[Congressional Record Volume 151, Number 93 (Tuesday, July 12, 2005)]
[House]
[Pages H5677-H5686]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OCCUPATIONAL SAFETY AND HEALTH SMALL BUSINESS DAY IN COURT ACT OF 2005
Mr. BOEHNER. Madam Speaker, pursuant to House Resolution 351, I call
up the bill (H.R. 739) to amend the Occupational Safety and Health Act
of 1970 to provide for adjudicative flexibility with regard to the
filing of a notice of contest by an employer following the issuance of
a citation or proposed assessment of a penalty 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 text of H.R. 739 is as follows:
H.R. 739
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 Business Day in Court Act of 2005''.
SEC. 2. CONTESTING CITATIONS UNDER THE OCCUPATIONAL SAFETY
AND HEALTH ACT OF 1970.
Section 10 of the Occupational Safety and Health Act of
1970 (29 U.S.C. 659) is amended--
(1) in the second sentence of subsection (a), by inserting
after ``assessment of penalty'' the following: ``(unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect)''; and
(2) in the second sentence of subsection (b), by inserting
after ``assessment of penalty'' the following: ``(unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect)''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall apply to a citation
or proposed assessment of penalty issued by the Occupational
Safety and Health Administration that is issued on or after
the date of the enactment of this Act.
The SPEAKER pro tempore (Mrs. Wilson of New Mexico). Pursuant to
House Resolution 351, 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. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
on H.R. 739, the bill now under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Ohio?
There was no objection.
Mr. BOEHNER. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, today we will debate four important bills that make
modest reforms to the Occupational Safety and Health Act. These
measures ensure that small business owners who make good faith efforts
to comply with health and safety laws are dealt with fairly and
equitably by the Occupational Safety and Health Administration.
Nearly every employer recognizes that improving workplace safety is
good for business, and it is good for workers. Employers are subject to
fierce competition both at home and abroad and must compete in the face
of high taxes, skyrocketing health costs, escalating litigation, and
burdensome government regulations. 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 our country.
The U.S. economy continues to grow, and more and more employers are
continuing to hire workers each month. Last week, the Labor Department
reported that more than 3.7 million new jobs have been created since
May of 2003, marking 25 consecutive months of sustained job creation.
But we need to make sure that onerous government regulations do not
hamstring small businesses' ability to continue to hire
[[Page H5678]]
new workers and compete in our economy. That is why these bills are so
important.
Madam Speaker, since Republicans assumed leadership of Congress 10
years ago, we have undertaken considerable efforts to make bureaucracy
more responsive and more accountable to workers and taxpayers. Let me
give just a few examples:
We stopped unwarranted and invasive OSHA regulations proposed by the
Clinton administration that would have held employers liable for the
safety of their employees who work from home. We stopped one of the
most over-reaching attempts at regulation in our Nation's history by
repealing an irresponsible and unworkable ergonomics regulation that
would have cost employers billions of dollars and killed millions of
jobs. We have dealt with the problem of costly unfunded mandates by
ensuring that Congress does not pass expensive legislation and then
place it onto the backs of State and local governments.
This decade of progress on regulatory reform should give every
American confidence that Congress is making positive steps every year
to improve government accountability. And today we want to take one
more step, one more positive step to help improve workplace safety, I
think a goal we all share.
OSHA, under the Bush administration, has made significant efforts to
supplement traditional enforcement programs with cooperative
partnerships between the agency and employers. I am pleased to report
these voluntary programs have proven successful in reducing workplace
injuries and illnesses. In fact, if we look at this chart, workplace
injuries and fatalities have declined significantly during the Bush
administration. And as this chart shows, workplace injuries and
illnesses have declined significantly under the Bush administration to
their lowest point in history, to a rate of just five injuries or
illnesses per 100 workers.
Moreover, workplace fatalities have made similar declines. There has
been a 5.8 percent reduction in workplace fatalities since the Bush
administration took office, and that is significant progress.
Why has such progress been made? Because under this administration,
OSHA and employers have started to work together more cooperatively and
more proactively to solve workplace safety problems before injuries and
fatalities occur. A GAO report released last year said voluntary
partnerships between OSHA and employers ``have considerably reduced the
rates of injury and illness'' and have fostered ``better working
relationships with OSHA, improved productivity, and decreased workers'
compensation costs.''
We strongly support OSHA targeting the bad actors that defy the law
and compromise the safety of their workers, but we also need to
recognize that most employers are good actors who work hard to address
job safety concerns. No employer wants to deal with unnecessary OSHA-
related litigation and escalating attorneys' fees that would result
from that enforcement. Most employers want to comply with the law, and
the offer of assistance from OSHA is enough to provide the incentive
they need to make this investment. Employers will use these resources
because safety pays.
The reform measures we will consider today are proposals that, while
fairly modest in substance, are important to small business owners who
struggle every day to comply with the complex OSHA laws and provide a
safe working environment for their workers while facing an increasingly
competitive worldwide economy. Employers who make good faith efforts to
comply with OSHA standards deserve to be treated fairly and have their
day in court, and these commonsense bills will help ensure that they
receive that opportunity.
The first bill on tap today, the Occupational Safety and Health Small
Business Day in Court Act gives the Occupational Safety and Health
Review Commission additional flexibility to make exceptions to the
arbitrary 15-day deadline for employers to file responses to OSHA
citations when a small business misses the deadline by a mistake or for
good reason.
This bill essentially codifies administrative action taken by the
Labor Department last year and ensures appropriate disputes are
resolved based on merit rather than legal technicalities. It passed the
House with strong bipartisan support last year, and it deserves every
Member's support.
Madam Speaker, I reserve the balance of my time.
Mr. OWENS. Madam Speaker, I yield myself such time as I may consume.
(Mr. OWENS asked and was given permission to revise and extend his
remarks.)
Mr. OWENS. Madam Speaker, we are here again. We went through this
marathon a year ago. We have had several sets of hearings and markups
on these four bills, and one would think they are very important. They
are important, but in the reverse way. They are not important to
protect the health and safety of working families in America. They are
important because they are trying to trivialize the whole safety
component of the Department of Labor and the whole safety
responsibility of the government. They want to trivialize it and make
it seem insignificant and unimportant.
I understand each of the four bills amending the Occupational Safety
and Health Act now on the floor will be considered individually, and I
would therefore save my comments on the specifics of the other three
bills until the appropriate time. When you consider these four bills as
an entire package, however, it becomes very clear that they will
seriously erode the enforcement of U.S. safety standards, they will
undermine the ability of the Occupational Safety and Health
Administration to enforce on-the-job safety standards, and will only
add to more worker deaths and more serious injuries.
{time} 1415
It will not only lead to the Department of Labor becoming more and
more the department against laborers, the department against working
people; by bringing these bills to the House floor, the Republican
leadership shows yet again just how out of step it is with the American
people. In this case, the House Republican leadership is backing four
bills to weaken OSHA at the very time that the American public is
demanding the exact opposite be done.
According to a recent poll sponsored by the Wall Street Journal,
eight out of every ten Americans believe Congress should be passing
legislation to ensure greater health and safety in the workplace. Let
me repeat that: The Wall Street Journal, which is hardly a liberal
publication, they sponsored a poll in April 2005 revealing that 84
percent of those surveyed want lawmakers to pass bills ensuring safer
workplaces in America. That is 84 percent.
