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 4 of 17)
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care about their employees — and thankfully, there are plenty of
those — but what you all have described is simply appalling and has
nothing to do with the way I think the vast majority of people
think about the United States of America.

This morning, in our health care hearing, Mr. Chairman, people
kept talking about universal health care coverage, and this is an
idea whose time has come, and timing is everything, and it is an
idea whose time has come.

Hasn't the time come for this legislation to be passed and en-
acted into law?

Senator Metzenbaum. The time is long past due, long past.

Senator Wellstone. My God. What else does it take? I mean,
are we going to have people coming, year after year, saying this?
Your voices are so powerful and so important.

Well, thank you.

Senator Metzenbaum. Thank you. Senator Wellstone. Your voice
is a strong one, and your support is much appreciated.



22

I want to thank the members of this panel. You have been ex-
tremely helpful, and I commit to you that I am going to do my
damndest to move this legislation. And the administration, who I
know has people in the audience, ought to know that when they
need my vote, they had better tell me where they are on this OSHA
reform package before they are going to get that vote.

Thank you very much.

Our next witness is John C. Keeney, acting assistant attorney
general. Criminal Division, United States Department of Justice.

Mr. Keeney, I want to welcome you to this hearing. We appre-
ciate your being with us. You have heard me make some state-
ments about the administration, and vou are speaking for the ad-
ministration, but I also know that wnen you come here to speak
for the administration, you are told which road to go down and
which road not to go down. So the comments that I made pre-
viously concerning my views with reference to the administration's
positions on this subject are not applicable to you. We are very
happy to welcome you, sir, and are pleased that you are with us
this afternoon.

Please proceed.

STATEMENT OF JOHN C. KEENEY, ACTING ASSISTANT ATTOR-
NEY GENERAL, CRIMINAL DIVISION, UNITED STATES DE-
PARTMENT OF JUSTICE, WASHINGTON, DC, ACCOMPANIED
BY BENEVA WEINTRAUB

Mr. Keeney. Thank you for your generous and understanding
statement, Senator.

Senator, I have with me, if you don't mind, Beneva Weintraub,
who may be able to answer some of the more technical questions
that I cannot.

Let me say I am happy to be here today to testify on behalf of
the Department of Justice on the criminal provisions of S. 575.

As the agency with responsibility for enforcement of OSHA's
criminal provisions, the Department of Justice has a keen interest
in ensuring that the criminal provisions of the OSHA Act are both
appropriate and effective.

Mr. Chairman, I would ask that my statement be admitted in its
entirety, and I will just hit some of the highlights.

Senator Metzenbaum. Without objection, it will be included, Mr.
Keeney.

Mr. Keeney. I am here today to comment on how the Depart-
ment of Justice, as the agency responsible for criminal litigation,
views the provisions of the bill as fitting into the broad context of
Federal criminal law. The appropriateness of these provisions from
the point of view of OSHA policy, including its impact on civil in-
vestigations, is a matter that remains under review by the Depart-
ment of Labor.

Turning to the provisions, first, the increase in criminal pen-
alties. S, 575 would increase penalties for the current criminal of-
fenses under OSHA, particularly the principal OSHA criminal stat-
ute, which contains the criminal penalties for willful violation of an
OSHA standard which causes death to an employee. The bill would
change the maximum period of imprisonment authorized from 6



23

months for a first offense and 1 year for a repeat offense to 10
years for a first offense and 20 years for a subsequent offense.

The Department of Justice would welcome an increase in the
maximum period of incarceration available for violations of 29
U.S.C. Section 666(e). Because both willful conduct and the death
of a human being are involved, cases referred for prosecution under
this statute are inherently serious.

Turning to the fine language, S. 575 would change the existing
statutory language to provide for a fine in accordance with Section
3571 of Title 18 of the United States Code. Section 3571 is the fine
provision in the Sentencing Reform Act of 1984 which applies to all
Federal offenses. This general fine statute is currently applicable
to OSHA offenses and provides for fines higher than those specified
in the current OSHA statute. For this reason, the bill would make
no substantive change in the applicable fine. It would, however,
more accurately reflect the applicable law and eliminate a potential
source of confusion. In the interest of clarity, the Department of
Justice supports this provision.

Criminal penalties for corporate officials and supervisors — this
has been a problem for us in our prosecutive endeavors. The
present criminal statute refers to any employer who willfully vio-
lates the standard. This bill would add the phrase, "or any officer,
management official or supervisor having direction, management,
control or custody of any place of emplojrment."

