[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]
H.R. 1583, "THE OCCUPATIONAL SAFETY AND
HEALTH FAIRNESS ACT OF 2003
SMALL BUSINESS AND WORKPLACE SAFETY"
HEARING
BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
OF THE
COMMITTEE ON EDUCATION AND
THE WORKFORCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
HEARING HELD IN WASHINGTON, DC, JUNE 17, 2003
Serial No. 108-20
Printed for the use of the Committee on Education
and the Workforce
88-476 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN A. BOEHNER, Ohio, Chairman
THOMAS E. PETRI, Wisconsin GEORGE MILLER, California
CASS BALLENGER, North Carolina DALE E. KILDEE, Michigan
PETER HOEKSTRA, Michigan MAJOR R. OWENS, New York
HOWARD P. "BUCK" McKEON, California DONALD M. PAYNE, New Jersey
MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey
SAM JOHNSON, Texas LYNN C. WOOLSEY, California
JAMES C. GREENWOOD, Pennsylvania RUBE?N HINOJOSA, Texas
CHARLIE NORWOOD, Georgia CAROLYN McCARTHY, New York
FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts
VERNON J. EHLERS, Michigan RON KIND, Wisconsin
JIM DeMINT, South Carolina DENNIS J. KUCINICH, Ohio
JOHNNY ISAKSON, Georgia DAVID WU, Oregon
JUDY BIGGERT, Illinois RUSH D. HOLT, New Jersey
TODD RUSSELL PLATTS, Pennsylvania SUSAN A. DAVIS, California
PATRICK J. TIBERI, Ohio BETTY McCOLLUM, Minnesota
RIC KELLER, Florida DANNY K. DAVIS, Illinois
TOM OSBORNE, Nebraska ED CASE, Hawaii
JOE WILSON, South Carolina RAU?L M. GRIJALVA, Arizona
TOM COLE, Oklahoma DENISE L. MAJETTE, Georgia
JON C. PORTER, Nevada CHRIS VAN HOLLEN, Maryland
JOHN KLINE, Minnesota TIMOTHY J. RYAN, Ohio
JOHN R. CARTER, Texas TIMOTHY H. BISHOP, New York
MARILYN N. MUSGRAVE, Colorado
MARSHA BLACKBURN, Tennessee
PHIL GINGREY, Georgia
MAX BURNS, Georgia
Paula Nowakowski, Chief of Staff
John Lawrence, Minority Staff Director
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
CHARLIE NORWOOD, Georgia, Chairman
JUDY BIGGERT, Illinois, Vice Chairman MAJOR R. OWENS, New York
CASS BALLENGER, North Carolina DENNIS J. KUCINICH, Ohio
PETER HOEKSTRA, Michigan LYNN C. WOOLSEY, California
JOHNNY ISAKSON, Georgia DENISE L. MAJETTE, Georgia
RIC KELLER, Florida DONALD M. PAYNE, New Jersey
JOHN KLINE, Minnesota TIMOTHY H. BISHOP, New York
MARSHA BLACKBURN, Tennessee
Table of Contents
OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON
WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE ...... 2
OPENING STATEMENT OF RANKING MINORITY MEMBER MAJOR OWENS,
SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION
AND THE WORKFORCE .................................................... 5
STATEMENT OF BRIAN LANDON, OWNER/OPERATOR, LANDON'S CAR WASH AND
LAUNDRY, CANTON, PA, TESTIFYING ON BEHALF OF THE NATIONAL
FEDERATION OF INDEPENDENT BUSINESS (NFIB), WASHINGTON, D.C. .......... 8
STATEMENT OF EPHRAIM COHEN, SMALL BUSINESS OWNER ..................... 10
STATEMENT OF JOHN MOLOVICH, SAFETY AND HEALTH SPECIALIST, TESTIFYING
ON BEHALF OF THE UNITED STEELWORKERS OF AMERICA (USWA), AFL-CIO,
PITTSBURGH, PA ....................................................... 12
STATEMENT OF ARTHUR G. SAPPER, ESQ., MCDERMOTT, WILL & EMERY, OSHA
PRACTICE GROUP, WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE U.S.
CHAMBER OF COMMERCE, WASHINGTON, D.C. ................................ 15
APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE
NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON
EDUCATION AND THE WORKFORCE .......................................... 31
APPENDIX B - WRITTEN STATEMENT OF BRIAN LANDON, OWNER/OPERATOR,
LANDON'S CAR WASH AND LAUNDRY, CANTON, PA, TESTIFYING ON BEHALF OF
THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS (NFIB), WASHINGTON,
D.C. ................................................................. 37
APPENDIX C - WRITTEN STATEMENT OF EPHRAIM COHEN, SMALL BUSINESS
OWNER ................................................................ 43
APPENDIX D - WRITTEN STATEMENT OF JOHN MOLOVICH, SAFETY AND HEALTH
SPECIALIST, TESTIFYING ON BEHALF OF THE UNITED STEELWORKERS OF
AMERICA (USWA), AFL-CIO, PITTSBURGH, PA .............................. 47
APPENDIX E - WRITTEN STATEMENT OF ARTHUR G. SAPPER, ESQ., MCDERMOTT,
WILL & EMERY, OSHA PRACTICE GROUP, WASHINGTON, D.C., TESTIFYING ON
BEHALF OF THE U.S. CHAMBER OF COMMERCE, WASHINGTON, D.C. ............. 55
APPENDIX F - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM WENDY LECHNER, PRINTING INDUSTRIES OF AMERICA, INC.,
ALEXANDRIA, VA, JUNE 12, 2003 ........................................ 73
APPENDIX G - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM RICHARD A. JENNISON, BRICK INDUSTRY ASSOCIATION, RESTON, VA, JUNE
13, 2003 ............................................................. 77
APPENDIX H - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM ROBB MACKIE, AMERICAN BAKERS ASSOCIATION, WASHINGTON, D.C.,
JUNE 16, 2003 ........................................................ 81
APPENDIX I - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM DANIELLE RINGWOOD, ASSOCIATED BUILDERS AND CONTRACTORS, INC.,
ARLINGTON, VA, JUNE 16, 2003 ......................................... 85
APPENDIX J - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM BOB STALLMAN, THE AMERICAN FARM BUREAU FEDERATION, JUNE 16,
2003 ................................................................. 89
APPENDIX K - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM KELLY M. KRAUSER, THE ASSOCIATED GENERAL CONTRACTORS OF
AMERICA, ALEXANDRIA, VA, JUNE 16, 2003 ............................... 93
APPENDIX L - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM THE OSHA FAIRNESS COALITION, JUNE 16, 2003 ...................... 97
APPENDIX M - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN NORWOOD,
FROM JIM WHITTINGHILL, AMERICAN TRUCKING ASSOCIATIONS, WASHINGTON,
D.C., JUNE 17, 2003 ..................................................101
APPENDIX N - SUBMITTED FOR THE RECORD, BRIEF OF THE AMICUS CURIAE, THE
NATIONAL FEDERATION OF INDEPENDENT BUSINESS LEGAL FOUNDATION,
OSHRC DOCKET NO. 01-0830 .............................................105
APPENDIX O - SUBMITTED FOR THE RECORD, BRIEF OF THE AMICUS CURIAE, THE
NATIONAL FEDERATION OF INDEPENDENT BUSINESS AND THE KITCHEN
CABINET MANUFACTURERS ASSOCIATION, IN SUPPORT OF RUSSELL P. LE FROIS
BUILDERS, INC., FOR AFFIRMANCE, 00-4057, IN THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT, JULY 21, 2000 ........................135
APPENDIX P - SUBMITTED FOR THE RECORD, "MOURN FOR THE DEAD - FIGHT
FOR THE LIVING", THE NEW YORK TIMES ..................................191
Table of Indexes .....................................................194
H.R. 1583, THE OCCUPATIONAL SAFETY AND HEALTH FAIRNESS ACT OF 2003:
SMALL BUSINESS AND WORKPLACE SAFETY ACT
____________________
Tuesday, June 17, 2003
Subcommittee on Workforce Protections
Committee on Education and the Workforce
U.S. House of Representatives
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:00 p.m., in Room 2175, Rayburn House
Office Building, Hon. Charlie Norwood, Chairman of the Subcommittee, presiding.
Present: Representatives Norwood, Biggert, Ballenger, Blackburn, Owens, Woolsey,
Majette, Payne, and Bishop.
