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

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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 10 of 17)
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agency, i.e., to protect the safety and health of American workers. OSHA' s job is
to solely improve occupational safety and health conditions. The Occupational Safety
and Health Administration's mandate is to set policy and provide enforcement of the
OSHAct.

The Secretary of Transportation, acting through the Office of Motor Carrier, exer-
cises statutory authority over the operation of motor vehicles engaged in interstate
or foreign commerce. The National Traffic and Motor Vehicle Safety Act and the
Highway Safety Act of 1966 both provide for a coordinated national highway safety
program. Coverage also cites the establishment of safety standards for motor vehi-
cles in interstate commerce to reduce accidents involving motor vehicles and to re-
duce deaths and injuries occurring in such accidents.

The three DOT agencies that regulate different aspects of trucking through set-
ting standards and enforcement, do directly that — set and enforce standards for
trucks and highways, not for the workers who operate trucks, and handle and trans-
port materials over the nation's highways. While it is often argued that regulations
and enforcement in the DOT are protective of worker safety in their mission of
transportation, nowhere do these agencies or their regulations specifically mention
the occupational safety or health of transfwrtation workers. These agencies are:

The Federal Highway Administration (FHWA) has the responsibihties of: Deter-
mining how truck access affects the highway system, managing research on the ade-



57

quacy of highway design to accommodate trucks, estabHshing and enforcing operat-
ing regulations for commercial motor carriers (including driver and maintenance re-
quirements), and studying the implications of longer combination and heavier vehi-
cles used on the nation's highway system.

The National Highway Traffic Safety Administration (NHTSA) has the respon-
sibilities of establishing regulations for the manufacture of new vehicles and related
equipment, and investigating safety-related equipment defects.

The Research and Special Programs Administration (RSPA) has both the rule-
making and enforcement functions pertaining to the transportation of hazardous
materials.

Unlike OSHA, none of these rulemaking and enforcement agencies in the DOT
have a mandate that represents that of the OSHA Instruction on Field Operations
for enforcement of worker safety and health. Consider the following excerpt from the
OSHA Field Operations ManuaJ (CPL 2.45B), General Responsibilities and Adminis-
tration Procedures for Compliance Safety and Health Ofhcers (Section 1(E) (2) (c):

"Concern for Safety and Health. During the walkaround the CSHO shall encour-
age dialogue and questions related to safety and health issues and shall offer sug-
gestions and explanations as to how problems might be abated. The major goal of
OSHA's inspections is to foster a mutual interest on the part of labor and manage-
ment in eliminating or reducing woricplace hazards. This involves building coopera-
tion on the foundation of existing good safety and health practices, which practices
shall be commended and promoted whenever possible.

There is no mandate at the DOT that provides this type of enforcement coverage,
as this type of enforcement is not the intent of any DOT laws or regulations.

OSHA 4(B) (1) Language and Agency Jurisdiction

The jurisdiction debate stems from Section 4(b) (1) of the OSHAct, which states:

"Notning in this Act shall apply to working conditions of employees with respect
to which other Federal agencies, exercise statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health. (Emphasis added)

Motor carriers claim that transportation employees are exempt from OSHA juris-
diction because the motor carrier industry is regulated by the above mentioned
agencies at the DOT, and that FHWA enforces regulations expressly designed to
protect employee safety and health in the trucking industry. In April, 1992, testi-
mony before the House Education and Labor Committee, the American Trucking As-
sociations (ATA) reviews it's role as, "an advocate for safety on the highways — the
major "workplace" of the trucking industry." The ATA goes on to say they recognize
that, improving employee health and safety is good business — in terms of fewer
work days lost due to iiyury and lower workers' compensation costs." These analo-
gies of worker's safety and health protection through the regulation of vehicles and
highways (the industry's workplace), and in the interest of productivity, are a per-
fect illustration of the problem drivers face in relying on FHWA for occupational
safety and health protection. OSHA legislation specifically does not make that dead-
ly Ullage.

