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 9 of 17)
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and st£mdards concerning the health and safety of firefighters that have been devel-
oped to ensure that workers will remain safe under most circumstances if these reg-
ulations and standards are strictly followed. OSHA would not allow shortcuts by an
employer to save a few hundred dollars. On the other hand, evidence shows that
the U.S. Forest Service has on numerous occasions, taken these shortcuts and en-
dangered the lives of workers for a few hundred dollars.

2. I understand that Mr. Toledo and his brother were temporary firefighters. Does
the U.S. Forest Service treat its temporary employees differently from its full-time
employees?

Answer: Our investigation into the practices of the U.S. Forest Service as well as
testimony by Charles A. Casey, the retired Regional Safety and Health Manager for
the U.S. Forest Service, indicates that indeed, the U.S. Forest Service does treat its
temporary workers differently than full-time workers when it comes to providing
safety equipment. The equipment provided to temporary woriiers is totally inad-
equate in protecting the workers. Proper boots are not provided, the workers have
to furnish their own. Brush iackets are not provided by the agency. Protective fire
tents that are provided are old, torn and in most cases do not work at all. Training
is not provided to temporary workers concerning any of OSHA' saifety regulations.

Most of the temporary workers with the U.S. Forest Service are Native Ameri-
cans. We have seen a definite pattern of racial prejudice concerning these workers.
When I first inquired into the death of Mr. Toledo, I was told by Nlr. Ron Benecas,
Personnel Officer for the U.S. Forest Service, "I don't understand what the big aeal
is, it was only an Indian". This is the prevalent attitude among managers of the
U.S. Forest Service.

3. Injuries and occupational illnesses in the federal workplace cost $1.5 billion dol-
lars in 1991. Would giving OSHA authority to protect federal workers reduce these
injuries and illnesses, and save the government money?

Answer: Yes it would. Injuries and illnesses now happen because the agencies will
not implement safety and nealth procedures within the federal workplace. If OSHA
had the authority to protect workers by demanding compliance with safety stand-
ards by federal agencies, then a definite reduction in the number of injuries and ill-
nesses would take place, therefore saving the government money. My experience has



52

shown that correction of safety hazards in most instances would not cost any money,
it is a simple case of complying with the already existing standards. In the remain-
ing cases where money would need to be expended to correct safety hazards, the
sum would not come close to the $1.5 billion tnat injuries and illnesses cost the gov-
ernment in 1991.

4. Would the threat of OSHA fines make the UjS. Forest Service and other federal
agencies more attentive to the safety and health of their employees?

Answer: Yes, fines are an accepted deterrent in our society. Documents that we
have submitted from the U.S. Forest Service as well as testimony provided by
OSHA indicate that the U.S. Forest Service holds OSHA in contempt and represent-
atives of the Forest Service have stated that they will not comply with OSHA's cita-
tions and that they know OSHA cannot enforce the citations and cannot do anything
to them as individuals. If these same managers were under that threat of fines and/
or imprisonment for their actions, I have no doubt that they would tsike OSHA seri-
ous and work towards correcting the problems that OSHA identified. Mv experience
indicates that this would be the case government wide, if OSHA had the authority
that your committee is considering giving to them.

Prepared Statement of John N. Sturdivant

Mr. Chairman and members of the subcommittees, my name is John N.
Sturdivant. I am the national president of the American Federation of Government
Employees, 0-CIO. On behalf of the over 700,000 federal employees AFGE rep-
resents, I am pleased to express our union's strong support for S. 575, the "Com-
prehensive Occupational Safety and Health Reform Act. I would like to commend
Chairman Metzenbaum for his leadership in sponsoring this important legislation.

Over the years, the President and Congress have codified executive order and leg-
islation designed to protect the safety and health of the nation's federal workers.
The first effort dates back to 1913 when the U.S. Compensation Commission was
organized. Safety engineers from private industry were hired to establish safety pro-
grams in the Navy yards and arsenals.

