[Congressional Record Volume 150, Number 70 (Tuesday, May 18, 2004)]
[House]
[Pages H3132-H3140]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT OF 
                                  2004

  Mr. BOEHNER. Mr. Speaker, pursuant to House Resolution 645, I call up 
the bill (H.R. 2731) to amend the Occupational Safety and Health Act of 
1970 to provide for the award of attorney's fees and costs to very 
small employers when they prevail in litigation prompted by the 
issuance of citations by the Occupational Safety and Health 
Administration, and ask for its immediate consideration in the House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore (Mr. Quinn). Pursuant to House Resolution 
645, the bill is considered read for amendment.
  The text of H.R. 2731 is as follows:

                               H.R. 2731

       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 Small Employer Access to Justice Act of 2003''.

     SEC. 2. AWARD OF ATTORNEY'S FEES AND COSTS.

       The Occupational Safety and Health Act of 1970 (29 U.S.C. 
     651 and following) is amended by redesignating section 32 
     through 34 as 33 through 35 and inserting the following new 
     section after section 31:

[[Page H3133]]

     ``SEC. 32. AWARD OF ATTORNEYS' FEES AND COSTS.

       ``(a) Administrative Proceedings.--An employer who--
       ``(1) is the prevailing party in any adversary adjudication 
     instituted under this Act, and
       ``(2) had not more than 100 employees and a net worth of 
     not more than $1,500,000 at the time of the adversary 
     adjudication was initiated,

     shall be awarded fees and other expenses as a prevailing 
     party under section 504 of title 5, United States Code, in 
     accordance with the provisions of that section, but without 
     regard to whether the position of the Secretary was 
     substantially justified or special circumstances make an 
     award unjust. For purposes of this section the term 
     `adversary adjudication' has the meaning given that term in 
     section 504(b)(1)(C) of title 5, United States Code.
       ``(b) Proceedings.--An employer who--
       ``(1) is the prevailing party in any proceeding for 
     judicial review of any action instituted under this Act, and
       ``(2) had not more than 100 employees and a net worth of 
     not more than $1,500,000 at the time the action addressed 
     under subsection (1) was filed,

     shall be awarded fees and other expenses as a prevailing 
     party under section 2412(d) of title 28, United States Code, 
     in accordance with the provisions of that section, but 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust. Any appeal of a determination of fees pursuant 
     to subsection (a) of this subsection shall be determined 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust.
       ``(c) Applicability.--
       ``(1) Commission proceedings.--Subsection (a) of this 
     section applies to proceedings commenced on or after the date 
     of enactment of this Act.
       ``(2) Court proceedings.--Subsection (b) of this section 
     applies to proceedings for judicial review commenced on or 
     after the date of enactment of this Act.''.

  The SPEAKER pro tempore. The amendment printed in the bill, modified 
by the amendment printed in part C of House Report 108-497, is adopted.
  The text of H.R. 2731, as amended, as modified, is as follows:

                               H.R. 2731

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SEC. 1. SHORT TITLE.

       This Act may be cited as the ``Occupational Safety and 
     Health Small Employer Access to Justice Act of 2004''.

     SEC. 2. AWARD OF ATTORNEY'S FEES AND COSTS.

       The Occupational Safety and Health Act of 1970 (29 U.S.C. 
     651 and following) is amended by redesignating sections 32 
     through 34 as sections 33 through 35 and inserting the 
     following new section after section 31:

     ``SEC. 32 AWARD OF ATTORNEYS' FEES AND COSTS.

       ``(a) Administrative Proceedings.--An employer who--
       ``(1) is the prevailing party in any adversary adjudication 
     instituted under this Act, and
       ``(2) had not more than 100 employees and a net worth of 
     not more than $7,000,000 at the time of the adversary 
     adjudication was initiated,

     shall be awarded fees and other expenses as a prevailing 
     party under section 504 of title 5, United States Code, in 
     accordance with the provisions of that section, but without 
     regard to whether the position of the Secretary was 
     substantially justified or special circumstances make an 
     award unjust. For purposes of this section the term 
     `adversary adjudication' has the meaning given that term in 
     section 504(b)(1)(C) of title 5, United States Code.
       ``(b) Proceedings.--An employer who--
       ``(1) is the prevailing party in any proceeding for 
     judicial review of any action instituted under this Act, and
       ``(2) had not more than 100 employees and a net worth of 
     not more than $7,000,000 at the time the action addressed 
     under subsection (1) was filed,

     shall be awarded fees and other expenses as a prevailing 
     party under section 2412(d) of title 28, United States Code, 
     in accordance with the provisions of that section, but 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust. Any appeal of a determination of fees pursuant 
     to subsection (a) of this subsection shall be determined 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust.
       ``(c) Applicability.--
       ``(1) Commission proceedings.--Subsection (a) of this 
     section applies to proceedings commenced on or after the date 
     of enactment of this section.
       ``(2) Court proceedings.--Subsection (b) of this section 
     applies to proceedings for judicial review commenced on or 
     after the date of enactment of this section.''.

  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 and include extraneous material on H.R. 2731.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Ohio?
  There was no objection.
  Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker the fourth bill we will debate today in this series of 
votes is another narrowly crafted bill that addresses a specific 
problem that we found in the OSHA law. In short, we strongly believe 
that small businesses that face meritless OSHA enforcement actions 
should not be prevented from defending themselves simply because they 
cannot afford it.
  The Occupational Safety And Health Small Employer Access to Justice 
Act levels the playing field for small businesses and encourages OSHA 
to better assess the merits of the case before it brings unnecessary 
enforcement actions to court against small businesses.
  Under current law, the Equal Access to Justice Act allows small 
business owners to recover attorney's fees if the owner successfully 
challenges a citation. However, if OSHA can establish that its 
enforcement action was ``substantially justified'' or the result of 
``special circumstances,'' small businesses can be refused attorney 
fees even if OSHA loses the case in court.
  Historically, the law's ``substantially justified'' and ``special 
circumstances'' standards have made it easy for OSHA to prevent 
recovery under this broad standard, so attempts by small business 
owners to recover costs often merely exacerbate the financial harm 
caused by OSHA's dubious enforcement actions. In fact, let us look at 
some of the records here.
  In 2002, OSHA cited 83,760 violations based on its approximately 
40,000 workplace inspections. Yet, how many applications were filed for 
attorney's fees against OSHA in 2002? That number is eight. How many 
were granted? One. Moreover, for the last 25 years, only 1 year has 
seen more than 10 applications filed for attorney's fees against OSHA. 
When you compare that number to the approximately 80,000 violations 
cited every year, you begin to wonder.
  We have heard testimony in our committee on this issue, and what we 
have found is that the law's ``substantially justified'' and ``special 
circumstances'' standards have made it easy for OSHA to deny small 
businesses the ability to recovery attorney's fees.
  What these numbers tell us is that small businesses can already see 
the writing on the wall. They know OSHA has the upper hand; and if the 
prospect of recovering attorney's fees is as bleak as it appears, then 
why fight the citations at all?
  Small employers should not be forced to knuckle under OSHA's 
citations and settle up front when they believe they are innocent. This 
measure simply forces OSHA to carefully evaluate the merits of its case 
against small employers before they bring its case. If OSHA's case is 
weak and they bring the case anyway, then the agency is going to have 
to pay the attorney's fees if in fact they lose the case.
  Employers face relentless competition every day in the face of high 
taxes, rising health care costs, and burdensome government regulations. 
The last thing they need is a meritless OSHA-related litigation that 
could take years to resolve. As we have said earlier today, over the 
last 8 months our economy has created 1.1 million net new jobs; 625,000 
net new jobs in just the last two months.
  We might want to make sure onerous government regulations do not 
hamstring small businesses' ability to continue to hire new workers and 
compete in our economy. Frivolous litigation kills jobs, and this 
measure will help ensure OSHA carefully considers the merits of the 
case before they bring enforcement action.
  The measure before us is a narrowly crafted commonsense bill that 
addresses a specific problem in OSHA, and it deserves the support of 
all of our colleagues.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in strong opposition to H.R. 2731. This bill is 
the most