The ATA, in it's testimony, cited regulations enforced by the FHWA that are, "de-
signed to promote the safe operation of interstate trucks on the highways, which in
turn protect the drivers of those vehicles." The following regulations were cited as
so-called employee safety and health standards:

—Employee Safety and Health Standards (49 CFR 399.201)

—Noise Emission Levels (49 CFR 325)

— Driver Training, Testing and Licensing Requirements (49 CFR 383)

—Equipment Necessary for Safe (Dperation (49 CFR 393)

—Hours of Service of Drivers (49 CFR 395)

—The Transportation of Hazardous Materials (49 CFR Parts 100-177)

In reforming the OSHAct 4(b) (1) clause, the ATA believes that the cited regula-
tions, "would Decome unenforceable by FHWA, since FHWA would no longer nave
jurisdiction over workplace health and safety issues in the trucking industry". First,
we will review how these regulations are not worker based, and then, how they
would not be pre-empted by OSHA.

In looking for language in the regulations referred to by the ATA, we find nothing
that comes close to representing the intent of the OSHAct — namely, to protect the
safety and health of American workers, and improve workplace conditions. Em-
ployee Safety and Health Standards (49 CFR Part 399.201) describes the purpose
and scope of that part: "This subpart prescribes step, handhold, and deck require-
ments on commercial motor vehicles. These requirements are intended to enhance
the safety of motor carrier employees." This means that the scope of the employee



58

safety and health standards for FHWA boil down to safety on three components of
a truck!

Let's move on to occupational noise exposure in the transportation industry. Nu-
merous scientific studies have shown that truck drivers are potentially exposed to
high noise levels. This is compounded by the fact that drivers frequently operate the
vemcles up to ten hours per day. Overexposure to noise is a well documented cause
of hearing loss. The Occupational Safety and Health Administration promulgated 29
CFR 1910.95, the occupational noise standard, to protect workers from overexposure
to noise.

The OSHA noise standard requires employers to conduct periodic monitoring to
ensure that worker exposure levels do not exceed 90 decibels over an eight hour
workshift. Furthermore, the OSHA noise standard contains specific requirements re-
garding audiometric testing of noise-exposed workers, worker training, record-
keeping, access to information and training materials, and time-weighted noise ex-
posure levels.

In contrast, the DOT established the Noise Emission Levels Regulations (49 CFR
Part 325), which "prescribes procedures for inspection, surveillance, and measure-
ment of motor vehicles and motor vehicle equipment — to determine whether motor
vehicles conform to the Interstate Motor Carrier Noise Emission Standards of the
Environmental Protection Agency (EPA), 40 CFR Part 202." It is very clear that the
EPA regulation was promulgated to reduce noise levels on interstate highways. Nei-
ther the EPA regulation, nor the DOT regulation, make mention of protecting work-
ers from overexposure to noise. In fact, the respective regulations do not even re-
quire that noise measurements be conducted in tne vehicle cabs.

Although it is very evident that the DOT noise emission regulation does not pro-
tect workers, in any way, from the hazards of occupational noise exposure, this reg-
ulation pre-empts tne more protective OSHA standard.

Driver Traimng, Testing and Licensing Requirements (49 CFR Part 383), and the
Safe Loading, Dnving and Fueling of Motor Vehicles (49 CFR Part 392), both illus-
trate specific worker requirements in order to safety handle, load and transport
cargo and vehicles. While these requirements are crucial for transportation safety,
their purpose and scope apply only to the reduction of truck and bus accidents, and
the management, maintenance and driving of motor vehicles.

Nowhere in the Equipment Safety Regulation (49 CFR Part 393) is there a direct
application to worker safety and health. And while Driver's Hours of Service (49
CFn Part 395) is protective of a worker's maximum hours, this hours requirement
was established to protect public safety versus worker exposure to noise, carbon
monoxide and other chemical and physical hazards. OSHA, on the other hand, sets
standard time weighted averages based on worker exposure.

With regards to the Transportation of Hazardous Materials Regulations (49 CFR
100-177), there is precedent for what Section 302 of S. 575 would do. In the Hazard-
ous Materials Transportation Safety Act (HMTUSA) of 1990, Section 7, Congress in-
serted language that stipulated that the hazardous materials transportation worker
training rules it was requiring the DOT to write (currently 49 CFR Part 172.704),
would not preempt OSHA's standard which requires safety and health training for
transportation workers who respond to hazardous materials spjlls- All that Section
302 really does, is the same thing on a general scale that HMTUSA Section 7 does
on one narrow issue: Prevent the DOT from preempting OSHA. In neither case does
OSHA preempt the DOT.

