[Congressional Record Volume 150, Number 70 (Tuesday, May 18, 2004)]
[House]
[Pages H3115-H3124]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY ACT OF 2004
Mr. BOEHNER. Mr. Speaker, pursuant to House Resolution 645, I call up
the bill (H.R. 2729) to amend the Occupational Safety and Health Act of
1970 to provide for greater efficiency at the Occupational Safety and
Health Review Commission, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 645, the bill
is considered read for amendment.
The text of H.R. 2729 is as follows:
H.R. 2729
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Occupational Safety and
Health Review Commission Efficiency Act of 2003''.
SEC. 2. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
(a) Amendments.--Section 12 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 661) is amended as follows:
(1) In subsection (a), by striking the word ``three'' and
inserting in lieu thereof, the word ``five;'' and inserting
before the word ``training'' the word ``legal''.
(2) In subsection (b) by striking all after the words
``except that'' and inserting in lieu thereof, ``the
President may extend the term of a member to allow a
continuation in service at the pleasure of the President
after the expiration of that member's term until a successor
nominated by the President has been confirmed to serve. Any
vacancy caused by the death, resignation, or removal of a
member before the expiration of a term, for which he or she
was appointed shall be filled only for the remainder of such
expired term. A member of the Commission may be removed by
the President for inefficiency, neglect of duty, or
malfeasance in office.
(3) Subsection (f) is amended to read as follows:
``(f) The Chairman of the Commission is authorized to
delegate to any panel of three or more members any or all of
the powers of the Commission. For the purpose of carrying out
its functions under this chapter, 3 members of the Commission
shall constitute a quorum, except that 2 members shall
constitute a quorum for any sub-panel designated by the
Chairman under this subsection.''.
(b) New Positions.--Of the two vacancies for membership on
the Commission created by this section, one shall be filled
by the President for a term expiring on April 27, 2006, and
the other shall be filled by the President for a term
expiring on April 27, 2008.
The SPEAKER pro tempore. Pursuant to House Resolution 645, the
amendment printed in the bill, modified by the amendment printed in
part A of House Report 108-497 is adopted.
The text of H.R. 2729, as amended, as modified, is as follows:
H.R. 2729
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Occupational Safety and
Health Review Commission Efficiency Act of 2004''.
SEC. 2. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
(a) Amendments.--Section 12 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 661) is amended as follows:
(1) In subsection (a), by striking the word ``three'' and
inserting in lieu thereof, the word ``five'' and by inserting
the word ``legal'' before the word ``training''.
(2) In subsection (b) by striking all after the words
``except that'' and inserting in lieu thereof: ``the
President may extend the term of a member for no more than
365 consecutive days to allow a continuation in service at
the pleasure of the President after the expiration of that
member's term until a successor nominated by the President
has been confirmed to serve. Any vacancy caused by the death,
resignation, or removal of a member before the expiration of
a term, for which he or she was appointed shall be filled
only for the remainder of such expired term. A member of the
Commission may be removed by the President for inefficiency,
neglect of duty, or malfeasance in office.''.
(3) In subsection (f), by striking ``two'' the first place
it appears and inserting ``three''.
(b) New Positions.--Of the two vacancies for membership on
the Commission created by this section, one shall be filled
by the President for a term expiring on April 27, 2006, and
the other shall be filled by the President for a term
expiring on April 27, 2008.
The SPEAKER pro tempore. The gentleman from Ohio (Mr. Boehner) and
the gentleman from New York (Mr. Owens) each will control 30 minutes.
The Chair recognizes the gentleman from Ohio (Mr. Boehner).
General Leave
Mr. BOEHNER. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks on H.R. 2729.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Ohio?
[[Page H3116]]
There was no objection.
Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the second bill we will debate today is another narrowly
crafted bill that addresses a specific problem which we find in the
OSHA law.
The Occupational Safety and Health Review Commission Efficiency Act,
H.R. 2729, increases the membership of the Occupational Safety and
Health Review Commission from three to five members to ensure that
cases are heard in a timely fashion.
Because a quorum of two out of the current three commissioners is
needed for timely decision-making, the commission has in the past been
unable to act simply because a quorum was not present. There are a
number of reasons for this. The appointment process is sometimes
controversial, leading to vacancies, and sometimes commissioners must
recuse themselves from consideration of cases, meaning a situation is
created where even if there is only one seat open, there is often no
working quorum.
For some 20 percent of its history, the commission has been unable to
gain a working quorum, and as a result is simply unable to function
despite being otherwise fully staffed. Increasing the membership to
five commissioners will ensure that cases are reviewed in a more timely
fashion, improving the current system of judicial inactivity that only
results in government waste.
In short, it will allow the commission to complete the job it was
created to do by reducing case backlogs that are as much as 8 years
old.
The commission's sister agency, the Federal Mine Safety and Health
Review Commission, has five panelists, and we found it has worked well
in reviewing cases more efficiently.
{time} 1330
Lastly, the bill permits incumbent members whose terms have expired
to stay on until a replacement can be confirmed by the Senate. Most
vacancies occur during these turnovers.
We want small businesses hiring more workers and contributing to our
economy, not facing years of OSHA-related litigation that they cannot
resolve simply because the commission has an endless backlog of cases.
This bill simply ensures that OSHA cases are resolved in a timely and
efficient manner, a goal that I think we all support.
Employers who make good-faith efforts to comply with OSHA standards
deserve to be treated fairly and have their day in court. This measure
will help ensure that they receive that opportunity.
Nearly every employer today recognizes that improving workplace
safety is good for business and it is good for workers. Employers face
relentless competition both at home and abroad and they must compete in
the face of high taxes, rising health insurance premiums and burdensome
government regulations. All of these OSHA reform bills are designed to
improve worker safety and enhance the competitiveness of small
businesses that are the real engine of job growth in this country.
The U.S. economy is improving. More and more employers are hiring
workers every month. Earlier this month, the Labor Department reported
that over the last 8 months, 1.1 million net new jobs were created,
625,000 in just the last 2 months. But we want to make sure that
government regulations, and especially onerous government regulations,
do not stand in the way of small businesses hiring more workers and
getting our economy back on its feet.
This bill is narrowly crafted and addresses a specific problem in the
OSHA law. I believe it deserves our Members' support and would ask our
Members and encourage them to support it today.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
First, I would like to comment on voluntary compliance. It has been
mentioned here several times. Voluntary compliance programs are usually
directed at large employers, not small. This is not where the deaths
are occurring. In construction, half of all deaths occur among small
firms in construction, many with fewer than 10 workers. Big
corporations have understood for some time now that it is to their
advantage to have a workplace that is safe, with maximum benefits and
working conditions. And big corporations are seldom guilty of willful
violations; it is the small employers. I must say that an attempt has
been made here to make it appear that small employers have some special
virtues, but small employers can be demons often.
I recall my father working in a mill where the straw boss, they
called him, told the workers if they would go to the toilet, which was
pretty much in the middle of the floor anyhow, a cubicle that you could
see the feet and it was open at the top, if you go to the toilet and he
does not smell anything, come on out.
I can recall working at a restaurant when I was in college where the
employer, the owner of this small business, felt he had a right to pat
any woman on the behind regularly, and they were too afraid to complain
because they wanted to keep their jobs.
You might say that those were extreme conditions, that is all over;
that happened when you were in college many years ago. But in New York
we have sweatshops which are as bad as any sweatshops the city has ever
known in the 1930s, the 1920s or any other time. It is just that the
people in the sweatshops now happen to be Asians mostly, Asian workers
who are being exploited.