In each of the following decades, new regulations were enacted and federal safety
councils were formed to deal with the high injury rates ejcperienced among federal
departments. But it was not until the passage of the Occupational Safety and
Health Act (OSHA) of 1970 that each federal agency head was required to establish
an effective, comprehensive safety and health program and adhere to OSHA stand-
ards. Unfortunately, it was left to executive orders and OSHA's Office of Federal
Agency Programs (OFAP) to implement a program that relied on voluntary compli-
ance. As a result, compliance by federal agencies is quite varied, and the combined
effect is dismal.

OSHA reports that for 1991 there were over 170,000 work-related injuries and ill-
nesses in the Federal Government, at a cost of over $1.5 billion. Without an enforce-
ment mechanism, voluntary compliance is all we have, and it does not work.

Another matter of great concern to us is that the Federal Government is reducing
the resources available to establish a safe workplace while the workplace hazards
continue to increase. For example, the Office of Federal Agency Programs (OFAP)
has only eight full time professionals compared to 25 people during the Ford admin-
istration. In the last few years, budget constraints have limited OFAPs evaluations
of federal agency programs to only two per year versus the eight to ten conducted
in earlier years. No evaluations took place in 1991, and only two in 1992. The num-
ber of federal agency safety and health inspections has also decreased from 1,733
in 1988 to 1,043 in 1992— a decline of 40 percent. It is even more difficult to get
federal agencies to comply with OSHA's intent, when OSHA, with oversight respon-
sibility, does not have the resources to monitor them.

The General Accounting Office (GAO) issued a report in August 1992 concerning
OSHA's monitoring of federal agencies' safety and health programs. The grade on
this report card would be a "D" at best. There has been some eflort to follow through
on required inspections, but OSHA has fallen far short of meeting its required goals,
due largely to a lack of resources.

Currently, OSHA is required to conduct annual safety and health program evalua-
tions at 15 agencies which employ about two million federal workers. However,
OSHA has conducted only 16 out of 150 evaluations of the targeted 15 agencies
mandated by law since 1982.

Not only are the major agencies not being inspected, but smaller agencies are al-
most never evaluated, even those with high injury and illness records. The GAO re-
port states that OSHA has only performed inspections at 2 out of 95 of the smaller
agencies in the last 10 years. GAO concluded that when OSHA does inspect a fed-



53

eral workplace it does not use that information to strengthen the agency's safety
and health prograoL The report states:

1. OSHA is not using information in agencies' reports to assess programs;

2. OSHA inspectors generally do not monitor for compliance with program re-
quirements;

3. OSHA does not know whether federal agencies abate hazardous conditions;

4. OSHA makes limited use of inspection results.

GAO concludes, "OSHA knows little about federal agencies' safety and health pro-
grams and their effectiveness in protecting workers rrom occupational injuries and
ulnesses."

For these reasons, we consider safety and health programs in the Federal Govern-
ment to be in a state of crisis. The crisis stems not just from the lack of resources,
but also from a lack of leadership and commitment. Most agencies do not bother
to evaluate their managers performance in the safety and health area.

Unlike the private sector, federal workers who me safety and health complaints
are not protected from reprisals. In the private sector, OSHA conducts an independ-
ent, objective review of the allegations. In the federal sector, however, the agencies
investigate themselves. Not surprisingly, the agencies in their self-investigations
found tnat only two reprisal cases out of 200 had any merit, a mere one percent.

At present, there is no enforcement mechanism to obtain compliance with safety
and health standards. OSHA has no authority to compel federal agencies to abate
hazards. Agencies are free to ignore OSHA citations with impunity and they do —
sometimes Tor years. To reiterate, it is obvious that voluntary compliance has not
worked. The private sector has many problems, but at least there is an enforcement
mechanism. Systematic fines and their publication have gotten the attention of pri-
vate industry. Private firms can and have been shut down for health and safety vio-
lations.

Indeed, making safety and health a top priority for agencies would have many
benefits for agencies, including savings in charge back costs to the agencies for costs
of workers' compensation, monies spent in arbitration cases and lawsuits, and hi^-
er morale and productivity levels in the workforce.

Another GAO report. Asbestos in Federad Buildings, (October 1992) makes the
point that federal agencies have not taken surtion to establish asbestos management
programs that meet OSHA's regulations. Some worksites had no programs; some
were not concerned enough to minimize the potential for asbestos fiber release; and,
some did not begin clean-up procedures when asbestos exposure was imminent.

