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 12 of 17)
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mon neurotoxins depress the central nervous system causing symptoms such as loss
of coordination, slurred speech, dizziness, nausea, headaches, impaired motor skills,
etc. Drinking alcohol can have these very same elTects.

Exposure to solvents and other workplace chemicals can cause impairment of job
performance, iiyury, illness, and even death. Yet, the FAA has chosen to regulate
only one exposure, the exposure to ethyl alcohol. FAA proposes to prohibit aircr^
mechanics from ingesting ethyl within the 4 hours prior to, and during their sluft.
But FAA has no limits on exposure to the many solvents and other chemicals that
may be involuntarily inhaled during the performance of routine aircraft mainte-
nance. In response to Congressional pressure, the FAA has moved with lightnmg
speed to protect the worker from himself, but aft«r twenty-three years, there is no
indication that they have even contemplated protecting the worker from hazardous
workplace exposures.



67

CONGRESS MUST ACT TO PROTECT ALL WORKERS

Even if the FAA had the desire to protect employee safety emd health, they have
neither the authority nor the expertise to accx>mplish this important task. Aviation
workers, like other Americans, nave the right to a safe and nealthy job. Congress
can help make this right a reality by adoptmg the proposed changes to Section 4(b)
(l)oftheOSHAct.

Prepared Statement of the U.S. Chamber of Commerce

The VS. Chamber of Commerce Federation of 215,000 businesses, 3,000 local and
State chambers of commerce, 1,200 trade and professional organizations, and 68
American Chambers of Commerce abroad is pleased to submit this statement re-
garding the criminal provisions of the Comprehensive Occupational Safety and
Health Reform Act (COSHRA). The Subconmiittee on Labor Standards focused on
three general areas of OSHA reform — criminal penalties, coverage of federal work-
ers, and the jurisdiction of the Occupational Safety and Health Administration
(OSHA). This statement will focus principally on the (Chamber's concerns with the
criminal ssuactions provisions in S. 575 and also addresses other approaches to
achieving the same goals.

The UTS. Chamber of Commerce supported the passage of the Occupationtd Safety
and Health Act ("OSH Act" or the "Act ') in 1970, and continues to support its laud-
able objectives. Workplace iiyuries impose tremendous costs on business including
lost productivity and increased workers compensation costs. Like any statute that
has been in existence for almost 25 years, there are undoubtedly improvements that
can be made to the Act, including its criminal provisions. However, amendments to
the Act must take into account the signiflcant progress of business toward ensuring
safe and healthful working conditions and obviously should not create impediments
to continued progress.

The C^hamber urges the subconmiittee to reject proposals to amend the Act by
substantially increasing its criminal sanctions, creating new individual criminal h-
ability for managers and supervisors, or imposing a whole new class of criminal con-
duct. Although tne Chamber supports coverage of all state and federal employees,
we have not yet developed a position with regard to the jurisdiction of OSHA.

I. CURRENT LAW

The OSH Act, 29 U.S.C. Section 651, et seq., provides at Section 666 that an em-
ployer whose willful violation of the Act or any order, rule, regulation, or standard
under the Act, causes death to an employee may be punished with a fine not to ex-
ceed $10,000, imprisonment up to six months, or both. Subse<^uent convictions under
this section are punishable by a fine up to $20,000 and/or imprisonment of up to
one year.

The C!hamber believes the sanctions contained in this section provide an ample
deterrent to intentional violations of the Act and its regulations. However, it is true
that this provision has not been invoked with the frequency or vigor originally envi-
sioned by the drafters of the Act. This is a problem that can be cured administra-
tively, without the necessity of amending the criminal provisions of the Act. There
are 'T)ad actors" in every large group who unfortunately need the threat of criminal
sanctions to force them into compliance. We believe the tools to make this threat
a real one currently are at the disposal of the Justice Depeirtment and the Depart-
ment of Labor.

The criminal fines for OSH Act violations already have been substantially in-
creased under the federal sentencing guidelines. Section 3571, Title 18 or the U.S.
Code. Enforcement of these provisions will provide an ample deterrent to those
tempted to violate existing OSHA regulations.