[[Page H3134]]

alarming of the four before us today. By mandating that OSHA pay the 
attorney fees of any employer with a total net value of under $7 
million and no more than 100 workers if they prevail upon appeal, H.R. 
2731 would drastically undermine the enforcement of OSHA's mission.
  As I stressed in my opening statement, more than 90 percent of all 
private firms in the U.S. would qualify for attorney fees upon 
successfully prevailing in an appeal. What could be more universal than 
that? H.R. 2731 would have an incredibly chilling effect on 
implementation of the act.
  What would this bill mean for American workers? It would mean that 
unscrupulous employers could risk workers lives with impunity. Focusing 
on the issue of worker protection, again, I would like to relate some 
very personal testimony delivered at a forum I held on May 12 on worker 
deaths, and some of the photos of the people who testified are in front 
of us.
  Patrick J. Walters, whose photo is on the top row, was 22 years old, 
a plumber's apprentice who was literally buried alive in a trench 
collapse in June 2002. Patrick had been sent down into a 10-foot deep, 
rain soaked trench without any training or safety equipment. Moeves 
Plumbing, a Cincinnati-based employer, had been repeatedly cited 
already by OSHA over the years for failure to follow basic safety 
standards for trench work. Although cited and fined for trench safety 
lapses in 1983, 1984, 1985, Moeves Plumbing took no remedial steps.
  Clint Daley, another Moeves employee had been buried in 1989 in 
circumstances identical to Patrick's. In Daley's case, OSHA agreed to a 
settlement based on a promise by Moeves to take required safety action, 
an example of that voluntary compliance business. Two weeks before his 
death, an OSHA inspector found Patrick and another Moeves employee 
working in an unstable, unsafe trench that was 15 feet steep. Again, 
OSHA warnings went unheeded by Moeves and this caused certain, but 
tragic, results.
  After Patrick's death, an attorney for Moeves Plumbing negotiated 
down the citation from a willful violation to an unclassified. OSHA 
also reduced the fine down to $30,000 to be paid over 4 years.
  At the May 12 forum, Patrick's mother, Michelle Marts, wondered 
aloud, ``What is it going to take to stop Moeves Plumbing from sending 
another boy like our son to his death? Patrick did not have to die this 
way. This absolutely could and should have been prevented. We do not 
want this to happen to any other family.''

                              {time}  1615

  Joey Israel was a 22-year-old laborer who fell eight stories to his 
death from Philadelphia's Victory Building on December 31, 2003. 
Employed by HydroProof Systems, he had been promoted from entry-level 
employee to laborer only 2 weeks prior to his death. All that is known 
for certain is that before careening to his death, Joey had been told 
to pull up a 23\1/2\ pound electrical cord hanging from the window. 
After repeated phone calls to OSHA to ascertain the status report on 
Joey's case, OSHA responded by stating that HydroProof had not violated 
any safety rules.
  Joey's twin sister, Jaime, insisted upon a personal meeting with the 
OSHA investigator. She was told that not one of the eight men who were 
on the job the day her brother was killed had been questioned by OSHA 
nor had the employer been questioned about the incident. When Jaime 
questioned how her brother could have been sent alone some 25 feet up 
in the air on this job, without any prior training or interview, she 
was told, ``That's the beauty of America.''
  Jaime responded at the May 12 forum with the following quote: ``What 
an awful thing to be told to a mother who just lost her son and a 
sister who just lost her brother. I believe this is the downfall of 
America, where, daily, employers risk the lives of untrained men and 
women who are doing what they have to do to support their families, to 
make a quick buck and, in a sense, kill for profit. My brother lost his 
life for a lousy $60 a day, is that what the lives of our loved ones 
are worth to their employers?''
  Scott Shaw was a 38-year-old husband and father of two young sons who 
was killed on September 7, 2002. Scott died when he fell into the 
Schuylkill River, moving from the Hopper Barge to the Work Barge. OSHA 
investigated and found that Scott's company had committed six serious 
violations. One of these violations focused on the fact that one barge 
was 8 feet higher than the other. Also, workers had to climb on rubber 
tires while jumping from barge to barge. However, OSHA combined these 
violations into one citation with six items. OSHA's total fine for 
these violations was only $4,950.
  His wife, Holly, testified that ``Scott didn't have a life jacket on. 
He wasn't required by his company to wear one. There were no life 
preservers on the barge. Scott's death was needless. The company Scott 
was working for neglected to follow safety regulations.
  ``As a teacher and as a parent, I know that it is important that a 
child understand there are consequences to their actions, and they must 
accept responsibility for what they have done. Adults must face their 
responsibility, and must be held accountable for their actions. Please 
don't let another family suffer as we have. The more that companies are 
actually punished, the more they realize they must practice workplace 
safety, and must protect their workers.''
  I urge my colleagues on both sides of the aisle to understand the 
seriousness of these discussions today.
  This is the final quarter of the marathon four bills today. I hope 
that the fact that they have been packaged together has not caused 
anybody not to listen. I hope that they understand that we are talking 
about life-and-death matters.
  I urge my colleagues to oppose the needless deaths of Americans by 
opposing H.R. 2731.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  I will remind us that we are on H.R. 2731, the employer access to 
justice. That is what we are going to be debating and voting on for the 
next hour.
  Mr. Speaker, it is my pleasure to yield 2 minutes to the gentleman 
from Michigan (Mr. Smith), my friend.
  Mr. SMITH of Michigan. Mr. Speaker, I thank the gentleman very much 
for the recognition.
  I think it is important to recognize, first, that safe working 
conditions are primarily the result of efforts by employers and 
employees working together. Safety consciousness probably is the best 
key to worker safety.
  When we add OSHA, and I was one of Michigan's OSHA commissioners for 
4\1/2\ years, I can guarantee my colleagues that OSHA regulations are 
some of the most onerous, the most complex legal mandates on business 
and very difficult to understand. So, in many cases, low wage inspector 
can go out and, trying to read and enforce the regulation, will cite an 
employer. If you are a large business, if you are GM or Ford or 
Chrysler, you have the legal staff to review and understand that kind 
of allegation and maybe come to terms even before it goes to court.
  H.R. 2731 levels the playing field for small businesses and 
encourages OSHA to have greater fairness, and to provide better access 
to examine the merits of the case. This legislation simply says that 
OSHA and, therefore, States that adopt OSHA, such as MIOSHA in 
Michigan, can arbitrally make the determination that if a case was 
``substantially justified'' or the ``result of special circumstances'', 
then you do not have to reimburse that small company for attorneys' 
fees.
  The fairness that was tried to be reached in the first place from 
OSHA was saying if it is a frivolous lawsuit, in effect, then OSHA has 
a responsibility to reimburse the legal attorneys' fees for that 
business. This is especially important to small business.
  I would encourage my colleagues to support 2731. Small business is 
the key to our economic success in this country, and this simply levels 
the playing field to make it fair in a challenge by OSHA to that small 
business and the ability of that small business to react.
  Mr. OWENS. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
California (Ms. Lofgren).
  Ms. LOFGREN. Mr. Speaker, I think it is clear that the effect of this 
bill, if it were to become law, would be to stall enforcement of 
workplace safety measures. It is a back-handed attempt