There is no great virtue in small businesses automatically. Yes, the
majority comply, but there are too many who still do not comply, too
many who, as I said before, are interested only in squeezing the
maximum profits from the situation; and their biggest cost is the labor
cost, labor cost in terms of wages, labor cost in terms of conditions
that must be established by law for workers.
We refuse to discuss the minimum wage on this floor. We refuse to
discuss it in the context of a bill to increase the minimum wage. But
today if we are going to talk about workers and worker safety, I think
we ought to point out that it is the workers who are making the least
amount of money whose safety is jeopardized most. They are the
vulnerable ones in conditions that nobody else wants to work in,
immigrant workers who take the lowest pay and working conditions where
no one else will work.
This is the second quarter of a four-quarter marathon, as I said
before. I have heard it called the More Injuries and More Death
Marathon Act. It is a covert approach to what the majority Republicans
tried when they first took power in 1995. This is covert. This is
guerilla warfare, one might say, undermining OSHA from the back,
undermining OSHA with sweet words.
Back on June 14, 1995, we had the first taste of what the majority
Republicans really wanted to do about OSHA. The gentleman from North
Carolina (Mr. Ballenger) introduced H.R. 1834, and that was a massive
overhaul of OSHA to weaken the law and favor law-breaking employers. If
you were to go back and retrieve that bill, you could see that most of
it was put there in one bill, and it was a frontal assault. It had the
same objectives that today's assault has.
There have been 14 of these significant bills introduced since the
104th Congress, I think half of which have been introduced by the
gentleman from North Carolina (Mr. Ballenger) which are significant in
terms of looking at the record of how OSHA has been under attack. Since
this House went under the leadership of the Republicans, OSHA has been
the target, it has been an obsession, and none of these bills are in
favor of increasing any measures to protect workers.
We cannot review and view these bills today in the context of just
one bill at a time or even the four bills. The four bills have to be
reviewed in the context of the overall policy of the Republican
majority toward working families, the overall assault against working
families.
We have to have this in context. We have to look at the figure of the
6,000 Americans per year. That figure has been there for some time,
averaging about 6,000 per year who die every year on the job.
The little display up front is an example of a centerpiece for a
quilt we want to make as a memorial to these workers. We do not want
either party to forget what is happening to working
[[Page H3117]]
families in this country. In many respects, the failure to increase the
minimum wage is one of them, but certainly with respect to health and
safety, we must do more to make it known and to put it on the front
burner in the minds of Americans as evidence of what is happening in
the workplace.
This is not unrelated to other developments like outsourcing, a major
development which goes after workers at higher levels, technicians,
computer people, scientists, engineers. Their salaries and their
working conditions are such that they are found to be offensive and not
producing ample profits, so their jobs are going to be taken away
completely and contracted out to other nations.
There are a large number of businesses that cannot be contracted out
and most of them are small businesses. Construction is one. We can
never take construction overseas; that has to happen here. The
construction industry, in particular, needs the protection of people
who want to weaken OSHA. The construction industry, in particular, is a
culprit in employing and exploiting workers at the very bottom.
We must keep this package in context. We must understand that the
covert warfare taking place here, what I call the poisoning of OSHA,
the slow draining of power from OSHA, is accelerated by these seemingly
harmless four bills. The Labor Secretary in this administration is
openly hostile to labor and to working families. We have a situation
where traditionally the Department of Labor has always been considered
the advocate for working families and for workers, but this particular
Department of Labor, this Secretary, is just the opposite and this
administration has no place for labor to have their grievances aired.
So we bring them here today at this time and take advantage of the fact
that there is at least time to discuss conditions under which people
work.
The policy of denigration, intimidation and oppression of the
workforce is a policy which yields high productivity. That high
productivity has already been achieved, but they want to go beyond that
and get higher levels of exploitation and squeeze more from workers to
increase the profits. As I said before, all small business owners are
not model Americans. They do not seek to protect and take care of their
workers in the best possible way.
We are going to have a monument. This is going to be part of an
overall quilt which gives you the number of workers per State, gives
you the number each year, since 1993 to the present. Like the Vietnam
Wall memorial, it dramatically brings home in an individual way the
fact that life is sacred. The lives of workers are as sacred as the
lives of anyone else.
I said before, we are losing more workers per day than we are losing
on the battlefields of Iraq. I do not want the Iraq battlefield
casualties to increase. We would like the casualties in both places to
decrease. But the life of a worker who is killed in a situation which
has willful violations and the death is totally unnecessary, that life
must be given more concern by both parties here in this House.
Workers and their families are under attack. We must come to their
defense. One way to defend them is to recognize these four bills for
what they are worth. They are the very destructive poisoning of the
effectiveness of OSHA.
Mr. Speaker, I submit for printing in the Congressional Record the
opinions and the statements by four groups: The AFL-CIO, the UAW, the
Teamsters and the National COSH Network. These groups oppose this bill.
I submit for the Record their statements in opposition.
American Federation of Labor and Congress of Industrial
Organizations,
Washington, DC, May 14, 2004.
Dear Representative: I am writing to express the strong
opposition of the AFL-CIO to H.R. 2728, H.R. 2729, H.R. 2730
and H.R. 2731, four bills that would erode worker protections
under the Occupational Safety and Health Act. These bills,
which are scheduled for a floor vote the week of May 17,
2004, would change established law and procedures to benefit
employers and stifle OSHA enforcement. They would do nothing
to enhance workers' safety and health protection, while
weakening the OSH Act.
H.R. 2731, Occupational Safety and Health Small Employer
Access to Justice Act--This bill requires taxpayers to pay
the legal costs of small employers (defined as employers with
100 or fewer employees and up to $7 million net worth) who
prevail in any administrative or enforcement case brought by
OSHA or any challenge to an OSHA standard brought by the
small employer against OSHA, regardless of whether the action
was substantially justified.
Under the Equal Access to Justice Act, small businesses are
already able to recover litigation costs where the government
position was not substantially justified. There is no reason
to expand these provisions and create new and broader rules
for purposes of the OSH Act. The bill will drain resources
away from an agency that has perpetually struggled to do its
job with the limited resources available to it. If enacted
into law, H.R. 2731 would have a chilling effect on both OSHA
enforcement and OSHA standard setting, because attorneys'
fees would be available to prevailing employers in both types
of actions. OSHA would be hesitant to cite small employers
for violations of the OSH Act unless there is absolute
certainty that the enforcement action will be upheld in its
entirety. No rational public policy would be furthered by
discouraging OSHA from issuing citations that are
substantially justified, but as to which the government
ultimately is unable to carry its burden of proof of every
issue. Rather, the inevitable result of such a rule, which
would penalize the government every time it loses, would be
to chill the issuance of meritorious citations in close cases
on behalf of employees exposed to unsafe working conditions.
Similarly, unless OSHA is certain that a standard will not be
challenged (which they are routinely for any number of
reasons), it would be very reluctant to development and issue
rules any hazard no matter how grave the threat of the hazard
to workers. This bill would further weaken OSHA enforcement
efforts and standard setting to the detriment of American
workers.
Establishments with fewer than 100 employees make up 97.7
percent of all private sector establishments. These
businesses have a higher rate of fatal occupational injury
than do establishments with 100 or more workers. Hampering
OSHA's enforcement ability in these small establishments
would be devastating to workers, resulting in even higher
rates of worker fatalities, injury and illness.
