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Full text of "Comprehensive Occupational Safety and Health Reform Act : hearings of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, second session, on S. 575, to amend the Occupational Safety and Health Act of 1970 to improve the provisions of such Act with respect to the health and safety of employees, and for other purposes and related bill, February 9 and March 22, 1994"

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\\ S. Hrg. 103-638 

COMPREHENSIVE OCCUPATIONAL SAFETY AND 
HEALTH REFORM ACT 



Y 4.L 11/4: S. HRG. 103-638 

ConpreheDsive Occupationil Safety i... M"/^ Q 

OF THE 

COMMITTEE ON 
LABOR AND HUMAN RESOURCES 
. UNITED STATES SENATE 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

S. 575 

TO AMEND THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 TO 
IMPROVE THE PROVISIONS OF SUCH ACT WITH RESPECT TO THE 
HEALTH AND SAFETY OF EMPLOYEES, AND FOR OTHER PURPOSES 
AND RELATED BILL 



FEBRUARY 9 AND MARCH 22, 1994 



Printed for the use of the Committee on Labor and Human Resources 



■fL^^- 







FEB 2 1 






U.S. GOVERNMENT PRINTING OFFICE '*"**(r«»"*'4^ 



80-084 CC WASHINGTON : 1994 



For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office. Washington, DC 20402 
ISBN 0-16-046289-4 



7 

^ S. Hrg. 103-638 

COMPREHENSIVE OCCUPATIONAL SAFETY AND 
HEALTH REFORM ACT 



Y 4,L 1 1/4: B. HRG. 103-638 

Conprehensive Dccupationil Safety a... M*/^ Q 

OF THE 

COMMITTEE ON 
LABOR AND HUMAN RESOURCES 
. UNITED STATES SENATE 

ONE HUNDRED THIRD CONGRESS 
SECOND SESSION 

ON 

S. 575 

TO AMEND THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 TO 
IMPROVE THE PROVISIONS OF SUCH ACT WITH RESPECT TO THE 
HEALTH AND SAFETY OF EMPLOYEES, AND FOR OTHER PURPOSES 
AND RELATED BILL 



FEBRUARY 9 AND MARCH 22, 1994 



Printed for the use of the Committee on Labor and Human Resources 




FF8 2 1 fpss 





U.S. GOVERNMENT PRINTING OFFICE ''^'^^^Hrr-^f-^.: 

80-084 CC WASHINGTON : 1994 



For sale by the U.S. Government Printing OlTice 
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-046289-4 



COMMITTEE ON LABOR AND HUMAN RESOURCES 

EDWARD M. KENNEDY, MassachusettB, Chairman 
CLAIBORNE PELL. Rhode Island NANCY LANDON KASSEBAUM, Kansas 

HOWARD M. METZENBAUM, Ohio JAMES M. JEFFORDS, Vermont 

CHRISTOPHER J. DODD, Connecticut DAN COATS, Indiana 

PAUL SIMON, Illinois JUDD GREGG, New Hampshire 

TOM HARKIN. Iowa STROM THURMOND, South Carolina 

BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah 

JEFF BINGAMAN. New Mexico DAVE DURENBERGER, Minnesota 

PAUL D. WELLSTONE, Minnesota 
HARRIS WOFFORD, Pennsylvania 

Nick LITTLEFIELD, Staff Director and Chief Counsel 
Susan K. HatTAN, Minority Staff Director 

(ID 



CONTENTS 



STATEMENTS 
Wednesday, February 9, 1994 

Page 

Jeffords, Hon. James M., a U.S. Senator from the State of Vermont, prepared 

statement 9 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement 11 

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut, 

prepared statement 13 

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, prepared state- 
ment 14 

Reich, Hon. Robert, Secretary, U.S. Department of Labor, Washington, DC, 
accompanied by Joe Dear, Assistant Secretary for Occupational Safety and 

Health 15 

Prepared statement 16 

Tuesday, March 22, 1994 

Fawell, Hon. Harris W., a Representative in Congress from the State of 
Illinois; Eamonn McGeady, president, Martin G. Imbach, Inc., Baltimore, 
MD, on behalf of the National Federation of Independent Business; and 
James Holt, senior economic and vice president for research. Employment 
Policy Foundation, Washington, DC, accompanied by Alan E. Simon, econo- 
mist 43 

Prepared statements of: 

Mr. McGeady 57 

Mr. Holt 63 

National Federation of Independent Business, prepared statement 58 

Metzenbaum, Hon. Howard M., a U.S. Senator from the State of Ohio, pre- 
pared statement 48 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement 52 

McEntee, Gerald, Washington, DC, president, American Federation of State, 
County and Municipal Employees, accompanied by Ruth Ruttenberg, Ruth 
Ruttenberg and Associates; John B. Lennes, Jr., St. Paul, MN, commis- 
sioner. Department of Labor and Industry, State of Minnesota; Charles 
DeVaney, Mayor of Augusta, GA, on behalf of the National League of 
Cities; and John J. Sweeney, international president. Service Employees 
International Union, AFL-CIO, Washington, DC, accompanied by BiU 

Borweagen, safety and health director 74 

Prepared statements of: 

Mr. McEntee 77 

Mayor DeVaney 85 

Mr. Sweeney 87 

(in) 



ADMINISTRATION VIEWS ON THE 

COMPREHENSIVE OCCUPATIONAL SAFETY 

AND HEALTH REFORM ACT 



WEDNESDAY, FEBRUARY 9, 1994 

U.S. Senate, 
Committee on Labor and Human Resources, 

Washington, DC. 

The committee met, pursuant to notice, at 11:10 a.m., in room 
SD-430, Dirksen Senate Office Building, Senator Edward M. Ken- 
nedy (chairman of the committee) presiding. 

Present: Senators Kennedy, Pell, Metzenbaum, Simon, Binga- 
man, Wellstone, Kassebaum, Jeffords, Coats, Thurmond, and 
Hatch. 

Opening Statement of Senator Wellstone 

Senator Wellstone [presiding]. The Labor and Human Re- 
sources Committee will come to order. 

We will have today testimony from Secretary Robert Reich and 
Assistant Secretary Joe Dear on the Comprehensive Occupational 
Safety and Health Reform Act. We will start with opening state- 
ments from members of the committee, and then we will receive 
this very important testimony. 

Let me just say for my own part — and I will give my colleagues 
plenty of opportunity to comment — that I believe this testimony 
today, Mr. Secretary and Mr. Assistant Secretary, on this impor- 
tant bill is historically significant. I believe that the focus on occu- 
pational health and safety is critical to the lives of working people, 
but I also think it is critical to what you, Mr. Secretary, have been 
emphasizing and focusing on really from the very time you became 
Secretary of Labor, which is that we have to think of ways of bring- 
ing labor and management together, we have to think about co- 
operation, and we have to think about what are the key ingredients 
to economic performance for our Nation. 

Clearly, working people have higher morale, there is more pro- 
ductivity, and there is more commitment to economic performance 
when men and women in the workplace understand that we have 
made a commitment as a Government to provide them with a safe 
working environment. It strikes me that that is elementary and 
basic to our conception of justice and to the values that we live by 
as a Nation. 

So I believe that your strong testimony today in support of this 
historically significant piece of legislation is critically important. 

(1) 



I thank the two of you for being here on behalf of Chairman Ken- 
nedy, who will be here shortly, and I will now ask the ranking mi- 
nority member. Senator Kassebaum, if she wishes to make some 
remarks. 

Senator Kassebaum. 

Opening Statement of Senator Kassebaum 

Senator Kassebaum. I do. Thank you. Mr. Chairman. 

Mr. Secretaiy, it is a pleasure to welcome you back, and Assist- 
ant Secretary Dear. 

I see the Secretary smiling, because I can almost imagine that 
he probably knows what I will say. Given the fact we all care about 
health ana safety in the workplace, and that this is designed to be 
a reform of that effort, I would like to walk through why I indeed 
believe it is not a reform eflTort. The extensive mandates, the new 
criminal penalties, and the additional paperwork are really going 
to harm efforts to better address safety and health in the work- 
place rather than help. 

If I may, Mr. Secretary, just take the opportunity to go through 
a few points. The key question is really wnether this bill will help 
or hinder our effort to improve the safety. In my view, S. 575 takes 
the wrong approach. It mandates that employers with more than 
11 employees formulate lengthy written health and safety plans. 
This would mean, I am assuming, that every school would have to 
do so; this committee should have to do so as well. Congress should 
not be exempt from this legislation, but we would have to work on 
our own requirements here in this committee and, I suppose, in our 
own offices. 

In the legislation, they must also establish mandatory health and 
safety committees. In addition, the bill creates new criminal pen- 
alties for OSHA violations and expands already burdensome rec- 
ordkeeping requirements. 

Mr. Chairman, these mandates and the paperwork requirements 
serve little purpose other than to provide fertile ground for OSHA 
citations. 

Mr. Secretary, I am absolutely amazed when you go through the 
list of standards that OSHA issues citations for, because the failure 
to maintain a written program for "hazardous materials," which is 
broadly defined, including irritants, which can include such things 
as — not to mention names — but Ivory Liquid, tops the list of the 
OSHA citation list. 

So all of these mandates in the OSHA reform bill fall into very 
burdensome, uncertain categories. 

The Labor Department's own data show that under current law, 
the most frequently cited OSHA standards involve paperwork vio- 
lations. Incomplete written programs and failure to post OSHA- 
mandated notices really do not address the heart and core of the 
matter of health and safety in the workplace. We ought to consider 
using our limited enforcement resources more effectively to protect 
workers. We are missing the point, Mr. Secretary, and filling out 
more forms will not save more lives. 

Unfortunately, the committee's OSHA reform bill simply offers 
more of the same. There is no reinvention here. It seems to me we 
have an opportunity to work less in an adversarial relationship and 



more in a cooperative relationship in the workplace. When there 
are things that are wrong, we should work to redress those prob- 
lems, rather than offering a legislative solution with tons of paper- 
work. 

So I really feel that this is not the answer — I am sorry, Mr. 
Chairman. I know that Senator Metzenbaum cares a great deal 
about this, but I think what we all care about is finding a means 
to really make health and safety work better in the workplace. 

Thank you, Mr. Chairman. 

Opening Statement of Senator Metzenbaum 

Senator METZENBAUM [presiding]. Thank you very much, Senator 
Kassebaum. I think it is necessary that we work together on this 
subject. Let us reason together, and let us do something about it. 

I have been working on this subject for a long time, and I think 
having you here today. Secretary Reich, with Assistant Secretary 
Dear is very encouraging. 

Last year, I expressed concerns about the administration's atten- 
tion to job safety, and I am frankly pleased that you heard my con- 
cerns, and I am sure the concerns of others as well, and you re- 
sponded. By being here this morning, you are fulfilling the promise 
of change tne President brought with him to Washington. 

There is a loud and clear message to corporate America in your 
presence here: that we must do more to protect workers, because 
it is the right thing to do, and also because it is good for business. 

This morning, I would like to make an appeal to my Republican 
colleagues. The safety and health of American workers should not 
be a partisan issue. But some in the business community, frankly, 
would like to make it so. 

In 1992, the NAM told us that this bill "deals more with union 
organizing rights than with true safety issues." That is unadulter- 
ated hogwash. That is just not true. That comment is absurd, and 
it is an insult to thousands of American workers who lose their 
lives on the job each year. 

Let me show you something. Look at this computer printout. 
There are many names on each of these pages. This is a list of 
names of workers killed on the job in the last 3 months — just in 
the last 3 months. It is incredible. 

As a matter of fact, I think many of us saw the Wall Street Jour- 
nal the other day, the left-hand column on the front page, "Workers 
at Risk: Chance of Getting Hurt is Generally Far Higher at Small- 
er Companies. Firms may be preoccupied with staying in business, 
lack sufficient expertise." 

This is one of the most critical issues facing American workers. 
We have to work together to do something about it — not to figure 
out how much we penalize the employers, but to figure out how we 
can save lives, and if stronger penalties save lives, then that is 
what we ought to do. 

And frankly, as the Wall Street Journal Article indicated, the 
challenge is not as much with the larger employers, who do provide 
more safety protections, as it is with the smaller employers, who 
are less inclined to do so. And it is not a matter of wanting to pun- 
ish anybody. It is a question of wanting to save lives. 



In 1993, the NAM told us this bill would "transform the OSHA 
law into a punitive, criminal statute." That is jut not true. This bill 
would make modest and very necessary improvements in OSHA's 
criminal provisions, but they would remain the last resort for only 
the most egregious violators. Now, Senators Jeffords and Duren- 
berger voted for these very same changes in 1990, and I am sure 
they would differ strongly with the NAM characterization. 

So this bill is not about labor law reform, and it is not about 
criminalizing OSHA. In the last 3 years, I have held six hearings 
on this issue, and I have heard from many families about why we 
need OSHA reform. Let me tell you what it is about. 

It is about John Paumier, who was crushed to death by a foundry 
elevator that was accidentally activated when he was working in 
the shaft. A failsafe device could have been put on that elevator 
that would not have cost more than a few dollars, and he would 
be alive today. 

It is about Virginia Durand, whose hands were amputated by a 
stamping press that did not have a safety guard. I am sure you re- 
member when she came before our committee. 

It is about Bert Arce, who was killed with 22 others in a massive 
chemical explosion triggered by untrained contract workers. 

It is -about Linus Kreiner, who was buried alive when an 
unshored trench collapsed on top of him. These are real human 
beings who leave behind them families who hurt and cry and suf- 
fer. 

OSHA reform is about Homer Stull, who was asphyxiated with 
two coworkers while cleaning a blood vat in a National Beef meat 
packing plant in Liberal, KA. 

It is about 19-year-old John Dirksing, who fell 55 feet through 
an unprotected hole on a construction site. 

It is about Vidal Rodriguez, who suffered permanent brain dam- 
age from mercury poisoning because his employer never warned 
him of the damages. 

It is about Steven Eilar, who was crushed from the waist up by 
a 1,300-pound metal press afler the company disconnected safety 
monitors. 

It is about the Wall Street Journal article report of how Mario 
Barraza was sliced in half by a metal shearing machine. 

OSHA reform is about that computer printout that I just pointed 
to that hsts all of the workers killed in must the last three months. 
It is about telling the families of these workers, and thousands of 
families like them, that the Federal Government cares enough to 
get off our butts and do something to stop these tragedies. 

I would say to both my Republican and Democrat colleagues that 
OSHA reform is about saving lives and preventing unnecessary 
deaths and injuries. 

This morning, a coalition of over 50 groups, including the envi- 
ronmental community, labor unions, public health and consumer 
groups, and civil right leadership, announced the formation of a co- 
alition to pass OSHA reform. I hope we can work, Democrats and 
Republicans alike, to get the job done. 

I think the significance of this hearing is certainly confirmed by 
the presence of the Secretary of Labor and the Assistant Secretary. 

With that, Mr. Chairman, I will turn the hearing over to you. 



The Chairman. Senator Coats. 

Opening Statement of Senator Coats 

Senator Coats. Mr. Secretary, when I first heard some time ago 
that the committee was ^oing to undertake OSHA reform, I must 
admit my reaction was, it is about time that we reform this, be- 
cause I have been deluged with complaints in my office and visits 
from people from Indiana. I cannot visit a business in Indiana 
without virtually their first complaint being, "Can you do some- 
thing to get OSHA off our back, to get away from the minutiae and 
the multitude of forms that we have to fill out, the stupid require- 
ments that they are imposing on us." 

So I thought, finally, we are going to get to OSHA reform. But 
then, it was not long before my staff advised me that, no, OSHA 
reform is making this tougher, by not going after some of the 
things which are taking place within OSHA, that are causing what 
many feel to be an undue burden. 

I think all of us on this committee and everybody in Congress 
support the goal of OSHA, and that is to reduce the health and 
safety hazards that employees face. But somewhere along the line, 
that goal has gotten translated into an implementation procedure 
that has flooded business with regulations, with forms, with over- 
zealous inspectors who are not looking for ways to put a shut-off 
switch on an elevator, but are getting mto some of the most mean- 
ingless and small and minute details and imposing fines. 

The thing has become so bureaucratized and so flooded with 
forms and paperwork that it has really lost credibility in the mar- 
ketplace in my opinion, and in the opinion of the people that I rep- 
resent. 

You know, the President talks about simplification in the health 
care system. But I think the reason some of us are so skeptical 
about that goal is because we have seen what has happened with 
a relatively tiny agency, OSHA, and its overwhelming impact and 
negative impact, on American business, particularly small busi- 
ness. We have visions of the same thing happening in health care, 
only multiplied by 100 or by 1,000, because of the scope of health 
care business. 

When I visit plans and businesses in Indiana, not only do the 
employers complain, but the employees that I talk to on the line 
mock these regulations. You talk to some of the people on the line 
and they will say, you know, some of the stuff we have to do are 
the stupidest, most idiotic things that you can possibly imagine. As 
a result, the employees do not believe that many of the regulations 
are credible. 

Now, Senator Metzenbaum said he regrets that this has become 
a partisan issue, and that business wants to make it a partisan 
issue. Well, that would be a very dumb strategy for business, since 
the Democrats control the executive branch and the legislative 
branch; for them to make it a partisan issue is not going to accom- 
plish their goals. 

The businessmen and women who talk to me say the same thing 
to the Democrats who represent them. They say, "I do not care 
whose issue this is. Let us just be cognizant of the implications of 
all this." 



6 

Now, Senator Metzenbaum holds up a package of material and 
says, these are lives that should not have been lost, and maybe 
they should not have been, but for goodness sake, let us focus the 
efforts of OSHA on what it is really intended to do and not tie some 
of these companies down with the minutiae and the unbelievable 
effect that OSHA is having and the time that they waste on things 
that do not make that much difference, in my opinion. 

I will just give vou one or two examples. There is a company in 
my State that makes chalk. They have got to fill out these "MSDS" 
forms for the chalk that they make. So I thought, well, there must 
be some hazard in here, ana so forth and so on. I am iust holding 
up the forms here. But there has to be separate forms nlled out for 
white chalk, for yellow chalk, for blue chalk, and for orange chalks. 
Now, if they made 10 different colored chalks, they would have to 
fill out additional forms. They just sent me these four. 

The properties on each one are exactly the same; the squares 
they have to check and the numbers they have to put down are ex- 
actly the same. Now, shouldn't OSHA be spending time dealing 
with the kinds of illustrations and the kinds of cases that Senator 
Metzenbaum has cited, instead of spending all their time on this? 

Al Johnson is the president of a family-owned Handi-Mart in An- 
derson, IN. On December 5, 1990, one of his employees was held 
up at the Handi-Mart store. He cooperated with the robbers, but 
unfortunately, as is happening so much in our society today, they 
decided to shoot and kill him anyway. 

OSHA came in and fined Al Johnson, the president of Handi- 
Mart, because they said that he violated OSHA's general duty 
clause for failure to prevent a late night hold-up. 

Well, Al Johnson said, "The only way I can prevent a late night 
hold-up is not to be open late at night." That is just the nature of 
our culture and our society. 

OSHA then said, well, they imposed the fine so that they could 
help comfort people like Weaver's wife. Now, is OSHA in the busi- 
ness of comforting people? Do we impose liability on employers for 
acts committed by criminals who are not employed for OSHA? 

We came across another memo from the deputy commissioner of 
OSHA compliance to all OSHA division directors. He says: "The 
low average number of violations cited per inspection is a likely in- 
dicator that the quality of inspections performed is poor. The low 
average number of violations cited may be indicative and that fur- 
ther training in the identification of violations is needed." Maybe 
it is an indication that businesses are complying. I mean, that is 
the goal. The goal is not the number of violations cited. The goal 
is zero. What we want is our OSHA inspectors to come back to 
headquarters saying, "This company is in compliance," not to have 
a memo go out and say, "You are too low on your quotas. You must 
not be zealous enough." And that is what leads to this proliferation 
of paperwork and compliance regulations and everything else that 
our companies complain about. 

So my thought and my suggestion to you, Mr. Secretary, is to let 
us focus our enorts on the things that really make a difference, and 
let us get away from this effort that is undertaken by OSHA, by 
a lot of people who have never had business experience — they have 
no idea how a company works or does not work; they are young, 



zealous people who go in with grandiose ideas about bringing ideal- 
istic solutions to the workplace, and they do not even know how the 
workplace works — and if the employers and the employees give 
OSHA no credibility, then it is going to be counterproductive. 

So I hope that our efforts on reform can be focused in these areas 
and not simply in perpetuating what is already a system that has 
run amok with paperwork and regulations that really do not make 
a hoot of difference. 

Thank you, Mr. Chairman. 

The Chairman. Senator Pell. 

Senator Pell. I have no statement, Mr. Chairman. 

The Chairman. Senator Bingaman. 

Senator Bingaman. No statement, Mr. Chairman. 

The Chairman. Senator Hatch. 

Opening Statement of Senator Hatch 

Senator Hatch. Thank you, Mr. Chairman. 

Let me just start by welcoming the Secretary and the Assistant 
Secretary here today. We appreciate the efforts that you make, and 
we appreciate your desire to do what is right for workers in this 
society. There is no question in my mind that you have a g^eat de- 
sire to do that. I also believe you are doing some very good things 
down there as well. 

But let me start by saying that the goal of a safe and healthful 
workplace is not a Democrat versus Republican issue any more 
than it is an employer versus employee issue. We all agree that 
safety in American workplaces has to be a priority for all of us. 

Now, that does not mean that we cannot disagree on whether a 
particular approach to achieving that goal is meritorious. Unfortu- 
nately, when we cut through all the rhetoric, the Kennedy-Metzen- 
baum proposal to dramatically reform the Occupational Safety and 
Health Act I think is an empty promise. It is not likely to make 
workplaces healthier or safer, and worse, I think it will divert the 
expenditure of precious resources away fi-om the goal that it 
purports to achieve. 

It may be an exaggeration to say that the legislation would really 
result in a net job loss, although it may very well mean that em- 
ployers may be forced to lay on workers because of the enormous 
and costly regulatory burden they would face under this bill. These 
costs, I believe, would naturally result in fewer new hires. 

Moreover, this bill would mean full employment for lawyers and 
Federal bureaucrats. We are all used to that, are we not? That 
seems to be the major sport in America today, making sure that 
our lawyers are able to survive. And frankly, this bill is going to 
add to that like never before. It is just what this country needs, I 
am sure — more lawyers and bureaucrats, and fewer workers pro- 
ducing goods and services and helping our society. 

The Occupational Safety and Health Act was signed into law by 
President Nixon more than 20 years ago. That law, which emerged 
from a strong bipartisan effort to improve the safety and health of 
our Nation's private sector workplaces, was premised on the belief 
that the Federal Government could assist employers and employees 
in their efforts to achieve a safer work environment. 



8 

There have been lots of criticisms of OSHA through the years, 
and of course, we have seen both sides. We saw just a while back 
a small business woman from the Midwest in a hearing, and she 
brought in an enormous stack of Federal Government paperwork 
under which she was just, plain buried. I do not want to see that 
happen again. 

This legislation repudiates the purposes of OSHA and substitutes 
a policy that is, in my opinion, solely punitive. It relies on more 
regulations and larger penalties. It says that putting managers and 
supervisors in jail will send the right message; that a bigger Fed- 
eral Government and more rules and regulations will work better 
than genuine employer/employee cooperative efforts work today; 
that effective and meaningful cooperation can somehow be dictated 
by legislative language; that saddling already overburdened small 
businesses with more costly administrative paperwork will some- 
how translate into safer workplaces; and that adding what one 
study estimates will be more than $50 bilhon annually to the cost 
of doing business in the United States is a worthwhile price to pay 
for what some have convincingly testified will do little to improve 
safety and health practices. 

Two y.ears ago, the Reverend Jesse Jackson testified before our 
committee in favor of this legislation. He stated that: 'The answer 
to improved workplace safety and health is not more bureaucracy, 
but more democracy." Now, that is a point upon which the Rev- 
erend Jackson and I are in full agreement. 

Employers working together with their employees have been ef- 
fective in enhancing workplace safety and health as well as improv- 
ing productivity. Today there is a real effort to bring them together 
and to voluntarily work together. But I would urge Reverend Jack- 
son to take another look at the details of this legislation. What it 
does is lock in rigid and inflexible joint committees, which in effect 
transfers bureaucracy from the Government to the workplace. 

I personally believe there are better ways to do it, and I am com- 
mitted to working with the distinguished chairman of the commit- 
tee and the distinguished chairman of the subcommittee on labor 
in trying to come up with ways to solve this problem, and certainly 
with the distinguished Secretary of Labor, whom I know is well- 
motivated here and wants to do what is in the best interest of all 
those concerned. 

I am worried about this bill because I think it is going to lead 
to a massive fight over something that we ought to be getting to- 
gether on and resolving. And I pledge myself to work with you, Mr. 
Secretary and Mr. Chairman, and my subcommittee chairman as 
well, and of course, our ranking member, who I think has added 
to this discussion here this morning with her cogent comments, on 
what really needs to be done. I will pledge myself to do that. 

Thank you for coming, Mr. Secretary, and I appreciate your pres- 
ence as well, Mr. Dear. 

Thank you, Mr. Chairman. 

The Chairman. Thank you. 

Senator Jeffords. 



Opening Statement of Senator Jeffords 

Senator Jeffords. Mr. Chairman, I will iust ask that my state- 
ment be made a part of the record. I will follow this legislation 
with deep interest. I, of course, was ranking on the subcommittee 
until this past year, so I will take a deep interest and hope to work 
to find the solutions to compromise so that we can come up with 
a good bill. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Jeffords follows:] 

Prepared Statement of Senator Jeffords 

Good morning ladies and gentlemen. It's good to be here with you 
today for the second hearing of this committee on the need for re- 
form of the 1970 Occupational Safety and Health Act. 

First, I believe that this it not an issue on which there is wide 
disagreement on the basic objective of enhancing work-place safety 
and nealth. Nor does partisan politics play a large role in determin- 
ing one's views on the subject. Members on both sides of the aisle 
want to see workplace illness, injury and death reduced and elimi- 
nated. Not only is promoting safe and healthy workplaces in the 
best interest of workers and employers, but its also necessary for 
the welfare of the nation. No one disputes this, and legislation in 
pursuit of this goal could enjoy wide support. 

When OSHA was enacted in 1970 it raised hopes that the high 
rates of death and injury in the American workplace would be 
greatly reduced. To a large extent, the Act has been effective in 
achieving this goal. Most jobs are now safer and more healthy than 
they've ever been. However, no one imagines that the job has been 
completed. Each year, far too many Americans are still touched by 
the tragedy of death or injury in the workplace. Many of you here 
today may have had that experience. 

In introducing their OSHA reform bills in the 103rd Congress 
Representative Ford and Senator Metzenbaum cited the still dis- 
turbing numbers which let us know there is more work to be done 
in this area. 

— 10,000 workers are killed on the job every year, one for every 
hour of the day; 

— 6,700 workplace injuries take place every day, as many as 1.7 
million per year; and 

— 390,000 new occupational disease cases are diagnosed each 
year. 

These are not "acceptable losses." Even a few deaths and injuries 
are too many. There are no acceptable losses, and I am like most 
members of Congress in supporting efforts to reduce them as much 
as possible. As I said, the issue has never been the objective, but 
rather the means to that objective. 

Finally, the OSH Act has not been significantly amended since 
its enactment in 1970. There is no question but that changes have 
occurred in our nation which impact how we should look at and en- 
force workplace safety and health. It is only reasonable to reflect 
on those changes in the basic federal law addressing this issue. 

Although I have not been a sponsor of this measure, I share with 
the sponsors a strong commitment to workplace safety and health 



10 

and the legislation necessary to protect it. I have also long advo- 
cated the application of Federal employment laws to all the em- 
ployees of the government, including those who work for the Con- 
gress. Thus, I do have a natural affinity for the goals of this legis- 
lation. 

To the extent that I have reservations about the bill, they are 
based on the specific provisions and mechanisms chosen to imple- 
ment reform, and not because of any doubt on my part that some 
types of reform are needed. I continue to have concerns about the 
costs that will be placed on employers, particularly small employ- 
ers, and the amoimt of safety and health those costs will buy. 

I am not yet convinced that a rigidly mandated structure of pro- 
grams and committees, to the exclusion' of all other voluntarily 
reached solutions, is the best way to go in all instances. Small em- 
ployers in Vermont have contacted me on this specific issue. They 
are worried that they will be driven away from the voluntary en- 
forcement programs which have characterized Vermont OSHA s ap- 
proach to the issue. Perhaps we can avoid these issues by building 
in some flexibility and incentives for employer cooperation to 
achieve our objectives of safer and more healthful workplaces. 

I am optimistic that these concerns can be worked out, and I will 
continue to work with my colleagues toward that end. I look for- 
ward to the testimony today and to our future efforts on behalf of 
workplace health and safety. 

The Chairman. Senator Thurmond. 

Opening Statement of Senator Thurmond 

Senator Thurmond. Thank you, Mr. Chairman. 

Mr. Chairman, it is a pleasure to be here this morning to receive 
testimony on S. 575, The Comprehensive Occupational Safety and 
Health Reform Act. I would like to join my colleagues in welcoming 
the able Secretary of Labor, Dr. Robert Reich. 

Dr. Reich, I want to commend you for your deep interest in veter- 
ans. I had the occasion to be in your Department recently, as you 
know, and we appreciate all you are doing to help our veterans. 

The protection of the American worker is an important concern 
for this committee and the Congress. There are problems with 
workplace health and safety in some companies. However, I believe 
it is important to avoid — and I repeat, to avoid — more Federal 
mandates, more bureaucracy, and more litigation. This is particu- 
larly important given the many overly burdensome regulations al- 
ready imposed on small businesses. 

The Employment Policv Foundation has estimated that this leg- 
islation would cost over $60 billion. The recordkeeping and report- 
ing requirements as well as the creation of health and safety com- 
mittees, and programs and training, will cost the private sector ap- 
proximately $42 billion. 

I would like to point out this blue book right here as an example 
of regulatory burdens faced by the Hans Rosenow Roofing Com- 
pany of Chicago. This book is a compilation of the various Material 
Data Safety Sheet records, which must be kept by the Hans 
Rosenow Roofing Company at a cost of approximately $75,000. This 
is a medium-size construction firm which employs approximately 



11 

60 workers, and they have never once had a request to use the Ma- 
terial Safety Data Sheet records. We must question whether this 
type of regulatory burden has significantly improved the health 
and safety of Hans Rosenow Roofing Company. 

Mr. Chairman, the goal of eliminating willful violations of health 
and safety standards is greatly desired. However, we must question 
whether imposing harsh new criminal penalties for willful viola- 
tions of any provision of OSHA, including the health and safety 
plans and committees, is the best way to achieve this end. 

Under this legislation, many cases that are currently resolved as 
civil matters could become criminal actions, which might be con- 
tested, thus causing a delay in the abatement of serious workplace 
hazards. A rise in the amount of criminal investigations may result 
from a demand of search warrants and criminal inspections. Under 
current law, many employers voluntarily consent to warrantless in- 
spections. This will only contribute to the increase in litigation ex- 
penses, currently estimated at approximately $8.5 billion under S. 
575. 

Very few statutes can affect the lives of Americans as much as 
the Occupational Safety and Health Act will. It regulates almost 
every worker and business in the country. We must ensure that 
any changes to OSHA are protective of the safety of our workers 
without damaging our economy. 

For this reason, I believe that we must be cautious in any action 
we take. 

Again, Mr. Chairman, it is a pleasure to be here, and I look for- 
ward to hearing from our witnesses. 

Mr. Secretary, would you please consider carefully legislation in 
every aspect along the lines I have mentioned? 

Thank you, Mr. Chairman. 

Opening Statement of Senator Kennedy 

The Chairman. Thank you very much. 

The hour is late, and I will be very brief. I apologize to the Sec- 
retary for being tardy. We had a meeting with some Massachusetts 
ratepayers with regard to the escalation of water rates, and it was 
impossible to leave that meeting in a comfortable way. So I appre- 
ciate my colleagues going ahead, and I will put my statement in 
the record along with that of Senator Dodd and Senator Harkin. 

[The prepared statements of Senators Kennedy, Dodd, and Har- 
kin follow:] 

Prepared Statement of Senator Kennedy 

This hearing is a special one this morning. In many ways, it is 
the culmination of years of effort and concern over the quality 
worker health and safety in this country. 

In 1988, the committee conducted a series of oversight hearings 
that highlighted continuing safety and health problems in the 
workplace. Based on what we learned from those hearings and 
from numerous reports and studies that have identified weak- 
nesses in current law, we began to work with members of the com- 
mittee to draft legislation to reform the Act. 



12 

Since introduction of that legislation in 1991, Senator Metzen- 
baum and I have held a series of hearings and received testimony 
and comments from many witnesses, from plant workers and 
former OSHA administrators to employer safety representatives 
and public health experts. 

During most of those years, our efforts to address these serious 
problems were hampered by a lack of interest on the part of the 
previous administration. 

That is why it is gratifying that Secretary of Labor Robert Reich 
is here this morning to express the support of the Clinton adminis- 
tration for prompt legislative action on OSHA reform. At long last, 
we are able to work cooperatively with an administration that ac- 
knowledges that gravity of the unsafe and unhealthy working con- 
ditions that affect so many workers. We are ready to take construc- 
tive steps to fulfill the promise of a safe and healthy workplace for 
all U.S. workers. That was the promise of OSHA when it was en- 
acted in 1970, and a quarter century later, it is time to fulfill it. 

The conditions cry out for reform. In Massachusetts, almost two 
workers each week are killed on their jobs, and 200 workers each 
day are injured severely enough to lose a week or more of work. 
One hundred workers each month are diagnosed with cancer relat- 
ed to their jobs. 

The stories of injury are appalling. In January 1994, a 38 year- 
old concrete-processing worker in Amesbury was operating a "hop- 
per" machine which processes small gravel. Without any safety pro- 
gram mechanism to shut off the machine while brief maintenance 
was being performed, the conveyor started while the worker was 
still in the hopper and he was asphyxiated in the gravel. 

In the last 3 months, at least 4 construction workers in Massa- 
chusetts have fallen to their death. In all of these cases, manage- 
ment had not provided the proper safety equipment. 

In May 1993, a painter on the Bourne Bridge to Cape Cod fell 
to his death. The safety lines and protection equipment were inad- 
equate for that dangerous job. 

In April 1993 in Billerica, an 18 year old's first day of work for 
a clean-up crew was his last day. 1,300 pounds of unsecured bales 
of cardboard fell 20 feet and crushed him. 

So far, neither private nor government responses have been ade- 
quate to address the tragedies that are happening. With the cur- 
rent level of available inspectors, it would take 80 years to inspect 
each workplace in Massachusetts just once. Lack of inspections re- 
sults in real human tragedy. 

In September 1992 a worker in Foxboro, MA, died after he had 
been splashed with hydrofluoric acid. He had not received either 
the OSHA required training or protective equipment. 

These stories are not unique to my state. In Hamlet, NC, 25 
poultry workers were killed in a fire because the plant's doors were 
locked and the workers could not escape. The plant had not been 
inspected by Federal or State officials in 11 years. I urge my col- 
leagues to look at the statistics from their own States. When they 
do, am confident that these long overdue reforms will have broad 
bipartisan support. 



13 

Today, after many frustrating years of trying to address these 
problems, we welcome Secretary Reich, and look forward to hearing 
his comments and suggestions. 

Prepared Statementt of Senator Dodd 

Mr. Chairman, I want to take this opportunity to reiterate once 
again my strong support for OSHA reform and to commend you for 
your leadership ana perseverance in this endeavor. I am especially 
pleased to have Secretary Reich before the committee today to tes- 
tify in behalf of OSHA reform. The administration's support is cru- 
cial to the passage of this legislation, and Secretary Reich's pres- 
ence sends a very strong and positive signal. 

As I have stated at previous hearings, this legislation centers on 
one simple premise — that a job should be a source of livelihood, not 
a hazard to life and limb. 