Parade Magazine, another mainstream publication, tells us the same
story. An article published in the April 10 issue of Parade Magazine
assessed our national priorities based on 2005 dollar allocations for
government programs. The article juxtaposed business versus safety,
pointing out that this year's funding for the Securities and Exchange
Commission is $888 million and the Small Business Administration, which
is $580 million, far exceeds that for OSHA, which is $464 million, and
the Consumer Product Safety Commission which is $63 million. The amount
dedicated to business, Parade Magazine concludes, is close to $1
billion more than that dedicated to safety in this simple comparison.
The OSHA bills being voted on today will only serve to exacerbate
this huge divide between Federal investments in business versus safety.
One of the bills, H.R. 742, will even require OSHA to spend part of its
meager budget rewarding certain employers who are repeat safety
violators. This bill would reimburse firms that are repeat safety
offenders for attorneys' fees whenever OSHA citations are downgraded on
a technicality during administrative or court proceedings.
The American people are serious about seeing tougher laws enacted to
improve safety on the job, and their concerns are well founded. In a
hearing last month, the U.S. Chemical Safety Board underscored the fact
that chemical dust explosions represent a serious industrial hazard in
this country. Since 1980, 200-plus explosions and dust fires in U.S.
plants caused the deaths of 100 workers and significant injuries to 600
others. Even though the Chemical Safety Board chair stresses that these
[[Page H5679]]
industrial explosions are clearly preventable, no comprehensive Federal
effort has yet been established to address these clearly preventable
explosions.
As recent headlines about worker deaths in Texas, New York and Ohio
have revealed, American workers are far too often killed or severely
injured as a result of safety violations by employers who have lengthy
histories of similar offenses.
In March 2005, 15 workers were killed and more than a hundred injured
in a massive British Petroleum refinery blast. A preliminary Chemical
Safety Board investigation indicates that faulty equipment was a key
factor in this terrible explosion which also destroyed buildings and
cars. Yet OSHA had already fined the same British Petroleum plant
$100,000 in September 2004 for safety violations that at that time had
killed two workers. In fact, OSHA had previously cited and issued a
fine of $63,000 in March 2004 to that British Petroleum plant for 14
safety violations.
Even though the Texas City British Petroleum Plant is clearly a
repeat safety offender, OSHA routinely reduces penalties and downgrades
violation findings as a means of encouraging correction of the problem.
I suppose that is what is alluded to by this voluntary compliance. They
are going to voluntarily comply one day, but in the meantime, many more
workers will be killed.
A newly released analysis of 2,500 inspections of New York
construction sites reveal similar patterns of serious and frequent
violations of OSHA safety standards. Nearly two-thirds of all
violations in 2003 involved faulty scaffoldings and/or the failure to
provide fall protection equipment. Scaffolding collapses and falls are
the most common cause of construction worker hospitalizations and
deaths of three or more workers. Sponsored by the New York Committee on
Safety and Health, this report recommended more vigorous OSHA
enforcement and the hiring of more OSHA inspection officers, among
other remedies. Under its current staffing, it would take OSHA 108
years to inspect all of the workplaces in the United States.
Yet this administration has proposed that we hire 41 new auditors to
audit organized labor records. If we have the money for 41 new auditors
to audit the petty cash records of labor unions, surely we ought to be
able to find the money to hire more inspectors and have those
inspectors be inspectors not on a voluntary compliance basis but on a
serious basis to save lives and injuries.
OSHA also lacks adequate safety standards to cope with globalization.
Four ironworkers killed last year by a massive crane collapse near
Toledo, Ohio, were working for a contractor with a history of repeated
safety violations.
Moreover, OSHA has yet to release a standard an advisory committee
drafted a year ago to govern inspection of cranes manufactured in
Europe, as the crane in the Ohio fatalities had been.
In closing, the American people are watching us. By an overwhelming
majority, the public wants to pass bills to strengthen OSHA, not to
weaken OSHA. They want safer workplaces in America. The bills before us
now do just the opposite. I urge my colleagues to join me in voting
``no'' on these bills.
Madam Speaker, I include for the Record letters from the AFL-CIO, the
Teamsters, the UAW, AFSCME, as well the United Steelworkers in
opposition to these bills.
American Federation of Labor and Congress of Industrial
Organizations,
Washington, DC, July 11, 2005.
Dear Representative: I am writing to express the strong
opposition of the AFL-CIO to H.R. 739, H.R. 740, H.R. 741 and
H.R. 742, 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 July 11,
2005, 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 OSHAct. We are particularly concerned about
H.R. 742 and H.R. 741, because these two bills would
significantly undermine OSHA's ability to carry out its core
mission.
H.R. 742. Occupational Safety and Health Small Employer
Access to Justice Act--This bill requires taxpayers to pay
the legal costs of small employers who prevail in any
administrative or enforcement case brought by OSHA regardless
of whether the action was substantially justified.
The language expands provisions of the current Equal Access
to Justice Act, which already permits small businesses to
recover litigation costs where the government position was
not substantially justified. H.R. 742 will have a chilling
effect on both OSHA enforcement and OSHA standard setting.
OSHA will be hesitant to cite employers for violations of the
OSHAct unless there is absolute certainty that the
enforcement action will not be challenged, will be upheld or
there will be no modification in the terms of action.
Similarly, unless OSHA is certain that a standard will not be
challenged (which they are routinely for any number of
reasons), it would not dare begin the rulemaking process on
any hazard no matter how grave the threat of the hazard to
workers. 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. 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. This bill
would further weaken OSHA enforcement efforts and standard
setting to the detriment of American workers.
Across all industries, establishments with fewer than 100
employees (which in 2000 made up 97.7 percent of all private
sector establishments) have a higher rate of fatal
occupational injury than do establishments with 100 or more
workers. Effectively hampering OSHA's enforcement ability in
these establishments would be devastating to workers,
resulting in even higher rates of worker fatalities, injury
and illness.
The number of OSHA enforcement actions that involve
contested adjudications is fairly small, the penalties are
generally modest, and the substantive and procedural
standards already accommodate the interests of small-business
litigants. To be clear, there is no evidence that this
legislation is necessary. The result of H.R. 742 will be a
skewed set of enforcement priorities and a risk of injury,
illness and even death to workers.
H.R. 741. Occupational Safety and Health Independent Review
of OSHA Citations Act--This bill would change the Act to give
deference to the Commission regarding the interpretation of
OSHA standards. The bill seeks to overturn a 1991 decision by
the Supreme Court that found that deference should be given
to the Secretary of Labor as the official responsible for
enforcing the OSHAct.
The Secretary of Labor has much greater experience and
expertise regarding the interpretation of safety and health
standards and regulations than the Commission. The Secretary
develops the rules and is responsible for their broad
application. In contrast, the Commission only reviews the
application of standards in those few cases that are
contested and come before the Commission. Giving deference to
the Commission would create an incentive for challenges to
the Secretary's rules and interpretations, undermining the
Secretary's policymaking and enforcement functions.
H.R. 740. Occupational Safety and Health Review Commission
Efficiency Act--The bill requires that the number of members
on the Commission be increased from three to five and that
all members must be attorneys. It also seeks to allow members
whose terms have expired to continue serving on the
Commission for an additional 365 days in cases where no
successor has been confirmed by the Senate.