Also significant is the fact that under H.R. 2731,
employers will be able to recover partial attorneys fees if
they partially prevail in an OSHA proceeding. So, for
example, the notorious Eric Ho, who exposed his employees to
asbestos and made them work at night behind locked gates
without providing them any sort of respirators or training,
would be able to recover attorneys fees under this bill,
because the OSHA Review Commission dismissed two of Ho's
corporations as defendants and dismissed 10 of 11 willful
violations of OSHA's respirator and training standards.
Secretary of Labor v. Ho, Nos. 98-1645 & 98-1646 (OSHRC,
Sept. 29, 2003).
OSHA needs more, not fewer, resources available to deal
with employers like Eric Ho and to enforce the OSH Act's
protections. H.R. 2731 should be rejected.
H.R. 2730. Occupational Safety and Health Independent
Review of OSHA Citations Act--This bill would work a radical
change in the implementation and enforcement of the OSH Act,
and would undermine the Secretary of Labor's authority to
interpret and enforce the law. The bill would overturn a 1991
Supreme Court decision and say that deference should be given
to the OSHA Review Commission, and not the Secretary of
Labor, in interpreting OSHA standards. The AFL-CIO vigorously
opposes this bill and urges its defeat.
In Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144
(1991), the Supreme Court made clear that the Secretary of
Labor, and not the Review Commission, should be given
deference when interpreting OSHA standards and regulations.
In the Court's view, the Secretary of Labor should receive
deference because Congress, when enacting the OSH Act,
designated the Secretary as the policymaking official, and
gave the Secretary the authority and responsibility to
implement and enforce the law. Thus, because the Secretary of
Labor is the person who adopts standards and brings
enforcement actions against employers, she has a much broader
and deeper understanding of OSHA's rules as compared to the
Review Commission, which sees only a small fraction of OSHA's
enforcement cases.
Policymaking, and interpretation of OSHA policies, should
stay with the Secretary. The Commission should not be able to
undo by fiat the Secretary's reasonable interpretations of
her rules. H.R. 2730 should be rejected.
H.R. 2729. Occupational Safety and Health Review Commission
Efficiency Act--H.R. 2729 expands the number of members on
the OSHA Review Commission from three to five, and mandates
that all members have legal training. Another provision,
removed during the Committee markup on May 5, 2004,
authorized the Chairman of the Commission to delegate to any
panel of three or more members any or all powers of the
Commission and allowed two members to constitute a quorum on
such sub-panels.
The Review Commission has operated with three Commissioners
since it was first formed in 1970. There is no need to expand
the Commission beyond its current membership, and no need to
exclude individuals with relevant training, but not legal
training, from eligibility for these positions. Moreover, it
is no coincidence that Republican members are pushing to
expand the number
[[Page H3118]]
of seats on the Commission at a time when a Republican
president would fill the seats.
Proponents say the bill is needed to address the problem of
the Commission at times lacking a quorum to do business. But
with the removal of the provision on sub-panels during the
Committee markup, it is difficult to see how H.R. 2729 would
solve the quorum problem. Three Commissioners would still be
required to have a working quorum. There is no reason to
think that the Commission will be able to retain three active
Commissioners any better than it has been able to retain two.
H.R. 2729 is a solution in search of a problem. It should
be defeated.
H.R. 2728, Occupational Safety and Health Small Business
Day in Court Act--This bill would excuse employers from the
fifteen-day deadline for contesting OSHA citations and
``failure to abate'' notices if they can show ``mistake,
inadvertence, surprise, or excusable neglect'' as the reason.
The bill's practical effect would be to make numerous excuses
into legal reasons for missing the fifteen-day deadline by
which employers currently must respond to OSHA citations.
This action will only encourage more litigation. The idea of
the fifteen-day requirement is to give all parties a
reasonable timeframe in which to take action, and to ensure
that the case is moved along as quickly as possible so the
cited hazards will be corrected in as timely a manner as
possible.
It is also important to note that the bill excuses
employers from missing their 15-day deadline but does not
extent these same provisions to employees or their
representatives who challenge the period for abatement in a
citation. The one-sided nature of this legislation shows that
it is about benefiting employers, not protecting employees.
Proponents of the bill have pointed to one court case as
justification for this legislation. In fact, the Commission
has a longstanding practice of reviewing any missed deadlines
on a case-by-case basis. H.R. 2728 is another solution in
search of a problem, and it should be defeated.
As demonstrated above, these bills undermine the intent of
the Congress when it enacted the OSHAct more than 30 years
ago. Generally speaking, these policies and procedures have
been serving workers well for over 30 years. American workers
deserve a safe and healthy workplace and the full protection
the OSHAct can offer. These bills would surely diminish the
protections provided to workers by the OSHAct. For these
reasons, the AFL-CIO opposes these four bills, and we
strongly urge you to vote against each of them.
Sincerely,
William Samuel,
Director,
Department of Legislation.
____
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America--UAW,
Washington, DC, May 17, 2004.
Dear Representative: This week the House is scheduled to
take up four bills to amend the Occupational Safety and
Health Act of 1970. The UAW opposes each of these anti-worker
bills and urges you to vote against them.
The first three bills relate to the Occupational Safety and
Health Review Commission (Commission or OSHRC). In
considering these bills, the UAW urges you to bear in mind
that OSHRC functions as an intermediate appeal for employers,
between decisions of the Occupational Safety and Health
Administration (OSHA) and the U.S. Courts of Appeal. During
the time a case is on appeal to OSHRC, employers do not have
to pay any assessed penalties, nor do they have to abate the
violations for which they were cited. Thus, procedural delays
at OSHRC serve only to postpone justice and to delay the
correction of workplace safety and health violations.
H.R. 2728, despite being mislabeled the ``Occupational
Safety and Health Small Business Day in Court Act,'' is not
limited to small businesses. Instead, it would effectively
eliminate the statutory time period within which all
employers--not just small employers--must contest an OSHA
citation or assessment before it becomes a final order of the
Commission. Under the statute, an employer contests by simply
mailing a letter to the OSHA office. Therefore, contestation
is not burdensome, and the statutory time period should be
retained.
Moreover, the federal courts already provide relief,
pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure, for employers who can show that their failure to
meet filing deadlines was due to mistake, inadvertence,
surprise, excusable neglect, fraud, misrepresentation or
misconduct by an adverse party, so long as the employer can
show the existence of a meritorious defense. There is a body
of established case law pursuant to Rule 60(b) that would be
subject to wasteful relitigation if H.R. 2728 were enacted.
H.R. 2729, the ``Occupational Safety and Health Review
Commission Efficiency Act,'' would expand the number of OSHRC
commissioners to five from three and authorize sub-panels of
three members to exercise all of the powers of the
Commission. It would also authorize commissioners to hold
their position at the expiration of their six-year term,
until a successor has been nominated by the President and
confirmed by the Senate. Finally, it would add a new
requirement that Commissioners must have legal training.
The UAW submits that the only good to come from adding two
commissioners to OSHRC would be the creation of two more jobs
to an economy that has lost over two million jobs since
January 2004. Otherwise, it is wasteful and unnecessary to
expand OSHRC, which has been composed of three members since
it was established in 1970.
Indeed, the UAW believes that Congress should give
consideration to abolishing all of the OSHRC commissioners'
positions, allowing appeals to go directly from the decision
of the Commission's Administrative Law Judges to the Courts
of Appeals, as is done with Social Security Administration
appeals.