The original OSHA Act made a pledge to American workers — a 

f)ledge to Keep their workplaces safe and healthy. Sadly, 23 years 
ater, we still have a long way to go to make good on that promise. 
Each year, 10,000 workers die on the job and six million are in- 
jured. Still others — as many as 100,000 — surrender their lives to 
occupational disease. 

This is an unacceptable waste of human capital which reaches 
far beyond the afflicted workers and their families. Society pays in 
term of increased health care and disability costs, while businesses 
are deprived of skilled employees. It is estimated that these costs 
total over $80 billion a year. 

Moreover, as I am sure Secretary Reich will agree, we cannot 
hope to substantially enhance our Nation's productivity when we 
lose so many able workers each year to preventable accidents. 

The need for reform is both clear and compelling. And this legis- 
lation will take important steps to move us in the right direction. 

S. 575 also includes a measure I have offered in past congresses, 
the Construction Safety, Health, and Education Improvement Act, 
to address the disturbing injury record which plagues the construc- 
tion industry. 

Construction workers comprise 5.5 percent of the workforce, but 
experience 20 percent of workplace fatalities. The fatality rate for 
construction workers is three times higher than that of otner work- 
ers. Each year, on average, 2,100 workers lose their lives at con- 
struction sites. 

I want to remind my colleagues that these numbers are really 
people. People like the 28 construction workers who were killed at 
L'Ambience Plaza in Bridgeport, CT, 6 years ago. That accident, 
one of the worst in history, was clearly preventable. The lives it 
claimed, however, represent only 1 percent of the rate of construc- 
tion workers killed annually. 

This legislation is vitally important to all American workers, yet 
it is also a reasonable and balanced approach. It is tough enough 
to prevent accidents and punish scofTlaws, but it also incorporates 
measures to address some of the concerns of businesses. I am con- 
fident that if enacted, this ounce of prevention will preclude a sig- 
nificant number of future tragedies. 

I thank the Chair, and I look forward to the testimony of Sec- 
retary Reich. 



14 

Prepared STATEME^fT of Senator Harkin 

I would like to thank the Chairman for holding this hearing. Far 
too many of workers, our Nation's most precious resource, are 
killed or injured due to unsafe and hazardous working conditions. 
Each year, thousands of workers are killed and millions injured on 
the job because they are poorly trained or not trained at all in the 
operation of potentially dangerous equipment or in the handling of 
hazardous substances. In addition, many employees are afraid they 
will lose their jobs if they complain about unsafe conditions or in- 
adequate training. 

Every worker has a right to a safe worksite. That was the prom- 
ise made when Congress originally passed the Occupational Safety 
and Health Administration Act. Progress has been made but more 
needs to be done to make that promise a reality. Our workers are 
too valuable to be exposed to potentially deadly workplaces. 

Additionally, we can save billions through preventing workplace 
injuries and fatalities. The yearly costs of injuries to workers, in- 
cluding medical costs and lost productivity can exceed $100 billion. 
Work-related lower back pain alone is estimated to cost this nation 
523 million days of lost work each year. This loss is preventable. 

I look -forward Secretary Reich's statement and working with 
you, Mr. Chairman, the members of the Committee and the Admin- 
istration in making OSHA reform a reality. 

The Chairman. First of all, I want to welcome you, Mr. Sec- 
retary, before our committee and to thank you for the leadership 
that you are providing in this extremely important area that affects 
the lives and the health of millions of American workers. 

Listening to some of the comments that have been made, I find 
this indignation that has been expressed about protecting workers 
in our society somewhat interesting and difficult to understand. I 
am reminded that in Indiana, for example, it would take OSHA 33 
years with its current level of inspectors to visit each company 
once. 

Now, we have to begin to get serious about trying to provide 
more meaningful protection for our workers. The Federal govern- 
ment spends $300 million per year to protect American workers in 
the workplace, and $7 billion a year for environmental protection. 
Obviously, all of us are committed to the environment, but $7 bil- 
lion over there, and $300 million here is an indication of our rel- 
ative inattention to this important issue. 

Two workers a week in my State are killed on the job from pre- 
ventable causes. Five a day are losing their opportunity to work be- 
cause of disabling injuries or illness in the workplace. It is a tragic 
circumstance, and too many businesses are paying more attention 
to their profits then to the dangers their workers are exposed to. 
Well, thankfully, we have an administration and a Secretary who 
do care. 

Finally, I would just note what the experience has been in Or- 
egon and with measures very similar to what we are proposing in 
our legislation. We have had testimony that businesses in Oregon 
have saved $1 billion with the movement toward that system. This 
has real payout in terms of safety of workers, it has real payout 
in terms of the reduced costs for businesses, and it has real payout 



15 

in terms of increased productivity. So I am very hopeful that we, 
with the support of the administration, will be able to achieve it. 
I want to thank you very much for joining us, and we look for- 
ward to hearing from you. 

STATEMENT OF HON. ROBERT REICH, SECRETARY, U.S. DE- 
PARTMENT OF LABOR, WASHINGTON, DC, ACCOMPANIED BY 
JOE DEAR, ASSISTANT SECRETARY FOR OCCUPATIONAL 
SAFETY AND HEALTH. 

Secretary Reich. Thank you, Mr. Chairman and members of the 
committee. 

First of all, let me formally introduce to you the Assistant Sec- 
retary for Occupational Safety and Health, newly appointed and 
confirmed, Joe Dear. Joe is the perfect person for this job. Joe han- 
dled and was in charge of Washington State's OSHA, the State 
OSHA, and from 1987 to 1992, earned the enormous respect not 
only of the workers, but also of the business community out there, 
in terms of his ability to protect workers and do it in a responsible 
way. 

Joe, welcome aboard. 

The Chairman. You are going to have fun this morning, Joe. 

Secretary Reich. You are going to answer the hard questions 
today, Joe. 

Second, Mr. Chairman and members of the committee, I want to 
congratulate you personally, Mr. Chairman, and also everyone on 
this committee for the bipartisan support and leadership you 
showed with regard to Goals 2000 and School-to-Work. These are 
extraordinarily important pieces of legislation in this committee. It 
is not a partisan issue; it is a bipartisan issue, and you showed it, 
and I want to congratulate all of you for that leadership. 

Now let us turn to health. America's attention is turning to 
health. We are turning to health with regard to health care and the 
President's health care reform legislation, the Health Security Act. 
We are also turning our attention to health care on the job — 
healthy jobs and a healthy place of work. 

Most adult Americans spend most of their lives on the job. Obvi- 
ously, we want to make sure that those are healthy places — even 
this room. Senator Thurmond — bless you. 

Senator Thurmond. Incidentally, you called me the other day, 
and I returned your call. I think you wanted me to vote for the 
education bill. Well, anyway, I did. 

Secretary Reich. Thank you. 

The Chairman. You keep calling Strom. [Laughter.] 

Secretary Reich. I will definitely keep calling, Senator. 

If I may submit my formal prepared testimony for the record and 
summarize the testimony, in fact, if you will bear with me, I would 
like to share with you just a very few charts we have prepared, 
which summarize where we are on health care at the workplace, 
on the health and safety of American workers, and really, how that 
fits into the larger issue of America's health and the health care 
bill we are facing, if that is all right. 

The Chairman. Certainly. The statement will be printed in its 
entirety and also Mr. Dear's statement. 

[The prepared statement of Secretary Reich follows:] 



16 

Prepared Statement of Secretary Robert B. Reich 

Mr. Chairman, members of the committee, I am pleased to appear today before 
you to announce the Administration's support for your efforts to reform the Occupa- 
tional Safety and Health Act of 1970. 

The OSH Act has been effective, and thousands of woriiing men and women are 
alive today because OSHA was created in 1970. As you can see in Chart No. 1, fatal- 
ity rates have declined by more than one-half since 1974. OSHA's standards save 
lives. According to the Omce of Technology Assessment, OSHA's rules for lead and 
cotton dust reduced worker exposures and illnesses significantly. Those who have 
examined OSHA's inspection program also conclude that em*brcement works. For in- 
stance. Professors Wayne B. Gray and John T. Scholz concluded in 1991, after 
studying injury/illness data from 6,842 manufacturing plants, that when OSHA in- 
spects and imposes penalties for violations, there is measurable injury reduction in 
those workplaces following the inspection ("Do OSHA Inspections Reduce Injuries? 
A Panel Analysis"). 

Despite the achievement over the last twenty years, the continued occurrence of 
death, injury and illness in American workplaces is a national problem. The Bureau 
of Labor Statistics tells us that in 1992 over 6,000 American workers were killed 
due to workplace injuries, an average of about seventeen workers each and every 
day. Workplace deaths are not confined to certain industrial sectors; they are found 
across the spectrum of American industries. Chart No. 2 shows us that fatalities 
occur in small workplaces as well as the larger ones. In fact, according to data col- 
lected by OSHA, businesses with fewer than 10 workers account for 40 percent of 
all fatalities but only 15 percent of employment. 

In addition, according to BIS, nearly one out of every nine workers suffers a re- 
cordable injury or illness every year. Also, the rate of Lost Workday Injuries and 
Illnesses a^ reported by BLS has been essentially stable since 1974, as we see in 
Chart No. 3. Moreover, the public sector is not immune from injury and illness as 
we see in Chart No. 4. In 1991, the incidence rate for the State and local public 
sector, in those States for which we have data, was higher on average than for the 
private sector. 

There are also thousands of workers who die each year from illnesses caused by 
exposure to chemicals such as asbestos, silica, chromium, and carbon monoxide. As 
shown in Chart No. 5, the Office of Technology Assessment has reported that as 
many as 20,000 cancer deaths annually — more than 50 each day — may be caused 
by workplace exposures. The story does not end with these deaths. Hundreds of 
thousands of workers experience pain, suffering, and disability from work-related 
disorders including asthma, carpal tunnel syndrome, dermatitis, hearing loss, and 
neurological disease. These numbers tell me that we still have a great deal of work 
to do in guaranteeing a safe and healthful workplace for every American worker. 

OSHA's experience of more than two decades has shown us that most workplace 
injuries and illnesses are not unavoidable accidents. They are predictable and pre- 
ventable. We need to strengthen the tools which the Department now has and to 
empower employers and employees jointly to reduce or eliminate hazards from their 
workplaces. . 

The costs to society from injury and illness in the workplace are substantial. The 
Rand Institute for Civil Justice estimated that accidents occurring on work time in 
1989 imposed costs of $83 billion. (See Chart No. 6.) The National Safety Council 
estimates the total costs of work-related accidents was $115.9 billion in 1992. Com- 

¥ensation for back injury alone costs American employers $11.4 billion each year, 
hese figures do not even include the cost of most diseases caused by occupational 
exposures. The Nation's health care system also shoulders untold billions of costs 
from occupational diseases that may manifest years after a worker has been exposed 
to a toxic substance at the place of employment. 

In a highly competitive global economy we simply cannot tolerate the high costs 
of workplace injuries and fatalities. We must recognize that investment in our work- 
ers is the best investment we can make in the future. By strengthening OSHA we 
strengthen our ability to protect America's most precious and irreplaceable re- 
source — its working men and women. 

Beyond the quantifiable costs associated with workplace accidents and illnesses, 
there are the human costs of pain and anguish. Last October you heard Lisa Eilar 
describe her brother's tragic death after he and a co-worker were crushed in a 
stamping press after just nve days on the job at a small auto parts plant. You also 
saw Vidal Rodriguez, who was unable to testify because of the severity of neuro- 
logical damage he had suffered from mercury exposure at a plant in Brooklyn. 
These tragedies and thousands of others encountered by OSHA inspectors during 
their worksite visits remind us of the importance of the observation of Rene Dubos, 



17 

the renowned microbiologist, when he said that, "In a truly civilized society, protec- 
tion of the worker should be regarded as the most essential, irreducible aspect of 
production cost." 

The workplace has changed since 1970. Workplace illnesses which were bareW 
recognized when OSHA was created, such as cumulative trauma disorders, includ- 
ing carpal tunnel syndrome, now make up more than three-fifths of all illnesses re- 
corded Dy employers. Other recent health concerns not envisioned by the authors 
of the original OSHA include indoor air pollutants in office environments, HIV, tu- 
berculosis, and hepatitis. Under the present low, our Nation has been unable to re- 
spond in a timely fashion to many emerging hazards. We need new tools to combat 
new dangers to America's workers. 

As we consider S. 575 we should ask two basic questions: Will this bill give 
OSHA, as well as the employers and employees of this Nation, the tools needed to 
remove hazards from American workplaces in an effective and efficient way? Is it 
a sound investment in prevention? I believe the answer to both questions is yes. We 
have concluded that in its main elements your bill will strengthen this Nation's abil- 
ity to combat workplace hazards. We are prepared to work with you to achieve rapid 
legislative action. In addition, we are prepared to suggest some changes to the bill. 

Let us discuss those provisions that will be most helpful. 

Title I — Safety and Health Programs 

The Department supports the requirement that employers have a written safety 
and health program. Everyone agrees that employers and employees must have 
greater involvement in identifying and abating safety and health hazards. The pur- 
pose of a program is to identify and fix hazards before workers become sick or in- 
jured. 

The value of preventive workplace safety and health programs has been widely 
recognized. America's most forward-looking companies already provide comprehen- 
sive programs in safety, quality control and other related aspects of production. TTie 
Insurance Information Institute has provided us numerous examples of companies 
which not only protected their workforce through safety and health programs, but 
realized savings in workers' compensation costs and gains in performance. The At- 
lantic Mutual Insurance Company reports that one of its policyholders, a manufac- 
turer of aluminum windows, reduced the total number of compensation claims by 
50 percent between 1990 and 1992, and reduced the cost of the claims by 89 percent 
during that period. These savings were realized after the company adopted and im- 
plemented a comprehensive safety and health program. 

The value of good programs in reducing workers' compensation costs has also been 
demonstrated in Hawaii, Oregon, and Colorado. Because employers' workers' com- 
pensation premiums had increased by over 400 percent in a single decade, the Colo- 
rado legislature passed the Workers Compensation Cost Containment Act of 1989. 
That law was designed to encourage employers to adopt well planned safety and 
health programs. If they do so, they are eligible for up-front automatic deductions 
worth 5 to 10 percent of their workers' compensation premiums. In the program's 
first three years of operation, over 500 employers have enrolled. These employers 
have reduced their accident frequency by 23percent and their compensation costs 62 
percent. Total first year cost savings were $24 million. 

In a nation of almost 6 million employers, there is no "one size-fits-all" approach 
to workplace safety. S. 575 wisely provides OSHA the administrative flexibility to 
modify the requirements for programs according to need in different types of work- 
places. We look forward to discussing with the Committee how these provisions 
would be implemented to ensure that each employer, working with its eniployees, 
can fashion a program uniaue to the individual workplace while maintaining such 
basic elements as a method to identify and correct hazards and opportunities for 
employee training. Employers and employees must be encouraged to tailor their pro- 
grams to fit their special needs. 

Title II — Safety and Health Committees 

It is inconceivable that major improvements in workplace health and safety can 
occur without the active involvement of workers. To provide for employee participa- 
tion, the Department supports the provision of joint labor-management safety and 
health committees for employers witn 11 or more employees. 

The committee provisions in your bill include elements of flexibility which we sup- 
port. Employee members must be chosen by and from the nonmanagerial workforce 
in a free and fair manner. It is our understanding that various methods chosen by 
employees, including elections, volunteers or rotational systems, could be used. The 
number of employee members is to be proportionate to the size of the workforce, 
thereby addressing the special needs of small business. We note that the House bill. 



18 

H.R. 1280, contains provisions for alternative mechanisms for employee participa- 
tion. We believe that this would be a valuable addition. 

In Canada, many nations of Europe, and an increasing number of States in this 
country labor-management committees have become a commonly accepted method 
for reducing imuries and illnesses and for involving employees in key workplace de- 
cisions. In the United States forward-looking conioanies, such as Xerox, are already 
using committees to solve workplace problems. Twelve States have recognized the 
value of employee participation in safety and health by requiring committees for 
some or all employers. «.• u _r 

Employee participation and involvement are key ingredients m a Tiigh perlorm- 
ance" workplace and have benefits beyond safety and health. In February 1992 Pro- 
fessor Thomas Kochan of MIT told the House Education and Labor Committee that 
"an effective labor management committee serves as a catalyst for other innovations 
at the workplace." A number of State officials have testified that safety and health 
committees have improved workplace conditions in jurisdictions where they are 

mandated. v i • j r 

Oregon's experience is particularly instructive. In 1990, Oregon made the kind of 
public commitment to workplace safety and health that S. 575 would make for the 
nation. Oregon enacted a committee requirement similar to that in S. 575 but with 
broader application, raised its penalties for OSHA violations to Federal levels, and 
added seventy-three enforcement and consultation staff. The state also strengthened 
its requirement for a written loss control program. From 1989 (the year before re- 
form) to 1992 Oregon's fatality rate dropped from 6.2 to 4.9 per 100,000 workers, 
and the total case incidence rate fell from 10.3 to 8.8 per 100 full-time workers. The 
rates of work-related injuries and illnesses in Oregon construction and manufactur- 
ing are now at all-time lows. 

The business community in Oregon has not been hampered by the requirements 
of the law— far from it. Writing about the success of the committee requirement, the 
Vice-President and Director of Legislation of Associated Oregon Industries said: 

How successful has the mandatory safety committee program been? It is difTicult 
to quantify. However, Oregon has enjoyed three consecutive years of double-digit de- 
creases in overall rates, f personally believe that any true reform movement of a 
state's workers' compensation law must involve focusing on "loss prevention," as 
well as "loss control. And most certainly, the creation of a pro-am involving man- 
datory safety committees is a vital ingredient of "lob prevention. 

Title III— Coverage 

It is essential to close the gap in public employee coverage. Unfortunately, for 7 
million public employees in States without an OSHA-approved program there is 
widely varying protection. These workers handle some of the most dangerous tasks 
in our society such as firefighting, hazardous waste cleanups, and sanitation work. 
According to the American Federation of State, County, and Municipal Employees 
(AFSCME), almost 200 of their members were killed on-the-job between 1983 and 
1993. 

We must be sensitive to the impact on the States and municipalities from the re- 
quirement not only to maintain an OSHA program but to correct the hazards found 
in public workplaces. However, most States are not starting from scratch. Twenty- 
five States and jurisdictions already provide full OSHA coverage for their public em- 
ployees. The remaining States may need some assistance to develop public sector 
plans. Many States maintain some type of worker protection even though they are 
not "OSHA-plan" States and thus are not required by Federal law to protect their 
employees. Florida, for example, has written many OSHA standards into State law 
anci has 29 public sector safety and health inspectors. 

Nevertheless, because State governments will need time to develop and imple- 
ment their response to this expansion of coverage, we believe a phase-in period that 
takes account of their legislative calendars would be appropriate. 

In addition to addressing coverage of public sector employees, S. 575 seeks to en- 
sure that no workers in the private sector are left with inadequate coverage because 
of questions concerning the jurisdiction of OSHA and other Federal agencies. Al- 
though we recognize that there have been problems in determining the appropriate 
agency to regulate particular hazards, we believe section 302 of the bill may not pro- 
vide the best solution. The Department would be forced to review every Federal reg- 
ulation affecting occupational safety and health and judge the effectiveness of the 
other agencies' programs. The Department's determinations that other agencies are 
"at least as efTective" as OSHA can be challenged in court by any person. These pro- 
visions would divert OSHA resources from protecting workers to overseeing and cer- 
tifying the efforts of other Federal agencies. Moreover, these provisions would call 



19 

into question the regulations of other Federal agencies; potentially causing great en- 
forcement problems and discouraging these agencies from beingpro-active in using 
their authority to supplement or improve their regulations. The Administration 
wants to work with you to develop an alternative that recognizes the need to avoid 
duplicative regulation while also ensuring that all employees have adequate safety 
and health protection. 

Title rV— Standards 

Setting standards is one of OSHA's most important functions. We realize that we 
must do a better job of setting priorities since OSHA does not have unlimited re- 
sources. We must focus on those health and safety issues that present the greatest 
hazards to workers. We must also continue to provide compliance assistance, such 
as information, education and consultation, to enable employers to understand and 
comply with OSHA's rules. 

I agree that standards must be developed in a more timely and efficient manner. 
The process must be streamlined. For that reason I do not object to meaningful 
timelmes in which OSHA must complete regulatory steps or to procedures for judi- 
cial review of alleged agency delay. I understand the Chairman s intent to be that 
the deadlines in the bill will create a presumption of reasonableness, but that spe- 
cial factors will allow modification in individual cases. OSHA must be free to assign 
appropriate priorities to rulemaking projects and to allocate more resources to hign- 
er-priority standards. I do not believe the intent of the bill is to deprive OSHA of 
its necessary authority to establish rational priorities. 

In the interest of making certain that the statutory timelines are realistic, I would 
suggest that they be lengthened somewhat — that the standards for Secretarial ac- 
tion and judicial review be changed to recognize the Secretary's responsibility to set 
OSHA's agenda and priorities. For example, it would be appropriate for OSHA to 
have 120 days rather than the 90 currently in the bill to respond to petitions; and 
18 months, rather than the 12 in the bill, to propose a standard followmg a decision 
to do so. Basic principles of administrative law require a regulatory agency to issue 
a detailed and complete proposal if it hopes to proceed expeditiously to a final rule 
that can be upheld on judicial review. Thus, we think it appropriate for OSHA to 
have equivalent amounts of time for preparation of proposed and final standards. 

I am pleased by the language in S. 575 prohibiting juaicial challenges to OSHA's 
feasibility findings if those challenges were not first presented to the agency during 
the rulemaking process. This concept — exhaustion of administrative remedies — is so 
sensible, and so widely accepted, that we believe it should be expanded to cover all 
of the findings OSHA must make in promulgating a standard. 

In addition, we think that the courts should review OSHA standards under the 
same criteria that they use for most other Federal regulations — that the standards 
should be upheld if they are not arbitrary or capricious. The current substantial evi- 
dence standard has been taken by some courts as a signal that Congress intended 
especially strict scrutiny of OSHA standards, and so has contributed to many of the 
court remands that have played a significant part in clogging the regulatory pipe- 
line. 

I also wish to express my support for establishing uniform criteria for both health 
and safety standards. Having different criteria applicable to safety and health 
standards is making it difficult for OSHA to regulate because it is not always clear 
how a particular standard should be classified. Thus I believe that uniform criteria 
for health and safety standards would strengthen OSHA's standard-setting capabil- 
ity- 

Title IV would also require that OSHA issue as a standard the final Permissible 

Exposure Limits rule originally promulgated in January 1989. The PEL revision is- 
sued in 1989 was designed to update exposure limits that were more than 20 years 
old. OSHA estimates tnat the PEL reduction would have prevented about 55,000 oc- 
cupational illness cases and approximately 520,000 lost workdays each year. How- 
ever, the courts have placed such a difficult burden of proof on OSHA that it has 
become nearly impossible to regulate more than a few chemicals at a time. In strik- 
ing down the PEL revision in 1992, the 11th Circuit Court of Appeals stated that: 

Unfortunately, OSHA's approach to this rulemaking is not consistent with the re- 
auirements of the OSH Act. Before OSHA uses such an approach, it must get au- 
tnorization from Congress by way of amendment to the OSH Act (AFL-CIO v. 
OSHA, 965 F.2d 962, 987). 

As a result of this decision, many workers remain exposed to hundreds of chemi- 
cals at levels that most experts from labor and industry consider obsolete and dan- 
gerous. This situation reauires a legislative solution. We also support the principle 
that OSHA and NIOSH should work closely together to review ana revise tne PELs 
at regular intervals. 



20 

I also agree that PELs should cover employees in the construction, maritime, and 
agriculture industries. OSHA has already proposed such action, but without legisla- 
tive action its fate is uncertain. Legislation enacting the limits but allowing the De- 
partment to conduct rulemaking on feasible means of compliance may be the most 
appropriate solution. 

The bill's requirement for OSHA to promulgate standards on ergonomics, expo- 
sure monitoring, and health surveillance is consistent with OSHA's stated priorities. 
Particularly important is the need for an ergonomics protection standard to reduce 
the alarming numbers of preventable musculoskeletal iiyuries as shown in Chart 
#7. 

Title V — Enforcement 

Where employees are seriously hurt by the willful violations of their employers, 
criminal prosecution is warranted-both to punish and to deter similar conduct in the 
future. Various statutes enforced by the Environmental Protection Agency contain 
criminal provisions with lengthy prison sentences. For example, under the Clean 
Water Act the maximum penalty for knowing endangerment, without even the oc- 
currence of a death or injury, can include imprisonment of up to fifteen years. By 
contrast, OSHA's sanctions for employers whose willful conduct causes death are 
limited to a fine and/or imprisonment for 6 months. We support the provisions of 
S. 575 that increase to ten years the maximum prison term for willful violations 
causing death. We also support the provision which allows OSHA to charge officers, 
management officials, ana supervisors with criminal willful violations. We under- 
stand that this is intended to apply only to those management officials who have 
the power to bring about compliance, including the power to remove an employee 
from exposure to a hazard. By making willful violations involving death a felony, 
S. 575 enables the government to prosecute and punish the small proportion of em- 
ployers who are the truly "bad actors" — those wno have shown a willful disregard 
for the lives of their employees. 

The Department also supports criminal penalties for williiil violations that result 
in "serious bodily injury" to employees. Our understanding is that "serious bodily 
injury*' will include only those injuries which have the most serious consequences. 

Fears about criminalizing all of OSHA enforcement are vastly overblown. In Fis- 
cal Year 1993 there were only about 600 inspections involving willful violations out 
of a total of 101,000 inspections conducted that year (Federal and State OSHA). 
Only a subset of the 600 inspections involved serious bodily injuries caused by will- 
ful violations. Fewer than 50 of these inspections involved a death in the workplace. 

Also important is the provision in Title V that guarantees State and local law en- 
forcement agencies the right to conduct prosecutions under generally applicable 
criminal laws. There has been considerable litigation on this issue and uncertainty 
in some States as to whether such prosecutions may proceed. S. 575 codifies the role 
of State and local prosecutors who wish to enforce generally applicable criminal laws 
in cases involving safety and health at the workplace. Adding their resources to 
those of Federal OSHA will enable us to cast a wiaer net over tne employers whose 
conduct is criminal in nature. 

The Department of Justice joins us in supjxjrting each of these criminal provi- 
sions. 

The reform bill would make a number of other changes in enforcement. Under S. 
575, for the first time employers would be required to abate serious violations pre- 
senting a substantial risk to workers during the period after an employer has con- 
tested the citation and before the final decision of the Occupational Safety and 
Health Review Commission. A provision of this nature is necessary to ensure that 
workers are not endangered during contest periods that can last up to several years. 
Abatement during contest is not a new concept to the Department. The Mine Act 
gives MSHA this authority. Experience indicates that it is neither burdensome nor 
unworkable. 

Concern has been expressed that employers would be forced to make costly alter- 
ations to the workplace only to see OSHA's citation overturned on appeal. S. 575 
provides protection for employers by ensuring that they will not be f)enalized for 
nonabatement if the Review Commission upholds their position. 

The Department recognizes the valuable role played by employees and their rep- 
resentatives in enforcement under the Act. It is therefore our firm policy to consult 
with them in inspections and case settlements about all matters related to abate- 
ment. However, we are unable to support those provisions of the legislation that 
would overturn Supreme Court preceaent and impair OSHA's ability to settle con- 
tested cases. The bill would authorize the Review Commission to review and dis- 
approve citations and settlements negotiated by OSHA with an employer on the 
basis of employee objections on a range of matters. Authorizing such challenges 



21 

could only delay and complicate final settlement and implementation of the agreed 
measures for abatement. Moreover, the prospect of such a challenge would remove 
an important tool for encouraging settlement that OSHA has under current law: the 
employer's knowledge that agreement to the agency's terms will clearly and finally 
resolve the dispute. 

Placing authority in the Commission to disapprove settlements is institutionally 
unsound as a matter of principle. Case settlements involve consideration of several 
factors, including the need for prompt and effective abatement, evaluation of the 
strength of the case and litigation risk, the Department's overall enforcement strat- 
egy, and efficient use of resources. As the agency responsible for enforcement of the 
Act, the Department must make policy judgments that determine the final balance 
among these factors. I emphasize our conunitment to consulting employees and ob- 
taining their input as a vital ingredient in this determination. 

We also cannot fully support the bill's approach to informal complaints. If OSHA 
were required to conduct an inspection in response to each informal complaint re- 
ceived, resources would be shifted away from inspections targeted to high-hazard 
workplaces. Moreover, we have found that a less formal response — for example, let- 
ter investigations and phone inquiries — can often resolve these complaints and lead 
to prompt abatement. We agree, however, that every bona fide complaint, even if 
not in writing, deserves a response from the agency. We have begun working with 
Committee staff on an amendment that would require an appropriate investigation 
and follow-up to verify abatement. 

Finally, we support the provision in Title V which codifies current OSHA case law 
recognizing that employers have a defense against citation for unpreventable em- 
ployee misconduct. 

Title VI — Discrimination Protection 

The Department supports provisions to enhance protection for workers who exer- 
cise their rights under the OSH Act. If employees hesitate to exercise their rights 
for fear of losing their jobs, these rights are meaningless. Section 11(c) of the OSH 
Act is designed to prevent discharge or discrimination but in practice workers have 
not been adequately protected. Witnesses before this Committee have described dis- 
crimination cases that took years to resolve while they suffered loss of income and 
other economic hardship. 

Title VI would address this problem and would make the OSH Act discrimination 

Provisions more consistent with those found in other laws such as the Surface 
ransportation Assistance Act which protects whistleblowers in the trucking indus- 
try. Particularly helpful is the provision of Title VI which extends the deadline for 
filing complaints of discrimination to 180 days and the provision allowing the De- 
partment to grant preliminary relief to workers when there is reasonable cause to 
Delieve that discrimination has occurred. Title VI would afford increased protection 
for workers who choose to exercise their rights under the OSH Act. 

Title VII — Technical Assistance and Training 

OSHA's full toolbox must include strong provisions for consultation and technical 
assistance which complement agency regulations and enforcement powers. I fully 
support the bill's requirements to target these special services to small business and 
high hazards. I also would be pleased to implement your innovative ideas on re- 
gional/State safety resource centers with tri-partite representation. 

Title VIII — Recordkeeping and Reporting 

Title VIII addresses the need for better and more specific data on the industries, 
individual work establishments, and work processes which have the highest rates 
of injuries and illnesses. We have recognized for many years that OSHA's data sys- 
tems for occupational safety and health are inadequate. OSHA needs additional site 
specific data to target its efforts to the most dangerous workplaces. Title VIII con- 
tains provisions which would enable the Department to use its resources more effec- 
tively by gathering more specific safety and health data. 

While Title Vlllwould enable OSHA to better meet its data needs by establishing 
an appropriately structured administrative data base, I must emphasize the equally 
important need to preserve the independent national safety and health statistics 
produced by BLS. At present, BLS collects confidential data from respondents to 
produce its Survey of Occupational Injuries and Illnesses and its Census of Fatal 
Occupational Injuries. The Department is studying the effect of OSHA's collection 
of site specific data on the ability of BI>S to collect accurate information from em- 
plovers to produce both the Census and Survey, and we expect to share our findings 
with the Committee in the near future. 



22 

Title IX— National Institute for Occupational Safety and Health 

Regarding the bill's provisions alTecting NIOSH, the Department of Health and 
Human Services has one strong concern tnat we note on their behalf. HHS agrees- 
that this bill would fundamentally improve workplace safety and health. However, 
HHS opposes the provision that would remove NIOSH from within CDC and estab- 
lish it as a separate agency in the Public Health Service because that would disrupt 
important scientific and organizational links between NIOSH and CDC to the det- 
riment of both and, ultimately, workers. HHS would welcome the opportunity to 
work with the Committee on this and other issues raised by the bill. 

*♦**♦♦* 

Title XII— Construction 

The reform bill would increase protection for workers in the construction industry, 
which has one of the highest rates of injury and illness (13.1 per 100 construction 
workers versus 89 per 100 worlters for all private industries in 1992). This industry, 
which makes up five percent of all private employment, accounts for fifteen percent 
of fatalities. 

Under present law, OSHA has not been able to address fully the unique hazards 
found in the construction industry. Unlike fixed-site manufacturing firms, the work 
done at construction sites is constantly changing. The most dangerous operation of 
the day may only last for 45 minutes. When OSHA arrives at a construction site, 
the work may be completed. These difficulties are compounded by the fact that there 
may be dozens of different employers on a single large construction site. Finding out 
who is responsible for which nazards can be a daunting task. OSHA needs better 
ways of identifying the most hazardous construction sites at the most dangerous 
times. 

Title XII*would help reduce injuries and illnesses on construction sites in a num- 
ber of ways. Construction employers would be required to designate individuals with 
overall responsibility for safety and health at the site. Construction employers would 
be required to have safety and health programs and workplace plans tailored to the 
unique hazards of the industry. The reporting requirements would assist OSHA in 
identifying which construction projects to inspect and when to visit the site. If strict- 
er reporting had been in effect in 1987 the tragic accident at the L'Ambiance Plaza 
in Bridgeport, Connecticut might not have occurred. Twenty-eight workers might 
still be alive. A similar accident several months earlier had not come to OSHA's at- 
tention since no one was killed. 

Generally, the Department supports those provisions which ensure that safety 
and health become a built-in feature of daily activity on construction sites without 
depending upon the threat of an OSHA inspection. As with many features of your 
bill, the construction provisions represent practical ideas which have been tested by 
numerous employers and found to work. The Corps of Engineers and its contractors, 
for example, have realized injury rates far below the national average by imole- 
menting comprehensive progranris with many of the elements required oy your bill. 

While many of the provisions in Title XII are needed, the organizational changes 
included in the bill are not necessary. OSHA's construction efforts can be improved 
under its current organizational structure. We also have concerns about the affect 
of applying all the provisions in Title XII to small construction projects. 

There have been some concerns expressed — particularly within the business com- 
munity—about the financial impact of OSHA reform. The cost of this bill is a valid 
concern. We should not impose unnecessary costs or regulations on any sector of our 
economy. After studying the legislation carefully, OSHA preliminarily estimates 
that the bill's investment in employee protection will result in a meaningful net ben- 
efit to our economy. We will be prepared to share and discus's our estimates with 
the Committee in the near future. 

The critics of OSHA reform fail to consider the opportunities which the bill pre- 
sents for investment in prevention of disease and injury. As you see in Chart No. 
8, the cost of workers' compensation benefits was more than $40 billion by 1991. 
Total workers' compensation costs in 1991 were $53.8 billion. In an article in the 
Journal of the American Medical Association (August 7, 1991), Dr. Philip Landrigan 
estimated that 350,000 new cases of illness each year are caused by occupational 
exposure. According to the National Safety Council the tangible costs of workplace 
injuries and illnesses exceed $100 billion each year. This figure includes direct costs 
only and does not even attempt to attach a dollar amount to the savings in human 
life, and avoidance of pain, suffering, and disability. I have discussed those provi- 
sions of the bill which would enable us to be more effective in reducing workplace 
injuries, illnesses, and deaths. Meanwhile OSHA is not sitting on its hands. OSHA 
is considering a number of new initiatives to enhance its effectiveness, such as 



23 

changing data collection to target compliance resources more effectively, streamlin- 
ing the inspection process to increase tne agency's efficiency, and encouraging work- 
er-management cooperation in occupational safety and health. 

Mr. Chairman, you have-taken an important step in presenting this comprehen- 
sive reform bill. It not only provides OSHA with new ways of accomplishing its 
goals; even more importantly it empowers employees and encourages employer- 
worker cooperation to undertake new ways of preventing iryuries and illnesses in 
American workplaces. 

[The charts referred to may be found in the files of the commit- 
tee.] 

Secretary Reich. The first chart is a chart showing that we have 
made some progress as a society and as an economy with regard 
to fatahty rates. We are still not there. We still have a long way 
to go. In 1991, the last date for which we have comparable data, 
we had 6,000 fatalities at the workplace. That is not good. But 
compared to where we were in the early days of OSHA, we have 
made some progress, and for that, you can take some credit, and 
we can all be quite confident that workplaces are becoming safer. 
We still have a long way to go. 

