[Congressional Record (Bound Edition), Volume 150 (2004), Part 8]
[House]
[Pages 9965-9973]
[From the U.S. Government Publishing Office, www.gpo.gov]




OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EFFICIENCY ACT OF 2004

  Mr. BOEHNER. Mr. Speaker, pursuant to House Resolution 645, I call up 
the bill (H.R. 2729) to amend the Occupational Safety and Health Act of 
1970 to provide for greater efficiency at the Occupational Safety and 
Health Review Commission, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 645, the bill 
is considered read for amendment.
  The text of H.R. 2729 is as follows:

                               H.R. 2729

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Occupational Safety and 
     Health Review Commission Efficiency Act of 2003''.

     SEC. 2. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

       (a) Amendments.--Section 12 of the Occupational Safety and 
     Health Act of 1970 (29 U.S.C. 661) is amended as follows:
       (1) In subsection (a), by striking the word ``three'' and 
     inserting in lieu thereof, the word ``five;'' and inserting 
     before the word ``training'' the word ``legal''.
       (2) In subsection (b) by striking all after the words 
     ``except that'' and inserting in lieu thereof, ``the 
     President may extend the term of a member to allow a 
     continuation in service at the pleasure of the President 
     after the expiration of that member's term until a successor 
     nominated by the President has been confirmed to serve. Any 
     vacancy caused by the death, resignation, or removal of a 
     member before the expiration of a term, for which he or she 
     was appointed shall be filled only for the remainder of such 
     expired term. A member of the Commission may be removed by 
     the President for inefficiency, neglect of duty, or 
     malfeasance in office.
       (3) Subsection (f) is amended to read as follows:
       ``(f) The Chairman of the Commission is authorized to 
     delegate to any panel of three or more members any or all of 
     the powers of the Commission. For the purpose of carrying out 
     its functions under this chapter, 3 members of the Commission 
     shall constitute a quorum, except that 2 members shall 
     constitute a quorum for any sub-panel designated by the 
     Chairman under this subsection.''.
       (b) New Positions.--Of the two vacancies for membership on 
     the Commission created by this section, one shall be filled 
     by the President for a term expiring on April 27, 2006, and 
     the other shall be filled by the President for a term 
     expiring on April 27, 2008.

  The SPEAKER pro tempore. Pursuant to House Resolution 645, the 
amendment printed in the bill, modified by the amendment printed in 
part A of House Report 108-497 is adopted.
  The text of H.R. 2729, as amended, as modified, is as follows:

                               H.R. 2729

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Occupational Safety and 
     Health Review Commission Efficiency Act of 2004''.

     SEC. 2. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

       (a) Amendments.--Section 12 of the Occupational Safety and 
     Health Act of 1970 (29 U.S.C. 661) is amended as follows:
       (1) In subsection (a), by striking the word ``three'' and 
     inserting in lieu thereof, the word ``five'' and by inserting 
     the word ``legal'' before the word ``training''.
       (2) In subsection (b) by striking all after the words 
     ``except that'' and inserting in lieu thereof: ``the 
     President may extend the term of a member for no more than 
     365 consecutive days to allow a continuation in service at 
     the pleasure of the President after the expiration of that 
     member's term until a successor nominated by the President 
     has been confirmed to serve. Any vacancy caused by the death, 
     resignation, or removal of a member before the expiration of 
     a term, for which he or she was appointed shall be filled 
     only for the remainder of such expired term. A member of the 
     Commission may be removed by the President for inefficiency, 
     neglect of duty, or malfeasance in office.''.
       (3) In subsection (f), by striking ``two'' the first place 
     it appears and inserting ``three''.
       (b) New Positions.--Of the two vacancies for membership on 
     the Commission created by this section, one shall be filled 
     by the President for a term expiring on April 27, 2006, and 
     the other shall be filled by the President for a term 
     expiring on April 27, 2008.

  The SPEAKER pro tempore. The gentleman from Ohio (Mr. Boehner) and 
the gentleman from New York (Mr. Owens) each will control 30 minutes.
  The Chair recognizes the gentleman from Ohio (Mr. Boehner).


                             General Leave

  Mr. BOEHNER. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks on H.R. 2729.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Ohio?
  There was no objection.
  Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the second bill we will debate today is another narrowly 
crafted bill that addresses a specific problem which we find in the 
OSHA law.
  The Occupational Safety and Health Review Commission Efficiency Act, 
H.R. 2729, increases the membership of the Occupational Safety and 
Health Review Commission from three to five members to ensure that 
cases are heard in a timely fashion.
  Because a quorum of two out of the current three commissioners is 
needed for timely decision-making, the commission has in the past been 
unable to act simply because a quorum was not present. There are a 
number of reasons for this. The appointment process is sometimes 
controversial, leading to vacancies, and sometimes commissioners must 
recuse themselves from consideration of cases, meaning a situation is 
created where even if there is only one seat open, there is often no 
working quorum.
  For some 20 percent of its history, the commission has been unable to 
gain a working quorum, and as a result is simply unable to function 
despite being otherwise fully staffed. Increasing the membership to 
five commissioners will ensure that cases are reviewed in a more timely 
fashion, improving the current system of judicial inactivity that only 
results in government waste.
  In short, it will allow the commission to complete the job it was 
created to do by reducing case backlogs that are as much as 8 years 
old.
  The commission's sister agency, the Federal Mine Safety and Health 
Review Commission, has five panelists, and we found it has worked well 
in reviewing cases more efficiently.

                              {time}  1330

  Lastly, the bill permits incumbent members whose terms have expired 
to stay on until a replacement can be confirmed by the Senate. Most 
vacancies occur during these turnovers.
  We want small businesses hiring more workers and contributing to our 
economy, not facing years of OSHA-related litigation that they cannot 
resolve simply because the commission has an endless backlog of cases. 
This bill simply ensures that OSHA cases are resolved in a timely and 
efficient manner, a goal that I think we all support.
  Employers who make good-faith efforts to comply with OSHA standards 
deserve to be treated fairly and have their day in court. This measure 
will help ensure that they receive that opportunity.
  Nearly every employer today recognizes that improving workplace 
safety is good for business and it is good for workers. Employers face 
relentless competition both at home and abroad and they must compete in 
the face of high taxes, rising health insurance premiums and burdensome 
government regulations. All of these OSHA reform bills are designed to 
improve worker safety and enhance the competitiveness of small 
businesses that are the real engine of job growth in this country.
  The U.S. economy is improving. More and more employers are hiring 
workers every month. Earlier this month, the Labor Department reported 
that over the last 8 months, 1.1 million net new jobs were created, 
625,000 in just the last 2 months. But we want to make sure that 
government regulations, and especially onerous government regulations, 
do not stand in the way of small businesses hiring more workers and 
getting our economy back on its feet.
  This bill is narrowly crafted and addresses a specific problem in the 
OSHA law. I believe it deserves our Members' support and would ask our 
Members and encourage them to support it today.

