[Congressional Record Volume 144, Number 84 (Wednesday, June 24, 1998)]
[Senate]
[Pages S7035-S7036]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   OCCUPATIONAL SAFETY AND HEALTH ACT

  Mr. ENZI. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of H.R. 2877, which is at the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 2877) to amend the Occupational Safety and 
     Health Act of 1970.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill.
  Mr. KENNEDY. Mr. President, I would like to ask my colleague from 
Wyoming to help me clarify the intent of H.R. 2877 as it relates to 
evaluating the performance of employees. Several States with OSHA-
approved State plans have expressed concern that the language regarding 
``the results of enforcement activities'' could prevent them from 
considering the quality of an enforcement officer's reports or 
recommendations; the percentage of cases which are upheld or overturned 
in legal proceedings; the timeliness of case completion; the 
comprehensiveness of evaluations; and other legitimate means of 
evaluating employee performance.
  Contrary to this very broad interpretation, it is important to point 
out that the authors of the bill read much more narrowly the language 
prohibiting OSHA from evaluating employees based on ``the results of 
enforcement activities, such as the number of citations issued or 
penalties assessed.'' When H.R. 2877 was originally introduced, it 
prohibited the Secretary of labor from establishing ``any performance 
measures for any subordinate'' within OSHA ``with respect to the number 
of inspections conducted, citations issued, or penalties assessed.'' 
After the administration expressed concerns that the language could 
adversely impact the ability of OSHA supervisors to assign inspection 
work and ensure employee productivity and accountability, new language 
was negotiated. The intent of that language, which is contained in the 
version of H.R. 2877 that we are about to pass, was intended to prevent 
OSHA from establishing any quota or goal requiring OSHA inspectors to 
assess a specific number or amount of penalties. Clearly, Congress 
would not want to prevent OSHA from ensuring that the penalties 
actually assessed by its inspectors are legally valid, based on true 
and accurate information, and issued in a timely, professional manner.
  Does the Senator agree with me that the ``results'' referred to in 
the legislation refer to whether an OSHA inspector is evaluated on a 
specific quota or goal regarding the number of citations issued or 
penalties assessed, rather than the other means I have outlined?
  Mr. ENZI. Yes, I agree with the analysis of my colleague from 
Massachusetts.
  Mr. KENNEDY. I would like to present my colleague with three examples 
to illustrate the intent of H.R. 2877. First, assume an OSHA inspector 
uses falsified inspection results to justify and recommend the issuance 
of citations and penalties against one or more employers. Does the 
language in H.R. 2877 allow OSHA to negatively evaluate the inspector 
and proceed to dismiss him or her?
  Mr. ENZI. Absolutely. OSHA must have the right to discipline such an 
employee and evaluate him or her accordingly.
  Mr. KENNEDY. What about an inspector who, in the course of a year, 
conducts one tenth of the inspections conducted by the average 
inspector? The inspector finds no violations in any of the inspections 
he or she conducts, leading the inspector's supervisor to suspect that 
the inspector may be failing to identify serious hazards in at least 
some of those workplaces. Does H.R. 2877 allow OSHA to examine these 
circumstances to ascertain whether the employee is adequately 
performing his or her duties?
  Mr. ENZI. Yes, it does. Such evaluations are fundamental to measuring 
employee performance.
  Mr. KENNEDY. If an inspector's citations and penalties are 
consistently

[[Page S7036]]

being overturned in legal proceedings, would H.R. 2877 inhibit OSHA's 
ability to use that experience to evaluate how well that employee is 
doing his or her job?
  Mr. ENZI. No, it would not, Senator.
  Mr. KENNEDY. I thank the Senator.
  Mr. ENZI. Mr. President, I ask unanimous consent that the bill be 
considered read a third time and passed, that the motion to reconsider 
be laid upon the table, and that any statements relating to the bill be 
placed at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 2877) was read the third time and passed.
  Mr. ENZI. Mr. President, the two bills just passed by the Senate were 
authored by my good friend, Congressman Ballenger.
  H.R. 2864, the Occupational Safety and Health Administration 
Compliance Assistance Authorization Act, and H.R. 2877, a bill to 
eliminate the imposition of quotas in the context of OSHA's enforcement 
activities, are intended to help increase the joint cooperation of 
employees, employers, and OSHA in the effort to ensure safe and 
healthful working conditions. These bills are the first in a series of 
efforts to modernize the Occupational Safety and Health Act of 1970, a 
law which has only been amended one time, in 1990, and that amendment 
was simply an effort to raise the amount of the fines. So this is the 
first substantial change in 27 years.
  Since its inception, OSHA has consistently relied upon an adversarial 
approach rather than placing a greater emphasis on a collaborative 
strategy geared toward increasing worker safety and health. Agency 
officials have admitted that 95 percent of the employers in the country 
do their level best to try to voluntarily comply with the law. 
Unfortunately, OSHA inspectors still treat employers as adversaries, 
issuing them citations for what they haven't done and not assisting 
them in complying with regulations to make the workplace safer.
  Positive changes in the relationship that exists between employers 
and OSHA are long overdue. It is not productive to threaten employers 
with fines for noncompliance when millions of safety-conscious 
employers don't know how they are supposed to comply. Nor is it 
effective to burden employers with more compliance materials than they 
can possibly digest or understand.
  To achieve a new cooperative approach, the vast majority of employers 
who are concerned about worker safety and health must have compliance 
assistance programs made more accessible to them. Creating true 
partnerships between businesses and OSHA will ultimately empower the 
honest employers to improve worker safety while allowing OSHA to 
concentrate its enforcement efforts on the small number of employers 
who constitute the ``bad actors.'' I firmly believe that H.R. 2864 is a 
good first step in accomplishing just that.
  H.R. 2877 would eliminate enforcement quotas for OSHA compliance 
inspectors. This language would prohibit OSHA from establishing a 
specific number of citations issued or the amount of penalties 
collected. I believe that inspectors must not face institutional 
pressure to issue citations or to collect fines but, rather, they 
should work to identify potential hazards and assist the employer in 
abating them. OSHA's success must depend upon whether the Nation's 
workforce is safer and healthier and not upon meeting or surpassing 
goals for inspection citations or penalties.
  Congress' approach to OSHA is different this session. During my 
tenure in the Senate, I have committed much of my time to the 
advancement of workplace safety and health. This commitment is shared 
by my House colleagues, Representatives Ballenger and Talent, who are 
both authors of other commonsense incremental legislation. It is our 
belief that OSHA has operated since its inception as a reactionary 
regulator, inspecting work sites primarily after a fatality or injury 
has occurred. In 1994 and early 1995 alone, three-quarters of the work 
sites in the United States that were the scene of serious accidents had 
never--had never--been inspected by OSHA during the decade. Even more 
troubling is that OSHA officials acknowledge that their inspectors do 
not investigate most lethal work sites until after accidents occur. 
Thus, a worker essentially has to get hurt or killed in order for OSHA 
to act.