The Review Commission has operated with three Commissioners
since it was first formed in 1970. Increasing the size of the
Commission from three to five members is not necessary and
would enable the Bush Administration to stack the review
commission with business-friendly appointees. The requirement
that the Commissioners be lawyers would exclude a large pool
of talented persons from service. Allowing members whose
terms have expired to continue serving on the Commission for
an additional 365 days unless a new appointee is confirmed by
the Senate may mean a sitting member could have a de facto
seven year term, dending on the political makeup of the
Senate and White House. The current requirement that a member
step down at the expiration of his or her term is appropriate
and maintains pressure on all parties to work together to
select a qualified person for the Commission. Under this
legislation, rather than having two members for a working
quorum, three will be needed. However due to the way the
language is crafted a minority of the Commission and fewer
than a quorum could take action. This makes no sense and
opens the door to abuses of power. Moreover, there is not
enough enforcement activity at OSHA to warrant five
commissioners.
H.R. 739. Occupational Safety and Health Small Business Day
in Court Act--This bill seeks to excuse employers who miss
the fifteen-day timeframe to contest citations and failure to
abate notices. Its practical effect would be to make numerous
excuses into legal reasons for missing the fifteen-day
timeframe in 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
[[Page H5680]]
hazards cited will be addressed in as timely a manner as
is possible. The Commission should be able to review any
missed deadlines on a case-by-case basis, as is currently
the practice. The one case being held up to demonstrate an
insurmountable obstacle for employers is just that--one
case. No legitimate reason has been presented as to the
need for this bill.
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 Brotherhood of
Teamsters, AFL-CIO,
Washington, DC, July 11, 2005.
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. 739,
H.R. 740, H.R. 741, and H.R. 742. These bills, which the
House of Representatives will consider this week, 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.
The Teamsters Union opposes H.R. 742, 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 governments position was
substantially justified. We view this as another effort to
impede OSHA's and the Departments 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 fulfillng its responsibility with
respect to a meritorious complaint because it cannot
guarantee the outcome. In effect, H.R. 742 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. 742 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. 742 is tantamount to a stealth repeal of
OSHA's statutory authority to issue workplace safety and
health standards.
H.R. 739, the Occupational Safety and Health Small Business
Day in Court Act, seeks to excuse employers who miss the
current fifteen-day time frame to contest citations and
failure to abate notices. We believe this proposal does
nothing more than create ``artificial'' legal reason 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 addressed 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. 740, 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. And, 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. 741, 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 Appeals and the Supreme Court,
an important avenue of redress to protect workers from
dangerous and unhealthy workplaces.
Each of these bills will undermine, subtly in some
instances and egregiously in the case of H.R. 742, workplace
protections and the protection that the OSH Act was designed
to provide workers. The Teamsters Union urges you to reject
each of these bills.
Sincerely,
Michael E. Mathis,
Director, Government Affairs Department.
____
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America--UAW,
Washington, DC, July 11, 2005.
Dear Representative: This week the House is scheduled to
take up four bills to amend the Occupational Safety and
Health Act of 1070--H.R. 739, H.R 741 and H.R. 742. The UAW
opposes each of these anti-worker bills and urges you to vote
against them.
H.R. 742, the ``Occupational Safety and Health Small
Employer Access to Justice Act,'' would require taxpayers to
pay the legal costs of employers with 100 or fewer employees
and worth up to 7 million who win administrative or
enforcement cases brought by OSHA or any challenge to an OSHA
standard, regardless of whether OSHA's actions were
substantially justified.'' The UAW is deeply concerned that
this legislation would have a tremendous chilling effort on
the ability of OSHA to enforce workplace health and safety
protections. In addition, this bill would reverse the time-
honored rule of American jurisprudence that requires
litigants to bear their own cost and fees. There is no need
for such legislation because the Equal Access to Justice Act
already 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.''
The other three bills, H.R. 739, H.R. 740 and H.R. 741, all
relate to the Occupational Safety and Health Review
Commission (Commission or OSHRC). In considering these bills,
the UAW urges the House 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. 739, 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
employees--not just small employers--must contest an OSHA
citation or assessment before it becomes a final order of the
Commission. This bill would excuse employers from the
fifteen-day deadline for contesting OSHA citations and lead
to more litigation.
The purpose of the fifteen-day requirement is to give all
parties a reasonable amount of time to take action and to
move cases along as quickly as possible so that hazards can
be abated in a timely manner. The bill excuses employers from
missing their fifteen-day deadline but does not extend the
same provisions to an employee who challenges the period for
abatement in a citation. This provision is one-sided and
unfair to employees. 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.
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 re-
litigation if H.R. 739 were enacted.
H.R. 740, 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 already lost millions of industrial
jobs. 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. The UAW also objects to the
legal training requirement because it would work against
persons with workplace health and safety expertise.
[[Page H5681]]
Furthermore, 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. 741, 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'
rights by substituting its interpretation for the
Secretary's. In other words, H.R. 741 would give
unprecedented and unwarranted authority to the OSHRC to take
away workers' workplace health and safety protections.
For all of the reasons set forth above, the UAW strongly
opposes H.R. 739, H.R. 740, H.R. 741 and H.R. 742. We urge
you to vote against these anti-worker bills that would
undermine workplace health and safety.
Sincerely,
Alan Reuther,
Legislative Director.
____
American Federation of State, County and Municipal
Employees, AFL-CIO,
Washington, DC, July 11, 2005.
Dear Representative: On behalf of the 1.4 million members
of the American Federation of State, County and Municipal
Employees (AFSCME), I am writing to urge you to reject H.R.
739, H.R 740, H.R 741 and H.R. 742. These bills would weaken
important worker safety and health protections that are
guaranteed under the Occupational Safety and Health Act
(OSHAct).
Collectively, these bills would erode important OSHA
policies that have served to protect the health and safety of
workers all across this country. H.R. 739 would allow
employers to avoid current law's fifteen-day deadline to
contest OSHA citations. Such a change would result in a delay
in correcting dangerous work place hazards in a timely
manner. H.R. 740 is simply an unnecessary move to stack the
Occupational Safety and Health Review Commission with new
members while requiring that they have legal training. H.R.
741 would remove policymaking and the interpretation of
OSHA's policies from the Secretary of Labor and give that
responsibility to the OSHA Review Commission. Such a move
would be an extreme departure from the original intent of the
OSHAct and make it difficult for the Secretary of Labor to
enforce and implement the Act. Finally, H.R. 742 would
require OSHA to pay attorneys' fees for small employers when
they prevail in administrative or enforcement proceedings,
placing yet another financial burden on an already
underfunded agency.
We urge you to reject all four of the measures. These bills
will erode a law that has served American workers well.
Sincerely,
Charles M. Loveless,
Director of Legislation.
____
United Steelworkers,
July 11, 2005.
U.S. House of Representatives,
Washington, DC.
Dear Representative: The United Steelworkers (USW), a union
which represents industrial workers in virtually every sector
of the economy, strongly opposes the four bills amending the
Occupational Safety and Health Act (OSHA) which the House is
scheduled to take up tomorrow. HR 741, HR 740 and HR 739 all
relate to the Occupational Safety and Health Review
Commission (OSHRC) while HR 742 adds new rules under which
small employers can receive compensation for attorney's fees.
Proponents of these bills paint them as simply eliminating
bureaucratic ``red tape'' with a ``common-sense fix,'' but
workers' safety and the protections established under the
1970 OSH Act and the rights of claimants to a timely response
to OSHA citations cannot be equated to red tape.