This chart shows lost workday injury and illness rates, lost work- 
day cases. Now, we still have not made progress with regard to lost 
workdays. You can see that the incidence rate per 100 full-time 
workers has made very little progress on injury and illnesses. It is 
about where we were in the early 1970's. 

Let me turn to the next chart, which shows the recordable injury 
and illness rates, public sector versus private sector. This is based 
on recordable data, public sector and private sector. Basically, the 
point here is that there is a problem in the public sector, as well 
as, in the private sector. We need to be aware that workplace safe- 
ty does not end at the private sector's threshold, at the doorways 
to factories and places of private business. 

Senator Kassebaum, you talked about the importance of maybe 
Congress being aware of workplace safety and health. Well, yes, I 
would underscore that. State and local governments need to be 
aware of workplace safety and health. It is a problem all across 
America. 

Senator Metzenbaum, you referred to the Wall Street Journal 
piece on small business. This chart confirms the concern expressed 
in that Wall Street Journal article. This shows the distribution of 
fatalities reported to OSHA— these are reported to OSHA-^y es- 
tablishment size. You can see that the very small businesses 
here — one to nine employees — account for 40 percent of the fatali- 
ties; only 15 percent of the employment, but 40 percent of the fa- 
talities in the United States. And again, we can see that although 
very, very large businesses still have a problem, the problem of 
workplace health and safety in terms of preventing injuries and ill- 
nesses and preventing particularly fatalities is a major problem 
with regard to small businesses. 

Senator Coats, you talked about the problems that some small 
businesses have with filling out forms. Well, I can tell you our goal 
is to reduce that kind of paperwork, but make sure simultaneously 
that we get these fatalities down and that we ensure worker safety. 
There is no reason why a worker in a small business should be less 
safe than a worker in a large business, and I am sure you agree 
with that. 



24 

The next chart shows deaths from illnesses and injuries on the 
job by source of problem, the cause of death and the cause of in- 
jury. This is based upon the best data we have. You can see that 
motor vehicle/highway, workers who are in cars and trucks, do ac- 
count for some of the fatalities, but percentage-wise, a smaller per- 
cent than air, water, rail, and vehicle highway accidents. Obvi- 
ously, homicide — let me draw your attention to that — homicide is 
a growing problem on the job. Equipment, facilities and tools — a 
number of incidents we have recorded even in the past year, in 
which workers simply have not had the adequate safety equipment. 

But then take a look at this. We are talking about injuries and 
illnesses traceable to the workplace. Cancer — an estimated 20,000 
deaths a year now traceable to the workplace. There was a report 
yesterday, and many of the newspapers today were filled with ac- 
counts of that report, that cancer deaths are increasing in our soci- 
ety. Well, an estimated 5 percent of cancer deaths are traceable to 
the workplace — to chemicals, to air particles, to other causes of 
cancer. 

And then look at illnesses that do not include cancer — we are 
way up to almost 30,000 a year — lung disease, heart disease, var- 
ious other diseases not including cancer — again, a very large toll 
with regard to human suffering and with regard to the Nation's 
health care bills. We are talking about human beings, but we are 
also talking economics. 

Occupational fatalities. 

Here, I want to report the latest data we have on disorders asso- 
ciated with repeat 'trauma. These are a new kind of disorder. We 
never used to have these disorders. A lot of them are associated 
with people in office buildings who are doing the same typing, a lot 
of clerical problems, with regard to muscles, neuromuscular prob- 
lems; it is repeat trauma to the neuromuscular system. And those 
repeat trauma injuries are increasing at a rate far faster than the 
normal injury rate. This to some extent is a symptom of our chang- 
ing the nature of work in America. More and more people are doing 
more and more work behind desks, behind computers, in the fac- 
tory of the future, or the factory of today, which is the office tower. 

Workers' compensation disbursement. This gives you some indi- 
cation of the trend and some indication of the problem we are fac- 
ing — certainly an indication of the problem we are facing finan- 
cially as a country in terms of health care. Some of this represents 
increasing health care costs, but not all of it. This is also increasing 
injuries, increasing illnesses at the workplace. You can see this 
trend right upward. 

Senator Metzenbaum. How does that relate to the inflation rate? 

Secretary Reich. This is faster than inflation. 

Senator Metzenbaum. Faster. 

Secretary Reich. This is faster than inflation. This is after infla- 
tion. This is in 1990 dollars, so this is controlled. This is 1990 dol- 
lars, but as I said, some of this is the inflation in health care costs, 
which are rising in some cases three times faster than inflation, 
but not all of it. Even if you controlled for health care cost infla- 
tion, you would still have an increase here in workers' compensa- 
tion costs. 



25 

Senator Coats, Senator Kassebaum, you were talking about costs 
to business. This is one of the fastest-rising costs to business — 
workers' compensation costs. We get some control over accidents 
and illnesses at the workplace. We get some control directly over 
this. Businesses are suffering because of this cost, as well as indi- 
viduals. 

Now, finally let me talk about work accidents relative to injury 
costs in society generally. I am talking now about all injury costs. 
Here, we are not even talking about illnesses; we are just talking 
about accidents. 

You can see over here that in terms of accident frequencies, work 
accidents constitute about 20 percent of all injuries — motor vehicle 
accidents, another 20 percent; other accidents, about 60 percent of 
injuries— but look at the costs. Again, for Americans concerned 
about health care costs, not just the human suffering — and the 
human suffering is obviously an enormous cost — but look at those 
health care costs. Accident costs, 47 percent of all of the injury 
costs in the United States, $82.3 billion — and that is just injuries; 
that does not include that chart I had on illnesses, on cancer, and 
other illnesses. 

We have a problem, and that problem is not going away. In 
many respects, the problem is increasing. And I am sure that there 
is bipartisan support for doing something about this. And I am 
sure that there is bipartisan support for doing it in a way that re- 
duces unnecessary paperwork and that emphasizes prevention. 

I am pleased to appear before this committee today to announce 
the administration's support for your efforts to reform the Occupa- 
tional Safety and Health Act of 1970. Mr. Chairman, Senator 
Metzenbaum, it has been nearly a quarter-century since Congress 
passed the Occupational Safety and Health Act, and in that time, 
America's workplaces have in some respects become safer. But the 
problems remain — not just statistics. In the past year, I have 
talked to many spouses of workers who were killed on the job; I 
have talked to the children of workers killed on the job; I have 
talked to the parents of workers killed on the job. You have talked 
to them as well. These are real human stories. 

There is a lot of pain and suffering out there. 

The Rand Institute of Civil Justice estimates that in 1989, the 
cost of accidents was $83 billion. The National Safety Council says 
that in 1992, the total cost of work-related accidents was $115.9 
billion — just accidents, not illnesses. Workplace illnesses and inju- 
ries also burden an already beleaguered health care system. 

When I became Secretary of Labor, I set up a task force. The goal 
of the task force was to look at how to reduce the accidents, the 
illnesses, and the injuries that we are seeing increasing. We dis- 
cussed a variety of options with many, many key groups. We lis- 
tened carefully. With these discussions in mind, we have concluded 
that the main elements of the bill before you will reduce workplace 
hazards and boost the health of both the American worker and the 
American economy. 

Experience in States that adopted elements of this bill shows the 
significant safety and health improvements that can result. Or- 
egon's experience is directly on point, Mr. Chairman. In 1990, Or- 
egon made the kind of public commitment to workplace safety and 



26 

health that this bill, S. 575, would make to the Nation. Oregon en- 
acted a committee requirement system similar to that in S. 575, 
with broader application; raised its penalties for OSHA violations 
to Federal levels; and added 73 enforcement and consultation staff. 
The State also strengthened its requirement for a written loss con- 
trol program. 

From 1989 — that is, the year before the reform — to 1992, Or- 
egon's fatality rate fell from 6.2 per 100,000 workers to 4.9, and the 
total case incidence rate fell from 10.3 to 8.8 per 100 full-time 
workers. The rates of work-related injuries and injuries in Oregon 
construction and manufacturing are now at an all-time low. 

Workplace safety and health improvements need not create 
meaningless divisions, unleash bitter "either/or" arguments. A 
healthy workplace benefits everybody. It benefits the good work- 
place. It benefits good employers. We have a lot of evidence that 
the best employers, the most profitable companies in America, al- 
ready pay attention to workplace safety and health. They have 
plans for health and safety; many of them have committees. 

I have analyzed in my written testimony those provisions of the 
bill that would more effectively address workplace injuries, ill- 
nesses and deaths. Here, let me very, very briefly outline six key 
concepts in the bill that I believe are absolutely critical to making 
it work. 

The first is prevention. This legislation requires employers to es- 
tablish and carry out health and safety programs to identify and 
fix hazards before workers become sick or injured. OSHA's experi- 
ence over the last 20 years demonstrates that most workplace acci- 
dents are really not accidental; that with sufficient preventive 
steps, many of these accidents could have been avoided. Prevention 
is far better than getting in there after the fact, after somebody has 
been killed or injured, and trying to issue a fine or a penalty. We 
want to prevent this from happening. 

As is frequently the case, the States, in their role as laboratories 
of democracy, have shown the way not only in Oregon. Because 
workers' compensation premiums increased by over 400 percent in 
a single decade, the Colorado legislature passed a law designed to 
encourage employers to adopt well-planned safety and health pro- 
grams not unlike these. Employers who did so were eligible for up- 
front automatic reductions of 5 to 10 percent of their workers' com- 
pensation premiums. Employers enrolled in programs have reduced 
their accident frequency by 23 percent, and they have reduced their 
compensation costs by 62 percent. The total first year cost savings 
were $24 million. Now, we are talking about savings to the em- 
ployer. 

The second concept is flexibility. In a nation of almost 6 million 
employers, there is not going to be a "one-size-fits-all" approach to 
workplace safety. This legislation provides OSHA the administra- 
tion flexibility to modify requirements for workplace safety and 
health programs. 

We envision that each workplace will fashion a program that 
contains basic elements found in all programs, but that is tailored 
to meet that workplace's special needs. 



27 

In addition, the bill's technical assistance provisions target spe- 
cial help to small businesses and businesses with significant haz- 
ards in order to help them design programs fine-tuned to fit their 
circumstances. 

The third important concept here is cooperation. We simply can- 
not improve workplace health and safety without including those 
who actually spend their days in the workplace. This is a principle 
that I have seen across the United States. Front-line workers know 
how to improve productivity, they know how to improve quality, 
and they know how to improve safety. They are there on the fi-ont 
line, and that is where the wisdom is. You have got to get them 
involved. If you really want a prevention program that works, you 
get the front-line workers involved directly in preventing accidents. 

I have gone around this country for the past year, and I have 
talked to workers. I ask them: Do you have ideas for how to im- 
prove productivity? Of course. Do you have ideas for how to im- 
prove safety? Yes. Some of their ideas seep upward. In the best 
workplaces, they get right to the top. In the worst workplaces, the 
ideas stay at the bottom. 

In keeping with this principle, the committee provisions in the 
bill provide flexibility in how members of these work committees, 
these management-labor committees, are selected, what size these 
committees have to be. Many major companies have already insti- 
tuted health and safety committees composed of workers. Their 
success, coupled with successes in 12 States that already require 
such committees — 12 States — shows that this idea can work. 

Now, once again, Oregon's experience in mandating committees 
is particularly instructive. The business community in Oregon has 
not been hampered by the committee requirement — in fact, far 
from it. The vice president and director of legislation of Associated 
Oregon Industries has said, and I quote: 'The creation of a pro- 
gram involving mandatory safety committees is a vital ingredient 
of loss prevention." This is from the business group in Oregon. 

The fourth concept is expanded coverage. Public workers, as I 
demonstrated with those charts, handle some of the most hazard- 
ous tasks in our society — cleaning up toxic waste, collecting gar- 
bage, fighting fires. One pubhc employee union, AFSCME, reports 
that over 200 of its members were killed on the job between 1983 
and 1993. Yet in States without an OSHA-approved program, some 
7 million workers receive only spotty health and safety coverage. 
This bill addresses the coverage gap K)r public employees. 

In addition, the reform bill would increase protection for workers 
in the construction industry, whose rate of injury and illness is 
about 50 percent greater than in other private industries. Although 
the construction industry employs only 5 percent of all private em- 
ployees, it accounts for some 15 percent of fatalities. We have got 
to help the construction industry help itself. 

Title XII of the bill contains several provisions to help reduce in- 
juries and illnesses on construction sites which, because of the na- 
ture of the industry, have been difficult to address under present 
law. These ideas have been proven effective. 

The U.S. Corps of Engineers imposes requirements on its con- 
tractors for written safety and health programs, worksite analyses, 



28 

hazard prevention control measures, safety and health training, al- 
most exactly the same. Between 1984 and 1988, the Corps of Engi- 
neers contractors registered an average lost workday case rate of 
about 1.5 per 100 full-time workers. Now, that is in contrast to the 
national rate, which was almost 7 per 100 workers. , 

The fifth concept is streamlining standards. Settmg standards is 
one of OSHA's most important functions, and this bill streamlines 
that process. We do not like red tape any more than American 
business likes red tape. Red tape is not going to help American 
workers. This streamlining function establishes uniform criteria for 
both health and safety standards. , ., ,, . r^cv \ 

One important aspect of the bill is that it would require UbHA 
to issue its standards on hundreds of chemical exposure limits that 
were struck down by a court in 1992. This rule would have pre- 
vented about 55,000 occupational illnesses and approximately 
520,000 lost workdays each year. , „ , 

The sixth concept is enforcement. We can do all the prevention 
we can; we can help American employers be more responsible, and 
it is in their interest to be more responsible. But we have also got 
to be tough enforcers. ,. j i . r, aoa 

Professors Wayne Gray and John Sholz studied almost 7,000 
manufarturing plans. They found that when OSHA inspects and 
imposes penalties for violations, there is measurable injury reduc- 
tion in those workplaces following the inspections. Having tough 
standards on the books is meaningless unless we are prepared to 
enforce them. If an employee is seriously injured on the job, and 
an employer's willful health and safety violations are to blame that 
employer must be prosecuted. We simply cannot tolerate employers 
who regard citations by OSHA as the cost of doing business and 
maintaining unsafe work practices. , t • ta -4. 

This bill contains provisions, supported by the Justice depart- 
ment that increase penalties for willful violations that cause death 
or serious bodily injury and that provide the Government authority 
to prosecute the officials with the power to bring a company into 
compliance— willful violations— let me emphasize, willful violations. 
Ideally we will never be forced to impose these provisions. Their 
mere existence, we hope, will deter the most egregious violations. 
This bill, of course, is not without its opponents. We respect the 
right to disagree, but let me assure you that our position is the 
product of very careful study and very careful thought. For 10 
months, we looked over this, we looked over its provisions. A com- 
mittee of some of the best minds I could find looked at it, reported 
back to me and made their recommendations. . 

In today's economy, where capital and information cross national 
borders instantly, a Nation's competitive advantage comes from the 
only resource that stays more or less fixed within its borders— its 
workers— not only those workers' skills, but also those workers 
health. That is why the centerpiece of this administration s eco- 
nomic strategy is investing in our workers' skills, abilities, capac- 
ities to innovate; investing in health and safety is a part ot this 

strategy. , , ,, 

The OSH Act has improved many American workplaces over tne 
last 2 decades, but some enduring problems, along with a new set 
of workplace hazards, demand that the statute be revised. Ihis bill 



29 

makes those revisions in a strategic and sensible way, by empha- 
sizing prevention, flexibility, cooperation, expanded coverage, 
streamlined standards, and tough enforcement, the bill ensures 
that tomorrow's workplace will reach new levels of health, safety 
and productivity, and will do so in a responsible way. 

Mr. Chairman, you have taken an important step in presenting 
this comprehensive reform bill. It not only provides OSHA with 
new techniques for accomplishing its goals; it also empowers both 
employers and employees to jointly undertake new ways of prevent- 
ing illnesses and injuries on the job. 

I commend you for your efforts, and I look forward to taking your 
questions and working with all of you on making this bill a reality. 

The Chairman. Very good. We will try to follow a 7-minute rule 
for questioning. I understand we are going to vote around one 
o'clock or so, which will probably affect the hearing, and we will 
play it by ear, but at least follow that procedure at the outset. 

We thank you for your statement and for reviewing with us the 
current situation ana its adverse impact, on the lives of workers, 
and on employers, as well as the overall cost to our economy. 

We have heard from a number of different business groups at our 
hearings, and part of our problem has been that N/^ and other 
business groups have been pretty good at criticizing the existing 
system and finding fault, but they have not really come up and 
said what they are really for. The NAM and others say that health 
and safety committees are just a way to increase unionization, that 
that is what this program is all about, and yet the evidence shows 
that this has not been the circumstance in the places where health 
and safety committees have been tried, and in fact, many of those 
who are involved in union organizing say that, to the contrary, the 
existence of health and safety committees makes it harder to orga- 
nize because one of the principal arguments for unionization is to 
give workers a voice in addressing dangerous conditions on the job. 

I think we are now in a situation not unlike health care, where 
many business gn'oups did not have any position until finally the 
administration took a position, and then the bus9ness community 
began to come forward with some alternatives. Obviously, we want 
to try to build on common ground. 

In the time I have, I would be interested in hearing a little bit 
from Mr. Dear who, as I understand, administered the occupational 
safety and health program in the State of Washington. With the 
OSHA reform bill, we have something that is somewhat unique in 
terms of legislation, and that is we have some very practical exam- 
ples of how these programs we are proposing have worked in real 
life terms, not just theories of what might happen, but real exam- 
ples. So I would like Mr. Dear to explain how this really became 
a fact of life in the State of Washington. 

And Mr. Secretary, I want to ask this question before someone 
else does. Critics will say. Well, if what you are proposing is al- 
ready happening in Oregon, and it is happening in Washington, 
and in Colorado, why should we be doing national legislation? Why 
not let the States do it? If this is really good for business, then 
businesses will understand this own self-interest, and they will 
eventually come to do this on their own. So why do we really need 
legislation? 



80-084 - 94 - 2 



30 

I would like to ask you that first, and then I will ask Mr. Dear 
if he would be kind enough to tell us, in the time that we have left, 
what has happened out in Washington, and briefly, what the re- 
sults are. 

Mr. Secretary. 

Secretary REICH. Senator, although several States have had suc- 
cesses in this area, not all States are doing it, quite frankly. This 
is a national problem. Workplace injuries, illnesses and fatalities 
continue to be a national problem, and a growing national problem. 
The Nation is saddled with that health care bill which keeps on 
growing every year. National competitiveness is in all of our inter- 
ests, and avoiding workplace injuries and illnesses and fatalities is 
in all of our interests. 

The States, as has been noted many times before, are labora- 
tories of democracy. That is where we learn what works. We have 
learned what works firom the States, and we are now lifting it up 
to the benefit of all workers, all across the country. 

I might finally add that I believe it is in the interest of American 
business not only with regard to saving workmen's compensation 
costs, not only with regard to having a stronger and more competi- 
tive work force, but also instead of racing slightly different systems 
in a lot- of different Sates, it is in American business' interest to 
have a uniform system. 

The Chairman. Mr. Dear. 

Mr. Dear. Thank you, Mr. Chairman. 

As you know, I was the administrator of the Department of 
Labor and Industries in Washington for over 5 years, and deputy 
head of that agency. When this committee began its work on OSHA 
reform, we received a call asking about our experience with Wash- 
ington's regulations requiring employee committees in workplaces 
with 11 or more workers and for written safety and health pro- 
grams in virtually all establishments. They wanted to know if it 
was controversial. Well, I can assure you as a Government admin- 
istrator who ran workers' comp, safety and health, and other regu- 
latory programs, that I would get a lot of letters from employers 
and workers, complaining about things we did or did not do. I 
never had any letters about the requirement for safety committees 
or safety and health management programs. 

The reason is that since 1946, it has been a requirement in the 
State of Washington. It is an accepted way of doing business. The 
fears that some express about how these committees would operate 
simply have not materialized in the State. 

I can speak with some further experience about that, because be- 
fore I entered Government service, I worked for the State AFL- 
CIO, and I would have known if we had intended for committees 
to be Trojan horses for organizing. 

Your observation that employer attention to safety and health is 
actually one of the progressive ways of dealing with worker con- 
cerns takes away the organizing issue, in essence. 

So programs and committees work. I have seen the personal ex- 
perience of employers who were desperately concerned about their 
businesses because of rising worker compensation costs accept the 
challenge and accept the responsibility as managers to commit to 
safety and health, to involve their workers, and have seen dramatic 



31 

reductions — over 50 percent in certain cases — in their workers' 
compensation costs, because of their commitment to worker in- 
volvement and effective management. 

As Secretary Reich pointed out, you have the experience of 12 
States that have worker participation requirements; 6 States in the 
past year have added these requirements. We now know frorn their 
experience that this is desirable, effective policy, and it is time to 
expand it to the rest of the Nation. 

The Chairman. What is the reaction generally of the business 
community in the State of Washington to this? Are there business 
leaders who want to free Washington from the encumbrance of 
being required to have these safety committees? Does anybody go 
out and campaign and say, "We want to get these kinds of rules 
and regulations off" our backs so we can deal with it in our own 
way"? 

Mr. Dear. No, not at all. 

The Chairman. Do you think there might be if there were a lot 
of red tape and inefficiency about it? 

Mr. Dear. I am sure if the administration of the law were such 
that it materially impaired the businesses' ability to function, and 
increased their cost of doing business, there would be a loud and 
clear call to the legislature and to the Governor to make a change. 

The Chairman. I only have a couple minutes left, but could you 
just briefly tell us about other State experiences that you know 
about — maybe you would like to comment on Oregon briefly, but 
other States as well. Obviously, you have a good knowledge of what 
other States are doing as well. 

Mr. Dear. I think the Oregon case is illustrative, because there 
was concern when the requirement was imposed by the legislature. 
But the practice bore out that, gee, this works; this really helps. 

You have seen States like Florida, Tennessee, Minnesota, all over 
the country, different regions, different political environments, 
stepping up to the challenge of rising costs of workplace injury and 
illnesses and deciding that as a public policy, it is desirable to give 
workers a voice. 

The Chairman. Finally, tell me what workers really bring to this 
process, by participating in these kinds of meetings and commit- 
tees? Can you give us some examples of suggestions or rec- 
ommendations that they might have that can make some impact in 
terms of the safety of the workplace? 

Mr. Dear. Many times, workers come up with extremely prac- 
tical solutions to conditions at work — adherence to safe work prac- 
tices; changes in the work environment that are relatively inexpen- 
sive modifications that result in reduction of injury and illness. 

Let us face it — if you are working, you know what is dangerous 
about your job, and if somebody asks you how to make it safer, 
what are vou going to think? You are going to think, ''They care 
about me,' and your whole attitude about your work is going to 
change if those ideas that you have are implemented. You get more 
productivity, as has been pointed out, you get lower costs of work- 
ers' compensation, you get a more competitive business. 

The Chairman. You have convinced me. 

Senator Kassebaum. 

Senator Kassebaum. Thank you, Mr. Chairman, 



32 

First, I would just like to say, Mr. Secretary, that I have always 
been impressed with the thoughtfulness with which you approach 
issues. This is a bipartisan effort, but I have some serious reserva- 
tions about this bill. And unfortunately, as with most things, in our 
desire to fix something where there are certainly additional things 
that need to be fixed, we sometimes go overboard. And I just want 
to be able to sort through some of these things and understand 
them. And certainly, Assistant Secretary Dear, you have had a 
good record in Washington State. 

On these committees, though — the reform bill says "each work 
site of the employer" — so it would be per work site if you have 11 
employees or more. Is that correct? 

Secretary Reich. Yes. 

Senator Kassebaum. Let me go back to the schools again. Would 
that include each elementary and each secondary school? 

Mr. Dear. Yes. 

Senator Kassebaum. Is that how you have it in Washington? 

Mr. Dear. Yes. 

Senator Kassebaum. Each school has a health and safety com- 
mittee, and they draw up their plans? 

Mr. Dear. Right. 

Senator Kassebaum. The teachers do that? 

Mr. Dear. Within the workplace, whether it is public or private, 
a school or a business. Obviously, you have in an educational insti- 
tution a very similar set of hazards. 

Senator Kassebaum. Well, it just seems to me it would take a 
lot of time for teachers to do this. 

Secretary Reich. Senator, if I may, because although I do not 
have the direct experience that Joe Dear has, I certainly have 
spent a lot of time over the past year and then in my former life, 
talking to workers, visiting a lot of work sites, public and private. 

To set up one of these committees and to develop a plan for 
workplace safety does not take all that amount of time. Really, it 
can take a very little amount of time. What it does is it focuses at- 
tention to the people who usually know better than anybody else 
how to improve workplace health and safety. There is a hazard 
around that can easily be abated. What can we do about it? It is 
a problem-solving team. 

And as you saw fi-om the graphs and charts that I provided, 
workplace nealth and safety is an issue everywhere. 

Senator Kassebaum. Well, it is, that is very true, and it is true 
that the consumers, the workers, play a major part in that them- 
selves. From the standpoint of fatalities, isn't it correct that 40 per- 
cent of the fatalities are due to fatal transportation accidents, and 
that for women, the leading cause of death on-the-job is homicide — 
isn't it true that is the highest fatality for women on site? 

Mr. Dear. That is correct. 

Senator Kassebaum. Which is a rather shocking figure, in light 
of the fact that no matter how much you might deal with health 
and safety issues, that aspect of it would prove to be difficult to ad- 
dress. 

Secretary REICH. Senator, let me say two things. We are dealing, 
obviously, with injuries, fatalities and illnesses. There are going to 
be certain things that, no matter how you 



33 

Senator Kassebaum. Right. I am iust pointing to the fatalities. 

Secretary Reich. Sure — no matter now you try to avoid it, it may 
be very difficult to avoid. But as you saw agam from the graphs, 
many of these things are avoidable, and they are avoidable at rel- 
atively low cost. 

You mentioned the time. Let me just mention that a sampling of 
employers who currently have safety committees shows that the 
average committee has five members; each committee member 
spends an average of one to one and a half hours on committee 
business, including travel time, training time, support staff, other 
duties, in addition to the one and a half hours — it is just 1 monthly 
meeting — for an average of three hours per month per member. 

The Employment Division — and I believe this is from Oregon — 
applying these numbers for members' time and wages, an effective 
employer's average annual fiscal impact should be — and again, the 
number I have here is $349 per committee member per year. 

Now, again, given the amount of safety and health prevention — 
the amount of safety and health that you buy, the amount of acci- 
dent prevention, illness prevention and fatality prevention that we 
see from Oregon and Washington and several of the other States — 
that is a very, very small price to pay. 

Senator Kassebaum. Let me just say I think there is certainly 
a strong feeling in the Senate — and I would assume in the House 
as well — that we really should find a better way of reform of 
OSHA, and that is what we need to get at here, and that is why 
I am asking these questions. It is not to be saying it will not work. 
I have serious reservations about the additional paperwork in- 
volved. 

But let me just give you an example of what drives people up the 
wall. This is a Dave Barry column which I am sure you have prob- 
ably heard about, and a true event in 1993. People say, oh, well, 
do not just give us the worst-case scenario — and I have used that 
myself— but it is stories like that that cause people to ask why we 
have to reform OSHA in the way that your bill does. There were 
two plumbers at a job site who rescued a backhoe operator who 
was buried in a collapsed trench that fell on him. OSHA fined the 
plumbers' employer because the rescuers did not have approved 
hardhats, and there was a $7,000-some fine, which was dropped, 
I understand, because for one thing. Senator Dirk Kempthorne in- 
tervened and called attention to it. 

But it is that kind of thing that highlights the need to bring 
some common sense to the very requirements that are important. 
And when it is said that we do not have alternatives, yes, indeed 
there are alternatives — the Vice President offered some in his 
"Reinventing Government" when he recommended allowing private 
sector health and safety auditors to evaluate workplace safety pro- 
grams. Would this be something that you think would be a good 
idea? 

Mr. Dear. Yes. Let me talk about OSHA stories for a moment, 
because we all know them, and we all pick them up when we ex- 
plain the line of work we are in. 

Senator Kassebaum. Yes. And I am sympathetic because I do not 
like worse-case scenario stories, either, but they cause the public 
to be really skeptical. 



34 

Mr. Dear. And as you pointed out, when that particular instance 
was drawn to someone's attention, the citation was withdrawn. But 
I think we have an opportunity to write a new OSHA story, an 
OSHA story about saving Hves and preventing serious injury and 
protecting the health of workers; an OSHA story that focuses on 
the most serious threats to worker health and safety and then 
makes changes in resource allocation, be it enforcement or stand- 
ards or education and training, that will make a real difference. 

Committees and programs m the workplace really will be a new 
approach to OSHA, and there is certainly room within that ap- 
proach for ideas like those of the National Performance Review. 

Let me give you an illustration. Suppose I came in, and I said, 
gee, I would like to have OSHA have the capacity to inspect each 
work site once a year and to have a program in each one of those 
work sites. How many compliance inspectors will we need to add 
to OSHA's payroll in order to do that? The answer is about 20,000, 
and the price tag would be about $2 billion if we count in what we 
would have to provide to the States so they can match that effort. 

This bill, through its requirement for programs and committees 
and their work to inspect not once, but four times a year, would 
enormously increase the reach and range of safety and health. I 
mean, this really is a new approach. We are saying let us turn the 
attention to workplace safety and health to the workplace, not to 
a bureaucracy that is down the street from this building. 

Senator Kassebaum. Who would inspect four times a year in- 
stead of once? 

Mr. Dear. Well, my illustration was that with this bill, the work- 
ers and the employers themselves would do that work. There will 
be a plan, and there will be a committee. 

Senator Kassebaum. And so they could audit their own work- 
place safety. 

Mr. Dear. That is the whole point. That is the whole point. 

Now, the National Performance Review idea says there may need 
to be independent, third party verification of these plans. And I 
think in certain particularly hazardous industries, that may well 
be the case. We want to test this out in certain enforcement set- 
tings. I am very pleased to learn that some professional associa- 
tions like the American Society of Safety Engineers and the Amer- 
ican Industrial Hygiene Association are talking about what do we 
need to do to have a core of certified professionals who could meet 
that need. 

But there is no suggestion that we give up enforcement in order 
to have third party inspections. It is not a supplementation. It is 
an augmentation of that work. 

I think there is great opportunity in this area. 

Senator Kassebaum. Well, I think there is great opportunity, as 
I said earlier, to reform OSHA. I would hope we could have a sys- 
tem that would not just be adversarial, but to try, because the pur- 
pose is to work together, to improve workplace health and safety, 
and not just to impose fines. Fines obviously are there as a stick, 
but I would hope the reform bill is not designed just to collect fines. 

Secretary Reich. Right. Senator, if I may, one way of envisioning 
this is that there are two models of how to go about improving 
health and safety at work. One is the old model, which is like any 



35 

old regulatory model — they command and control and enforce and 
penalize. When you have 9 million workplaces in the country, and 
you have a very limited number of inspectors, it leads to all sort 
of picayune inspections and regulations, a lot of the stories that 
you and I and others have heard over the years. And unfortu- 
nately, at the end of the dav, you still have the problems, many of 
the problems that we have been talking about, and I charted some 
of them getting worse and worse, and some employers looking at 
fines as simply the cost of doing business. 

There is a second model suggested by this legislation, which is 
prevention and collaboration at the workplace between workers 
and managers. And instead of getting into the picayune and trying 
to inspect every, single site, what you have is, with regard to en- 
forcement, particularly going after those employers who are will- 
fully negligent and punishing them, so it is not a cost of doing busi- 
ness. 

So you are creating a set of incentives that better match the kind 
of incentives that will get you health and safety at a reasonable 
and responsible cost. 

Senator Kassebaum. Thank you. 

Thank you, Mr. Chairman. 

The Chairman. Senator Metzenbaum. 

Senator Metzenbaum. Mr. Secretary, I address myself to my col- 
league from Kansas. 

Senator Coats mentioned before the amount of paperwork that 
had to be done, and maybe there is too much paperwork. I do not 
know, but it sounded to me as if he was making a good case. But 
if there ever were a situation where a piece of legislation calls for 
us to work together, this it it — we need to do something to prevent 
these deaths. These are the toughest deaths; these are the deaths 
of a loved one going to work in the morning and his wife being 
called and his family being told he or she lost their life on the job. 

Now, these worker committees have the potential — and the re- 
ality — that they are saving lives, they are providing safety mecha- 
nisms. And one of the things I do not quite understand is why we 
get so much opposition from employers, because when they have a 
loss of a life or an injury, it is charged against their workers' com- 
pensation. It is not something that they can just turn their backs 
on; it is charged against them. 

There are some problems in this world that we cannot solve. But 
there are other problems that we can do a hell of a lot toward solv- 
ing, and this is one of them. 

I have worked with the Senator from Kansas before, and some 
of the other members on the other side of the aisle, and we have 
been able to reason together and to achieve the necessary objec- 
tives. But on this issue, we have been trying to do something in 
this area for the last 6 years. We know the administration was op- 
posed, and now this administration is supportive. I do not want 
this to be a question of getting 51 votes; I want to get 85 or 90 
votes. 

So I just hope that the Senator from Kansas and the Senator 
from Vermont and the Senator from Minnesota and the Senator 
from Indiana and the other Senators on that side of the aisle will 
see fit to move expeditiously. Let us craft a piece of legislation that 



36 

maybe is not everything that Senator Kennedy wants, or that this 
Senator wants. But let us go 75 or 80 percent of the way. There 
is no reason for all of these people to lose their lives. It is incred- 
ible. If you lose your life in a war, it is understandable, but the fact 
is we are losing so many lives to worker injuries, and this is a 
problem we can do something about. 

So I just implore you, I beseech you, I entreat you, I beg you — 
let us move with dispatch; let us move a bill to develop worker 
committees, to make it possible to work with the Secretary of 
Labor, who is certainly knowledgeable in this area, and let us save 
the lives that can be saved. 

I say to you that I am willing, as one member of this committee, 
to negotiate, to be malleable, but let us get the objective done 
today. Tomorrow is too late. We should have done it yesterday. 

Thank you, Mr. Chairman. 

The Chairman. Thank you very much. Senator Metzenbaum. 

Senator Bingaman. 

Senator Bingaman. Thank you, Mr. Chairman. 

Mr. Secretary, it is good to see you, as always, and I compliment 
you on the excellent job you are doing. 

There is a provision we put in the Senate bill in 1992 at my sug- 
gestion, which is based on a success we have had in my State of 
New Mexico. Specifically, in our State, we have had very good suc- 
cess at getting employers and union leaders to jointly establish a 
Safety Resource Council, which has taken on significant respon- 
sibility for identifying the worker safety problems in our State and 
trying to deal with those, of course, without any legal authority to 
deal with them, but basically, working with the employers in- 
volved, working with the unions involved to see if those problems 
could not be solved. 

We put a provision in the Senate bill, which is in Section 701, 
which provides that the Secretary can award grants to establish or 
support the functioning of regional or State saiety resource councils 
or centers, which would work with employers and employees to 
deal with this. 

I wanted to ask you whether you have given any thought to that, 
or the Assistant Secretary, whether he has given any thought to 
that or had experience that kind of thing occurring in Washington 
or any other State. I seems to me that this is veiy consistent with 
what the Vice President had in his National Performance Review, 
that we get some folks in the private sector — so that you do not 
have to have more people on the Grovemment payroll — that you get 
someone in the private sector to take ownership of this problem 
and deal with it in a real way. 

Secretary Reich. I could just say one thing. I have heard about 
the successes that you have had in your State, Senator, and I have 
also heard that other States are at least interested. Because work- 
ers' compensation costs keep going up so rapidly, there is more and 
more interest in research and training and developing institutes 
that will improve the knowledge among the employer base and also 
employees with regard to worker health and saiety practices. 

But Joe, maybe you have some direct knowledge. 