[[Page 9966]]

  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
  First, I would like to comment on voluntary compliance. It has been 
mentioned here several times. Voluntary compliance programs are usually 
directed at large employers, not small. This is not where the deaths 
are occurring. In construction, half of all deaths occur among small 
firms in construction, many with fewer than 10 workers. Big 
corporations have understood for some time now that it is to their 
advantage to have a workplace that is safe, with maximum benefits and 
working conditions. And big corporations are seldom guilty of willful 
violations; it is the small employers. I must say that an attempt has 
been made here to make it appear that small employers have some special 
virtues, but small employers can be demons often.
  I recall my father working in a mill where the straw boss, they 
called him, told the workers if they would go to the toilet, which was 
pretty much in the middle of the floor anyhow, a cubicle that you could 
see the feet and it was open at the top, if you go to the toilet and he 
does not smell anything, come on out.
  I can recall working at a restaurant when I was in college where the 
employer, the owner of this small business, felt he had a right to pat 
any woman on the behind regularly, and they were too afraid to complain 
because they wanted to keep their jobs.
  You might say that those were extreme conditions, that is all over; 
that happened when you were in college many years ago. But in New York 
we have sweatshops which are as bad as any sweatshops the city has ever 
known in the 1930s, the 1920s or any other time. It is just that the 
people in the sweatshops now happen to be Asians mostly, Asian workers 
who are being exploited.
  There is no great virtue in small businesses automatically. Yes, the 
majority comply, but there are too many who still do not comply, too 
many who, as I said before, are interested only in squeezing the 
maximum profits from the situation; and their biggest cost is the labor 
cost, labor cost in terms of wages, labor cost in terms of conditions 
that must be established by law for workers.
  We refuse to discuss the minimum wage on this floor. We refuse to 
discuss it in the context of a bill to increase the minimum wage. But 
today if we are going to talk about workers and worker safety, I think 
we ought to point out that it is the workers who are making the least 
amount of money whose safety is jeopardized most. They are the 
vulnerable ones in conditions that nobody else wants to work in, 
immigrant workers who take the lowest pay and working conditions where 
no one else will work.
  This is the second quarter of a four-quarter marathon, as I said 
before. I have heard it called the More Injuries and More Death 
Marathon Act. It is a covert approach to what the majority Republicans 
tried when they first took power in 1995. This is covert. This is 
guerilla warfare, one might say, undermining OSHA from the back, 
undermining OSHA with sweet words.
  Back on June 14, 1995, we had the first taste of what the majority 
Republicans really wanted to do about OSHA. The gentleman from North 
Carolina (Mr. Ballenger) introduced H.R. 1834, and that was a massive 
overhaul of OSHA to weaken the law and favor law-breaking employers. If 
you were to go back and retrieve that bill, you could see that most of 
it was put there in one bill, and it was a frontal assault. It had the 
same objectives that today's assault has.
  There have been 14 of these significant bills introduced since the 
104th Congress, I think half of which have been introduced by the 
gentleman from North Carolina (Mr. Ballenger) which are significant in 
terms of looking at the record of how OSHA has been under attack. Since 
this House went under the leadership of the Republicans, OSHA has been 
the target, it has been an obsession, and none of these bills are in 
favor of increasing any measures to protect workers.
  We cannot review and view these bills today in the context of just 
one bill at a time or even the four bills. The four bills have to be 
reviewed in the context of the overall policy of the Republican 
majority toward working families, the overall assault against working 
families.
  We have to have this in context. We have to look at the figure of the 
6,000 Americans per year. That figure has been there for some time, 
averaging about 6,000 per year who die every year on the job.
  The little display up front is an example of a centerpiece for a 
quilt we want to make as a memorial to these workers. We do not want 
either party to forget what is happening to working families in this 
country. In many respects, the failure to increase the minimum wage is 
one of them, but certainly with respect to health and safety, we must 
do more to make it known and to put it on the front burner in the minds 
of Americans as evidence of what is happening in the workplace.
  This is not unrelated to other developments like outsourcing, a major 
development which goes after workers at higher levels, technicians, 
computer people, scientists, engineers. Their salaries and their 
working conditions are such that they are found to be offensive and not 
producing ample profits, so their jobs are going to be taken away 
completely and contracted out to other nations.
  There are a large number of businesses that cannot be contracted out 
and most of them are small businesses. Construction is one. We can 
never take construction overseas; that has to happen here. The 
construction industry, in particular, needs the protection of people 
who want to weaken OSHA. The construction industry, in particular, is a 
culprit in employing and exploiting workers at the very bottom.
  We must keep this package in context. We must understand that the 
covert warfare taking place here, what I call the poisoning of OSHA, 
the slow draining of power from OSHA, is accelerated by these seemingly 
harmless four bills. The Labor Secretary in this administration is 
openly hostile to labor and to working families. We have a situation 
where traditionally the Department of Labor has always been considered 
the advocate for working families and for workers, but this particular 
Department of Labor, this Secretary, is just the opposite and this 
administration has no place for labor to have their grievances aired. 
So we bring them here today at this time and take advantage of the fact 
that there is at least time to discuss conditions under which people 
work.
  The policy of denigration, intimidation and oppression of the 
workforce is a policy which yields high productivity. That high 
productivity has already been achieved, but they want to go beyond that 
and get higher levels of exploitation and squeeze more from workers to 
increase the profits. As I said before, all small business owners are 
not model Americans. They do not seek to protect and take care of their 
workers in the best possible way.
  We are going to have a monument. This is going to be part of an 
overall quilt which gives you the number of workers per State, gives 
you the number each year, since 1993 to the present. Like the Vietnam 
Wall memorial, it dramatically brings home in an individual way the 
fact that life is sacred. The lives of workers are as sacred as the 
lives of anyone else.
  I said before, we are losing more workers per day than we are losing 
on the battlefields of Iraq. I do not want the Iraq battlefield 
casualties to increase. We would like the casualties in both places to 
decrease. But the life of a worker who is killed in a situation which 
has willful violations and the death is totally unnecessary, that life 
must be given more concern by both parties here in this House.
  Workers and their families are under attack. We must come to their 
defense. One way to defend them is to recognize these four bills for 
what they are worth. They are the very destructive poisoning of the 
effectiveness of OSHA.
  Mr. Speaker, I submit for printing in the Congressional Record the 
opinions and the statements by four groups: The AFL-CIO, the UAW, the 
Teamsters and the National COSH Network. These groups oppose this bill. 
I

[[Page 9967]]

submit for the Record their statements in opposition.