Staff present: Stephen Settle, Professional Staff Member; Travis McCoy, Legislative
Assistant; Molly Salmi, Deputy Director of Workforce Policy; Jim Paretti, Professional Staff
Member; Kevin Frank, Professional Staff Member; Deborah L. Samantar, Committee Clerk/Intern
Coordinator.
Peter Rutledge, Minority Senior Legislative Associate/Labor; Maria Cuprill, Minority Legislative
Associate/Labor; Ann Owens, Minority Clerk; and Margo Hennigan, Minority Legislative
Assistant/Labor.
Chairman Norwood XE "Chairman Norwood" . The Subcommittee on Workforce Protections
of the Committee on Education and the Workforce will come to order.
We're meeting today to hear testimony on H.R. 1583, the Occupational Safety and Health
Fairness Act of 2003, the views of smaller employers on the merits of the legislation.
Under Committee Rule 12(b), opening statements are limited to the Chairman and the
Ranking Minority Member of the subcommittee. Therefore, if other Members have statements,
they may be included in the hearing record. With that, I ask unanimous consent for the hearing
record to remain open 14 days to allow Members' statements and other extraneous material
referenced during the hearing to be submitted in the official hearing record; without objection, so
ordered.
Ladies and gentlemen, we are going to have votes shortly, and we're probably going to have
to recess. But I'm going to start with my opening statement, and hope that Major Owens will be
able to deliver his, too.
OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD,
SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON
EDUCATION AND THE WORKFORCE
Good afternoon, and welcome to all, especially our fine panel of witnesses who have
sacrificed their time and resources to be with us today. We are in your debt. Thank you.
Today the Subcommittee will conduct its first hearing on H.R. 1583, the Occupational
Safety and Health Fairness Act of 2003. During this first hearing, we intend to focus exclusively
on what I consider one of the most important aspects of this legislation, its impact on smaller
employers.
Candidly, the primary intended beneficiaries of this legislation are the men and women who
work in the many smaller work sites across the country. We think significant progress can be made
in decreasing injuries and illnesses in this segment of the industry through voluntary compliance
efforts.
Now, since this is our first hearing, I want to spend a few moments introducing H.R. 1583.
And before addressing the specific provisions in this proposal, I want to briefly talk about the
congressional purpose and intended outcomes.
It is no secret that for years, I have passionately disagreed with those who argue that
enforcement alone can achieve an optimal reduction in the number of illnesses and injuries in the
nation's places of employment. What I and former Chairman Ballenger and many others, both
Democrat and Republican, so firmly believe is that a balanced regulatory approach is necessary to
reach meaningful outcomes in workplace safety and health.
Certainly, strong and vigorous enforcement has its place. But what we have advocated is a
more balanced approach, including both strategically targeted inspections and cooperative
assistance programs.
Let me explain why we believe this so strongly.
Quite obviously, OSHA regulations are among the most complex and difficult legal
requirements placed on employers today. Many workplace safety and health standards involve
understanding, very sophisticated technologies. And others require activities such as the detection
and identification of particles or airborne contaminants too small for even the keenest eye to see.
For many employers, and especially small employers, compliance is a challenge without help from
the experts.
So get this straight - cooperative programs between government and industry are not about
giving industry a pass on its regulatory obligations. Far from it, cooperative programs are very
simply all about government helping employers understand what they need to do to comply.
There is no evil intent behind helping a regulated community understand its obligations.
That is absurd, because this help is all about voluntary compliance with the law. And that, ladies
and gentlemen, will reduce injuries and illnesses, not increase them. This help will better protect
working men and women by achieving a safer environment, and that is what workplace safety and
health programs are all about!
Let me digress for just a moment.
There is an old saying in the South that there is really very little wisdom in the second kick
to the head of an old Georgia mule. Most of the folks who vote for me interpret this to mean that
people ought to be able to avoid making the same mistakes over and over again. Instead of
repeating mistakes, we use what we learn to make conditions around us better.
Well, if there is one thing we should have learned about OSHA over the past 33 years, it is
that because of its confrontational ways, the agency has often been its own worst enemy. If the
Occupational Safety and Health Act is built upon the concept of voluntary compliance, it is critical
that employers know that good faith efforts toward compliance will be rewarded, not penalized.
Cooperation is built upon trust and respect, and trust and respect must be earned through
exhibited conduct perceived as just and fair.
Ladies and gentlemen, breeding an environment conducive to this trust and respect is really
what H.R. 1583 is all about. Above all else, its provisions are intended to remove what has been
identified as "legal traps" in the act. H.R. 1583 is about removing the "got-yas" from the act, and
thereby leveling the litigation playing field so that employers know that they are not going to be
tricked or forced into legal submission by a government that has asked for their cooperation.
With that overview, let me briefly explain how this legislation would achieve this end. And
if I may, I would like to present this information by using some very sensible principles of fairness
that I think justly and accurately describe each provision of the bill.
First, fundamental fairness dictates that employers should have the opportunity for a fair
and independent review of any charge against them. What we mean by this is simply that if the
Secretary of Labor is going to prosecute a case, she should not also serve as the judge and jury.
This not only makes sense in terms of what is fair, but many may recall that assurances that
this independent review would occur is the promise that removed the last hurdle of opposition that
stood in the way of passage of this Act. This promise should be honored.
Second, no employer should be deprived of their chance for a day in court based upon a
legal technicality. When lawyers use legal technicalities to influence the outcome of a case, it reeks
of unfairness and really leaves a bad taste in everyone's mouth. If we want to encourage
cooperation, employers should not be allowed to fall victim to these legal technicalities - the basis
for accountability should be conduct, not anything else.
Third, employers should have a clear and unambiguous understanding of the types and
degree of conduct that will lead to a violation. Legal terminology should be well-defined and
uniformly applied when possible.
Fourth, employers should not be deprived of their day in court because they cannot afford to
hire a lawyer. An employer's decision about whether or not they challenge OSHA should be based
upon what they think is the right thing, not because it is cheaper to pay the fine than it is to hire
legal help.
And finally, employers should be guaranteed as much stability in the legal system that they
confront as possible. The fair and independent hearing of the charges leveled against them should
never be subject to delays and uncertainties due to the court not being open for business.
These are the five simple propositions of fairness that underlie the provisions currently
contained in H.R. 1583. We assemble here today to ascertain if, from the perspective of a small
employer, these provisions are adequate to level this adjudicative playing field and begin the
process of creating trust between OSHA and smaller employers.
I have invited one of the best legal experts in the area of OSHA law to help us dissect the
provisions contained in H.R. 1583, and I invite the Members assembled here today to put to the test
the specific provisions we propose to deliver the fairness I have been speaking about. I've also
invited several small employers to help us understand how these legal traps I have talked about
actually work under current law. I look forward to them helping us all understand.
With that said, I look forward to working with my colleague from New York, Mr. Owens,
and each of the Members on his side, and want to ask him to help us foster this relationship of trust
between small employers and OSHA, because it is critical that we do so.
WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD,
SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND
THE WORKFORCE - SEE APPENDIX A
Chairman Norwood. And now I yield to the distinguished Ranking Minority Member from New
York, Mr. Owens, for whatever opening statement he wishes to make.
OPENING STATEMENT OF RANKING MINORITY MEMBER MAJOR
OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS,
COMMITTEE ON EDUCATION AND THE WORKFORCE
Let me begin, Chairman Norwood, by thanking you for announcing that you were going to
have more than one hearing. That's an unusual pattern. The past couple of years, we've only had
one hearing. I hope that if you're going to have additional hearings, then we will be able to have
more witnesses, and we'll actually hear from some workers who have worked in some of these
plants.
I want to take this opportunity to welcome some people who are here with us today,
because we think that this is a life-and-death matter. This is not a matter of a bureaucratic technical
set of adjustments in the law. There are lives at stake here. And we're pleased to have men and
women representing the United Steelworkers of America, who work in some of the most dangerous
conditions in our country.
I especially would like to recognize Mrs. Pam Cox, who is a widow of a foundry worker
killed at the Atlantic State Foundry in Phillipsburg, New Jersey, one of the sites of the McWane
Corporation. Is Mrs. Cox here? Mrs. Cox, please stand.
So we take this very seriously and hope that we'd have a lengthy dialogue to make you
understand the fairness issue is, of course, of great concern. We think that the present OSHA laws
are not fair enough to workers, and any changes should be made in the direction of making the
situation fairer to workers.
We also would like to note the fact that small businesses are not the problem. Most of our
workers work in situations involving large businesses, and the deaths and injuries occur in those
areas, but your changes in the law would affect all businesses.