Mr. Dear. Yes, sir. I have experience with the construction in- 
dustry in my home State, which saw an alarming increase in the 



37 

number of fatalities on the job. We convened a construction advi- 
sory committee with labor, vsrith management, union, and nonunion 
contracts, looked at the data, and over a couple of years developed 
programs that intervened in that, and produced a sustained de- 
crease in workplace fatalities. 

I commend the program you have in your State. OSHA grants for 
education and training can be among the most effective use of 
OSHA appropriations possible because it accelerates the trans- 
mission of information about what works in the workplace, and co- 
operative programs find that common ground between workers and 
employers that produces tangible economic and human benefits for 
all. 

Senator Bingaman. Let me also refer to a reference you make on 
page 7 of your testimony. You refer to the House bill as containing 
a provision for alternative mechanisms for employee participation, 
and indicate that that is a provision you think is worthwhile and 
should be adopted as part of our legislation as well. 

Maybe you could elaborate on that. I think the concept of build- 
ing flexibility into this legislation is one that appeals greatly to me. 
You have said several times here that one size does not fit all; we 
have very different circumstances in different parts of the country, 
different sized employers, different types of employers have very 
different circumstances. Do you have other thoughts about what we 
could do to this legislation to ensure that flexibility so that you do 
not have unreasonable requirements being imposed? 

Secretary REICH. I think. Senator, that the House provision is a 
good possibility. The notion is that we want employees, particularly 
employees who are closest to where the potential hazards might be 
lurking, to have a voice. Now, how do you ensure that voice? There 
may be a variety of possible ways. You do not want to tie the hands 
of employees or employers; there may be different circumstances. 
It may be that you want employees to be rotated through some sort 
of committee; maybe some sort of rotation system is good. Maybe 
there ought to be some participation based upon interest or based 
upon a vote. 

There may be a variety of ways of doing it. The important point 
is that they have a voice and that they have an unintimidated 
voice to point out, locate, and identify potential hazards. 

Senator Bingaman. On this issue of too much paperwork, is 
there something we could do in this legislation, or is there some- 
thing you can do to take that problem head-on? We constantly hear 
about it, and the preparation of these plans is going to be a mon- 
strous undertaking; the recordkeeping requirements are too much. 
What can we do to ensure that those requirements are not more 
than they need to be and still get the job done? 

Mr. Dear. Well, OSHA is starting with its own paperwork re- 
quirement. We ask our compliance officers if their field operations 
manual, their guidebook, if you will, could be simplified. It is over 
700 pages long today, and that is our own guidance to ourselves. 
They came back with a 90-page version of that document, a much 
more streamlined approach to inspection. So we are starting with 
ourselves. 



38 

We will this year bring forward changes to the recordkeeping re- 
quirements. This will allow us to address issues for electronic re- 
porting, to take advantage of information technology, and to sim- 
plify that requirement. 

We do need to keep data, accurate date, about what is happening 
in the workplace. We cannot manage effectively without it. We do 
need to be concerned about the paperwork requirements associated 
with transmitting information about hazards. But we also need to 
be concerned about the fact that we only have 25 health standards 
in our regulations, and there are thousands and thousands of 
chemicals out there that may have toxic properties. 

I think we can use this bill to address both sides of these con- 
cerns. 

Senator Bingaman. That is all I have, Mr. Chairman. Thank you 
very much. 

The Chairman. Thank you. 

I have just a few additional questions, and I think you have an- 
swered most of them, but I would like to just make sure we have 
a complete record. 

Is this really legislation that will require another massive new 
bureaucracy in order to implement it? 

Secretary Reich. Let me begin with that, Senator, and say that 
I think this is a piece of legislation that prevents a massive new 
bureaucracy. Getting those people who are closet to the potential 
hazards engaged in ferreting them out and preventing them is a 
far better alternative than trying to police every workplace in 
America and having literally armies of Federal bureaucrats and 
employees going around, issuing citations. 

This gets to u\e core. This is a preventive measure, and this elic- 
its the enthusiasm, interest, knowledge, and understanding of the 
people who are on the front line. 

The Chairman. How about those who ask, isn't this going to crip- 
ple American business with a lot more costs, is this another man- 
dated program that will saddle American business? 

Secretary Reich. Well, we are reviewing every cost estimate that 
we have found. As I said, we have data from States that have un- 
dertaken these kinds of programs, and those data suggest that 
these are not expensive programs. And certainly, when you con- 
sider the costs avoided — both the economic costs, workers' com- 
pensation, the problems of lack of productivity, lost workdays and 
so forth, and also when you consider the human costs. But we are 
sensitive to that, and we are reviewing that, and we will continue 
to review those data. 

The Chairman. For the reasons you have outlined, it would cer- 
tainly appear in Washington, Oregon, and these other States that 
they have achieved dramatic savings for business. 

On the issue of including public workers under the coverage of 
the act — is that something that is important to you and the admin- 
istration, having coverage for those workers as well? 

Secretary Reich. Yes. Public workers do need to be included. As 
I indicated in my opening statement, and the charts revealed it, 
workplace hazards do not stop at the door to the private sector, and 
there is no reason that public sector employees should be any less 



39 

protected or exposed to any greater hazards than private sector em- 
ployees. 

The Chairman. This would apply to the Senate, I imagine, as 
well, and to Congress. I think we will certainly make sure that it 
will. 

Now, you exclude — not completely — ^but you exclude employers 
with less than 10 employees, and yet your chart shows that in too 
many instances, these are the worksites where the greatest risks 
exist. Why shouldn't they be covered as well? 

Secretary Reich. Well, they are not excluded. They are included 
with regard to developing plans and concentrating on how to avoid 
workplace hazards and improve health and safety. The judgment 
was that with regard to committees themselves, that was a little 
bit too much of a burden with regard to workplaces under 11, and 
I think the judgment was probably correct that we could, simply 
by focusing attention on the smallest of businesses and developing 
a plan and ensuring that they are focusing their attention on that 
problem, get a great deal of improvement in workplace safety. 

Joe, do you want to add to that? 

The Chairman. Yes. What do they do in these 12 States, Mr. 
Dear? 

Mr. Dear. I am not aware of States that have a committee re- 
quirement below 11 employees. 

The Chairman. What happens in Washington for the smaller em- 
ployers? 

Mr. Dear. Well, we do require, as your bill would, the program, 
and that gets the discussion going — OKay, what are the hazards in 
this workplace? How can we eliminate these hazards, or what do 
we have to do to have precautions in place? How can we manage 
a program? That conversation in a workplace with 10 or fewer 
workers can be done informally. 

The Chairman. And it has been effective there? 

Mr. Dear. Yes, sir. 

The Chairman. Maybe you could give us some additional infor- 
mation and find out for us what is happening in these other States 
that have been doing it, how they have dealt with it and their own 
evaluation of what is working and how it is consistent or not con- 
sistent with this legislation. 

On the food safety inspector training, ever since the Hamlet poul- 
try plant fire in 1991, OSHA has been trying to work out an agree- 
ment with the Agriculture Department's Food Safety Unit to make 
sure food safety inspectors are trained to recognize occupational 
hazards. 

I understand an agreement was finally reached last week be- 
tween the two agencies, and training will begin no later than 4 
months from now. Will you keep us informed if there are any fur- 
ther delays? 

Secretary Reich. Yes, absolutely. 

The Chairman. And maybe you could give us your response 
about how valuable you think that is. I guess I ought to be asking 
with regard to seafood as well; I do not know what you are doing 
in terms of that area, so let me propound a question to you just 
to find out where we are in some of those areas. 



40 

I want to thank you very much for being here. As vou can gather 
from the tone of this hearing, we want to try to really focus on the 
legitimate areas of concern of members and try to find ways of 
coming to grips with them. And I must say this is a very, very 
helpful presentation, and I think the testimony, particularly of Mr. 
Dear in terms of the real world practical effect of this, is enor- 
mously helpful and valuable. 

So we will ask if members have additional questions that they 
get them to you by the end of this week. This is important legisla- 
tion, and we have every intention of moving on it. 

We thank you again, Mr. Secretary. 

The committee stands in recess. 

[Whereupon, at 12:50 p.m., the committee was adjourned.] 



FURTHER PERSPECTIVES ON OSHA REFORM 



TUESDAY, MARCH 22, 1994 

U.S. Senate, 
Committee on Labor and Human Resources, 

Washington, DC. 

The committee met, pursuant to notice, at 10:00 a.m., in room 
SD-430, Dirksen Senate Office Building, Senator Edward M. Ken- 
nedy (chairman of the committee) presiding. 

Present: Senators Kennedy, Wellstone, Kassebaum, Durenberger, 
and Hatch. 

Opening Statement of Senator Kennedy 

The Chairman. We will come to order. 

This morning, we continue our hearings on reform of OSHA, the 
Occupational Safety and Health Act. OSHA was enacted in 1970, 
but it has become increasingly clear in recent years that it has 
failed to achieve its promise of a safe and healthy workplace for the 
Nation's workers. 

Since 1988, the committee has conducted a series of hearings 
that have spotlighted OSHA's problems. We have heard from many 
witnesses, including OSHA administrators, worker representatives, 
and employer representatives. Last month. Secretary of Labor 
Reich, and the current administrator of OSHA, Joe Dear, testified 
before the committee in favor of S. 575, the reform legislation that 
Senator Metzenbaum and I have introduced. 

Today we will hear from members of the business community 
about the bill. We will also hear from representatives of public 
workers, who lack basic safety and health protections because of 
loopholes in the current law. In addition, we will hear testimony 
from the commissioner of labor of Minnesota, one of the growing 
number of States which has required employers to adopt safety and 
health programs and safety and health committees. 

Eleven States now require employers to adopt safety and health 
program, and 12 require employers to maintain employer/employee 
committees at worksites. The experience of these States dem- 
onstrates the importance of these requirements. In State after 
State which has adopted such preventive and cooperative meas- 
ures, the injuries and workers' compensation costs have shown sig- 
nificant declines. The chart on my right is a clear indication of 
where States have been moving over the period of the recent years. 
Some progress has been made, but workers in the other States do 
not have the kinds of protections that the legislation provides. 

In Oregon, where safety and health committee requirements and 
other reforms were enacted in 1990, injury rates have dropped by 

(41) 



42 

10 percent, and employers have saved more than $1 bilhon in 
workers' compensation and related costs. 

Some business groups oppose the legislation because of the po- 
tential cost of compliance. But there is significant evidence that in 
fact, sensible health and safety precautions will actually save 
money. 

According to the Business Roundtable, implementation of a com- 
prehensive health and safety program at Air Products and Chemi- 
cals Incorporated reduced workplace injuries by more than 50 per- 
cent over 5 years, resulting in savings of $1.7 million. 

At John Deere, a comprehensive safety and health program re- 
duced injuries and saved workers' compensation costs of $32 mil- 
lion in a single year. 

Over a 4-year period. Mobile Chemical Company brought all of 
its plants into OSHA's voluntary protection program, and savings 
amounted to more than $1.6 million. 

Many companies already have voluntary safety and health pro- 
grams. Under the pending legislation, they will have to make 
minor or no changes, resulting in little or no extra cost. Clearly, 
the savings from safety and health programs to companies can be 
significant. Any valid analysis of the cost of this legislation must 
include ■^n analysis of such savings. 

Finally, it is important for OSHA to cover public service workers. 
For too long, they have been left out, at a considerably high cost 
to the employees and the taxpayer. 

Each year, according to the National Safety Council, 1,700 public 
sector workers are killed on the job, and almost half a million suf- 
fer disabling workplace injuries. 

There is no justification for denying coverage, for example, to 
public safety and public health personnel. Many of them hold haz- 
ardous jobs that expose them to dangerous conditions without the 
protection that workers in comparable conditions in the private sec- 
tor enjoy. 

In the case of public sector workers, the State taxpayers pay for 
the cost of the injury and for workers' compensation. These workers 
pay three times. They miss work and wages because of avoidable 
injuries and illness. As taxpayers, they absorb the cost of work- 
men's compensation and the hiring of replacement workers. And 
these increased costs drive down their ability to obtain higher 
wages and better benefits. 

Many of these issues will be debated by our witnesses today, and 
I welcome them to the committee and look forward to their testi- 
mony. 

Our first panel today features three witnesses who, while com- 
mitted to safety and health in the workplace, take quite a different 
perspective from our proposed legislation on how to achieve the 
aims of a safe and healthy workplace for all workers in the United 
States. 

Representative Harris Fawell joins us from the House, where he 
sits on the Education and Labor Committee. He has introduced leg- 
islation in the House which takes a different approach from the 
legislation we are considering today. Excuse me. Representative 
Fawell, for mispronouncing your name. 



43 

Mr. Eamonn McGeady joins us from Baltimore, where he owns 
a marine construction company that operates in Delaware, Mary- 
land and Virginia. He is representing the National Federation of 
Independent Business. 

Mr. Holt, of the Employment Policy Foundation, has testified 
previously before our committee concerning similar legislation we 
introduced in the 102nd Congress. He is accompanied by Alan 
Simon, an economist from the Foundation. 

Congressman, we are glad to have you join us. I do not know 
why, but Reverend Falwell is on my mind sometimes, since I went 
to visit him down in Virginia a number of years ago. I apologize 
to you, but am delighted to welcome you here before the committee. 

We appreciate the presence here today of our first panel. We had 
to reschedule them from a previously scheduled hearing, and we 
apologize for the inconvenience. We ran into unavoidable conflicts 
last time in terms of Senate floor action, so we appreciate your 
coming today. 

Congressman, we appreciate your taking the time to be here 
today. We know you have spent a good deal of time thinking about 
this issue, and we look forward to your testimony. 

STATEMENTS OF HON. HARRIS W. FAWELL, REPRESENTATIVE 
IN CONGRESS FROM THE STATE OF ILLINOIS; EAMONN 
McGEADY, PRESIDENT, MARTIN G. IMBACH, INC., BALTI- 
MORE, MD, ON BEHALF OF THE NATIONAL FEDERATION OF 
INDEPENDENT BUSINESS; AND JAMES HOLT, SENIOR ECO- 
NOMIC AND VICE PRESIDENT FOR RESEARCH, EMPLOY- 
MENT POLICY FOUNDATION, WASHINGTON, DC, ACCOM- 
PANIED BY ALAN E. SIMON, ECONOMIST 

Mr. Fawell. Thank you, Mr. Chairman. I might add that I have 
received mail addressed to the Reverend Falwell that is delivered 
to my office from time to time, so you are not alone. 

Mr. Chairman, I appreciate the invitation to testify before you 
today on the issue of OSHA reform and to present testimony in be- 
half of the bill which I and 16 of my colleagues have sponsored in 
the House, which is H.R. 2937. 

I also want to thank Senator Kassebaum and Senator Hatch for 
introducing similar legislation last week in S. 1950. 

Our bill takes a very different approach to OSHA reform from 
the legislation introduced by Chairman Ford in the House and by 
yourself, Mr. Chairman, in the Senate. But I do want to emphasize 
that I, as much as I am sure all of the members of the committee, 
want safe jobs and safe workplaces for our Nation's workers. Our 
disagreements and differences are about means, certainly not ends; 
about approaches and not goals. 

I think that few people are satisfied with OSHA's performance 
over the last 23 years. But it is important to point to the improve- 
ments made in workplace safety and health during those same 
years. The occupational fatality rate is now at the lowest point 
ever. The rate of serious injury caused by workplace accidents was 
also at its lowest point for the lowest reported year, which was 
1992, since those statistics have been kept by the Department of 
Labor. And while issues of safety and health oDviously remain, and 
I am not recommending in any way that we can simply give up on 



44 

further reductions in workplace death and injuries, we need to 
enter into reform with a clear picture of what the current situation 
is, and that picture is, overall, a safer workplace and more atten- 
tion being paid to safety and health than in any time in recent his- 
tory, for which I am sure we are all thankful. 

But we also need to ask the same question for OSHA's programs 
that private companies have had to ask of each of their programs 
and activities, and which increasingly Government is being asked 
as well. That is, what is the value added by these programs to 
achieving the goal of fewer injuries and accidents, and how can we 
achieve greater value from the program. 

Interestingly, when that question was asked by Vice President 
Gore's task force designed to "reinvent Government," they con- 
cluded, as have we, that what is needed is not more mandates and 
regulations from Washington on employers, or heavier penalties by 
which OSHA inspectors can threaten employers, but incentive for 
workplace safety and health compliance and the use of market 
mechanisms to improve safety and health in the workplace. 

None of us is so naive as to think that all employers do every- 
thing right, but I think we also ought not to fall victim to thinking 
that all employers do everything wrong "but for" the strong arm of 
Govemnw^nt to constrain them. Certainly, there is the need for en- 
forcement measures, but Congress too often, I think, legislates as 
though the worst employers were in fact typical employers. The bill 
introduce, Mr. Chairman, by yourself and Chairman Ford, in my 
view goes too far in that direction. 

It also, I think, exacerbates many of the problems which have 
plagued the OSHA program. OSHA has often and accurately been 
criticized for focusing Government enforcement on paperwork and 
nitpicking violations, rather than finding real safety problems. But 
the Kennedy/Ford approach is built, it seems to me, on new paper- 
work regulations for employers to comply with and for OSHA in 
turn to cite. 

Relations between OSHA and employers are often unnecessarily 
adversarial, considering that employee safety should be in the in- 
terest of both as well as, obviously, the employees. But the Ken- 
nedy/Ford bill, I believe, expands the possibility of civil and crimi- 
nal violations by employers as well as their officers and manage- 
ment officials, and even their supervisors. 

OSHA has had difficulty in issuing standards in a timely and 
reasonable manner, but the Kennedy/Ford bill, I believe, would cre- 
ate even more stringent legal tests, denying cost-benefit analysis 
even where it is now currently permitted, and forcing OSHA, in my 
view, to write standards that are even more likely to be fought 
with every resource available by the affected industries. 

In contrast to this approach, our bill contains no new mandates 
on employers, nor do we point a "holster-fuU" of new penalty provi- 
sions at employers. Our bill attempts to reorient OSHA's compli- 
ance philosophy from one of confrontation — a philosophy which 
measures success by the number and amount of penalties levied, 
and not by results — to one which will help employers comply with 
the law and one which will provide incentives to employers to un- 
dertake meaningful steps to improve workplace protection. 



45 

I would like to highlight just three parts of our bill — which of 
course, is a very arcane one, as is the entire act — because I think 
they are key to our approach to OSHA reform. 

First of all, Section 7, Workplace-Based Incentives. It was per- 
haps only a stroke of fortune that shortly after we introduced our 
legislation last August, Vice President Gore's Task Force on 
Reinventing Government came to a recommendation similar both 
in spirit and detail to the one that we had included in H.R. 2937 — 
to provide incentives encouraging employers to voluntarily utilize 
outside or inside expertise in a formal way to educate and certify 
compliance with safety and health rules. 

But I think that it was not due to fortune, but really to inde- 
pendent efforts of each of us taking a serious look at OSHA's mis- 
sion and resources and then asking how, by emphasizing new con- 
cepts, we can better utilize the OSHA program to be an integral 
part of the overall picture of improving workplace safety and 
health. 

The Gore report, of course, urged the Department of Labor to un- 
dertake a program to provide market incentives through regula- 
tion. Mr. Grore aptly stated that "No army of OSHA inspectors need 
descend upon corporate America." He called for OSHA, and I quote 
again, "to establish a sliding scale of incentives designed to encour- 
age workplaces to comply," adding that worksites with good health, 
safety, and compliance records would be allowed to report less fre- 
quently to the Labor Department, to undergo fewer audits, and to 
submit less paperwork. The need to do so through legislation has 
become evident since that report was issued. 

Our bill provides that an employer who voluntarily utilizes the 
services of a third party consultation program — and those would be 
expanded beyond tne current 46 programs that are funded by Fed- 
eral grants — would be so certified and thereby be exempt from 
radon inspections by OSHA. Inspections triggered by employee 
complaints or accidents would continue to be conducted. 

In addition, an employer who had a good internal safety pro- 

fram, and could demonstrate that its injury record is below the in- 
ustry average, would also be exempt from random inspections. In 
addition, we would give employers partial reductions in penalties 
if they meet either of the same two criteria. 

I am not going to claim that we have necessarily structured the 
incentives in our bill in precisely the best way, and we would be 
more than happy to be a part of a discussion about how best to 
structure incentives in the OSHA program. I thin that it is impor- 
tant, however, that the incentive program 1) be widely available to 
employers and 2) place emphasis not on compliance with detailed 
program regulations, but on the bottom line, which is improved 
safety and health. 

In that regard, let me say that others have suggested working to 
expand the current voluntary protection program is the way to go, 
and certainly, that program is a valuable part of the OSHA pro- 
gram, and I would certainly be happy with anyone with ideas on 
this subject. But I would be concerned by any tradeoff that allows 
incentives under the VPP only for 100 or so companies that can ad- 
ministratively qualify for incentives, while imposing even more 
mandates on everyone else. 



46 

The second point I would stress is changing OSHA's undue reh- 
ance on penalties and encouraging greater cooperativeness. Along 
with providing incentives for employers to undertake steps to im- 
prove safety and health, I believe that the OSHA program would 
be improved by a greater balance between enforcement on the one 
hand, and education, training, and other types of outreach activi- 
ties. If, as commonly stated, "safety pays" for both employers and 
employees, then working with employers and employees to improve 
safety and health, rather than simply penalizing employers for 
noncompliance with detailed Government regulations, should be an 
effective way to improve job safety. And in fact. State OSHA pro- 
grams which have made education, training and outreach an inte- 
gral part of their programs have found this to be the case. 

I am pleased that the Kennedy/Ford bill also recognizes that 
more assistance should be provided for training and education. I 
think that is the emphasis that we always must stress. 

Unfortunately, it does not offer this assistance instead of its mas- 
sive new, one way for all, safety and health and employee commit- 
tee mandates on all employers, but in addition to them. I also ques- 
tion the way in which that assistance is funded in the House bill, 
that is,, through higher civil penalties that are collected. Funding 
the program, even this part of it, through enforcement, or greater 
penalties that are collected, will simply, I think, add to the current 
perception among many, many employers that OSHA enforcement 
is largely motivated and driven by the Federal Government's insa- 
tiable appetite for more revenues. 

Finally, I would add that the way not to achieve a more coopera- 
tive atmosphere is to increase penalties in the OSHA program, es- 
pecially criminal penalties, as does the Kennedy/Ford bill, prob- 
ably, from my viewpoint at least as an attorney, to the extent that 
OSHA inspectors would have to issue Miranda warnings in many 
cases, because of the more stringent criminal penalties that are in- 
volved, and maybe search warrants before an employer could even 
feel that h could cooperate. Well, that is not, I think, an atmos- 
phere that any of us really want. 

Finally, a third point is in regard to standards. OSHA's failure 
to issue safety and health standards is often cited, and rightly so, 
as a prime example of its failure to carry out the intentions of the 
Occupational Safety and Health Act. I must say that I agree to 
some extent — in fact, I fully agree — with that type of criticism. 
Thirty-three standards in over 20 years is not a very good record. 
But the problem is not just that few standards are issued, but that 
those which are issued have to meet extremely stringent legal 
tests. 

I would point out that when the Occupational Safety and Health 
Act was being written, according to sources. Republicans favored a 
proposal which included an independent standards-writing board, 
independent of the Department of Labor, with representatives of 
both management and labor. The idea was that people in affected 
industries could generally write standards which were more clear, 
more practicable, and more reasonable than Government bureau- 
crats could. I think that the logic of that idea still holds. 



47 

We have been troubled over the years with the perfect in stand- 
ard-setting being the enemy of the good, and thus we have gotten 
33 standards only being approved. 

While we have not reintroduced the idea of an independent 
board, we have created the preference for negotiated rulemaking 
for the very same reason, that inviting in a formal way the involve- 
ment of people who will have to comply with the standard early in 
the process will help to write more reasonable standards. We will 
get good standards, certainly, by that mode. 

We believe OSHA's standards can also be made more practicable 
and more reasonable, but to do so may require a change in statute 
to give the agency greater flexibility in regulating risks. I know 
that this is a contentious idea. I think that the current situation 
clearly results in, as one commentator said, "overregulation leading 
to underregulation." Once again, the perfect being the enemy of the 
good. 

Finally, I want to mention the issue of public employer coverage 
in our bill. With regard to the important issue of congressional cov- 
erage, we have attempted to apply the OSH Act to Congress as 
closely as possible to the way in which it affects the private sector. 
I am a strong believer that if we do that, we will have much, much 
more acceptance and respect from the public in general, while of 
course, trying to avoid some of the sticky questions about separa- 
tion of powers. I think we have done that, and I would be some- 
what critical, Mr. Chairman, of your bill inasmuch as the congres- 
sional coverage deals only very weakly with the subject, it would 
seem to me. 

Second, with regard to State and local governments, we have de- 
cided since the introduction of H.R. 2937, as I noted. Senator 
Kassebaum did as well, not to change the current law which allows 
States to adopt plans to cover State and local governments. Some 
people feel that this situation has not worked and that we need to 
mandate coverage of all State and local employers from the Federal 
level. I think we need to be very careful, however, about imposing 
any new, unfunded mandates on State and local governments. The 
argument that the current system is "not working is made without 
any reflection on ways, if that is the case, to make it work better. 

I note, for example, that current law allows the Federal Govern- 
ment to pay 90 percent of the startup costs for a State OSHA pro- 
gram. Perhaps we need to fund that kind of authorization or make 
it better known. But in any event, I believe it would be a mistake 
to put this mandate on top of all of the others which State and 
local governments are struggling under at the moment. There are 
certainly means by which public employees can be covered through 
the States, and that ought to be the way this matter remains by 
State application of the same. Some 23 States have seen fit to 
adopt, for instance, the OSHA program, but a number obviously 
have not. 

Once again, I appreciate this opportunity to testify and present 
my views on what I consider to be a very important piece of legisla- 
tion. 

Thank you. 

The Chairman. Thank you very much, Congressman. We very 
much appreciate your comments, and you have obviously given this 



48 

a good deal of thought. Of course, you realize that there are some 
10,000 Americans killed on the job every year. The Federal Govern- 
ment spends only about $300 million a year in terms of enforce- 
ment to try to make our workplaces safer, and we spend $7 bil- 
lion — 24 times that amount^to try to improve our environment. 
We need to rethink our efforts in this important area. I know you 
feel that way, and we do as well, and we are going to try to see 
if we cannot improve the coverage, not through the expansion of 
bureaucracy, but trying to work out cooperative programs like we 
are seeing working today, with strong business support. 

In the Wall Street Journal last week, there was an excellent arti- 
cle about how safety and health committees are working, with 
strong business support, and I will include that article in the 
record. So we want to try to ensure that workplaces in this country 
are as safe and secure as possible. We know that is your objective, 
too, and we very much appreciate your taking the time to be here 
with us today. 

[The article referred to may be found in the files of the commit- 
tee.! 

The Chairman. I want to recognize my friend and colleague from 
Utah, who is turning 60 years old today and is spending his birth- 
day here, with us on this important issue. 

Senator Hatch. I keep trying to keep up with the chairman. 

The Chairman. I am just this much ahead. This race, he can 
win; I will let him win on that count. [Laughter.] 

I have no questions. Senator Metzenbaum is unfortunately ill 
today, and is not able to be here. This is a cause that he has been 
a real leader on in the U.S. Senate, and he is a leader in this com- 
mittee on that as well. We will include his statement in the record, 
and recognize Senator Kassebaum. 

[The prepared statement of Senator Metzenbaum follows:] 

Prepared Statement of Senator Metzenbaum 

Good morning. As the members of this committee well know, we 
have spent much of this Congress debating health care reform. We 
have had dozens of hearings, and written plenty of proposals. It's 
on our televisions, and in our newspapers, every day of the week. 

In contrast, reforming our OSIiA law doesn't get much attention. 
But on an average working day in America, 417 workers die in 
safety accidents or from occupational disease — that's one death 
every four minutes. And another 7,000 workers suffer disabling in- 
juries. These are staggering numbers. 

We all agree that the best way to cut health care costs is to pre- 
vent Americans from getting sick or injured in the first place. 
That's exactly what the OSHA reform bill would do — it would re- 
duce job accidents and occupational illnesses, and save billions in 
medical costs and lost work time. 

Last week. Senator Kassebaum introduced a Republican OSHA 
reform bill. I know she cares about workers in Kansas and across 
this country. But I have read the Republican bill, and I am very 
sad to say that it is not about protecting workers at all. It is about 
protecting employers. It is about protecting corporate profits, at the 
expense of workers. It is about protecting businesses that turn 



49 

their backs on unsafe conditions, in the name of corporate "flexibil- 

ity". 

Let me tell you what it does. The Republican bill protects em- 
ployers from OSHA inspections, but it does nothing to protect 7 
million public sector workers who have no OSHA coverage. 

The Republican bill protects employers from fines and citations 
if they have applied for a variance — even if the variance application 
has no merit. But it does nothing to require employers to abate 
hazards in a timely fashion, even when workers are clearly at risk. 

The Republican bill protects employers from regulations that 
safeguard workers to the extent feasible, but it does nothing to ad- 
dress the thousands of worker deaths and injuries caused by years 
of standard-setting delays. 

The Republican bill protects employers' right to dominate or 
interfere with labor organizations — including safety and health 
committees — but does nothing to guarantee workers a meaningful 
voice on safety and health issues. 

The Republican bill protects employers from having to keep 
records or disclose information, but does nothing to ensure that 
workers are informed about workplace hazards and properly 
trained to deal with them. 

The Republican bill protects employers from citations where the 
employee is at fault, and requires OSHA to reduce penalties by 50 
percent even when the employer is clearly at fault, but it does 
nothing to punish employers when they kill or maim workers with 
criminal intent. 

In short, I cannot find a single provision in this bill that protects 
workers. This Republican alternative recalls the legacy of Ronald 
Reagan, who tried his best to gut the OSHA act for the benefit of 
his big business pals, workers be damned. It is an insult to hun- 
dreds of thousands of workers who have lost their lives on the job, 
and to the families who still mourn them. We can, and we must, 
do much better. 

Senator Kassebaum. Just briefly, Mr. Chairman. 

Congressman Fawell, my apologies for missing the first part of 
your comments. You have been a true innovator in health and safe- 
ty issues. Senator Hatch and I are pleased to be cosponsors of your 
companion bill in the Senate because we both endorse the same 
emphasis that you spoke to and that you have wished to do with 
your legislation, and that is increase education, increase the coop- 
erative spirit in reaching safety and health concerns, rather than 
promote an adversarial atmosphere of penalties and so forth. 

You touched in your comments on the voluntary protection pro- 
gram and that you would not want to see that limited. Would you 
want to see it expanded? You said you thought it would be a shame 
to just keep it limited and feel that we were doing what needed to 
be done under current legislation and then expand penalties. 
Would it be a program that, from your observation, has been a suc- 
cess, and how could it be strengthened? 

Mr. Fawell. Yes, I think everyone endorses the voluntary pro- 
tection program, and I think we would all like to see it expanded, 
but it has a basic limitation because it is a tremendous bill, where 
there is a great deal that must be done by the various employers 



50 

that might quality. And that is very, very important, and to the de- 
gree that we can increase that, we should certainly do so. 

On the other hand, there are many other routes where voluntary 
compliance and cooperation can be the hallmark, and that is where 
I think that OSHA has fallen down in not emphasizing 
nonadversarial tactics and to concentrate on cooperation, true co- 
operation. 

It does not seem to me that when you mandate one way for all 
plans that you move in that direction. We have only so many in- 
spectors, some 1,100 onlv for the whole Nation, and to even ask 
them to try to oversee tne new mandates would be an enormous 
responsibility. 

But the movement, I am convinced, as is Vice President Gore in 
his "reinvention of Government" concepts to which I made ref- 
erence, that that is the way to go. That is new, breakthrough ideas, 
new ideas and new concepts, where employers can be brought into 
the education and training process and given incentives and truly 
have committees and plans that dovetail to the uniqueness of each 
employer. 

Senator Kassebaum. I certainly value the leadership that you 
have provided on this, and I know that Senator Hatch and I are 
looking forward to working with you and other members of the 
committee in seeing what we can put together to address this 
issue. 

I believe this is the last hearing, isn't it, Mr. Chairman? 

The Chairman. Yes. 

Senator Kassebaum. So we will do all we can to be supportive 
of the Fawell initiative. 

Mr. Fawell. Well, I appreciate the bill that both you and Sen- 
ator Hatch have put forward. 

Senator Kassebaum. Senator Hatch has provided a lot of leader- 
ship in the last Congress and years before that, on OSHA issues, 
so I will defer in-depth questioning to him. 

Thank you, Mr. Chairman. 

The Chairman. Senator Hatch. 

Senator Hatch. I have worked very hard at this, but I have been 
very unsuccessful with Senator Metzenbaum — and with Senator 
Kennedy as well. 

Let me just ask a couple questions. If you could look, say, 5 years 
down the road, under two scenarios — one, S. 575, the Kennedy- 
Metzenbaum bill, if that becomes law; and second, if your bill be- 
comes law this year — what would you see as the differences in 
workplace safety and health under each scenario? 

Mr. Fawell. Well, as I indicated before, I think that, with all 
due respect to the chairman and Mr. Ford, their bill leans very 
heavily upon enforcement — mandated new safety and health plans, 
mandated new employee committees, and also an increase of em- 
phasis upon both civil and criminal penalties and in addition, mak- 
ing the standard-setting even more stringent than it is now, elimi- 
nating cost-benefit analyses, for instance, making it fairly difficult 
for anybody in the enforcement process to question, after the rule- 
making process has ended, to be able to question a new standard, 
which would be very difficult upon the ordinary people out there. 



51 

So I tend to think that that type of, it seems to me, 
confrontational approach will not accomplish a great deal and will 
usurp a great deal of the time of the 1,100 people who are out there 
now, not being able to adequately do the job of really inspecting. 

Therefore, I think that Vice President Gore's concept — and that 
is incorporated — our bill was filed before the Vice President enun- 
ciated his "reinventing Government" concept as it pertains to 
OSHA — but I fully endorse his view — that would free up, I think, 
your OSHA inspectors, who then could concentrate on the real bad 
actors and target where they are going. 

There could be private entities that could come in, certified by 
OSHA, who could help in the consultation, in new concepts of safe- 
ty and health plans — there are a lot of beautiful ones out there 
that are working — and employers would know that they would not 
be subject to random inspections and things of that sort. I think 
all of that is moving in the right direction — nonconfrontational, 
working on cooperativeness. I do not think you will get cooperative- 
ness when you mandate on employers new and expensive, ex- 
tremely expensive, one-way-for-all plans that will conceivably, sup- 
posedly, fit in every type of workplace in America. I do not think 
that is the way to go, and it will be much more expensive and less 
effective. 

Senator Hatch. Just one other question. What impact, if any, do 
you believe the Kennedy-Metzenbaum-Congressman Ford bill 
would have on the ability of businesses and specifically, small 
American businesses, to create jobs and remain competitive in the 
world economy? 

Mr, Fawell. I would believe it would have to be negative, the 
cost of tryirg to meet one-way-for-all kinds of plans and employee 
committees, both of which are sound concepts, by the way; there is 
no question that every employer should have some kind of safety 
and health plan and should be doing everything possible to work 
with employee committees. Under the Electromation case, it is 
somewhat difficult to know what is or is not legal under these cir- 
cumstances, and that has to be cleared up, but that is the way that 
one should go. But when it is mandated, and you have estimates 
that the two mandates in regard to safety and health plans and 
employee committees would cost approximately $50 billion per 
year, that kind of expense upon business has to be a real det- 
riment, and there are going to be people who just are not going to 
be able to survive under those types of conditions. 

In the construction trades, I think it is an absolute disaster that 
all of the requirements in regard to the safety and health plans 
that would be required there — it would have to increase all con- 
struction, I think, significantly, and for the small entrepreneur to 
try to figure out the maze of requirements there would be very, 
very difficult it seems to me. 

