United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

. (page 1 of 17)
Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 1 of 17)
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\ \j S. Hrg. 103-166

OSHA REFORM: COVERAGE AND ENFORCEMElVr






HEARING

BEFORE THE

SUBCOMMITTEE ON LABOR



OF THE



COMMITTEE ON

LABOR AND HUMAN RESOURCES

UNITED STATES SENATE

ONE HUNDRED THIRD CONGRESS

FIRST SESSION

ON

EXAMINING THE SCOPE OF COVERAGE AND ENFORCEMENT OF THE
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION OF THE DE-
PARTMENT OF LABOR

OCTOBER 19, 1993



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




JUN 2 k 1994



-^^^'^^z:iSiS^mMf»^" ™'""'° ""'^^



77-070 CC WASHINGTON : 1994



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-043999-X



J



S. Hrg. lOS-466

OSHA REFORM: COVERAGE AND ENFORCEMEIVT






HEARING

BEFORE THE

SUBCOMMITTEE ON LABOR

OF THE

COMMITTEE ON

LABOR AND HUMAN RESOURCES

UNITED STATES SENATE

ONE HUNDRED THIRD CONGRESS
FIRST SESSION

ON

EXAMINING THE SCOPE OF COVERAGE AND ENFORCEMENT OF THE
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION OF THE DE-
PARTMENT OF LABOR

OCTOBER 19, 1993



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




ncooQrr/iov
JUN 7 A mh

''^rnJii^X^fiil^i^i^^iri^J^Sll^J^^^ PRINTINQ OFFICE
77-070 CC WASI1INC3TON : 1994



For sale by the U.S. Government Printing Ot'ilcc
Superintendent of Documents. Congressional Sales Office. Washington, DC 20402
ISBN 0-16-043999-X



e



-\>.



COMMITTEE ON LABOR AND HUMAN RESOURCES

EDWARD M. KENNEDY, Massachusetta, C}iairman

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, UUh

JEFF BINGAMAN, New Mexico DAVE DURENBERGER, Minnesota
PAUL D. WELLSTONE, Minnesota
HARRIS WOFFORD, Pennsylvania

Nick LittlKFIELD, Staff Director and Chief Counsel
SU8AN K. Hattan, Minority Staff Director



Subcommittee on Labor

HOWARD M. METZENBAUM, Ohio, Chairman
TOM HARKIN, Iowa ORRIN G. HATCH, Utah

CHRISTOPHER J. DODD, Connecticut NANCY LANDON KASSEBAUM, Kansas

EDWARD M. KENNEDY, Massachusetts JAMES M. JEFFORDS, Vermont

PAUL D. WELLSTONE, MinnesoU STROM THURMOND, South Carolina

MiCHELE L. Varnwagen, Chief Counsel and Staff Director
Patricia Knight, Minority Counsel

(ID



vorvnoncnn



«« »J ^ MUL



CONTENTS



STATEMENTS
Tuesday, Octtober 5, 1993



Page



Eilar, Lisa, Ann Arbor, MI; Robert Gould, attorney for Vidal and Ida
Rodriguez, New York, NY; and Michael J. Delane^, head deputy district
attorney, environmental crimes/OSHA division, district attorney, county

of Los Angeles, CA 2

Prepared statements of:

Ms. Eilar 4

Mr. Rodriguez 1^

Mr. Delancy ....;. 16

Keeney, John C, Acting Assistant Attorney General, Cnmmal Division, U.b.
Department of Justice, Washington, DC, accompamed by Beneva

Weintraub 22

Prepared statement ".•"••"■ •.•;; V" '• ^^

Toledo, Clemente, Jemez, NM, temporary firefiditer, U.S. forest bervice
accompanied by Patrick O'Connor, American Federation of Government
Employees; Donald P. Hale, West Point, NY, shop steward, AFGE Local
No. 2367, U.S. Military Academy; Deanne Clarke, Seattle, WA, accom-
panied by Terry Taylor, Association of Flight Attendants; and Shelly Davis,

Farmworker Justice Fund, Washington, DC 28

Prepared statements of:

Mr. Hale 3J

Mr. Lutz ii

Mr.Hopp 35

Ms. Clarke 3°

Ma. Davis ••■••; ;••-••; •; ^^

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico, prepared

statement (with attachment) -— • ■•. ••••• ^^

O'Connor, W. Patrick, National Representative, American Federation of (jOV-

emmcnt Employees, prepared statement ••••• •• 49

Sturdivant, John N., National President, American Federation of Government

Employees, prepared statement •—••;•"• •; °2

Carey, Ron, general president. International Brotherhood of Teamsters, pre-

Dflrcd stfltc merit

Griswold, Marv, director, airline division. International Brotherhood of Team-
sters, prepared statement 61