I'd like to thank the witnesses for taking time out of their busy schedule to be with us today,
all of them. We're here to consider what you call the Occupational Safety and Health Fairness Act,
a bill that, in my opinion, would severely weaken an already damaged agency. OSHA is already
weakened by the policies of the Republican majority over the last four years.
The Occupational Safety and Health Administration was established to liberate the
American workforce from unnecessary exposure to safety and health conditions which cause
injuries and death. H.R. 1583 threatens to roll back the basic protections that the present law offers
to workers. Instead of liberation from high risks, H.R. 1583 will result in new oppressive acts of
employers against employees. The fairness that already exists in the law will be bulldozed away by
the deceptive machinery which has been proposed by H.R. 1583.
The Republican assault on working families has escalated one step further by this Act.
Despite recent scandals highlighted by the New York Times and by front-line exposes of the
McWane Corporation's pattern of OSHA violations, Republican policy makers are demanding that
an already inadequate law be weakened further.
The McWane sites which have been cited for more than 400 federal health and safety
violations generated at least 4,600 injuries and 9 deaths since 1995. Changes in OSHA law to
provide more fairness for McWane's type of evasive tactics, but they're deadly tactics, would
represent gross injustice and the abandonment of working families.
Senator John Corzine's proposed bill, Wrongful Death Accountability Act, which would
increase the maximum penalty for willfully ignoring workplace safety regulations from six months
to ten years imprisonment, is a fair and just direction that we should be taking in any new law.
OSHA's criminal statutes have not been updated since the 1970s. I want the record to note
the fact that if you harass a "burrito" on federal lands, you can get five years in jail. Yet the
maximum OSHA penalty for willful wrongdoing is only six months.
There are many examples. I won't go into it in great detail. But this H.R. 1583 can be most
accurately described as a maze wired with steel threads to strangle those who enter looking for
justice. No dirty tricks have been left untried, ranging from excusing employers who miss the
appropriate time frame for contesting citations, to a misuse of the powers of a more partisan
Occupational Safety and Health Review Commission.
In its boldest sabotage effort, this bill significantly narrows the definition of willful
violation, making it even more difficult than it currently is to cite employers for willful violations.
Less than 1 percent of all violations given to employers are categorized as willful.
Between fiscal year 2001 and 2002, the number of willful violations decreased by 67
percent. For fiscal year 2002, federal OSHA issued only 392 willful citations in the 35,700
inspections that they conducted. Clearly, there is no excessive use of these citations by OSHA.
There's no unfairness against small businesses.
Furthermore, the narrow definition will significantly restrict the current definition of willful
violation that has already been developed through 30 years of case law.
For the working families of America, H.R. 1583 unfortunately indicates a continuing
escalation of the Republican assault on working families, which was begun at the beginning of the
Bush Administration, when the united Republican Senate, House, and White House juggernaut
rapidly repealed the ergonomic standards developed over a 10-year period. This assault continues
to ignore the vital role of working families in the makeup of America. This assault refuses to
recognize the truth documented by several studies that showed that more than two-thirds of the
men and women in uniform on the front lines to protect the nation are members of working
families.
If American labor laws accomplish nothing else, certainly our government must not become
the enemy subjecting workers to greater risk of injury and death. The Republican majority should
stop the war on workers by withdrawing H.R. 1583. I urge a bipartisan defeat of this dangerous
legislation.
Mr. Chairman, I would also like to ask unanimous consent to submit for the record a chart
taken from the New York Times which shows that of 200,000 OSHA cases of worker deaths,
200,000 worker deaths from 1972 to 2001, only 151 were of the cases where it was investigated for
worker deaths, and only 8 cases resulted in any jail time for anybody. Out of 200,000 cases, eight
cases resulted in the maximum jail time for the perpetrator. I'd like to submit this for the record.
Chairman Norwood XE "Chairman Norwood" . Thank you, Mr. Owens. Usually I don't turn
to the New York Times for the correct information, but if you'd like that submitted for the record,
I'd be delighted to do so.
XE "Chairman Norwood" I would now like to introduce our panel of witnesses for this
afternoon's hearing. First we will hear from Mr. Brian Landon, who owns a small business in
Canton, Pennsylvania, called Landon's Car Wash and Laundry. Mr. Landon is testifying on behalf
of the National Federation of Independent Businesses.
Our second witness is Mr. Ephraim Cohen. Mr. Cohen is a small business owner in the
state of New York. And gentlemen, we welcome you both.
Our next witness, and one that we've seen before, is Mr. Arthur Sapper. Mr. Sapper is an
attorney with the law firm of McDermott, Will & Emery. He has been involved in OSHA law for
the past 29 years. He has served as the Deputy General Counsel for the Occupational Safety and
Health Review Commission. He was Special Counsel for the Federal Mine Safety and Health
Review Commission. He spent nine years as Adjutant Professor at Georgetown University Law
Center, where he taught a graduate course in OSHA law, and he has spent 16 years advising
employers on their OSHA obligations. Mr. Sapper will be testifying on behalf of the U. S.
Chamber of Commerce.
Our final witness that we will hear from today is Mr. John Molovich. Mr. Molovich is a
Health and Safety Specialist with the United Steelworkers of America in Pittsburgh, Pennsylvania.
Members of the Committee, I think that we need to recess now and get these votes behind
us so we can hear all the testimony in one context. So with that, we'll recess. I think it will take
about 30 minutes. We'll return here immediately following the last vote.
[Recess.]
Chairman Norwood XE "Chairman Norwood" . Before the witnesses begin their testimony, I
would like to remind the Members that we will be asking questions after the entire panel has
testified. In addition, Committee Rule (2) imposes a five-minute limit on all questions. And I'd
like to say to our panelists that if you would keep your testimony to as close to five minutes as you
could, we will be grateful, and then get into some questions and answers.
Now I'd like to recognize Mr. Landon for five minutes for his statement. Mr. Cohen, you're
on deck.
STATEMENT OF BRIAN LANDON, OWNER/OPERATOR, LANDON'S
CAR WASH AND LAUNDRY, CANTON, PA, TESTIFYING ON BEHALF OF
THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS (NFIB),
WASHINGTON, D.C.
Chairman Norwood, Ranking Member Owens, and Members of the Subcommittee on
Workforce Protections, thank you for the opportunity to speak on the merits of H.R. 1583, the
Occupational Safety and Health Fairness Act and to discuss how the provisions in this bill give
small employers the tools we need to defend ourselves against unjust Occupational Safety and
Health Administration citations.
My name is Brian Landon. I am owner/operator of Landon's Car Wash and Laundry in
Canton, Pennsylvania. Besides the obvious services my business provides, we also remanufacture,
install, and service equipment used in the car wash industry.
Currently I have two employees, one full time and one part time. Today I am speaking not
only for myself, but also on behalf of the National Federation of Independent Business, of which I
have been a member since I began my business in 1975. It is my honor to take part in the hearing
today.
Employers like me put the highest premium on the safety and health of our employees.
First of all, we certainly would not want to see family members or friends injured. Secondly, from
a business perspective, it just makes sense to avoid injuries. It costs much more in lost time and
potential court fees and fines than it does to provide safety equipment and to do routine
maintenance. Employers like me aren't looking for ways to get around OSHA. We're just trying to
decipher the myriad of regulations that the laws present.
That is why I would like to thank you and your staff, Chairman Norwood, for introducing
this legislation that will truly make a difference to small employers. H.R. 1583 provides small
business with the help we need to navigate the difficulties presented by OSHA, and it gives us the
tools we need to defend ourselves against an OSHA citation we feel is unjust. These tools are
important, because in small businesses like mine, we don't have experts on staff or an employee
whose only job is to track OSHA regulations. It is the owner, like me, who is forced to interpret
OSHA mandates, while also making the day-to-day management decisions, paying the bills, and
oftentimes working the front counter. Consultants are available, but they are costly, and they take
up valuable time and resources needed to run the business.
That is why this bill is so important to small business. OSHA is a daunting regulatory force
that most businesses don't interact with until they receive a citation in the mail, or have
investigators at their door. If you only have a couple of employees, it is hard to imagine taking on
a bureaucracy the size and power of OSHA. It usually doesn't make good business sense to battle
an OSHA citation, and most small businesses don't.
The reality is that if OSHA cited me for a violation, I most likely would not dispute the
citation, even if I believed I was in the right. The court costs, attorneys' fees, and the cost of being
distracted from the running of my small business are too high, and the burden of proof is stacked
against me. The truth of the matter is that while OSHA has made some modest improvements in
balancing enforcement with compliance assistance, small businesses like mine need this bill to
level the playing field.