Perhaps most onerous is HR 742, the ``Occupational Safety
and Health Small Employer Access to Justice Act,'' which
requires taxpayers to cover the legal costs of small
employers who prevail--or partially prevail--in any
administrative or enforcement case by OSHA, or in any
challenge to an OSHA standard, regardless of whether the
action was ``substantially justified''. In other words, this
bill will go beyond the protection already provided to
litigating parties in the Equal Access to Justice Act which
currently protects a party in cases where the government is
not ``substantially justified'' in bringing about a law
enforcement action.
HR 742 will effectively act as a deterrent to OSHA
enforcement and standard setting. Statistics show that small
employers (those with fewer than 100 employees) have a higher
rate of fatal occupational injuries than those with more than
100 workers. Since small employers account for over 97% of
all private sector employers, USW vigorously opposes any bill
that could further weaken OSHA enforcement efforts and
standard setting for this proportionally large group of
private sector small employers.
HR 741 the ``Occupational Safety and Health Independent
Review of OSHA Citations Act'' overturns a 1991 Supreme Court
decision and undercuts the Secretary of Labor's authority to
interpret and enforce the law. HR 741 would order judges in
cases appealed to the courts to give deference to the OSHRC,
giving the Commission unprecedented authority to interpret
OSHA standards. The USW strongly urges you to vote against
HR 741 and keep policymaking and the interpretation of
OSHA policy with the Secretary of Labor.
HR 740 the ``Occupational Safety and Health Review
Commission Efficiency Act'' proposes to expand the number of
commissioners from three to five, require commissioners to
have a legal training and allow commissioners to hold their
position after their six year term expires until their
successor has been appointed by the President and confirmed
by the Senate. Since 1970 the OSHRC has been composed of
three members and there is no need to expand the Commission
while excluding from the Commission persons with workplace
health and safety expertise, but no law degree. The USW also
urges you to vote against this bill.
Finally, HR 739 or the ``Occupational Safety and Health
Small Business Day in Court Act'' would excuse all
employers--not just small employers--that miss the fifteen-
day deadline for contesting OSHA citations. In other words,
this bill will effectively eliminate the 15-day deadline,
further delaying the timeframe for moving a case through the
process and further delaying actions to correct the possible
hazard. The USW opposes this bill as redundant, since
employers already have recourse for missed deadlines in the
federal courts under Rule 60(b) of the Federal Rules of Civil
Procedure if the failure to contest meets certain
requirements.
Sincerely,
William J. Klinefelter,
Assistant to the President, Legislative and
Political Director.
Mr. OWENS. Madam Speaker, I reserve the balance of my time.
Mr. BOEHNER. Madam Speaker, I yield such time as he may consume to
the gentleman from Georgia (Mr. Norwood), the chairman of the
Subcommittee on Workforce Protections.
(Mr. NORWOOD asked and was given permission to revise and extend his
remarks.)
Mr. NORWOOD. Madam Speaker, I thank the gentleman for yielding me
this time.
Madam Speaker, I cannot help but think that all has been said that
needs to be said about all four of these bills during the rules debate;
the problem is just not everybody has said it.
If we can perhaps confine our thinking and remarks to the bills
before us, we could probably get through this pretty nicely. And those
who want to talk about things that are not germane to these bills have
a great opportunity to do so during special orders. Maybe for once we
could simply talk about the four bills that we have.
We are starting out with H.R. 739, the Occupational Safety and Health
Small Business Day in Court Act of 2005. At the outset, I would like to
stress that this legislation in no way diminishes the worker safety
protections of the Occupational Safety and Health Act. I believe that.
I think most members of our committee believe that. It is not our
intention and I do not believe it will be the outcome of any of these
bills that we consider today, most especially the one we are discussing
now, H.R. 739.
The Occupational Safety and Health Small Business Day in Court Act
amends the OSH Act to resolve a conflict between section 10 of the act
and the Federal rule of civil procedure 60(b). The bill is designed to
make sure that an employer who fails to respond to an OSHA citation in
a timely fashion is allowed to do so and have his or her day in court,
and how reasonable of us to allow that, if the reason for missing the
deadline was excusable neglect, a mistake or inadvertence. That is what
rule 60(b) allows, and that is frankly all this bill does.
Until recently, if an employer filed a late notice of contest to an
OSHA citation, OSHA had limited flexibility in accepting the notice
because of a conflict in the law that was written 34 years ago. OSHA
would not accept late notices of contest even if the employer could
prove an excusable neglect. The Occupational Safety and Health Review
Commission, however, would allow a late notice of contest to be filed
under rule 60(b). This makes no sense.
On December 13, 2004, the Solicitor of Labor issued a memorandum to
regional solicitors announcing a change in the Department's legal
interpretation. This change will allow the Department's attorneys to
excuse late notices of citation if it can be determined
[[Page H5682]]
that the lateness was due to an inadvertence or excusable neglect. The
solicitor cites case law, OSHRC's longtime interpretation, and rule
60(b) as the reasons for this change. This is the right policy in my
view, and I include for the Record the aforementioned memorandum.
Department of Labor,
Washington, DC, December 13, 2004.
MEMORANDUM
To: Regional Solicitors, Joseph M. Woodward, Associate
Solicitor for Occupational Safety and Health.
From: Howard M. Radzely, Solicitor of Labor.
Subject: Late Notices of Contest to OSHA Citations.
This memorandum announces a change in the Department's
legal interpretation of Section 10(a) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. Sec. 659(a). The
Department previously interpreted that provision to preclude
the Occupational Safety and Health Review Commission from
considering an employer's contest of an OSHA citation that is
filed after expiration of the statutory fifteen working-day
contest period, except in the unusual situation in which the
limitations period has been equitably tolled. The
Commission's position has long been that it can consider late
contests if the employer establishes that its failure to meet
the deadline was due to ``excusable neglect'' as that phrase
is used in Fed. R. Civ. P. 60(b), which provides criteria for
granting relief from final judgments or orders.
Despite our best efforts, our legal argument has met with
only limited success. Although the Second Circuit agreed with
our view in Chao v. Russell P. LeFrois Builder, Inc., 291
F.3d 219 (2d Cir. 2002), the Commission has repeatedly
rejected it, and this past June the Third Circuit ruled
against us in two cases. George Harms Constr. Co. v. Chao,
371 F.3d 156, 160-65 (3d Cir. 2004); Avon Contractors, 372
F.3d 171, 174-75 (3d Cir. 2004).
After studying the statute and relevant case law, the
Department has concluded that late filed notices of contest
may be considered under the conditions specified in Rule
60(b). This change is not only consistent with the
Commission's interpretation, but it is also consistent with
MSHA's and the Federal Mine Safety and Health Review
Commission's interpretation of identical language in the Mine
Act. 30 U.S.C. Sec. 815(a). Moreover, the previous
interpretation had a disproportionate impact on small
businesses in that these entities are more likely than larger
companies to file untimely notices of contest. Our new
position avoids further needless and often futile litigation
on an issue that is collateral to OSHA's primary safety and
health mission.
Accordingly, I am directing that all Regions implement this
new interpretation by no longer making the argument that the
Commission lacks authority to consider late notices of
contest under Rule 60(b). However, the Regions should
continue to argue aggressively, as they have previously and
usually successfully done in the alternative, that Rule 60(b)
relief can only be granted to employers that establish all
elements of the excusable neglect standard. In this way, we
can focus our limited resources on protecting worker safety
and health rather than on litigating a collateral procedural
issue. Specific implementation guidance follows. If there are
additional questions, please contact Daniel Mick, Counsel for
Regional Trial Litigation, in the OSH Division.