U.S. Chamber of Commerce, prepared statement •• ••••• 67

DiBona, Charies J., president, American Petroleum Institute, prepared state-
ment jy

American Waterways Operators, prepared statement 71

American Gas Association, prepared statement 71

Independent Federation of Flight Attendants, prepared statement 73

ADDITIONAL MATERIAL

Articles, publications, letters, etc.:

Statistics of number of criminal referrals of the Department of Justice

in prosecuting OSHA • ;Voii a ra

Various letters addressed to Senator Metzenbaum regarding OSHA 79

an)



OSHA REFORM: COVERAGE AND
ENFORCEMENT



TUESDAY, OCTOBER 5, 1993

U.S. Senate,
Subcommittee on Labor, of the Committee on Labor

AND Human Resources,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:23 p.m., in room
SD-^30, Dirksen Senate Office Building, Senator Howard M.
Metzenbaum (chairman of the subcommittee) presiding.

Present: Senators Metzenbaum and Wellstone.

Opening Statement of Senator Metzenbaum

Senator Metzenbaum. Good afternoon. I am sorry about the
delay, but there is a Democratic Caucus which meets on Tuesday,
and it ran longer than expected.

This afternoon, the Labor Subcommittee resumes hearings on S.
575, the Comprehensive Occupational Safety and Health Reform
Act. We will be focusing today on OSHA coverage and enforcement,
two issues of critical importance to protecting workers.

Our first and second panels this afternoon will focus on criminal .
enforcement under the OSHA Act. OSHA's current criminal pen-
alty provisions are a joke. As this chart shows, over 265,000 work-
ers have died on the job since we enacted the OSHA Act, but only
one employer — only one employer — has served jail time in that pe-
riod. That is incredible. What kind of a deterrent is that?

Under current law, when an employer willfully causes the death
of an employee, the maximum penalty that can be imposed is 6
months; a simple misdemeanor.

By contrast, environmental laws, like the Clean Water Act, pro-
vide for a 15-year maximum for knowing endangerment. The
OSHA reform bill lengthens the maximum allowable sentence
under OSHA's criminal provisions so that they may be a more use-
ful deterrent to violators.

In addition, there is no criminal penalty whatsoever under cur-
rent law for a willful violation that cripples or disables a worker.
Thus, no matter how outrageous an employer's conduct is, no mat-
ter how many workers are injured, no matter how clear the em-
ployer's criminal intent is, an employer cannot be prosecuted if the
victims are "lucky enough" just to be maimed or crippled. This is
absurd.

The OSHA reform bill would permit prosecution of employers
who cause serious bodily injury to one or more workers.

(1)



I recognize that most employers try to take reasonable pre-
cautions to protect their workers, but experience has shown that
there are a few employers who just do not give a damn. When
these few bad apples act with criminal culpability, and workers are
hurt or killed as a result, they should go to jail.

Our third panel this afternoon will focus on two coverage issues.
First, there are 3.2 million Federal employees, many of whom are
exposed to workplace hazards every bit as dangerous as those faced
by private sector workers. But while OSHA can enforce the lav^ in
the private sector and fine businesses that violate the law, OSHA
has no authority to protect Federal workers. That makes no sense.

Instead, Federal agencies are supposed to police themselves. But
as we will hear today, all too often they ignore this responsibility.
This sets a terrible example for American businesses, and I believe
is an embarrassment to our Government. The OSHA reform bill
would give OSHA full authority to protect Federal employees.

We will also hear about private sector coverage problems. Cur-
rently, the OSHA Act does not protect workers in industries like
airlines and agriculture, where another Federal agency regulates
worker safety. But in practice, these other agencies provide spotty
coverage and little enforcement of worker satety and health projec-
tions.

As we will hear today, these problems are often fatal to workers
in these industries. The OSHA reform bill would create a presump-
tion that OSHA protects all workers unless another agency is pro-
viding an equal level of protection.

I thank tne witnesses who have traveled here from across the
country, and I look forward to hearing their testimony.

