety management systems.
    While some level of OSHA inspections were needed. With 
OSHA's limited resources how much more would it have 
accomplished had many of those inspections been done at 
workplaces less committed to safety. That's why ASSE is 
disappointed to learn that the Department of Labor's Inspector 
General recently found OSHA's enhanced enforcement program not 
nearly as effective as it should be in identifying high-risk 
employers to target with increased enforcement.
    We urge this subcommittee to make sure this program works. 
That program can be improved in the same way OSHA has improved 
its positive capability to help employers, employees and the 
safety and health community to achieve safer and healthier 
workplaces. These capabilities have made OSHA a more open 
organization and better engaged with others responsible for 
safety and health.
    The VPP and SHARP programs have provided real incentives 
for companies to do safety and health well. The Alliance and 
Partnership programs have developed a meaningful sense of 
cooperation across many industries and organizations. OSHA has 
also strived to help lead, what may be after the moral argument 
for safe workplaces, the most compelling argument in the 
private sector for safety and health commitment. ASSE has a 
white paper that provides insight into the current focus of 
safety and health professional leadership that ASSE wants OSHA 
to continue to help lead.
    There's little doubt among the Nation's leading employers 
that commitment to effective safety and health programs 
provides U.S. business with a competitive advantage. It is 
especially important in today's harsh economic times that we 
need a vocal leader to help convince companies that the last 
place that cuts should be made is in the safety and health 
programs. To be effective safety programs must have commitment 
from senior management for strong corporate safety culture. 
This is not a change that OSHA can bring about solely through 
enforcement.
    We ask a lot of OSHA. It has a tough job and is an easy 
target for complaint. But any changes, OSHA must go beyond 
simple solutions.
    Some complain OSHA misses hazards during inspections. But 
OSHA's Web site indicates just how many standards and guidance 
documents inspectors must know. So better training is an issue.
    Some complain OSHA negotiates fines away. But OSHA's front 
line staff has forced to balance further legal action against a 
company willing to address the problem and OSHA wanting to 
address other employers.
    Some complain OSHA does not issue enough standards. But 
overlooked is just how the existing standards pose a challenge 
to employers, employees, safety and health professionals and 
even OSHA inadequate in enforcing those standards.
    In summary, please be careful. There are no easy answers. 
The ASSE looks forward to providing constructive suggestions on 
OSHA reform legislation. We also look forward to working with 
OSHA's new leadership to continue to advance protection for the 
safety and health of American workers. Thank you.
    [The prepared statement of Mr. Brown follows:]

                 Prepared Statement of Warren K. Brown

    I am Warren K. Brown, CSP, ARM, CSHM, and as the President of the 
American Society of Safety Engineers (ASSE) I am pleased to be here 
today representing the more than 32,000 safety, health and 
environmental professionals who belong to ASSE.
    ASSE was formed in 1911, shortly after the Triangle Shirtwaist 
Factory tragedy in New York City when a group of safety engineers 
decided it was time to build a profession committed to helping 
employers improve workplace safety. Now, ASSE's members work with 
employers to protect workers and workplaces in every industry, every 
State and across the globe. ASSE has 16 practice specialties and is the 
secretariat for numerous ANSI consensus standards that help shape safe 
workplaces. Our members work with employers small and large. Some are 
members of organized labor. Some work for government. Some are 
academics. But all work hard to help make sure workers go home to their 
families each day safe and healthy.
    That is what I have been committed to doing every day of my nearly 
33 years managing occupational safety and health for major 
manufacturers in Ohio producing vehicle air conditioning compressors 
and diesel engines.
    I appreciate this opportunity to share the perspective of safety 
and health professionals that I believe can help inform this 
subcommittee as it considers OSHA reform legislation. Employers have 
much to say about their responsibility for safety. Workers--especially 
those victimized by failure to make a workplace safe--have much to 
offer this subcommittee. Safety and health professionals, however, are 
responsible for working with both management and workers to get safety 
and health done. We see the challenges employers face in managing 
safety and the challenges workers face in trying to work safe. And we 
know well the risks workers and employers face when those challenges 
are not met.
    Yes, the Occupational Safety and Health Administration (OSHA) has 
been subjected to strong criticism over enforcement, rulemaking and its 
cooperative programs. ASSE has expressed some similar concerns. A 
strong, effective OSHA is necessary to this Nation's commitment to 
safety. Some changes are necessary. But ASSE cautions against wholesale 
changes that will diminish OSHA's capability to be this Nation's leader 
in occupational safety and health.