Guidance
1. No attorney in the Office of the Solicitor shall argue
on behalf of the Secretary that the Commission lacks the
authority to apply Rule 60(b)'s excusable neglect standard to
consider late notices of contest. Instead, SOL shall
implement OSHA's current view that the Commission has such
authority. Attorneys handling OSHA cases arising in New York,
Connecticut, or Vermont, or when otherwise appropriate, shall
note that the Second Circuit Court of Appeals has held to the
contrary, but point out that the Le Frois decision made clear
that the Secretary's reasonable interpretations of the OSH
Act are entitled to judicial deference, and was rendered
before OSHA adopted its current view.
2. Where appropriate, SOL attorneys shall protect the
Department's interests by opposing late notices of contests
on the grounds that the employer has not established
``excusable neglect'' for the late filing. Consistent with
existing law, SOL attorneys shall argue that, in addition to
the employer establishing that the neglect was excusable,
relief cannot be granted unless the employer also asserts a
meritorious defense to the citation. See Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992)
(citing cases). In addition, because Rule 60(b) relief is
only available ``upon such terms as are just,'' in
appropriate cases, such as where the employer contests only
the penalty or the characterization of the violation, or its
knowledge of a violative condition, SOL may ask that the
employer be required to establish that employees are no
longer exposed to the cited hazard as a condition of going
forward with a hearing on the merits.
Madam Speaker, all H.R. 739 would do is simply codify the solicitors'
new directive, permanently cementing this change in the OSH Act and
ending the conflict between the OSH Act and rule 60(b).
Last year, the House approved this measure with bipartisan support of
251-177, and I again urge my colleagues to vote ``yes'' on this
measure.
I know many of my Democrat friends think that the labor bosses are
against this, and they are right. The labor bosses are against
something this simple, which is simply an indication to me they may not
like small businesses. They may not want anything to occur that helps
small businesses.
The gentleman from New York (Mr. Owens) says this bill is not
important. I tell Members what, if you are a mom and pop in this
country running a small business with three or four employees, I
promise this is important to them. The 12 percent of the labor union
members in this country, I guarantee it is important to many of them
because many of them are also in small businesses. Many of them who
have spouses are in small businesses. This is just a decent thing to
do, allow a little flexibility. Why beat up on small businesses? If you
have a small business in your district, you certainly should vote
``yes'' for this one bill.
Mr. OWENS. Madam Speaker, I yield such time as she may consume to the
gentlewoman from California (Ms. Woolsey).
Ms. WOOLSEY. Madam Speaker, I rise in opposition to H.R. 739 because
it appears to be just another way for this administration to distract
from the real priorities of our Nation's workers: fair wages, open
labor negotiations, secure pensions, U.S. jobs over the outsourcing of
our jobs and, of course, a safe working environment that protects
workers from harm and allows their families peace of mind. Yet with
this legislation, we put the company's bottom line above the safety of
American workers.
With the narrowing definition of willful violations, we make it
easier for employers to avoid responsibility after disregarding a
safety standard requirement. This bill would allow a company to receive
a filing extension no matter why the paperwork was lost, whether they
lost track of it in the first place or if they even put it aside
because of their very own negligence.
{time} 1430
Why should any worker be forced to suffer in unhealthy or unsafe
working conditions or, worse, lose their life or be maimed for their
life because of inefficiencies within a company's system? That is why I
support real workforce reform that strengthens worker protections and
insists that employers face real consequences when their poor safety
standards cause a wrongful death, no excuses, no added waivers, no way
to help an employer miss their deadlines and then get away with it.
You cannot put a price tag on life, Madam Speaker, and you cannot put
a price tag on serious injury. We can all agree that every worker's
life is more precious than a profit. That is why I encourage my
colleagues to join me and join the gentleman from New York (Mr. Owens)
in opposing H.R. 739.
Mr. BOEHNER. Madam Speaker, I am pleased to yield 3 minutes to the
gentleman from Georgia (Mr. Westmoreland).
Mr. WESTMORELAND. Madam Speaker, I want to thank the gentleman from
Ohio (Mr. Boehner) for his leadership in the Committee on Education and
the Workforce and the fact that he has been able to pass reasonable
legislation that not only helps the employee but the employer and gives
us a better business atmosphere in this country. I would also like to
thank my friend and fellow Georgian (Mr. Norwood) for his leadership in
fine-tuning our occupational safety and health laws. The gentleman from
Georgia has waged a years-long effort to improve the relationship
between small businesses and the Federal Government's regulatory
agencies, and for that I thank him.
Madam Speaker, I am a small businessman. I started my own
construction business 25 years ago, and that is how I supported my
family until my recent election this year to Congress. OSHA regulations
are not just an interesting debate topic for Washington dinner parties.
For me and the millions of other small business owners, they are tough
rules with real consequences. No one wants to regress to the days when
workers had few rights and worked in ridiculously dangerous situations
with little or no regard for their safety.
[[Page H5683]]
In the end, good precautions are good for workers, good for
businesses, and good for the economy as a whole. We are not keeping
OSHA from enforcing Federal safety regulations with this legislation.
We are just ensuring that regulators are fair and reasonable when
enforcing regulations.
In the construction business, I worked closely with subcontractors
who were small business owners themselves. One of them, a good friend
of mine, ran into trouble with OSHA over this very rule that we are
debating today in the Small Business Day in Court Act. He and an
employee were digging a hole for a septic tank. They made a mistake
during the process, and it was a mistake with horrible consequences.
The walls of the hole caved in, killing the employee. While my friend
was recuperating from and dealing with all the painful consequences
that come with the death of an employee when you are a three-or four-
man business, OSHA gave him a summons. I think everyone would agree
that during those 15 days after the accident, responding to an OSHA
summons should not and could not be at the top of his priority list. He
missed the deadline; and, of course, under OSHA rules he was not given
another chance to defend himself.
This legislation will help small business owners such as this, who
run small shops but who employ the vast majority of American workers.
They cannot employ full-time OSHA compliance officers and most owners
are not going to be experts on the fine print of Federal regulations.
When it comes to our Nation's job producers, we should not be tying
their hands. We should be giving them a hand up.
I urge my colleagues to support this legislation, H.R. 739.
Mr. OWENS. Madam Speaker, I yield myself such time as I may consume.
H.R. 739 specifically creates a legal loophole for bypassing the
obligation on an employer's part to meet a 15-day deadline for
contesting OSHA citations. As such, the bill promotes increased
litigation. Given that the OSHA commission already has the authority to
review any missed deadlines on a case-by-case basis, such litigation is
completely unnecessary. That bears repeating. At present, the OSHA
commission relies on its longstanding practice of reviewing, on a case-
by-case basis, any missed deadlines. So what is the rationale for this
bill?
H.R. 739 is not only superfluous and offers nothing productive that
is positive and new; it also negatively serves to delay the timely
correction of workplace safety violations and hazards. The 15-business-
day timeline for an employer's response was set to encourage speedy
removal of work site hazards as well as the expeditious handling of
cases. It establishes a reasonable time frame for protecting all the
parties. It protects the employers as well as the workers. By contrast,
H.R. 739 will needlessly place some workers at greater risk of on-the-
job injuries or fatalities.