A last example of this regulatory maze is that of a potentially significant health
hazard faced by truck drivers every day: Occupational exposure to carbon monoxide.
Carbon monoxide is ubiquitous in our environment, especially in areas such as high-
ways and truck yards. Consequently, truck drivers may be exposed to a wide range
of carbon monoxide levels on any given day.

Exposure to high levels of carbon monoxide can cause varying degrees of adverse
healtn effects ranging from severe headache to death. However, exposure to low lev-
els of carbon monoxide has been shown to affect memory, concentration, muscle co-
ordination, and vision. All of which are very important and necessary to safely oper-
ate a motor vehicle.

The FHWA regulation (49 CFR 392.66) regarding carbon monoxide requires that
a vehicle not be operated or dispatched if:

— ^An occupant of the vehicle nas been affected by carbon monoxide;

— Carbon monoxide has been detected in the interior of the vehicle; or,

— A mechanical condition of the vehicle is discovered which would be likely to
produce a carbonmonoxide hazard to occupants.

However, the regulation fails to address the following important issues:

— The selection criteria for equipment necessary to conduct air monitoring equip-
ment;



59

— The minimum training requirements for individuals who conduct air samoling;

— The level at which caroon monoxide levels significantly exceed background con-
centrations, thus triggering the regulation: and

— Recordkeeping reouirements lor sampling results.

In addition, the FHWA regulation does not afford workers a practical way to file
complaints regarding their working conditions; no access to sampling results.

"nie argument, in essence, is that if the law is changed so that OSHA no longer
preempted by other Federal agencies (such as the FHWA), then somehow those
agencies will automatically be preempted by OSHA. This reflects a verv basic mis-
understanding of Section 302 of S. 575 — and possibly of Section 4(b) (1) of the
OSHAct.

Section 302 of S. 575 provides for pre-emption of OSHA enforcenient by other fed-
ereil agencies — but only where those other agencies have regulations and enforce-
ment procedures which give workers protection at least as effective as that afforded
by OSHA.

Section 302 does not in any way preempt the FHWA's authority over truck safety.
This is simply wrong. Under the OSHA Reform Bill, and specifically. Section 302,
OSHA gains authority. But FHWA does not lose authority. There is nothing in the
OSHA Reform Bill which would in any way diminish FHWA's ability to enforce any
of its regulations, and therefore harm public safety. Don't be fooled by trucking com-
pany and association leaders who cry foul when they haven't even been hit. This
IS a win-win situation for everyone.

DOL POLICY OVER OSHA 4(B) (1) OFFERS SUBSTANDARD SAFETY AND
HEALTH REGULATIONS FOR TRANSPORTATION WORKERS

A United States Department of Labor (DOL) memorandum dated July, 10, 1993,
succinctly lays out DOL policy on Section 4(b) (1) of the OSHAct as it relates to the
Motor Carrier Safety Act jurisdiction over truck drivers safety and health. We be-
lieve this policy points to the very problem of adequate coverage for transportation
workers.

As the policy statement explains, most OSHA cases involving Section 4(b) (1) of
the OSHAct require "facing olF with a statute whose primary purpose is to protect
public and transportation equipment, but which also protects employees in the sense
that in the effort to protect the public, the employees are also protected. A "gap the-
ory" or 'hazard by hazard" approach is then utilized, that is:

"whether the other agency has an enforceable regulations which, if that agency
chooses to enforce that regulation, would reduce or eliminate the workplace hazard
in question. If the other agency has no such regulation apolicable to the hazard,
then there exists a "gap" in worker protection which is filled by the residual juris-
diction of the OSHAct with its very broad coverage intended oy Congress as the
means for assuring every woriting man and woman in the Nation safe and healthful
working conditions."

While this approach would seem straight forward in review of the scope and tar-
get of DOT regulations, specific case law relates a different story.

The lead ()SHA case on this issue is Mushroom Transportation Co., Docket No.
1588, 1973-74, CCH OSHD 16,881 (r.C. 1973). Mushroom involved the hazard of
possible movement of trucks while they were being loaded or unloaded with the use
of powered industrial trucks. The interpretation was that both OSHA and DOT
(Motor Carrier Standards) had regulations dealing with brakes as well as other
methods of unloading operations, so the OSHA standard was held inappUcable pur-
suant to the provisions of section 4(b) (1).