We object to the legal training requirement because it
would work against persons with workplace health and safety
expertise. And we object to the provision allowing
commissioners to retain their position after the expiration
of their term because it deprives the Senate of its
Constitutional advice and consent role.
H.R. 2730, the ``Occupational Safety and Health Independent
Review of OSHA Citations Act,'' would overturn a 1991 Supreme
Court decision holding that OSHRC's Interpretation of a
health or safety standard may not be substituted for the
interpretation of the Secretary of Labor. The bill explicitly
provides, ``The conclusions of the Commission with respect to
all questions of law shall be given deference if
reasonable.'' Because it is for all practical purposes only
employers who appeal cases to OSHRC, there is never an
instance when the Commission would be expanding workers'
right by substituting its interpretation for the Secretary's.
In other words, H.R. 2730 would give unprecedented and
unwarranted authority to the OSHRC to take away workers'
workplace health and safety.
The fourth bill, H.R. 2731, the ``Occupational Safety and
Health Small Business Day in Court Act,'' would permit small
employers to collect attorney fees and court costs when they
contest OSHA citations and prevail in litigation with OSHA.
This bill would reverse the time-honored rule of American
jurisprudence that requires litigants to bear their own costs
and fees. There is no need for such legislation because the
Equal Access to Justice Act adequately protects parties from
administrative overreaching by compensating them in cases
where the government is not ``substantially justified'' in
bringing a law enforcement action, or under other ``special
circumstances.''
For the foregoing reasons, the UAW strongly urges you to
oppose H.R. 2728, H.R. 2729, H.R. 2730, and H.R. 2731. Thank
you for considering our views on these important issues.
Sincerely,
Alan Reuther,
Legislative Director.
____
International Brotherhood of
Teamsters, AFL-CIO,
Washington, DC, May 14, 2004.
Dear Representative: On behalf of the more than 1.4 million
members of the International Brotherhood of Teamsters, I am
writing to express our strong opposition to four bills that
would amend the Occupational Safety and Health Act: H.R.
2728, H.R. 2729, H.R. 2730, and H.R. 2731. These bills do
nothing to enhance safety and health protections for workers.
Rather they would change established law and procedures to
benefit employers (at the expense of workers), and they would
make OSHA enforcement more difficult. Instead of weakening
the intent of the OSH Act, Congress should take steps to
strengthen safety and health protections for workers, and
improve enforcement.
H.R. 2728, the Occupational Safety and Health Small
Business Day in Court Act, seeks to excuse employers who miss
the current fifteen-day timeframe to contest citations and
failure to abate notices. We believe this proposal does
noting more than create ``artificial'' legal reasons for
failing to respond in a timely fashion. It is an about face
from ensuring that an OSHA case is moved along as
expeditiously as possible to ensure that workplace hazards
are addresses in as timely a manner as possible, thus
improving worker safety and health. The current practice of a
case-by-case review is the most appropriate way to ensure
that hazards are addressed as quickly as possible and to
reinforce the importance of workplace safety.
H.R. 2729, the Occupational Safety and Health Review
Commission Efficiency Act, would require that the number of
commission members be increased from three to five, that all
members be attorneys, and that members be able to serve until
a successor is confirmed. We see no justification, or need,
for these changes--unless one wishes to tilt the ``playing
field'' against workers. First, the level of enforcement does
not warrant five commissioners. Further, increasing the
number of commissioners would enable the Administration to
stack the review commission with pro-business appointees.
There is no reason to limit the pool of talented people
for consideration. Further, the current system helps
ensure that all parties work together to select qualified
people to serve, and to do so in a timely manner.
H.R. 2730, the Occupational Safety and Health Independent
Review of OSHA Citations Act, would, we believe, turn the OSH
Act on its ear, by giving deference to the commission.
Presently, the Secretary of Labor is given deference as the
official responsible for enforcing the OSH Act. The bill
would take away the authority held by the Secretary in
bringing cases to the Court of
[[Page H3119]]
Appeals and the Supreme Court, an important avenue of redress
to protect workers from dangerous and unhealthy workplaces.
Finally, we oppose H.R. 2731, the Occupational Safety and
Health Small Employer Access to Justice Act, which would
require that OSHA (i.e. the taxpayer) pay the legal costs
when it loses a case against a small business that prevails
in administrative or judicial proceedings, regardless of
whether the government's position was substantially
justified. We view this as another effort to impede OSHA's
and the Department's efforts to enforce the law and provide
an avenue for workers to seek redress.
We see no justification for such an arbitrary departure
from the current practice of each party paying for its own
litigation costs for only one class of public prosecutions.
We know of no other agency, charged by statute to enforce the
law, which is impeded from fulfilling its responsibility with
respect to a meritorious complaint because it cannot
guarantee the outcome.
In effect, H.R. 2371 says that unless the agency is
absolutely certain that it can prevail--that it is absolutely
certain that its enforcement action will not be challenged,
will be upheld, or no modification will occur in terms of
action--it will be penalized (budgetarily) for fulfilling its
statutory obligation to protect the safety and health of all
workers (union and non-union) and to provide an avenue for
redress.
Furthermore, H.R. 2371 would effectively gut OSHA's
statutory authority to promulgate safety and health
standards. Unless certain that a standard will not be
challenged (and many routinely are for a number of reasons),
OSHA would not dare (or be extremely reluctant, at best) to
begin a rulemaking on any hazard no matter how serious. We
believe that H.R. 2371 is tantamount to a stealth repeal of
OSHA's statutory authority to issue workplace safety and
health standards.
Each of these bills will undermine, subtly in some
instances and egregiously in the case of H.R. 2371, workplace
protections and the protection that the OSH Act was designed
to provide workers. We urge you to stand up for the safety
and health of working men and women, and reject each of these
bills.
Sincerely,
Michael E. Mathis,
Director,
Government Affairs Department.
____
Resolution in Support of the National Campaign To Stop Corporate
Killers
Whereas, approximately 170,000 workers have been killed on
the job since 1982; and
Whereas, many of these workers were killed due to reckless
disregard for worker safety on the part of the employer; and
Whereas, the Occupational Safety and Health Administration
(OSHA) has the authority under the Occupational Safety and
Health Act to refer such cases of employer misconduct to the
U.S. Department of Justice for criminal prosecution; and
Whereas, only 81 out of 170,000 workplace deaths since 1982
have resulted in convictions, only 16 of which involved jail
time; and
Whereas, the Occupational Safety and Health Act defines an
employer's reckless disregard for safety resulting in the
death of a worker as a misdemeanor, punishable by only a
maximum of six months in jail; and
Whereas, legislation has been introduced into the U.S.
Congress increasing criminal penalties for reckless disregard
for safety resulting in the death of a worker: therefore be
it
Resolved, That we, the ____, support the national Campaign
to Stop Corporate Killers with the following goals:
1. To pass federal legislation increasing criminal
penalties for willful violations of OSHA standards leading to
worker death;
2. To urge OSHA to refer such cases for prosecution;
3. To urge increased civil fines for serious violations of
OSHA standards; and
4. To urge local District Attorneys to prosecute employers
whose actions result in workers' deaths to the fullest extent
possible under state and local criminal law.
I also submit for printing in the Record as a reminder the 14 bills
that have been proposed by the Republican majority since the 104th
Congress to the present, 14 bills related to OSHA, which I think will
verify the fact that these four bills today are part of a larger
effort, a larger assault. Despite the fact that they look small, they
are very devastating in terms of the effectiveness of OSHA.