Let me give you a few concrete examples to illustrate the risk. In
March 2003, OSHA began an inspection of Strack, Incorporated, a
pipeline company in Atlanta, Georgia. OSHA inspectors had seen Strack
employees working in a trench that was up to 12 feet deep. Yet a trench
box, designed to protect workers, had been left on higher ground and
more than 100 feet away from the site. In May 2003, OSHA issued Strack,
Inc. a willful citation with a proposed fine of $44,000 for failure to
use a trench box. Fortunately in this case, the hazards were corrected
before anyone was killed. As an OSHA inspector put it, cave-ins occur
quickly and without warning; and then it is too late to protect
workers.
When it comes to trenching, failure to correct hazards in the 15-day
required period can have fatal consequences. As Jeffrey Walters of
Cincinnati, Ohio, testified before me last year, his only son Patrick
died in a cave-in on June 14, 2002, only weeks after OSHA cited the
firm Patrick worked for, which is Moeves Plumbing, for willful
trenching violations. In fact, Moeves Plumbing had been inspected by
OSHA 13 times before Patrick's death. Moreover, another worker had died
while digging trenches for the same plumbing company several years
before Patrick died in the same way.
All of this is to say that speedy correction of work site hazards
cited by OSHA can often mean the difference between life and death.
Thus, when OSHA finds a safety violation, it clearly merits immediate
attention. I urge my colleagues to vote ``no'' on this bill again.
Madam Speaker, I yield 2 minutes to the gentleman from New Jersey
(Mr. Andrews).
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. Madam Speaker, I rise in opposition to this bill. What
sounds like a very small change in the rules could have very large and
unwelcome consequences. The way the law works now, if an OSHA inspector
noticed the trench that the gentleman from New York just made reference
to and gave that employer a notice that the trench needed to be
properly put together so it would not cave in, under present law the
employer has more than 2 weeks, 15 days, to decide whether to contest
that citation. And if the employer fails to contest the citation, the
law presumes that the violation ought to stand and there is corrective
action taken to try to protect the worker.
Now, sometimes employers do have surprises or accidents or situations
beyond their control and they mean to object to the citation, but they
fail to do so. They fail to file the paper on time, or they have some
other surprise or circumstance. The law, as the gentleman from New York
said, already provides for that circumstance. On a case-by-case basis,
OSHA is able to say there are special circumstances which justify
missing the 15-day deadline. In the law, he or she who has the burden
of proof loses.
What this bill does is to shift the burden of proof to OSHA to prove
that the 15-day deadline was somehow unreasonable, instead of properly
vesting the burden on the employer to show that there was an accident
or a surprise that made them fail to hit the 15-day deadline. There is
a reason that this deadline is so short. It is because the
circumstances that give rise to the violations put people's lives and
health at risk. We should not shift this burden. We should not approve
this bill. I would urge a ``no'' vote.
Mr. BOEHNER. Madam Speaker, I am pleased to yield 4 minutes to the
gentlewoman from North Carolina (Ms. Foxx).
Ms. FOXX. Madam Speaker, I am proud to support and cosponsor all four
of these important pieces of legislation on OSHA reform. Each is an
integral step to come to the aid of our small businesses. Not only are
our small businesses increasingly faced with greater competition from
the bigger competitors in the U.S. but also are they faced with greater
competition from across the globe. The last thing they need are
unnecessary and burdensome regulations from their own government.
According to a study discussed in the Office of Management and
Budget's ``Draft Report to Congress on the Costs and Benefits of
Federal Regulations for 2005,'' it is estimated that the, quote, total
cost of Federal regulation, environmental, workplace, economic and tax
compliance regulation, was 60 percent greater per employee for firms
with under 20 employees compared to firms with over 500 employees.
In another recent study, these costs translate to approximately
$7,000 in regulatory costs per employee per year. We need to aid our
small businesses in being more competitive, not help force them out of
business. Certainly the goals of the Occupational Safety and Health
Agency to ensure workplace safety and health are laudable and
protecting our workers is and must remain paramount. But oftentimes
good intentions do not result in the best practices. Our small
businesses and our workers deserve better.
H.R. 739, the first of four bills that we are considering today,
promotes fairness for small businesses while improving competition and
worker safety. It allows the Occupational Safety and Health Review
Commission more flexibility to make exceptions to the 15-day deadline
when employers must file appeals to OSHA citations. Many of our small
businesses unintentionally and innocently miss this arbitrary deadline
and can be denied their day in court as a result. While many of our
small businesses are struggling to provide their employees with the
safest work environments and access to the best health
[[Page H5684]]
care and other benefits, they must comply with inflexible regulations
such as these. Many small businesses that have unintentionally missed
this deadline are simply not able to navigate the complex regulations
in order to appeal the OSHA citation.
In January of this year, even the Department of Labor agreed that
this deadline is too burdensome and decided it would allow the
Occupational Safety and Health Review Commission to have discretion
over the 15-day deadline for filing appeals. This was welcome news for
small businesses. Now, all we need to do is codify this provision. We
are certainly not advocating that every small business be given a pass
on this deadline to respond to a citation, but let us be reasonable
here and give them the benefit of the doubt by instilling just a little
bit more flexibility into these regulations.
Let me also mention these three other bills, H.R. 740, H.R. 741 and
H.R. 742, that we are debating this afternoon. Expanding the review
board for appeals cases to OSHA from three to five commissioners would
speed up the appeals process so small businesses will have their cases
reviewed in a timely manner.
H.R. 741 will restore the original practice and congressional intent
to ensure that the Occupational Safety and Health Review Commission, or
the court, will be the party to interpret OSHA regulations, not OSHA
itself. And finally, H.R. 742 will allow small businesses to recover
the costly attorney fees incurred if they successfully challenge an
OSHA citation. Each of these will help alleviate overbearing
regulations that thwart the creativity and entrepreneurial spirit of
small businesses.
In past years, each of these four bills has passed the House by good
margins. Let us send these provisions once again to the other side of
the Capitol and encourage them to act this year to help our small
businesses. Jobs are at stake and a vital economy lies in the balance.
We must keep our small businesses vital, healthy, and competitive.
Mr. OWENS. Madam Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Bishop).
Mr. BISHOP of New York. Madam Speaker, I rise to oppose this bill
which would give a pass to employers who do not meet workplace safety
conditions. We could have taken this opportunity to help hardworking
Americans feel a little safer in the workplace, or we could have made
today's priority giving some relief to middle-class families who are
struggling to keep up with record-breaking gas prices, tuition
increases, and health care costs.
Instead, this administration has once again chosen in favor of the
corporate sector and the special interests. Their reward in this bill
comes at the expense of hardworking employees who depend on OSHA to
keep an eye on their working conditions. But when former executives win
appointments to regulate the same industries in which they used to
work, sound science and smart public policy usually tack a back seat to
political favoritism and ideology. This bill creates a new loophole
around the 15-day deadline for contesting OSHA citations. It is yet one
more corporate handout that could have been better spent on job
training, reversing the tide of outsourcing, or raising the minimum
wage.
{time} 1445
Meanwhile, hard-working Americans are increasingly faced with
workplace conditions in which critically important safeguards are
watered down, emerging problems are ignored, and enforcement is scaled
back.
If OSHA already has the authority to review missed deadlines on a
case-by-case basis, why would we need a bill that changes this process
in a one-sided way that could further disadvantage workers, encourage
litigation, and undermine health and safety protections?
Madam Speaker, I believe the Senate got it right last year when it
declined to consider this or any of the other three proposed rollbacks
of OSHA's responsibility to hard-working Americans.
I encourage my colleagues to vote against all four of these bills.
Mr. BOEHNER. Madam Speaker, I yield 4 minutes to the gentleman from
Georgia (Mr. Price), a member of our committee.