         American Federation of Labor and Congress of Industrial 
           Organizations,
                                     Washington, DC, May 14, 2004.
       Dear Representative: I am writing to express the strong 
     opposition of the AFL-CIO to H.R. 2728, H.R. 2729, H.R. 2730 
     and H.R. 2731, four bills that would erode worker protections 
     under the Occupational Safety and Health Act. These bills, 
     which are scheduled for a floor vote the week of May 17, 
     2004, would change established law and procedures to benefit 
     employers and stifle OSHA enforcement. They would do nothing 
     to enhance workers' safety and health protection, while 
     weakening the OSH Act.
       H.R. 2731, Occupational Safety and Health Small Employer 
     Access to Justice Act--This bill requires taxpayers to pay 
     the legal costs of small employers (defined as employers with 
     100 or fewer employees and up to $7 million net worth) who 
     prevail in any administrative or enforcement case brought by 
     OSHA or any challenge to an OSHA standard brought by the 
     small employer against OSHA, regardless of whether the action 
     was substantially justified.
       Under the Equal Access to Justice Act, small businesses are 
     already able to recover litigation costs where the government 
     position was not substantially justified. There is no reason 
     to expand these provisions and create new and broader rules 
     for purposes of the OSH Act. The bill will drain resources 
     away from an agency that has perpetually struggled to do its 
     job with the limited resources available to it. If enacted 
     into law, H.R. 2731 would have a chilling effect on both OSHA 
     enforcement and OSHA standard setting, because attorneys' 
     fees would be available to prevailing employers in both types 
     of actions. OSHA would be hesitant to cite small employers 
     for violations of the OSH Act unless there is absolute 
     certainty that the enforcement action will be upheld in its 
     entirety. No rational public policy would be furthered by 
     discouraging OSHA from issuing citations that are 
     substantially justified, but as to which the government 
     ultimately is unable to carry its burden of proof of every 
     issue. Rather, the inevitable result of such a rule, which 
     would penalize the government every time it loses, would be 
     to chill the issuance of meritorious citations in close cases 
     on behalf of employees exposed to unsafe working conditions. 
     Similarly, unless OSHA is certain that a standard will not be 
     challenged (which they are routinely for any number of 
     reasons), it would be very reluctant to development and issue 
     rules any hazard no matter how grave the threat of the hazard 
     to workers. This bill would further weaken OSHA enforcement 
     efforts and standard setting to the detriment of American 
     workers.
       Establishments with fewer than 100 employees make up 97.7 
     percent of all private sector establishments. These 
     businesses have a higher rate of fatal occupational injury 
     than do establishments with 100 or more workers. Hampering 
     OSHA's enforcement ability in these small establishments 
     would be devastating to workers, resulting in even higher 
     rates of worker fatalities, injury and illness.
       Also significant is the fact that under H.R. 2731, 
     employers will be able to recover partial attorneys fees if 
     they partially prevail in an OSHA proceeding. So, for 
     example, the notorious Eric Ho, who exposed his employees to 
     asbestos and made them work at night behind locked gates 
     without providing them any sort of respirators or training, 
     would be able to recover attorneys fees under this bill, 
     because the OSHA Review Commission dismissed two of Ho's 
     corporations as defendants and dismissed 10 of 11 willful 
     violations of OSHA's respirator and training standards. 
     Secretary of Labor v. Ho, Nos. 98-1645 & 98-1646 (OSHRC, 
     Sept. 29, 2003).
       OSHA needs more, not fewer, resources available to deal 
     with employers like Eric Ho and to enforce the OSH Act's 
     protections. H.R. 2731 should be rejected.
       H.R. 2730. Occupational Safety and Health Independent 
     Review of OSHA Citations Act--This bill would work a radical 
     change in the implementation and enforcement of the OSH Act, 
     and would undermine the Secretary of Labor's authority to 
     interpret and enforce the law. The bill would overturn a 1991 
     Supreme Court decision and say that deference should be given 
     to the OSHA Review Commission, and not the Secretary of 
     Labor, in interpreting OSHA standards. The AFL-CIO vigorously 
     opposes this bill and urges its defeat.
       In Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144 
     (1991), the Supreme Court made clear that the Secretary of 
     Labor, and not the Review Commission, should be given 
     deference when interpreting OSHA standards and regulations. 
     In the Court's view, the Secretary of Labor should receive 
     deference because Congress, when enacting the OSH Act, 
     designated the Secretary as the policymaking official, and 
     gave the Secretary the authority and responsibility to 
     implement and enforce the law. Thus, because the Secretary of 
     Labor is the person who adopts standards and brings 
     enforcement actions against employers, she has a much broader 
     and deeper understanding of OSHA's rules as compared to the 
     Review Commission, which sees only a small fraction of OSHA's 
     enforcement cases.
       Policymaking, and interpretation of OSHA policies, should 
     stay with the Secretary. The Commission should not be able to 
     undo by fiat the Secretary's reasonable interpretations of 
     her rules. H.R. 2730 should be rejected.
       H.R. 2729. Occupational Safety and Health Review Commission 
     Efficiency Act--H.R. 2729 expands the number of members on 
     the OSHA Review Commission from three to five, and mandates 
     that all members have legal training. Another provision, 
     removed during the Committee markup on May 5, 2004, 
     authorized the Chairman of the Commission to delegate to any 
     panel of three or more members any or all powers of the 
     Commission and allowed two members to constitute a quorum on 
     such sub-panels.
       The Review Commission has operated with three Commissioners 
     since it was first formed in 1970. There is no need to expand 
     the Commission beyond its current membership, and no need to 
     exclude individuals with relevant training, but not legal 
     training, from eligibility for these positions. Moreover, it 
     is no coincidence that Republican members are pushing to 
     expand the number of seats on the Commission at a time when a 
     Republican president would fill the seats.
       Proponents say the bill is needed to address the problem of 
     the Commission at times lacking a quorum to do business. But 
     with the removal of the provision on sub-panels during the 
     Committee markup, it is difficult to see how H.R. 2729 would 
     solve the quorum problem. Three Commissioners would still be 
     required to have a working quorum. There is no reason to 
     think that the Commission will be able to retain three active 
     Commissioners any better than it has been able to retain two.
       H.R. 2729 is a solution in search of a problem. It should 
     be defeated.
       H.R. 2728, Occupational Safety and Health Small Business 
     Day in Court Act--This bill would excuse employers from the 
     fifteen-day deadline for contesting OSHA citations and 
     ``failure to abate'' notices if they can show ``mistake, 
     inadvertence, surprise, or excusable neglect'' as the reason. 
     The bill's practical effect would be to make numerous excuses 
     into legal reasons for missing the fifteen-day deadline by 
     which employers currently must respond to OSHA citations. 
     This action will only encourage more litigation. The idea of 
     the fifteen-day requirement is to give all parties a 
     reasonable timeframe in which to take action, and to ensure 
     that the case is moved along as quickly as possible so the 
     cited hazards will be corrected in as timely a manner as 
     possible.
       It is also important to note that the bill excuses 
     employers from missing their 15-day deadline but does not 
     extent these same provisions to employees or their 
     representatives who challenge the period for abatement in a 
     citation. The one-sided nature of this legislation shows that 
     it is about benefiting employers, not protecting employees.
       Proponents of the bill have pointed to one court case as 
     justification for this legislation. In fact, the Commission 
     has a longstanding practice of reviewing any missed deadlines 
     on a case-by-case basis. H.R. 2728 is another solution in 
     search of a problem, and it should be defeated.
       As demonstrated above, these bills undermine the intent of 
     the Congress when it enacted the OSHAct more than 30 years 
     ago. Generally speaking, these policies and procedures have 
     been serving workers well for over 30 years. American workers 
     deserve a safe and healthy workplace and the full protection 
     the OSHAct can offer. These bills would surely diminish the 
     protections provided to workers by the OSHAct. For these 
     reasons, the AFL-CIO opposes these four bills, and we 
     strongly urge you to vote against each of them.
           Sincerely,

                                               William Samuel,

                                                         Director,
     Department of Legislation.
                                  ____

         International Union, United Automobile, Aerospace & 
           Agricultural Implement Workers of America--UAW,
                                     Washington, DC, May 17, 2004.
       Dear Representative: This week the House is scheduled to 
     take up four bills to amend the Occupational Safety and 
     Health Act of 1970. The UAW opposes each of these anti-worker 
     bills and urges you to vote against them.
       The first three bills relate to the Occupational Safety and 
     Health Review Commission (Commission or OSHRC). In 
     considering these bills, the UAW urges you to bear in mind 
     that OSHRC functions as an intermediate appeal for employers, 
     between decisions of the Occupational Safety and Health 
     Administration (OSHA) and the U.S. Courts of Appeal. During 
     the time a case is on appeal to OSHRC, employers do not have 
     to pay any assessed penalties, nor do they have to abate the 
     violations for which they were cited. Thus, procedural delays 
     at OSHRC serve only to postpone justice and to delay the 
     correction of workplace safety and health violations.
       H.R. 2728, despite being mislabeled the ``Occupational 
     Safety and Health Small Business Day in Court Act,'' is not 
     limited to small businesses. Instead, it would effectively 
     eliminate the statutory time period

[[Page 9968]]