I have spent some of my life in the construction trades, and I 
have some deep empathy for people who would have to try to abide 
by those requirements. 

Senator Hatch. Well, thank you. I just want to say to you that 
we appreciate the leadership that you have provided on this and 
so many other issues over there in the House. This is a tough 
issue. I think everybody wants to do what is right here 



52 

Mr. Fawell. Absolutely, absolutely. 

Senator Hatch [continuing]. And we are approaching it from two 
different ways. And I have to say that I agree with you that if we 
go with the more stringent bill, we are going to cause a lot of dis- 
locations in the economy, and there will be a lot less voluntary co- 
operation out there, which is, I think, the name of the game. 

Business people do not want to see their emplovees hurt — they 
have got to retrain others, and they have got to ao a lot of other 
things — nor do they want to face unnecessary criminal procedures. 
And they want to volunteer under the current system, or they 
would under your bill, but if you pass this bill, I think voluntary 
cooperation is going to be a thing of the past, and if that happens, 
then it seems to me safety of the workplace is going to go down 
and not up. 

Mr. Fawell. Yes. We have tried it the other way for 23 years, 
and our record is not good. 

Senator Hatch. I agree. 

Mr. Fawell. I thinK at least we owe it to the people to make a 
strong effort and strong emphasis in that direction, in voluntary 
compliance and incentives and market mechanisms. This is new, 
breakthrough thinking by people such as the Vice President, and 
I laud him for it. I think it is something we ought to really try. 

Senator Hatch. Thank you. We are very happy to have you here 
today. 

Mr. Fawell. Thank you. 

[The prepared statement of Senator Hatch follows:] 

Prepared Statement of Senator Hatch 

Thank you, Mr. Chairman. I am pleased to be here this morning 
at one of a series of hearings this committee has held on OSHA Re- 
form legislation. As I have remarked on many occasions, worker 
health and safety is not a partisan issue; it is a goal to which all 
of us aspire. 

There are major differences, however, on the means by which we 
can best achieve this goal. 

I look forward to the testimony of witnesses this morning. It is 
my expectation that their testimony will highlight those differences 
in approach. 

I also want to extend my welcome to Congressman Fawell of Illi- 
nois. He has worked long and hard on issues related to worker 
health and safety, and I look forward to hearing his views this 
morning. 

Finally, Mr. Chairman, I would simply note that last week I 
joined Senator Kassebaum in introducing a common sense and 
workable bill to reform the current system. That bill parallels, in 
many respects, one recently introduced by Mr. Fawell in the House 
of Representatives. I hope it will contribute to the dialogue on the 
methods that can best get us to our shared goals of a safer work 
environment. 

The Chairman. Congressman, I do not know whether you have 
had a chance to read the Wall Street Journal, which is not known 
as a flaming liberal newspaper, and it is not known to promote con- 
frontation mandates in the Federal Government. In this March 
16th article, it talks about "Business falling in love with workplace 



53 

safety teams." It says, "It is one regulation that small business is 
learning to love," and it continues, "Usually, small businesses 
squawk at the prospect of yet more rules to follow and paperwork 
to complete, but this time, the reception is favorable. The effect is 
particularly dramatic in small companies, because most large cor- 
porations already have safety programs and committees in oper- 
ation." And then it reviews the decline in the cost of workmen's 
compensation in the State of Oregon, which requires committees. 
Associated Industries, which is made up of all the businesses in the 
State of Oregon, saved over $1 billion in terms of workmen's com- 
pensation costs. 

You know, it is interesting that around here, you have a lot of 
theories about different public policy issues, and we have one here 
where we have evidence that it is working. The tragedy is all the 
workers in those States that are not covered by these require- 
ments. We want to be able to do that. 

I appreciate your testimony. We will have a chance, obviously, to 
discuss and debate this in these hearings. You have given it much 
thought, and we are grateful to you for your presentation. 

Senator Wellstone. 

Senator Wellstone. Thank you, Mr. Chairman. 

I will let the Congressman go. I did not get a chance to hear you, 
and I thank you for coming over. 

I think we will hear from John Lennes, who is going to talk 
about the Minnesota experience, where we have had some of these 
joint committees, which have been hugely successful with, I must 
say, broad bipartisan support. So we will wait for that, and I think 
that will be an important part of the testimony. 

Mr. Fa WELL. If I may just add, there is no question that the em- 
ployer-employee committees is the way to go. The question is in 
reference do we mandate one-way-for-all, for everybody in the Na- 
tion. Those State programs to which reference was made in the 
Wall Street Journal article, those programs are very flexible, and 
that is the way we ought to be going in terms of great flexibility, 
because we will then have an employee-employer program that 
dovetails with the unique management, total quality management, 
or centralized management — there are all kinds and types and 
shapes and sizes — of business entities in America. As long as we 
make sure that that is able to grow from the company out, that is 
the important thing, I think. 

Senator Wellstone. Again, Mr. Chairman and Congressman, I 
do not feel comfortable in holding you, and I apologize for being 
late. But let me just say this: I do not know too many people who 
stand up and say they are opposed to flexibility. I am not opposed 
to flexibility. We just have to be careful about where we're flexible. 
I have seen a history in our country where many, many working 
people — and I think it is a huge environmental issue — where we 
have seen serious injury and death, exposure to carcinogenic sub- 
stances, and all of the rest. And quite frankly — I think I have said 
this before — I think if it had been the sons and daughters of profes- 
sionals or upper-income people in the United States of America, 
there would have been a hue and cry, and we would have done 
something about this a long time ago. 



54 

So I really believe this reform is long overdue, and I want flexi- 
bility, but I also want to see some real teeth to it; I want to see 
something that is enforced, and I want to see something that will 
make a huge difference. I think that is the direction we must go 
in, but that is a long discussion, and I do not want to hold you; 
I know there are other witnesses. 

Thank you for coming. 

The Chairman. Did I understand that you do support, though, 
safety committees with representatives of the employer and tne 
employees? 

Mr. Fawell. Yes. 

The Chairman. Do you support that in every plant in Illinois, for 
example? 

Mr. Fawell. Well, I support the concept. There is no question 
that those companies that are out in the forefront and really ac- 
complishing something, total quality management, etc, everyone, 
indeed they utilize wisely — they bring employees into the total pic- 
ture and work with them 

The Chairman. But you do not mind the legislation that requires 
employers to have those kinds of safety committees that involve the 
employer and the employees? 

Mr. Fawell. The important point is that we do not try to man- 
date all* the particulars from Washington. The idea that they 
should have employee committees, no, I think that is the way to 
go. It is very, very important for a company to work in a total qual- 
ity management basis with the employees. It is when you detail it 
and have all the requirements dictated out of Washington that it 
breaks down, I believe. 

The Chairman. OK Thank you very much. 

Senator Wellstone. Thank you. 

Mr. Fawell. Thank you, Mr. Chairman. 

The Chairman. Next, Eamonn McGeady — I see you have sur- 
vived St. Patrick's Day. 

Mr. McGeady. I am still in a vertical position, Senator. [Laugh- 
ter.] 

The Chairman. Senator Mikulski wanted me to especially give 
you a warm welcome here. 

Mr, Holt, we are delighted to have you as well. 

Would you proceed? 

Mr. McGeady, Thank you, Mr. Chairman. 

My name is Eamonn McGready, from Baltimore, and I and my 
brotners own and operate a heavy marine construction firm. I 
would like to request that the chair order the acceptance of pre- 
viously-submitted written testimony on behalf of NFIB and my own 
personal statement. 

The Chairman. They will be included in the record. 

Mr. McGeady. Thank you, Mr. Chairman. 

I listened with considerable interest to Representative Fawell's 
presentation here, because it seems to me he hit a number of the 
key points that concern us. 

I guess the first of those is the "us versus them" concept that 
seems to flow throughout the chairman's bill and the companion 
bill in the House. And I do not think that that is really intended, 
but that is the ultimate result, particularly with what seems to us 



55 

the severe reliance on criminal penalties. The bill sort of indicates 
that maybe all of us are at least amoral, if not criminals, in doing 
what we are trying to do in our economy. 

And I agree with Representative Fa well that it would probably 
engender something close to you cannot come here without a 
search warrant and Miranda rights and everything else. 

For example — and I did not mean to do this, but I was just look- 
ing around — the question becomes even if a companv has a good 
safety program — and we believe ours does; we have the lowest ex- 
perience modification in the State of Maryland for our industry — 
even if there are required safety meetings, which we do have, and 
an employee does something, let us just say stupid, or in direct con- 
travention to orders given to him, then criminal penalties could be 
assessed against one of the officers or owners. 

The Chairman. Excuse me. The legislation we are talking about 
in this hearing is S. 575, which amends the Occupational Safety 
and Health Act. The only criminal penalty now under the OSH Act 
is for willful violations resulting in death. The change we are pro- 
posing in our bill with regard to criminal penalties would make 
criminal penalties also available for a willful violation that results 
in serious bodily injury. So let us talk about that. We want to let 
you make your presentation, but if you are going to characterize 
the legislation, I just want to make sure we are talking about the 
same bill. 

Mr. McGeady. Well, I think we are. Senator, because OSHA 
takes 

The Chairman. Well, then, let us talk about that. Let us talk 
about what the bill actually does. If you want to talk about another 
piece of legislation, we are glad to hear you, an d I am glad to put 
it out here, but I am not going to have the legislation which I have 
introduced just flagrantly and blatantly misinterpreted and 
misdescribed. The legislation i have introduced does not impose 
criminal penalties on employers except for willful violations where 
there is proof beyond reasonable doubt. 

Mr. McGeady. I understand that, Senator. I am not trying to. 

The Chairman. Well, then, do not. 

Mr. McGeady. What I am saying to you is that OSHA treats the 
second violation as willful. Example: One of our employees cut his 
leg with a chain saw about 2 years ago. Another employee — a dif- 
ferent employee — ^had another accident with a chainsaw. OSHA 
takes the position that that would be a willful violation because it 
was the second occurrence. I do not think you intended that. 

The Chairman. Excuse me? 

Mr. McGeady. I do not think you intended that result to follow. 

The Chairman. And I do not think that that is the correct as- 
sessment and interpretation of the law, either. I am going to let 
you talk, and I will 

Mr. McGeady. I hear where you are coming from, but that is 
what we see. 

The Chairman. Well, you may see it, but you are not interpret- 
ing it correctly. Under the law, a second violation is not automati- 
cally a willful violation. But I will let you make your presentation 
and then respond. 



r 



6 



Mr. McGeady. With respect further to the committee structure 
which was talked about, in Maryland, as your chart shows, we do 
not have the mandated committees, yet our company has operated 
for at least 30 years with those kinds of committees in place, and 
I think it has resulted in a good performance with respect to work- 
place safety. With respect to some of the statistics quoted earlier, 
I think it is easily demonstrable that currently, the worst part of 
working is driving to work; it is much more dangerous to drive to 
work than to be at work, from a statistical standpoint. 

Going to the question of site control, which I do not think is ad- 
dressed directly in your bill, but it one of the follow-on con- 
sequences that I am not sure is intended. As you may be aware, 
there are some recent court cases dealing with site control — s-i-t- 
e, of course, control — by a contractor who may not be the general 
contractor. There are some very great problems there, in my judg- 
ment, in the educational training mandates in the current bill. The 
reason is that even though we, as in our case, a heavy foundation 
contractor, are on the site as a subcontractor, we are still consid- 
ered as being a site control contractor under the current OSHA reg- 
ulations. 

Another major area that we have a good bit of trouble with is 
the consultation aspects. I believe 46 States have some version of 
consultation, but the interesting thing is that it strictly on the 
State side; it does not apply to OSHA itself. It is only if a State 
has an approved — in Maryland, of course, it is referred to as 
"MOSHA." We who are directly subject to OSHA cannot have con- 
sultations. An inspector coming onto one of our job sites cannot 
help us out. He or she must write a citation. They have no option. 

An example, again, in some of the areas of overregulation, in our 
judgment, the crane standards that are being proposed, for exam- 
ple, currently have — and as far as I know, they have not been 
adopted — currently have a requirement of between 8,000 and 
10,000 hours of training for a crane operator before that person can 
be called a full-fledged crane operator. Yet we are teaching young 
men and women to fly $50 million jets on and off aircraft carriers 
in about 200 hours. So there is an imbalance in the regulatory as- 
pect here that is fairly severe. 

Some of the aspects of the penalties, of the inspections without 
consultation, and so forth, are very troubling to us. Example: I just 
took a quick look, and here in this hearing room, there are no 
ground fault interrupters on the cables that the cameramen are 
using. That is worth about $10,000 in our industry. 

I believe that if we are able to get some sort of improvement in 
the OSHA standards, in the OSHA performance, that will allow the 
marketplace to operate — I believe Mr. Fawell was on track when 
he said let it work, because it is too expensive not to be safety-con- 
scious — if we are able to come up with amendments or a version 
of the bill that would allow us to have consultations, would allow 
us, even encourage us by incentives or otherwise, to have safety ex- 
perts come in and help particularly small businesses to deal with 
the myriad of regulations, which literally are about 4V2 inches high 
when stacked one on top of the other — those are the big problems 
that are troubling us. 



57 

I think the committee aspect needs a lot of work from the stand- 
point of not having it so rigid as is in the current bill. I think the 
criminal penalties are absolutely counterpVoductive. I find that the 
most egregious part of the bill. It is just making the bald-faced as- 
sumption that all employers are, as I said, eitner amoral or out- 
right criminals, and I just do not think that is the case. There may 
be some very few, and those penalties need to be applied in that 
case — but not right out of the gate. 

I think the written programs need a lot more flexibility. Clearly, 
what operates for a home builder in Minnesota does not apply to 
a heavy construction marine contractor in Maryland. There needs 
to be some flexibility in what those programs can be. 

And the lack of consultation — OSHA itself says they just cannot 
consult; they must write a ticket. We think that is the wrong way 
to go. 

I would be glad to answer any questions. 

The Chairman. Thank you. 

[The prepared statement of Mr. McGeady and the NFIB follow:] 

Prepared Statement of Eamonn McGeady 

Mr. Chairman, my name is Eamonn McGeady and I live in Baltimore, MD. To- 
gether with two of my brothers I own and manage Martin G. Imbach, Inc., a heavy 
and marine construction company that operates in Delaware, Maryland, and Vir- 
ginia and is headquartered in Baltimore. We employ approximately 65 people and 
nave been in business since 1944. I have been associatea with the firm since 1963. 
Prior to that I served in the U.S. Army Corps of Engineers and worked as the prin- 
cipal safety manager in a Baltimore ship repair and building yard. 

Our firm operates in what is generally considered a relatively dangerous environ- 
ment — heavy construction, pile driving, bridge building, cable laying and other un- 
derwater work. Yet, we have managed to maintain one of the better safety records 
in our state for many years. We believe this record has been accomplished because 
our employees believe in safety procedures, because management nas insisted on 
safe operating procedures, because our supervisors and employees have been trained 
in safety procedures and because we have had consultations, inspections and safety 
engineering visits from our insurance company representatives. 

In short, if you will pardon the pun, safety is no accident. You will note that I 
have omitted OSHA from the recitation. That brings me to the first major difficulty 
that I have with S. 575, the "Comprehensive OSHA Reform Act". 

Under the current operating rules, OSHA representatives cannot consult or advise 
us — if they come on our job sites they can only write citations. You must certainly 
understand that this engenders an "us versus them" mentality if we are visited. The 
OSHA consultation program, which is underfunded and should be expanded, brings 
people outside of OSHA to conduct consultations. Any reform legislation must make 
OSHA more of a consultative agency to help employers maintain safety programs. 
Currently, even the smallest error in safety can result in an expensive fine or many 
hours of letter writing, meetings, lawyers and management hours expended. This 
is so because in the present context OSHA has admitted that the penalty structure 
is designed not to improve safety but rather to raise revenue. How much more pro- 
ductive for all concerned would it be if the same visit was consultative in nature, 
with recommendations for improvement and follow up visits, if necessary, to deter- 
mine that corrections had been made? The argument that fines are required to in- 
sure compliance is patently false, since the great majority of employers want to com- 
ply with safety regulations because it is far more economical to do so — from an oper- 
ations standpoint, a human standpoint and from an insurance premium standpoint. 
Put bluntly, the marketplace demands a safe workplace. You cannot afford to do 
otherwise. 

This brings me to my second major concern about S. 575 — the imposition of crimi- 
nal penalties on managers and officers of a company. I find this the most egregious 
aspect of the proposed reform legislation. Even if our firm were to insist on safe 
work procedures (which we do); even if we require safety training for our employees 
and supervisors (which we do); even if we have daily talks/ meetings/safety discus- 
sions (which we do) and even if a specific directive given to an employee is violated 
and that employee is injured, under the proposed revisions to the law one of more 



58 

of our officers or supervisors could face criminal action. I find this mind set on the 
part of the draflers and/or the Department of Labor absolutely unacceptable. Their 
implication seems to be that the majority of employers are at best amoral and at 
worst rank criminals needing to be severely fined or jailed to force compliance with 
this myriad stack of regulations. I unequivocally reject that implication. There has 
to be a better way. 

Further, the mandatory safety committees recjuired by S. 575 would fly in the face 
of good operating practice. The strict imposition of the type and makeup of the com- 
mittees would require many well-functioning groups currently in place in many 
workplace sites to be disbanded or restructured on illogical grounds. Again, the 
drafters seem to think that American employers are operating somewhere in the 
18th century. Every business owner or corporation that I can think of has some 
form of a consultation/feedback structure with their employees on safety matters. 
To not do so would be foolish. I won't even comment on the probable conflict with 
many aspects of the NLRA as amended. 

I also think that there will be serious objection to this rigidly structured approach 
by many small, medium or larger sized companies that are not unionized. This pro- 
vision seems to be a "back door" approach to union organizing and will be clearly 
perceived as such. If the drafters are convinced that these committees are needed 
(I am not), there are better ways to accomplish their goal. For example. Senator 
Kassebaum's bill, S. 1950, which NIFB supports. 

Finally, the bill's requirement for written safety and health programs to be in 
place for all employers is disingenuous at best and ludicrous at worst. Those em- 
ployers who have the resources or the particular requirements for a specific safety 
program will develop their own or adapt industry standard type programs. Those 
who don't have those resources and do not have a written program will simply send 
$9.50 to the GPO to get these books (referring to 29 CFR 29 1910-1926 et seq.), 
attach a letter to all employees and say "this is our safety program." It will meet 
the letter of the law but I question whether it accomplishes anything. I believe other 
incentives to cooperation between employer/employees and the regulatory bodies will 
be far more effective. 

In summary, Mr. Chairman, there certainly are many aspects of the Occupational 
Safety and Health Act that need fixing in the li^t of modem management-labor 
relations. The streamlining of the Act is an absolute necessity in the current atmos- 
phere of intentional competition. The chokehold on American business and industry 
by archaic, outdated, outmoded and frequently illogical regulations must be ad- 
dressed. If the Vice President's reinventing government group has identified many 
areas needing drastic improvement, I suggest that Congress and industry, working 
together, can do substantially more. The only question is whether we have the polit- 
ical will to do so. S. 575 is not a good beginning. The most dangerous part of having 
a job today is driving to work. Even one fatality or serious injury on the job is one 
too many. We have steadily reduced the dangers of the workplace over the years 
and must continue to do better. This heavy-handed whip is not the way. The carrot 
has been demonstrated to be far more effective and therefore, I urge the committee 
to support Senator Kassebaum's bill, S. 1950. Thank you. 

Prepared Statement of the National Federation of Independent Business 

The National Federation of Independent Business (NFIB) is a voluntary member- 
ship organization made up of more than 600,000 small and independent business 
owners nationwide. Our membership parallels the national business papulation in 
that approximately 50 percent of our members own retail and service enterprises; 
25 percent are in the manufacturing and construction business; and the remaining 
25 percent operate agricultural, transportation, mining, wholesale, financial, insur- 
ance or real estate enterprises. The typical NFIB memoer employs live workers and 
reports gross sales of around $250,000 per year. 

being a small business person today is rough. Every day a small business owner 
faces major business challenges to keep his or her business going — life and death 
decisions for that business. 

Workplace safety, however, is a primary concern for most small business owners 
because they care about the people who work for them and because they can't afford 
to have their employees hurt. 

Keeping up with existing OSHA workplace laws is a struggle. Most small business 
owners do their best to comply with them now, even though it's very time consum- 
ing to ensure safety in their workplace. 

in spite of the excellent safety record of most small businesses, this bill says 
they're doing it all wrong and not providing safety in the right way. 



59 

CRIMINAL PENALTY EXPANSION 

S. 575 increases the employer penalty for a willful violation against an employer 
resulting in an employee's death From six months in jail to ten years. It also creates 
a new criminal penalty of up to five years in prison for a first offense in which a 
willful violation results in the "serious bodily injury" of a worker. 

The atmosphere of intimidation and fear which existed in the 1970's between 
OSHA and business owners will return if criminal penalties are expanded to include 
this injury provision. Throughout the 1970's NFIB testified before this Committee 
about small firms' distrust oT OSHA. OSHA standards were not, by and large, per- 
ceived as being appropriate or effective in improving workplace safety. Nor was en- 
forcement seen as reasonable or fair. 

For a decade we received letters and calls from members who maintained acci- 
dent-free businesses for ten, twenty, even thirty years who deeply resented the 
heavy-handed tactics of OSHA inspectors and their explicit assumption of employer 
negligence, refusal to take into account good safety records, eagerness to cite each 
and every nit-picking defect, and ignorance regarding particulars of the business. 

In 1980, NFIB testified before this Committee, that, "Despite all efforts, OSHA 
has been unable to produce a clear record of any impact on workplace safety and 
health. On the other hand, OSHA's impact on public opinion is significant, as it has 
become the symbol of excessive, unwarranted, ineffective, and costly regulation." 

Congress believed it necessary to cast OSHA as the policeman over the business 
community. The result was disastrous. OSHA did more to destroy the public's faith 
and trust in government than any other single federal agency. 'The reason for this 
was clear: OSHA treated employers like criminals. It is not an exaggeration to state 
that throu^out the 1970's OSHA created mass confusion and outright fear among 
small businesses. 

Increasingly in the last 13 years, the relationship between OSHA and business 
owners has vastly improved. Currently, over 99 percent of OSHA cases become final 
without contest or are settled between OSHA and the business owner prior to a 
hearing. If S. 575 passes with the inclusion of expanded criminal sanctions, the co- 
operative spirit between OSHA and small business owners will be quickly replaced 
with the adversarial relationship which existed in the 1970's. 

Job-site safety will suffer as a result because small firms will be more likely to 
contest violations. Prompt abatement of hazards and fast settlements of citations 
afler an accident will be replaced with long abatement periods during which time 
dangerous working conditions may not be corrected. Because a criminal prosecution 
may result, business owners will, as former Assistant Secretary of Occupational 
Safety and Health, Gerald Scannell, testified on criminal penalty legislation in 1990, 
"invariably invoke their Fiflh Amendment privilege against selfincrimination, and 
will seek to delay the civil proceedings during the pending criminal case." 

Small business owners will also be much more likely to require OSHA inspectors 
to obtain search warrants for inspections of accident reports. Currently, most small 
business owners consent to inspections without search warrants. 

Further, the criminal penalty provision in S. 575 is unnecessarily vague and will 
create a further legal impasse, hampering the ability of OSHA and small businesses 
to work together for greater workplace safety. Terms such as "serious bodily injury" 
and "willful violation" are defined in a variety of different ways in current case law. 
They are particularly unclear from the standpoint of a small business owner. The 
vast majority of small businesses are not attorneys nor do they have an attorney 
on staff to decipher terms over which the courts cannot even agree. 

S. 575 defines "serious bodily injury" as "a substantial risk of death, protracted 
unconsciousness, protracted and obvious physical disfigurement or protracted loss or 
impairment of the function of a bodily member, organ, or mental faculty." Though 
this term has been defined in previous federal criminal law, the definitions are by 
no means uniform. Further, it is certainly a completely new term to the OSHA Act 
and an entirely new term for small business owners who will be in constant fear 
about whether they will be accused of a criminal violation. 

The term "willful" in the context of a safety violation is equally unclear and open- 
ended. In the past, court cases have defined "willful violation" in numerous ways. 
In Ensign-Bickford Co. v. Occupational Safety and Health Review Commission, 
(1983), for instance, the court defined "willful violation" as plain indifTerence toward 
safety requirements of the general duty clause. The court found that no further 
showing is required to establish willfulness, and the employer need not harbor mali- 
cious motives or possess specific intent in order to commit a willful violation. 

With unclear legislative direction under S. 575, the question remains as to wheth- 
er it will be necessary for a small business owner to hire a criminal defense attorney 
each time an accident occurs or an OSHA inspector shows up at his or her door. 



60 

Again, increased criminal penalties for willful violations causing serious bodily in- 
jury will not increase safety on the workplace but only tangle the safety debate in 
a legal quagmire and subject small business owners to fear and mistrust of OSHA. 

WRITTKN SAFETY PROGRAMS 

The requirements of Title I of S. 575 will overburden small business. Even the 
smallest businesses will be forced to S(>end huge amounts of the owner's time and 
money to prepare the detailed written safety plan the Act requires. Written pro- 
grams must include procedures for health hazards, investigating work-related inju- 
ries and providing safety and health identifying services. Plans will also require 
small employers to develop methods for responding to the recommendations of safe- 
ty committees. And, these requirements are only the tip of the iceberg. 

This overly detailed safety plan will probably be filed away and forgotten by em- 
ployees who won't want or be able to absorb the intricacies of such a plan. Safety 
will suffer as a result. In addition, the paperwork burden of written safety plans 
required by this bill will be enormous. In a recent NFIB survey, small business own- 
ers cited government regulations in the top ten concerns out of 75 problems. They 
don't need any more! 

Very often direct action, and as few extraneous words as possible, work much bet- 
ter on the shop floor. Warning signs on all hazardous equipment, a short video and 
periodic warnings to workers may be something they remember more than 20 pages 
of specifics. 

Furthermore, under this legislation, plans will be plagiarized, copied from one 
company to another. Plans may meet OSHA requirements but not provide the safest 
working environment needed for a particular small business. 

In addition, to follow the overly technical requirements of this bill will take large 
amounts of time, the time of a small business owner, since most small companies 
are not large enough to delegate this job. This takes small business owners away 
from the daily business decisions crucial to keeping the business running and people 
employed. 

MANDATORY SAFETY COMMITTEES 

Title II of the legislation mandating joint safety committees tries to duplicate poli- 
cies many small employers have already implemented. The difference is that this 
bill is inflexible and does not allow any variation of safety committees or safety pro- 
cedures that are not approved by the Secretary of Labor. In addition, the safety 
committee provision will be costly to small business owners and could result in their 
being taken advantage of by a disgruntled employee or open the firm up for poten- 
tial unionization, pitting business owners against their employees. 

Title II requires that a small business owner with two or more employees pay 
them for the time it takes for the safety committee to conduct interviews, establish 
procedures, review records and accompany OSHA inspectors. This increase in the 
scope of their duties will double or triple the time they spend, at the expense of pro- 
duction. Small business owners struggle every way they can to keep their indirect 
labor costs down. This bill would cause those costs to increase substantially and 
lessen their ability to hire more people as they try to grow. 

Most small business owners want to work directly with their employees to solve 

fiotential problems. Congress can't mandate cooperation between management and 
abor but this bill attempts to do just that in a clumsy, unworkable manner. This 
law subtly promotes a destructive US versus THEM attitude. Both sides will end 
up resenting the situation in small businesses. 

The government wants business owners to give up their control to a conunittee 
of people who don't have nearly as deep an interest in the safety of employees and 
success of the business as the small business owner does. Small business owners 
find that offensive. 

CONCLUSION 

What small business owners need thee days from government is cooperation and 
guidance. They need a partnership and help, not onerous new burdens such as those 
imposed by S. 575 that add nothing to workplace safety. Most business owners want 
to do the right thing. Senators should help them to maintain safe workplaces, not 
make their lives more difficult with new rules that drive them out of business and 
take away jobs from their employees. 

The Chairman. Mr. Holt. 



61 

Mr. Holt. Thank you, Mr. Chairman and members of the com- 
mittee. We appreciate your affording the Employment PoHcy Foun- 
dation this opportunity to appear before the committee to discuss 
the private and public sector employer costs of S. 575. 

As you know, the Foundation first studied this issue in 1991-92 
when COSHRA was before the 102nd Congress. The foundation re- 
cently updated and revised its cost estimates to reflect the new and 
changed provisions in S. 575, and we would respectfully request 
that the revised study entitled, "COSHRA Legislation in the 103rd 
Congress: An Update of Estimated Private and Public Sector Em- 
plover Costs" be included in the record of this hearing. 

Based on the Foundation's revised and updated estimates, the 
annual recurring costs to private and public sector employers of the 
provisions of COSHRA for which we were able to estimate costs, 
and the agency administrative costs, would be $61.87 billion. 

The components of this total are as follows: For safety and health 
programs, $21.3 billion; for safety and health training, $6.3 billion; 
for safety and health committees, $11.01 billion; recordkeeping and 
reporting requirements. $3.6 billion; monetary penalties, $.09 bil- 
lion; litigation costs, $8.55 billion; the construction safety and 
health and provisions, $6.4 billion; public sector employer costs, 
$4.1 billion; and OSHA administrative costs, $.47 billion, for a total 
of $61.87 billion. 

Now, $61.87 billion represents, to put it in perspective about 2.9 
percent of total nongovernment payrolls in 1990, or about 11.8 per- 
cent of business net income in 1990. Imposing costs of this mag- 
nitude on private and public sector employers will have significant 
adverse impacts. Their effect will be to increase prices, lower real 
wages, and reduce overall employment and productivity. 

Since the Foundation first made public its estimates of the pri- 
vate sector employer costs of COSHRA, these estimates have been 
described by some proponents of COSHRA as "wildly exaggerated." 
I would like to briefiy describe for you how we reached our esti- 
mates, so that you can draw your own conclusions about whether 
they are exaggerated or realistic. 

COSHRA, as you know, requires each employer to establish and 
carry out a safety and health program. Based on discussions with 
industry safety and health experts, we estimated that administra- 
tion of safety and health programs would require an average of 2 
weeks per year by a middle manager per firm. An additional cost 
of $1,000 per establishment was estimated to provide safety and 
health services, including the emergency response and first aid re- 
quired in the bill. If these costs are incurred by the 6.1 million non- 
agricultural reporting units reported by the Bureau of Labor Statis- 
tics and the .82 million farms employing labor, the annual cost of 
maintaining and carrying out safety and health programs would be 
$21.3 bilhon. 

COSHRA requires all employers to provide safety and health 
training — to new employees when hired; to members of safety and 
health committees when they are selected; and to all employees 
and committee members on an annual refresher basis. Additional 
specialized training is required for safety and health committee 
members, and information must also be provided to other employ- 
ers' employees at common work sites. 



80-084 - 94 - 3 



62 

An average of 4 hours of initial training was estimated to be re- 
quired for new employees, and the annual refresher training was 
estimated to require 2 hours per employee. Based on our discus- 
sions with industry experts, members of committees would require 
an average of about 16 additional hours, or 2 days of training an- 
nually. Training provided to contract employees was estimated at 
one-half the level provided to regular employees. 

Based on these cost parameters, the annual cost for training 93.2 
million employees of 6.92 million private sector employers would be 
$6.3 billion. 

COSHRA requires each employer of 11 or more employees to es- 
tablish a safety and health committee at each worksite. The spe- 
cific mandates of these committees are spelled out in detail. We es- 
timated that both employer and employee representatives of com- 
mittees would spend an average of 5 percent of their working time 
on committee activities. COSHRA spells out the required number 
of employee committee representatives based on establishment 
size. We assumed there would be an equal number of employer rep- 
resentatives on these committees. Based on these proposed require- 
ments 1.69 million committees would be required to be formed, 
with 2.15 million employee members on these committees and an 
equal number of employer members. The annual compensation cost 
for these committees is estimated at $11.01 billion. 

COSHRA also extends OSHA and the new requirements of 
COSHRA to all State and local government employees. The same 
cost parameters for programs, training and committees used in es- 
timating private sector employer costs were used to estimate the 
cost to governmental employing units, except that no penalties and 
no litigation costs were assumed. The cost to extend COSHRA to 
the 200,000 governmental employing imits and their 17.9 milHon 
employees was estimated at $4.2 bilhon. COSHRA includes no 
funding to offset these federally-mandated costs that will be im- 
posed on State and local governments. 

Unfortunately, time does not permit me to describe the other 
components of the cost estimate, but I would like to point out that 
only the most prescriptive elements of COSHRA are included in 
our Employment Policy Foundation cost estimate. COSHRA in- 
cludes many other provisions, as you know, and these would entail 
significant employer compliance costs which cannot be estimated at 
this time. 

Would benefits offset these costs? The question here is the extent 
to which the provisions mandated by COSHRA, particularly the ad- 
ministrative and paperwork provisions included in the Founda- 
tion's cost estimate, will reduce occupational injury and illness 
rates, and to what extend such reductions may offset employers' 
costs of compliance with COSHRA 

The most direct measure of the monetary costs to employers of 
occupational injuries and illness and potential monetary benefits 
from reduction in injury and illness rates is the annual workers' 
compensation premium cost. For 1988, which is the latest year for 
which data was available when we actually undertook our original 
study, these premiums totalled about $43 billion annually. They 
are significantly higher now, of course. The workers' compensation 
system does not appear to be very responsive to changes in illness 



63 

and injury rates. Premiums have risen dramaticallv in recent 
years, far out of proportion to changes in injury and illness rates, 
which have actually declined. A major reason for this, of course, is 
increases in medical costs and increases in wage levels, and there- 
fore in compensation payments, which are the two principal compo- 
nents of workers' compensation costs. 

However, assuming a net improvement of 10 percent in occupa- 
tional safety and health due solely to the provisions of COSHRA, 
and assuming a proportionate reduction in workers' compensation 
premiums, both of which would be dramatic declines by historical 
standards, this would result in a savings to employers in workers' 
compensation premiums of only $4,3 billion based on the 1988 pre- 
mium levels. And these savings would take years to materialize. 

The consensus of experts interviewed for this study was that the 
benefits of COSHRA would be modest at best, and that offsetting 
monetary benefits to employers, if any, would be limited to a mod- 
est reduction in insurance costs. 

Thank you for the opportunity to present the Foundation's analy- 
sis of COSHRA employer compliance costs. I will be pleased to try 
to respond to any questions you may have. 

[The prepared statement of Mr. Holt follows:] 

Prepared Statement of James S. Holt 

Mr. Chairman and members of the committee, thank you for affording the Em- 
ployment Policy Foundation this opportunity to appear before the Committee to dis- 
cuss the private and public sector employer costs of S. 575, the "Comprehensive Oc- 
cupational Safetv and Health Reform Act" (COSHRA) 

My names is James S. Holt; I am senior economist and vice president for research 
of the Employment Policy Foundation. With me is Alan E. Simon, an economist with 
the foundation, who assisted in the updating and revision of our study. 

The Employment Policy Foundation is an educational foundation established in 
1983 to assist policy makers and the public in understanding the implications of em- 
ployment policies being formulated by Congress and other legislative bodies, govern- 
ment agencies and the courts. The Foundation is concerned that the costs of pro- 
posed employment legislation and the potentially adverse impacts of these costs on 
competitiveness, job retention and job creation, are often overlooked in the consider- 
ation of such legislation. Accordingly, the Foundation undertook this study to iden- 
tify, analyze and, where feasible, estimate, the costs of COSHRA. 

EPF first studied this issue in 1991-92, when S. 1622 was before the 102nd Con- 
gress. After S. 575 was introduced in the 103rd Congress, EPF updated and revised 
its cost estimates to reflect the new and changed provisions in S. 575. We also re- 
vised our estimates to utilize more recent data than was previously available. In ad- 
dition, we included in the revised study estimates of the public sector employer and 
agency costs. The revised study, "COSHRA Legislation in the 103rd Congress: An 
update of Estimated Private and Public Sector Employer Costs" was issued in Sep- 
tember, 1993. We respectfully request that the study be included in the record of 
this hearing. 