    In safety and health, a leader must be many things. To lead as a 
safety and health professional, I--like OSHA--must identify hazards and 
work to make sure employers and employees can avoid those hazards. I 
help my employer set safety rules, as in making sure lockout/tagout is 
done properly to guard against incidents. And I often have to be tough 
and uncompromising to make sure a rule like lockout/tagout is carried 
out. But the most important part of my job in a plant is building 
relationships, teaching, selling safety, and communicating with both 
employers and employees. Being good at these skills is the best shot I 
have at keeping an employee safe and healthy.
    The Federal agency leading this Nation's commitment to worker 
safety must have this same multi-faceted capability to meet its 
mission.
    The fact is, the vast majority of employers do not implement safety 
programs out of fear of OSHA, its monetary penalties or even the threat 
of criminal prosecution. They do so, first, because it is the right 
thing to do. They also do so because proactive safety programs make 
sense from a productivity and monetary perspective.
    Just as companies target resources where they will reap maximum 
benefits, so, too, should OSHA direct its enforcement resources where 
the greatest gains in safety can be achieved--towards those employers 
with a history of flagrantly ignoring their compliance 
responsibilities.
    I've been involved in numerous OSHA inspections. On more than 
several occasions the inspections helped me deal with risks. Overall, 
however, most of these inspections were not needed at the companies 
where I worked. These companies had a commitment to safety. As OSHA 
knew, they had well-trained safety staff and highly developed safety 
management systems. While some level of OSHA inspections were needed, I 
can only wonder, with OSHA's limited resources, how much more it would 
have accomplished had many of these inspections been done at workplaces 
less committed to safety.
    That is why ASSE is disappointed to find in a March 2009 report 
that the Department of Labor's Inspector General found OSHA's Enhanced 
Enforcement Program not nearly as effective as it could be in 
identifying high-risk employers to target with increased enforcement. 
We urge this subcommittee to make sure this program works. No matter 
how high penalties are, OSHA must work at improving its ability to 
target its resources.
    That program can be improved in the same way OSHA has improved its 
positive capability to help employers, employees and the safety and 
health community to achieve safer and healthier workplaces. These 
capabilities have made OSHA a more positive, open organization better 
engaged with others responsible for safety and health. The Voluntary 
Protection Program (VPP) and the Safety and Health Assessment and 
Research for Prevention Program (SHARP) have provided real incentives 
for companies to do safety and health well. The alliance and 
partnership programs have developed a meaningful sense of cooperation 
across many industries and organizations resulting in impressive 
guidance materials and e-tools that our members use in their jobs.
    OSHA has also strived to help lead what may be, after the moral 
argument for safe workplaces, the most compelling argument in the 
private sector for safety and health commitment. ASSE's white paper 
Addressing the Return on Investment for Safety, Health and Environment 
Programs (http://www.asse.org/search.php?var 
Search=business+of+safety) provides insight into the current focus of 
safety and health professional leadership that ASSE wants OSHA to 
continue to help lead, as reflected in OSHA's Safety Pays Program 
(http://www.osha.gov/dcsp/small 
business/safetypays/index.htmland) and other initiatives.
    There is little doubt among this Nation's leading employers that a 
commitment to effective safety and health programs provides U.S. 
business with a competitive advantage. It is especially important in 
today's harsh economic times that we need a vocal leader to help 
convince companies that the last place that cuts should be made is in 
their safety and health programs.
    The 2007 Workplace Safety Cost Index found workplace injuries cost 
society $48.3 billion in direct losses, and the indirect costs of 
injuries may be 20 times the direct costs. Conversely, a Liberty Mutual 
survey reported that 61 percent of executives say $3 or more is saved 
for each $1 invested in workplace safety.
    To be effective, however, the programs must have commitment from 
senior management for a strong corporate safety culture. This is not a 
change that OSHA can bring about solely through enforcement.
    We ask a lot of OSHA. It has a tough job and is an easy target for 
complaint. But any changes in OSHA must go beyond simple solutions.
    Some complain OSHA misses hazards in inspections, but OSHA's Web 
site indicates just how many standards and guidance documents its 
inspectors must know. So better training is an issue, too. Some 
complain OSHA negotiates fines away. But OSHA's front-line staff is 
forced to balance further legal action against a company willing to 
address the problem and wanting to move on to other complaints. Some 
complain OSHA does not issue enough standards. But overlooked is just 
how the existing standards pose a challenge to employers, employees, 
safety and health professionals, and even OSHA in adequately enforcing 
those standards.
    So, please be careful. There are no easy answers.
    We hope our perspective is helpful as the subcommittee considers 
how it will help edit the new chapter in OSHA history about to be 
written. ASSE looks forward to providing constructive suggestions on 
OSHA reform legislation. We also look forward to working with OSHA's 
new leadership to continue to advance protections for the safety and 
health of American workers.
    Thank you for this opportunity. I will be more than happy to 
respond to any questions.

    Senator Murray. Thank you very much. Excellent testimony 
from all of our panelists this morning. Let me start with Ms. 