108th congress
April 3, 2003--Norwood--H.R. 1583--Makes it more difficult
to prove willful OSHA violations, increases Commission from 3
to 5 members, awards attorneys' fees to small employers who
prevail in proceedings, creates new factors to consider in
penalty assessment (with an eye to reducing penalties)
107th congress
June 19, 2001--Petri--H.R. 2235--Authorizes Secretary to
create voluntary protection program.
106th congress
April 15, 1999--Ballenger--H.R. 1434--Allows employers,
notwithstanding NLRA Section 8a2, to meet with employees
directly to discuss, review, etc. safety and health issues.
May 27, 1999--Goodling--H.R. 1987--Allows employers to
recover attorneys fees and costs if they prevail in
proceedings brought by OSHA. Ballenger also reintroduced his
string of 105th Congress bills during the 106th (see below).
105th congress
November 7, 1997--Ballenger--H.R. 2864--Encourages
``voluntary'' compliance for employers.
November 7, 1997--Ballenger--H.R. 2869--Changes law so that
records of audits and inspection done by and for the employer
need not be disclosed to OSHA inspectors.
November 7, 1997--Ballenger--H.R. 2871--Requiers Secretary
to create advisory panel of experts each time she wants to
create a new rule, advisory panel to review all scientific,
economic data.
November 7, 1997--Ballenger--H.R. 2873--Requires Secretary
to provide individualized assessment of risks to workers and
costs to employers for industry to which a rule is to be
applied.
November 7, 1997--Ballenger--H.R. 2875--Changes language
dealing with ``alternative methods of protection.''
November 7, 1997--Ballenger--H.R. 2877--Forbids Secretary
from establishing any performance methods for subordinates
based on number of inspections conducted, citations issued,
or penalties assessed.
November 7, 1997--Ballenger--H.R. 2879--Hold that employer
may not be liable for a violation if workers were not
actually exposed to the violation or if the employer did not
create the conditions that cause the violation.
November 7, 1997--Ballenger--H.R. 2881--Allows Secretary to
waive up to 100 percent of penalty on small businesses which
correct their violation within the period of abatement or up
to 100 percent of penalty to the extent that employer uses
money that would have been paid as penalty for correcting the
violation.
September 8, 1997--H. Amdt. 326 to H.R. 2264--Norwood--
Seeks to transfer $11.2 million from OSHA to fund the
Individuals with Disability Education Act.
104th congress
June 14, 1995--Ballenger--H.R. 1834--Massive overhaul of
OSHA to weaken the law and favor lawbreaking employers.
Mr. Speaker, I reserve the balance of my time.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, in case any Members just came in in the last few minutes
or little while or are watching on the monitor, let me remind us what
we are doing. This particular hour we are giving consideration to H.R.
2729, the Occupational Safety and Health Review Commission Efficiency
Act. That is what we are discussing. That is what is under debate and
that is what we are going to vote on.
Mr. Speaker, in the report on H.R. 2729, the Committee on Education
and the Workforce observed that once Congress has created a government
agency, it must continue to monitor the government agency for its
performance on behalf of the taxpayers. Surely nobody can disagree with
that. When the performance of that agency is found to be
unsatisfactory, Congress must seek to identify the reasons for this
failure and then make the needed corrections. It is that simple. That
is all this bill is about.
We are trying to make the needed corrections on behalf of the
taxpayer. That is what this is about, regardless of what we previously
have heard.
Mr. Speaker, we are all tasked with performing this oversight that
Congress has mandated since the inception of the OSHA law. That process
describes what H.R. 2729 seeks to accomplish in a narrow, surgically
targeted measure. In correcting clearly identified problems, this
measure will improve the agency's performance, increase efficiency and
eliminate unnecessary government waste. Who can disagree with that?
Let me use this visual aid behind me to explain why it will do that.
I am sure the blue and pink areas are seen prominently by all. These
shaded areas represent the time periods when the agency specifically
created by Congress to hear all disputes between OSHA and employers
have not been able to meet. The shaded areas are an indication of a
time when the review commission at OSHA was nonfunctional. It did not
work. They were getting paid, of course, but it did not work.
This is since 1970. Half of the time since 1970 the review agency did
nothing. That is not good for anybody, especially the American
taxpayer, but more importantly, the worker or the employer.
{time} 1345
They found it impossible or at least very difficult to perform the
functions that the Congress said to them this is their job, this is
what they must do.
[[Page H3120]]
This agency, the Occupational Safety and Health Review Commission, or
OSHRC, was created by Congress for one single purpose; and,
incidentally, had it not been created, there never would have been an
OSHA Act. It would never have passed in 1970 had it not been for at the
last minute OSHRC being put in.
Their job is hearing disputes between OSHA and the regulated
community. They are the court. OSHA is the plaintiff. The small
business person is the defendant. They are supposed to be totally
independent of the Labor Department. To serve this important purpose,
OSHRC, by statute, was given three members, or judges. Two members
constituted a working quorum. That is, without an agreement between two
judges on all issues of law, no decision can be issued. Without this
agreement, OSHRC cannot perform its congressional mandate, and the
review commission established by Congress is instead forced to shut
down or come to a stalemate where waste and efficiency rule the day.
Guess who gets to pay? The same old folks, the taxpayers.
Here is the problem. Stalemate and waste have been the rule over the
history of this agency since 1970 rather than the exception. I am
telling the Members they have been out of business half the time since
1970. As the visual I pointed to earlier, this one indicates the time
of trouble highlighted by the shaded areas seems to overrun this
timeline and it seems to signal a problem. And as one witness
testified, these legal stalemates produce cases as long as 8 years old
that sit on a court docket. That is not what Congress intended and it
is not fair to anybody, 8 years of stalemate and waste.
Now we are trying to remedy that. It may be hard for Members to tell
we are trying to remedy that with some of the demagoguery, but that is
all we are trying to remedy. A simple remedy can be found by looking at
OSHRC's sister agency, the Federal Mine Safety and Health Review
Commission. There, Congress placed five members on their review panel;
and since the mine safety law was passed 7 years after the OSHA Act,
most believe this represents a lesson learned. With five commissioners,
are they doing better than OSHA is with three? It is not hard. And the
answer is, yes, they are.
A second remedial step is necessary to maximize efficiency, however;
and H.R. 2729 accomplishes this by enabling the President to use what
we call a ``hold-over'' provision to improve effectiveness and
efficiency, which is what the taxpayers want, what we all should want.
Simply stated, this provision would permit the President to ask
incumbent members of OSHRC whose terms have expired to remain seated,
listen to this now, remain seated no longer than 365 days, until the
Senate can confirm a replacement. That lets this agency keep working.
Lastly, because the case is decided that OSHRC go on appeal directly
to a United States court of appeals, we have inserted the word
``legal'' before the word ``training'' and subsection 12(a) of the OSHA
Act. This directs the President to select qualified candidates, but it
in no way prevents the appointments of individuals who are nonlawyers
to serve on OSHRC because there is a threefold criteria for selections.
It includes training, that is one of them; it includes education; and
it includes experience.
Mr. Speaker, H.R. 2729 represents a very narrow change to the current
law. It will have positive and sweeping consequences in terms of
improving the performance and the efficiency of OSHRC while eliminating
unnecessary government waste. Who can be against that?