Thus, meaningful reform should not focus on increasing the criminal sanctions.
Rather, the Departments of Labor and Justice must focus on enforcing the OSH Act.

II. COSHRA

Seetion 512, "OSHA Criminal Penalties," of COSHRA would dramatically change
the federal criminal provisions of the Act. The bill would, among other things:

— Increase the maximum term of imprisonment from six months to ten years for
a first offense, and from one year to twenty years for a second offense.

— Provide for the first time a penalty of imprisonment for willful violations that
cause "serious bodily iiyuiy." The penalty for such a violation is five years for a first
offense and ten years for the second.

— Define "serious bodily injury" as one that presents: (1) a substantial risk of
death; (2) protracted unconsciousness; (3) protracted and obvious physical disfigure-



68

ment; or (4) protracted loss or impairment of a bodily member, organ, or mental fac-
ulty.

— Provide that the fines authorized by 18 U.S.C. Sec. 3571 my be imposed. This
means individual fines of up to $250,000 for felonies and misdemeanors resulting
in death, and up to $100,000 for misdemeanors; and for organizations, fines of up
to $500,000 for felonies resulting in death, and up to $200,000 for misdemeanors.

— Provide that penalties or fines imposed pursuant to these provisions on a direc-
tor, officer, or agent of the company cannot be paid out of the assets of the company
on behalf of the individual.

Section 512: Creates new class of crimes. We submit that Section 512 is a tremen-
dous overreaction to the need for more stringent criminal enforcement of the Act.
The Chamber is especially alarmed about the COSHRA proposal that would create
a whole new class of crimes — those that result in a "serious bodily injury". The defi-
nition of the term is vague ad conceivably could apply to a whole range of relatively
minor injuries such as those resulting in small scars on extremities and strained
muscles causing only discomfort. Without doubt, the definition will be challenged as
being void for vagueness or for being overbroad. Further, the definition will encour-
age use of the criminal provisions as a weapon to harass and manipulate employers
and individual managers.

Criminal vs. a civil process. The OSH Act should remain primarily a civil statute.
Rapid and voluntary abatement of hazards is far more likely to occur in the civil
context than in the criminal one. The threat of serious criminal prosecutions will
require a tremendous increase in government resources for prosecution. As the fear
of criminal prosecutions increases, employers will demand the protections guaran-
teed by the Constitution. They wiU demand search warrants before inspections can
take place, requiring OSHA to demonstrate probable cause before obtaining such
warrants. Employers also will demand presence of counsel, and, in appropriate
cases, Miranda warnings. None of these criminal procedural protections will ad-
vance the cause of occupational safety and health. Rather, they will impede that
cause.

The greatly expanded potential criminal liability of corporate officials will cause
most companies to ensure that legal counsel is present during any inspection by
OSHA personnel. Thee presence oi counsel would be essential if the inspection in-
volved an alleged "serious bodily injury" or fatality. Without doubt, the potential of
COSHRA's personal criminal liability faced by corporate safety and health officials,
as well as ml other members or representatives oi management, will discourage in-
dividuals from accepting jobs with workplace safety and health responsibilities.

Does not address enforcement issues. The COSHRA Section 512 proposal would
not solve or even address what has been the primary problem with the current OSH
Act criminal provisions: that few criminal prosecutions have been brought under the
federal statute. A more effective course would be to provide the resources for the
federal government to use existing statutory provisions to bring more criminal ac-
tions in appropriate cases. Many states with OSHA plans, such as California, have
effective criminal enforcement programs that could easUy be duplicated on the fed-
eral level.

Does not preernpt state and local criminal statutes. The Chamber also opposes
vigorously COSHRA Section 512(c), which provides that state and local criminal

Srosecutions are not preempted. There is a significant problem in states without
•SHA plans that prosecute employers under their general criminal laws. We realize
that some cases have presented horrendous fact patterns begging for criminal pros-
ecution. However, other cases, such as that involving Chicago Magnet Wire Corpora-
tion, demonstrate the difficulty caused by these prosecutions. People v. Chic£igo
Magnet Wire Corp., 126 111. 2d 356(1989), rev'g 157 El. App. 3d 797(1987), cert, de-
nied, sub nom., Aste v. Illinois, 493 U.S. 809(1989).