There are several sections of the bill that I want to highlight in my testimony today, the first
being Section 2 of the bill contesting citations under the Occupational Safety and Health Act. This
section simply ensures that a legal technicality will not deny a businessperson his or her fair day in
court when disputing an OSHA citation. This is very important for well-meaning small business
owners who are denied their right to question an OSHA citation that results from an honest
mistake, inadvertent surprise, or excusable neglect. Under current law, if an employer receives an
OSHA citation, but does not respond to it within 15 working days, the citation is deemed final.
Although longstanding precedent gives the Occupational Safety and Health Review
Commission the power to consider contests of citations that are excusably late, that power has been
eroded by a recent Second Court decision, Chao v. Le Frois Builders, Incorporated. In that case,
OSHA sent a citation to a small employer, Russell B. Le Frois Builders, Incorporated, at the
company's post office box by certified mail. A secretary for Le Frois received and signed for the
citation, and then put it among the day's mail on the seat in her car. During the drive, the citation
fell behind the seat, and it was not found until after the 15-day deadline.
Although the Review Commission held that, one, lateness may sometimes be excusable,
and two that the employer's excuse for lateness here was a good one, the Department of Labor
appealed the first holding. The NFIB Legal Foundation filed a brief defending the Commission's
decision and the right of conscientious employers to their day in court.
H.R. 1583 addresses this by allowing the Review Commission to use a fairer standard used
by federal courts for late filings and not a drop-dead arbitrary deadline. It is important to note that
this standard would not apply to all filings, just those deemed to be late because of an excusable
reason.
This brings me to another provision of the bill that will have a great impact on small
employers, Section 6, the award of attorneys' fees and costs. Under the Equal Access to Justice
Act, employers can recover attorneys' fees and costs if they prevail in the case and if OSHA fails to
show that it was substantially justified in bringing the citation against the employer. In other
words, even if an employer wins, they can be stuck with thousands of dollars in fees and costs if
OSHA shows the citation was substantially justified. So even if the employer wins, he loses.
Section 6 of the bill would allow small employers with 100 employees or less, and earning less
than $1.5 million annually, to recover costs if the employer prevails in the suit, and on that
condition alone.
By allowing the smallest of employers to recover costs, this would encourage employers to
take a stand against OSHA claims that are without merit. Why shouldn't employers be reimbursed
for costs and attorneys' fees if they prove that OSHA was wrong? Lack of money to pay attorneys'
fees should not be the deciding factor in whether you defend your business against a non-justified
claim.
Chairman Norwood XE "Chairman Norwood" , in my written testimony, I discuss how
Section 7, giving deference to the Commission, is beneficial to small business, as well as how
OSHA can support small business through compliance assistance.
Finally, this bill is very important to small business, because it would help to level the
playing field while dealing with OSHA. For that reason, I support this bill. I thank you for
allowing me the opportunity to testify on this important legislation, and will be happy to answer
any questions you may have.
Chairman Norwood XE "Chairman Norwood" , in the interest of time, I brought along
two briefs filed by the NFIB Legal Foundation that explains the Le Frois case in more detail. I ask
that it be submitted for the record to be included in my written testimony.
WRITTEN STATEMENT OF BRIAN LANDON, OWNER/OPERATOR, LANDON'S CAR
WASH AND LAUNDRY, CANTON, PA, TESTIFYING ON BEHALF OF THE NATIONAL
FEDERATION OF INDEPENDENT BUSINESS (NFIB), WASHINGTON, D.C. - SEE
APPENDIX B
Chairman Norwood XE "Chairman Norwood" . So ordered and thank you very much, Mr.
Landon, for your testimony. And I failed to point out the traffic light is on the front of the table,
the green, yellow, and red. Try your best to stay within that.
Now, Mr. Cohen, I'm going to recognize you next, and Mr. Molovich, you will follow Mr.
Cohen. So Mr. Cohen, we would be pleased to hear your testimony now.
STATEMENT OF EPHRAIM COHEN, SMALL BUSINESS OWNER
Chairman Norwood XE "Chairman Norwood" and Members of the Subcommittee, my
name is Ephraim Cohen, and I am honored to be here today. I am a small businessman, and I
would like to tell you about my experience with OSHA. I would rather not mention the name or
location of my business or the details of my case. I want, however, to share my OSHA experience
with you as much as I can, and to respectfully urge that H.R. 1583 be passed as soon as possible.
I run a small business, and it had an accident. One of my employees was badly hurt, and
my facility was severely damaged. As a result of the accident, I was seriously contemplating
bankruptcy. Several months later, we received a citation in the mail. I showed the citation to my
attorney, who fortunately had experience with OSHA.
The first item in the citation, and the one with the largest penalty, was directly related to the
accident. This hurt. Not so much because of the penalty, but because we had not broken the law.
It was the principle. The citation alleged that the machine that failed was not properly installed.
But I had not installed the machine. I had paid someone to install it, someone with expertise in its
installation.
My lawyer told me that the case law from Occupational Safety and Health Review
Commission held that employers who reasonably rely on specialized contractors to correctly install
machinery are not guilty of OSHA violations. So we asked for an informal settlement conference.
During the settlement conference, we showed the OSHA supervisor that we did not install
the system, and that we had paid someone with expertise to do so. We had the documents to prove
it. My lawyer mentioned the Commission case law about specialized contractors. We asked that
the first citation be withdrawn.
None of this moved the OSHA official, and not because he did not believe us. He had
nothing to indicate that we were wrong. The main reason for his refusal was that he had never
heard of the OSHA law principle my lawyer told him of. I later found out the reason for his
ignorance. There was nothing about it in the OSHA field handbook. Apparently, OSHA had no
incentive to tell its field inspectors about the decisions of the Review Commission. This surprised
me.
We argued and argued, but nothing would move this OSHA official. He could not give a
reason for his refusal that made sense. He would say, "It's your machine." My lawyer would
respond that under the law, that is beside the point. He would ask who installed the machine, and
we told him. But nothing was enough. One time, he let slip his real reason. This is the machine
that caused the accident, someone was hurt, and so the citation had to stand.
We all knew this was no reason at all, for not every accident is caused by a violation of the
law. I think that even he was embarrassed by his response. He then stopped giving reasons for his
refusal to withdraw the citation. He flatly declared that he would refuse to settle the other citation
items unless I accepted this one.
So we had a choice. Either accept this unjust citation and settle the other items, or litigate.
My lawyer told me that I had a very good chance of winning. He also told me what it would cost
to litigate. I am a small businessman, and everyone involved, including this OSHA official, knew
that I could not afford to litigate. He knew that he had me over a barrel. I had to give in. So he
forced me to confess to a wrong that I did not commit.
I do not want this to happen again to anybody. I believe that two provisions of this bill
would have made a difference in my case. Section 7 would have made a big difference, for it
would have meant that the OSHA official would not be ignorant of the legal principle we had relied
upon. If OSHA cannot ignore Review Commission decisions anymore, it would be forced to
educate its officials about Commission decisions, and would require that they be followed. Please
adopt Section 7 soon.
Section 6 would have also have been a help to me, for it would have forced OSHA to pay
my fees if I won. I am small enough to qualify under this provision. I have less than 100
employees, and the net worth of my business is under $1.5 million.
If this provision were in place, I may well have defended myself against this unjust citation,
for the threat of paying my lawyer's fees would have given OSHA a strong reason to not prosecute.
Please pass this provision as well.
And I thank you for hearing me out.
WRITTEN STATEMENT OF EPHRAIM COHEN, SMALL BUSINESS OWNER - SEE
APPENDIX C
Chairman Norwood XE "Chairman Norwood" . Thank you very much, Mr. Cohen.
Mr. Molovich XE "Mr. Molovich" , you are now recognized, sir.
STATEMENT OF JOHN MOLOVICH, SAFETY AND HEALTH SPECIALIST,
TESTIFYING ON BEHALF OF THE UNITED STEELWORKERS OF
AMERICA (USWA), AFL-CIO, PITTSBURGH, PA
Thank you, Mr. Chairman. Good afternoon. My name is John Molovich, and I've worked
as a Safety and Health Specialist for over three decades. I have served for 23 years in the Health,
Safety, and Environmental Department of the United Steelworkers of America, AFL-CIO.
During my career, I also served as a United States Department of Labor inspector. I also
was a safety and health instructor at the training institute in Des Plaines, Illinois. And I also headed
up the Indiana State program from August of 1989 through 1991. My work at the USWA, it
included plant tours, inspections, OSHA compliance, OSHA training for thousands of United
Steelworkers of America members. Earlier this year, I retired from the USWA.