Miser.
    You began advocating for families of victims because of an 
incident that occurred to you. Can you share a little bit with 
the committee today what happened to your brother, Shawn?
    Ms. Miser. Yes, my brother was killed in an aluminum dust 
explosion in 2003. I guess what started it was I was curious as 
to where to get the information to find out if there was a 
problem and what could be done. But there just was no place. 
There was no place for us to understand how OSHA worked or who 
to even get a hold of.
    You find out through the grapevine that there are fire 
reports and there are police reports. So we had no real place 
to go for the answers for these. Plus when this happens it is 
different than anything else.
    When your loved one goes to work and they do not come home 
it's not like a heart attack. Not that that's not important or 
any other thing. You're not expecting it. It's unexpected. So 
it is kind of like a homicide.
    Then you find out that the companies--a lot of times there 
were things to keep this from happening and this didn't. Or if 
there isn't, why isn't there? You know, in my brother's case 
everybody knows about dust.
    We were finding this out with everything. I just felt like 
the families needed one place to go to for all this 
information, if they had worker's comp questions, if they just 
needed an ear, if they just needed somebody to vent to.
    Senator Murray. In your experience talking to many other 
families, are families treated with respect by agencies when 
they ask for information?
    Ms. Miser. It kind of goes both ways. My inspector was 
honest. I didn't like everything he said.
    [Laughter.]
    But he was honest and he was good to me. But we had 
experiences where even Coit Smith, he's in the family bill of 
rights that is in there. He had the worst time. Even after the 
investigation was over they would refuse to give him the 
paperwork for just the investigation.
    So I think it depends on what area you're in and who you're 
talking to.
    Senator Murray. Ok.
    Ms. Miser. Just like anything else, you know.
    Senator Murray. Well, thank you very much for all your work 
on this.
    Dr. Monforton, in your written testimony you mention the 
need to update the OSH Act's minimum and maximum penalty 
amounts and the need to index them for inflation. You 
specifically talked about the $7,000 maximum fine for serious 
violations. Given inflation what would $7,000 in 1991 equate to 
in today's dollars?
    Ms. Monforton. Yes, that $7,000 maximum was instituted in 
1991 and if that was in current dollars that would be $11,065. 
I think the other thing that's important to know is even though 
that maximum is allowed by Congress, OSHA's own manual to the 
field tells the area office that the starting point is really 
$5,000. And that they apply the reduction factors after that.
    It's only if they really want to go to $7,000 they have 
that authority. But they really have to make the case that 
they're going to go to the $7,000. So this $11,000 is really 
probably less than that in current dollars.
    Senator Murray. In current dollars. But since it hasn't 
been increased, it's basically been a reduction in fines?
    Ms. Monforton. Exactly. About $4,400.
    Senator Murray. So is that less incentive for some 
employers to follow safety procedures?
    Ms. Monforton. In my opinion when you talk about a company 
that has more than 100 employees. If you had a violation, 
assessed at $4,400 and then you apply the reduction factor for 
size and the reduction factor for history and so on, you're 
talking about something that's comparable to a rounding error 
in their budget.
    Senator Murray. Mr. Frederick, did you want to comment on 
that?
    Mr. Frederick. Just that OSHA penalties and strong 
enforcement of OSHA regulations provide a level playing field 
for employers. Without strong enforcement and there are many 
examples of OSHA standards that are not adequately enforced 
today. Employers have much less incentives take away a few 
thousand dollar possible penalty after an accident or after a 
complaint. They've much less incentive to comply with that 
standard.
    So good, firm and fair enforcement is certainly an 
incentive for employers across the board to raise to the 
minimum standards.
    Senator Murray. Ok. I'm out of time. But I will come back 
and ask additional questions.
    Senator Isakson.
    Senator Isakson. Thank you, Chairman Murray. I would 
comment Chairman Murray that good things can happen from what 
this committee does. Last week I was fortunate enough to see L3 
communications share with me the new device they have invented 
which is two way communications from mines to the surface which 
if that have had existed in the Sago disaster, Junior Hamner 
and the others that died could have been saved.
    The technology--I'm not saying the committee should take 
credit for it. But we held a roundtable here you recall and had 
scientists from Australia and around the world who've been 
working on this. I think that significantly contributed to the 
discovery of that piece of equipment which now is already, I 
understand, being employed by several mines. And hopefully will 
be employed more widely soon. That's the biggest breakthrough 
in mine safety in history.
    You know I would say on behalf of employers and I don't 
represent employers except I was one. And I had a couple of 
operations that were high workers comp operations because they 
were golf course management and construction. The biggest 
incentive for employers is to not have an accident because of 
the cost of that accident.