Our first witness is Lisa Eilar from Ann Arbor, MI. She will be
followed by Vidal and Ida Rodriguez, accompanied by their attor-
ney, Robert Gould; and then Michael J. Delaney, head deputy dis-
trict attorney for environmental crimes, OSHA Division, District
Attorney, County of Los Angeles, CA

I am happy to have all of you with us today.

The committee will follow a 5-minute time limit for the wit-
nesses.

Lisa, we are very happy to have you speak first.

STATEMENTS OF LISA EILAR, ANN ARBOR, MI; ROBERT
GOULD, ATTORNEY FOR VIDAL AND IDA RODRIGUEZ, NEW
YORK, NY; AND MICHAEL J. DELANEY, HEAD DEPUTY DIS-
TRICT ATTORNEY, ENVIRONMENTAL CRIMES/OSHA DIVI-
SION, DISTRICT ATTORNEY, COUNTY OF LOS ANGELES, CA

Ms. Eilar. Thank you, Mr. Chairman.

First of all, I am saddened to see that so few members are
present today. I think it would be very valuable and insightful for
them to hear what all of us here have to say.

I embarked on a crusade 2 years ago to fight for the strengthen-
ing of workplace safety and health laws, and also to fight for the
stricter enforcement of those laws.

What started me on this crusade was that I learned, through
death, that OSHA, although good in intention, is a toothless tiger
and that working class Americans have basically been afforded no
justice under these laws.



On September 20, 1991, my 25-year-old brother was killed on the
job. He had worked at American Bumper and Manufacturing, a
small automobile parts manufacturer, for only 5 days, he had
turned 25 the day before he was killed, and he was killed with a
21-year-old boy who had also only worked for 5 days.

My brother and his coworker were crushed, their entire upper
bodies mangled beyond recognition, in a 1,300-ton stamping press.
I have a picture of this press. It is 3 stories in height. I am sorry
I am shaking; I am a little nervous. This photograph shows the
front view of the press.

For $6 an hour, they were required to put their entire upper bod-
ies in this press. MIOSHA investigated this fatality and found that
there were 11 willful, serious violations on this press; 96 willful, se-
rious violations plantwide; and 216 violations in all.

Charles Collier, who was the senior inspector during this inves-
tigation, was quoted as saying: 'The firm's upper management in-
structs, allows, and condones unsafe work methods and practices to
continue on a daily basis. Management wantonly, willfully exposes
employees to the point of operation. The substantial probability ex-
isted that death or serious physical harm could result from the vio-
lations that were allowed to exist."

This was not a rare occurrence in this plant, I found out later.
Since that time, in that investigation, the company was fined $1
milhon in penalties, and to this day, they have not paid a penny,
and they often brag in the press that they will never be made to
pay a penny.

Since my brother's death, the company has continued to violate
the OSHA Act. There have been four other investigations. The first
was in April of 1992, when three young men were almost crushed
to death in a 2,000-ton stamping press. The same kind of situation .
occurred — ^they were required to put their bodies in the press, and
they were required to hit this "Reset" button, which is illegal to do.
This would override any safety measure on the press. When the
brake lining on the press is worn, it will shut down the press. By
resetting this press, you allow it to operate in an unsafe manner.
They were also fined at that time for other presses which had worn
brake linings.

The company was also investigated in July 1992 for a similar in-
cident and for similar circumstances. They were fined in September
of 1992 for not having abated what they were fined for in April,
including a brake lining that was worn and allowing the press to
continue to trip. They were fined in December of 1992 for similar
circumstances. So, since my brother's death, they have been fined
over $200,000 which they have not paid a penny of.

So a common theme here, and it is quoted again in every one of
the reports since my brother's death, is that management wantonly
and willfully violates known safety standards and safety laws and
continues to jeopardize employees' health and welfare in the name
of profit.

So in this 2 years that I have been fighting for workplace safety
and health laws to be strengthened, what have I learned? This is
not an uncommon situation. In Michigan, my own State, there are
other examples, such as Christopher Palizola, killed in July 1992,



at the age of 20, working as a summer student at Carmesan Prod-
ucts in Wyandot, MI. He was poisoned to death by TCE.

Steve Miller, 24, was killed in February 1992. He was
disemboweled, beheaded, and suffered multiple amputations in a
drill rig incident.

And I have also talked to people from Florida and Texas, where
the circumstances are similar although not identical to mine. I
have learned that working class Americans are afforded no justice
under the law, and I have learned that "America's most wanted"
is not the common criminal, but corporate offenders. These people
are not recognized as being criminals and murderers, although
they should be because that is what they are.