There has been considerable dispute in the courts on whether
and under what circumstances culpable individuals may be con-
victed of violating the statute, particularly where the employer is
a corporation. Our view that culpable individuals who may not
themselves be employers within the meaning of the OSHA Act are
nevertheless subject to criminal prosecution under the general aid-
ing and abetting statute has not prevailed, unfortunately, in some
Federal courts.

We would support a provision that makes it clear that individ-
uals who are responsible for the prohibited conduct are included
within the scope of the statute regardless of whether the individ-
uals are themselves technically employers within the meaning of
the statute.

Next, the proposed "serious bodily injury" offense. The bill would
create a new criminal offense for a willftil violation of an OSHA
standard which causes serious bodily injury to an employee, but
does not cause death to any employee. The bill would also extend
potential criminal liability to individual managers and supervisors
who are responsible for willful violations which cause such injury.

The bill, S. 575, contains a definition of "serious bodily injury."
A number of Federal criminal statutes have similar definitions of
bodily injury, and these existing statutory definitions, which I have
set forth in my statement, provide workable standards under which
a jury can be instructed and decide the issue of fact. We are aware
of no successful challenge to standards of this type on grounds of
unconstitutional vagueness. Similar legal standards are well-estab-
lished in the case law and present no significant legal problems in
criminal prosecutions.

Accordingly, from the standpoint of Federal law enforcement, the
Department of Justice would nave no difficulty in enforcing a new



24

criminal offense for willful conduct which causes serious bodily in-
jury, with extending criminal liability to that offense to culpable in-
dividuals, nor with the definition of serious bodily injury in S. 575.

Senator Metzenbaum. You say you would have no difficulty

Mr. Keeney. We have no difficulty from an enforcement stand-
point, Senator. I am not speaking for the administration on wheth-
er or not we would support the legislation. But if you enact the leg-
islation, these particular provisions would create no enforcement
problems for us. We would be able to enforce the statute if you
enact it.

Senator METZEiSfBAUM. When is the Deoartment going to be pre-
pared to take a position on the legislation?

Mr. KEE^fEY. Senator, we are in a difficult position. As you your-
self have pointed out, the primary responsibility for OSHA is in the
Department of Labor, and the Department of Labor's efforts in en-
forcement are largely in the civil area, and we have to defer to
them on the policy issue involved, Senator.

Senator Metzenbaum. I have great respect for the Secretary of
Labor and the Attorney General, but I am very disappointed at this
point that both departments are not here strongly supporting this
legislation. I expect them to be here soon.

Please proceed.

Mr. Keeney. Turning now. Senator, to the preemption issue
which has been discussed here todav, the anti-preemption provision
appears to be addressed to a problem which arose in some State
criminal cases involving deaths and injuries related to workplace
sajfety. We support the intent of this provision, and Mr. Chairman,
we would be happy to work with your staff, have our staff work
with your staff to address some of the problems we see in carrying
out the intent and providing some technical assistance on language
which we think would be helpful in effectuating the intent of your-
self and the committee. If that would be useful, we would be very
happy to do it.

Mr. Chairman, I appreciate vour consideration. It has been a
pleasure to be with you here today, and if you have any questions,
I will try to answer them.

Senator Metzenbaum. Thank you very much, Mr. Keeney. We
appreciate you being with us.

In a 1992 report, the inspector general of the Department of
Labor concluded that, "It should not be necessary for a fatality to
take place before criminal penalties are considered." Do you agree
with that conclusion?

Mr. Keeney. I agree with it generally, yes, sir.

Senator Metzenbaum. In fact, don't our mine safety and environ-
mental laws permit prosecution even in the absence of a fatality?

Mr. Keeney. Yes, sir.

Senator Metzenbaum. Some in the business community have
claimed that if we pass the bill, the Government will be throwing
employers in jaiil even for technical violations that pose no risk to
the workers. In reality, isn't it very difficult to prove a criminal vio-
lation under the OSHA Act?

Mr. Keeney. It creates some difficulty, ves, sir.

Senator Metzenbaum. I was ^oing to elaborate and say the Gov-
ernment has to prove that the violation was willful, that it involved



25

the violation of a specific standard, that the violation caused death,
or if the bill is enacted, serious bodily injury to a worker; the Gov-
ernment has to prove all of those things beyond a reasonable doubt,
so that makes a pretty difficult challenge to the Government, does
it not?