[[Page H3135]]

to weaken OSHA's enforcement and standards-setting efforts. It would 
require the American taxpayer to pick up the entire tab if a company 
successfully challenged even one of the citations that OSHA gave, 
regardless of whether OSHA's actions were substantially justified.
  It is important to note that current law already allows companies to 
receive payment if the government's position had no substantial 
justification. Think of it this way: If you had 50 citations and one of 
the 50 was found wanting, the costs would be shifted over to OSHA, and 
so we would be punishing the government every time it loses even a 
small part of an overall enforcement effort. This will deter the agency 
from enforcing the law.
  What is next? Are we going to pay a criminal defendant's legal costs 
every time there is an acquittal? I know of no other agency that is 
punished for failing to guarantee the outcome of its good-faith 
attempts to enforce the law.
  OSHA's mission is to protect the safety and health of American 
workers. We should not tie its hands and drain its resources as H.R. 
2731 does.
  I recall several years ago there was a ballot measure in California 
to severely impair the ability of California OSHA to enforce California 
OSHA regulations. After a very short while, do my colleagues know who 
the biggest opponent was of that measure to hurt Cal/OSHA? It was the 
Chamber of Commerce in California because they figured out we will pay 
more in insurance costs than we will save on compliance costs. It is a 
mistake for workers and it is a mistake for business to impair OSHA 
enforcement of safety acts.
  I urge colleagues to think carefully about this ill-advised scheme 
and vote ``no'' on H.R. 2731.
  Mr. NORWOOD. Mr. Speaker, I yield to myself whatever time I may 
consume.
  Mr. Speaker, H.R. 2731 is, once again, a narrow measure with a 
clearly targeted and very specific goal to ensure very small employers 
the ability to defend themselves against OSHA's superior litigation 
position when the small employer believes they are right.
  When dealing with OSHA, we now know many small employers are forced 
to just simply fold their tent, give up because they simply cannot 
afford the price of justice. As we all know, OSHA has a vastly superior 
ability to play the litigation game. OSHA has a team of highly skilled, 
well-seasoned lawyers at its disposal to pressure a small employer and 
a fully stocked staff to support their efforts.
  Maybe even more importantly, they do not have to give any 
consideration to what the cost of this legal activity may be because 
they know that the taxpayers of America will pick up all of their 
costs. That is not even a consideration when they determine to take a 
small business employer to court, and that is the only determination 
for a small businessman to defend himself.
  A small employer, in contrast, has to open up his own personal 
checkbook, go out and hire legal help, help that most of the time, the 
kind of employers we are talking about, they simply cannot afford.
  What is more, OSHA litigation is complex, as demonstrated by the 
thousands of pages of standards, rules and regulations that OSHA has on 
the books. That means small employers are wise to hire an attorney who 
specializes in this area of law, adding to the cost that most folks and 
small business simply cannot afford. They just say, I will pay the 
fine, I plead guilty, I cannot defend myself.
  In sum, it all comes down to the most cost-effective alternative. Can 
a small employer afford to fight or is it a cheaper business decision 
to simply knuckle under and pay the fine, despite believing that OSHA 
is as wrong as they possibly could be?
  Obviously, Mr. Speaker, we know that the EAJA just does not work when 
it comes to the OSHA law. For instance, we know that since the 
enactment of EAJA, in only 1 year have more than 10 applications for 
attorneys' fees been filed in an OSHA context. In 2003, OSHA collected 
over $782 million in penalties, but in 12 of the last 19 years, OSHA's 
total EAJA awards have been less than $10,000.
  I think, fairly clearly that demonstrates that it does not work. This 
does not add up in light of the many complaints Members of Congress 
hear from our small business constituents every year; and basically it 
is, I have to plead guilty, I am not guilty, but I cannot afford to go 
to court; and the cost of going to court is going to be so much more 
than the fine, I just give in.
  In some 180 other statutes, Congress has supplemented the coverage 
offered by EAJA with other fee-shifting statutory arrangements for 
attorneys' fees. So we are not suggesting some radical departure from 
what has been the norm in Congress. What we are offering instead, Mr. 
Speaker, is a small opportunity to level the playing field for small 
employers who need all the help they can get, 100 employees or less 
with a net worth of $7 million or less.
  Mr. Speaker, I said this was a narrow measure, and that is exactly 
what it is. In fact, it reduces the coverage of what is considered a 
small business under EAJA. Under H.R. 2731, eligibility for coverage is 
one-fifth the size of EAJA. This measure could only cover employers 
with 100 or fewer employees and those with a net worth not exceeding $7 
million. No other employees are even eligible for recovery. So this is 
truly a measure for small employers who are the most vulnerable to 
OSHA's litigation squeeze.
  Mr. Speaker, no one wants OSHA to use taxpayer money to pay 
attorneys' fees instead of enforcing the law. That is not our goal. 
That is not the purpose of this measure, and that is not what would 
result from its passage.
  The purpose of H.R. 2731 is simply to force OSHA to think twice 
before pursuing expensive and time-consuming litigation where they do 
not have to pay anything, but the taxpayers do, in cases of dubious 
merit, when it is against very small employers who simply cannot afford 
to defend themselves.
  Under H.R. 2731, if OSHA does bring these actions and loses, it does 
pay attorneys' fees. There is no increased cost. It comes out of OSHA, 
and it should come out of OSHA. They should think twice before they 
take cases to court knowing that all they have to do is say, we are 
going to court and the small business employer has to give in; that is 
all.
  And as I have said before, if OSHA brings only cases with merit 
against small employers, this bill is not going to cost them one red 
cent. All they need to do is better evaluate the merits of their 
actions and stop using litigation as a way to force employers to say, I 
give in.