H.R. 1583 would significantly weaken the Occupational Safety and Health Act of 1970,
resulting in less safe workplaces throughout the United States. The lives of millions of workers are
literally at stake, which makes the issue of concern today a life-and-death matter.
It is no surprise that the Republican leaders today are advocating for further weakening of
OSHA. President Bush, in a Republican-led 107th Congress, oversaw one of the most shameful
acts against American workers in decades, the congressional repeal of the ergonomic standard that
President Clinton promulgated in 2000. In fact, signing the repeal of the ergonomic standard was
one of George W. Bush's first actions in office.
In talking about the specifics of the bill, Section 2, Contesting Citations Under the
Occupational Safety and Health Act, it is the view of the Steelworkers Union that the addition of
words such as "inadvertent," "surprise," or "excusable neglect" will do nothing more than add
confusion to a well-established rule, a rule, by the way, that has been forged over the last 30 years
by OSHA and through the courts.
Section 3 talks about willful violation. Again, the addition of words such as "without a
good-faith belief in the legality in its conduct" and "recklessly disregarded the exposure of
employees to the hazard" will make it extremely difficult, if not impossible, to issue a willful
citation.
The United Steelworkers of America has experience dealing with rogue employers. One
recent example was a pipe manufacturer, McWane, Incorporated, with its headquarters located in
Alabama and a number of production facilities located in several states and Canada. McWane was
the subject of a three-part series in the New York Times and a television documentary on PBS
Front Line that were extremely critical of McWane's safety and health program and the horrible
accident rate at McWane.
I personally toured the McWane facility in Tyler, Texas, very soon after the first newspaper
article in January 2003. I can report that McWane had recognized the need to work with OSHA, its
employees, and its unions to improve working conditions and comply with the requirements of
OSHA. I firmly believe that if OSHA was restricted or prohibited from issuing a willful citation in
this case, the final outcome may have been significantly different, or taken much longer to achieve.
Section 4, Fairness of Penalty Assessment: This section affects Section 17(j) of the OSHA
Act and seeks to increase the number of factors to be considered by the OSHRC, the Occupational
Safety and Health Review Commission. Most, if not all, of the factors proposed in this bill are
taken into account currently by OSHA and the Commission. In addition, some of the wording
tends to shed the responsibility for safety of the employees and/or other persons. The employer is
the sole responsible party for occupational safety and health in a plant.
Section 5, Occupational Safety and Health Review Commission: This Review Commission
has worked well over the last 30 years with just three commissioners, and does not need two more.
If the Subcommittee wants to spend the significant amount of money involved, you should put it
into the OSHA enforcement budget.
Section 6, Award of Attorneys' Fees and Costs: The union believes that the provisions of
the current Equal Access to Justice Act provide employers sufficient protection. In addition, the
union believes OSHA should have the same equal protection.
Section 7, Independent Review: This section affects Section 11(a) of the OSHA Act, and
seeks to give deference to the Commission. Current law gives deference to the Secretary as the
official responsible for enforcing the OSHA Act. The union believes this provision would take
away the authority held by the Secretary to bring cases to the Court of Appeals in the United States
Supreme Court.
In closing, the union strongly opposes H.R. 1583. There are several actions that the
Congress and OSHA could initiate now that would not only strengthen the OSHA Act, but also
provide better protection for workers. The Congress could change the Act by strengthening the
whistle-blower protection for employees that are discriminated against for safety activity. This
would be under Section 11(c) of the Act.
The Congress should also significantly increase the criminal sanctions against Section
17(e). Their current penalties are insulting to victims and their families. The penalties for such
behavior should be raised to at least 10 years in prison, as has been proposed by Senator John
Corzine.
I made a statement before to a group. There are approximately 6,000 people killed every
year in the United States in occupations. There are about 240 passengers on a 747. That equals 25
747's crashing every year. If that were to occur, there would be such an outcry, such an outrage in
this country. Yet and still, we're killing 6,000 people and not thinking strongly about strengthening
the OSHA Act.
Additionally, OSHA could be given the authority to order immediate correction of
extremely dangerous hazards. Currently, they don't have that authority. They have to go to the
courts to get that authority.
The agency also could be directed by Congress and the Administration to promulgate a new
ergonomic standard. Ergonomic-related injuries and illnesses remain the largest single source of
injury across all American industry.
I would like to thank you, Chairman Norwood, and Ranking Member Owens, and the entire
Subcommittee for affording me the opportunity to participate and testify at this hearing, and I'm
happy to answer any questions at the appropriate time. Thank you.
WRITTEN STATEMENT OF JOHN MOLOVICH, SAFETY AND HEALTH SPECIALIST,
TESTIFYING ON BEHALF OF THE UNITED STEELWORKERS OF AMERICA (USWA),
AFL-CIO, PITTSBURGH, PA - SEE APPENDIX D
Chairman Norwood XE "Chairman Norwood" . I thank the gentleman.
Mr. Sapper, you are now recognized.
STATEMENT OF ARTHUR G. SAPPER, ESQ., MCDERMOTT, WILL &
EMERY, OSHA PRACTICE GROUP, WASHINGTON, D.C., TESTIFYING
ON BEHALF OF THE U.S. CHAMBER OF COMMERCE, WASHINGTON,
D.C.
Thank you, Mr. Chairman and Members of the Subcommittee. My name is Arthur Sapper.
I'm a member of the OSHA Practice Group of the law firm of McDermott, Will & Emery here in
Washington. I'm testifying today on behalf of the Chamber of Commerce of the United States.
And the Chamber asks that this bill be favorably reported.
I have been involved in OSHA law for 29 years, both in the government and out. I have
written about it. I have taught about it. I have served at both the Occupational Safety and Health
Review Commission, and a kindred agency, the Federal Mine Safety and Health Review
Commission, and I've examined this bill with those eyes.
H.R. 1583 is a moderate bill, and it is a very limited bill. It's narrowly targeted at some of
the worst problems with the fairness of OSHA enforcement. It doesn't affect OSHA's rule-making
ability. It doesn't affect OSHA's inspection authority. It doesn't take away any power that
Congress intended OSHA to have when Congress passed the act in 1970. Yet it will make
improvements in the enforcement of the Occupational Safety and Health Act, which is essential if
the act is to be effective.
As Mr. Landon has already eloquently pointed out, Section 2 would alleviate a real degree
of unfairness in this statute. Without going into the facts of the Le Frois case again, I can tell you
that it is a very odd and unfair result. OSHA conceded in that case, and I was actually the attorney
for the amicus curiae, the NFIB, in that case. OSHA conceded in that case, but the employer had
shown excusable neglect. But OSHA also succeeded in proving to the Court of Appeals that
excusable neglect was irrelevant, on a legal technicality.
That is a very irrational result, Mr. Chairman. In any other court in the country, had that
excuse for failure to answer a complaint been offered, it would have been accepted, and the
employer would have been allowed to have his day in court, but not under the Occupational Safety
and Health Act. This inequality of treatment should be ended. There's no reason for it. And I
would commend Section 2 of the bill for that reason, Mr. Chairman.
On Section 3 of the bill, which would define "willfulness," I can tell the Subcommittee that
the biggest problem with trying to defend an employer against a charge that he's a willful
lawbreaker is that there's no definition of "willfulness" in the statute. The case law has established
a very mushy test for willfulness, intentional disregard or plain indifference to the Act's
requirements.
That's an employer's nightmare, Mr. Chairman, and a lawyer's dream. Almost anybody
could be called a willful lawbreaker on very debatable evidence, and the lawyers will be able to
debate whether it's willful for many years. Clarity is needed for the sake of fairness.
The definition of "willfulness" in Section 3 essentially codifies a Supreme Court decision in
a case called Richland Shoe under the Fair Labor Standards Act. It's a clear test. It's a fair test. It
basically says if you know you're breaking the law, or you recklessly disregard the health or safety
of your employees, you are a willful lawbreaker. That strikes the right note. It's clear, it's
straightforward, and it's predictable. If you pass this revision, no longer will innocent employers be
terrorized by willful accusations. That does nothing for safety, I can tell you.
On Section 4, which would preserve the fairness of penalty assessment, the interesting thing
about Section 4, Mr. Chairman, is that it would preserve fairness. It actually wouldn't change
anything. It would codify the sound holdings of present case law. It would even codify, in effect,
the provision of OSHA's own field manual. It just preserves the fairness that's already there, and it
insulates the case law against attacks by OSHA's lawyers.