In (Jhicago Magnet Wire, the state of Illinois, which had not adopted a state plan
pursuant to OSH Act Section 18, prosecuted the company and five of its corporate
officials for multiple counts of aggravated battery and reckless conduct. Despite re-
peated references in the indictment to exposing workers to federally regulated sub-
stances, the indictment did not allege that the defendants violated any OSHA stand-
ard.

In fact, at no time before the trial did the state take issue with the defendants'
claim that the working conditions were in compliance with OSHA standards.

The defendants' claims that the indictment was preempted by OSHA were upheld
by both the trial court and the appellate court. It was, however, reversed by the Illi-
nois Supreme Court, and the U.S. Supreme Court denied review. As a result, the
defendants were forced to go to trial — a trial that ultimately became the longest
criminal trial in Dlinois history (approximately 13 months). The cost to the company



69

and taxpayers in legal fees was in the millions of dollars. The result? The jury ac-
quitted all defendants.

The primary difficulty with these prosecutions is that there are no standards by
which the companies are judged. When a company is charged with a violation of the
OSH Act or a state plan adopted pursuant to the Act, the company is judged by
the standards that the enforcing agency has issued (or by the standard of the gen-
ersd duty clause). It makes no sense to create the entire standards structure, aban-
don it in the case of states that have refused to adopt state plans, and then engage
in ad hoc prosecutions of employers under the state's general criminal laws. Accora-
ingly, the Chamber strongly supports the preemption of state and local criminal
prosecutions of employers for safety and health violations, unless they are brought
pursuant to a duly adopted state plan.

in. OTHER OSHA REFORM PROPOSALS

OSH Act reform is not a new idea. Several reform measures were introduced in
the 102nd Congress. They included detailed proposals such as the Comprehensive
Occupational Safety ad Health Reform Act (S. 1622 and H.R. 3160), alternatives
such as the Goodling-Henry substitute for H.R. 3160, and various bills focused on
occupational safety and health in the construction industry. In the 103rd Congress,
COSHRA proposals again are under consideration in both chambers amd an alter-
native, H.R. 2937, has been introduced by several members of the House Committee
on Education and Labor. The Chamber also has developed a comprehensive proposal
for OSH Act reform.

A. Occupational Safety ad Health Reform Act (H.R. 2937)

The criminal penalty section of the Occupational Safety and Health Reform Act
would amend existing law by providing criminal sanctions upon the conviction of a
employer who knowingly violated the Act, standard or rue under the Act when the
violation resulted in the death of an employee. In addition, an employer would have
had to have known that the violation would place an employee in imminent danger
of death and the enrployer's conduct showed an "extreme mdifference or reckless dis-
regard of human lile." This proposal increases the maximum prison terms to three
years for a first conviction and six years for subsequent convictions. The proposed
fine amounts for a first offense are unchanged from current law. This codifies the
criminal fines resulting from implementation of the Sentencing Reform Act of 1984.
It does not include provisions expressly increasing personal liability of company rep-
resentatives or agents, as is provided in COSHRA. This proposal warrants careful
consideration by OSH Act reformers because it increases reasonably potential prison
terms, thus making a violation a more serious crime.

B. Chamber Proposal

With the guidance and assistance of members of its Labor Relations Committee,
as well as several noted OSHA experts, the U.S. Chamber has developed an outline
of a draft OSHA reform proposal. The Chamber approach includes employer incen-
tives to establish and maintain workplaces that consistently provide safe and
healthful working conditions, simplification of the civil penalty structure, graduated
civil penalties based on employer size, employee accountability, and express provi-
sions on workplace substance abuse.

The criminal penalty provisions of the Chamber's proposal define the term "will-
ful," increase maximum prison sentences for violations that cause death or extended
continuous hospitalization, and permit conviction of an employee for a wUlful viola-
tion causing death or serious injury to another employee.

The criminal penalty provisions of the Chamber's proposal, as well as those of
H.R. 2937, are far more reasonable than those contained in COSHRA. Gone is the
crippling personal criminal liability created by COSHRA. Similarly, neither alter-
native creates a whole new ill-defined group of crimes. So overbroad is the definition
of conduct which could be found to cause "serious bodily injury" that the criminal
penalty section of COSHRA would be subject to attack on Constitutional grounds.