                              {time}  1630

  I do not believe you, I think I am right, I give in. I just do not 
have the money to fight you in court.
  I urge my colleagues to vote for passage of H.R. 2731.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield 4 minutes to the gentlewoman from 
California (Ms. Woolsey).
  Ms. WOOLSEY. Mr. Speaker, first of all I wish to thank the gentleman 
from New York (Mr. Owens) for what he has been doing on worker safety 
issues all these years. If we would just listen to every word he says, 
we would all learn every day from his wisdom. And I thank him also for 
the hearings that he held last week. Anybody that sat in those hearings 
and listened to those families who had lost a family member to a work-
site tragedy, it would have strengthened their resolve absolutely that 
our goal is to strengthen OSHA.
  Mr. Speaker, I rise today in opposition to H.R. 2731 because workers 
deserve to know that their interests will be represented and 
represented fairly by OSHA. As I said earlier today on another bill, we 
are not the least bit worried about employers who manage in good faith. 
We are worried about the ones that ignore near misses and important 
safety standards, employers who know they have a major problem after 
the experience of an employee's death or severe injury, but ignore the 
problem and carry on business as usual until another fatality or 
another severe injury occurs. Those are the employers we are concerned 
about.
  When workers and their families suffer due to poor safety at the 
workplace, they feel angry and they feel betrayed. They are not 
protected and they know it. They do not need to feel betrayed further 
by their government when they are seeking justice for their original 
betrayal. This bill threatens the lives of thousands of workers because 
it forces OSHA to consider costs of attorney's fees before deciding 
whether or

[[Page H3136]]

not to take action. Putting this unique burden on OSHA may take away 
the only recourse many, many employees have to stand up for their 
safety or for their families in demanding redress.
  Since President Bush took office, it has been clear that he intends 
to use OSHA to protect business interests rather than workers' health 
and 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 further by 
suspending 23 important job safety regulations, and the list goes on 
and on. This legislation is one more way to weaken OSHA, and it will 
make it that much easier for business to avoid OSHA regulations.
  If my colleagues really wanted to help workers, they would raise the 
minimum wage, and they would do it now; they would extend unemployment 
benefits; they would also increase penalties for employers that ignore 
safety regulations; and ensure that workers and their families have the 
support they need and deserve to address faulty employer practices.
  Mr. Speaker, this administration has lost sight of what workers 
really need, a safe working environment, a fair wage, and meaningful 
reforms in the workplace. I urge my colleagues to join me in opposing 
H.R. 2731, which is an unnecessary attack on worker protections.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume 
to point out that probably every Member in here should read the GAO 
report put out in March 2004. Frankly, President Bush has done an 
excellent job in workplace health and safety. The numbers have been 
coming down. As the GAO says, and others, they are at historically low 
levels. I would say that is probably going in the right direction.
  And I say it is going in the right direction because we finally 
understand the way you get a healthier and safer workplace is having 
cooperation between the employer and the employee and the OSHA. But 
when OSHA uses the litigation tactic to force a small employer to admit 
to something they do not believe they are guilty of, that does not 
promote cooperation.
  This is simply about justice and fairness to small business owners. 
They are workers too, and they do want to see this legislation passed. 
In fact, they involve most of the workers in America today and the 
people that work for them. So I would like for us not to sit here and 
say that workers do not want to see this legislation passed. That is 
simply not true. The majority of workers, the 92 percent that are not 
in the unions today, yes, they do want to see this passed. It is unfair 
to say they do not. They are working families as much as anybody that 
is organized.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, may I inquire as to how much time is left.
  The SPEAKER pro tempore (Mr. Quinn). The gentleman from New York (Mr. 
Owens) has 19 minutes remaining, and the gentleman from Georgia (Mr. 
Norwood) has 17 minutes remaining.
  Mr. OWENS. Mr. Speaker, I yield 5 minutes to the gentleman from New 
Jersey (Mr. Payne).
  (Mr. PAYNE asked and was given permission to revise and extend his 
remarks.)
  Mr. PAYNE. Mr. Speaker, I rise in opposition to H.R. 2731 because I 
believe that H.R. 2731 is a blatant attempt to chill OSHA's exercise in 
statutory responsibility to enforce the Occupational Safety and Health 
Act by penalizing the agency for every instance in which it attempts to 
do the right thing, but perhaps is unsuccessful. I think that this 
would certainly dampen people's interest in seeking justice.
  Let me just say that as I look at this fourth quarter of these bills 
that have come here today, this is just another example of weakening 
OSHA from the inside. My colleagues would probably just like to 
eliminate it from the outside, but this is the stealth approach.
  I think one thing that the other side does well is to give very good 
names to these bills. For example, this H.R. 2731, Occupational Safety 
and Health Small Employer Access to Justice of 2004. Now, who could be 
opposed to the access of justice? However, what does the bill do? It 
creates a hindrance for people pursuing justice.
  Let us just take a look at the other three. H.R. 2728, Occupational 
Safety and Health Small Business Day in Court Act of 2004. Nothing is 
better than your day in court. It is the American way. But what does it 
do? It delays and weakens enforcement. It does not do the right thing.
  Then H.R. 2729, once again, sounds great, Occupational Safety and 
Health Review Commission Efficiency Act of 2004. And what does 2729 do? 
It makes it more difficult. It enlarges the commission. It creates 
legal preference. It makes it a little more complicated.
  And let us take a look at H.R. 2730, Occupational Safety and Health 
Independent Review of OSHA Citations Act of 2004. Sounds good. What 
does it do? It creates conflict with the Secretary. It creates another 
board that has the right to interpret the Secretary's rulings. We might 
as well eliminate the Secretary. I'll bet my colleagues would, if they 
could, because they really want to eliminate OSHA.
  And this is not new because this is the way these bills go. Remember 
the Workers Paycheck Protection Act? Everyone loves to have their 
paycheck protected, but what did it do? It made it more difficult for 
people who wanted to pay union dues.
  Let us look at the TEAM Act. That is the way we move ahead. Companies 
that have employees that work in teams together, we move forward, we 
are more productive, we are going to make the best product. But what 
does the bill do? It has the employer select the negotiating team for 
benefits.
  Take a look at the Family Time Flexibility Act. Fantastic. Everyone 
likes flexibility and likes to be with their family. What does it 
really do? It replaces overtime with comp time when the employer wants 
to give it to the employee.
  The Truth in Employment Act. We all love truth in employment. What 
does it do? An employer can fire or refuse to hire people if they think 
they have union sympathies.
  The Fairness for Small Business and Employees Act. Since 85 percent 
of our businesses are small businesses, we certainly want fairness for 
small businesses and employees. But what does the act do? It requires 
the NLRB and OSHA to pay fines. It is sort of the forerunner of H.R. 
2731 that we are here for today.
  The Sales Incentive Compensation Act. That is why people work hard, 
because they want to be compensated. They work hard, they are doing it 
the American way, but what does it do? It takes overtime pay away from 
inside workers.
  Rewarding Performance in Compensation. We all want to be rewarded for 
our performance. Once again, a beautiful title. What does it do? It 
merely reduces overtime because it excludes bonuses in the calculation 
and makes it more difficult.
  So as we listen to these great apple pie-named bills, it seems like 
the nicer they sound, the worse they are. Please do not do a Greatness 
to Donald Payne bill, because I would hate to hear what it would really 
do at the end of the day.
  So I would just like to say, I urge my colleagues to reject this H.R. 
2731, because once again, in my opinion, it is going in the wrong 
direction.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  I think it is time again to remind the body we are discussing H.R. 
2731, the Small Employer Access to Justice Act. What that means is that 
working families, the majority of the working families in my 
colleagues' districts that happen to be in small businesses deserve 
access to justice.
  It is clear to everyone that OSHA's attorneys know well when they 
have a weak case. Nobody has to tell them. They know it. And they know 
under current law they might as well pursue the case and push the 
employer into settlement, even if they know they may lose the case in 
court. So what they are basically saying to that working family who 
owns a small business is, you either pay this fine and say you are 
guilty, or we are going to make sure you pay a lot more in defense 
fees, regardless of who wins in court.
  Mr. Speaker, only in these cases and only when an employer is very 
small does H.R. 2731 suggest that OSHA use some degree of discretion 
before instituting litigation.
  Mr. Speaker, I reserve the balance of my time.