  We all want prevention. We don't want accidents. We don't even want 
near misses. A near miss is an accident about to happen.
  While it is important for OSHA to retain its ability to enforce law 
and to respond to employee complaints in a timely fashion, the agency 
must begin to broaden its preventive initiatives in an effort to bring 
more workplaces into compliance before accidents and fatalities occur. 
These bills are the first of several rational, incremental steps in 
making OSHA a preventive regulator, not a reactionary regulator.
  As the Senate author of S. 1237, the Safety Advancement for Employees 
Act, or SAFE Act, it is my hope that this important legislation will 
also be considered in the same sensible light. This bill was derived 
from the thoughts, suggestions, and good ideas of employees, employee 
representatives, employers, and certified safety and health 
professionals prior to even its original draft--comments that helped us 
keep out a number of past contentious provisions.
  I listened carefully to these concerns, and, as a result, the SAFE 
Act was crafted to promote and enhance workplace safety and health 
rather than dismantle it. What is left out of that bill may be as 
important as what is in the bill.
  The contentious parts from the past are not there. The two provisions 
that we passed tonight are there. The spirit of cooperation must 
overpower polarization if true improvements in occupational safety and 
health are to be achieved. It is essential that stereotypical rhetoric 
be set aside, with the understanding that an overwhelming majority of 
employers cherish their most valuable assets: their employees. Without 
the employee, management would ultimately have no production, no 
profits, and no business. It is logical to surmise that by promoting 
cooperation, good business will ultimately prevail. We cannot rest as 
long as there are injuries or deaths on the job. We need everyone 
involved in safety.
  I urge my Senate colleagues to continue along this path. Much remains 
to be done in the area of workplace safety and health. There are 
currently 6.2 million American work sites being inspected by 2,451 
Federal and State OSHA inspectors. Under these conditions, it will take 
OSHA 167 years to visit every workplace before an accident or fatality 
occurs. That is entirely unacceptable. We must continue to advocate 
cooperative compliance initiatives, incentives to the employers to look 
at the job before an accident happens, initiatives that are strictly in 
line with preventive regulation.
  We must see that OSHA does not get an IRS image. We must see that 
everyone goes home whole. I will continue to advocate this type of an 
approach in the coming weeks when additional measures will be 
considered. I urge my colleagues to both note the change in attitude on 
the House side and the Senate side on the work being done on OSHA, and 
I urge my Senate colleagues to help us work on these bills.
  I thank Senator Frist, who is the subcommittee chairman, and Senator 
Wellstone, who is the subcommittee ranking member. I thank the chairman 
of the Labor Committee, Senator Jeffords, and the ranking member of the 
committee, Senator Kennedy. I, in fact, thank all of the Labor 
Committee members on both sides of the aisle for the time and care and 
interest that they have shown in the OSHA issue.
  I give special mention, of course, to Congressman Talent, who has 
taken the SAFE Act on the House side and worked diligently on it and 
held hearings and just been a great promoter of the new attitude on 
improving workplace safety. I also congratulate Chairman Ballenger on 
the first change in the OSHA Act in 27 years.
  I would be remiss if, last but not least, I did not thank my 
excellent staff for the diligence, care, and persistence that they have 
put into all of the research and all of the meetings we have had with 
any group that was willing to meet with us across the entire country. 
That is what has resulted in being able to take this first step and 
what will result in future steps.
  Thank you, Mr. President.




                          ____________________