    And I think everybody needs to--there are some bad apples 
out there. And that's what most regulatory agencies are 
established for. But there are an awful lot of people who 
realize their employees are their best asset. And do everything 
they can to see to it they don't get injured.
    Ms. Miser, you had made a comment that families shouldn't 
have to pay for the information. What were you referring to 
when you said that?
    Ms. Miser. There are just some basic costs. We have to pay 
for any part of the investigation that we want. A lot of times 
we have to go through a process even to get this.
    We have to go through the full FOIA process. If that 
doesn't work then we have to do an appeal. And this is another 
thing that the families have no clue about. So, you know, we 
had to put together a sample letter for this.
    But they have to pay for this information. How much is it 
going to cost--you know one of their bills? I just don't feel 
that the families should have to pay for this information. This 
is their loved one.
    Senator Isakson. Is this after the adjudication or the 
decision is made?
    Ms. Miser. Yes. If they want the materials they can request 
it. And not everybody has to use the FOIA. I'm not saying every 
OSHA office is going to be this strict. Some of them do, some 
of them don't.
    However, we still have to pay for the information.
    Senator Isakson. Well, I don't disagree. The families 
should have that information when it's in its final form. I 
appreciate your making that public.
    Mr. Frederick, you had made a comment about--and if I 
didn't listen well I apologize. But you made the comment about 
shared information with families and co-workers. Are there any 
disincentives to workers and families providing or contacting 
companies with regard to suspected potential problems? Are 
there any disincentives or are there any incentives to cause 
that to be voluntarily offered by the employer and the company?
    Mr. Frederick. Prior to an accident or following?
    Senator Isakson. For example, under the Americans with 
Disabilities Act.
    Mr. Frederick. Sure.
    Senator Isakson. A lot of us have been advocates for some 
time. If you find a violation of the act, nobody is hurt, 
nothing has happened. But, if somebody got hurt it would have 
been a violation. There's a right to cure that incentivizes the 
company to change whatever that thing that's turned into them 
before it causes an accident.
    Are there any incentives for workers to make those reports 
or disincentives for them not to make them?
    Mr. Frederick. Not thinking of any incentives, but there 
are many disincentives for workers to bring hazards to the 
attention of employers. There are reward programs in place in 
many workplaces that provide cash and prizes if no one reports 
injuries and illnesses. There are discipline programs if people 
report injuries. They are disciplined.
    What these create is a very chilling effect on workplace 
health and safety so that workers do not bring up hazards in 
the workplace. One of the most troubling things for my 
colleagues and I in our department is when we investigate a 
fatality and someone else from that workplace tells us about 
the same hazard that caused them to have an incident or a minor 
injury. But they didn't bring it forward for one of these 
reasons of an incentive or disincentive program. And then that 
same hazard caused the fatality.
    We, unfortunately, have many examples of that. I've 
experienced that personally on at least one investigation of a 
fatality.
    Senator Isakson. I would appreciate it if you would send me 
any evidence or documentation on anybody that has incentives 
not to report.
    Mr. Frederick. Sure.
    Senator Isakson. I'd like to see that if I could. Can I 
take one extra minute?
    Senator Murray. Absolutely.
    Senator Isakson. Ms. Miser, I would like to tell you, 
probably as--when was your brother lost? What year?
    Ms. Miser. He was killed in 2003.
    Senator Isakson. It was an aluminum dust explosion?
    Ms. Miser. Yes.
    Senator Isakson. We had an agricultural dust, in this case 
sugar explosion at Port Wentworth in Georgia last year. And I'm 
sure as a part of your advocacy what has happened in that 
investigation, post that accident, OSHA's fines levied for 
violations of existing OSHA standards were the highest fines in 
the history of the organization. I think $8.4 million. And they 
may be prosecuting under the criminal code.
    Second, as an addition to that the Chemical Safety Board 
still has not finished their report and I want to commend OSHA. 
I know they're thinking about going ahead and publishing a 
combustible dust rule. But the Chemical Safety Board is within 
a couple of months of making their findings known publicly on 
their investigation.
    I would hope that we wouldn't pass a restriction before 
that comes in because we'd--like in Sago, where we finally 
learned what actually caused the accident. In this case we can 
find what actually caused the accident. Then we'll be able to 
hopefully further reduce combustible dust explosions in the 
future.
    But I think OSHA has certainly, since 2003, changed and is 
improving in terms of enforcement of the occupational dust 
explosions. So, I thought you ought to know that.
    Ms. Miser. Thank you.
    Senator Isakson. Thank you, Madame Chairman.
    Senator Murray. Thank you. Mr. Brown, I appreciate your 
testimony about the necessity of a strong and effective OSHA to 
fulfill this Nation's commitment to workplace safety. I agree 
with you that some changes are necessary to make the law and 
the agency more effective.