[[Page H3137]]

  Mr. OWENS. Mr. Speaker, I yield 3 minutes to the gentlewoman from New 
York (Mrs. McCarthy).
  Mrs. McCARTHY of New York. Mr. Speaker, I rise in strong opposition 
to H.R. 2731.
  Mr. Speaker, no one should be fooled by what my colleagues on the 
other side of the aisle have named this bill. This is not a bill about 
safety and health or access to justice. This bill is about turning 
Federal law on its head and restricting an employee's due process and 
access to justice.
  This misguided bill would require OSHA to pay attorney's fees and 
costs in any case in which it did not prevail, regardless of why the 
agency did not prevail, and even if OSHA is justified in bringing the 
action.
  Normally, fees and costs are awarded to the prevailing party 
defending against a frivolous claim. This bill awards fees to 
employers, even if the claims of their failure to protect their 
employees has merit. I think this, personally, is disgraceful.
  Placing the burden on OSHA to pay attorney's fees for any case they 
lose would be a great incentive for OSHA to stop bringing claims all 
together. We see now the reason the other side brought this bill up. Do 
you see, Mr. Speaker? This means OSHA will be paralyzed to do its job.
  American workers will be the ones to suffer, through injuries on the 
job or even through death. In the year 2000, the last year we had these 
statistics, 4.7 million injuries happened in this country. We had over 
5,500 deaths. And these are added to that.
  This bill places a higher priority on the compensation of employees 
than protecting American workers. In Federal law, we normally award 
fees and costs to those defending against frivolous lawsuits.

                              {time}  1645

  The reason is we want to discourage cases without merit from having a 
day in court. This bill aims to discourage cases with merit from having 
their day in court. This is an assault on not just the American worker 
but the American system of due process and justice as well.
  Those on the other side want to eliminate OSHA's enforcement powers 
by making them pay fees and costs. What is next, Mr. Speaker? Will the 
other side create a private right of action and ask injured employees 
to pay fees and costs in valid claims themselves?
  Mr. Speaker, will it be, Congratulations, you were right, here is 
your award for your injury, but you have to pay the employer who 
injured you for the costs of showing up? I worry about even saying 
this, out of concern the other side will take me up on it.
  This is a bad bill. It ties OSHA's hands and American's workers lose 
their due process and day in court. This is not limited to small 
businesses. H.R. 2731, despite its stated intent to apply to small 
businesses, achieves broad coverage in employer requirements. The 
Bureau of Statistics data for the first quarter of 1998 showed that 
there were over 6.5 million private sector establishments with 99 or 
fewer employees, employing 55 million workers, 54 percent of the 
private sector workforce. So even though we are saying we are doing 
this for small businesses, it is over 54 percent of our workforce.
  Mr. Speaker, we can do better. We must do better. We have to make 
sure that our workers of this country are protected. We care about our 
small businesses. Everyone cares about small businesses, but going the 
way we are going now on tying OSHA's hands to prosecute those that are, 
in my opinion, having unsafe workplaces is not right. We should defeat 
this bill. I ask for a ``no'' vote on H.R. 2731.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, my opinion is it is shameful that there would be anyone 
in here who would not want to support working families who happen to be 
small business owners, which are the majority of people in our 
districts, so they can have equal access to justice when the big arm of 
the Federal Government slams down on them.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield 4 minutes to the gentleman from New 
Jersey (Mr. Andrews).
  (Mr. ANDREWS asked and was given permission to revise and extend his 
remarks.)
  Mr. ANDREWS. Mr. Speaker, I say to the gentleman from Georgia (Mr. 
Norwood) who said that any Member here who does not support the working 
families who run small businesses should be ashamed of themselves, the 
gentleman is right. We all should support such individuals, and that is 
what the law does now.
  The law says if someone owns a business and OSHA brings a specious or 
frivolous claim, that they can recover their attorney's fees now. That 
is the law. What this bill does is go far beyond the law, and it says 
to OSHA, if you are not sure you are going to win the case, you better 
not bring it. If you are not certain you are going to win the case, you 
are going to have to pay the attorney's fees of the person you are 
suing.
  So if I were the person running OSHA, Mr. Speaker, and my personnel 
came to me and said there is a claim we want to file against a company 
that digs trenches that are sometimes unsafe and there was a collapse 
of a trench last year and a guy died, I would ask them, Are you sure 
you are going to win the case? And if they are competent and honest 
attorneys, their answer would be we are not sure because it may be the 
defense that the trench was constructed properly, or it may be a 
defense that the worker acted in a fashion that contributed to the 
accident, or there may be some other defense.
  The law today says if OSHA brings a frivolous and unsubstantiated 
claim and loses, then OSHA must pay the counsel fees of the company 
that they sue.
  Now the majority has said that law is insufficient to get the job 
done because very few claims have been paid out. I wonder if the reason 
very few claims have been paid out is because the huge majority of 
claims that OSHA has brought have been justified, have been heard by a 
court and have been determined not to be substantially unjustified.
  I would respectfully suggest to the majority that if the majority 
wishes to make the standard easier for a business that is sued to get 
over, they should look at amending that statute or perhaps look at the 
definition of ``substantially unjustified.'' What this says is if OSHA 
sues and loses, it pays. So the only cases that OSHA is going to bring 
are the ones that they are certain they are going to win. This is 
effectively and functionally a repeal of the OSHA statute because if 
the agency brings a claim that it is not sure that it is going to win 
and if it loses that claim, it has to pay fees that will eventually 
dwarf and overwhelm its budget, and it will not pursue the claims at 
all.
  The twisted logic of this bill is if OSHA makes a misjudgment and 
files a case that it loses on a close call, it loses not only the case, 
but it loses its ability to go after dozens or hundreds of other cases 
because the resources that it would have devoted to investigating and 
prosecuting those cases would be otherwise spent.
  If OSHA brings a frivolous or unjustified case against a small 
business, it should pay the counsel fees of the small business. That is 
the law today. This bill goes far beyond that and says to OSHA you can 
only bring the cases you are sure you are going to win. That will 
radically cut back on the ability of this agency to protect the 
American worker. I fear that is what the bill is intended to do, and 
that is why we ought to oppose it.
  Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the gentleman from New Jersey (Mr. Andrews) talks about 
how employers can recover the cost of their legal fees if in fact they 
win. But the fact is, and the gentleman knows and we well know, in the 
last 23 years, 23 years, exactly 37 employers had their attorney's fees 
returned to them.
  I will tell Members why that is the case, and that is because under 
the Equal Justice Act and the law around OSHA, unless OSHA was 
completely out of bounds, employers tend to lose. So here is what 
happens: employers do not even try.
  To give another example of why employers are not seeking legal fees 
from OSHA, it goes to the fact that if I am a small employer, which I 
was, am I going to put my capital, my assets, on the line, even if I 
think I am right, to take on the Federal Treasury and the

[[Page H3138]]