     within which all employers--not just small employers--must 
     contest an OSHA citation or assessment before it becomes a 
     final order of the Commission. Under the statute, an employer 
     contests by simply mailing a letter to the OSHA office. 
     Therefore, contestation is not burdensome, and the statutory 
     time period should be retained.
       Moreover, the federal courts already provide relief, 
     pursuant to Rule 60(b) of the Federal Rules of Civil 
     Procedure, for employers who can show that their failure to 
     meet filing deadlines was due to mistake, inadvertence, 
     surprise, excusable neglect, fraud, misrepresentation or 
     misconduct by an adverse party, so long as the employer can 
     show the existence of a meritorious defense. There is a body 
     of established case law pursuant to Rule 60(b) that would be 
     subject to wasteful relitigation if H.R. 2728 were enacted.
       H.R. 2729, the ``Occupational Safety and Health Review 
     Commission Efficiency Act,'' would expand the number of OSHRC 
     commissioners to five from three and authorize sub-panels of 
     three members to exercise all of the powers of the 
     Commission. It would also authorize commissioners to hold 
     their position at the expiration of their six-year term, 
     until a successor has been nominated by the President and 
     confirmed by the Senate. Finally, it would add a new 
     requirement that Commissioners must have legal training.
       The UAW submits that the only good to come from adding two 
     commissioners to OSHRC would be the creation of two more jobs 
     to an economy that has lost over two million jobs since 
     January 2004. Otherwise, it is wasteful and unnecessary to 
     expand OSHRC, which has been composed of three members since 
     it was established in 1970.
       Indeed, the UAW believes that Congress should give 
     consideration to abolishing all of the OSHRC commissioners' 
     positions, allowing appeals to go directly from the decision 
     of the Commission's Administrative Law Judges to the Courts 
     of Appeals, as is done with Social Security Administration 
     appeals.
       We object to the legal training requirement because it 
     would work against persons with workplace health and safety 
     expertise. And we object to the provision allowing 
     commissioners to retain their position after the expiration 
     of their term because it deprives the Senate of its 
     Constitutional advice and consent role.
       H.R. 2730, the ``Occupational Safety and Health Independent 
     Review of OSHA Citations Act,'' would overturn a 1991 Supreme 
     Court decision holding that OSHRC's Interpretation of a 
     health or safety standard may not be substituted for the 
     interpretation of the Secretary of Labor. The bill explicitly 
     provides, ``The conclusions of the Commission with respect to 
     all questions of law shall be given deference if 
     reasonable.'' Because it is for all practical purposes only 
     employers who appeal cases to OSHRC, there is never an 
     instance when the Commission would be expanding workers' 
     right by substituting its interpretation for the Secretary's. 
     In other words, H.R. 2730 would give unprecedented and 
     unwarranted authority to the OSHRC to take away workers' 
     workplace health and safety.
       The fourth bill, H.R. 2731, the ``Occupational Safety and 
     Health Small Business Day in Court Act,'' would permit small 
     employers to collect attorney fees and court costs when they 
     contest OSHA citations and prevail in litigation with OSHA. 
     This bill would reverse the time-honored rule of American 
     jurisprudence that requires litigants to bear their own costs 
     and fees. There is no need for such legislation because the 
     Equal Access to Justice Act adequately protects parties from 
     administrative overreaching by compensating them in cases 
     where the government is not ``substantially justified'' in 
     bringing a law enforcement action, or under other ``special 
     circumstances.''
       For the foregoing reasons, the UAW strongly urges you to 
     oppose H.R. 2728, H.R. 2729, H.R. 2730, and H.R. 2731. Thank 
     you for considering our views on these important issues.
           Sincerely,
                                                     Alan Reuther,
     Legislative Director.
                                  ____

                                      International Brotherhood of


                                           Teamsters, AFL-CIO,

                                     Washington, DC, May 14, 2004.
       Dear Representative: On behalf of the more than 1.4 million 
     members of the International Brotherhood of Teamsters, I am 
     writing to express our strong opposition to four bills that 
     would amend the Occupational Safety and Health Act: H.R. 
     2728, H.R. 2729, H.R. 2730, and H.R. 2731. These bills do 
     nothing to enhance safety and health protections for workers. 
     Rather they would change established law and procedures to 
     benefit employers (at the expense of workers), and they would 
     make OSHA enforcement more difficult. Instead of weakening 
     the intent of the OSH Act, Congress should take steps to 
     strengthen safety and health protections for workers, and 
     improve enforcement.
       H.R. 2728, the Occupational Safety and Health Small 
     Business Day in Court Act, seeks to excuse employers who miss 
     the current fifteen-day timeframe to contest citations and 
     failure to abate notices. We believe this proposal does 
     noting more than create ``artificial'' legal reasons for 
     failing to respond in a timely fashion. It is an about face 
     from ensuring that an OSHA case is moved along as 
     expeditiously as possible to ensure that workplace hazards 
     are addresses in as timely a manner as possible, thus 
     improving worker safety and health. The current practice of a 
     case-by-case review is the most appropriate way to ensure 
     that hazards are addressed as quickly as possible and to 
     reinforce the importance of workplace safety.
       H.R. 2729, the Occupational Safety and Health Review 
     Commission Efficiency Act, would require that the number of 
     commission members be increased from three to five, that all 
     members be attorneys, and that members be able to serve until 
     a successor is confirmed. We see no justification, or need, 
     for these changes--unless one wishes to tilt the ``playing 
     field'' against workers. First, the level of enforcement does 
     not warrant five commissioners. Further, increasing the 
     number of commissioners would enable the Administration to 
     stack the review commission with pro-business appointees. 
     There is no reason to limit the pool of talented people for 
     consideration. Further, the current system helps ensure that 
     all parties work together to select qualified people to 
     serve, and to do so in a timely manner.
       H.R. 2730, the Occupational Safety and Health Independent 
     Review of OSHA Citations Act, would, we believe, turn the OSH 
     Act on its ear, by giving deference to the commission. 
     Presently, the Secretary of Labor is given deference as the 
     official responsible for enforcing the OSH Act. The bill 
     would take away the authority held by the Secretary in 
     bringing cases to the Court of Appeals and the Supreme Court, 
     an important avenue of redress to protect workers from 
     dangerous and unhealthy workplaces.
       Finally, we oppose H.R. 2731, the Occupational Safety and 
     Health Small Employer Access to Justice Act, which would 
     require that OSHA (i.e. the taxpayer) pay the legal costs 
     when it loses a case against a small business that prevails 
     in administrative or judicial proceedings, regardless of 
     whether the government's position was substantially 
     justified. We view this as another effort to impede OSHA's 
     and the Department's efforts to enforce the law and provide 
     an avenue for workers to seek redress.
       We see no justification for such an arbitrary departure 
     from the current practice of each party paying for its own 
     litigation costs for only one class of public prosecutions. 
     We know of no other agency, charged by statute to enforce the 
     law, which is impeded from fulfilling its responsibility with 
     respect to a meritorious complaint because it cannot 
     guarantee the outcome.
       In effect, H.R. 2371 says that unless the agency is 
     absolutely certain that it can prevail--that it is absolutely 
     certain that its enforcement action will not be challenged, 
     will be upheld, or no modification will occur in terms of 
     action--it will be penalized (budgetarily) for fulfilling its 
     statutory obligation to protect the safety and health of all 
     workers (union and non-union) and to provide an avenue for 
     redress.
       Furthermore, H.R. 2371 would effectively gut OSHA's 
     statutory authority to promulgate safety and health 
     standards. Unless certain that a standard will not be 
     challenged (and many routinely are for a number of reasons), 
     OSHA would not dare (or be extremely reluctant, at best) to 
     begin a rulemaking on any hazard no matter how serious. We 
     believe that H.R. 2371 is tantamount to a stealth repeal of 
     OSHA's statutory authority to issue workplace safety and 
     health standards.
       Each of these bills will undermine, subtly in some 
     instances and egregiously in the case of H.R. 2371, workplace 
     protections and the protection that the OSH Act was designed 
     to provide workers. We urge you to stand up for the safety 
     and health of working men and women, and reject each of these 
     bills.
           Sincerely,

                                            Michael E. Mathis,

                                                         Director,
     Government Affairs Department.
                                  ____


   Resolution in Support of the National Campaign To Stop Corporate 
                                Killers

       Whereas, approximately 170,000 workers have been killed on 
     the job since 1982; and
       Whereas, many of these workers were killed due to reckless 
     disregard for worker safety on the part of the employer; and
       Whereas, the Occupational Safety and Health Administration 
     (OSHA) has the authority under the Occupational Safety and 
     Health Act to refer such cases of employer misconduct to the 
     U.S. Department of Justice for criminal prosecution; and
       Whereas, only 81 out of 170,000 workplace deaths since 1982 
     have resulted in convictions, only 16 of which involved jail 
     time; and
       Whereas, the Occupational Safety and Health Act defines an 
     employer's reckless disregard for safety resulting in the 
     death of a worker as a misdemeanor, punishable by only a 
     maximum of six months in jail; and
       Whereas, legislation has been introduced into the U.S. 
     Congress increasing criminal penalties for reckless disregard 
     for safety resulting in the death of a worker: therefore be 
     it
       Resolved, That we, the ____, support the national Campaign 
     to Stop Corporate Killers with the following goals:

[[Page 9969]]


       1. To pass federal legislation increasing criminal 
     penalties for willful violations of OSHA standards leading to 
     worker death;
       2. To urge OSHA to refer such cases for prosecution;
       3. To urge increased civil fines for serious violations of 
     OSHA standards; and
       4. To urge local District Attorneys to prosecute employers 
     whose actions result in workers' deaths to the fullest extent 
     possible under state and local criminal law.