    I am particularly interested to hear more about the 
incentives for safer workplaces that you mentioned in your 
testimony. Incentives that mean we, ``often have to be tough 
and uncompromising with companies to make sure rules are 
carried out.'' The presence of strong penalties could be viewed 
as something similar to being tough and uncompromising to 
ensure that, even in today's economic times, all employers will 
really strive to do the right thing.
    Can you share with us how you think or whether you think 
strengthening penalties is a critical tool to more effectively 
protect American workers?
    Mr. Brown. Yes, ma'am. We understand fully that OSHA's 
current penalties are not high enough. We are concerned 
however, that if the effort at this time is simply to increase 
penalties the purpose for doing so may fail.
    We're concerned that no matter how high you raise these 
penalties if they're not aimed at the people in the company who 
are truly responsible for safety and health they will not be 
effective. If they're allowed to be applied against those who 
do not have the real authority in an organization they will not 
be effective. So much research goes on in occupational safety 
and health which is appropriate.
    Australia for example, has a law that aims responsibility 
at those who fail to establish the safety culture of an 
organization. We have dedicated people wanting to change OSHA 
in the political process. Some energy can be put into figuring 
out maybe, without OSHA's help, how penalties can be designed 
and targeted to bring about the penalties we all want, and to 
result in safer workplaces.
    Senator Murray. Well, Dr. Monforton mentioned in her 
testimony the potential role of reputational damage and 
enhancing the deterrent effects of OSHA penalties by making 
violation information available to the public and to the press. 
Do you think that would be an effective deterrent?
    Mr. Brown. To my knowledge that's already available. I know 
I can get online and check our facility out and other 
facilities. So I think it's already available.
    Senator Murray. Dr. Monforton, would you comment?
    Ms. Monforton. There is information available on OSHA's Web 
site. But it's very minimal information. OSHA doesn't even put 
information about recent fatalities on its Web site.
    And in speaking with family members, they know that. Their 
whole message that I hear time and time again is what can we do 
to make sure that this doesn't happen to someone else? And the 
fact that the OSHA investigation goes on for 6 months and then 
you may have a contest period.
    The fact that you want to learn a lesson from the fatality, 
you want to do that in a very quick period of time. You want to 
do it in 2 weeks, 3 weeks after the fatality. Not 2 years down 
the road when that information is stale and potentially have 
had other people killed in exactly the same way.
    I think that OSHA's Web site could be used in a much more 
robust way where you actually post current information about 
the fatality that happened yesterday. Not making judgment about 
what happened, but to let someone know that a young man like 
Steve Lillicrap was wearing a harness that got pulled into a 
crane and that he shouldn't have been wearing that harness and 
so on. I mean, that's useful information that can be put on 
OSHA's Web site.
    I do think the name of the company and the contractor that 
should be up there too, as well. So that in this case, in the 
St. Louis region, people know that this was Ben Hur 
Construction. And this happened on their site.
    I think that that really can make a difference for 
competitors in the area. And if you're someone who is thinking 
of doing a big job. And you say, ``gosh, this particular firm 
just had a fatality.''
    And you know what? I can go on OSHA's Web site and see and 
they had similar ones in the past. I might think twice about 
whether I'm going to hire that particular contractor.
    I just think that given the limited resources that OSHA has 
and that the penalties aren't the whole thing. I think for many 
firms their reputation, which can affect their bottom line, can 
be a much more effective deterrent than any OSHA penalty.
    Senator Murray. It's an interesting concept. And one of 
course, we have to be very careful with. But it does seem to me 
that if people had the information that there was a crane 
accident in Nevada, it may give them pause to think what they 
are doing in their workplace today?
    But I understand Senator Isakson's comments about the sugar 
factory. We want to know exactly what happened so we don't 
raise alarms in the wrong way.
    Ms. Monforton. Right.
    Senator Murray. But it does seem to me that having more 
information would cause people to at least stop and think.
    Ms. Monforton. Exactly.
    Senator Murray [continuing]. At their workplace so that 
they are reducing fatalities and injuries.
    Ms. Monforton. Right. My father is an 85-year-old 
businessman. And he gets very nervous when we talk about OSHA. 
It's a four letter word as far as my Dad is concerned.
    But he does recognize that you have companies that do not 
invest in safety. His firm is at a competitive disadvantage. 
And that's the way he looks at it.
    Also, in terms of these penalties, these are not taxes. 
These are not fees. These are monetary penalties for companies 
that have violated the law. And so that needs to be put in the 
calculation.
    Senator Murray. Senator Isakson.
    Senator Isakson. Just one question. Mr. Frederick and 
anybody else can comment if they wish. Under MSHA, under the 
Mine Safety laws there is shared responsibility with the 
employee and the employer.