Federal Government? I am probably just going to suck it up, go to 
court, pay the fine, and go on because I am not going to put my company 
at risk. I am not going to put all of my employees at risk, which is 
exactly what most small employers in America face today. That is why 
over the last 23 years only 37 employers ever got any attorney's fees 
from OSHA.
  Members can put themselves in the position of that small employer 
looking up at the Federal Government and the Federal Treasury and 
mountains of lawyers. I would not take that risk. I do not blame them 
for not taking the risk.
  All we say in this bill is if OSHA brings litigation against a small 
employer of 100 employees or less with a capital of less than $7 
million, and OSHA loses, the small employer ought to have his 
attorney's fees covered.
  I do not believe that this will reduce the enforcement of OSHA in any 
way, shape or form; but I do believe it will cause OSHA to consider the 
strength of that agency, the power of the Federal Government, consider 
all of that before they come down on some poor small employer who is 
trying to do his best to protect the health and safety of his 
employees.
  But I do not think it is fair under the current system and the 
current structure that we have to look up, and to take 2002, for 
example, one employer, one employer in all of America got his 
attorney's fees returned to him. One. There were 80,000 citations 
issued by OSHA, one employer got some attorney's fees returned to him. 
It is not fair.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Ohio (Mr. Kucinich), the distinguish candidate for 
President.
  Mr. KUCINICH. Mr. Speaker, I rise today in strong opposition to H.R. 
2731, the misnamed and ill-considered Occupational Safety and Health 
Small Business Access to Justice Act. In 2002, 5,524 workers were 
killed on the job because of dramatic injuries. In 2002, almost 60,000 
workers died from occupational diseases. And in 2002, over 5 million 
workers were injured or fell ill on the job.
  For some perspective, approximately 56,000 Americans died between 
1958 and 1975 in the Vietnam War. The American workplace leads to the 
same number of deaths in a single year. With this in the background, it 
is mystifying to me that today we are considering a bill to 
significantly weaken OSHA and to make the workplace less safe, as H.R. 
2731 would do by requiring OSHA to pay attorney's fees in any case in 
which it does not prevail.
  The effect of this bill would be to discourage OSHA from bringing 
enforcement actions against dangerous workplaces. OSHA would have to 
calculate the odds of winning against the cost to its budget if it 
loses. That would render the Federal cop on the workplace safety beat 
timid.
  Let us be clear, no one would suggest the government should pay the 
attorney's fees of criminal defendants merely because they have been 
acquitted. So just as the concept underlying this bill would make our 
streets more dangerous if applied to the criminal code, something no 
one in this House would support, it would make our workplaces more 
dangerous if applied to the OSHA law.
  I ask my colleagues, should the level of protection the law provides 
Americans vanish the moment the workers walk from the street to the 
shop room floor? That is the concept promoted by this bill. And make no 
mistake, although current law may not consider deaths resulting from 
willful disregard of basic safety procedures a criminal matter, such 
shameful instances are absolutely criminal.
  I think it is clear this bill is designed to weaken enforcement of 
workplace safety laws, to further distance exploited workers from the 
justice they and their families deserve under the law, and it will 
severely handicap OSHA by discouraging it to cite employers unless the 
agency is utterly certain it will win.
  Given the importance of OSHA's core mission of protecting workers and 
workers' lives, and that workers have no private right of action under 
OSHA, a fact that again mirrors the criminal code that rejects the 
rationale underlying this bad bill, there is every reason to be more, 
not less, cautious with fundamentally altering the nature of OSHA 
enforcement. But H.R. 2731 does not make a cautious change. It will 
severely endanger the safety of American workers; and as such, it 
should be defeated.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  As usual, when the gentleman from New Jersey (Mr. Andrews) takes the 
floor, he gives Members pause to think a moment. I have wondered if he 
is asking the right question, however. When this bill becomes law, it 
seems to me the question that OSHA should ask is not will we win the 
case, but are we right. Do we actually have a case where a citizen 
violated the law, and do we actually have substantial proof to take 
into court whether that citizen violated the law?

                              {time}  1700

  I would hope that when this bill becomes law that OSHA will take 
cases that they deem meritorious, cases in which they think and believe 
strongly that they are right. What we are after is having them think 
carefully about cases that do not have a lot of merit but it is just a 
good way to win.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
  I want to thank the members of the minority on the committee for 
their work on this bill. I want to thank the majority for giving us an 
opportunity to talk about the very real problems that are faced by 
workers in the workplace.
  Mr. Speaker, I submit for the Record an item titled Summary of the 
AFL-CIO Death on the Job Report, and the second item for the record, 
Profile of Workplace Safety and Health in the United States.

             Summary of the AFL-CIO Death on the Job Report

       The report is a national and state-by-state profile of 
     worker safety and health in the United States. A combination 
     of too few OSHA inspectors and low penalties makes the threat 
     of an OSHA inspection hollow for too many employers. Millions 
     of workers are still left with no OSHA coverage.
       Here are some of the ``highlights'' of the report:
       15 workers were fatally injured and more than 12,800 
     workers were injured or made ill each day during 2002. These 
     statistics do not include deaths from occupational diseases, 
     which claim the lives of an estimated 50,000 to 60,000 
     workers each year.
       A 62 percent increase in the number of trench fatalities, 
     from 33 in 2002 to 53 in 2003.
       Fatal injuries among Hispanic or Latino workers decreased 
     about 6 percent, although the 840 fatalities recorded for 
     Hispanic workers is the second-highest annual total for the 
     population. States that saw an increase in the number of 
     Hispanic worker fatalities in 2002 include Alabama, Arkansas, 
     Florida, Idaho, Indiana, Maine, Maryland, Nebraska, New 
     Jersey, North Carolina, Pennsylvania, Tennessee, Virginia, 
     Washington and Wyoming.
       The number of fatal work injuries among foreign-born 
     Hispanic workers increased to 577 in 2002 from 527 in 2001.
       Musculoskeletal Disorders continue to account for more than 
     one-third of all injuries and illnesses involving days away 
     from work and remain the biggest category of injury and 
     illness. The occupations that reported the highest number of 
     MSDs involving days away from work in 2002 were nursing aides 
     and orderlies (44,421); truck drivers (36,814); and laborers, 
     nonconstruction (24,862).
       As documented in a December 2003 New York Times series, 
     prosecutions of recklessly negligent employers are extremely 
     rare. Of the 170,000 workplace deaths since 1982, only 16 
     convictions involving jail time have resulted--although 1,242 
     cases involving work deaths were determined by OSHA to 
     involve ``willful'' violations by employers (violations in 
     which the employer knew that workers' lives were at risk).
       Penalties for significant violations of the law remain low. 
     In fiscal year 2003, serious violations of the OSH Act 
     carried an average penalty of only $871 ($856 for federal 
     OSHA, $885 for state OSHA plans).
       2,240 federal and state OSHA inspectors responsible for 
     enforcing the law at 8.1 million workplaces. At its current 
     staffing and inspection levels, it would take federal OSHA 
     106 years to inspect each workplace under its jurisdiction 
     just once.
       Between FY 1999 and FY 2003 the number of employees who 
     work in workplaces inspected by federal OSHA inspections 
     decreased by nearly 12%. The average number of hours spent 
     per inspection also decreased between FY 1999 and FY 2003, 
     from 22 to 18.8 hours per safety inspection and from 40 to 
     34.7 hours per health inspection. The number of citations for 
     willful violations decreased from 607 in FY 1999 to 391 in FY 
     2003. The average penalty per violation and per willful 
     violation increased in FY 2003 from the FY 2002