  I also submit for printing in the Record as a reminder the 14 bills 
that have been proposed by the Republican majority since the 104th 
Congress to the present, 14 bills related to OSHA, which I think will 
verify the fact that these four bills today are part of a larger 
effort, a larger assault. Despite the fact that they look small, they 
are very devastating in terms of the effectiveness of OSHA.


                             108th congress

       April 3, 2003--Norwood--H.R. 1583--Makes it more difficult 
     to prove willful OSHA violations, increases Commission from 3 
     to 5 members, awards attorneys' fees to small employers who 
     prevail in proceedings, creates new factors to consider in 
     penalty assessment (with an eye to reducing penalties)


                             107th congress

       June 19, 2001--Petri--H.R. 2235--Authorizes Secretary to 
     create voluntary protection program.


                             106th congress

       April 15, 1999--Ballenger--H.R. 1434--Allows employers, 
     notwithstanding NLRA Section 8a2, to meet with employees 
     directly to discuss, review, etc. safety and health issues.
       May 27, 1999--Goodling--H.R. 1987--Allows employers to 
     recover attorneys fees and costs if they prevail in 
     proceedings brought by OSHA. Ballenger also reintroduced his 
     string of 105th Congress bills during the 106th (see below).


                             105th congress

       November 7, 1997--Ballenger--H.R. 2864--Encourages 
     ``voluntary'' compliance for employers.
       November 7, 1997--Ballenger--H.R. 2869--Changes law so that 
     records of audits and inspection done by and for the employer 
     need not be disclosed to OSHA inspectors.
       November 7, 1997--Ballenger--H.R. 2871--Requiers Secretary 
     to create advisory panel of experts each time she wants to 
     create a new rule, advisory panel to review all scientific, 
     economic data.
       November 7, 1997--Ballenger--H.R. 2873--Requires Secretary 
     to provide individualized assessment of risks to workers and 
     costs to employers for industry to which a rule is to be 
     applied.
       November 7, 1997--Ballenger--H.R. 2875--Changes language 
     dealing with ``alternative methods of protection.''
       November 7, 1997--Ballenger--H.R. 2877--Forbids Secretary 
     from establishing any performance methods for subordinates 
     based on number of inspections conducted, citations issued, 
     or penalties assessed.
       November 7, 1997--Ballenger--H.R. 2879--Hold that employer 
     may not be liable for a violation if workers were not 
     actually exposed to the violation or if the employer did not 
     create the conditions that cause the violation.
       November 7, 1997--Ballenger--H.R. 2881--Allows Secretary to 
     waive up to 100 percent of penalty on small businesses which 
     correct their violation within the period of abatement or up 
     to 100 percent of penalty to the extent that employer uses 
     money that would have been paid as penalty for correcting the 
     violation.
       September 8, 1997--H. Amdt. 326 to H.R. 2264--Norwood--
     Seeks to transfer $11.2 million from OSHA to fund the 
     Individuals with Disability Education Act.


                             104th congress

       June 14, 1995--Ballenger--H.R. 1834--Massive overhaul of 
     OSHA to weaken the law and favor lawbreaking employers.

  Mr. Speaker, I reserve the balance of my time.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, in case any Members just came in in the last few minutes 
or little while or are watching on the monitor, let me remind us what 
we are doing. This particular hour we are giving consideration to H.R. 
2729, the Occupational Safety and Health Review Commission Efficiency 
Act. That is what we are discussing. That is what is under debate and 
that is what we are going to vote on.
  Mr. Speaker, in the report on H.R. 2729, the Committee on Education 
and the Workforce observed that once Congress has created a government 
agency, it must continue to monitor the government agency for its 
performance on behalf of the taxpayers. Surely nobody can disagree with 
that. When the performance of that agency is found to be 
unsatisfactory, Congress must seek to identify the reasons for this 
failure and then make the needed corrections. It is that simple. That 
is all this bill is about.
  We are trying to make the needed corrections on behalf of the 
taxpayer. That is what this is about, regardless of what we previously 
have heard.
  Mr. Speaker, we are all tasked with performing this oversight that 
Congress has mandated since the inception of the OSHA law. That process 
describes what H.R. 2729 seeks to accomplish in a narrow, surgically 
targeted measure. In correcting clearly identified problems, this 
measure will improve the agency's performance, increase efficiency and 
eliminate unnecessary government waste. Who can disagree with that?
  Let me use this visual aid behind me to explain why it will do that. 
I am sure the blue and pink areas are seen prominently by all. These 
shaded areas represent the time periods when the agency specifically 
created by Congress to hear all disputes between OSHA and employers 
have not been able to meet. The shaded areas are an indication of a 
time when the review commission at OSHA was nonfunctional. It did not 
work. They were getting paid, of course, but it did not work.
  This is since 1970. Half of the time since 1970 the review agency did 
nothing. That is not good for anybody, especially the American 
taxpayer, but more importantly, the worker or the employer.

                              {time}  1345

  They found it impossible or at least very difficult to perform the 
functions that the Congress said to them this is their job, this is 
what they must do.
  This agency, the Occupational Safety and Health Review Commission, or 
OSHRC, was created by Congress for one single purpose; and, 
incidentally, had it not been created, there never would have been an 
OSHA Act. It would never have passed in 1970 had it not been for at the 
last minute OSHRC being put in.
  Their job is hearing disputes between OSHA and the regulated 
community. They are the court. OSHA is the plaintiff. The small 
business person is the defendant. They are supposed to be totally 
independent of the Labor Department. To serve this important purpose, 
OSHRC, by statute, was given three members, or judges. Two members 
constituted a working quorum. That is, without an agreement between two 
judges on all issues of law, no decision can be issued. Without this 
agreement, OSHRC cannot perform its congressional mandate, and the 
review commission established by Congress is instead forced to shut 
down or come to a stalemate where waste and efficiency rule the day. 
Guess who gets to pay? The same old folks, the taxpayers.
  Here is the problem. Stalemate and waste have been the rule over the 
history of this agency since 1970 rather than the exception. I am 
telling the Members they have been out of business half the time since 
1970. As the visual I pointed to earlier, this one indicates the time 
of trouble highlighted by the shaded areas seems to overrun this 
timeline and it seems to signal a problem. And as one witness 
testified, these legal stalemates produce cases as long as 8 years old 
that sit on a court docket. That is not what Congress intended and it 
is not fair to anybody, 8 years of stalemate and waste.
  Now we are trying to remedy that. It may be hard for Members to tell 
we are trying to remedy that with some of the demagoguery, but that is 
all we are trying to remedy. A simple remedy can be found by looking at 
OSHRC's sister agency, the Federal Mine Safety and Health Review 
Commission. There, Congress placed five members on their review panel; 
and since the mine safety law was passed 7 years after the OSHA Act, 
most believe this represents a lesson learned. With five commissioners, 
are they doing better than OSHA is with three? It is not hard. And the 
answer is, yes, they are.
  A second remedial step is necessary to maximize efficiency, however; 
and H.R. 2729 accomplishes this by enabling the President to use what 
we call a ``hold-over'' provision to improve effectiveness and 
efficiency, which is what the taxpayers want, what we all should want. 
Simply stated, this provision would permit the President to ask 
incumbent members of OSHRC whose