Mr. Keeney. It is a pretty difficult challenge, yes, sir.

Senator Metzenbaum. Only one employer has ever served jail
time for a criminal OSHA violation as indicated by that chart. By
contract, 488 individuals have served jail time for violating envi-
ronmental laws. As a matter of Federal policy, do you think that
makes any sense?

Mr. Keeney. Well, it does not. Senator, and in this regard I
might give you the statistics we have with respect to the number
of criminal referrals we get in the OSHA area. I will read them to
you, or I can give them to you for the record.

Senator Metzenbaum. If you could submit those for the record,
I would appreciate it.

Mr. Keeney. Yes.

[Information of Mr. Keeney follows:]

Statistics of Number of Criminal Referrals of the Department of Justice

IN Prosecuting OSHA

During the past 4 fiscal years OSHA has referred 49 cases to the Department.
By fiscal year the breakdown is as follows:

— Fiscal year 1989: 7 referrals (4 were declined; 3 convictions);

— Fiscal year 1990: 14 referrals (9 were declined; 3 resulted in convictions; 1 re-
sulted in pretrial diversion with restitution and costs to OSHA; 1 resulted in an ac-
quittal);

— Fiscal year 1991: 16 referrals (7 were declined; 4 resulted in convictions; and
5 are still pending);

— Fiscal year 1992: 7 referrals (1 case declined; 6 are still pending); and

— Fiscal year 1993: 5 referrals (pending).

Senator Metzenbaum. Should we protect Americans from toxic
hazards only when they are out on the street, and not when they
walk through the door of their workplaces? Don't you think we
have some obligation to the workers of this country to protect them
in the workplace?

Mr. Keeney. Senator, as a general proposition, I agree with you.

Senator Metzenbaum. My last question. I understand there is a
special unit in the Justice Department for the prosecution of envi-
ronmental crimes. How big is it? Is there a comparable office for
OSHA crimes, and if not, why not?

Mr. Keeney. Well, one thing is the referrals. The referrals are
not very numerous. Senator. It might be useful just to mention that
so far in fiscal 1993, we have had five criminal referrals under
OSHA. I am not in the environmental division, so I do not know
how many, but I know enough about their operation to know that
they are many times this.

Last year, fiscal 1992, we had seven referrals. In fiscal 1991, we
had 16. We do not get that many referrals, so based upon the refer-
rals we get, we think we have an adequate prosecutive setup.

Senator Metzenbaum. Thank you very much, Mr. Keeney.

Mr. Keeney. Thank you. Senator.

[The prepared statement of Mr. Keeney follows:]



26

Prepared Statement of John C. Keeney

I am happy to be here today to testiiy on behalf of the Department of Justice on
the criminal provisions of S. 575, the Comprehensive Occupational Safety and
Health Reform Act. As the agency with responsibility for enforcement of OSHA's
criminal provisions, the Department of Justice has a keen interest in ensuring that
criminal provisions of the OSHA Act are both appropriate and efTective.

I am here today to comment on how the Department of Justice, as the agency re-
sponsible for criminal litigation, views the provisions of the bill as fitting into the
broad context of Federal criminal law. The appropriateness of these provisions from
the point of view of OSHA policy, including its impact on civil investigations, is a
matter that remains under review by the Department of Labor.

Specifically, I would like to direct my remarks today to the following provisions
of the bill:

(1) Increases in the maximum period of imprisonment for existing OSHA offenses
and changes in the language deflning the applicable fines;

(2) Provisions relating to the potential criminal liability of corporate officials and
supervisors who willfully violate OSHA safety standards;

(3) The proposed new criminal offense for willful violations of OSHA standards
which cause "serious bodily iryury" to an employee;

(4) The anti-preemption provision precluding Federal preemption of state criminal
prosecutions for offenses involving aeath and serious injuries to employees in the
workplace.

increase in criminal penalties

S. 575 would increase the penalties for the current criminal offenses under OSHA,
particularly the principal OSHA criminal statute, 29 U.S.C. Sec. 666(e) . Section
666(e) contains the criminal penalties for a willful violation of an OSHA standard
which causes death to any employee. The bill would change the maximum period
of imprisonment authorized from six months for a first offense and one year for a
repeat offense to 10 years for a first offense, and 20 years for a subsequent offense.