[[Page H3139]]

     level, while the average penalty per serious violation 
     decreased to its lowest level since 1999.
       After three and a half years under the Bush administration, 
     rulemaking at OSHA and MSHA has virtually ground to a halt. 
     In December 2003, the administration published its latest 
     semiannual regulatory agenda, which sets forth its regulatory 
     priorities and plans for the coming year. Having already 
     withdrawn 22 pending OSHA regulatory actions from its 
     regulatory agenda, in its May 2003 regulatory agenda the Bush 
     administration withdrew the glycol ethers standard and the 
     tuberculosis standard, leaving few major initiatives on the 
     regulatory schedule.
       OSHA still has taken no action on the Employer Payment for 
     Personal Protective Equipment standard, which has been 
     through the rulemaking process and is ready for final action.
       The only major regulations still on the regulatory agenda 
     are for silica, beryllium and hearing conservation for 
     construction workers. But there is no commitment for OSHA to 
     propose these rules. This will be the only administration in 
     history not to issue a major safety and health regulation 
     during its four years in office.
       17 MSHA standards to improve safety and health for miners 
     have been withdrawn, including the Air Quality, Chemical 
     Substances and Respiratory standard.
       Adjusting for inflation, the FY 2005 proposed OSHA budget 
     represents a $6.5 million cut over FY 2004 appropriations.
       The FY 2005 OSHA budget proposes increasing programs for 
     voluntary compliance with employer assistance while cutting 
     training and outreach programs for workers and freezing 
     standard-setting and enforcement programs. At OSHA, the 
     president proposes to cut worker safety training programs by 
     65 percent and to shift these funds to employer assistance 
     programs.

  Since we have had a running commentary here about staying on the 
point, I would like to comment directly on H.R. 2731 by quoting from 
the Brotherhood of Teamsters objections:
  ``Finally, we oppose H.R. 2731, the Occupational Safety and Health 
Small Employer Access to Justice Act, which would require that OSHA, 
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.''
  If OSHA is forced to guarantee the outcome, it ties OSHA's hands and 
will rob workers of protections by discouraging OSHA from executing its 
required responsibilities. Like all of the other items in this marathon 
package, which I call the More Injuries and More Death Marathon, it 
stacks the deck against the workers and in favor of the employers.
  Mr. Speaker, I yield back the balance of my time.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  I think it is probably important at this time to remind the Members 
that this debate and this bill is very narrowly tailored. It is H.R. 
2731, the Occupational Safety and Health Small Employer Access to 
Justice Act.
  It is just this simple: If you have working families in your district 
that are running small businesses, we are trying to give them an equal 
playing field, a level playing field with the Federal Government. If 
you have a district where there is no small business, then you do not 
have to worry about this. It will not matter how you vote. But I ask 
all of my colleagues to level the playing field so little people have a 
little chance against the Federal Government and OSHA when they come 
down with all their battery of lawyers.
  Mr. BLUMENAUER. Mr. Speaker, unfortunately, this Congress has 
repeatedly undermined protections for the American workforce, shifting 
emphasis from employees to employers. The four bills brought to the 
House floor today are the most recent examples that hinder the efficacy 
of the Occupational Safety and Health Administration (OSHA), taking 
away protections from the workers that need them most, and shielding 
businesses from government oversight.
  Taken together these bills:
  Allow businesses to indefinitely delay the reparation of health and 
safety violations.
  Needlessly expand the Occupational Safety and Health Review 
Commission, allowing the administration to stack it with partisans who 
may work to undermine basic worker protections.
  Strip OSHA of the power to issue authoritative interpretation of 
regulations, enabling more companies to violate safety and health 
hazards without facing repercussions.
  Require OSHA to pay attorney fees and costs even in cases in which 
the federal government was found to be ``substantially justified'' in 
pursuing the action. This will create a deterrent for complaints 
against employers.
  Rather than ``reform,'' these four pieces of legislation weaken OSHA 
and undermine Congress's original intent when OSHA was enacted in 1970. 
These bills were introduced under the guise of creating economic 
competitiveness. Undermining the health and safety standards does not 
make Americans more competitive. Americans pride themselves in having 
the greatest workforce in the world. How can we enhance working 
conditions of workers abroad in trade agreements and other 
international pacts when we erode basic health and safety protections 
for our own workforce? Americans deserve a safe and healthy workplace. 
Limiting OSHA, the agency created to ensure workers receive these basic 
rights, will do nothing to advance the cause.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in opposition to this 
bill, H.R. 2731, the ``Occupational Safety and Health Review Commission 
Efficiency Act of 2004.''
  First, I would like to point out a misconception that has been 
propagated by our friends on the other side of the aisle. Mistakenly, 
the Occupational Health and Safety Review Commission under the Act 
(OSHRC under OSHA) has been likened to the ``plaintiff'' in a safety 
and health citation proceeding.
  The reason why our friends on the other side of the aisle have 
brought this package of four bad proposals to the floor is because they 
hold true this misconception--that OSHA, in adjudicating the citations 
that it issues for violations by employers, is a plaintiff. The 
technical definition of a ``plaintiff,'' for procedural purposes, is 
the party that initiates a lawsuit, and a ``complainant'' refers to one 
who makes the complaint in a legal action or proceeding. However, 
because OSHA is the agency responsible for enforcing regulations that 
relate to occupational health and safety, for making our workplaces 
safe, and for making businesses--regardless of the size or net worth--
accountable for the conditions in which they place their workers, OSHA 
is a conduit and the worker is the real Plaintiff, Mr. Speaker. The 
worker is the party that has relied upon her employer to comply with 
the law to their detriment and loss. The worker is the party that has 
lost wages, life, or a limb. The worker is the party without which the 
employer ceases to do business. Finally, the worker is the party for 
whom the OSHA regulations were drafted, passed, and promulgated. 
Therefore, it is our duty as legislators to do everything in our power 
to protect them without creating a substantial or unreasonable hardship 
for the employers.
  Again, I oppose H.R. 2731, the ``Occupational Safety and Health Small 
Business Day in Court Act of 2004.'' This bill would amend the 
Occupational Safety and Health Act of 1970 to provide for the award of 
attorney's fees and costs to employers who prevail in adversary 
adjudication arising from a citation issued under OSHA. Under the guise 
of protecting businesses that have 10 or fewer employees and up to $7 
million in net worth--i.e., smaller businesses, this legislation 
irrationally slaps OSHA on the hand every time it loses in court. Let 
us not forget, OSHA is a regulatory and an enforcement agency; it is in 
the business of adjudicating citations of health and safety violations.
  By imposing such a burden on the agency responsible for keeping our 
worker safe, we will discourage it from bringing the smaller cases to 
court and from bringing the cases about which it feels comfortable but 
not certain to court for fear of having to pay the employer who 
prevails. One of the baneful effects of this legislation will be to 
chill the issuance of meritorious health and safety citations in close 
cases no matter how grave the injury or loss was to the employee, 
substantially weakening OSHA's enforcement functions.
  Finally, because businesses with no more than 100 employees comprise 
97.7 percent of all private sector businesses, a great deal of these 
entities have a higher rate of fatal occupational injury than do those 
that have 100 or more workers. Passage of H.R. 2731 will make numerous 
workers around the nation vulnerable to unsafe or potentially unsafe 
health and safety conditions.
  The U.S. Chemical Safety and Hazard Investigation Board (CSB), that 
makes recommendations to OSHA and EPA, cited several tragic accidents 
that were caused by uncontrolled reactive hazards because it is one of 
the largest petrochemical industry center. Since 1980, there have been 
more than 28 serious reactive chemical accidents in Texas. For example, 
on July 5, 1990, 17 workers