[[Page 9970]]

terms have expired to remain seated, listen to this now, remain seated 
no longer than 365 days, until the Senate can confirm a replacement. 
That lets this agency keep working.
  Lastly, because the case is decided that OSHRC go on appeal directly 
to a United States court of appeals, we have inserted the word 
``legal'' before the word ``training'' and subsection 12(a) of the OSHA 
Act. This directs the President to select qualified candidates, but it 
in no way prevents the appointments of individuals who are nonlawyers 
to serve on OSHRC because there is a threefold criteria for selections. 
It includes training, that is one of them; it includes education; and 
it includes experience.
  Mr. Speaker, H.R. 2729 represents a very narrow change to the current 
law. It will have positive and sweeping consequences in terms of 
improving the performance and the efficiency of OSHRC while eliminating 
unnecessary government waste. Who can be against that?
  I urge the passage of this bill. And I conclude by saying that the 
demagoguery earlier that says that this bill should be called More 
Injury and Death Marathon Act is shameful, it is embarrassing, and it 
is out of line.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I ask unanimous consent that the gentleman 
from New Jersey (Mr. Payne), my colleague on the Workforce Protections 
Subcommittee, be allowed to control the balance of my time.
  The SPEAKER pro tempore (Mr. Terry). Is there objection to the 
request of the gentleman from New York?
  There was no objection.
  Mr. PAYNE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in opposition to H.R. 2729, the second quarter of 
the four terrible bills before us, which amends section 12 of the 
Occupational Safety and Health Act of 1970 to expand the Occupational 
Safety and Health Review Commission from three members to five members. 
They tell me that logically they are having a difficult time moving 
forward with three members; so, therefore, let us make it larger and we 
can move faster. That is a pretty good analogy. It is kind of the first 
time that larger is better. I always heard that they said lean and 
mean, that is where our government should be, cut down, reduce, get 
people out of our government.
  So here we have kind of a, once again, making things convenient. 
There we go again. So as I look at these bills, H.R. 2728, H.R. 2729, 
H.R. 2730, H.R. 2731, they all go into the same sort of stealth kind of 
quiet killing. And I remember we talked now H.R. 1 was the top bill in 
our committee, Leave No Child Behind, education, our current President 
was going to be the educational President, he wanted to be known as. 
However, 4, 5, 6, 7 years ago, the Republican Party was out to 
eliminate the Department of Education. When Secretary Bennett took his 
job, he said, My job is to eliminate this Department, we do not need a 
Department of Education; I hope that I can dismantle it, when education 
now becomes a number one issue.
  So I have problems trying to figure them out because one day it is 
there and the next day it is over here. This bill is just similar to 
that. This bill appears to require that commission members have legal 
training and provides that the President may extend the term of a 
member until the Senate has confirmed a successor, and that is pretty 
good because they can simply put up someone they know will not get 
confirmed and they can keep hold-overs forever. The commission has 
functioned with three members since its establishment in 1970.
  The authors of the Occupational Safety and Health Act did not feel 
that there was sufficient work to justify five members and experience 
does not demonstrate otherwise. That is the reason, in their judgment, 
they decided to have three members to this commission rather than five. 
The majority states: ``While there are similarities between the mission 
of the Mine Safety and Health Administration and the Occupational 
Safety and Health Administration, there is one significant difference: 
the composition of the adjudicative commission tasked with adjudicating 
disputes between employers and the agency,'' that it is a difference.
  It is true that the Mine Safety and Health Review Commission has five 
members, while the Occupational Safety and Health Review Commission has 
only three. However, it is also true that the Mine Safety and Health 
Review Commission has broader responsibilities, including 
responsibility for resolving whistleblowing complaints, than does the 
Occupational Safety and Health Review Commission. There is a difference 
in what they do and in their jurisdiction.
  The majority wants to expand the size of the Occupational Safety and 
Health Review Commission to make it commensurate with the Mine Safety 
and Health Review Commission, but is unwilling to give the Occupational 
Safety and Health Review Commission commensurate duties. In other 
words, they use that as the model, but do not give it the same power.
  Mr. Speaker, I believe also that the addition of the word ``legal'' 
as a modifier to training is also problematic. As a matter of fact, to 
me it is nonsensical. The Occupational Safety and Health Act requires 
that the President consider currently the ``training, education, and 
experience'' of potential review commission nominees. If enacted, H.R. 
2729 would require the President to consider the ``legal'' training, 
education, and experience of potential nominees. Why is this necessary 
for its inclusion? It has been functioning well up to now.
  The majority states that ``the requirement that training be legal in 
character will not prevent the selection of any other qualified 
individual whose experience and/or education is of a nature to qualify 
him or her for service,'' that it is not necessary; however, it is put 
in. And the question is, Why?
  In other words, the addition of the word ``legal'' does not restrict 
the President to only appointing those with legal training. The 
President may still appoint individuals exclusively on the basis of 
their experience or education even if they do not have legal training. 
The effect then of adding the word ``legal'' as a modifier of 
``training'' is only to limit the kind of training that the President 
may consider. This, of course, makes no sense whatsoever.
  Current law, which does not preclude the President from considering 
legal training or even legal education among other types of training or 
education, seems preferable to H.R. 2729, which arbitrarily links the 
kind of training the President may consider.
  Health and safety experts who may not have legal training, but may 
nevertheless be very knowledgeable about the Occupational Safety and 
Health Act, and agency and commission procedures may be unfairly and 
unwisely excluded from consideration for the position of the commission 
since people would question that it must be important if the term legal 
now is put into the bill, and, therefore, they would not put it in and 
therefore ignore it. I think that it has taken a wrong turn. I do not 
think it is necessary.
  I believe that the commission and workers' health and safety would 
suffer from such an arbitrary exclusion of nonlawyer talent and 
expertise.
  Another point brought up by the movers of this bill is that this 
bill, in my opinion, does not improve the efficiency of the commission 
as the proponents said it does because there is an argument that if 
there is one vacancy, then there is no decision because there is a tie. 
My fellow colleagues on the other side have recommended we add two 
people. Now what happens if one person is still absent? One and one is 
a tie if we only have two. With five, two and two is a tie if one is 
vacant. So if one is vacant under three, I am still trying to see what 
the difference is if there is one vacant under five.
  One difference is that taxpayers certainly would have to be paying 
more money because we would have more people to tend with, we would 
have more folks, and we are once again making bigger government. We are 
just expanding, which, once again, confuses

[[Page 9971]]

me because I have always been told that the other side wanted to reduce 
the size of government.
  So I would just like to certainly urge the defeat of this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  I want to sincerely and honestly thank the gentleman from New Jersey 
(Mr. Payne) for staying on the subject matter. We are indeed dealing 
with this bill. He and I may not agree, but at least we are having a 
discussion about the bill, and there may be just a couple of things 
that I want to make sure we have clear.