Mr. PRICE of Georgia. Madam Speaker, I appreciate the opportunity to
talk on this bill. I want to commend the chairman for his work in this
area and commend the gentleman from Georgia (Mr. Norwood), who has
labored long and hard on these issues.
Let me make a few points initially before I talk about the merits of
the bill. I think it is important for people to appreciate that no one,
no one, is interested in trivializing the issue of safety in the
workplace. We are interested in improving workplace safety and in
holding businesses accountable when they are at fault, not just
because. No one is interested in trivializing this issue.
No one is putting a price tag on life. That has been mentioned. No
one is putting a price tag on life here, and no one is interested in
giving employers a pass.
They also talked about a legal loophole. This is not a legal
loophole. What this does is simply put faith in small business, and it
shifts the burden of proof to the accuser, where it should be. There
was some analogy drawn to a court of law. What this does is shift the
burden of proof to the accuser, that is, OSHA, where it should be.
The bill will not weaken OSHA either. It will simply allow small
business a fair opportunity for a fair hearing when it is cited, and
that is it.
I rise in support of H.R. 739. The magnitude of this bill is huge:
99.7 percent of all businesses are small businesses, 99.7 percent.
Seventy-five percent of all new jobs come from small business, three
out of every four jobs.
In talking about this before and in researching this, I went back and
looked at the original OSHA Act. The original OSHA Act in 1970 said
that it was to assure safe and healthful working conditions for working
men and women by authorizing enforcement of the standards developed
under the act. The mission today as described by OSHA on their Web site
is to ensure the safety and health of America's workers by setting and
enforcing standards. Do the Members notice the difference? We have
shifted who is setting the standards from Congress to a nonelected
body. I think this is a lot of power. A lot of power.
The OSHA budget is $468 million, 1,100 inspectors out of 2,200
employees. A lot of power.
As has been mentioned, currently if a citation is given, the employer
is given 15 days to respond. This is an arbitrary time frame. Nobody
can argue that. There really is no rationale for those 15 days. Why not
5? Why not 35? Why not make it fair to small business? This is a simple
commonsense amendment. Eleven words is all the amendment is, 11 words.
It would add that ``unless such failure results from mistake,
inadvertence, surprise, or excusable neglect,'' 11 little words. A
commonsense amendment, which I am sorry to say is oftentimes all too
uncommon around here. It does not mean that any citation is null and
void. It does not mean that at all. It simply means that small business
has an opportunity to get its fair day in court.
So in closing, Madam Speaker, I want to commend once again the
gentleman from Georgia (Mr. Norwood) for the hard work he has done and
the gentleman from Ohio (Chairman Boehner) for bringing this issue to
the floor.
I urge all of my colleagues to support H.R. 739 and do it for small
business and for the employees and jobs in our Nation.
Mr. OWENS. Madam Speaker, I yield 4 minutes to the gentleman from New
Jersey (Mr. Holt).
(Mr. HOLT asked and was given permission to revise and extend his
remarks.)
Mr. HOLT. Madam Speaker, I rise in opposition to H.R. 739. It is part
of a package of bills that we have before us today that serve no
purpose that I can see but to gut the occupational health legislation
record before this Congress.
Current law requires that employers challenge a citation or notice of
a failure to abate a hazard within a 15-day time period. There is a
reason that this is a short time period. It is because these are
serious matters. The short deadline was enacted to encourage
expeditious handling of cases and to ensure that the workplace hazards
are corrected in a timely manner. The commission already has the
ability to review specific cases of missed deadlines in a manner that
protects the
[[Page H5685]]
rights of employers. In fact, my colleagues defending this legislation
said what about unintentional missed deadlines or deadlines that are
missed innocently. The commission can deal with that. What we are
concerned about are the ones that are missed disingenuously: oh, I
forgot; oh, I did not quite get around to taking care of that.
It is clear that H.R. 739 is designed to ease the burden on employers
at the expense of the health and safety of workers. This is the
dramatic change in policy. My colleague from Georgia said the dramatic
change in policy is somehow OSHA has gained regulatory authority. No.
OSHA has always had regulatory authority for the last 35 years. The
real change is this dramatic change in policy that would delay the
employers' responsiveness to the health hazards and increase the time
that workers have to work in unsafe conditions.
These measures would make it more difficult for employees to seek
redress and would impede the enforcement of worksite safety and health
provisions.
Again, this is one of a set of bills that would serve to gut OSHA. It
puts aside, really, the seriousness of the matter here. We do not want
OSHA to become just an annoyance or a minor delay or an inconvenience
or just the cost of doing business. No. OSHA should have teeth.
There are hundreds of thousands, if not millions, of Americans, I do
not know who they are, they do not know who they are, who today have
their arms, their eyes, their health, even their lives because of OSHA;
and they do not know who they are. But they can thank people like
Senator Pete Williams from New Jersey and others, who 35 years ago
realized that it is the appropriate role of the Federal Government to
be involved.
I know there are those who think that it would be better if the
Federal Government had never gotten involved in this. I suppose they
would say, well, the employee could sit down with the employer and the
employee could point out the unsafe working conditions and the employer
will surely take care of it because no employer wants his employees
harmed. It just does not work that way. It did not work that way for
the century before OSHA was passed.
Let me repeat: there are hundreds of thousands of Americans who have
their eyesight, who have their arms, who have their health, who have
their lives because OSHA has teeth, because OSHA requires prompt remedy
to unsafe conditions.
Mr. BOEHNER. Madam Speaker, I reserve the balance of my time.
Mr. OWENS. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I would like to just say that when we say the
Republican majority is trying to trivialize the role of OSHA and the
role of safety in the workplace, there is good foundation for this.
When this administration took power, the present administration in the
White House, one of the first acts that they perpetrated was the repeal
of ergonomic standards at the urging of, of course, Republican Members
of Congress. They repealed the ergonomic standards that had been in
process with a lot of bipartisan development and support over a long
period of years.
When the Secretary of Labor was Elizabeth Dole, great steps were
made; and slowly we reached a point where we had ergonomic standards to
pass. The current Bush Administration's first act was to repeal
ergonomic standards, to toss them aside and to send a message that
workers in the workplace are not that important, working families are
really not important, working conditions in America are not important.
The history of OSHA is that step by step they have saved thousands and
thousands of lives.
One of the worst industries for safety before OSHA came into
existence was the construction industry. The construction industry is
still one of the most unsafe industries, but it has made tremendous
strides in terms of saving lives as a result of being forced to follow
certain kinds of standards by OSHA.
I think we need more light thrown on this subject, and for that
reason we have prepared some information for each member of the
committee by district, and they can get familiar with the problem in
their district with this information that we have compiled.
For example, according to the Bureau of Labor Statistics in 2003,
there were 200 worker deaths in the State of Illinois. But in the 13th
Congressional District of Illinois, 69.5 percent of all the state's
deaths took place. I think the Member of Congress from the 13th
district ought to know that and take a look at what has happened in
that district.
This packet that we want to prepare for each Member includes a chart
detailing the statistics. The chart also lists the worker deaths
according to the industry the person worked in and also the type of
incident that was responsible for their death: was it a fall, contact
with equipment, et cetera. The information is also broken down between
government workers and those working in the private industry. This
packet also includes a census report for each one of the districts
showing how it relates to the surrounding areas, et cetera.
We will prepare this for each Member to just let them know how
serious a matter this is in terms of their own immediate districts. We
think working families in America should not be treated as if they
lived in a Third World country, and a lot of Third World countries
mores are being attempted by certain U.S. industries.