From a truck driver's point of view, the Federal Motor Carrier (FMC) regulation
(49 CFR 392.20) is not as orotective as the OSHA standard (29 CFR 1910.30(k) (1')):

FMC (49 CFR 392.20) "No motor vehicle shall be left unattended until the park-
ing brake has been securely set and all reasonable precautions have been taken to
prevent the movement of such vehicle."

OSHA (29 CFR 1910.30(k) (1)) "The brakes of highway trucks shall be set and
wheel chocks placed under the rear wheels to prevent the trucks from rolling while
they are boaroed with powered industrial trucks." (emphasis added)

Ajiy truck driver will tell you that wheel chocks are a critical aspect of sadety
when loading a trailer with cargo, yet this is not an available protection to Amer-
ican truck dnvers because the (occupational Safety and Health Review Commission
(OSHRC) deemed that the FMC regulations covers essentially the same working
conditions.

The Mushroom case stands for the proposition that the other agency's regulation
need not be as stringent as the OSHA standard to effectuate pre-emption of the
OSHA standard. In it s decision on this case, the OSHRC stated:

"Once another Federal agency exercises its authority over specific working condi-
tions, OSHA cannot enforce its own regulation covering the same conditions. Section



60

4 (b) (1) does not require that another agency exercise its authority in the same
manner or in an equally stringent manner.

The DOL policy memorandum on OSHA 4 (b) (1) concludes that there are three
main principles in 4(b) (1) situations:

1. 6SHA cannot enforce it authority with respect to working conditions over
which another Federal agency has exercised its authority even if the other agency's
standards are not as stringent or as stringently enforced as OSHA's.

2. If a Federal agency fails to exercise its authority with respect to working condi-
tions, OSHA has jurismction to inspect and to cite for violations of standards.

3. A negative exercise of authority can oust OSHA from jurisdiction. (Negative ex-
ercise of authority means that in a rulemaking, the agency proposing the rule re-
quires certain safe woric practices in some circumstances ana the rule is either si-
lent as to other circumstances or it expressly provides that the rule's requirements
shall not apply to the other circumstances.)

We would conclude that through this policy on OSHA 4(b) (1), that our members
will continue to be offered no coverage or substandard safety and health regulations,
such as the common policy in the freidit industry to not chock wheels under parked
tractor trailers, unless Section 302 of S. 575 is included in the OSHA Reform Act.

OSHA ENFORCEMENT OF STANDARDS IN TRANSPORTATION MUST BE-
COME A REALITY FOR WORKERS

It is common knowledge in transportation that OSHA has "nothing to do with the
industry". As we reviewed, this is supported by DOL policy on OSHA 4(b) (1). But
we also know from our members that OSHA simply does not show their face at a
trucking facility, unless there has been a catastrophe. But just because the OSHA
4(b) (1) policy has become a "hands off" policy, it does not mean truck drivers and
others anected by this policy do not need the protection. Where workers have been
successful in calling OSHA m, there has been a myriad of problems discovered, and
citations issued.

An important example of this is the OSHA Corporatewide Settlement with United
Parcel Service (UPS). Teamster members employed by UPS called in OSHA to in-
spect their facilities with regards to hazardous materials spills. On the subsequent
complaint inspections, OSHA cited 10 locations for non-compliance with OSHA haz-
ardous materials spill violations under the 29 CFR 1910.120 standard. These viola-
tions included: Lack of Emergency Awareness and Operations Level training for
hazardous materials spills, inadequate or no e<juipment for spill response, inad-
equate or no personal protective equipment available for worker protection, inad-
equate recordkeeping oi incidents and no emergency response plan oy the company.

The OSHA 1910.120 standard has been on the books since 1986, vet the transpor-
tation industry has felt virtually unaffected. One may be lead to believe that haz-
ardous materials incidents do not occur on docks and over-the-road in tractor trail-
ers. Our members tell us otherwise, with countless stories of flushing hazardous ma-
terials down sewers after cleaning irp punctured drums on docks, or burning their
hands while rewrapping packages ofhazardous materials whose contents they can
not get information on, or loadmg a trailer and becoming overcome by vapors from
a previous load — with no ability to refuse the work until the trailer is properly de-
contaminated by a trained, protected employee.