                              {time}  1400

  The gentleman indicated that should the President make an 
appointment, that that could be forever. That is simply not true. It is 
365 days. The bill clearly states that. If the President makes an 
appointment, it is for 365 days, not forever.
  Secondly, the word ``legal,'' that is an interesting thing. I tended 
to not want to do that too. I understand that. But the problem is, 
OSHRC is an adjudicative agency, and appeals from OSHRC go straight to 
the U.S. Court of Appeals. That strongly indicates, perhaps, some need 
for legal training, and this training could be a very useful tool for a 
member of this commission in light of the role that they play before it 
goes to the Court of Appeals.
  Secondly, I am very concerned that the courts have been giving 
deference to the plaintiff. The plaintiff in this case is OSHA. The 
court should be the review commission. The courts have been giving 
deference to the plaintiff, rather than the court, and perhaps this 
will stop some of this.
  In terms of efficiency and going from three members to five and the 
gentleman's indication that he is really against growing government, 
Congress has a very difficult time saying, you know, this is not 
working. We need to do something about this. This agency is not 
efficient. This agency is not getting done what Congress asked it to 
do.
  I pointed out earlier that this agency has almost been out of work 
half of the time since 1970. What could possibly be done to make it 
much more inefficient than that? For some 20 percent of the agency's 
history, it has not had a statutory working quorum in place, and 
despite otherwise fully staffed people in the agency, they could not 
act. That is wasteful and that is inefficient.
  Will five do better than three? Let us pray, is all I can tell you. 
It certainly has worked better for MSHA, and we hope that it will for 
OSHRC.
  Mr. Speaker, I reserve the balance of my time.
  Mr. PAYNE. Mr. Speaker, I yield 3 minutes to the gentlewoman from 
California (Ms. Woolsey), the ranking member of the Subcommittee on 
Education Reform of the Committee on Education and the Workforce.
  Ms. WOOLSEY. Mr. Speaker, I rise in opposition to H.R. 2729 because 
our workers deserve to know that their interests will be represented on 
the Occupational Safety and Health Review Commission and they need to 
know this will be an unbiased judgment.
  But first, let me be clear that these four bills we are talking about 
now are not a worry to any of us up here when we are looking at the 
employers who actually take care of their workers, the employers who 
know that workers have families and they are very concerned when they 
put their policies for safety and health in place. They are concerned 
about these families. They are concerned about these workers.
  But those are not our worries. Our worry is about the employer that 
does not do that.
  This legislation, I believe, will threaten one of the only hopes a 
family has for justice when a loved one is harmed at work. By 
increasing the membership of the commission from three to five, the 
administration could play politics with the commission with anti-
employee-safety employees and requiring quorums for a meeting, which 
could delay a decision indefinitely, ultimately making good decision-
making almost impossible through the inefficiency of gathering a group. 
If you cannot gather a group of three, how will you gather a group of 
five?
  Since Bush took office, it has been clear that he intends to use OSHA 
to protect big business rather than worker safety. First, he signed 
legislation overturning workplace safety rules to prevent ergonomic 
standards. Then he advocated budget cuts for job safety agencies such 
as OSHA and NIOSH. He went even further by suspending 23 important job 
safety regulations.
  The list goes on and on, and it is my opinion that this legislation 
is just another way for the anti-OSHA weakening that the administration 
is hoping for.
  Employees need to know they are considered to be as important as 
business interests. They deserve to know that they matter as much as 
the bottom line.
  Mr. Speaker, this legislation is not what workers need or what 
workers want. They want to know that their voice will be represented on 
the commission; they want to know that their grievances will be taken 
seriously and handled efficiently, and for that very reason, I urge my 
colleagues to oppose H.R. 2729.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I need to remind everybody that this hour is devoted to 
H.R. 2729, that it is about the Occupational Safety and Health Review 
Commission Efficiency Act. That is exactly what we are talking about.
  I want to remind everyone that a President, a President of either 
party, is going to appoint somebody to the commission that they agree 
with. That makes sense, whether it be President Clinton or President 
Bush. But all of these confirmations have to be confirmed in the 
Senate, so there is a check and a balance on it no matter which party 
is in the White House.
  The comment earlier about President Bush is more concerned about big 
business than worker safety , I would simply say this bill is about 
small business. It has not got anything to do with big business. It is 
about helping small business.
  To simply say, well, this is not what workers want, is very 
presumptive. There are 92 percent of the population out there that are 
working families who own businesses, who work every day, and they do 
want some relief in the regulatory element, particularly, particularly, 
when the setup at OSHA is so unfair and the deck is stacked against 
them.
  So I will tell you that a lot of small businesses and a lot of 
working families do want this legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. PAYNE. Mr. Speaker, I yield 3 minutes to the gentleman from New 
Jersey (Mr. Andrews), the ranking member on the Subcommittee on 
Employer-Employee Relations of the Committee on Education and the 
Workforce, who does an outstanding job in that capacity.
  Mr. ANDREWS. Mr. Speaker, I thank my friend from New Jersey for his 
generous compliment and for yielding me time.
  Mr. Speaker, I very much appreciate the motives of my friend from 
Georgia who brought this legislation to the floor. I know he does 
everything he does out of goodness of spirit and intention, and my 
remarks are not meant to be critical of his intention. I do oppose his 
bill, however, for three important reasons.
  The first is the bill is reminiscent, to me, of American history from 
the 1930s, when President Franklin Roosevelt was unhappy with some of 
the results he was getting from the U.S. Supreme Court, so he decided 
to try to change the number of people on the U.S. Supreme Court. The 
history books called this a ``court-packing'' scheme.
  I have to wonder if what this legislation is really about is about 
changing some of the results on this commission by changing the number 
of commissioners. I have heard the concerns about quorums. I think that 
is something that is a problem that could be cited in a number of 
different Federal agencies.
  I would say to my friends on the other side, Mr. Speaker, if you want 
to

[[Page 9972]]

change the substance of what the commission is doing, then change the 
statute. Bring it to this floor and let us have an open and fair 
debate. But changing the number of commissioners, I think is an 
inappropriate way to do that.
  The second concern that I have about the emphasis, as my friend, the 
gentleman from New Jersey (Mr. Payne) talked about, on people with 
legal training serving on this commission, I actually think that the 
President of either party ought to have the broadest discretion to 
determine what is a suitable background for service on this commission.
  I would raise a question as to this point. Since many people who are 
active in the labor movement do not have a legal background, I only 
have to wonder if one of the ideas behind this provision is to make it 
more difficult for a President to appoint a labor leader to this 
commission, which would be unfortunate.
  The third reason I oppose this, frankly, goes to the relatively 
narrow nature of this bill at a time when there are so many other major 
problems the country is facing. The country is embroiled in a very 
serious policy problem. I know a lot of tomorrow is going to be devoted 
to that debate. I am not sure we are going to have enough time for all 
of the Members to come to this floor and express their concerns about 
what is happening in the Middle East to our country right now.
  There are 45 million Americans without health insurance. We had a 
bill on the floor last week that purported to speak to that. There are 
a lot of other ideas we could be debating on this floor that we are 
not.
  Hundreds of thousands of Americans have seen their unemployment 
insurance expire in the last few months, and we have yet to see brought 
to the floor a bill that would give us a chance to debate and vote on 
the extension of unemployment benefits.
  I think when there are such immense questions facing the country, to 
be taking up the time of the House on the very narrow question of 
whether there should be five members on this commission or three is an 
unfortunate allocation of time.
  Mr. Speaker, I would urge opposition to the bill.
  Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, first, I would like to say to the gentleman from New 
Jersey (Mr. Andrews) that I have great admiration for him, that I 
always listen to him very carefully, and when he speaks, it is usually 
well thought out and there is some wisdom behind it. I appreciate that.
  I do not necessarily agree with his remarks, but I am thankful he 
stayed on the subject, generally speaking, of the bill that is before 
us. I suppose actually we could sit down and probably have some long 
nights of discussion as to whether there should be three members, four 
members, five members. But both of us know that the commission is 
simply not working.
  My suggestion is to vote for this bill and let us give a chance for 
something else to work, particularly when we know that the commission 
is working pretty well over at MSHA.
  I do not know anything sinister about the appointments by the 
President. It is pretty simple. Frankly, what we need to do is have 
this commission operate. You cannot operate if it is going to take 8 
years producing its findings, and that happens occasionally simply 
because there is no one there that can get confirmed in the Senate. We 
need to give Democrat or Republican Presidents an opportunity to put 
somebody in.
  Mr. ANDREWS. Mr. Speaker, will the gentleman yield?
  Mr. NORWOOD. I yield to the gentleman from New Jersey.
  Mr. ANDREWS. Mr. Speaker, I appreciate the gentleman's kind remarks. 
I did want to make one follow-up point about the legal requirement to 
be appointed.
  My understanding is that to be a commissioner on the Securities and 
Exchange Commission, which certainly involves tremendous issues of 
adjudication, you do not need to have, necessarily, a legal background 
to do that. I would just ask the gentleman to reconsider that important 
point, that directing any President to appoint a person only with a 
legal background here, I think, is a serious mistake that we did not 
make on the Securities and Exchange Commission.
  Mr. NORWOOD. Mr. Speaker, reclaiming my time, as the gentleman knows, 
the legal training simply is not the only criteria. There are other 
criteria, such as education and experience, and I do not necessarily 
think that it has to be a lawyer.
  Speaking of the AFL-CIO, they have as many lawyers in this town as 
anybody in Washington. I am not worried about them not getting somebody 
on the commission.
  We have probably said enough. It is time to vote.
  Mr. Speaker, I reserve the balance of my time.
  Mr. PAYNE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I would indicate that the gentleman, putting this 
``legal'' terminology in here, I hear him passionately argue this bill 
and bring his points up. If the new appointing authorities would look 
at him, he would probably not be one who would be considered because he 
is medical and not legal. I think that he would probably serve well on 
that commission, but his legislation would probably discriminate 
against him.
  Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Texas (Mr. 
Hinojosa)
  Mr. HINOJOSA. Mr. Speaker, I rise in opposition to H.R. 2729 and the 
other OSHA bills under consideration today.
  Let us not fool ourselves. Today, we are considering legislation that 
will weaken the enforcement of our Occupational Safety and Health laws. 
The bills before us will delay the abatement of unsafe working 
conditions, weaken the Secretary of Labor's authority to regulate 
workplace safety and discourage the filing of complaints for unsafe 
working conditions.