These people, without strong criminal penalties enforced, are
going to continue to violate the law in this manner, and without
their life, liberty, and pursuit of happiness jeopardized, they will
continue to do this. So basically, after 2 years, I am left hopeless.
I have seen nothing change, and I am looking today for answers.

Thank you.

[The prepared statement of Ms. Eilar follows:!

Prepared Statement of Ms. Eilar

On September 20, 1991, two young men were crushed to death when the 1,300-
ton stamping press they were operating cycled three times with them inside it. A
third young man inside the press miraculously escaped death but was seriously in-
jured. The press, used to stamp out automobile bumpers, had for some time been
cycling on its own, but the plant management ordered workers to operate it anyway.

One young man killed that day was my brother, Stephen Eilar. Steve had been
hired by American Bumper and Manufacturing Company, of Zonia, MI, only 5 days
earlier. Neither Steve nor any of the other eight men working on the Weingarten
101 press had been trained in its operation. Tney were, however, instructed to use
the RESET button to repower the press when its mechanical brake engaged and
shut it down. Although there were nine men working on the press, only six sets of
controls (safety pads) were provided.

My brother had woriced on the Weingarten 101 press only three days, but was
the senior operator the day he was killed. Like many other young people in the
Zonia area, Steve was attracted to American Bumper by the $6.30 per hour pay,
considered good by local standards.

September 19, 1991, was Steve's 25th birthday. He came to my parents' home
that evening after his 12-hour shift was over. He told of the Weingarten 101 press
cycling on its own, and of telling his foreman of his fear that it would injure or kill
workers if it wasn't repaired. He said the foreman told him to get back to work and
to unload the press of its car bumpers when it completed its cycles. The company
had an order to fill for Ford Motor Company, Steve said the foreman told him, and
that the press must be run at capacity until the order was filled.

The Ford order was not fiUed by the Weingarten 101. When the brake mechanism
suffered a massive failure and let the jaws oi the monstrous press hater down three
times on the entire upper bodies of my brother and another young man, the com-
pany was forced to use other presses to complete the order. Only greed and expedi-
ency, and a total disregard for worker safety, can explain the company's continued
use of such an obviously defective and dangerous piece of equipment.

Less than one hour afler the fatal press malfunction a MIOSHA safety inspector
was on the scene; she lives in Ionia and responded to a call from an unidentified
American Bumper employee. MIOSHA is both the name of the Michigan safety law
and the state agency that oversees the law. MIOSHA inspector Ruth Poole of Zonia
was later joined by ner colleague Charles Collier, a senior N105HA inspector. Their
repwrt, compiled after an exhaustive, 10-day inspection, showed 216 separate safety
violations by American Bumper, of which 96 were designated as "Williul, Serious,"
the most severe category of offense under MIOSHA.

Collier reported, "The firm's upper management instructs, allows and condones
unsafe work methods and practices to continue on a daily basis. Management wan-
tonly and willfully exposes employees to the point of operation. The substantial
probability existed, that death or serious physical harm could result from the viola-



tions that they allowed to exist." The term "point of operation" is the technical term
for the area where the jaws of the press come together.

American Bumper continued to produce auto components as Poole and Collier per-
formed their all-plant inspection; tne inspectors saw these violations:

—-Safety monitors on tne press where the men were killed — and on five others —
disconnected;

— Two-hand controls — the devises that set a press in motion — lying around loose.
The law requires that the controls be fixed to the floor or placed at a mark far
enou^ from the press so workers won't have time to get to the danger area if the
prose should malhinction. One worker told Poole, "At times I had the controls so
close the press would rub on me,"

—A press with a broken "STOP" button.

—Repair workers thrusting their bodies into the danger area of presses without
turning the power off. One worker told Poole that as he left the plant to attend one
workers ftineral, he passed another worker doing repair work on a press with the
power on; .

— Workers standing unprotected In the jaws of a devise that lowers bumpers mto

plating tanks;

— A chemical storage room emitting vapors so strong neither company managers
nor inspectors would enter it.

Poole and Collier cited American Bumper for 20 violations on the Weingarten 101
press, eleven of which were "Willful, Senous." Collier's supervisor, Mark Smith, has
stated that had any one of the 1 1 trouble areas been corrected earlier, the deaths
would probably not have occurred. The final MIOSHA report is over 1,000 pages.
Fines kvied total more than $1 million. Statements given by American Bumper
workers are damning: They were made to operate multi-ton presses after witnessing
only a single press cycle; they feared openly criticizing company practices lest they
be fired; they were routinely required to manually override safety devises that shut
down presses when components malfunctioned; they were bombarded hy loudspeak-
ers urging ever greater speed and production. "Boogie, boogie, boogie, was a com-
mon refrain over the shop s public address system.