    For example, if a miner is caught smoking underground in a 
mine that's a violation that the miner is responsible for, OSHA 
only governs the employer, not the employee. Should there be a 
provision for shared responsibility on safety in terms of cause 
of an incident?
    Mr. Frederick. Well truly there is a shared responsibility 
in the cause of an incident if it results in an injury, an 
illness or a death. The victim has already suffered by the pain 
and suffering they've experienced. They also often have a loss 
of income, a loss of the ability to come to work.
    In represented workplaces by the steelworkers we 
proactively seek out working with our employers to have a say 
in workplace health and safety to be involved from the 
beginning and not just to come in at the end of the process and 
talk about something being done jointly. But to actually step 
back and start at the beginning of the process. Be it with 
compliance to a standard or to put in place a comprehensive 
health and safety program and work with the employer from the 
very beginning.
    So I see in workplaces that we work with the employees and 
the unions are involved and invested in the process much 
earlier on then compliance.
    Senator Isakson. Well I understand the victim suffering. 
But oftentimes many of the victims were not the violator. For 
example, in an explosion that's caused by a lighted cigarette. 
Yes, the victim who was smoking ends up suffering because they 
started the explosion. And that's their punishment.
    But the other co-workers around that were injured or 
damaged weren't, so if there was a shared responsibility, and 
if you were in fact the cause, then that might be the same type 
of incentive on the other side that the increased fines are on 
the employer side, which I don't disagree with.
    In many cases when there's culpability. That's the only 
point I was making because safety is everybody's business. It's 
not just the employer's business. It's the employee's as well.
    And the Mine Safety Act having addressed that, I just 
wondered if it was something that OSHA might think about doing.
    Yes, Ma'am.
    Ms. Monforton. Yes, in the Mine Act and we certainly know 
having smoking materials underground, potentially mixed with 
coal mine dust is, what caused a lot of disasters, a big 
kaboom. In the Mine Act there is that provision, smoking 
materials are prohibited under ground. There's a responsibility 
on my management to do random checks for smoking materials.
    As I discussed in my testimony, I think that people in 
general, companies in general, fall into three categories. 
There's a super good actor, stellar performers. We don't need 
to worry about them. We don't need OSHA for them.
    You have at the other end, the really bad actors. People 
you need to throw the book at.
    And in the middle is most of us. Right? Where we aim to 
obey the law, but sometimes there are forces--economic forces, 
competing forces--that color our judgment. So when the light 
turns yellow, I don't stop, I proceed through it.
    I think the same situation occurs among workers. I mean we 
have great workers. We have workers that have many competing 
forces in the workplace. And so you need to have rules in place 
and protection, so that when you have a hazard that they feel 
comfortable speaking up about, they have a right to not be 
discriminated against.
    Certainly for that small percentage of workers who 
flagrantly violate something like having smoking materials 
underground. Yes, there should be rules for those things that 
have the potential to cause major disasters.
    Senator Murray. Last Congress I introduced a bill, the Mine 
Disaster Family Assistance Act of 2007. The purpose was to make 
sure that mine operators create a plan to address the needs of 
the victims' families during the accident and the time right 
after. It was a bill that includes a family support service 
point of contact within the Federal Government to act as the 
liaison between the operator and the families and the press.
    I'm particularly interested in how families are treated 
during an accident or an accident investigation, and what role 
they play in that process. I was wondering, Dr. Monforton, if I 
could start with you, based on your experience on the special 
investigation team for the Sago mine disaster.
    Would you recommend that victims, if possible, and their 
families be included in a meaningful way in other types of 
workplace accident investigations?
    Ms. Monforton. I believe, one, that they have a right to do 
it. No one has more of an interest in finding out what 
happened. So it would be a tremendous asset to the prevention 
potential of OSHA to have family members involved.
    I think it's very useful for family members to have, you 
know, that one or two people that they know are their contact 
so that they don't have to be going to a lot of different 
people, that they have someone that they can develop a 
relationship with, that they can trust, someone who has the 
proper temperament and patience and training to know to listen 
to families. Not every family has the same needs as another 
family to really listen and understand and get the families the 
information that they need and so on.
    Senator Murray. You know the majority of employers who get 
an OSHA citation choose to negotiate with their local OSHA 
office for an informal settlement. For statutory reasons that 
has to be completed, I understand, within 15 days of the 
employer's receipt of that citation. So given that short 
timeframe, how do we meaningfully involve families in that 
process?
    Ms. Monforton. That's an excellent question. I think that 
we can change--there's nothing in the statute that says that 
family members or labor representatives can't get the citation 
the same time as employers. It just says employers can get the 
citation. But there's no prohibition against anyone else 
getting the citation.
    Senator Murray. No prohibition, but it rarely happens.