There is no serious argument that exceptionally egregious employer conduct, in
wanton disregard of specific OSHA standards, should be deterred with credible
criminal sanctions, if necessary. The credibility of sanctions depends, in large part,
on the government's willingness and ability to prosecute where appropriate.

Wholesale criminalization of employer violations of the OSH Act or its regulations
will do little to motivate employer improvements in workplace safety and health. In-
stead, such changes to the Act wUl actually divert business attention and resources
from its laudable objectives.

If criminal liability readily accompanies routine business ad personnel decisions
(as called for in COSHRA), supervisors and managers are likely to avoid even seem-
ingly inconsequential actions to accomplish the objectives of their organizations.



77-070 0-94-4



70

Productivity, economic growth, and efficiency will plummet, at the eventual cost of
competitiveness and jobs.

IV. CONCLUSION

Any discussion of OSH Act reform or of criminal penalties for noncompliance with
OSHA standards or the statute must include reco«iition of two startling facts that
impact directly on workplace health and safety. Recent government studies show
that the leading cause of workplace fatalities (and serious injuries) is vehicle acci-
dents. The same studies confirm that the second leading cause of workplace fatali-
ties is homicide (for women, homicide is the leading cause of workplace deaths). To-
gether, traffic accidents and murders account for over 33 percent of workplace fatali-
ties. Similarly, injuries not resulting in death from these two causes account for a
laree percentage of workplace dangers.

"fiiese major employee safety and health problems should not — indeed cannot —
adequately be addressed through OSHA reform. Collateral government action in the
areas of crime control and transportation safety would be more appropriate and ef-
fective. As long as workers and employers have to deal with these startling work-
place dangers, simply adding employer mandates, increasing criminal penalties, and
making other substantial amendments to the OSH Act will not effectuate the stated
purpose of the law — safe and healthful working conditions for every American.

Prepared Statement of Charles J. DiBona, President, American Pctroleum

Inotitute

Dear Mr. Chairman, the American Petroleum Institute (API) is pleased to submit
the following statement with respect to OSHA reform and criminal penalties, a topic
discussed at your October 5 subcommittee hearing on S. 575.

API is a national trade association representing approximately 300 companies en-
gaged in all aspects of the petroleum industry. Our members own and/or operate
fliousands of workplaces subject to OSHA regulation, thus we are interested in any
and all aspects of OSHA reform.

API and its member companies are seriously concerned with the recent discus-
sions and legislative proposals on OSHA reform. API believes that legislative reform
may be action that is too drastic, and that any fixing or streamlining of OSHA can
be accomplished administratively. Further, the legislative proposal broadening
criminal penalties in the OSH Act is particularly troubling. Under existing law an
error in safety can result in fines and lawsuits. Therefore, we believe this expansion
of criminal penalties will add nothing toward ensuring a "safe workplace environ-
ment"— something API supports, and would only detract from productivity, and har-
bor mistrust and friction between employees and the employers.

S. 575, as you are aware, would not only increase fmes (from $10,000 to
$250,000-$500,000) and lengthen jail terms, but would also broaden responsibility
to "every officer, management official, or supervisor having direction, management,
control, or custody of any place of employment. The bill would also add a new crimi-
nal penalty classification for instances of "serious bodily injury" to an employee.
Such a classification would only create a contentious and perhaps litigious atmos-
phere at the worksite because of its vague meaning. The foregoing proposed amend-
ments to the OSH Act would not improve safety, and are Questionable even as reve-
nue raisers for the government. Further, Congress enacted a seven-fold increase for
OSHA civil penalties in 1990. , , , > j

API's recent mission statement includes enhancing the environmental, health, and
safety performance of the petroleum industry as part of our public policy develop-
ment, advocacy, research and technical services enhancing the petroleum industry.
APfs member companies are committed to maintaining a safe working environment,
and are convinced that a safe place to work is best lor both the company and the
employee. Rather than increase penalties and create new penalties that will require
every person in the workplace to have his or her own lawyer, OSHA should be en-
couraging cooperative efforts between OSHA and industry. We believe OSHA should
be rewarding those who promote safety and who can demonstrate a safe workplace
record. To use a hackneyed but appropriate phrase, OSHA should lead with a carrot
and not with a stick.