Immediately after the fatal incident American Bumper geared up its public rela-
tions machine and tried to put its own spin on events. It claimed that MIOSHA was
"picking on" it, and that MIOSHA had cited it for practices that previously had been
condoned. And it predicted confidently, based on prior experience, that the fines and
abatement orders would be set aside or reduced on appeal. Unfortunately, it was
largely correct in this latter assertion.

In April of 1992, another American Bumper press, this one designated the #106
Bliss, cycled with three workers in its danger zone. One worker was trapped be-
tween the crawl space between dies, nearly escaping with his life. As the three oper-
ators reached inside of the press with their entire upper bodies, the press cycled on
its own. A worker observing and resetting the brake monitor yelled to the workers
inside as he saw the press dose. In the same month, another American Bum^r em-
ployee sustained injuries while performing maintenance work inside a "live press.

MIOSHA inspectors Ruth Poole and Charles Collier found upon investigation that
the above press had been malfunctioning for some time, and that press operators
had been ordered to override safety controls each time the press shut down. Again,
American Bumper was issued "Willful, Serious" citations, and told to fix defective
press components, including warn brake lining on certain presses known to be cy-
cling on their own.

In September, 1992, MIOSHA again was called in to inspect American Bumper
in response to employee complaints. At this time, investigators found that at least
one press cited for worn brake lining was still in operation, rind stiU not repaired.
As in April, "Willful, Serious" citations were issued. Aft^r the second set of citations
were issued in September, a work order was written to repair the machine(s) in
question. Workers had been continually subjected to dangerous, potentially fatal
working conditions for at least five months while the company pushed them for
speedy production.

In December, 1992, MIOSHA again investigated American Bumper aft«r an em-

Eloyee lost three fingers. At the same time, the Michigan Department of Public
iealth inspected the plating division of the company after numerous dust fires were
reported, llie Department of Public Health found that fires were occurring in area
where explosive chemicals were used and stored.

In all, American Bumper was issued fines in excess of $200,000 for violations that

were issued after the deaths of my brother and his coworker in September, 1991.

A common theme found in MIOSHA reports on American Bumper can be found

in the langutige of the citations: "Employer failed to replace the worn brake lining

and allowed the continuous resetting oi the brake monitor without correcting the



6

condition causing the brake monitor perform its intended purpose." And this: "Em-
ployer wantonly and willfully allows and condones practice of employee's hitting
reset button on brake monitor continually after brake monitor kicks out — Firm in-
spected press — Immediately possible brake failure and problems without insuring
that condition is checked and corrected and allowing press to be continually oper-
ated in production! exposing employees to pxjint of operation." The above conditions
caused a brake clutch failure that resulted in the deaths of my brother and his co-
worker, and the "near miss" in April 1 1992.

A hearing for American Bumper's appeal of the citations, fines and abatement or-
ders for the 1991 violations was scheduled for January, 1993. MIOSHA sent notices
of the hearing to interested parties, including our family, with a map showing where
the bearing would be held in Lansing, Michigan. The day of the scheduled hearing,
this deponent cdled the Michigan Department of Labor to confirm the time and lo-
cation of the hearing. At this time, officials informed this deponent that the hearing
was not open and could not be attended by members of my family. Soon after, Mr.
J. Andre Freidlas of the Michigan Department of I^bor called this deponent and
said that if any member of my family attempted to gain entrance to the hearing,
that they would be physically removed. At this time, the Administrative Law Judge
(ALJ) declared the hearing a "pre-hearing conference." I find it nearly impossible
to believe that any Michigan law or federal law grants such abusive power to an
appointed official.

No official at the Department of Labor informed my family of the activities that
occurred in the above mentioned meeting. We were told by an official of the bargain-
ing agent that the ALJ had granted a motion by American Bumper to hold all ac-
tions in abeyance until such time as all civil or criminal proceedings against the
company had been completed, or until July, 1994, when the ALJ would again review
the motion. The union agent representing American Bumper workers could not ex-
plain why no challenge to the ALJ's fiat was offered, nor could Attorney General


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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 1 of 17)