Based on the Foundation's revised and updated estimates, the annually recurring 
costs to private and public sector employers of the provisions of COSHRA for which 
costs were estimated, and the agency administrative costs, would be $61.87 billion 
annually. The components of this total are as follows: 

Safety and Health Programs $21.31 billion 

Safety and Health Training $6.34 billion 

Safety and Health Committees $11.01 billion 

Recordkeeping and Reporting $3.60 billion 

Monetary Penalties $0.09 billion 

Litigation $8.55 billion 

Construction S&H Provisions $6.40 billion 

Public Sector Employer Cost $4.10 billion 

OSHA Administrative Cost $0.47 billion 

Total Cost $61.87 billion 



64 

To Bjive these cost estimates some perspective, $61.87 billion represents 2.9 per- 
cent o? total non-government payrolls in 1990 or 11.8 percent of business net income 
in 1990. 

Imposing costs of this magnitude on private and public sector employers will have 
adverse impacts on other economic variables. Their effect will be to increase prices, 
lower real wages, and reduce overall employment and productivity. Employers may 
choose to absorb some of these costs within current staffing levels rather than hiring 
additional management, professional tind production personnel. However this re- 
sponse would have the same effect — resources absorbed oy COSHRA-required activi- 
ties would be resources not available for other management and production activi- 
ties, which would reduce productivity and efficiency of the enterprise. 

Since the Foundation nrst made public its estimates of the private sector em- 
ployer costs of COSHRA, these estimates have been described by some proponents 
of COSHRA as "wildlv exaggerated". In fact, we feel our estimates are very conserv- 
ative. Furthermore, tney include only a portion of the COSHRA reauirements — prin- 
cipally the administrative and paperwork requirements. I would like to briefly de- 
scribe how we reached our estimates so that you can draw your own conclusions 
about whether they are, in fact, exaggerated or realistic. 

First, a word about how the study was conducted. We developed our baseline esti- 
mates of costs afler conducting a series of intensive interviews with industry safety 
and health experts, supplemented by information from secondary sources. This in- 
formation was used to estimate average costs per covered firm or employee for the 
selected provisions of COSHRA. The estimates were then expanded to the estimated 
universe of employers and employees covered by COSHRA based on Bureau of 
Labor Statistics (BLS) and U.S. Department of Commerce data described more fiilly 
in our report. 

1. SAFETY AND HEALTH PROGRAMS 

COSHRA requires "each employer" to "establish and carry out" a Safety and 
Health Program. A major part of carrying out" the Safety and Health Program is 
accounted for by training and education and the activities of the Safety and Health 
Committees where such committees are required. We estimated the cost of these ac- 
tivities separately. This leaves the development and maintenance of the written 
Safety ana Health Program, the provision of safety and health services, including 
emergency response and first aid, and other activities related to the administration 
of the Program (including employee involvement where committees are not required) 
to be accounted for here. 

Based on discussions with industry safety and health experts, we estimated that 
administration of safety and health programs would require an average of two 
weeks per year by a middle manager. For large employers, the time required would 
be considerably more; some experts made estimates in the range of one-quarter per- 
son year to a mil person-year per facility. Because of the large number oT small em- 
ployers in the universe, an average of two weeks seemed reasonable and conserv- 
ative. 

There was also a wide variation in the estimates of industry experts for the cost 
of the provision of safety and health services, including emergency response and 
first aia. A major problem in estimating the cost of this provision is that the pro- 
posal is vague on what would be required. One would have to await the issuance 
of regulations to make an accurate estimate. Nevertheless, assuming some sort of 
on-site capability, which in all but the smallest establishments may include a dedi- 
cated physical space, equipment, supplies, and professional health personnel or 
training for other staff in first aid procedures, an additional cost of $1,000 per estab- 
lishment was estimated for this requirement. 

If the above costs were incurred by the 6.1 million nonagricultural "reporting 
units" reported by BLS and the 0.82 million farms employing labor, the annual cost 
of maintaining and carrying out Safety and Health Programs would be $21.31 bil- 
lion. 

2. SAFETY AND HEALTH TRAINING 

COSHRA requires all employers to provide safety and health training to (1) all 
new employees when hired, (2) members of Safety and Health Committees when se- 
lected, and (3) all employees and committee members on an annual refresher basis. 
The training requirement is very comprehensive. Training must be provided in a 
manner readily understood by employees, and cover safety and health hazards, con- 
trol measures, the employer's Safety and Health Program, employee rights, and ap- 
plicable laws and regulations. Additional training for Safety and Healtn Committee 
members must cover methods and procedures for nazard recognition and control, the 



65 

conduct of safety and health inspections, the rights of the Safety and Health Com- 
mittee, and other aspects of Committee activities. Employees must be paid for the 
time spent in training. "Information" must also be provided to other employers' epi- 
ployees at common work sites. 

It was estimated that, on average, four hours of initial training would be required 
for new employees, and that annual refresher training would require two hours per 
employee annually. Based on our discussions with mdustry experts, members of 
committees were estimated to require, on average, 16 additional hours (2 days) of 
training annually. Training provided to contract employees was estimated at one 
hsilf the level provided to regular employees. A new hire rate of 2 percent per month 
was assumed. Discussions with industry safety and health experts and a review of 
OSHA regulatory impact analyses indicated that instructional costs (for instructors, 
materials, equipment, and facilities) would be approximately 20 percent of the direct 
eniployee compensation cost. 

Based on these parameters, the annual compensation cost for training 93.2 mil- 
lion employees of 6.92 million private sector employers would be $6.34 biluon. 

3. SAFETY AND HEALTH COMMITTEES 

COSHRA requires each employer of 11 or more employees to establish a Safety 
and Health Committee at eacn worksite. The committees are given a broad array^ 
of responsibilities. These include, but are not limited to, reviewing the employers 
safety and health program, reviewing incidents involving work -related fatalities, in- 
juries and illnesses and employee complaints, conducting worksite inspections and 
employee interviews, and conducting meetings, complete with written minutes. 

We estimated that both employer and employee representatives of committees 
would spend an average of 5 percent of their working time on committee activities. 
Managerial and administrative time required to conduct elections of employee rep- 
resentatives, select employer representatives, respond to committee recommenda- 
tions, and attend to other committee related business was estimated to reqruire, on 
average, one week of a middle manager's time annually. Clerical support lor com- 
mittees, including maintaining minutes and records, was estimated to require an 
average of one week of clerical time annually. 

COSHRA spells out the required number of employee committee representatives 
based on estaolishment size. We assumed there would be an equal number of man- 
agement members on committees. Based on these propwsed requirements, 1.69 mil- 
lion committees would be required to be formed, with 2.15 million employee mem- 
bers and an equal number oi employer members. The annual cost for committees, 
based on the parameters spelled out above, is estimated at $11.01 billion. 

4. PUBLIC SECTOR EMPLOYER COSTS 

COSHRA extends OSHA coverage, including the new requirements of COSHRA, 
to all state and local government employees. Even where OSHA State Plan States 
now cover state and local government employees, COSHRA's new requirements for 
Safety and Health Committees, Programs, and Training would entail additional 
costs to public sector employers. The public sector cost oi COSHRA would be even 
higher in many states where there is presently no OSHA coverage of state and local 
government employers. 

The same parameters for programs, training and committees used in estimating 
private sector employer costs were used in estimating the cost to governmental em- 
ploying units in complying with the requirements of COSHRA, except that penalty 
and litigation costs were excluded. The cost to extend COSHRA to 200,000 govern- 
mental employing units and their 17.9 million employees was estimated at $4.2 bil- 
lion. COSHRA includes no funding to offset these federally mandated costs that will 
be imposed on state and local governments. 

Unfortunately time does not permit me to go into detail in describing the other 
components of the cost estimate. These are discussed detail in the EPF report. But 
I do need to point out that only the most prescriptive elements of COSHRA were 
included in the EPF cost estimate. COSHRA includes many other provisions that 
would entail significant employer compliance costs which cannot be estimated at 
this time. These unestimated costs include, among others, the cost of changes to 
equipment and processes required by the new standards called for under COSHRA, 
the change in the criterion for standards, the cost for exposure monitoring and med- 
ical surveillance, the mandated ergonomic standard and the lost production time re- 
sulting from the immediate abatement authority granted to OSHA inspectors and 
the COSHRA-granted right of workers to refuse to work if they have a reasonable 
apprehension of injury. 

Would Benefits Offset these Costs? 



66 

COSHRA is, of course, intended to produce both public and private benefits, po- 
tentially including monetary benefits to employers that may olTset some of the in- 
creased employer cost. Employers generally agree that there are savings to be real- 
ized from a safer workplace. The question nere, however, is the extent to which the 
provisions mandated by COSHRA, particularly the administrative and paperwork 
provisions included in the EPF cost estimate, will reduce occupational uyuiy and 
illness rates, and to what extent such reductions may offset employers' costs of com- 
pUance with COSHRA. 

Only a few of the industry safety and health experts interviewed were of the opin- 
ion that the COSHRA mandates would bring about significant improvements in 
worker health and safety. Many did not foresee any improvements resulting from 
COSHRA. In fact, there was a tendency to see COSHRA's prescriptive requirenaents 
with regard to programs, committees and even training and education as reauiring 
employers currently involved in safety and health programs to significantly alter ef- 
fective efforts, rebuilding them to fit COSHRA's specific requirements, causing dis- 
ruption, inefficiency, and even an adverse impact on injuries and illnesses. 

The most direct measure of the monetary costs to employers of occupational iryu- 
ries and illnesses, and potential monetary benefits from reductions in injury illness 
rates, is annual workers' comf)ensation premiums. For 1988, the latest year for 
which data was available when we undertook our study, these premiums totalled 
about $43 billion annually, including public employee profframs. 

In spite of a certain degree of experience rating in tne assessment of workers' 
compensation premium rates, the workers' compensation system does not appear to 
be very responsive to changes in injury-illness rates. Premiums have risen dramati- 
cally in recent years, far out of proportion to changes in injury-illness rates. A major 
reason for this is, of course, increases in medical costs and increases in wage levels 
and therefore in compensation payments, the two principal components of workers' 
compensation costs. 

Over the" 20 year history of the original Occupational Safety and Health Act, data 
on occupational safety and health trends, while generally favorable, are mixed. Nev- 
ertheless, workers' compensation premiums have risen more than seven-fold during 
this period, and have doubled as a proportion of total payroll costs. 

Even assuming COSHRA would oring about improvements in injury-illness rates, 
and assuming a proportionate decline in workers' compensation premium payments 
and other costs, employers' workers' compensation savings would be modest in com- 
parison to COSHRA compliance costs, since dramatic declines in injury-illness rates 
are not likely. If one were to assume a net improvement of 10 percent in occupa- 
tional safety and health due solely to COSHRA and a proportionate reduction in 
workers' compensation premiums (dramatic declines by historical standards), this 
would result m a savings to employers in workers compensation premiums of only 
$4.3 billion. And these savings would not appear in the first year, but would take 
a period of years to materialize. The consensus of experts interviewed for this study 
was that the benefits of COSHRA would be modest at best, and that offsetting mon- 
etary benefits to employers, if any, would be limited to modest reductions in insur- 
ance costs. 

Thank you for the oppwrtunity to present the Employment Policy Foundation's 
analysis of COSHRA's employer compliance costs. I will be pleased to try to respwnd 
to any questions you may nave. 

The Chairman. Thank you very much. 

I was wondering, Mr. McGeady. do you know how many people 
have actually gone to jail under tne criminal provisions under the 
existing OSHA statute since it has been in existence? 

Mr. McGeady. I have no idea, Senator. 

The Chairman. You do not know, then? 

Mr. McGeady. I have no idea. I do not know whether there have 
been any. 

The Chairman. But you think it is too severe a standard, and 
you do not know how many people have been convicted? 

Mr. McGeady. I think that the proposed standard of enhanced 
criminal penalties for employers who theoretically are trying to 
meet not onlv the letter but the spirit of the law is just egregious 
beyond belief 

Example: OSHA will 

The Chairman. The question was do you know. Do you know? 



67 

Mr. McGeady. No, I do not know. 

The Chairman, OK. That was the question. The answer is one 
person. One person. 

Mr. McGeady. Now that you say that, I remember. 

The Chairman. Yes. Five hundred thousand men and women 
have been killed on the job since the time of enactment of the 
standard, and one person has been convicted. The standard that 
has been used by the courts to determine if a violation is willful 
is as follows: 'The failure to comply with safety standards under 
the Occupational Safety and Health Act is willful if done knowingly 
and purposely by an employer who, having a free will or choice, ei- 
ther intentionally disregards the standard or is plainly indifferent 
to its requirement." That does not seem to me to be accusing all 
our employers in this country of criminal conduct. And what we are 
doing is using the standard and extending it to willful violations 
that result in serious bodily injury. 

It is difficult for me to understand how employers can feel that 
they are being put upon by this standard. 

Mr. McGeady. Senator, the point is, the case that you are refer- 
ring to, if my memory is correct, very bluntly, the person should 
have been in jail 5 years earlier. There was a long history 

The Chairman. I am not interested in that. I am talking about 
the standard. That is the question. We can get back into whether 
a particular employer in a particular case was guilty or not guilty, 
but the question is the standard. That is what the law is, and those 
are the instructions to the jury. 

Mr. McGeady. The standard as imposed — or, proposed; I am 
sorry — the standard as proposed would say that for a willful viola- 
tion, OSHA on the second occurrence of an injury can write a will- 
ful violation. Now, I hear what you are saying, but it goes to my 
point that it becomes an "us versus them." 

The Chairman. Well, I just want to say that your characteriza- 
tion of this legislation is not what it is. I would like you to read 
it. You know, one of the favorite techniques around here is to mis- 
state what is in proposed legislation and then take issue with it. 
And that is just what is happening here today. 

Mr. McGeady. Senator 

The Chairman. You can make any additional comments and sub- 
mit any other testimony. 

Mr. McGeady [continuing]. With respect. Senator, from an em- 
ployer's standpoint, I am not misstating what I perceive to be in 
the legislation, given the field activities of the OSHA inspectors. 
Now, if you read it out of context, or just without outside influence, 
it does not sound that bad, but when you put it together with how 
the current OSHA organization works, it becomes a very severe im- 
pediment to cooperating with anybody in the famous, "I am from 
the Government, and I am here to help you." It would just become, 
as I say, an "us versus them" situation. 

The Chairman. Senator Kassebaum. 

Senator Kassebaum. I am curious — let us take it down to a little 
more practical point — ^you mentioned these plugs over on the cam- 
era equipment here, that because there is not the correct cap, 
would warrant a $10,000 fine? 



68 

Mr. McGeady. No, ma'am. There is an OSHA requirement that 
anv piece of electrically operated equipment have what is knowTi as 
a ground fault interrupter" to protect the user of the equipment. 
I do not see them in evidence here. Now, I will say right up front, 
the Congress is, as I understand it, out of the OSHA law 

Senator Kassebaum. Exempt? 

Mr. McGeady [continuing]. Exempt from the OSHA law. 

Senator Kassebaum. Well, no, not under this new legislation. 

The Chairman. Under either legislation. 

Senator Kassebaum. Pardon? 

The Chairman. Under either piece of it. 

Senator Kassebaum. Right. We would even have to have our own 
safety and health committee, I think. But my point is, if indeed 
that is the case — and I do not understand it well enough to know 
whether it is grounded correctly or not — but the point that those 
of us who have questioned some of the penalties and mandates as 
construed do not quarrel about health and safety, or that it is im- 
portant, but in this instance, for instance — and we may be making 
a case of something that does not even exist — the inspectors ought 
to say this is not in place, this is a problem, and you should correct 
it, for your own well-being. And rather than receiving a fine, it 
should oe corrected. 

Mr. McGeady. I agree. 

Senator Kassebaum. And I think this is what we are trying to 
get at. 

Mr. McGeady. And the current OSHA legislation, and as I read 
the proposed legislation, does not permit that. 

Senator Kassebaum. And I think that is the concern with, as you 
express it, an "us versus them" situation; you develop an adversar- 
ial sort of relationship that comes fi-om uncertainty perhaps, and 
certainly sometimes neglect. But if the purpose is to improve safety 
and health conditions, and many businesses — and the Wall Street 
Journal article, I think, points to this — are driven to these things 
out of their own self-interest, largely because of workers' compensa- 
tion today, and the costs of that, so it is in the interest of the busi- 
ness community to do these things, and how best to further that 
relationship I think is what we are trying to get at. 

Mr. McGeady. And the current situation with workers' com- 
pensation underwriters — if they do not have an active safety de- 
partment, you should not be with them. You should find a comp 
underwriter that has an active safety department. 

What I am saying is that in a great percentage — not all, and I 
am the first to admit that — ^but in a great percentage of the current 
manufacturing and construction and nonfarm emplojonent that 
have workers' compensation insurance, there must be some sort of 
interaction between employees, employer, and safety department, 
or you just are not going to be able to afford the insurance; you are 
going to be out of business. 

Senator Kassebaum. Thank you very much. I guess, then, we 
will check this out, whether we are in a safety violation here. 

The Chairman. Well, the cameraman tells me that they are 
grounded. 

Mr. McGeady. Senator, I said I did not observe ground fault in- 
terrupters. 



69 

Senator Kassebaum. Well, as an example, if they were not, we 
would want to know about it and correct it, right? 

The Chairman. That is exactly what we would say. 

On that note. Senator Wellstone? 

Senator WELLSTONfE. Thank you, Mr. Chairman. I will be rel- 
atively brief, j.^ 1 11 

Mr. McGeady, the Republican bill proposes to codify the small 
business exemption from general inspections, but a recent Wall 
Street Journal article reported that small businesses actually have 
a much higher injury rate than large employers. So the question 
becomes how do we justify an OSHA exemption if it means that we 
end up not protecting those workers who are the very workers most 
in need of protection? 

Mr. McGeady. Senator, I read the Wall Street Journal article, 
and I am not proficient enough in the background data to challenge 
the statistics, but it seemed to me that the numbers used bv the 
writer of the article were off-base with respect to what I am famil- 
iar with. Unfortunately, I do not know his database, and therefore 
I cannot comment on it. 

But let us assume for the sake of argument that what he says 
is essentially correct. The committee structure, if you will, for safe- 
tv committees in a small business is a committee of the whole. You 
do not in a small business operate in a vacuum. For the most part, 
you know your people, you know their wives, you know their chil- 
dren, and you know that Aunt Minnie has had a stroke, and you 
deal with personnel relations on a very intimate basis. When you 
get up to a business our size, which has about 55 or 60 employees 
currently, I still know the first name of each person in the busi- 
ness, and I know most of their families. 

We have in our industry — and I do not want to bore you with 
what happens in the construction industry — but the bill as written 
would just not work in our industry, because we change job sites 
every day, and there are a few technical problems that would have 
to get worked out. I alluded to one earlier, that is, the site control 
that OSHA currently requires of the principal contractor on the 
site, whether or not that contractor is the general contractor or the 
owner. It would mean, for example, in our business, under the Ht- 
eral reading of the proposed legislation, we would have to take all 
the people who come in on the site and send them to our school, 
because we are in control of the site, and we could be held respon- 
sible. But to exempt small businesses from any regulation, I do not 
think is what we are asking for. 

Senator WELLSTONE. I was just referring to — and I will run rap- 
idly through these questions — if there is an exemption from the 
general inspection requirement, and we do not have data contrary 
to what is in the Wall Street Journal piece, it strikes me that we 
would not want to exempt those businesses where, in fact, quite 
often, we see the highest injury rates — that is my only point — if we 
are really serious about some kind of major reform effort. 

My second question is that same Wall Street Journal — which I 
do not think anybody would call a hotbed of ultra-liberal thought — 
reported that safety and health committees — and we are going to 
hear more about this in Minnesota, because I think we have a very 
important history to look at — "not only reduce accidents, but also 



80-084 - 94 - 4 



70 

lower workers' compensation costs, sometimes sharply." And the 
Journal also reported that "The effect is particularly dramatic for 
small businesses." I am on the Small, Business Committee, and I 
love being on that committee because I come from a State with 
many small businesses, and of course, I do not need to talk to you 
about the importance of small businesses. 

The question is how can small businesses afford not to take this 
sensible step of having these committees if in fact it has such a 
dramatic impact on reducing workers' compensation costs? 

Mr. McGeady. I agree, the point being, though, that the way the 
bill is currently written — the way, for example, our committees 
work — would not be "legal." It would not work because of the way 
we would have to change employees and pieces of equipment in the 
construction industry. It just would not work for our particular sit- 
uation. And I know from an earlier meeting with the Secretary of 
Labor that it would not work for Kodak. Their senior representa- 
tive said it will not work for Kodak, which has a very good commit- 
tee structure in place, and it is working very well. 

The point here is that there is no flexibility. I agree with what 
Representative Fawell said. We are not against committees; we are 
against the way they are structured. I think you need to look at 
the nuts and bolts of how this is done and allow a lot more flexibil- 
ity. 

Senator Wellstone. And built into your definition of flexibility, 
I take it, is not moving away from the idea of joint labor-manage- 
ment committees? 

Mr. McGeady. Absolutely not. I think in small businesses, the 
perception is that it is the "Boss Tweed" of the 1800's or something, 
with the three-piece suit and the watch fob and the overbearing 
stomach, and all of the other folks out there who are struggling for 
an existence. That is not reality; that just is not reality. 

In a small business today, if the employer and the employees do 
not work together, it is not going to be a small business for very 
long. 

Senator Wellstone. By the way, my understanding is that the 
bill allows the Department of Labor to tailor its regulations to 
apply to different kinds of businesses and industries, which would 
meet the very objection that you raise. So I think that is in the bill. 

My last question is for you, Mr. Holt. Your study assumes that 
all covered employers, when you measure the cost, would be start- 
ing from scratch, in other words, that none of them already have — 
and I know in Minnesota, again, as an example, many businesses 
have safety and health programs and have committees already — 
and that none of them currently provide employee training. But as 
you well know, millions of employers already have such programs 
in effect. So I guess I am asking: how can you justify that assump- 
tion when in fact we know that many companies and businesses 
are already doing this? 

Mr. Holt. Well, Senator, first of all, we do not assume that ev- 
erybody is starting from scratch. What we propose to the industry 
safety and health experts from which we developed our input data 
from the study is what would be required to meet the require- 
ments, the prescriptive requirements, of COSHRA. And frankly, 



71 

most of the firms that we were dealing with were larger firms who 
did have various programs in effect. 

Senator Wellstone. But if I could interrupt you for a second, 
your methodology was interviewing; your data is not based upon 
the actual experience of companies. It is based upon a set of inter- 
views that you had; correct? 

Mr. Holt. That is correct. It is based on projections of the re- 
quirements to implement the provisions of COSHRA, based on in- 
dustry safety ancl health experts. That is correct. It is not simply 
taking an average of the numbers everybody said, and our meth- 
odology is described in some detail in the report. But the over- 
whelming opinion of experts and firms that in fact had significant 
programs was that the prescriptive requirements of COSHRA with 
respect to committees, with respect to plans, with respect to train- 
ing, would require them to essentially have parallel programs — the 
exercises they would go through to meet the requirements of 
COSHRA, and then the programs that they have in place now to 
actually address safetv and health. They did not see a substitution 
effect. They saw an additive effect. 

Senator Wellstone. Mr. Chairman, I have used up my time. I 
may pursue that further with you, if that is all right. 

Mr. Holt. I would be happy to talk with you further, yes. 

Senator Wellstone. Thank you. 

The Chairman. Senator Hatch. 

Senator Hatch. Thank you. Senator Kennedy, Mr. Chairman. 

Mr. Holt, as I understand it, you have done this study, and is 
the $61.87 billion what you estimate will occur annually? 

Mr. Holt. Right. This is the annual cost. This is not the startup 
cost. This is the annual recurring cost. For example, this would not 
include the cost of establishing programs for firms that did not 
have them. It would not include the initial training of all the em- 
ployees and firms that did not do training. This is just the annual 
recurring cost of training the new employees that are hired during 
the year and that sort of thing. 

Senator Hatch. So the figure would actually be higher in prac- 
tice. 

Mr. Holt. Well, the startup costs certainly would be higher. 

Senator Hatch. If you add those in. 

Mr. Holt. If those were added in, that is correct. 

Senator Hatch. But you are saying that annually, this new bill 
will cost almost $62 billion. 

Mr. Holt. Yes, based on the cost parameters in our study. 

Senator Hatch. Do you know of any other studies in this area 
that either agree with you or contradict you? 

Mr. Holt. I do not know of any studies that ha^'e attempted to 
do as we did here and make estimates for the entire economy. 
There is an enormous amount, as I am sure you know, of anecdotal 
data from individual firms on an individual year. I do not know of 
any economy-wide study. 

Senator Hatch. And some of these costs will have to be paid for 
by the States and local governments. 

Mr. Holt. Well, we included an estimate of the cost for State 
and local government employing units, of which there are some 
200,000 employing about 17 million employees. We estimated the 



72 

cost of their meeting the new requirements of COSHRA. We did 
not include in that any estimate of the cost for States that are not 
State plan States getting up to compliance with existing OSHA. 
This is just the additional requirements of COSHRA. And that esti- 
mate was $4.1 billion. 

Senator Hatch. But these are mandates for which there will be 
no reimbursement if this bill is enacted as currently proposed. 

Mr. Holt. That is correct. There is no provision for reimburse- 
ment in the bill, at least. 

Senator Hatch. And it is undoubtedly going to be a lot worse, 
according to your estimates, than the approximately $62 billion you 
list here 

Mr. Holt. Again, their initial costs would be higher, and the 
costs for States that are not already State plan States, and that is 
about half the States 

Senator Hatch. You are saying that your estimates are about 3 
percent of total nongovernmental payrolls as of 1990. 

Mr. Holt. Right. 

Senator Hatch. So naturally, they will be up as of 1994. And you 
have got almost 11.8 percent of business net income in 1990. 

Mr. Holt. Yes. That is for the private sector costs and the pri- 
vate sector payrolls; right. 

Senator Hatch. OK. Mr. McGeady, can you generally describe 
the type of paperwork and employee notice requirements that Fed- 
eral, State and local governments currently place on your business? 

Mr. McGeady. Senator, I do not want to answer a question with 
a question, but with respect to OSHA or in general? 

Senator Hatch. OSHA. 

Mr. McGeady. With respect to OSHA; we of course have the an- 
nual reporting that is required. That is a little bit burdensome in 
the month of January, but the rest of the year not too bad. We 
have the requirements to file with State and Federal agencies all 
of our hazardous materials data sheets and hazardous materials 
protection plans, and hundreds of pages of data dealing with haz- 
ardous materials only, many of which are grossly duplicative, but 
that is the current status of the law. We also have on a required 
basis State reports and, of course, workers' compensation reports 
and any of the first injury reports and everything that goes along 
with that. 

We believe in our firm that the best estimate is that it requires 
one of the senior managers of the nature of 8 to 10 hours a month. 

Senator Hatch. Just to fill out the forms? 

Mr. McGeady. Just to deal with the regulatory aspects of 
MOSHA, which is the Maryland Occupational Safety and Health 
Act, and OSHA. And of course, in our case, we also come under the 
Jones Act and some other things that most normal employers 
would not have to deal with. 

Senator Hatch. Do you expect those burdens to go up if the Ken- 
nedy bill is passed? 

Mr. McGeady. The biggest burden would be the written plan 
and the training aspects. We currently do training, which might or 
might not based on my reading of the proposed legislation, meet 
the standards. We do not have the written plan that seems to be 



73 

indicated, simply because of the number of sites at which we work 
and things like that. ,, , j ii 

That could be dealt with, but it certainly would take considerable 
effort and manpower. 

Senator Hatch. Thank you, Mr. Chairman. 

The Chairman. Just briefly, Mr. Holt, did you look into the cost 
of the Oregon program at all? 

Mr. Holt. Our first impulse when we undertook this study was 
to look at the States, particularly Oregon and Washington, where 
the State statutes were somewhat similar to S. 1622. 

The Chairman. What did you find in Oregon? 

Mr. Holt. In Oregon, frankly, the bill was too new, and there 
just was not experience that we could use. 

The Chairman. Have you looked at it since, before testifying here 
this morning? 

Mr. Holt. We have not gone back and looked at it again. We 
have kept a continuing eye on the Oregon experience. There is 

no 

The Chairman. Well, don't you think that when you are making 
your estimates, and there is a real life situation where the require- 
ments have already effectively been put in place, and as a result 
of implementing it, they have gotten cost savings, don't you think 
that that might be of some value or use? 

Mr. Holt. Senator, I do not think that experience data exists 

yet. 

The Chairman. Well, it has been testified to. 

Mr. Holt. The anecdotal evidence 

The Chairman. It has been testified to by the person who ran it, 
and his estimate of the cost is $350 per year per employee rep- 
resentative on the committee. This legislation says you have one 
employee representative per 50 workers. 

Mr. Holt. Well, yes. There is not anything you can take out of 
that number — or there is another number floating around of 600- 
some dollars per firm — there is not anything you can take out of 
either of those numbers that is applicable to estimating the cost of 
S. 575. We have looked at that. I am sure there will be experience 
data out of Oregon in time that will permit us to see whether some- 
thing like 2 hours of training a year is an overestimate or not. 

Senator Hatch. But $350 per employee is not inconsequential, 
even if that were 

The Chairman. It is not per employee, Senator. 

Senator Hatch. What is it? 

The Chairman. You need one trained person per 50 employees. 
That is why the Employment Policy Foundation study, which talks 
about training every employee, is not talking about this legislation. 
What we are trying to look for is credible evidence on the costs of 
these provisions. You have heard the testimony of the people who 
have had actual experience implementing such a requirement. It is 
$350 per year per employee representative on the committee. Nine- 
ty-five percent of businesses would need only one employee rep- 
resentative under S. 575, and 

Mr. McGeady. But Senator, that is playing games with numbers, 
if I may 

The Chairman [continuing]. Well, that may be for you 



74 
Mr. McGeady [continuing]. Because we have only- 



The Chairman [continuing]. That may be for you, but it certainly 
is not for the person who has actually implemented this require- 
ment. With all respect, we are glad to have your comments. 

Mr. McGeady. We have about 10 different locations with five to 
eight employees 

The Chairman. And so does Oregon. You do not think there is 
a construction industry out there? 

Mr. McGeady [continuing]. I understand that, but what I am 
saying is the way I read the law — now, maybe I am in error — I 
would need a trained employee at each site. I believe that is in the 
law. 

The Chairman. Well, why don't you take a look at where com- 
mittee requirements are actually in effect, because it has the sup- 
port of the contractors in the States of Washington and Oregon. 
Evidently, they are actually implementing similar kinds of pro- 
grams, and they do not raise those kinds of objections. I respect 
your opinion, but 

Mr. McGeady. I say again, I support the training aspect, and I 
support the committee aspect 

Tne Chairman [continuing]. Yes, I am familiar with your 

Mr. McGeady [continuing]. I do not support the rigidity that is 
in the current legislation. 

The Chairman. We appreciate that. OK. 

We thank you both very much for your appearance here this 
morning, and we will go on to the next panel. 

Our next panel includes Gerald McEntee, president of the Amer- 
ican Federation of State, County and Municipal Employees; John 
Lennes, of St. Paul, MN, commissioner of the department of labor 
and industry; Charles DeVaney, Mayor of Augusta, GA, on behalf 
of National League of Cities; and John Sweeney, international 
president. Service Employees International Union, AFL-CIO. 

We are trying to accommodate the different schedules of every- 
one here, and we will do the best we can. I understand Mr. 
McEntee has a scheduling conflict. 

Mr. McEntee, we will be glad to hear from you. 

STATEMENTS OF GERALD McENTEE, WASHINGTON, DC, PRESI- 
DENT, AMERICAN FEDERATION OF STATE, COUNTY AND MU- 
NICIPAL EMPLOYEES, ACCOMPANIED BY RUTH 
RUTTENBERG, RUTH RUTTENBERG AND ASSOCIATES; JOHN 
B. LENNES, JR., ST. PAUL, MN, COMMISSIONER, DEPART- 
MENT OF LABOR AND INDUSTRY, STATE OF MINNESOTA; 
CHARLES DeVANEY, MAYOR OF AUGUSTA, GA, ON BEHALF 
OF THE NATIONAL LEAGUE OF CITIES; AND JOHN J. 
SWEENEY, INTERNATIONAL PRESIDENT, SERVICE EMPLOY- 
EES U^TERNATIONAL UNION, AFL-CIO, WASHINGTON, DC, 
ACCOMPANIED BY BILL BORWEAGEN, SAFETY AND HEALTH 
DIRECTOR 

Mr. McEntee. Thank you. Senator. Mr. Chairman and distin- 
guished members of the committee, I am Gerald W. McEntee, the 
international president of the 1.3 million-member American Fed- 
eration of State, County and Municipal Employees. We represent 



75 

State and local government workers, university and health care 
employees across the Nation, 

We commend the chairman for introducing S. 575, the Com- 
prehensive Occupational Safety and Health Reform Act, OSHA, 
and we appreciate the opportunity to share with you our views on 
this critically important legislation, 

I would like to briefly summarize my statement and then submit 
my entire statement for the record. 

The Chairman, All of the statements in their entirety will be in- 
cluded in the record as if read, and we will encourage witnesses to 
summarize their statements. 

Mr. McEntee. Mr. Chairman, public employees perform work 
that is on average 80 percent more hazardous than in the private 
sector. Sewer and sewage treatment plant workers, highway work- 
ers, refuse workers and others do jobs that are five, six, and some- 
times eight times as dangerous as the average private sector work- 
er. 

Yet in most States, Government workers do not have the legal 
right to call for an OSHA inspection. This situation is even more 
unacceptable considering that for 22 years. States have had the op- 
portunity cover their piH)lic employees with 50 percent of the cost 
of such programs funded by the Federal Government. Yet only 23 
States have taken advantage of this significant Federal subsidy. 

Now I would like to address an issue that has been gaining mo- 
mentum throughout the country — the issue of unfunded mandates 
imposed by State and local governments. State and local govern- 
ments are complaining, and not without some justification, that 
costly mandates are being placed upon them by the Federal Gov- 
ernment without providing any funding for implementation. 

Am I too loud for you, Senator? 

The Chairman. Oh, no. It is music to my ears. It is like being 
at one of your conventions. [Laughter.! 

Mr. McEntee. I thought I sounded similar to your voice. 

The Chairman. Just when I am talking about health care. 
[Laughter.] 

Mr. McEntee. While there clearly needs to be a serious discus- 
sion in this country about the responsibility the Federal Govern- 
ment should play when it places new requirements on State and 
local governments, it is clear to us that this discussion should focus 
on the role State and local governments play as governmental enti- 
ties, and not the role they play as employers. This is a major dis- 
tinction which should not De lost in the discussion. 

It may be perfectly legitimate to debate Federal versus State re- 
sponsibility in funding various Federal requirements imposed by 
State and local governments. However, a public employer's respon- 
sibility to pay its employees a minimum wage, to defend their civil 
rights, provide basic health and retirement benefits, and yes, to 

fuarantee a safe workplace, as every private sector employer must 
0, should not be part of this debate. Requiring State and local gov- 
ernments to provide safe workplaces is not an unfunded mandate. 
It is a responsibility, unfortunately, met by too few State and local 
government employers. 

Because of continuing concerns about the cost implications of 
providing OSHA coverage, AFSCME recently commissioned an 



76 

independent study assessing the costs and benefits of public em- 
ployee coverage, which we are releasing to the committee today. 
The study was conducted by Ruth Ruttenberg £ind Associates, and 
economic consulting firm, and Dr. Ruttenberg, the author of the 
study, is here with me today and prepared to answer any ques- 
tions. 