    Ms. Monforton. Yes. Well, and it happens I mean, actually 
in OSHA's manual to the staff what it says is you send the 
citation to the company. You send it certified mail. When you 
receive the little green card back, back to the OSHA office 
then you shall make copies of it and send it out to the labor 
representative.
    What we know that happens, however, is that inspector who 
sent it in certified mail, it probably lands on his desk. He 
might be out for 4 days, out in the field doing inspections. By 
the time he comes back the next week, the company has already 
scheduled their informal conference meeting with the company.
    So I think a simple solution is you make it in triplicate. 
As soon as you send the citations to the company, you send them 
to the family. You send it to the labor representative.
    I guess my preference would be when you're getting ready to 
send it to the company that you call the family and let them 
know that the citations are being sent.
    Senator Murray. Mr. Frederick, today OSHA's compliance 
directive for fatality investigation directs them, when 
practical, to contact family members. In your experience how 
often does that occur?
    Mr. Frederick. Definitely a minority of the time and not 
very often at all is our experience. In the cases that families 
do engage and discuss the situation with the OSHA inspection, 
it's often as a result of the union and/or the family 
themselves making the initial contact to OSHA. And you know, be 
it the level of their staffing and the amount of workload that 
the OSHA inspectors have or whatever the reason being. They 
just are not typically pro actively searching out the family 
members to make certain that they've had that conversation.
    Senator Murray. Dr. Monforton.
    Ms. Monforton. Senator Murray, just this morning Jim 
Frederick, the Lillicrap family, and I were speaking about this 
very issue. Their experience was that Steven was killed and 
they never heard from the company.
    The first thing they heard from OSHA was this letter that 
they received from OSHA Headquarters which, I think Diane you 
said it, was 17 days after Steven's death. And in that letter 
it said, here's the name of the OSHA office that's going to be 
handling the investigations. So she called them. She made the 
reach out to them to find out how this process was going to go.
    The other thing that I thought was very troubling to hear 
from her was there was equipment and so on that Steven had, his 
lanyard and the harness. She has that material. No one from 
OSHA has asked her for it. It seems like it could be a critical 
piece of physical evidence.
    Senator Murray. She had that in her hands?
    Mr. Rick Power. It was given to her by the hospital.
    Ms. Monforton. So you know when he went to the hospital 
they removed all that. And then she got the belongings. But the 
fact is that she reached out to OSHA and she may have even told 
me, she asked them wouldn't you like this evidence?
    It shows you what kind of disconnect we have. And that 
there's----
    Senator Murray. It seems to me most families would have no 
idea that there is an agency named OSHA to even begin to 
contact. It seems to me that it has to be OSHA's responsibility 
to reach out and let people know who they are.
    Let me ask one more question. Ms. Miser, you said that 
there's no monetary compensation that's adequate. Nobody is 
asking for that. I totally understand that.
    But it does seem to me very striking that when you look at 
the burial costs, most workers compensation programs provided 
by States barely covers it. I think the average cost today is, 
without any kind of markers or flowers or anything, is a little 
over $7,000. Mr. Frederick, I was listening to you earlier 
describing a penalty that was reduced to half its monetary 
value. I think you said something about $6,000?
    Mr. Frederick. Yes.
    Senator Murray. I mean it just seems incongruous to me that 
families who have a fatally injured family member that they're 
burying gets less compensation than what we are fining the 
employer.
    Ms. Miser. Yes. You can get more for a finger than you can 
sometimes in a death which is sad. And I'm not saying the 
person that lost their finger shouldn't be compensated.
    I think a lot of their reasoning behind that is as far as 
workers compensation goes it's like in my case, my brother had 
no siblings and he didn't have a wife. So basically there was 
no reason to compensate him. You know, there was nobody there 
to take care of. But at the very least the funeral should be 
paid for.
    Senator Murray. Well in your experiences working with 
victim's families, are they aware of the penalties that are 
assessed to the employers?
    Ms. Miser. Well the ones that get involved are. And 
sometimes these families don't even find out about penalties 
until it's done because they had no clue there was even an 
investigation going on. So they'll get these papers and find 
out that their--to them when they see that their family member 
was only worth $2,000, like in Tanya's case.
    Usually these are whittled down to nothing. And it's just 
like I was----
    Senator Murray. I would sense that's a source of 
frustration.
    Ms. Miser. It is because although they're not investigating 
the death, we know that. To a family member, that's their loved 
one. You know, you're investigating what happened to the person 
that they loved.
    It can be the father, the mother, the brother, the bread 
winner, you know, the rock in their family. It was an important 
person to them and so yeah, it's just devastating when they 
find that out.
    Senator Murray. Senator Isakson, do you have anything?
    Senator Isakson. I just want to thank the witnesses for the 
testimony.