We believe that the UPS/OSHA Corporatewide Settlement

is putting pressure on the transportation industry to pay attention to this OSHA
stanaard. Unfortunately, it was at the cost of many injured workers and Teamster
members.

What does OSHA enforcement have to offer truck drivers, whose workplace is
more often out on the road? Currently, their only recourse is Section 405 of the Sur-
face Transportation Act of 1982, which, while enforced by OSHA, is very difficult
to uphold in court, as the record has shown. The driver must prove there is a "bona
fide danger of an accident, injury, or serious impairment of health, resulting from
the unsafe condition", and, must reasonably apprehend there wUl be serious injury
to himself or the public due to the unsafe conclition of such equipment. In most of
the court cases involving Section 405, the driver had inadequate proof that serious
harm would be rendered. The severity of this requirement is best illustrated by the
Pennsylvania driver out on the road who did not want to enter the back of his trail-
er because a chemical spill from a leaking container was producing strong vapors.
Because the leaking shipment was not properly labeled, he could never prove if he
would be harmed if he entered the truck or drove the shipment down the highway,
ash he was ordered by his terminal manager.

The rule of thumb for transportation woricers, in particular,truck drivers, is that
in order to get protection from the law, you have to police it yourself and be very
diligent in getting your entitled rights enforced. But mostly, you end up taking a
risk, because you do not want to risk losing your job. If you are in a union, you



61

may be able to police the enforcement of regulations better, because you have sup-
port through resources and representation.

THE OSHA ACT PROTECT WORKERS

In our opinion, there is no denial that OSEIA standards are more protective of
worker's safety and health than regulations issued under the DOT. Under OSHA,
for example, an employer must provide a workplace free from recognized hsizards.
The DOT regulations have no such language.

Under OSHA, workers have many specific rights. For example, they have the
right to:

— A safe and healthful workplace

— Point out hazardous conditions and suggest methods of correction

— Request information from their employer on safety and health hazards, on pre-
cautions to be taken, and on procedures to be followed in the event of an accident
or exposure to toxic substance

—Observe testing of hazards and examine and copy the results

—Obtain and copy Material Safety Data Sheets (MSDS) or anv other written in-
formation which reveals the identity of hazardous substances in the workplace

— Have medical records turned over to a physician of choice

— Review the Log and Summary of Occupational Injuries

— Review copies of standards, rules, etc. that the employer should have available
at the workplace

— Obtain nazard information from OSHA and NIOSH

— File a complaint if a hazard exists at their workplace

— Have their name kept confidential if they do file a complaint

— Be advised of OSHA actions regarding their complaint

— Participate in, or have a representative participate in, an OSHA inspection

— Be provided with a copy of all OSHA citations

— Be notified if their employer contests a citation, a penalty or an abatement pe-
riod

— Object to the abatement period set by OSHA in any citation

— Elect party status to employer contested cases

—Receive a hearing from OSHA regarding an employer's request for a variance
from a standard ...

—File an OSHA complaint if they believe that they've been discnminated agamst
for exercising their rights under OSHA

— Receive copies of exposure records and monitoring results

Equivalent nghts are not provided by DOT regulations. The DOT does not require
motor carriers to provide safe and healthy workplaces. It does not provide a mecha-
nism for complaining about occupational hazards, nor guarantee workers confiden-
tiality in the event Uiey do complain. The DOT does not require that employers in-
form workers about known workplace hazards, nor do they require that workers be
given access to all records of environmental monitoring conducted to assess those

fl A 7 fl T* n H

OSHA has specific standards and enforcement procedures for many workplace
hazards. It appears that the DOTs only interest in employee safety and health lies
in asserting its claim to jurisdiction. In the twenty three years since OSHA was en-
acted, the DOT has done little to protect woriter safety and health. After twenty-
three years it is time for a change.

CONGRESS MUST ACT TO PROTECT ALL WORKERS

Even if the DOT had the desire to protect employee safety and health, they have
neither the authority nor the expertise to accomplish this important task. Transpor-
tation workers, like other Americans, have the right to a sale and healthy job. Con-
gress can help make this ri^t a reality by adopting the proposed changes to Section


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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 10 of 17)