I urge the passage of this bill. And I conclude by saying that the
demagoguery earlier that says that this bill should be called More
Injury and Death Marathon Act is shameful, it is embarrassing, and it
is out of line.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I ask unanimous consent that the gentleman
from New Jersey (Mr. Payne), my colleague on the Workforce Protections
Subcommittee, be allowed to control the balance of my time.
The SPEAKER pro tempore (Mr. Terry). Is there objection to the
request of the gentleman from New York?
There was no objection.
Mr. PAYNE. Mr. Speaker, I yield myself such time as I may consume.
(Mr. PAYNE asked and was given permission to revise and extend his
remarks.)
Mr. PAYNE. Mr. Speaker, I rise in opposition to H.R. 2729, the second
quarter of the four terrible bills before us, which amends section 12
of the Occupational Safety and Health Act of 1970 to expand the
Occupational Safety and Health Review Commission from three members to
five members. They tell me that logically they are having a difficult
time moving forward with three members; so, therefore, let us make it
larger and we can move faster. That is a pretty good analogy. It is
kind of the first time that larger is better. I always heard that they
said lean and mean, that is where our government should be, cut down,
reduce, get people out of our government.
So here we have kind of a, once again, making things convenient.
There we go again. So as I look at these bills, H.R. 2728, H.R. 2729,
H.R. 2730, H.R. 2731, they all go into the same sort of stealth kind of
quiet killing. And I remember we talked now H.R. 1 was the top bill in
our committee, Leave No Child Behind, education, our current President
was going to be the educational President, he wanted to be known as.
However, 4, 5, 6, 7 years ago, the Republican Party was out to
eliminate the Department of Education. When Secretary Bennett took his
job, he said, My job is to eliminate this Department, we do not need a
Department of Education; I hope that I can dismantle it, when education
now becomes a number one issue.
So I have problems trying to figure them out because one day it is
there and the next day it is over here. This bill is just similar to
that. This bill appears to require that commission members have legal
training and provides that the President may extend the term of a
member until the Senate has confirmed a successor, and that is pretty
good because they can simply put up someone they know will not get
confirmed and they can keep hold-overs forever. The commission has
functioned with three members since its establishment in 1970.
The authors of the Occupational Safety and Health Act did not feel
that there was sufficient work to justify five members and experience
does not demonstrate otherwise. That is the reason, in their judgment,
they decided to have three members to this commission rather than five.
The majority states: ``While there are similarities between the mission
of the Mine Safety and Health Administration and the Occupational
Safety and Health Administration, there is one significant difference:
the composition of the adjudicative commission tasked with adjudicating
disputes between employers and the agency,'' that it is a difference.
It is true that the Mine Safety and Health Review Commission has five
members, while the Occupational Safety and Health Review Commission has
only three. However, it is also true that the Mine Safety and Health
Review Commission has broader responsibilities, including
responsibility for resolving whistleblowing complaints, than does the
Occupational Safety and Health Review Commission. There is a difference
in what they do and in their jurisdiction.
The majority wants to expand the size of the Occupational Safety and
Health Review Commission to make it commensurate with the Mine Safety
and Health Review Commission, but is unwilling to give the Occupational
Safety and Health Review Commission commensurate duties. In other
words, they use that as the model, but do not give it the same power.
Mr. Speaker, I believe also that the addition of the word ``legal''
as a modifier to training is also problematic. As a matter of fact, to
me it is nonsensical. The Occupational Safety and Health Act requires
that the President consider currently the ``training, education, and
experience'' of potential review commission nominees. If enacted, H.R.
2729 would require the President to consider the ``legal'' training,
education, and experience of potential nominees. Why is this necessary
for its inclusion? It has been functioning well up to now.
The majority states that ``the requirement that training be legal in
character will not prevent the selection of any other qualified
individual
[[Page H3121]]
whose experience and/or education is of a nature to qualify him or her
for service,'' that it is not necessary; however, it is put in. And the
question is, Why?
In other words, the addition of the word ``legal'' does not restrict
the President to only appointing those with legal training. The
President may still appoint individuals exclusively on the basis of
their experience or education even if they do not have legal training.
The effect then of adding the word ``legal'' as a modifier of
``training'' is only to limit the kind of training that the President
may consider. This, of course, makes no sense whatsoever.
Current law, which does not preclude the President from considering
legal training or even legal education among other types of training or
education, seems preferable to H.R. 2729, which arbitrarily links the
kind of training the President may consider.
Health and safety experts who may not have legal training, but may
nevertheless be very knowledgeable about the Occupational Safety and
Health Act, and agency and commission procedures may be unfairly and
unwisely excluded from consideration for the position of the commission
since people would question that it must be important if the term legal
now is put into the bill, and, therefore, they would not put it in and
therefore ignore it. I think that it has taken a wrong turn. I do not
think it is necessary.
I believe that the commission and workers' health and safety would
suffer from such an arbitrary exclusion of nonlawyer talent and
expertise.
Another point brought up by the movers of this bill is that this
bill, in my opinion, does not improve the efficiency of the commission
as the proponents said it does because there is an argument that if
there is one vacancy, then there is no decision because there is a tie.
My fellow colleagues on the other side have recommended we add two
people. Now what happens if one person is still absent? One and one is
a tie if we only have two. With five, two and two is a tie if one is
vacant. So if one is vacant under three, I am still trying to see what
the difference is if there is one vacant under five.
One difference is that taxpayers certainly would have to be paying
more money because we would have more people to tend with, we would
have more folks, and we are once again making bigger government. We are
just expanding, which, once again, confuses me because I have always
been told that the other side wanted to reduce the size of government.
So I would just like to certainly urge the defeat of this bill.
Mr. Speaker, I reserve the balance of my time.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
I want to sincerely and honestly thank the gentleman from New Jersey
(Mr. Payne) for staying on the subject matter. We are indeed dealing
with this bill. He and I may not agree, but at least we are having a
discussion about the bill, and there may be just a couple of things
that I want to make sure we have clear.
{time} 1400
The gentleman indicated that should the President make an
appointment, that that could be forever. That is simply not true. It is
365 days. The bill clearly states that. If the President makes an
appointment, it is for 365 days, not forever.
Secondly, the word ``legal,'' that is an interesting thing. I tended
to not want to do that too. I understand that. But the problem is,
OSHRC is an adjudicative agency, and appeals from OSHRC go straight to
the U.S. Court of Appeals. That strongly indicates, perhaps, some need
for legal training, and this training could be a very useful tool for a
member of this commission in light of the role that they play before it
goes to the Court of Appeals.
Secondly, I am very concerned that the courts have been giving
deference to the plaintiff. The plaintiff in this case is OSHA. The
court should be the review commission. The courts have been giving
deference to the plaintiff, rather than the court, and perhaps this
will stop some of this.
In terms of efficiency and going from three members to five and the
gentleman's indication that he is really against growing government,
Congress has a very difficult time saying, you know, this is not
working. We need to do something about this. This agency is not
efficient. This agency is not getting done what Congress asked it to
do.
I pointed out earlier that this agency has almost been out of work
half of the time since 1970. What could possibly be done to make it
much more inefficient than that? For some 20 percent of the agency's
history, it has not had a statutory working quorum in place, and
despite otherwise fully staffed people in the agency, they could not
act. That is wasteful and that is inefficient.
Will five do better than three? Let us pray, is all I can tell you.
It certainly has worked better for MSHA, and we hope that it will for
OSHRC.
Mr. Speaker, I reserve the balance of my time.