The title of the study, "Saving Jobs, Saving Lives," effectively 
summarizes the study's findings: We can save lives and save 
money. This study shows first that existing data prove that OSHA 
coverage is effective in reducing workplace injuries, illnesses and 
deaths. Second, it indicates that the overall cost of extending 
OSHA coverage to public employees is small in absolute terms and 
small compared to the economic benefits that would accrue. When 
workers are injured on the job, employers are faced with wage re- 
placement costs, medical and workers' compensation costs, disabil- 
ity pension awards, and other indirect expenses involving inves- 
tigating accidents, writing reports and retraining new workers. 

The fundamental reality is that public employers are now paying 
more covering the expenses of employees who have been injured on 
the job than they would have spent on preventing those injuries in 
the first place by conforming with OSHA standards. Using Na- 
tional Safety Council data, it can be estimated that the cost of pub- 
lic employee workplace injury, illness and death just in those 25 
States that do not have OSHA coverage reached $8.7 billion last 
year. If we estimate using very conservative assumptions, that 
OSHA coverage would result in only an 8 percent reduction in 
workplace injuries and deaths. The Nation could save more than 
$600 million per year if public employees were protected by the 
Federal Occupational Safety and Health Act. 

Using less conservative assumptions, the savings could be as 
high as $2.1 billion nationwide. The Ruttenberg study clearly 
shows that public employers will gain from OSHA coverage. We 
strongly urge all members of the committee to review its findings. 

It is my understanding that last week, a member of this commit- 
tee. Senator Nancy Kassebaum, introduced an OSHA reform bill 
identical to the bill introduced in the House by Representative Fa- 
well, which does not contain coverage for public sector employees. 
We in our union and others find this regrettable, because congres- 
sional Republicans have been supportive of such coverage in the 
past. Congressman Fawell's original OSHA bill contained public 
sector coverage. I would respectfully urge members of this commit- 
tee to consider OSHA coverage for all. 

Let me conclude by stating the obvious. Public employees are or- 
dinary American citizens. They do identical work, and they face 
identical, if not more serious, hazards. They should have the same 
rights as other citizens. This is an injustice that cries out for rec- 
tification. 

It is time to pass legislation that will allow workers and manage- 
ment to take a larger role in making the worksite a safer place. We 
strongly support the other provisions of this important legislation — 
health and safety programs, health and safety committees, faster 
standard making, and more effective enforcement. 



77 

We want to thank the committee for the opportunity to testify on 
this important legislation, and we would be pleased to answer any 
questions you may have. 

Thank you, Senator. 

The Chairman. Thank you very much. 

[The prepared statement of Mr. McEntee follows:] 

Prepared Statement of Gerald W. McEntee 

Mr. Chairman and distinguished members of the committee, I am Gerald W. 
McEntee, International President of the 1.3 million member American Federation 
of State, County and Municipal Employees (AFSCME), representing state and local 
government workers, university and health care employees across the Nation. 

We commend the Chairman for introducing S. 575, the Comprehensive Occupa- 
tional Safety and Health Reform Act (OSHA), and we appreciate the opportunity to 
share our views and our suggestions with you. I would like to briefly summarize 
my statement and submit my entire statement for the record. 

In 1991, when I testified on this matter before the House Education and Labor 
Committee, I stated that each year 1,600 public sector workers are killed on the job. 
The National Safety Council recently released a report which states that nuniber 
has now grown to 1,700. In addition, almost half a million public employees suffer 
disabling workplace injuries every year. 

Public employees perform work that is on average 80 percent more hazardous 
than in the private sector. Sewer and sewaee treatment plant workers, highway 
workers, refuse workers and others do jobs that are five, six and sometimes eight 
times as dangerous as the average private sector worker. Yet, in most states, gov- 
ernment woriters do not have the legal right to call for an OSHA inspection. 

This situation is even more unacceptable considering that for 22 years states have 
had the opportunity to cover their public employees with 50 percent of the cost of 
such programs ftinded by the Federal Government. Yet only 23 states have taken 
advantage of this significant federal subsidy. 

We have done everything possible to convince states to protect our members and 
other state and local government employees. We have conducted active, but ulti- 
mately unsuccessful, campaigns in several states to attempt to get public employee 
OSHA plans passed. When we ask for a law, management testifies that it is not 
needed. "We are already providing safe workplaces on a voluntary basis," they say. 
'We are in the middle of a fiscal crisis. OSHA will mean a reduction in government 
services, layoffs and wage freezes," they claim. 

We have always thought this a curious argument. On one hand, they say they 
do not need OSHA regulations, because they already provide safe workplaces. On 
the other hand, they claim that being forced to make their workplaces safe will 
drive them into bankruptcy. So, why will it cost them so much to do what they are 
already allegedly doing anywayr 

Now I would like to address an issue that has been gaining momentum through- 
out the country: the issue of unfunded mandates imposed upon state and local gov- 
ernment. State and local governments are complaining, ana not without some jus- 
tification, that costly mandates are being placed upon them by the federal govern- 
ment, without providing any funding for implementation. 

While there clearly needs to be a serious discussion in this country about the re- 
sponsibility the federal government should play when it places new requirements 
on state and local governments it is clear to us that this discussion should focus 
on the role state and local governments play as governmental entities, and not the 
role they play as employers. This is a major distinction which should not be lost 
in the discussion. 

It may be perfectly legitimate to debate federal-versus-state responsibility in fund- 
ing various federal requirements imposed upon state and local governments, how- 
ever a public employers responsibility to pay its employees a decent wage, to defend 
their civil rights, provide basic health and retirement benefits, and yes, to guarantee 
a safe workplace, as every private sector employer must do, should not be part of 
this debate. Kequiring state and local governments to provide safe workplaces is not 
an unfunded mandate. It is a responsibility — unfortunately not met by too many 
state and local government employers that every employer has. 

Twenty-three states have provided OSHA coverage for public employees for dec- 
ades now without adverse fiscal consequences. Many and perhaps most public em- 
ployers in states that do not currently have OSHA coverage would not be starting 
from zero. While far too many public employees die every year, some public employ- 
ers see the value in safety. Some improvements have been made because of union 



78 

pressure or because newer equipment tends to be safer. Most of our members in 
larger bargaining units are already participating in joint labor-management health 
and safety committees. /-.ou* 

Because of continuing concerns about the cost imphcations of providmg UbHA 
coverage, AI"^SCME recently commissioned an independent study assessing the costs 
and benefits of public employee coverage which we are releasing to the committee 
today. The study was conducted by Ruth Ruttenberg and Associates, an economic 
consulting firm. Dr. Ruttenberg, the author of the study, is here with me today. 

The title of the study: "Saving Jobs, Saving Lives" effectively summarizes the 
study's findings. We can save lives and save money. This study shows, first, that 
existing data proves that OSHA coverage is effective in reducing workplace injuries, 
illnesses and deaths. Second, it indicates that the overall cost of extending OSHA 
coverage to public employees is small in absolute terms and small compared to the 
economic benefits that would accrue. When workers are injured on the job, employ- 
ers are faced with wage replacement costs, medical and workers' compensation 
costs, disability pension awards, and other, indirect expenses involving investigating 
accidents, writing reports and retraining new workers. The fundamental reality is 
that public employers are now paying more covering the expenses of employees who 
have been injured on the job, than they would have spent on preventing those inju- 
ries in the first place by conforming with OSHA standards. 

Using National Safety Council data, it can be estimated that the cost of public 
employee workplace injury, illness and death just in those 27 states that do not 
have OSHA coverage reached $8.7 billion last year. If we estimate, using very con- 
servative assumptions, that OSHA coverage would result in only an 8 percent reduc- 
tion in workplace injuries and deaths, the nation could save more than $600 million 
per year if public employees were protected by the federal Occupational Safety and 
Health Act. Using less conservative assumptions, the savings could be as hi^ as 
$2.1 billion nationwide. 

Pennsylv'ania is the largest state in the country that does not cover public employ- 
ees. This study found that the cities, counties, and Commonwealth of Pennsylvania 
could save $30.7 million, approximately $8 million accruing to the Conmionwealth 
and $22.7 million to political subdivisions— if public employees were covered by 
OSHA. .^ ^ 

The Ruttenberg study was not limited to nationwide or statewide figures. We 
know that many of the big cities in this country are struggling though fiscal crises. 
In order to see how OSHA coverage would affect them, the study focused on the City 
of Philadelphia. It found that Philadelphia could have saved $7.6 million in costs 
associated with lost-time work injuries, expressed in 1992 dollars, $2.9 million in 
service-connected disability costs, and $840,000 in medical costs payable by the City 
and associated with workplace accidents. 

In order to determine what kind of costs the City of Philadelphia would face, in- 
spections were undertaken of several Philadelphia public workplaces. An on-site in- 
spection at one work site in Philadelphia found over two dozen safety violations- 
violations which would cost perhaps a total of $1,500 to correct. At least three work- 
ers from that site are on permanent disability, and there have been other serious 
injuries — finger tip amputations, lower back and knee injuries, and a multitude of 
other problems. The $1,500 for hazard abatement is less than one month of a dis- 
ability pension for just one disabled worker. rvouA 

The Ruttenberg study clearly shows that public employers will gain from OSHA 
coverage. We strongly urge all members of the Committee to review its findings. 

OSHA coverage for public employees is not simply a matter of dollars and cents, 
but a basic issue of fairness and eouality. Ultimately, it is impossible to quantify 
the cost to the victims or to their families in suffering and sorrow of workers in 
their twenties or thirties disabled for life by serious injuries or illnesses. Who can 
put a value on a human life lost in a preventable accident, in children who will grow 
up without their parents or grandparents, parents who watch their children die in 
the prime of their lives just because they are public employees? 

A coalition of over fifty national organizations endorsing S. 575 recently held a 
press conference on Capitol Hill to let members of the Congress and indeed the pub- 
lic know that the Comprehensive Occupational Safety and Health Act has wide- 
spread support. The "Safe Jobs Now" coalition is a broad-based coalition represent- 
ing civil nghts, women's, religious, environmental, consumer, labor and other 
groups. For the record, we would like to submit a list of the organizations support- 
ing tne OSHA reform legislation. 

let me just conclude by stating the obvious: public employees are ordinary Amer- 
ican citizens. They do identical work, they face identical, if not more serious haz- 
ards, they should have the same rights as other citizens. This is an injustice that 
cries out for rectification. 



79 

It is time to pass legislation that will allow workers and management to take a 
larger role in making the worksite a safer place. We strongly support the other pro- 
visions of this important legislation— health and safety programs, health and safety 
committees, faster standard making and more effective enforcement. 

We want to thank the Committee for the opportunity to testify on this important 
legislation, and we would be pleased to answer any questions you may have. 

The Chairman. Mr. Lennes. 

Mr. Lennes. Thank you, Mr. Chairman. My name is John 
Lennes, and I am commissioner of the department of labor and in- 
dustry in the State of Minnesota. 

The Chairman. I will note that both of our colleagues from Min- 
nesota were here, and they would want me to extend a warm wel- 
come to you, which I do. I know they are both very much involved 
in this issue and were looking forward to your testimony, and Sen- 
ator Wellstone will be back momentarily. 

Mr. Lennes. Well, Mr. Chairman, it is a pleasure to appear be- 
fore a committee on which our State is so well and abundantly rep- 
resented. 

On behalf of our Governor and the employees of the department 
of labor and industry, we certainly welcome the opportunity to com- 
ment on the legislation before the Senate. 

My background is a little bit different than that of a typical com- 
missioner of labor in our State. I was formerly vice president and 
general counsel of the State Chamber of Commerce, as well as di- 
rector of government affairs for the Minnesota Business Partner- 
ship, which is essentially a State version of the Business Round- 
table. I co-chaired the workers' compensation advisory council from 
the employer perspective. So I see some of the concerns that are 
raised a little bit from a perspective that has been shared with you 
earlier, but I think I would differ with some of the conclusions that 
were presented to you on that basis. 

We have an outstanding safety record in Minnesota. We have 
shared the safety annual report with staff, and that is a tribute to 
the combined efforts of employers and employees in our State and, 
I think, oversight by Minnesota OSHA. 

Our system in many ways represents a system that is similar to 
that being proposed and considered by this committee, and I think 
that in a certain sense, we are testifying here to tell you how that 
works when it has actually been in place in a State. 

I should also say at the outset that our OSHA inspectors in a re- 
cent survey made of business owners around the State of Min- 
nesota received the highest ratings of any State employees with 
whom they come in contact on any regular basis. So OSHA may be 
oppressive in some States, and I cannot speak to that, but in the 
State of Minnesota, our people are very well-respected. 

There are a number of aspects of this legislation that are very 
important. Prevention is the key. Health and safety programs and 
joint committees work. It is as simple as that. Since 1990 in Min- 
nesota, we have had something called the AWAIR program, "A 
Workplace Accident and Injury Reduction Act," which has man- 
dated joint committees to be set up with employer-employee in- 
volvement. We think that is very key. At first, that was limited to 
employers with over 50 employees. Since 1993, that applies to all 
of them. 



80 

Since 1992, we have mandated labor-management safety commit- 
tees be set up, so we are one of those States with both require- 
ments in place. That applies to employers with 25 or more employ- 
ees and those in industries with high lost workday rates. So we 
tried to focus that, and I think that is important as well. 

It is a little bit too soon, I think, to have definitive evidence that 
these are remarkably effective, but we have seen remarkable spe- 
cific evidence from company to company that they work very well. 
I will give you a few examples, and I have materials I can share 
with the committee on that. 

Marigold Foods, a large dairy processor in our State, has imple- 
mented a safety committee, and iust since 1991, they nave seen a 
reduction of 50 percent in their lost time accidents. In that same 
period of time, they have seen a reduction in lost days of two- 
thirds. This is a phenomenal decrease. 

And they are not alone. There is a large international construc- 
tion company in our State that set up their own safety consultation 
program internally, working jointly, labor and management, and 
since 1989, they have seen their overall cost of workplace accidents 
drop from $1.57 per hour per employee down to $1.18 in 1992, and 
it is estimated it will be 74 cents by 1993. 

Atmosphere as much as anything else is responsible. It is not 
purely sa-fety; it is a sense of a ioint commitment on the part of 
management and employees working toward a better workplace. 
There have been a numoer of studies that we do not need to go 
through that have shown that, I think, clearly enough that it is no 
longer a subject of serious debate. 

A second aspect of this bill that I think is extremely important 
is the one that Mr. McEntee iust spoke to, and that is the coverage 
of public employees. We absolutely support that. 

There are three basic reasons why. One is simply credibility. At 
the State of Minnesota, when we get a complaint from a private 
company, saying, "Why are you domg these things to us?" one of 
the first things they ask us is, "Do you do this to yourself? Does 
Government require the same standards of itself that it does of 
us?" And the answer to that is yes, we do. It takes a remarkable 
amount of the antagonism out of their system. 

Second, we also do provide that the fines collected under our 
OSHA system go back into the workers' compensation system. They 
go back to reduce the costs of overall workers' compensation to em- 
ployers. It is in no sense a "bounty" kind of system; we think that 
is also important. 

The second facet does relate to the first, and that is one of simple 
fairness. You should live by your own rules. 

The Chairman. Excuse me. So if you collect a fine, that goes into 
the workers' compensation fund; is that correct? 

Mr. Lennes. Yes, Senator, it does. There is an overall fund that 
we collect for to pay the costs of workers who are injured whose 
employers did not purchase workers' compensation, and a few other 
sort of societal costs. All OSHA fines now, as of about 2 years ago, 
go to keep the cost of that assessment down. So you can say to an 
employer that if you do not have safety violations that you have 
had to pay for, the net effect of OSHA fines in the State of Min- 
nesota is to actually decrease your workers' compensation costs. 



81 

Government should live by its own rules. That is a good way to 
learn what the rules ought to be. 

And third is the point that I think Mr. McEntee made very well, 
and that is if OSHA is there to protect, there is no reason whv we 
should limit that protection to only some of our citizens. Some have 
said that Government fining Government is a pointless exchange 
of money, a little bit like giving yourself a transfusion, but I find 
that is not the case. Officials or bureaucrats who find that their 
agency has suffered OSHA fines have a difficult time explaining 
that sometimes to the funding mechanism, whether it be at the leg- 
islature or at the common board, and that is appropriate. It can be 
inconvenient. Not long ago, our agency levied a fairly high citation 
against a school district in rural Minnesota — one in which, oddly 
enough, I happen to have a vacation cabin, so I was a taxpayer 
there. The local folks were very upset. They asked what point is 
there in coming in and taking scarce education dollars and putting 
them into the OSHA coffers. And we said, well, if that were what 
we were about, there would not be a point, but the point was we 
had a hazardous place there. 

What we did, though, was to work with that school district, once 
we got past the point of initial consternation. We reduced their 
fines by allowing them to abate the situation that had prevailed in 
that district and also worked with them to do what school districts 
do best, and that is educate. Through them, our department put on 
a series of 10 workshops, 13 consultations, and an ongoing relation- 
ship with school districts throughout the State of Minnesota, using 
their experience and building on it to teach others. And we think 
that as a result, the outcome is that we will have safer school dis- 
tricts for all. 

The other thing we pointed out was that this might have been 
a $36,000 fine reduced to $9,000, but that stood in contrast to $100 
million in workers' compensation premiums annually paid by State, 
local and school districts in our State. So the perspectives were a 
bit strange. 

A third facet of the legislation that is very important, I think, is 
the involvement of employees as partners in this entire system. We 
think that is totally appropriate. Some question has been raised as 
to what would happen if we allowed employees to become parties 
to the contestation process and to involve themselves in that re- 
spect. In Minnesota, we have had that possibility now for over 20 
years. Since 1975, they have been allowed to contest violations and 
propose penalties for the failure to apply a penalty. The involve- 
ment has been rare. We have averaged about one per year. So it 
is not something that has turned out to be abused. It just has not 
worked that way. In part, I think that is due to our OSHA appeal 
board. We have two distinguished experts on there, one former 
president of the State AFL-CIO, and one former law professor and 
general counsel to a large timber-producing company. They have 
donated their time, and they are very, very fair, so there is a good 
deal of confidence in that. 

There are a few caveats that I would leave you with. One is a 
concern that many of the State plan administrators have that we 
may be moving toward a time when there is not enough freedom 



82 

of States to act and to respond in a broad way to their problems. 
I know that the OSHPA people have shared that with you. 

The second is in the area of criminal sanctions. It is a topic not 
without controversy. We have used them in the State of Minnesota, 
not under the OSHA statute but under other statutes, and they can 
be a two-edged sword. I would just caution that the most effective 
plans I have seen that involve genuine labor-management coopera- 
tion are there because both sides understand it is win-win. It is 
possible for this to degenerate into confrontation, and I would hope 
we could avoid that. 

Citations should, in my iudgment, be violation driven, not out- 
come driven. One concern that some people have is that if you have 
a system that simply responds to a serious incident and goes out 
andf finds a violation, then you will have a system where those vio- 
lations are only enforced in that event. That is kind of a cart-be- 
fore-the-horse situation. 

As administrators of systems, we are constantly faced with over- 
sight from the public, the media and others, and it seems as 
though, on a daily basis, the objection is there is too much red tape 
and there is too much to go through. Then, as soon as an accident 
takes place, it is: Where were you? All of a sudden, the red tape 
should have been applied the day before, at that accident site. 

It is very easy for administrators to overreact, and we try to 
avoid that. 

I think there is a good deal more that I have touched upon in 
my prepared testimony. Senator, but at this point, I will certainly 
stand for questions. 

The Chairman. Thank you very much. 

Mr. McEntee, I know you have to leave in just a few minutes. 
Maybe Dr. Ruttenberg could remain, and after we have heard the 
panel, and I would ask her for any comments she may wish to 
make on Mr. Holt's financial assessments of the legislation. 

Mr. McEntee. We would like the study put in the record as well, 
Senator. 

The Chairman. Yes, we will include that study in the record. 

Thank you very, very much. 

[The study of Ruth Ruttenberg and Associates may be found in 
the files of tne committee.] 

The Chairman. Mayor, we are glad to have you here. 

Mayor DeVani<]Y. Thank you, Mr. Chairman. 

I am Charles DeVaney, Mavor of the City of Augusta, GA, and 
today I am speaking on behalf of the National League of Cities and 
170,000 municipal officials from cities and towns across the coun- 
try. I would like to mention that I serve on the board of directors 
for the National League of Cities, and I am its representative to 
our own energy, environment, and natural resources committee. 

Certainly, I would like to thank you, Mr. Chairman, for this op- 
portunity to express the issues and concerns of the public sector 
with respect to the proposed changes to the Occupational Safety 
and Health Act. I sincerely hope that the points that I make today 
will be taken under advisement while debate over this important 
issue moves through the legislative process. 

My remarks today will focus on several issues of concern to local 
government officials with respect to what we view as an additional 



83 

proposed unfunded Federal mandate. My comments will be brief, 
and I will certainly be glad to provide more detailed information 
as requested following this hearing. 

First, I would like to point out that to my knowledge, there has 
been no research to date that concludes that public sector employ- 
ees are in fact at a higher risk to injury or death because of their 
lack of coverage under the OSHA requirements. Further, this pend- 
ing legislation would have us assume that municipalities across the 
country are unresponsive to the work hazards of their employees 
and have taken no steps to ensure their safety on the job. 

Municipal employees are not nameless faces to any of us. They 
are our wives and husbands, and daughters and sons, and our 
friends. I would therefore recommend that before the implementa- 
tion of this proposed broad-based, far-reaching, costly Federal man- 
date, that steps be taken to evaluate the effectiveness of the efforts 
and programs currently being undertaken by municipalities. 

I would like to point out that in my own city, we have had a 
longstanding policy manual, and many of the things we do, I think, 
are exactly what we should be doing as municipalities. We main- 
tain ongoing programs to see that our employees clearly under- 
stand all facets of our safety and loss prevention program. We work 
to reduce and control and avoid employee exposure to all known or 
suspected occupational safety and health risks. We make reduction, 
control, and elimination of risk a top priority in all of our plans. 
We establish and maintain community with all employment levels 
to keep employees aware of the safety and health factors of their 
jobs. We provide incentive programs to encourage employees to 
identify, control and eliminate safety and health risks, and we es- 
tablish and maintain an accident and injury reporting system and 
recordkeeping system in our community. And I am certain that this 
is indicative of what many, many other communities of all sizes do 
throughout our Nation. 

A second point that has been mentioned several times today that 
I believe needs reconsideration is the provision that any employer 
or any officer, management official or supervisor having direction, 
management, control or custody of any place of employment who 
willfully violates any standard, rule, or other promulgated order 
pursuant to Section 6, or any regulations prescribed pursuant to 
this Act, and that violation causes serious bodily injury to any em- 
ployee, but does not cause death to any employee, shall, upon con- 
viction, be punished by a fine in accordance with Section 3671 of 
Title 18 of the U.S. Code or by imprisonment for not more than 5 
years, or both. 

The potential impact of such provisions on municipal elected offi- 
cials cannot help but have a chilling effect on the ability of Govern- 
ment to attract dedicated civil servants. The vast majority of mu- 
nicipal elected officials are unpaid volunteers, or receive nominal 
compensation in an effort to serve their communities. I think their 
motives are always good, and they are concerned over their employ- 
ees and the employees' safety. 

Moreover, municipal government is not a for-profit enterprise, 
but rather one based on concern and commitment to the lives of the 



84 

families it serves. I believe that at this point, it is important to em- 
phasize that this is a key difference between the public and the pri- 
vate sector employer. 

Third, this bill requires a one-size-fits-all, joint employer-em- 
ployee safety committee. Many cities use similar committees to 
good effect. However, these committees are not established under 
as rigid standards as proposed under this legislation. Since every 
employer would be required to establish a committee at every 
worksite with 11 or more workers, the requirements for municipal 
governments could mount rapidly, particularly considering the mul- 
tiple locations of such public facilities as schools, fire and police 
stations, and public works facilities. 

The city of Houston, for example, would be required to establish 
worker safety committees at over 400 worksites. In my own com- 
munity, I can think of dozens of worksites, many of which are adja- 
cent to each other or within a 3- to 4-square-block area. I can think 
of two separate fire stations, a public transit facility, a public tran- 
sit maintenance facility, as well as our other worksites that have 
the city sanitation equipment. All are adjacent or across the street 
from each other or, in the case of the fire stations, within a few 
blocks of each other. 

The final and perhaps most compelling factor to cities and towns 
is where will we find the money to implement this mandate. The 
additional funding to comply with the new OSHA regulations in 
this legislation, not to mention the overall of current nonOSHA 
worker safety programs like the one in my city, has not yet been 
estimated by the Congressional Budget Office. I believe that this 
data is essential to an informed discussion of OSHA reform. 

Notwithstanding the lack of cost estimates to local governments, 
I can tell you that it will cost the city of Augusta and other cities 
like it a great amount of taxpayer money. I know that at the Fed- 
eral level, you face the never-ending challenge of balancing the 
Federal budget, and you understand that the budget process re- 
quires that as more dollars are spent on one priority, fewer are 
available for other priorities. Cities, too, must balance their budg- 
ets, and in my State, it is a constitutional requirement. We have 
no choice. 

We are especially concerned that the new Federal requirements 
would force many cities, especially central and rural cities, with the 
greatest distress and highest crime rates, to make cuts in munici- 
pal programs, personnel and services critical to the safety and 
health of all citizens. And yet we all want to do what is necessary 
to protect the safety and welfare of those who work for us — and, 
as has already been said, many of whom we know by name and 
know their families and know their situations. But yet at the same 
time, we are called upon by our taxpayers to spend our money 
wisely, with the greatest emphasis on cost-effectiveness. In this day 
and time, we can hardly afford to cut public safety. We cannot cut 
police or fire. We do not want to cut the arts. And there are great 
needs in our central cities for housing rehabilitation and other 
services that perhaps have gone lacking for far too long. 

In summary, we share with you, Mr. Chairman, your concern for 
our Nation's work force. We would work together for cost-effective 



85 

programs that focus scarce resources on the most central safety is- 
sues, and we want to make clear that we cannot afford to risk the 
safety of our work force. Please join with us to examine thoroughly 
the safety practices and procedures currently in place in the public 
sector. 

Again, I hope that as this discussion proceeds, this type of infor- 
mation will be vital and necessary for the thorough and proper dis- 
cussion of this most important issue. 

Thank you. 

The CHAmMAN. Thank you very much, Mr. Mayor. 

[The prepared statement of Mayor DeVaney follows:] 

Prepared Statement of Mayor Charles DeVaney 

Good morning. I am Charles DeVaney, Mayor of the City of Augusta, GA, speak- 
ing on behalf of the National League of Cities, and the 170,000 municipal officials 
from cities and towns across the country. I would like to thank you, Mr. Chairman, 
and the members of the committee for this oppwrtunity to express the issues and 
concerns of the public sector with respect to the proposed changes to the Occupa- 
tional Safety and Health Act. I strongly urge that the points I make today will be 
taken under advisement while debate over this important issue moves through the 
legislative process. 

My remarks today will focus on several issues of concern to local government offi- 
cials with respect to this proposed unfunded Federal mandate. My comments will 
be brief and 1 will provide more detailed information as requested following this 
hearing. 

First, I would like to point out that to my knowledge there has been no research 
to datre that concludes that public sector employees are in fact at a higher risk to 
injury or death because of their lack of coverage under the OSHA reaquirements. 
Further, this pending legislation would have us assume that municipalities across 
the country are unresponsive to the work hazards of its employees and have taken 
no steps to ensure their safety on the job. Municipal employees are not nameless 
faces to us. They are our wives, our husbands, our daughters, our sons, and our 
friends. I would therefore recommend that before the implementation of this pro- 
posed broad-based, far-reaching, costly, unfunded Federal mandate, that steps be 
taken to evaluate the efTectiveneas of the efforts and programs currently being un- 
dertaken by municipalities. 

A seconcf point that I believe needs reconsideration is the provision that "any em- 
ployer or any officer, management official, or supervisor having direction, manage- 
ment, control or custody of any place of employment who willfully violates any 
standard, rule or order promulgatged pursuant to section 6 or any regulations pro- 
scribed pursuant to this act and that violation causes serious bodily injury to any 
employee but does not cause death to any employee shall upon conviction be pun- 
ished by a fine in accordance with section 3671 of title 18 of the U.S. Code or by 
imprisonment for not more than 5 years or by both." 

The fwtential impact of such provisions on municipal elected ofTicials wiSll have 
a chilling effect on the ability of government to attract dedicated civil servants. The 
vast majority of municipal elected officials are unpaid volunteers or receive nominal 
compensation in an effort to serve their communities. Moreover municipal govern- 
ment is not a for-profit enterprise, but rather one based on concern and commitment 
to the lives of the families it serves. I believe that at this point it is important to 
emphasize this as a key difference between the public and the private sector em- 
ployer. 

Third, this bill requires "one-size fits all" joint employer-employee safety commit- 
tees. Many cities use similar committees to good effect and cities in Washington and 
Oregon have experience with committees on a state-required basis. However these 
committees are not established under as rigid standards as proposed under this leg- 
islation. Since every employer would be required to establish a committee at every 
worksite with 11 or more workers the requirements for municipal governments 
could mount raditly, particularly considering the multiple locations of such public 
facilities as schools, fire and police stations and public works facilities. The City of 
Houston, for example, would be required to establish worker safety committees at 
over 400 worksites. 

The final, and perhaps most compelling factor to cities and towns, is where we 
will find the money to implement this mandate. The additional funding to comply 



86 

with the new OSHA regulations in this legislation, not to mention the overhaul of 
current non-OSHA worker safety programs like the one in my city, has not yet been 
estimated by the Congressional Budget OfTice. I believe this data is essential to an 
informed discussion oi OSHA reform. 

Notwithstanding the lack of cost estimates to local goverments, I can tell you that 
it will cost the City of Augusta, and other cities like it, a great amount of taxpayer 
money. I know that at the Federal level you face the neverending challenge of bal- 
ancing the Federal budget. You understand that the budget process requires that 
as more dollars are spent on one priority, fewer are available for other priorities. 
Cities too must balance budgets. We are especially concerned that the new Federal 
requirements would force many cities — especially central and rural cities with the 
greatest distress and highest crime rates — to make cuts in municipal programs, per- 
sonnel, and services critical to the health and safety of all citizens. 

In summary, we share with you, Mr. Chairman, your concerns for our Nation's 
workforce. We would work together for cost-effective programs that focus scarce re- 
sources on the most central safety issues. We want to make clear that we cannot 
afford to risk the safety of our workfoce. Please join with us to examine thoroughly 
the safety practices and procedures currently in place in the public sector. Again, 
I do not see how you can proceed in this discussion without such information. 

The Chairman. Mr. Sweeney, we are glad to have you with us. 

Mr. Swi<:eney. Thank you, Senator. 

My name is John Sweeney, and I am president of the Service 
Employees International Union, AFL-CIO. I appreciate this oppor- 
tunity to testify on an issue of vital importance to SEIU members, 
the Comprehensive Occupational Safety and Health Reform Act. 

On behalf of the one million members of SEIU, I also thank you, 
Mr. Chairman, for your leadership and vision in bringing S. 575 to 
the forefront of this committee's legislative agenda. 

More than half of SEIU's one million members work in the public 
sector for local, State and Federal Governments. SEIU strongly 
supports those provisions of S. 575 that will bring OSHA protection 
to all public employees. We were disappointed to see that the Re- 
publican alternative does not do the same. After more than 2 dec- 
ades, all public employees are still not guaranteed the right to a 
safety and health workplace. Nearly 7.5 million public employees 
are excluded from the law's protection. 

Today, only 23 States cover public employees through OSHA-ap- 
proved States plans. Hundreds of thousands of these workers are 
SEIU members who work for Federal, State and local governments. 

Our members work in hazardous occupations as health care 
workers, social service workers, police officers, firefighters, correc- 
tions officers, sewage treatment plant workers, road crew workers, 
and State mental health institution workers. 

What many people do not realize is that Government work is 
hazardous work. In 1992, public employees had the highest number 
of workplace fatalities of any industrial sector. According to the Na- 
tional Safety Council, 1,700 public employees died on the job in 
1992 — more deaths than mining or construction. 

Public employers should not get special treatment. Labor stand- 
ards should cover all employers. Indeed, Congress and the courts 
have steadily extended the coverage of the FLSA, Social Security, 
and Medicare to include State and local employees. The Family and 
Medical Leave Act and the Americans with Disabilities Act also 
cover public employees. Title 7 of the Civil Rights Act was amended 
by Congress to cover State and local employees. Health care work- 
ers in the public sector urgently need OSHA protection. 

City-run Grady Memorial Hospital in Atlanta, GA is one of the 
epicenters of the TB epidemic. In fact, the tuberculosis epidemic is 



87 

concentrated in public hospitals, clinics, and prisons. If public em- 
ployees continue to be exempted from OSHA coverage, then those 
health care workers in greatest need of protection would not re- 
ceive it. 

I would also like to emphasize that OSHA coverage for public 
employees is not an unfunded mandate. OSHA coverage is a ques- 
tion of the obligations of Government as employers, not as provid- 
ers of Government services. Opponents are attempting to revive the 
theory that the Federal Government cannot regulate States and lo- 
calities as employers, an argument that has been settled by the 
U.S. Supreme Court. 

Finally, I would like to point out that failure to cover public em- 
ployees costs public employers money. According to data from the 
National Safety Council, public employee fatalities alone cost more 
than $1.3 billion each year. Disabling work-related injuries cost 
State and local governments an additional $14 billion each year. 

OSHA coverage for public employers is a matter of simple justice, 
and it is long overdue. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Sweeney follows:] 

Prepared State.ment of John Sweeney 

My name is John Sweeney and I am president of the Service Employees Inter- 
national Union, AFL-CIO. I appreciate this opportunity to testify on an issue of vital 
importance to SEIU members, the Comprehensive Occupational Safety and Health 
Reform Act. On behalf of the one million members of SEIU, I also thank you, Mr. 
Chairman, for your leadership and vision in bringing S. 575 to the forefront of this 
Committee's legislative agenda. 

The Service Employees International Union is the fourth largest union in the 
AFL-CIO, and the largest union representing service workers. Tne breadth of our 
experience with safety and health comes from the wide range of workers we rep- 
resent in service occupations like building service and maintenance, health care and 
office support work. Typical job titles for our membership include nurses, nursing 
home aides, social service workers, janitors and clerical workers. 

Our membership also spans the public and private sector workforce. Of our one 
million members, more than half work in the public sector for local, state and fed- 
eral governments. Effective and comprehensive health and safety protection for all 
workers, including public sector workers, is a top priority for this union. Guarantee- 
ing equal protection for both public and private sector workers under the OSHAct 
is essential. 

The Occupational Safety and Health Act is one of our nation's most important and 
significant labor standards. The principle it embodies is one which no one can deny 
is of vital importance — the fundamental right of workers to work in a safe and 
healthy workplace. It is imperative that this right be extended to all working Ameri- 
cans — no matter who their employer is. 

When the Occupational Safety and Health Act was passed, we had great hope 
that this landmark legislation would bring about significant changes in safety and 
health protection for workers. Indeed, there has been improvement. Fatalities from 
workplace injuries declined from 14,000 in 1972 to 8,500 in 1992. Exposure to some 
serious hazards have been reduced. Expanded efforts and programs to address job 
safety hazards have been undertaken by more employers and unions. 

But progress has been much too slow in comparison to the scope of the problems 
and the toll remains unacceptably high. Every day nearly 40 workers are Killed on 
the job by safety hazards alone. According to the Bureau I.^bor Statistics, 8.4 mil- 
lion workers suffered occupational illnesses and injuries in 1991. And, because the 
BIJS does not systematically collect data on public employees, this number excludes 
public employees. It is estimated that another 70,000 to 100,000 workers die pre- 
maturely each year from occupational disca.ses resulting from exposure to toxic sub- 
stances. 

Service industries and occupations, both public and private sector, have been ne- 
glected for too long. Tliere has been a tendency to believe that illness and injury 



88 

occur only in industrial occupations. This is simply not so. In fact, today iryury and 

illness rates are higher in the service and public sector than in the industrial sector. 