AFGE participated in asoestos arbitration cases which demonstrated that the bu-
reaucracy's resistance to health and safety is both detrimental to employees' health
and very costly to the government. The government will pay arbitration and/or court
costs, backpay, and potential workers' compensation costs and it is usually under
orders to eventually clean up. This costs millions of dollars. Obviously, it is less ex-
pensive to correct unsafe and unhealthiul working conditions in the first place.

One example concerns the enriployees at the Allen Park Veterans Administration
Medical Center (VAMC), Allen Park, Michigan. The employees had to force the De-
partment of Veterans Affairs (DVA) to get asbestos cleaned up and removed by
going to arbitration and now the employees will receive hazara pay for exposure.
A Federal Labor Relations Authority (FLRA) ruling (1991) sustained an arbitration
award to 65 wage grade employees of approximately $6 million in Environmental
Differential Pay (EDP), retroactive to 1978, for exposure to airborne asbestos in hos-
pital work areas and buildings. In addition to the $6 million, workers will continue
to receive EDP until the facility has completed its internal asbestos removal pro-
gram.

We have several examples of other serious OSHA violations. In one case, a life
was taken and, in another, there is a potentied to do tremendous damage to life and
property. These situations exist because there is no top management support for a
safety program and there is no mechanism to force compliance or abatement. In
other words, safety and health are not priorities for most federal agencies.

On April 22, 1993, a temporary employee of the Department of Agriculture's For-
est Service was fatally burned while attempting to put out a fire in the Jemez
mountains in New Mexico. The agency made many mistakes including the reauired
injury/ilLness recordkeeping. The following information is taken from an OSHA in-
spection conducted April 26 to June 11, 1993:

1. The employee was a temporary and, along with others, was not adequately
trained in firefighting, nor given the proper Personal Protective Equipment (PPE)
such as the appropriate respirators, boots, eye protection, hard hats, brush jackets,
etc.

2. The small shelter tents employees used for emergencies were damaged. Several
employees had to share shelters to escape the raging fire.



54

3. OSHA inspectors were not allowed to enter without delay, as required by 29
CFR 1960.31Cb), to inspect the work areas and investigate the fatal accident of one
of the employees. Furuiermore, evidence at the accident scene was not left undis-
turbed.

4. The agency is required under Executive Order 12196 to operate an occupational
safety and health program which includes the maintenance of accurate ana honest
iiyury and illness records. The OSHA inspectors found that 175 of 240 injury and
illness instances for FY 1991 were misrecorded or not recorded on the OSHA 200
log as required by 29 CFR 1960.67. Thirty-four of 65 injuiy and illness instances
for FY 1992 were misrecorded or not recorded on the OSrfA 200 log as required.

The instances included lost workdays, Lcguries, and illnesses that resulted in re-
stricted activity and/or medical treatment.

It has also come to our attention that remarks such as, "What's the big deal, he
(the victim) was only an Navaho Indian," were made. Not only is this an insulting
and discriminatory remark, but the victim was a Pueblo Jemez Indian. It's ironic
that in this one OSHA inspection we have evidence of discrimination; temporaries
who receive little or no training (and little training given to full-time employees);
total disregard for the safety of employees; and no respect for OSHA. Why? Because
there is no top management support and no fear of enforcement.

Another example I am sure you will find quite shocking are the 225 safety viola-
tions uncovered oy OSHA inspectors at the U.S. West Point Military Academy's of-
fices and shops in March through May of 1993. These violations would carry $1.4
million in fines if the Academy were a private company.

What makes this inspection even more unconscionable is that when the Academy
was inspected in 1988, there were about 150 violations, many of them the same or
similar to the present ones. That inspection was the result of many reported iiyu-
ries. It is obvious that Academy officials chose to ignore the 1988 violations and
have done little, if anything, to improve the workplace.

Ajgain, because West Point is a federal installation, it cannot be fined or penal-
ize<r AU that can be done under Executive Order 12196 is for OSHA to issue safety
violations and hope the problems are abated. As you consider OSHA Reform, I urge
you to keep in mind that 156 violations were serious and could have caused death
and accidents resulting in amputations.