Mr. PAYNE. Mr. Speaker, I yield 3 minutes to the gentlewoman from
California (Ms. Woolsey), the ranking member of the Subcommittee on
Education Reform of the Committee on Education and the Workforce.
(Ms. WOOLSEY asked and was given permission to revise and extend her
remarks.)
Ms. WOOLSEY. Mr. Speaker, I rise in opposition to H.R. 2729 because
our workers deserve to know that their interests will be represented on
the Occupational Safety and Health Review Commission and they need to
know this will be an unbiased judgment.
But first, let me be clear that these four bills we are talking about
now are not a worry to any of us up here when we are looking at the
employers who actually take care of their workers, the employers who
know that workers have families and they are very concerned when they
put their policies for safety and health in place. They are concerned
about these families. They are concerned about these workers.
But those are not our worries. Our worry is about the employer that
does not do that.
This legislation, I believe, will threaten one of the only hopes a
family has for justice when a loved one is harmed at work. By
increasing the membership of the commission from three to five, the
administration could play politics with the commission with anti-
employee-safety employees and requiring quorums for a meeting, which
could delay a decision indefinitely, ultimately making good decision-
making almost impossible through the inefficiency of gathering a group.
If you cannot gather a group of three, how will you gather a group of
five?
Since Bush took office, it has been clear that he intends to use OSHA
to protect big business rather than worker safety. First, he signed
legislation overturning workplace safety rules to prevent ergonomic
standards. Then he advocated budget cuts for job safety agencies such
as OSHA and NIOSH. He went even further by suspending 23 important job
safety regulations.
The list goes on and on, and it is my opinion that this legislation
is just another way for the anti-OSHA weakening that the administration
is hoping for.
Employees need to know they are considered to be as important as
business interests. They deserve to know that they matter as much as
the bottom line.
Mr. Speaker, this legislation is not what workers need or what
workers want. They want to know that their voice will be represented on
the commission; they want to know that their grievances will be taken
seriously and handled efficiently, and for that very reason, I urge my
colleagues to oppose H.R. 2729.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I need to remind everybody that this hour is devoted to
H.R. 2729, that it is about the Occupational Safety and Health Review
Commission Efficiency Act. That is exactly what we are talking about.
I want to remind everyone that a President, a President of either
party, is going to appoint somebody to the commission that they agree
with. That makes sense, whether it be President Clinton or President
Bush. But all of these confirmations have to be confirmed in the
Senate, so there is a check and a balance on it no matter which party
is in the White House.
The comment earlier about President Bush is more concerned about big
business than worker safety , I would simply say this bill is about
small business. It has not got anything to do with
[[Page H3122]]
big business. It is about helping small business.
To simply say, well, this is not what workers want, is very
presumptive. There are 92 percent of the population out there that are
working families who own businesses, who work every day, and they do
want some relief in the regulatory element, particularly, particularly,
when the setup at OSHA is so unfair and the deck is stacked against
them.
So I will tell you that a lot of small businesses and a lot of
working families do want this legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. PAYNE. Mr. Speaker, I yield 3 minutes to the gentleman from New
Jersey (Mr. Andrews), the ranking member on the Subcommittee on
Employer-Employee Relations of the Committee on Education and the
Workforce, who does an outstanding job in that capacity.
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. Mr. Speaker, I thank my friend from New Jersey for his
generous compliment and for yielding me time.
Mr. Speaker, I very much appreciate the motives of my friend from
Georgia who brought this legislation to the floor. I know he does
everything he does out of goodness of spirit and intention, and my
remarks are not meant to be critical of his intention. I do oppose his
bill, however, for three important reasons.
The first is the bill is reminiscent, to me, of American history from
the 1930s, when President Franklin Roosevelt was unhappy with some of
the results he was getting from the U.S. Supreme Court, so he decided
to try to change the number of people on the U.S. Supreme Court. The
history books called this a ``court-packing'' scheme.
I have to wonder if what this legislation is really about is about
changing some of the results on this commission by changing the number
of commissioners. I have heard the concerns about quorums. I think that
is something that is a problem that could be cited in a number of
different Federal agencies.
I would say to my friends on the other side, Mr. Speaker, if you want
to change the substance of what the commission is doing, then change
the statute. Bring it to this floor and let us have an open and fair
debate. But changing the number of commissioners, I think is an
inappropriate way to do that.
The second concern that I have about the emphasis, as my friend, the
gentleman from New Jersey (Mr. Payne) talked about, on people with
legal training serving on this commission, I actually think that the
President of either party ought to have the broadest discretion to
determine what is a suitable background for service on this commission.
I would raise a question as to this point. Since many people who are
active in the labor movement do not have a legal background, I only
have to wonder if one of the ideas behind this provision is to make it
more difficult for a President to appoint a labor leader to this
commission, which would be unfortunate.
The third reason I oppose this, frankly, goes to the relatively
narrow nature of this bill at a time when there are so many other major
problems the country is facing. The country is embroiled in a very
serious policy problem. I know a lot of tomorrow is going to be devoted
to that debate. I am not sure we are going to have enough time for all
of the Members to come to this floor and express their concerns about
what is happening in the Middle East to our country right now.
There are 45 million Americans without health insurance. We had a
bill on the floor last week that purported to speak to that. There are
a lot of other ideas we could be debating on this floor that we are
not.
Hundreds of thousands of Americans have seen their unemployment
insurance expire in the last few months, and we have yet to see brought
to the floor a bill that would give us a chance to debate and vote on
the extension of unemployment benefits.
I think when there are such immense questions facing the country, to
be taking up the time of the House on the very narrow question of
whether there should be five members on this commission or three is an
unfortunate allocation of time.
Mr. Speaker, I would urge opposition to the bill.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, first, I would like to say to the gentleman from New
Jersey (Mr. Andrews) that I have great admiration for him, that I
always listen to him very carefully, and when he speaks, it is usually
well thought out and there is some wisdom behind it. I appreciate that.
I do not necessarily agree with his remarks, but I am thankful he
stayed on the subject, generally speaking, of the bill that is before
us. I suppose actually we could sit down and probably have some long
nights of discussion as to whether there should be three members, four
members, five members. But both of us know that the commission is
simply not working.
My suggestion is to vote for this bill and let us give a chance for
something else to work, particularly when we know that the commission
is working pretty well over at MSHA.
I do not know anything sinister about the appointments by the
President. It is pretty simple. Frankly, what we need to do is have
this commission operate. You cannot operate if it is going to take 8
years producing its findings, and that happens occasionally simply
because there is no one there that can get confirmed in the Senate. We
need to give Democrat or Republican Presidents an opportunity to put
somebody in.
Mr. ANDREWS. Mr. Speaker, will the gentleman yield?
Mr. NORWOOD. I yield to the gentleman from New Jersey.
Mr. ANDREWS. Mr. Speaker, I appreciate the gentleman's kind remarks.
I did want to make one follow-up point about the legal requirement to
be appointed.
My understanding is that to be a commissioner on the Securities and
Exchange Commission, which certainly involves tremendous issues of
adjudication, you do not need to have, necessarily, a legal background
to do that. I would just ask the gentleman to reconsider that important
point, that directing any President to appoint a person only with a
legal background here, I think, is a serious mistake that we did not
make on the Securities and Exchange Commission.
Mr. NORWOOD. Mr. Speaker, reclaiming my time, as the gentleman knows,
the legal training simply is not the only criteria. There are other
criteria, such as education and experience, and I do not necessarily
think that it has to be a lawyer.