Particularly the construction industry, the construction industry
looks for the most vulnerable people, immigrants. Illegal immigrants
are employed in large numbers in the construction industry. And I come
from a city where 40 percent of all male blacks are unemployed,
according to two studies, two studies that confirm that 40 percent of
all male blacks are unemployed. Yet there is a tremendous amount of
construction going on, and if we go around the construction sites, we
will find that the workers doing the manual labor, unskilled labor, are
immigrants; and in many cases there are tremendous accidents, and these
people are shuffled off and frightened and intimidated to the point
where they never even report it. They do not have any workman's
compensation, let alone feel that they have the right to be protected
under the OSHA laws.
A review of more than 2,500 OSHA construction site inspection records
in New York State from the year 2003 found that nearly one third of all
OSHA construction violations in the State were of scaffolding or fall
protection requirement violations, more than any other standard. The
organizations involved in the analysis also said the results of this
study as well as a separate review reveal troubling data about the
plight of immigrant workers in the construction industry.
Their analysis, titled ``Lives in the Balance--Immigrants and Workers
at Elevated Heights at Greatest Risk in Construction,'' was prepared by
the New York State Trial Lawyers Association and issued by the New York
Committee for Occupational Safety and Health and the Association of
Community Organizations for Reform Now, called ACORN. Two other
organizations Make the Road by Walking, and the New York Immigration
Coalition, also sponsored the study.
{time} 1500
The study reviewed all construction site OSHA inspections conducted
in the State during 2003. Now, personally, I know and I have related on
this floor, the total accidents that have taken place since then in New
York City. Five immigrant workers lost their lives in a trench that was
being constructed without proper safeguards.
I want to repeat that there is a class problem developing in America.
There is a class problem. Those in power are insensitive to the needs
of those who are out there working on the front lines, whether it is in
domestic service or in dangerous jobs like construction, trucking and a
number of chemical plants. These are dangerous jobs, but they have to
be done. Our industries cannot survive without people who work in those
dangerous jobs. They deserve all the protection we can give them. Just
as the soldiers on the front lines in Iraq, Afghanistan or anywhere
else always deserve the best that we can give them. Every soldier is
automatically a hero when he goes out to fight for his country, because
for every one who goes out to fight, there are a few hundred thousand
left behind who will never be called. We should recognize and honor
those who go out to fight. Therefore, the best armor protection, the
best bullet-proof vests, all of
[[Page H5686]]
the things that are available to protect an individual's life should be
available to those who go out to fight.
What we have found in this present war in Iraq is that people on the
top, with their class-conscious sentiments at work, did not provide at
first the kind of protection that should have been provided to the
soldiers on the front lines out there. The soldiers come from the same
working families. I cannot stress enough the need for all Americans to
recognize that we are all in this together.
We have a governor of New York State now whose son was in the
National Guard in a program that required that, once he came out, he
had certain duties and obligations. This governor's son now is asking
for a waiver. He does not want to go to Iraq; he wants a waiver. What
kind of a message is that sending to all of the mothers and fathers of
young men and women who have gone off to fight in Iraq in terms of our
society? The person with the power does not want to make a sacrifice of
his son.
Mr. BOEHNER. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, let me remind my colleagues what this small, innocuous
bill does. It says to the Secretary of Labor and to OSHA that the
arbitrary, 15-day deadline that is in the statute for complying with an
OSHA citation or to respond to OSHA can, in fact, be waived under
special circumstances, if OSHA believes that the employer missed it by
accident or had other extenuating circumstances, they have the option
of extending the 15-day deadline. That is all this bill does.
Now, some of my colleagues on the other side have suggested, well,
no, they already have this authority. But the fact is, they do not. The
ability of the commission to waive a deadline on a case-by-case basis
when circumstances warrant it have been drawn into increased legal
uncertainty by the recent decision of the U.S. Circuit Court of Appeals
for the Second Circuit in Chao v. LeFrois Builder, Incorporated, and
indeed, as recently as 2003, OSHA has argued that OSHRC does not have
the authority to apply this rule.
So we think that voluntary cooperation between OSHA and the employer
community will, in fact, lead to a safer workplace. And as the chart
showed that I displayed earlier, workplace injuries and fatalities have
continued to decrease in each year of the Bush administration.
Let us make this commonsense change to help employers and their
workers achieve a safer workplace.
Mr. GENE GREEN of Texas. Madam Speaker, I rise today in opposition to
these measures. This legislation moves in the wrong direction for
worker safety.
We are spending valuable time changing small portions of OSHA to
overturn court decisions and tweak the law to benefit industry.
I'm not sure we should be spending time addressing all these small
issues when we know that reporting requirements are a problem and we
could be doing something about it.
It doesn't matter in which facility these accidents occurred. The
fact is people should know if an accident has occurred and the company
managing the site should report it whether contract workers were
involved or not.
If someone is seriously injured at my home, regardless if I'm at
fault, there will be a report by the paramedics or the police and it
will list my residence.
In March, fifteen people were killed in a refinery accident in Texas
City. None of them will be on the injury site log because the law
doesn't require them to list contract workers.
Since 1991 we've known reporting requirements should be changed to
include contract workers. The report recommending this was sanctioned
by OSHA under the first George Bush's administration.
There is no reason the Republican leadership couldn't allow at least
some discussion on the reporting issue today. People have the right to
know if they are applying for a job at a facility that has a poor
safety record.
We should be talking about real issues instead of making things just
a little better for industry. We've known about this problem for 14
years. That's too long to avoid making a simple change to the law to
require site-based reporting of injuries.
Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today to speak in
opposition to H.R. 739, a bill to amend the Occupational Safety and
Health Act of 1970 to provide for adjudication flexibility with regard
to the filing of a notice of contest by an employer following the
issuance of a citation or proposed assessment of a penalty by the
Occupational Safety and Health Administration. In essence, this bill
would amend current law to authorize the Occupational Safety and Health
Review Commission (OSHRC) to make exceptions to the 15-day deadline for
employers to challenge OSHA citations if the employer's failure to meet
this deadline is due to a ``mistake, inadvertence, surprise, or
excusable neglect.''
This would weaken the ability of the Occupational Safety and Health
Review Commission to enforce the current deadline and would encourage
increased litigation and disrupt OSHA's ability to address workplace
hazards in a timely manner. OSHA is already ``astonishingly
ineffectual'' in protecting workers' lives. In the past 20 years OSHA
has failed to seek criminal prosecutions in 93 percent of the cases
where employers' willful and flagrant safety violations ended up
killing workers. (New York Times/December 2003). Furthermore, according
to a recent GAO report, since 1996, OSHA has cut resources dedicated to
enforcement by 6 percent.
The U.S. lags behind other western nations in protecting workers'
lives. A U.S. construction worker is 4 times more likely to be killed
on the job than one in Denmark. (Center for Worker Rights 2004). As a
New York State Supreme Court Judge observed: ``Why Congress has adopted
such a spineless response to industrial malfeasance is best left to
voters to assess.'' (Newsday, 1/15/04).
As responsible Members of congress, we cannot afford to vote for this
bill. I urge my colleagues to oppose H.R. 739.
Mr. BOEHNER. Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mrs. Wilson of New Mexico). All time for
debate has expired.
Pursuant to House Resolution 351, the bill is considered read for
amendment and the previous question is ordered.
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 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. BOEHNER. 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 will be postponed.
____________________