For example, OSHA's lawyers have been arguing on and off that the Review Commission,
which is supposed to assure fairness under the statute, may not consider the financial condition of
the employer when the Review Commission is going to assess a penalty. Well, that makes no
sense. And so this bill would simply codify the Review Commission's holding to that effect and
insulate it against legal attack by OSHA's attorneys.
On Section 5, which would expand the Review Commission to five members, Mr.
Chairman, I've served on the Review Commission. I'm sorry. I've served with the Review
Commission, rather, as its Deputy General Counsel. I was also an employee, the Special Counsel
of the Federal Mine Safety and Health Review Commission. I can tell you that the difference
between those two agencies is like night and day, principally because, Mr. Chairman, the Federal
Mine Safety and Health Review Commission has five members, and the OSH Review Commission
has only three.
The instability of membership basically prevents the Review Commission from doing its
job. Once two years pass, a member leaves, and the staff has to reeducate a new member all over
again, cases sit and sit. And even if you have two members, which the Commission has had for
about half the time in the last 20 years, well, two members is basically a recipe for paralysis.
OSHA cases today are so complicated and so large that it's rare for two members to agree on
everything and get the case out the door, so the cases sit. I've had one case that I'm personally
involved in that has been sitting before the Review Commission for eight years.
On Section 6, Mr. Chairman, I will add very little to what Mr. Landon has said about that. I
have represented small employers in the past, and I can tell you that they don't get justice because
they can't afford it. I've had to tell small employers that they're right, and the judge may agree with
them, but they can't afford to take the case to court. They're better off settling it, paying the fine,
and moving on.
I shouldn't have to tell employers that. And the Equal Access to Justice Act is no answer,
because as a practical matter, you can't get your fees paid under it. All OSHA's lawyers have to do
is prove that they were substantially justified, which is too easy a target to hit, and the employer
gets no fees. And then he has to mount another case in order to get those fees, and he can't afford
that either.
On Section 7, Mr. Chairman, this basically says that it's the Review Commission that
should get deference from the Courts of Appeals. This would simply restore the Act to what
Congress indisputably intended in 1970. Why do I say that? Because the only piece of legislative
history that speaks to this issue says that the Review Commission is not supposed to be, in effect,
dictated to by OSHA with respect to legal interpretations.
But there is an unfortunate Supreme Court decision that, in effect, tells the Review
Commission it can't throw out a citation even if it thinks the citation is wrong, so long as OSHA is
reasonable but wrong. OSHA wins if it's reasonable, even if it's wrong. It gets a home run, even if
the Review Commission really thinks it hit a foul ball.
That, I can tell you, breeds contempt of the Commission, and undermines the rule-making
process, because OSHA can just prescribe rules through interpretation, through the back door, if
you will, Mr. Chairman, and it results in injustice for employers. I've had to tell employers again,
"You're right, but it won't make a difference. Even if the Commission thinks you're right, you
lose." OSHA just has to be reasonable.
Mr. Chairman, I thank you and the Members of the Subcommittee for your time and your
patience.
WRITTEN STATEMENT OF ARTHUR G. SAPPER, ESQ., MCDERMOTT, WILL & EMERY,
OSHA PRACTICE GROUP, WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE U.S.
CHAMBER OF COMMERCE, WASHINGTON, D.C. - SEE APPENDIX E
Chairman Norwood XE "Chairman Norwood" . Thank you very much, Mr. Sapper.
I appreciate all of your testimony. And I recognize myself now for five minutes for
questioning.
I'm going to follow-up on your testimony, because I'm interested in something that I heard.
Mr. Sapper XE "Mr. Sapper" , the gentleman from the Steelworkers Union said that if in
Section 3 our definition of "willfulness" should pass, OSHA would be unable to allege willfulness
ever again against an employer. I think the exact words were "willful situation will be impossible
to enforce." I'd love to know if that is right, and your opinion on that.
Mr. Sapper XE "Mr. Sapper" . I'm afraid it's not correct, Mr. Chairman. If this definition
should pass, OSHA would be able to accuse an employer of willfulness by simply showing the
employer knew of the OSHA standard, and knew he wasn't following it. Or even if the employer
was ignorant of the OSHA standard, OSHA could prove willfulness by showing that the employer's
conduct was reckless.
Now, that is, of course, beyond negligence, but there are current provisions of the statute
that already govern negligent conduct. So it simply would prescribe a very clear definition.
And there are many, many cases, like the McWane case, Mr. Chairman, in which OSHA would
have very little difficulty proving willful violations.
For example, I went through the three New York Times articles that described the behavior
of the employer in that case. Let me tell you, taking these facts, OSHA would have no difficulty
proving willfulness under H.R. 1583. For example, there were supervisors who knew that legally-
required machine guards were off the machines for weeks at a time. That's like shooting fish in the
barrel under H.R. 1583. It would be an easy willful charge to prove.
The same would hold with throwing flammable liquids into an incinerator. Employees had
told the managers this is dangerous. That too would be an easy charge to prove with regard to
willfulness under H.R. 1583. Actually, I don't think it would change the results in the McWane
case at all.
Chairman Norwood XE "Chairman Norwood" . So you believe that we are correct in finally
putting into legislative language a definition, rather than this nebulous term out there that who
knows where it goes when it gets to court.
Mr. Sapper XE "Mr. Sapper" . I absolutely agree, Mr. Chairman; absolutely right. You need
a definition of this. It's a very powerful provision. It's very productive for unfairness. It needs to
be cabined by some procedural protection.
Chairman Norwood XE "Chairman Norwood" . Mr. Cohen, I want to take a minute to go back
and remind us of your testimony. I find it a little disturbing and I hope maybe you can help me
understand a little better.
This compliant officer that you dealt with had never heard of an OSHA law principle? Is
that what you said? Or is that what he told you?
Mr. Cohen XE "Mr. Cohen" . Basically, yes. It was, just to go back on my notes, a case law
from the Occupational Safety and Health Review Commission. It had been decided there that if
you rely on a specialized contractor to do the work, you are not responsible. The OSHA
supervisors claimed not to have any knowledge of that.
Chairman Norwood XE "Chairman Norwood" . Even after it was pointed out to them?
Mr. Cohen XE "Mr. Cohen" . Even after it was pointed out, correct.
Chairman Norwood XE "Chairman Norwood" . So at that point, he did have knowledge of it.
He chose to ignore it.
Mr. Sapper XE "Mr. Sapper" , you are our legal expert today, and I'm sure you are
familiar with the legal principles Mr. Cohen is talking about. Explain this business to us about
OSHA law principle, and explain how in the world an employee of OSHA would, first of all, not
have heard of it. Secondly, if they have heard of it, but it was pointed out by the employer, why
would they ignore it?
Mr. Sapper XE "Mr. Sapper" . Well, I'd be happy to, Mr. Chairman.
First of all, the legal principle that Mr. Cohen is speaking of is derived from a line of cases
called the Sasser line of cases, Mr. Chairman. Essentially, that case holds that if you hire a
specialized contractor to do something for you, and you trusted him, and you had no reason to
distrust him, and he does it wrong, you're not guilty of an OSHA violation. He is, but you're not,
which sounds fair.
It is a corollary of another principle under the Occupational Safety and Health Act that
OSHA has to show that an employer knew or, with reasonable diligence, could have known of a
violation. It's just a corollary of that. And that's been the case law for almost 30 years.
The problem is if you look in the OSHA field information reference manual, it's not there.
OSHA has never instructed its field enforcement officials to follow the Review Commission and
the Courts of Appeals on this point. The reason is OSHA's lawyers harbor hopes of being able to
eventually convince the Courts of Appeals or the Supreme Court that there is no such doctrine.
So in the meantime, even though we have longstanding, decades-long Review Commission
precedent saying that this is the law, and Court of Appeals precedent saying this is the law, OSHA
has never instructed its employees in it. And that causes the following result.
I go into an informal settlement conference. I argue on behalf of my client that either we
had a specialized contractor do it, or the employer otherwise lacked knowledge. And the area
director sits there and gives me a blank look, as if he'd never heard of the principle before. And
sometimes they actually haven't. And the reason is because under current case law, OSHA is
allowed to ignore the Review Commission, basically, because of the CF&I Steel decision.
OSHA can essentially say to itself, "Well, look, my position is reasonable, so I have hopes of being
able to prevail eventually. I'm not going to acquiesce. I'm not going to follow the law."
Chairman Norwood XE "Chairman Norwood" . My time has expired.
Mr. Sapper XE "Mr. Sapper" . Sorry, Mr. Chairman.