The Department of Justice would welcome an increase in the maximum period of
incarceration available for violations of 29 U.S.C. Sec. 666(e). Because botn willful
conduct and the death of a human being are involved, cases referred for prosecution
under this statute are inherently serious. Misdemeanor penalties simply do not ade-
quately reflect the gravity of these offenses. In addition, an increase in the maxi-
mum period of imprisonment to a felony level could have the positive effect of in-
creasing the allocation of prosecutorial resources to OSHA prosecutions. For these
reasons, the Department of Justice supports an increase in the maximum period of
imprisonment authorized for a violation of 29 U.S.C. Sec. 666(e).

changes in fine language

S. 575 would also change the existing statutory language to provide for a "fine
in accordance with section 3571 of title 18, United States Code." Section 3571 of title
18 is the fine provision in the Sentencing Reform Act of 1984, which aoplies to all
Federal ofTenses. This general Federal fine statute is currently applicable to OSHA
offenses, and provides for fines higher than those specified in the current OSHA
statute.

For this reason, the bUl would make no substantive change in the applicable fine.
It would, however, more accurately reflect the applicable law and eliminate a poten-
tial source of confusion. In the interest of clarity, the Department of Justice sup-
ports this provision.

criminal penalties for corporate officl\ls and supervisors

The present criminal statute at 29 U.S.C. Sec. 666(e) refers to "any employer" who
willftilly violates a standard. This bill would add the phrase "or any oflicer, manage-
ment official, or supervisor having direction, management, control, or custody of any
place of employment."

There has been considerable dispute in the courts on whether and under what cir-
cumstances culpable individuals may be convicted of violating 29 U.S.C. Sec 666(e),
particularly where the "employer" is a corporation. Our view that culpable individ-
uals who may not themselves be "employers" within the meaning of the OSHA Act
are nevertheless subject to criminal prosecution under the general aiding and abet-
ting statute (18 U.S.C. Sec. 2), has not prevailed in some Federal courts.

We would support a provision which makes it clear that individuals who are re-
sponsible for the prohibited conduct are included within the scope of the statute, re-



27

gardless of whether the individuals are themselves technically "employers" within
the meaning of the statute. Otherwise, when the employer is a corporation, the very
individuals whose willftil conduct caused the corporate employers violation would
themselves be shielded from eiccountability for their actions under the criminal laws,
while an employer who is a sole proprietor would be fully subject to prosecution for
precisely the same conduct. Moreover, the sole proprietor would be subject to pos-
sible imprisonment, while a corporate violator would not. For reasons of fairness
and accountability, we support placing responsibility under the criminal law on
those persons in authority, corporate or individual, whose willful violation of OSHA
standards causes the harm. We would like to confer with the subcommittee staff
and the Department of Labor about whether the bill's language best achieves this
goal.

PROPOSED "SERIOUS BODILY INJURY" OFFENSE

The bill would create a new criminal offense for a willful violation of an OSHA
standard which causes "serious bodily injury to any employee but does not cause
death to any employee." The bill also would extend potential criminal liability to in-
dividual managers and supervisors who are responsible for willftil violations which
cause such injury. S. 575 would define "serious Dodily injury" as "bodily injury that
involves— (A) a substantial risk of death; (B) protracted unconsciousness; (C) pro-
tracted and obvious physical disfigurement; or (D) protracted loss or impairment of
the function of a bodily member, organ, or mental faculty."

A number of Federal criminal statutes contain a definition of serious bodily in-
jury. Among these are 18 U.S.C. Sec. 247 (obstruction of free exercise of religious
beliefs), 18 U.S.C. Sec. 1365 (tampering with consumer products), 21 U.S.C. Sec. 802
(definition for purpose of the drug abuse statutes), 18 U.S.C. Sec. 1864 (hazardous
on injurious devices on Federal land), 18 U.S.C. Sec. 831 (prohibited transactions
inv9lving nuclear materials), and 18 U.S.C. Sec. 2245 (definition for purposes of
statutes governing sexual abuse offenses in areas of Federal territorial jurisdiction).
These definitions are not all identical, but are reasonably similar to each other and
to the definition proposed in this bill. For example, 18 U.S.C. Sec. 2245, is typical
and provides as follows:

(4) the term "serious bodily iiyury" means bodily injury that involves a substantial
risk of death, unconsciousness, extreme physical pain, protracted and obvious dis-
figurement, or protracted loss or impairment of the ftinction of a bodily member,
organ, or mental faculty; 18 U.S.C. Sec. 2245(4).