Occupational safety issues that have not been addressed are now critical emer- 

f;encies-witne8s the striking rise in health care workers becoming occupationally in- 
(Bcted with tuberculosis. Newer problems like ergonomic hazards, infectious dis- 
eases, indoor air contaminants, and on-the-job physical assault demand immediate 
attention. The proposed requirement for expedited standard setting and timely re- 
sponse to petitions for OSHA standards, will help to remedy this neglect. 

Delays in passing the Comprehensive Occupational Safety and Health Act since 
its introduction in 1992 have cost us dearly. During those two years, the human and 
financial cost of occupational iryury and illness has continued to rise. We cannot af- 
ford to wait any longer. 

COVERAGE OF PUBLIC EMPLOYEES 

At SEIU we continue to believe that the leading deficiency in the current OSHAct 
is the exclusion of nearly 7.5 million public sector employees from the law's protec- 
tion. As a consequence, millions of workers in the United States continue to be de- 
nied the basic right to a safe workplace. 

In 1992, public employees had the highest number of workplace fatalities of any 
industrial sector. According to the National Safety Council, 1700 public employees 
died on the job in 1992, more deaths than occurred in the mining or construction 
industries. The inclusion of public employees in S. 575, will make a significant dent 
in reducing rates of illness and injury among public employees and will reduce the 
attendant costs. 

The failure to include public employees in the protections of the OSHAct flies in 
the face of the trend toward applying major federal labor standards equally to pri- 
vate and public sector employers. During the 1980's, Congress and the courts have 
steadily extended the coverage of the Fair Labor Standards Act, Social Security, and 
Medicare to include state and local employees. The Family and Medical Leave Act 
also covers public employees. Other examples include Title VII of the Civil Rights 
Act, which was amended by Congress to cover state and local employees, as well 
as the Americans with Disabilities Act. 

When the OSH Act was passed, Congress intended for its coverage to be as broad 
as possible. It is noteworthy that the Act does not exempt small employers nor does 
it place other similar limitations on the coverage of private employers that can be 
found in many other labor standards statutes. States and their subdivisions were 
excluded from the definition of employer because of concern about constitutional 
challenges. However, the desire of Congress to protect these employees is clearly 
evidenced by the requirement that they be covered when and if a state chooses to 
adopt a state plan. Today, twenty-three states cover public employees throu^ 
OSHA-approved state plans. 

When tne OSHAct was enacted in 1970, injury rates were higher in the public 
sector than in many parts of the private sector. For example; injury rates for munic- 
ipal employees in 1967-69 were almost four times higher than the all industry aver- 
age during that period. Notwithstanding this fact, public employees were exemiited 
from the Act. Today, public employees suffer 10(20 percent more injuries and ill- 
nesses than do their private sector counterparts. Almost 25 years of consistently 
higher than average rates of illness and injury among public sector workers sends 
us a message that we cannot ignore. 

PUBLIC EMPLOYEES NEED OSHA PROTECTION 

As a union representing both the public and private sectors, SEIU is in a unique 
position to evaluate the inequalities in coverage between these two groups of work- 
ers. Two workers in the same industry, in the same city, doing the same job can 
be given vastly different degrees of protection from health ana safety hazards at 
work. 

Who is affected by public employee exemption from OSHA protections? Hundreds 
of thousands of these workers are SEIU members who work for federal, state, and 
local governments. Our members work in hazardous occupations as health care 
workers, social service workers, police officers, fire fighters, corrections officers, sew- 
age treatment plant workers, road crew workers, and state mental health institu- 
tion workers. 

Of great concern to us is the fact that thousands of our members who work in 
public health care facilities are excluded from OSHA coverage. These frontline 
health care workers will not be covered bv OSHA's new blood borne pathogens 
standard simply because they are employed in the public sector in states that do 
no choose to protect them. Add to this the reality that our health care workers in 



89 

public hospitals are also at increased risk of exposure to tuberculosis. If these at- 
risk health care workers continue to be excluded from OSHA coverage, they would 
not be covered by any OSHA TB standard when it is implemented. 

SEIU members in California have benefited from the protections of CALOSHA, 
the states' plan to protect public sector workers. SEIU represents the majority of 
state and county workers in California. Their experiences demonstrate the value of 

Sublic employee coverage in preventing workplace accidents or in correcting the con- 
itions from which they arose. 

Mike Hayworth, a member of SEIlPs Local 715, in Santa Clara CA, who works 
as a custodian for the County, can attest to this. Part of Mr. Hayworth's job re- 
quired him to mix batches of chemicals for use in boilers in county buildings. The 
fi^oblem was that there were no emergency washing facilities available to Mr. 
Jayworth or his co-workers. In August of 1993, when employees threatened to no- 
tify CALOSHA about the absence oi eye wash or shower facihties, the county quick- 
ly took action and installed washing facilities. 

One member involved in this incident told us that, "just the existence of 
CALOSHA is worth a lot. Even if county employees never call them, they are there 
as a resource and our employer knows it." The county government remedied this 
dangerous situation because a state OSHA program was in place. Conversely, in 
states without OSIIA coverage, public employers Know they can ignore OSHA stand- 
ards — without fear of sanction. 

Implementation of work process changes is a critical form of prevention. One of 
our members, also a member of SEIU Local 715, lost part of his finger in a piece 
of machinery in a county-run sewage treatment plant m Fremont, CA. A sign was 
actually posted next to the piece of equipment instructing workers to put their 
hands in the machinery to operate it. CALOSHA was called in by county employees 
after the accident occurred and the county government was cited. CALOSHA took 
a good look around the plant while they were there, and in the end the treatment 
plant safety program was entirely overhauled — no doubt preventing other accidents 
waiting to happen. 

But, many SEIU members cannot avail themselves of OSHA protections because 
their states have elected not to develop a plan for protecting public sector employ- 
ees. These workers do not fare as well as their fellows in states that do cover public 
employees. 

Steve McNally is no longer here to tell us what it means to work without the ben- 
efit of safety and health protection. Mr. McNally, a member of SEIU Local 285, was 
killed at the age of 34 while working on a highway crew to repair roads for the Com- 
monwealth of Massachusetts. Mr. McNally died of multiple injuries due to trauma 
as a result of being struck by a truck while patching potnoles on 1-95. A co-worker 
who was at the scene explained that there snould have been more people working 
at the site and that there should also have been cones, signs and lights set up to 
protect workers at the site. Mr. McNally was unlucky enough to be working lor a 
road maintenance crew in Massachusetts, a state without an OSHA-approvea state 
plan. 

Inclusion of public employees cannot simply be left to the whim of a state that 
calculates whether it is worthwhile to protect its own employees. Because he was 
a public employee, Mr. McNally was forced to work under more hazardous condi- 
tions than his private-sector counterparts. 

Also in Massachusetts, state road crew woriiers were routinely exposed to toxic 
chemicals while cleaning equipment and applying paint to roadways. OSHA has a 
regulation that would protect these workers if only public sector workers in Massa- 
chusetts were under the OSH Act's jurisdiction. Only through the insistence of their 
SEIU local union, and not through the protection of any health and safety laws, 
were the workers successful in convincing management to institute a training and 
screening program. If these workers had been covered by OSHA, they would have 
been protected sooner. 

Other Massachusetts public works employees have not been as lucky. Bridge 
tenders are required to use ladders over water on bridges that exceed thirty feet 
in height without any fall protection. In a Marlboro, Massachusetts, garage, me- 
chanics and laborers at the towns' Department of Public Works were required to cut 
asbestos covered water pipes without the benefit of any protections. While SERJ at- 
tempted to convince management to provide protective equipment, they refused to 
provide any, including respirators. 

PUBLIC EMPLOYEES NEED COMPREHENSIVE OSHA REFORM 

Comprehensive OSHA Reform will bring much-needed improved health and safety 
protection to public employees in state-plan states. Although it is our belief that a 



90 

state plan protecting public employees is better than no coverage for these woricers, 
we also recognize that state plans have inherent weaknesses. Requirements set out 
in these state plans are checkered, and are often less stringent that the Federal 
OSHA. 

In a number of state-plan states, OSHA protections for public sector employees 
are weaker than those for private employees. For example, in California, the State 
as an employer can be citea for OSHA violations, but it cannot be fined. In contrast, 
in the state of Washington, the government as an employer can be cited and fined 
for OSHA violations. 

Our members in Local 660 in Los Angeles have had extensive experience with the 
consequences of this inconsistency. When CALOSHA finds a violation in a private- 
sector hospital of the employer's obligation to prevent employee TB exposure a fine 
can be imposed. 

In contrast, when members of the same local union who work in a public hospital 
request an OSHA inspection for a more serious violation, (i.e., failure to maintain 
negative air pressure in a TB isolation room) CALOSHA may cite the public hos- 
pital for a violation, but cannot attach a fine. As a result, the public hospital may 
be cited repeatedly for the same serious violation with no threat of penalty, while 
a lesser violation is likely to be corrected promptly in a private hospital that can 
be fined for OSHA violations. Our members can cite examples of serious violations 
that go uncorrected because the employer has no incentive to do so. 

More than three million federal employees are also excluded from the OSH Act's 
full coverage. The 1980 Executive Order extended OSHA standards to federal agen- 
cies but for all intents and purposes is virtually unenforceable. While OSHA can in- 
spect federal workplaces, it has no authority to penalize agencies or require the cor- 
rection of hazards in federal workplaces. As a result, documented hazardous condi- 
tions and standards violations go uncorrected for years. 

The failure to permit fines and penalties in public sector enforcement reduces the 
effectiveness of the protections provided to public employees. The comprehensive 
OSHA reform as proposed in S. 575 will institute citations and fines in all public 
sector workplaces. 

INCIDENCE OF TUBERCULOSIS AMONG PUBLIC SECTOR HEALTH CARE WORKERS 

The Comprehensive Occupational and Safety and Health Act will expedite the en- 
actment of needed safety and health standards. The critical problem of worker expo- 
sure to tuberculosis infection clearly illustrates the need for a more streamlined and 
responsive standards-setting process. It also illustrates the necessity of including all 
public employees under OSHA's protection. To exclude them would be to disregard 
worker populations most in need of these protections. The tuberculosis epideniic 
that is spreading in our nation is concentrated in public hospitals, clinics and pris- 
ons where health care workers are exposed to a disproportionate number of TB pa- 
tients. If public employees continue to be exempted from OSHA coverage, we will 
have created a perverse scenario; precisely those health care workers in greatest 
need of protection against exposure to TB infection would not receive it. 

In our own union experience we have seen significant examples of successful part- 
nerships between government and employees in states with OSHA protections for 
public employees. As a result of effective cooperation, our members in the Public 
Employees Federation of New York (PEF) have worked with state officials to de- 
velop a model TB education and training program. 

In 1991, afler a number of prisoners ana a correction officer in the New York 
State prison system died from an outbreak of multi-drug resistant TB, members of 
PEF and officials from the N.Y. State Division of parole, initiated a program to edu- 
cate and screen all 2,000 employees within the prison system. As a result, an effec- 
tive TB testing and education program was implemented and every employee in the 
state department of corrections was screened. Without a state worker safety and 
health protection program in place, this model cooperative program would not exist, 
and rates of TB transmission would not be reduced. 

Public sector health care workers are becoming infected with tuberculosis at an 
alarming rate. Laura Hopkins, a 47-year-old nurse was infected with TB in the 
Summer of 1991, while working at a state run teaching hospital in upstate New 
York. While Ms. Hopkins was undergoing orientation, she had contact with an AIDS 
patient who had a highly contagious form of Tuberculosis. As many as 60 eniployees 
may have been infected with tuberculosis from this single patient. Ms. Hopkins said 
that this TB patient was on the hospital fioor for close to a month as was not placed 
in a TB isolation room, as he should have been. Looking back, Laura Hopkins won- 
ders, "I don't know why he was allowed to be on that fioor and I never will. We 



91 

had negative pressure rooms in the hospital and my guess it that they were full. 
I do know it was a major, major error leaving him there." 

Unfortunately, Ms. Hopkins' tuberculosis was not correctly diagnosed until May, 
1992. She required intensive treatment for the next eight months. In January 1993, 
Ms. Hopkins' TB became active again and she developed cavities in both of her 
lungs. Ultimately, she was forced to undergo the surgical removal of the right upper 
lobe of her lung. Since that time,she has been receiving worker compensation from 
the state hospital, including two-thirds of her salary. Today, Ms. Hopkins reflects 
that "I'm not the only health care worker who has TB, and it's only going to get 
worse if changes are not made." 

The spread of tuberculosis is only one example of an occupational hazard that af- 
fects public sector employees disproportionately. The inequities faced by public em- 
ployees are glaring and irrational. In Texas, which does not have a state plan, work- 
ers at a public school district spray toxic insecticides on the school grounds, but do 
not have access to bathrooms or washing facilities. They work on evenings and 
weekends, and their employer will not unlock a school door for them to use the fa- 
cilities, nor will it provide other portable facilities. The workers are told to drive to 
the nearest fast food restaurant to use the rest rooms to wash the toxic chemicals 
off their clothes and bodies. OSHA regulations for farm workers require employers 
to provide lavatories with toilets and hand washing sinks, but these regulations 
offer no assistance to school district workers in Texas, solely because their employer 
is a local government. 

WORKPLACE VIOLENCE IN THE PUBLIC SECTOR 

Workplace violence also takes a special toll on public employees. Increasingly, our 
members are the victims of violence in state social service agencies, and at state 
mental health facilities. In New York state during 1992, one in four occupational 
injuries among state employees was the result of assault on the job, or being struck 
by an object or individual. 

Last December, in a highly publicized case, two members of SEIU local 1000, 
California State Employees Association, were killed and four others employees were 
injured in Oxnard, CA, when a disgruntled client went on a shooting rampage in 
the local unemployment office. Employee requests for increased security measures 
at that facility had gone unheeded for years, and even as recently as two weeks be- 
fore the incident. 

ERGONOMIC HAZARDS IN THE PUBLIC SECTOR 

Nursing home workers, whether employed by private companies or county facili- 
ties, frequently develop debilitating back injuries. Nursing home workers suffer a 
higher rate of back injuries than any other occupational group. Generally, only the 
workers employed by private companies are protected by OSHA. 

SEIU and its local unions in Pennsylvania have been working with OSHA to de- 
velop health and safety programs in the private nursing homes to reduce the high 
rate of back injuries. In the county nursing homes, however, the workers have no 
such recourse because Pennsylvania is another state without OSHA coverage for 
public employees. 

One worker who has had personal experience with the consequences of this ap- 
proach is Irene Klemick, a member of SEIU Local 1199P. Ms. Klemick worked for 
8 years at a county run nursing home in Pennsylvania. Ms. Klemick tells us about 
the crippling epidemic of back injuries in nursing home workers and cites her own 
situation. Ms. Klemick experiences intense pain every day as a result of her herni- 
ated disc, and suffers pain from hand and neck injuries also sustained while doing 
her work. Ms. Klemick tells us, "not only do I suffer physical pain but also emo- 
tional pain. I am not able to wear my crisp, white uniform and take care of my be- 
loved residents. And my grandchildren have learned that I can't lift, them to hug 
them." 

It is time to stop these tragedies from occurring. Public sector workers are not 
second class citizens. This loophole must be closed and OSHA coverage must be ex- 
tended to all public sector workers. There has been some suggestion that coverage 
of public employee coverage should be phased in over a set period of time. We think 
this is a bad idea — coverage of public employees is long overdue and should not be 
held up any longer. We've already had a phase-in period of over two decades and 
twenty-seven states have yet to cover puolic employees through OSHA-approved 
plans. 



92 

INADEQUATE PROTECTION OF PUBUC EMPLOYEES IS COSTLY 

Exclusion of public employees from the protections of the OSHAct is a fundamen- 
tal inequity that cannot continue. This tragic omission of state and local govern- 
ments workers is dangerous and expensive because each work injury is very costly. 
The National Safety Council estimates that, in 1993, each disabling worker iryury 
cost $27,000. 

Failure to cover public employees is expensive — too expensive, in fact. According 
to data from the National Safety Council, public employee fatalities alone cost more 
than $1.3 billion each year. Disabling work related injuries cost state and local gov- 
ernments an additional $14 billion each year. This includes the cost of compensation 
for lost work time, administrative costs, medical expenses and disability payments. 
If improved safety and health protection for all puolic employees lowered the rate 
of injury and illness by ten percent, then states and localities would save $1.5 billion 
each year. 

Another way of estimating the potential savings to states and localities is bv look- 
ing at the excess injuries and illnesses in the public sector. According to the Na- 
tional Safety Council, government employees suffer an overall injury rate and ill- 
ness rate that is 10-20 percent higher than the private sector rate. Simply by bring- 
ing down the excess rate of injury and illness in the public sector to that in the 
OSHA-covered private sector, we could save two billion dollars each year. 

Each of these estimates identify a potential savings of $1.5 to $2 billion per year. 
Because of the well established severity of under-reporting of occupational injuries, 
this is a highly conservative estimate. Researchers at the University of Michigan es- 
timate that BLS, because of the recording methods that it employs, may under-re- 
port occupational injury by a factor of between four and nine times the actual rate. 
Further, it is important to note that these costs do not include the inestimable costs 
of grief and suffering borne by injured workers and their families. 

Despite the clear financial benefits to the public sector of reducing occupational 
illness and injury, opponents of universal public sector coverage have raised the cry 
of "unfunded mandates." This is a distortion of the concerns that state and local 
governments have raised about the burden of federally-mandated increases in serv- 
ices and programs that don't carry federal funding. But OSHA coverage is a ques- 
tion of the obligations of governments as employers not as providers oi government 
services. By misapplying the unfunded mandate slogan they are attempting to re- 
vive the contention that 'the federal government cannot regulate states and local- 
ities as employers, an argument that has been settled by the Supreme Court. 

SAFETY AND HEALTH PROGRAMS AND COMMITTEES 

We also want to let you know about our support of other key components of S. 
575. We support provisions in the bill which require the use of labor-management 
safety and health committees. 

It nas been the experience of our members that their participation in joint health 
and safety committees helps to develop effective programs to reduce workplace inju- 
ries and illnesses. It is, after all, the workers who are hands on experts in matters 
of their own safety and health. They are in the best position to know the materials 
they work with and they ollen know the simplest ways to correct safety and health 
problems. A team effort of labor and management is needed to achieve the day-to- 
day improvements in job safety that will save lives and prevent injuries. 

STANDARDS 

We support the sections of S. 575 that mandate a timetable for Agency activities 
in the setting of standards. The bill further mandates that OSHA issue final stand- 
ards on key hazards by specified dates and requires public disclosure of communica- 
tions with outside parties, including other government agencies. All interested par- 
ties will have the right to know when and why standards are initiated or when peti- 
tions for standard setting are denied. 

We are pleased to note that this bill contains a mandated timetable that will 
speed up the standard setting process. In its twenty one year history, OSHA has 
promulgated only 22 major health standards and 38 safety standards. Permissible 
exfx)sure limits for toxic air contaminants have been revised only once. It often 
takes years for OSHA to even acknowledge petitions or recommendations for stand- 
ards. Once the agency does decide to act, the standard setting process is a lengthy 
one — usually taking about 5 years. 

SEIU along with other unions representing health care workers, first petitioned 
OSHA for a standard to protect workers against exposure to HIV, hepatitis B and 
other bloodborne infection in 1986. The final standard was not released until five 



93 

years later, in December 1991, and not until Congress passed a law requiring it be 
released. In that interval, over 1,000 health care workers died from occupationally- 
acquired hepatitis B. Scores more contracted HIV virus during the same period. 

Now, as the process gears up to develop a standard to prevent worker exposure 
to tuberculosis, we shudder to think of the number of health care workers who will 
become occupationally-infected with TB if the standard setting process is long and 
drawn out, yet again. We can't afford to wait five years to protect health care work- 
ers in the face of the TB epidemic. 

OTHER CRITICAL PROVISIONS 

We also support the Act in that it strengthens OSHA's ability to impose criminal 
penalties. We oelieve that such a provision is an essential option when the willful 
actions of an employer result in serious bodily injury or death. 

The success of any workplace health and safety program is measured by the pro- 
gram's ability to reduce rates of injury and illness. To do this, injury and illness 
records must be kept. These recoras are particularly valuable in identifying any 
work processes of tasks which result in higher rates of worker illness and injury. 
Armed with this data base, remedial steps can be instituted. We call upon Congress 
to ensure that a reformed OSHAct reinstates the injury and illness recordkeeping 
requirement in every industry. By so doing, employers and workers will have vitd 
information for evaluating and planning workplace illness and injury prevention 
programs. 

In conclusion, experience has shown that the Occupational Safety and Health Act 
is a law that has saved thousands of lives and prevented millions of injuries. How- 
ever, serious omissions in who is covered by the law must now be addressed. Public 
sector workers must be afforded the same protection under the OSH Act as is guar- 
anteed to workers in the private sector. Furthermore, greater worker involvement, 
a more timely and improved standard-setting process, extended injury and illness 
recordkeeping and improved coverage of multi-employer worksites will provide us 
with opportunities to meet the challenges which remain. Thank you. 

Mr. Sweeney. Senator, if I may be excused, I am chairing the 
meet that Mr. McEntee left earher for, and it is with the chair of 
the Senate Finance Committee. 

The Chairman. Certainly. 

Mr. Sweeney. Bill Borweagen, our safety and health director, 
would be happy to answer any questions. 

The Chairman. Good. 

Mr. Sweeney. Thank you. 

The Chairman. Thank you very much. I apologize to you for not 
excusing your earlier. It was good testimony and will be very help- 
ful to us. 

Mr. Sweeney. Thank you. 

The Chairman. Mayor DeVaney, do you think the legislation 
ought to apply to the Congress? 

Mayor DeVaney. I think, Senator, that certainly, if the legisla- 
tion is going to apply to everyone, it should apply to the Congress. 
Our point, though, is that Government is different from the private 
sector, and our response time to emergencies is different; the way 
we have to handle and treat the public is different, just as the Con- 
gress is different as well. And we think that while we want to work 
to ensure the safety of our work force, just as those who work here 
in Congress, that there are ways to do it that perhaps are not as 
tough and as stringent as what is in this bill, taking into account 
the difference in the public sector work versus the private sector. 

The Chairman. But I get from what you say that you would en- 
sure that the Congress would be covered, but you want the munici- 
palities not to be covered under the legislation. 

Mayor DeVaney. No, sir, I am sorry; perhaps I was misunder- 
stood. I think that if there is a Government exemption, then it 



94 

should apply — that is my personal opinion — because we are dif- 
ferent, and that whether it is the local or the State or at the con- 
gressional level. 

The Chairman. Should we be required to be covered by the 
Americans With Disabilities Act? 

Mayor DeVaney. There are certain things that certainly I know 
from my own experience with the ADA — I have been mayor for 10 
years now in Augusta — the ADA is an excellent piece of legislation, 
and it has been extremely costly to the city of Augusta, in the hun- 
dreds of thousands of dollars to comply with it. I think that after 
my experience with that, that is what scares me about this legisla- 
tion and should scare other local governments. 

The Congress did not provide us funds for that, and that is my 
concern, ^\^ether or not the Congress is covered or not is its deci- 
sion. 

The Chairman. Well, I am just interested in whether, on various 
legislation that we pass around here — family and medical leave, 
the Americans With Disabilities Act, or this legislation — whether 
you think we ought to include Government or not. That is a de- 
bated item. There are constitutional issues. So as a matter of pub- 
lic policy, I was just trying to find out what your opinion would be. 

Mayor* DeVaney. Mr. Cnairman, I think each issue turns on its 
own merits, and yes, I think there are some where Congress should 
have included itself in addition to all governments, and there are 
some where Government as a whole should not be included, in a 
way that we can at least draw a distinction that perhaps we cannot 
draw in other legislation. 

The Chairman. Mr. Lennes, you cover the State employees; is 
that correct? 

Mr. Lennes. Yes, Mr. Chairman, we do. 

The Chairman. And I guess you apply it even to your own office, 
is that right? 

Mr. Lennes. Yes, Mr. Chairman. We just inspected ourselves 
and found a few violations. In fact, we inspected the State Capitol 
and found that our bi^ bronze doors open the wrong way, so I sup- 
pose we could red-tag it as necessary. 

The Chairman. So you have been able to do that successfully? 

Mr. Lennes. Yes, Mr. Chairman. It is not without a few rough 
spots from time to time, obviously. But in our State, we look at this 
aspect of OSHA as essentially part of the risk management of over- 
all workers' comp and just tne total picture of the cost of contain- 
ment. In fact, we fund our half of the OSHA expenditure, the half 
that is not paid for by the Federal Government, out of workers' 
compensation premiums rather than the State general fund, so we 
look at it purely as part and parcel of risk prevention. 

The Chairman. Dr. Ruttenberg, would you like to give a com- 
ment on terms of Mr. Holt's financial assessment? If you could 
make a brief comment and then submit a more extensive evalua- 
tion, if you would. 

Ms. Ruttenberg. Over the last 20 years of the OSH Act, this de- 
bate has gone on about the kind of studies that have come from 
industry circles, where people are asked, knowing with full knowl- 
edge that there is a regulation pending over their head that might 
cost them some money, what the cost of that regulation might oe. 



95 

In fact, I think it was you, sir, and Congressman Ford, who had 
the OfTice of Technology Assessment studying this very issue of the 
methodology of having people make these predictions out of inter- 
views. 

That study is showing some very interesting things. We know 
with vinyl chloride, we know with coke ovens, we know with grain 
dust, we know with cotton dust, that enormous dollar figures, in 
the billions and hundreds of millions of dollars, have been cited. 
And I could submit for the record in detail in case after case after 
case, when you do a retrospective study, you find that the costs are 
really quite low. And that is why in this study, as small and lim- 
ited as it is, what we did was look at actual numbers and try to 
look at what happened in other States that had these experiences 
and what might happen in the future from that. 

The Chairman. Thank you. 

Senator Wellstone. 

Senator Wellstone [presiding]. Thank you, Mr. Chairman, and 
I apologizer to the panelists and to you. Commissioner Lennes, for 
having to go in and out. 

I looked at your statement here and the comparison of the OSHA 
reform proposals and the Minnesota OSHA program, which dates 
back to — the inception was about 1973, as I understand, with our 
program. 

Mr. Lennes. Right. 

Senator Wellstone. Could you just give me your sense of the 
Minnesota experience — I do not want you to repeat what you said 
in your testimony — in terms of what really works well and now you 
see that blending in with this reform bill, because one of the rea- 
sons I was really pleased that you were going to come and testify 
here is that I think the more we can draw from the concrete experi- 
ence, the better off we are. 

Mr. Lennes. Senator, I think the facets of our system which, as 
you indicated, from the outset have covered public employees as 
well as private and has also provided for consultation as well as 
compliance, that have been most successful are those where we 
have seen a commitment that is shared between labor and manage- 
ment. And that is not new; there have been many companies that 
have had successful examples of that over the years. It has been 
accelerated by some new requirements that have come into the 
laws in 1990 and 1992, to require safety committees specifically 
and also to talk about other kinds of joint compliance efforts that 
have been mandated, and educational approaches. 

We have seen that particularly where that has been done, where 
both labor and management have sat down and said, "We are just 
going to make this work," we have seen some huge successes, and 
I have a few examples that I have provided to the committee of a 
large construction company, and Friskies Pet Foods, Marigold 
Foods — and actually, there are hundreds. In fact, we are at a point 
now where it is a bureaucrat's nightmare in some respects, because 
we are having to ask private agencies to allow us to come in and 
be part of their safety educational programs; otherwise, they will 
leave us behind. 

The enthusiasm to get the job done among groups like the Em- 
ployers' Association and State Chambers, the Business Partnership 



96 

and others, is very, very strong. That is because they have seen 
that there is a profit to be made, in the hteral and figurative sense. 

Senator Weli^tone. But it initially flowed from the require- 
ment, though, that these committees be set up; correct? 

Mr. Lennes. In large measure, yes. In some areas, some compa- 
nies had just worked that way anyway; it might have been part of 
their collective bargaining agreement. But we have seen it mush- 
room significantly since the requirements were put in place. That 
is correct. 

Senator Wellstone. And did you — and again, I really do apolo- 
gize, and I have your testimony, and I will he a good student and 
read it all — the effect on the workers' comp — and some of the rest 
of you may want to talk about this as well — I have seen some inter- 
esting data from a variety of different States — what about the Min- 
nesota model? 

Mr. Lennes. As you well know, Minnesota is a State that is a 
relatively high workers' comp State, and it is a topic of concern 
from the perspective of the viability of our business, particularly in 
base productivity-type industries. But I have long told employers 
that if you wait for the legislature to drop your costs on their own, 
you are waiting for the second-best solution, because the best solu- 
tion is to do it on your own, jointly, internally. And the evidence 
we have seen anecdotally, and as well on an overall basis, is pretty 
substantial that way. The companies that I have mentioned to you 
have cut their costs approximately in half or more by changing not 
just their approach to safety, but I think the notion of a shared 
commitment to a better workplace, which is a larger issue. 

There was a study done that my friend Joe Dear could give you 
an example of up in Seattle, in the Boeing Company, where they 
were looking to see why different elements of their company had 
such widely differing internal workers' comp costs. And they found 
that pure safety accident frequency was a pretty substantial part 
of that, but by no means the only factor. The biggest factor was 
was there a shared sense of dedication to a safer workplace, and 
almost more than the incidence of the accidents themselves. 

Overall in our Sate, we have seen some progress, too. since 1989, 
I think in that year, about $2.36 per 100 as it is measured in work- 
ers' comp terms was spent for comp coverage, and by 1992, that is 
down to about $1.94. That is a drop of 12 to 13 percent, and that 
is attributable, we believe, in large measure to these kinds of pro- 
grams. We have not seen the change in the absolute benefits that 
would drive that. 

Senator Wellstone. Commissioner, maybe I could just pick up 
on one question for all of you, and it will be my final question. And 
by the way, again, I do apologize. Before I ever came to the Senate, 
I would sometimes come up here to testify or whatever on things 
I was working on, and I could never understand why there were 
only one or two people, and I would go back home and say they had 
no interest and so on. And then people would come in and out, and 
I would tell Sheila and my children how impolite they were. Now 
I find myself doing the same thing; when I want to hear, and it 
is only because there was another engagement that I absolutely 
had to go to. 



97 

The point you just made, Commissioner, and maybe the other 
paneHsts will want to speak to it as well — it seems to me that this 
notion of really getting down to the workplace and having these 
joint committees — we are talking an awful lot about partnership. 
And it strikes me that I think having a healthy and safe workplace 
in and of itself is an important enough public policy goal, given 
what this all means in human terms, out above and beyond that, 
it would seem to me that to the extent that workers feel as though 
they are expendable as opposed to being a part of a partnership 
where you really work together jointly, that has an additional divi- 
dend in terms of higher level of morale, higher levels of productiv- 
ity, all the kinds of things that I think we are really starting to 
focus on in our country as a way in which we can better compete. 

I wonder whether perhaps each of you could elaborate on that 
point. 

Mr. Lennes. I concur. I think we have some notions that need 
updating about the relative roles of labor-management and employ- 
ers and employees. And as we move toward total quality manage- 
ment — which has been called into play here already today, I 
guess — but as we move toward that kind of a notion, some of those 
older ideas are going to have to fade away a little bit. In the exam- 
ple of the construction company that I gave you, where they have 
cut their costs approximately in half, they adopted a policy that 
said if someone comes into any foreman's office on the worksite or 
wherever and says, "We have a safety problem," we have one, as 
simple as that. No questions, no saying, "Oh, you are just trying 
to throw a wrench into it." Rather, we will take people seriously, 
we will treat them as though they are adults who have real con- 
cerns, and we will act on them. 

And people told this company, "You will be jerked around a little 
bit. People will play games with you." That has not happened. And 
that is one of the major success stories I have seen. But I have seen 
that sort of thing replicated time and time again. I think people are 
waiting for a signal, both labor and management, that maybe it is 
time to work together on a shared outcome that is in both of their 
interests. And the reasons they do not, I think, are largely anti- 
quated and artificial. 

Senator Wellstone. Dr. Ruttenberg. 

Ms. Ruttenberg. It is obviously an issue that many of us care 
quite a lot about. In this study, as I interviewed injured workers — 
and I was focusing mostly on the city of Philadelphia to try to get 
a focus — there are just in here four folks cited with pension disabil- 
ity liabilities — we are not talking about the medical costs and the 
workers' comp that got paid and all kinds of other expenses — of 
close to $2 million. And in each of those cases, I had safety inspec- 
tors go in, look at the situation, and not one of them would have 
cost more than $100 to fix. So we had $400 in expenditures versus 
$2 million of just pension disability liability. And in every, single 
case — and these are just four; there are many others — folks had 
complained about those problems before they happened. Folks had 
said this is as problem, and somebody is going to get hurt. It cost 
very little to fix and an awful lot of money besides the human toll 
in suffering and crippling injury. 



Illi 

98 3 9999 05982 593 3 

Senator Wellstone. We are now, over and over again, saying 
that whatever we do by way of health care reform — we keep talk- 
ing about preventive health care, preventive health care, preven- 
tive health care. 

Ms. RUTTENBERG. Yes. This is the first and best place to start 
on preventive care, because most of the accidents are preventable. 

Senator WELLSTONE. Yes? 

Mr. BoRWEAGEN. I am Bill Borweagen, Senator. John Sweeney 
had to leave, and I am the health and safety director with the 
Service Employees. Quite frankly, Senator, taxpayers cannot afford 
to continue to not give OSHA coverage to their public employees. 
It costs more. We re a union that represents half and half public 
and private sector workers, and it is simple justice and equity. 

When I have to answer a phone call, the first question I have to 
ask the member of the union or the union rep is: Is it a public sec- 
tor or private sector worker, and are you in a State plan State, or 
are you not in a State plan State? 

If they are not in State plan State, like Georgia, Pennsylvania, 
a lot of other States — the list goes on — they do not have the right 
to health and safety. It is a privilege that is given to them, I guess, 
as a public servant is the best way to describe it. We can no longer 
tolerate tHis inequity in the work force. 

Senator Wellstone. A final remark? 

Mayor DeVaney. Thank you. Senator. 

Going back to your question and to my testimony, I think that 
not only Augusta, but many of the cities and local governments 
across America, do try to involve our employees. It is very clearly 
stated in our policy, in the manuals. We feel that that is absolutely 
essential that they be involved. But at the same time, we have to 
as cities express concern over the cost, because as I mentioned, we 
must balance our budget by law, and we have to be careful how 
we pass those costs on to our constituents. 

We are also concerned about the criminal penalty provision. Will 
it have a chilling effect on future elected officials, perhaps looking 
at that with a more cautious eye? And I think we simply have to 
look at the cost versus the benefit to local governments. Aren't we 
doing a lot of what we should be doing to care for our employees? 
As I said, they are not nameless faces. We know most of them by 
name, and we respect them. 

Senator Wellstone. I thank you. I guess my conclusion would 
be that it seems to me that, even given some concerns — and we can 
keep speaking to those concerns and meet those concerns — there is 
a bit of a marriage here. On the one hand, there is the question 
of justice denied, and people ought to have a right to a healthy and 
safe workplace. On the other hand, there is another issue, which 
is that, as you said. Dr. Ruttenberg, this is very much a part of 
preventive health care; this should be considered very much a part 
of what we need to do by way of public health. 

And from the fiscally conservative point of view of how we begin 
to get a handle on health care costs in the country, I think this fits 
right in there. 



99 

And then the third part is to the extent to which we can work 
together with committees and decentralize it, I think that just sim- 
ply builds morale and leads to the kind of partnership that I pre- 
sume we all believe in. 

Well, I thank you all. 

Thank you, Mr. Chairman. 

The Chairman. Thank you all very much for your very helpful 
and informative statements. We are grateful to you. 

[The information referred to and additional statements and ma- 
terial submitted for the record is retained in the files of the com- 
mittee, due to the high cost of printing.] 

The Chairman. The committee stands in recess. 

[Whereupon, at 12:15 p.m., the committee was adjourned.] 

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