Speaking of the AFL-CIO, they have as many lawyers in this town as
anybody in Washington. I am not worried about them not getting somebody
on the commission.
We have probably said enough. It is time to vote.
Mr. Speaker, I reserve the balance of my time.
Mr. PAYNE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would indicate that the gentleman, putting this
``legal'' terminology in here, I hear him passionately argue this bill
and bring his points up. If the new appointing authorities would look
at him, he would probably not be one who would be considered because he
is medical and not legal. I think that he would probably serve well on
that commission, but his legislation would probably discriminate
against him.
Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Texas (Mr.
Hinojosa)
Mr. HINOJOSA. Mr. Speaker, I rise in opposition to H.R. 2729 and the
other OSHA bills under consideration today.
Let us not fool ourselves. Today, we are considering legislation that
will weaken the enforcement of our Occupational Safety and Health laws.
The bills before us will delay the abatement of unsafe working
conditions, weaken the Secretary of Labor's authority to regulate
workplace safety and discourage the filing of complaints for unsafe
working conditions.
{time} 1415
A safe working environment should be the right of every worker.
Sadly, in the United States of America, the world's lone superpower,
the wealthiest Nation on the planet, it is not. The
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workplace is particularly dangerous for the Hispanic workers.
The Associated Press recently reported that Mexican-born workers are
more likely to die on the job than any other group, and the disparity
is increasing. Mexican migrants take the most dangerous jobs. Many of
them are afforded no safety equipment and no training. They are killed
in the fields, or they fall from construction sites.
Listen to these staggering statistics. Mexican workers represent one
in 24 workers in the United States and are victims of one in 14
workplace deaths.
Training and workplace safety must be a part of our workforce
development. Employers must be held accountable for meeting basic
occupational health and safety standards. No one should lose a husband,
a wife, a mother, a father, a son or a daughter because of a lack of
training or safety equipment. Workers are not disposable. Yet when OSHA
fails to seek criminal prosecution for 93 percent of the companies that
have willfully and flagrantly violated workplace safety laws at the
cost of workers' lives, that is the message that is sent.
We have a responsibility to send a different message. Our workers are
a firm's most valuable resource, and that should be our bottom line.
Unfortunately, today we will not send this message. Today some of the
majority in the House will vote to weaken workplace safety without a
thought or concern for those whose lives are at risk. I urge my
colleagues to oppose H.R. 2729. In fact, it seems to me we should
oppose all four OSHA bills.
Mr. BOEHNER. Mr. Speaker, I reserve the balance of my time.
Mr. PAYNE. Mr. Speaker, I yield the balance of my time to the
gentleman from New York (Mr. Owens), the ranking member of the
Subcommittee on Workforce Protections, who has done an outstanding job
for working people.
Mr. OWENS. Mr. Speaker, I rise to close for the opposition on H.R.
2729.
As I stated at the outset, neither H.R. 2729 nor any other of these
four bills before us addresses the important health and safety concerns
of American working men and women. In essence, H.R. 2729 gives us the
worst of both worlds, a bigger government bureaucracy designed to
accomplish less on behalf of the American worker. Moreover, this bill
would mandate legal training as a qualification for appointment to the
commission. This diminishes what ought to be a primary qualification as
a commissioner and that is expertise in the field of occupational
safety and health.
Having stated these clear reasons for opposition to this bill, which
I urge my colleagues to follow, I would like to turn my attention once
more to the urgent concern about the safety of American workers. That
concern is over the protection of workers' lives on the job. At
present, OSHA does little more than slap the wrists of employers that
are egregious safety offenders. As the New York Times noted in its
compelling series on worker deaths, OSHA has a 20-year track record of
failing to seek criminal prosecution in a staggering 93 percent of
cases they investigated where willful and flagrant safety violations by
employers killed workers.
And after you institute this proposal for H.R. 2729, it is just one
more little reason why they would have less vigor in prosecuting
anybody.
Congress has an important role to play in holding both OSHA and
unscrupulous employers accountable. One problem is that under the
current statute, OSHA can only issue a misdemeanor penalty for an
employer who has willfully caused the death of a worker. A misdemeanor
has no deterrent value whatsoever. If you harass a wild burro on
Federal lands, you face a stiffer penalty than if you kill an American
worker. What signal does this send to a small number of unscrupulous
employers who actually build up a history of willfully causing worker
deaths? Are we saying to these wrongdoers, do not worry about
protecting the lives of your workers because Congress cares more about
wild burros than about the men and women in your employ? Pestering a
wild burro in a national park can send you to prison for an entire
year, but killing a worker only lands you there for 6 months.
More importantly, what signal does that send to grieving family
members who are left behind? You cannot receive any justice because
Congress does not have a fundamental respect for the lives of your
loved ones.
Along with Senator Jon Corzine, I have introduced a bill to make
killing a worker a felony offense. I tried to get this bill included in
one of these four bills because it is germane, in my opinion; but it
was ruled out of order. Rather than a radical departure from current
law, this bill is just a moderate adjustment that is long overdue. H.R.
4270 and S. 1272 correct a glaring oversight in Federal policy, and I
will describe it in more detail later on.
Mr. BOEHNER. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, the bill before us, H.R. 2729, makes two very small
changes in the OSHA law. One, it says that the OSHA Occupational Safety
and Health Review Commission panel be expanded from three to five
members. We have gone through the various reasons why that is
important. We believe that having virtually 8 years without a quorum
and these cases languishing there for some time are really unfair to
the employers and to the agency. And by expanding the commission from
three to five members, we believe we will speed up the efficiency of
that review commission.
The second issue in the bill outlines the type of background of
people who belong on this review commission. These are commonsense
bills that we believe will help worker safety, help improve the
cooperation between OSHA and the employer community. Again, commonsense
bills that deserve our support.
Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 2729, the
Occupational Safety and Health Review Commission Efficiency Act. The
bill expands the size of the Occupational Safety and Health Review
Commission, which hears disputes between OSHA and employers, from three
to five members, and permits the President to extend the term of a
commission member until the Senate confirms a successor.
This is a transparent effort to stack the Commission with two new
members appointed by the Bush administration. There has been no
demonstrated need to increase the Commission from three to five
members. The Commission has had three members since it was established
in 1970.
Proponents of this bill argue that the Mine Safety and Health Review
Commission has five members. The responsibilities of the Occupational
Safety and Health Review Commission responsibilities, however, are not
as broad as those of the Mine Safety and Health Review Commission. For
example, unlike the mine safety panel, the Occupational Safety and
Health Act Commission does not have the responsibility to resolve
whistle-blower complaints.
Further, since the bill does not change the statutory definition that
two members constitute a quorum, expanding the membership to five would
mean that a minority of the commission would constitute a quorum--
allowing the two members appointed by the Bush administration to make
unilateral decisions.
Finally, the bill permits members to continue to serve until a new
member is confirmed, which may result in an individual serving for
years without being subject to reappointment and confirmation,
encourages filibusters, and diminishes the incentive to develop
consensus between labor and management and Republicans and Democrats
with regard to Commission appointments.
Mr. Speaker, for all these reasons I must ask my colleagues to oppose
this bill. I hope that in the future the majority leadership will help
America's workers with legislation that will increase the minimum wage
and protecting overtime rights and not undermine those protections.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Rehberg). All time for debate has
expired.
Pursuant to House Resolution 645, the previous question is ordered on
the bill, as amended.
The question is on engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read a third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. PAYNE. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion are postponed.
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