API advocates safety, as demonstrated by Improving Owner and Contractor Per-
formance (RP 2220), a recommended practice developed by API and the Chemical
Manufacturers Association (CMA), and endorsed by the Associated Builders aiid
Contractors, Inc. This document, which is performance oriented and consistent with
OSHA's rule on Process Safety Management, is an example of industry acting re-
sponsibly to promote and enhance safe work practices.



71

Again, while API does advocate safe work practices and a safe workplace, we do
not believe that a legislative initiative increasing and creating criminal penalties
would yield such an effect. In fact, we believe that such action would be counter-
productive and siphon off those resources needed for maintaining a safe work place.

Prepared Statement of the American Waterways Operators

Mr. Chairman and members of the Subcommittee on Labor of the Senate Labor
and Human Resources Committee, this statement is submitted on behalf of the
members of the American Waterways Operators (AWO) and the American Water-
ways Shipyard Conference (AWSC). AWO and AWSC strongly oppose S. 575, the
Comprehensive Occupational Safety and Health Reform Act of 1993.

AWO is the national trade association representing the inland and coastal tug and
barge industry. AWO represents over two nundred fifty carrier and related service
companies. AWSC, a conference of AWO, represents second-tier shipyards. Second-
tier shipyards are located across the country and employ over 35,000 workers.

There are two issues of particular imoortance to AWO and AWSC members. First,
Title in of S. 575 extends coverage or the Occupational Safety and Health Act to
all private employers, except those covered by the Federal Mine Safety and Health
Act, regardless of whether those employees are already covered by safety and health
regulations issued by other federal agencies. OSHA would be authorized to evaluate
the level of protection afforded to workers by other agencies and could "cede jurisdic-
tion" only if the agency's regulations and enforcement are "at least as efiective" as
OSHA protection. AWO and AWSC oppose this provision because OSHA clearly does
not have the knowledge of the maritime industry necessary to effectively assess
work place hazards. OSHA personnel do not have working knowledge of vessel de-
sign, construction or operations, or the effects of factors such as weather conditions
on worker safety. The U.S. Coast Guard currently inspects vessels operated by our
members and has in place a set of work place safety rules that protect worker safe-
ty. The result of OSHA preemption of agency safety rules would cause confusion,
overlap and inconsistency in regulation, but most of all would constitute a com-
pletely uninformed intrusion into an area properly established in the law for over-
sight and regulation by the U.S. Coast Guard.

While AWO and AWSC speak for the tug and barge industiy and second-tier ship-
yards, we urge the Committee to closely examine how the potential preemption of
federal agency safety regulations by OSHA would impact other industries.

Second, Title V establishes a new federal offense for "willful" violations of OSHA
regulations that result in "serious bodily injur/'; existing law provides for criminal
penalties only where violations cause death. By injecting a broadly defined— subjec-
tive— criterion for establishing criminal culpability (e.g. "serious bodily harm, ") this
proposal will clearly spawn costly and time consuming litigation as to whether the
facts in each and every case indeed establishes a willful violation which caused bod-
ily injury which involves a "substantial risk of death, protracted unconsciousness,
protracted and obvious physical disfigurement, or protracted loss of impairment of
the function of a bodily part, organ, or mental faculty." Thus, cases which previously
had been expeditiously resolved as civil matters (with resulting timely hazard abate-
ment) woulcl instead be thrown into the backlog abyss of our federal criminal courts
system.

We strongly support requirements for employers to maintain a safe workplace, for
moral reasons and for business reasons. That does not translate, however, to sup-
porting proposals which place OSHA in the preeminent role of safety regulator over
an industry in knows nothing about, and which improperly elevates OSHA civil vio-
lations to criminal status without any showing that such a sweeping change in the
law would result in increased compliance.

We request that you carefully consider the adverse affects these provisions will
have on the business community, and eliminate them from the legislation.

Thank you for this opportunity to express our views on this important legislative


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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 12 of 17)