    Senator Murray. Well let me say as well, I really 
appreciate all of our witnesses. I appreciate the families that 
are here today speaking up for other families. I think it's 
important that we remember when someone is hurt or injured, 
it's not just them, it's the people around them who have to 
live with this for a very long time.
    It's incumbent upon all of us to do everything we can to 
make sure the lessons learned from these tragedies are not 
forgotten. We need to make sure that it doesn't happen again. I 
appreciate everybody being here today. If any members want to 
submit additional questions for written response, they are 
welcome to do so.
    So the hearing record will be open for the next 7 days. And 
again, thank you to all of you for being here today. Hearing is 
adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                 Prepared Statement of Senator Kennedy

    This morning our committee takes up the important issue of 
protecting the workplace safety and health of the hard-working 
men and women of America. I commend Senator Murray for holding 
this hearing and for her leadership on this major issue.
    Twenty years ago, workplace safety advocates and families 
of employees killed on the job launched Workers Memorial Day--a 
day of remembrance and advocacy. Their goal was to express 
their grief over lost friends, co-workers and loved ones, and 
to encourage more effective action to avoid these senseless 
losses. Since the first observance of Workers Memorial Day, 
however, almost 125,000 men and women have been killed on the 
job, an average of almost 6,000 a year. Clearly, we must do 
much more to protect hard-working Americans.
    In President Obama and Vice President Biden we have leaders 
who are committed to worker safety. When he was on the HELP 
Committee, then-Senator Obama built a record of making 
workplace safety and health a priority. As President, he is 
continuing that commitment. He and Secretary Solis have stated 
they intend to make protecting workers on the job a top 
priority at the Department of Labor.
    As the executive branch does its part, so too must we do 
ours. Enacting of the Occupational Safety and Health Act in 
1970 was a major step in guaranteeing the basic right of 
workers to be safe on the job. Since the law was signed, 
however, we have not substantially amended it to improve worker 
protections.
    We have, however, learned much in the 40 years since OSHA 
was enacted and it is long past time to use this knowledge to 
make significant reforms. We know that many workers are left 
out of the act's protections, and expanded coverage is 
essential. We know that whistle blowers are indispensable in 
bringing safety problems to light, but they won't come forward 
unless they have strong protections. A HELP Committee report 
last year showed that even when employers' violations of the 
act result in workers killed on the job, the employers often 
walk away with just a slap on the wrist. Clearly, civil and 
criminal penalties should be increased.
    Today's hearing will focus on the needs of families and the 
contribution they can make to improve the OSHA process. Tammy 
Miser, one of today's witnesses, will share first-hand how the 
OSHA process fails victims and their families. Tammy lost her 
brother Shawn in 2003 in an explosion at the Hayes Lemmerz 
manufacturing plant in Huntington, IN.
    His death was an immense tragedy for Tammy and her family. 
But in the true spirit of Workers Memorial Day, Tammy's grief 
spurred her to action. She has become a tireless advocate for 
others who have lost family members on the job. She stands up 
and speaks out for the rights of workers to come home safely at 
the end of each day. She has touched many lives and we're 
grateful to her for testifying today.
    Tammy and families like hers have an important contribution 
to make after a workplace accident, but the law gives them no 
right to participate in OSHA procedures. All too often, the 
first contact by families with OSHA comes after a case is 
closed. By then, the citations have been written and the 
penalties have been assessed, frequently, the family is not 
sure about what actually happened to their loved one or to the 
employer who was responsible.
    That's not right. Victims and their families deserve 
better. No one cares more about a workplace fatality than the 
family of the worker who died. Yet, of all the parties 
involved--they are the only ones who don't have a seat at the 
table.
    It's also not good policy. Victims and their families often 
have valuable information about what happened and why. They may 
know that workers had complained about unsafe conditions, or 
that certain supervisors or managers were cutting corners. When 
victims, families, and their representatives are left out of 
the process, this critical information is lost. Including 
victims and their families and representatives is good for 
them, and it may also save the lives of other workers.
    These inadequacies in the law need to be corrected, and 
only Congress can do it. That's why we've introduced the 
Protecting America's Workers Act in the past, and I plan to 
introduce it again. The principal reform in the bill will give 
workers and their families and representatives a seat at the 
table. It also includes sensible reforms to ensure that victims 
and their families have a right to talk to OSHA before a 
citation issues, to obtain copies of important documents, to be 
informed about their rights, and to have an opportunity to have 
their voices heard before OSHA accepts a settlement that lets 
an employer off the hook for violations.
    Our committee is committed to the right of all Americans to 
a safe workplace. I look forward to working with members of our 
committee and the Administration, to make the process better--
in memory of those who we've lost and in honor of the 
hardworking Americans who deserve real protecting.

    [Whereupon, at 11:38 a.m. the hearing was adjourned.]

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