[[Page H3140]]

were killed when a 900,000-gallon chemical waste tank exploded at a 
plant east of Houston. Furthermore, three of the five costliest 
reactive accidents occurred in Texas or Louisiana with combined 
property damages in excess of $210 million.
  Dangerous conditions exist that threaten the lives of people who 
simply want to make a living. The policy that is proposed in H.R. 2731 
ignores the need to hold employers to a commitment to achieve and 
maintain a safe and healthy workplace.
  Mr. Speaker, again, I oppose this bill and urge my colleagues to 
support our workers.
  Mr. BACA. Mr. Speaker, I rise in opposition of all four of the OSHA 
bills under consideration today. Republicans are trying to say that our 
country's laws are the cause for the off-shoring of American jobs. This 
is not only untrue, but it's shameless to accuse the few protections 
that exist for our nation's workers as the cause for their jobs being 
shipped overseas.
  While the Republican Chairman of the Ways and Means Committee is busy 
writing an FSC/ETI tax cut bill that will give tax breaks to companies 
that move to China or India, his Republican colleagues try to confuse 
people on the reasons why jobs are leaving main street and being sent 
to mainland China. The face is that we are losing jobs because of the 
failed policies of this administration. The compassionate conservatism 
of this administration has cost us 3 million jobs. Please end the 
compassion!
  President Bush's top economic advisor has even proudly said that 
sending American jobs overseas is a good thing. Well, I for one will 
not let them confuse the issue. We cannot let Republicans say that the 
way to ease the competitive disadvantage to third world countries like 
China or Brazil is to adopt their labor standards. That type of 
thinking would take boys and girls out of the classroom and into the 
coal mine.
  These four anti-worker safety bills would substantially weaken worker 
health and safety laws and hurt our workers. H.R. 2728 weakens 
enforcement of workplace health and safety regulations by dragging out 
the date for imposing penalties. It also drags out the date by which 
corrective action must be taken to mitigate the health or safety 
hazard.
  H.R. 2729 weakens worker protections by expanding the membership of 
the commission and flooding it with partisan appointees that agree with 
the President's anti-worker agenda. This commission has had three 
members since it was established in 1970. There is no reason to expand 
it or to allow a minority of the commission to make decisions. Both 
these changes make no sense whatsoever.
  H.R. 2730 would undermine the OSHA enforcement functions by 
encouraging challenges to Labor Department rules and interpretations.
  H.R. 2731 would put the health and safety of thousands of workers at 
risk by encouraging lawbreakers to fight any worker safety violations 
in court. OSHA settles or wins the vast majority of its enforcement 
cases; there is no reason to assume employers need to be protected from 
an overzealous agency. The bill is one-sided. If OSHA wins, the 
employer does not have to pay OSHA's expenses. The real loser under 
this legislation is the taxpayer and American workers.
  As you can see, all four bills are anti-worker laws. The only way 
they can justify them is to trump up charges that it is these worker 
protection laws that are costing us jobs. This is false and worse yet, 
it is a lie.
  Mr. Speaker, I urge my colleagues to oppose all four of the anti-OSHA 
bills.
  Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 2731, 
Occupational Safety and Health Small Employer Access to Justice Act. 
This bill changes current law to permit the awarding of attorney's fees 
and expenses to a small employer who prevails in an administrative or 
judicial proceeding against the Occupational Safety and Health 
Administration (OSHA), regardless of whether the position of OSHA was 
``substantially justified.''
  This bill treats OSHA differently than all other federal agencies. 
The bill holds OSHA to higher standard with regard to the payment of 
the opposing party's attorney's fees than any other agency.
  Like most Federal agencies, OSHA is subject to the Equal Access to 
Justice Act (EAJA). Under EAJA, if the government's position is not 
``substantially justified,'' the government must pay the prevailing 
party's fees and costs. According to information provided to then-
Chairman Goodling in 1999, from FY 1981 through FY 1998, there were 68 
applications for fees under EAJA by employers involving OSHA 
complaints. 41 of those applications were denied and 27 were granted.
  In FY 1999, there were 12 applications filed, of which 2 had been 
denied, 3 had been granted, and 7 were still pending at the time the 
information was provided. There is no evidence that OSHA has engaged in 
reckless prosecutions or that it should be singled out for a higher 
standard than all other Federal agencies.
  The likely consequences of this change is that OSHA would be less 
likely to issue complaints against those employers, more safety and 
health violations will go uncorrected, and, consequentially, more 
workers may be injured or killed.
  This bill places employers' convenience over the safety and health of 
workers. There is no private right of action under the OSH Act--if OSHA 
fails to enforce the law, workers have no other recourse. In effect, 
H.R. 2731 places a higher priority on compensating employers for legal 
fees than on protecting the safety and health of workers.
  Mr. Speaker, today we should be talking about how to protect our 
workers not endanger them. 15 workers were fatally injured and more 
than 12,800 workers were injured or made ill each day during 2002. 
These statistics do not include deaths from occupational diseases, 
which claim the lives of an estimated 50,000 to 60,000 workers each 
year. This bill will cause the number of worker deaths to go up, not 
down.
  We should be discussing giving OSHA the proper funding to do its job. 
Between FY 1999 and FY 2003, the number of employees who work in 
workplaces inspected by federal OSHA inspections decreased by nearly 
12%. The average number of hours spent per inspection also decreased 
between FY 1999 and FY 2003, from 22 to 18.8 hours per safety 
inspection and from 40 to 34.7 hours per health inspection. Adjusting 
for inflation, the FY 2005 proposed OSHA budget represents a $6.5 
million cut over FY 2004 appropriations.
  The FY 2005 OSHA budget proposed increasing programs for voluntary 
compliance and employer assistance while cutting training and outreach 
programs for workers and freezing standard-setting and enforcement 
programs. At OSHA, the president proposes to cut worker safety training 
programs by 65 percent and to shift these funds to employer assistance 
programs. These are the problems we should be addressing today, rather 
than debating H.R. 2731. I ask my colleagues to oppose this bill.
  Mr. SAM JOHNSON of Texas. Mr. Speaker, I would like to express my 
support for the legislation introduced today by my colleague from 
Georgia.
  I think that all 4 of Mr. Norwood's bills on the floor today will 
improve workplace safety, level the playing field for small businesses, 
and ensure that employees and employers are treated fairly.
  H.R. 2731 encourages OSHA to really look at the merits of a case 
before it brings unnecessary enforcement actions to court against small 
businesses.
  Current law does allow small business owners to recover attorney's 
fees if they successfully challenge a citation
  But in the real world of OSHA, this simply does not work for small 
businesses. In the last 23 years, small business employers have been 
able to recover costs from OSHA only 37 times!
  Last year alone, only one employer was awarded attorney's fees, 
despite more than 80,000 citations issued by OSHA.
  H.R. 2731 limits its scope to small businesses with 100 employees or 
less and less than $7 million in net worth, thereby assuring targeted 
and meaningful relief to those businesses that are least able to cope 
with these hefty and ongoing litigation costs. This reform is necessary 
for the vitality of America's small businesses and the job security of 
America's workers.
  Again, I applaud my colleague from Georgia for introducing this much 
needed legislation and I look forward to seeing it pass today.
  Mr. NORWOOD. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Quinn). 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 the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the 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. NORWOOD. 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 question are postponed.

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