Although the violations did not cause any serious ityuries, they include a wide
range of dangers such as:

— No training on handling or health effects of hazardous chemicals;

— o training about corrosive solvents;

— Exit doors unmarked, fire escape doors locked, fire extinguishers blocked or un-
checked;

— No alarm in the sewer plant to warn employees if chlorine leaked;

— Railings to prevent workers from falling into tanks and stairwells were inad-
equate or missing;

— Machine guards missing from equipment to protect workers from cutting blades
and sharp parts.

The last example I want to share with you is of a diflerent nature. It concerns
an OSHA program evaluation that was requested by the Department of labor for
itself, in 1991, to determine if substantial deficiencies from a 1987 evaluation were
corrected. The DOL wanted to be able to present itself as a model program to other
agencies. However, the evaluation revealed the DOL program continued to have
many deficiencies such as:

— Annual inspections of the nation's Job Corps Centers were not conducted;

— Job Corps injuries and illnesses were seriously under-reported;

— Since 1991, DOL workers' compensation costs have increased 48 jiercent to
neeu-ly $20 million;

— Many of the recommendations in OSHA's 1987 evaluation were never imple-
mented.

In essence, the evaluation tells us that top management support for the program
did not filter down to lower levels. The following excerpts from the report bears this
out:

The DASHO (Designated Agency Safety and Health Official) did not hold
subagencies accountable for implementing an effective safety and health program.
This resulted both from conflicting instructions and a lack of appropriate enforce-
ment by the Department."

"DOL managers were not consistently held accountable for their safety and hecilth
performance."

"Recordkeeping was inconsistent: at some sites there were no injury/illness logs
and in others no annual summaries had been posted."



55

"Many hazards previously identifled — remained unabated apparently due to any
one of several reasons:

1. Hazards were not properly documented;

2. Inspectors failed to foUow-up to ensure abatement; or

3. Managers were allowed to ignore citations."

The Deptirtment of Labor was not pleased with this evaluation and senior OSHA
officials managed to downgrade the evaluation to the status of a "request for tech-
nical assistance." Because of the downgrading, the report lost its official status as
an "evaluation." As a result, it would he not be provided to the Secretary of labor,
FACOSH (Federal Advisory Council on Occupational Safety and Health), or Con-
gress.

These examples demonstrate to us quite clearly why Congress must move forward
with OSHA reiorm for federal employees.

To correct many of the deficiencies in the current federal safety and health pro-
gram, AFGE believes the following provisions must be established:

—Enforcement mechanisms to compel agencies to meet safety and health stand-
ards;

— Top management commitment to the safety and health program;

— Protection for workers who report unsafe conditions;

— Right of workers to refuse work that is dangerous without loss of pay;

— Mandatory safety and health committees.

We support S. 575 because it provides these much needed provisions. For too long,
federal managers have ignored their responsibility under the OSHA and subsequent
Executive Orders.

Overall, AFGE believes that many portions of S. 575 overlap with H.R. 115, the
"Federal ad Postal Service Employees Occupational Safety and Health Act of 1993."
However, while federal employees are covered, in general, under S. 575, we believe
that the Federal Government is unique and that a separate title should be estab-
lished simply to address federal occupational safety and health. The federal govern-
ment, employing about two million workers, must establish certain responsiloilities
and policies to oe carried out nationwide. The following are examples of, but not
limited to, areas unique to the federal government that should be included under
a separate title.

— Agency heads shall establish agency- wide safety and health programs. These
written programs will be specific to each agency work location. They will include the
availability of funds and personnel for this purpose. They will also require the DOL
to conduct comprehensive evaluations of the agencies which have the hi^est long-
time incidence rates.

— Provisions for the establishment of a DASHO (Designated Agency Safety and
Health Ofiicial) and to require procedures for evaluating managers and supervisors
on their compliance with safety and health standards. This will help ensure top
management support for the program.

— Agency-wide inspection responsibilities should be outlined in the written pro-
gram. Inspections shall be conducted by competent agency personnel, and with ap-
propriate equipment. Any employee or labor representative may report an
unhealthy working condition and may request an inspection.