These existing statutory definitions provide workable standards under which a
jury can be instructed and decide the issue of fact. We are aware of no successful
challenge to standards of this type on grounds of unconstitutional vagueness. Simi-
lar legal standards are well established in the case law, see, e.g., United States v.
Johnson, 637 F.ed 1224, 1246 (9th Cir. 1980), and present no significant legal prob-
lems in criminal prosecutions.

Accordingly, from the standpoint of Federal law enforcement, the Department of
Justice would have no difficulty in enforcing a new criminal offense for willful con-
duct which causes serious bodily injury, with extending criminal liability for that
offense to culpable individuals, nor with the definition of "serious bodily Lniury, with
extending criminal liability for that offense to culpable individuals, nor with the def-
inition 01 "serious bodily mjury" in S. 575. However, we must defer to the Depart-
ment of Labor with respect to how this provision would affect its safety and health
progreuns.

PREEMPTION ISSUE

S. 575 contains a provision which states that: Nothing in the Act shall preclude
State and local law enforcement agencies from conducting criminal prosecutions in
accordance with the laws of such State or locality.

This anti-preemption provision appears to be addressed to a problem which arose
in some State criminal cases involving deaths and injuries related to workplace safe-
ty. We support the intent of this provision. We would be happy to provide some
technical assistance on the language if that would be useful to the subcommittee.

It has been a pleasure to be with you here today. At this time, I will take any
questions.

Senator Metzenbaum. Our last panel consists of Clemente To-
ledo of Jemez, NM, a temporary firefighter in the United States
Forest Service, accompanied by Patrick O'Connor, American Fed-
eration of Grovernment Employees; Donald Hale, of West Point, NY,



28

a shop steward of the AFGE Local Number 2367, United States
MiHtary Academy; Deanne Clarke, of Seattle, WA, accompanied by
Terry Tavlor, Association of Flight Attendants; and Shelly Davis,
Farmworker Justice Fund, of Washington, DC.

I think you all know the committee has a 5-minute rule. Mr. To-
ledo, we would be happy to hear from you now.

STATEMENTS OF CLEMENTE TOLEDO, JEMEZ, NM, TEM-
PORARY FIREFIGHTER, UNITED STATES FOREST SERVICE,
ACCOMPANIED BY PATRICK O'CONNOR, AMERICAN FEDERA-
TION OF GOVERNMENT EMPLOYEES; DONALD P. HALE,
WEST POINT, NY, SHOP STEWARD, AFGE LOCAL NUMBER
2367, UNITED STATES MILITARY ACADEMY; DEANNE
CLARKE, SEATTLE, WA, ACCOMPANIED BY TERRY TAYLOR,
ASSOCIATION OF FLIGHT ATTENDANTS; AND SHELLY DAVIS,
FARMWORKER JUSTICE FUND, WASHINGTON, DC

Mr. Toledo. Good morning, Mr. Chairman and subcommittee
members. I am Clemente Toledo. I am a Native American from the
Jemez Pueblo in New Mexico. I am represented today by Mr. Pat-
rick O'Connor, a national representative with the iiWerican Fed-
eration of Government Employees.

I would like to thank the Labor Subcommittee for inviting me to
testify today about the need to improve health and safety in the
Federal Government, particularly in the U.S. Forest Service, where
I was recently employed as a temporary firefighter.

On April 22, 23, and 24, 1993, I was working with my brother,
Frankie Toledo, and others on a controlled burn on Pajarito Peak,
NM. During the burn, my brother lost his life, leaving behind his
wife, two dfaughters, a baby grand-daughter, eight brothers and
four sisters.

My brother was a very good brother. He spent a lot of time on
the farm, 13 to 14 years on the farm. He used to get up at 4:30
every morning to work his garden of corn, chiles and watermelon.
My Drother was a very good person. He used to give food to the
older folks in the Pueblo because he cared so much for others. Even
now, we go to Frankie's field; we cry that he is not there. He is
gone, and his death did not have to happen.

Frankie worked every summer as a firefighter for 13 to 14 years.
He was the kind of firefighter who took care of his crew, and he
was considered a friend by all. He was always asking his crew,
"Are you okay, are your lungs holding up?" — a question that


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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 4 of 17)