                              {time}  1415

  A safe working environment should be the right of every worker. 
Sadly, in the United States of America, the world's lone superpower, 
the wealthiest Nation on the planet, it is not. The workplace is 
particularly dangerous for the Hispanic workers.
  The Associated Press recently reported that Mexican-born workers are 
more likely to die on the job than any other group, and the disparity 
is increasing. Mexican migrants take the most dangerous jobs. Many of 
them are afforded no safety equipment and no training. They are killed 
in the fields, or they fall from construction sites.
  Listen to these staggering statistics. Mexican workers represent one 
in 24 workers in the United States and are victims of one in 14 
workplace deaths.
  Training and workplace safety must be a part of our workforce 
development. Employers must be held accountable for meeting basic 
occupational health and safety standards. No one should lose a husband, 
a wife, a mother, a father, a son or a daughter because of a lack of 
training or safety equipment. Workers are not disposable. Yet when OSHA 
fails to seek criminal prosecution for 93 percent of the companies that 
have willfully and flagrantly violated workplace safety laws at the 
cost of workers' lives, that is the message that is sent.
  We have a responsibility to send a different message. Our workers are 
a firm's most valuable resource, and that should be our bottom line. 
Unfortunately, today we will not send this message. Today some of the 
majority in the House will vote to weaken workplace safety without a 
thought or concern for those whose lives are at risk. I urge my 
colleagues to oppose H.R. 2729. In fact, it seems to me we should 
oppose all four OSHA bills.
  Mr. BOEHNER. Mr. Speaker, I reserve the balance of my time.
  Mr. PAYNE. Mr. Speaker, I yield the balance of my time to the 
gentleman from New York (Mr. Owens), the ranking member of the 
Subcommittee on Workforce Protections, who has done an outstanding job 
for working people.
  Mr. OWENS. Mr. Speaker, I rise to close for the opposition on H.R. 
2729.

[[Page 9973]]

  As I stated at the outset, neither H.R. 2729 nor any other of these 
four bills before us addresses the important health and safety concerns 
of American working men and women. In essence, H.R. 2729 gives us the 
worst of both worlds, a bigger government bureaucracy designed to 
accomplish less on behalf of the American worker. Moreover, this bill 
would mandate legal training as a qualification for appointment to the 
commission. This diminishes what ought to be a primary qualification as 
a commissioner and that is expertise in the field of occupational 
safety and health.
  Having stated these clear reasons for opposition to this bill, which 
I urge my colleagues to follow, I would like to turn my attention once 
more to the urgent concern about the safety of American workers. That 
concern is over the protection of workers' lives on the job. At 
present, OSHA does little more than slap the wrists of employers that 
are egregious safety offenders. As the New York Times noted in its 
compelling series on worker deaths, OSHA has a 20-year track record of 
failing to seek criminal prosecution in a staggering 93 percent of 
cases they investigated where willful and flagrant safety violations by 
employers killed workers.
  And after you institute this proposal for H.R. 2729, it is just one 
more little reason why they would have less vigor in prosecuting 
anybody.
  Congress has an important role to play in holding both OSHA and 
unscrupulous employers accountable. One problem is that under the 
current statute, OSHA can only issue a misdemeanor penalty for an 
employer who has willfully caused the death of a worker. A misdemeanor 
has no deterrent value whatsoever. If you harass a wild burro on 
Federal lands, you face a stiffer penalty than if you kill an American 
worker. What signal does this send to a small number of unscrupulous 
employers who actually build up a history of willfully causing worker 
deaths? Are we saying to these wrongdoers, do not worry about 
protecting the lives of your workers because Congress cares more about 
wild burros than about the men and women in your employ? Pestering a 
wild burro in a national park can send you to prison for an entire 
year, but killing a worker only lands you there for 6 months.
  More importantly, what signal does that send to grieving family 
members who are left behind? You cannot receive any justice because 
Congress does not have a fundamental respect for the lives of your 
loved ones.
  Along with Senator Jon Corzine, I have introduced a bill to make 
killing a worker a felony offense. I tried to get this bill included in 
one of these four bills because it is germane, in my opinion; but it 
was ruled out of order. Rather than a radical departure from current 
law, this bill is just a moderate adjustment that is long overdue. H.R. 
4270 and S. 1272 correct a glaring oversight in Federal policy, and I 
will describe it in more detail later on.
  Mr. BOEHNER. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, the bill before us, H.R. 2729, makes two very small 
changes in the OSHA law. One, it says that the OSHA Occupational Safety 
and Health Review Commission panel be expanded from three to five 
members. We have gone through the various reasons why that is 
important. We believe that having virtually 8 years without a quorum 
and these cases languishing there for some time are really unfair to 
the employers and to the agency. And by expanding the commission from 
three to five members, we believe we will speed up the efficiency of 
that review commission.
  The second issue in the bill outlines the type of background of 
people who belong on this review commission. These are commonsense 
bills that we believe will help worker safety, help improve the 
cooperation between OSHA and the employer community. Again, commonsense 
bills that deserve our support.
  Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 2729, the 
Occupational Safety and Health Review Commission Efficiency Act. The 
bill expands the size of the Occupational Safety and Health Review 
Commission, which hears disputes between OSHA and employers, from three 
to five members, and permits the President to extend the term of a 
commission member until the Senate confirms a successor.
  This is a transparent effort to stack the Commission with two new 
members appointed by the Bush administration. There has been no 
demonstrated need to increase the Commission from three to five 
members. The Commission has had three members since it was established 
in 1970.
  Proponents of this bill argue that the Mine Safety and Health Review 
Commission has five members. The responsibilities of the Occupational 
Safety and Health Review Commission responsibilities, however, are not 
as broad as those of the Mine Safety and Health Review Commission. For 
example, unlike the mine safety panel, the Occupational Safety and 
Health Act Commission does not have the responsibility to resolve 
whistle-blower complaints.
  Further, since the bill does not change the statutory definition that 
two members constitute a quorum, expanding the membership to five would 
mean that a minority of the commission would constitute a quorum--
allowing the two members appointed by the Bush administration to make 
unilateral decisions.
  Finally, the bill permits members to continue to serve until a new 
member is confirmed, which may result in an individual serving for 
years without being subject to reappointment and confirmation, 
encourages filibusters, and diminishes the incentive to develop 
consensus between labor and management and Republicans and Democrats 
with regard to Commission appointments.
  Mr. Speaker, for all these reasons I must ask my colleagues to oppose 
this bill. I hope that in the future the majority leadership will help 
America's workers with legislation that will increase the minimum wage 
and protecting overtime rights and not undermine those protections.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Rehberg). All time for debate has 
expired.
  Pursuant to House Resolution 645, the previous question is ordered on 
the bill, as amended.
  The question is on engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read a third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. PAYNE. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion are postponed.

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