^DSHA inspections, both announced and random, unannounced inspection proce-
dures should be outlined.

— Administrator of (Jeneral Services is mandated to provide safe and healthful
workplaces. This includes investigating reports of unsafe and unhealthful work-
places and maintaining a log of agency reports about unsafe conditions,
preoccupancy inspections, as well as providing that any lease of a building between
the government to an agency with a private person is subject to requirements of the
federal OSHA provisions.

—FACOSH (Federal Advisory Council on Occupational Safety and Health) and
Field Federal Safety and Health Councils (FFSHC) should be addressed. FACOSH's
mission has been to advise the Secretary of labor on federal safety and health mat-
ters, and it has been responsible for initiating some important federal programs,
such as the Federal Hazard Communication Program. The FFSHC provides federal
managers and employees education and training designed to improved agency safety
and health programs.

— The existing Office of Federal Agency Programs should be included on behalf
of the Secretary to deal with the federal program.

— In addition to fines for OSHA violations, federal employees should be able to
bring an action for judicial review in the U.S. Court of Appeals. Also, a Special Pros-
ecutor for Federal OSHA Enforcement should be appointed by the President and lo-
cated in the Department of labor. The prosecutor could petition the U.S. Court of
Appeals for enforcement of any OSHA Review Commission order, or for any appro-



56

priate temporary relief, restraining order, or to enforce an abatement order against
any agency.

In concmsion, OSHA spends only one percent of its budget on federal agencies.
We believe the reason for this is that OSHA has no enforcement power in the fed-
eral workplace, so the agency directs its time and money to the private sector where
it will have more impact. S. 575 will end the vagueness in the relationship between
OSHA and the agencies. Under S. 575, these agencies and their managers will no
longer be able to ignore OSHA citations with impunity. Most important, S. 575 will
ensure that every federal worker has an enforceable right to a workplace free of
safety and health hazards.

Mr. Chairman, for all of the above reasons, AFGE is readv to work with you and
your staff to help develop language for Title XI — Federal Plans. I will be happy to
answer any questions.

Prepared Statement of Ron Carey, General President, International

Brotherhood of Teamsters

Mr. Chairman and members of the subcommittee, the International Brotherhood
of Teamsters represents 1,392,090 members in the United States. Our membership
includes a diversity of workers, represented in 14 trade divisions. We thank the sub-
committee for the opportunity to present our views on OSHA Reform legislation, es-
pecially with respect to addressing the need for change in Section 4(b) (1) of the
OSHAct. Our comments address the hundreds of thousands of American workers
who do not have the benefit of OSHA protection in their workplaces. We will specifi-
cally discuss the concerns of the 580,000 Teamster transportation workers, rep-
resented by our Freight, Construction, Newspaper, Warehouse and Parcel and Small
Package Trade Divisions, who have been exempted from OSHA coverage because of
interpretations of Section 4(bXl) of the Occupational Safety and Health Act of 1970.
Additional comments addressing the specific concerns of the 20,000 Teamster Air-
line Division members who are also exempted from OSHA coverage, are appended
to these comments.

We would like to emphasize our support of S .575, the Comprehensive Occupa-
tional Safety & Health Reform Act, currently under consideration, which includes
language that would afford the same level of job safety and health protection pro-
vided to most Americans. The International Brotherhood of Teamsters supports this
language, and other changes included in the OSHA Reform package.

We will focus our comments on three major areas. The first reviews the respective
missions of OSHA, the Motor Carrier Safety Act that govern transportation, and the
agencies in the Department of Transportation (DOT) that regulate and enforce these
laws. The second is the OSHA 4(b)(1) language, and resultant jurisdictional confu-
sion. The third point reviews some preemption policies and protection provided by
the OSHAct, but lacking under the DOT agencies jurisdiction.

THE MISSION OF OSHA

The Occupational Safety and Health Act of 1970 was designed to "ensure so far
as possible eveiy working man and woman in the Nation safe and healthiul working
conditions." OSHA's enabling legislation established only one statutory aim for this


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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 9 of 17)