Chairman Norwood XE "Chairman Norwood" . But we're going to come back there in a
minute, or sometime this afternoon.
Major Owens, you're recognized now for five minutes.
Mr. Owens XE "Mr. Owens" . Thank you very much, Mr. Chairman. Mr. Landon, did I
understand you correctly, you have one-and-a-half employee?
Mr. Landon XE "Mr. Landon" . Yes. I have one full-time and one part-time employee.
Mr. Owens XE "Mr. Owens" . Do you work in the same environment; the same site?
Mr. Landon XE "Mr. Landon" . I certainly do. I work side-by-side with my employees.
Mr. Owens XE "Mr. Owens" . What problem did you have in health and safety at your
establishment?
Mr. Landon XE "Mr. Landon" . Fortunately, I have not.
Mr. Owens XE "Mr. Owens" . Have you ever been cited by OSHA?
Mr. Landon XE "Mr. Landon" . No, I have not.
Mr. Owens XE "Mr. Owens" . Are you on a preventive mission in terms of you think this law
here should be in place to prevent small employers like you from ever having to have a citation?
Mr. Landon XE "Mr. Landon" . I think it would make things fairer for small employers such
as me who, even though I'm not currently subject to OSHA enforcement inspections, I am still
subject to OSHA rules and regulations. And even though I've never been cited by OSHA, many of
my fellow small business members and NFIB members have.
Mr. Owens XE "Mr. Owens" . You know people who have one-and-a-half employees that have
been cited by OSHA?
Mr. Landon XE "Mr. Landon" . I can't say that specifically.
Mr. Owens XE "Mr. Owens" . Would you say that the provisions of this particular H.R. 1583
should apply only to employers with 10 or less employees?
Mr. Landon XE "Mr. Landon" . I'm not prepared to make that statement, no.
Mr. Owens XE "Mr. Owens" . That might be a good compromise.
Mr. Landon XE "Mr. Landon" . I can speak from my perspective as a very small employer.
Mr. Owens XE "Mr. Owens" . Thank you.
Mr. Sapper with all of your extensive knowledge, do you contest the statistics that have
been quoted here, two hundred thousand deaths over that period, and one hundred fifty-one were
investigated? Only eight actually ended up with employees being jailed? Will you accept those
statistics, or do you think they're fabricated?
Mr. Sapper XE "Mr. Sapper" . Oh, I don't think they're fabricated, Mr. Owens. I don't really
have any personal knowledge. I've heard figures like that over the years. I'd be willing to accept
them.
Mr. Owens XE "Mr. Owens" . Well, you've followed this very closely, so you've done more
than just heard the figures. You've examined the figures, I'm certain.
Mr. Sapper XE "Mr. Sapper" . Actually, I have not personally examined figures on criminal
prosecution, Mr. Owens. I have not had personal occasion to do so. I've heard of these figures.
Mr. Owens XE "Mr. Owens" . Do you doubt that there have been 200,000 deaths in the period
cited? Was it '72 to the present?
Mr. Sapper XE "Mr. Sapper" . I've heard that. I will assume it's correct.
Mr. Owens XE "Mr. Owens" . Well, you said you read the New York Times articles in great
detail.
Mr. Sapper XE "Mr. Sapper" . Yes, Mr. Owens.
Mr. Owens XE "Mr. Owens" . You don't dispute most of the statistics that were contained in
there.
Mr. Sapper XE "Mr. Sapper" . I don't dispute them, but I have no particular reason to really
know if they're correct or not. I assume that they are. I will trust them for purposes of this
discussion.
Mr. Owens XE "Mr. Owens" . In the most important area, death, would you say there has been
any harassment, or that OSHA is overbearing? OSHA harasses its small industries, or even large
industries, 8 versus 200,000? Where's the harassment? Where's the abuse? Why is there a problem
that we have to fix? What's broken?
Mr. Sapper XE "Mr. Sapper" . The problem, Mr. Owens, is that over 99 percent of the
willfulness charges are not in the criminal sphere. They're civil charges. You end up with an
OSHA inspection. The OSHA citation comes. Not an indictment, a citation. And it accuses you
of willfully breaking the law.
And yes, I have seen OSHA use that extremely unfairly. I have seen OSHA accuse
employers of willful violations when all they've done is arguably negligent conduct.
Mr. Owens XE "Mr. Owens" . Do you think OSHA has an ideological bent? Some of the same
people there now were appointed during the Reagan Administration, the Bush administration, the
Clinton. They're civil servants. Is there an ideological bent that leads them to want to go after
businesses?
Mr. Sapper XE "Mr. Sapper" . No. I think that they have a natural prosecutorial zealousness.
They are supposed to have it. They wouldn't be doing their job if they didn't.
However, where you have an intended prosecutorial zealousness, you also need fairness to
constrain it. You need a court that can correctly review that zealousness, make sure that the rules
are obeyed, and make sure that employers are not cited unfairly.
Mr. Owens XE "Mr. Owens" . Mr. Molovich, would you say that the OSHA employees, since
you have a long history also in this area, approach their work with great pride and objectivity, or do
they have a winning prosecutorial zealousness?
Mr. Molovich XE "Mr. Molovich" . Mr. Owens, the OSHA compliance officers and the
OSHA field staff work according to the field operations manual. Now it's the FIRM, the Field
Information Reference Manual. The issuance of willful violations has to be approved by the
regional office. These are not just things that are willy-nilly done at the area office. They've got to
approve those things at the regional office.
The words that are in this document that talk about, you know, the degree of willfulness and
how a willful violation is going to be arrived at clearly fly in the face of case law that's been around
for 30 years. There are two major reasons why a "willful" is either plain indifference or intentional
disregard. And those principles and concepts have been around for many, many years.
There was one circuit court in the United States tried to say that a willful violation had to
have an evil intent. There were at least three, possibly four, circuits that said no, evil intent is not
possible. All you need is plain indifference or intentional disregard. The OSHA compliance
officers are conscientious, hard workers, and they try to apply the law fairly to all parties.
Mr. Owens XE "Mr. Owens" . Thank you. I'm afraid I've got a fast five minutes, and then I'm
finished.
Chairman Norwood XE "Chairman Norwood" . That's why we're not trying to get rid of
willful violations; we're trying to define it so that it can be fairly attributed to anyone who needs it
attributed to them.
Mrs. Biggert XE "Mrs. Biggert" , you're recognized for five minutes.
Mrs. Biggert XE "Mrs. Biggert" . Thank you, Mr. Chairman. Mr. Sapper, I think in your
testimony, you had a chart that shows that the Review Commission operated without the full
membership, the three members, for more than half of its total existence. So what does this mean?
And I know the bill raises this to five members. If you could comment on that.
Mr. Sapper XE "Mr. Sapper" . Yes. The problem is that the Review Commission is so
riddled with vacancies. It is well, it's paralyzed. It can't do its job. Either it has one member or no
members, or most of the time, only two members. If it has only two members, they're paralyzed.
Very few cases will you see in which two members are going to agree on everything in the case.
The cases are just too big, too complicated nowadays. And so the cases, as I said before, just sit.
Mrs. Biggert XE "Mrs. Biggert" . Well, if it's paralyzed, then they just don't act on it, or don't
make a decision? Or how long does that take? Or can they bring back a third member to make a
decision?
Mr. Sapper XE "Mr. Sapper" . Correct. They have to await the appointment of a third
member. Unfortunately, if you look at the time line, by the time a third member comes aboard,
there's not too much time remaining before another one of the previous two members is about to
leave. And then when that third member comes aboard, well, the experienced legal staff at the
Review Commission has to spend time, shall we say, helping that new member climb the learning
curve. By the time he's ready to vote on all the pending cases, a goodly proportion of his term has
expired, and then it's time, perhaps, for another member to get ready to leave.
It's been very difficult. And if you had five members, you'd have a flywheel effect. You
would have enough members there at one time to be able to at least get a case out the door.
Mrs. Biggert XE "Mrs. Biggert" . With five members, what happens if, let's say, there's only
four members present, and two go one way and two the other? Would that make that Commission
paralyzed?
Mr. Sapper XE "Mr. Sapper" . I don't think so, as a practical matter, because this bill permits
the Commission to sit in panels of three. And so you are not going to have that kind of a deadlock.
Mrs. Biggert XE "Mrs. Biggert" . The statement was made that changing the membership of
the OSHA Commission to five is modeled after the Federal Mine Safety and Health Review
Commission? Has that Commission had any problems with lack of a quorum?
Mr. Sapper XE "Mr. Sapper" . It has, but few. I mean, far, far, far fewer. And plus, it has a
more stable membership, and it has a stable case law as a result. It works. It's an agency that
works. The OSHRC doesn't work.
Mrs. Biggert XE "Mrs. Biggert" . How are the three members or the five members picked, or
selected, for the Commission?
Mr. Sapper XE "Mr. Sapper" . They are nominated by the President and confirmed by the
Senate for staggered terms of six years.
Mrs. Biggert XE "Mrs. Biggert" . Would anybody else like to comment on changing the
Commission from three to five?
Mr. Molovich XE "Mr. Molovich" . Again, to my mind, and in my opinion, it's not necessary.
This Commission has worked well over the last 30 years. When Mr. Sapper talks about, you know,
a quorum, two is a quorum. If they have two commissioners on the three-member Commission,
that is a quorum. And they can get cases passed through with just two of the three sitting
commissioners. I believe at this current time, all three commissioners are sitting on the
Commission right now.
Mrs. Biggert XE "Mrs. Biggert" . Do you know how many times there's only been one, when
there is no quorum?
Mr. Molovich XE "Mr. Molovich" . Off the top of my head, no, ma'am. I know what Mr.
Sapper is saying is true to a certain degree, but I don't think it's as paralyzed as he's trying to make
it out to be.
Mrs. Biggert XE "Mrs. Biggert" . How old are some of the cases, then, that are at the
Commission?
Mr. Molovich XE "Mr. Molovich" . I wouldn't know. I wouldn't have any information along
those lines.
Mrs. Biggert XE "Mrs. Biggert" . Mr. Sapper, do you know?
Mr. Sapper XE "Mr. Sapper" . Well, I couldn't give you statistics about averages, but I can
tell you from my own personal knowledge. There is a very important case that's been pending for
almost eight years. There's another case that's been pending before the body probably about seven
years total. These are large cases, the ones that tend to sit.
Mrs. Biggert XE "Mrs. Biggert" . Have there ever been any cases where, you know, the
parties have gone out of business by the time that the case comes up?
Mr. Sapper XE "Mr. Sapper" . Oh, yes. Oh, yes, that has happened. I remember when I was
at the Review Commission, we sent out a decision to an employer and it came back. It was not an
employer anymore.
By the way, at the moment, the Review Commission doesn't have three members, it has
only two. And, in fact, even though as Mr. Molovich says, two is a quorum, two is a recipe for
deadlock.
Chairman Norwood XE "Chairman Norwood" . The gentlewoman's time has expired.
New Hampshire has five?
Mr. Sapper XE "Mr. Sapper" . Yes, sir.
Chairman Norwood XE "Chairman Norwood" . Ms. Woolsey, you are now recognized for
five minutes for questions.
Ms. Woolsey XE "Ms. Woolsey" . Thank you, Mr. Chairman.
I was a human resources manager for twenty years before I was elected to the House of
Representatives. And for the first ten of those years, I was with a telecommunications
manufacturing company that started with 13 engineers and me. And it grew to 800 people.
So you can imagine we went through a lot of challenges over a 10-year period, and one of
them, of course, was our safety standards. And it was my responsibility as the HR person to make
sure that was all in place. I became really good friends with OSHA and with CALOSHA. I mean,
I had no problem calling them in and asking questions, and giving tours of my plant, so I knew
exactly what was happening and knew what was expected of my company and my management.
We knew that if one of our employees had an accident, and pulled their back; I mean, it was
light industry, so they probably weren't going to die of anything. Well, but we had chemicals.
We knew that if an employee didn't do the right thing, if the employee was injured, or they or
somebody else got injured because of some employee's actions, it was the company's responsibility.
We knew it. We never questioned it. And therefore, we trained our employees. We made sure
they followed the rules. And if they didn't, that was a disciplinary action.
They participated on the safety and health committees. They had pride in their company.
They bragged that we didn't have accidents. They bragged that they were safe, that their co-
workers were safe. So I tell you all that because I'm bragging, I guess.
But with this bill, with 1583, what I see is legislation for a company's bottom line being
valued above the safety of American workers. I see a narrowing of the definition of willful
violations, making it easier for employers to avoid blame when they have disregarded a safety
standard or some requirement. I see it helping business by extending the 15-day filing date that
employers must meet to respond to OSHA's citations, among other things.
I'll start with you, Mr. Molovich. Where in this legislation are the OSHA standards
strengthened? Where are employees helped?
Mr. Molovich XE "Mr. Molovich" . Ma'am, there are no places in this legislation that will
help the employees nor help the Agency. The things that are being done here are an attempt to
rectify and to correct court decisions that have been made over the past 30 years. All this bill is
trying to do is take back what OSHA and the workers have won over the past 30 years, either in
court litigation or through OSHA's mandate.
So I see nothing more here than trying to take back something that's been hard earned and
hard fought for. And by the way, many people have died since then, and they paid the price.
OSHA's regulations are written in blood. Someone died for them. And if you look at the way the
regulations are promulgated, how they adopt draft standards, you'll find that's exactly how they do
it. When enough dead bodies appear, then they will write a regulation.
So when we're talking about these kinds of things that infringe upon the rights of working
people, the people that are paying the bills, it bothers me no end.
Ms. Woolsey XE "Ms. Woolsey" . I can see your passion. That's nice. Thank you.
Can any of the three of you tell me where these new regulations, this new law, will help the
worker? Yes?
Mr. Sapper XE "Mr. Sapper" . I would say that this bill is simply neutral on the issue. That is
to say, it restores enforcement fairness. For example, it assures that you have an impartial court. It
doesn't put the thumb on either scale. It simply ensures impartiality.
By the way, I would also point out that it doesn't weaken the standards one iota. This bill
does not do that at all.
Ms. Woolsey XE "Ms. Woolsey" . Well, it depends on who is reading it, because as far as I can
see it, it makes it easier for the employer to skin under the standards.
When you look at strengthening and what we need to be doing, I mean, we need to be doing
something with ergonomics. And there's no question that employees in these high-tech companies,
unless they're sending everything overseas now to get their printed circuit boards filled or
whatever, with their tendonitis, they're getting it. And I don't see anything in the law that says
we're going to take care of ergonomics.
I mean, it's like we're going in the wrong direction. We want to undo what we have that
works, and we refuse to strengthen the things that we need to work on.
I'm sorry. I see that my time is completed.
Chairman Norwood XE "Chairman Norwood" . I thank the gentlewoman.
I'd just like to make it very clear that this bill does not eliminate the 15 days citation
response period. Remember, the citation is given. The 15 days stays in the law. What it does is
make it a little more reasonable, in case from time to time there's a legitimate reason why
somebody didn't respond. And what that does is give them an opportunity to have their day in
court. I can't believe anybody would basically believe that not true.
Secondly, I don't think there's going to be any deaths in the workplace from health or safety
because we're going from three commissioners to five.
All right, let me tell you, I might argue but not with Ms. Majette, because she's from my
home state. You are recognized for five minutes.
Ms. Majette XE "Ms. Majette" . Thank you, Mr. Chairman. I'm glad you recognized me.
And thank you, gentlemen, for being here and for your interest in trying to resolve issues that you
see are impeding the ability of the Agency to do what it needs to do.
Now, in the interest of full disclosure, I need to let you know that I'm a former
administrative law judge from the Worker's Compensation Board in the State of Georgia, and
served in that capacity for about two weeks shy of a year before then-Governor Miller, now
Senator Miller, appointed me to the State Court of De Kalb County, and I served there for almost
10 years before resigning to run for Congress. And so I'm very interested in this particular issue,
and particularly some of the language that's included here in the bill H.R. 1583.
I'll begin with Mr. Sapper?
Mr. Sapper XE "Mr. Sapper" . Yes, ma'am.
Ms. Majette XE "Ms. Majette" . Now, you stated during your testimony that you were aware
of a case, at least one case, that's been pending for eight years?
Mr. Sapper XE "Mr. Sapper" . Almost eight years.
Ms. Majette XE "Ms. Majette" . And as far as you understand that, has that case not moved
because of the lack of enough people on the Commission to consider it, or is there some other
reason? Because I guess I would think that over the period of eight years, there would have been
some point in time at which there were enough people to make a decision on that case.
Mr. Sapper XE "Mr. Sapper" . Well, I'm only an outside observer, as you understand. But it
seems obvious that the instability of the Review Commission's membership has prevented that case
from being decided.
It is a difficult case. It's a large case. And it exemplifies perfectly the problems with the Review
Commission having only three members. By the time they get up to speed on the case, they lose
another member.
They have a lot of cases like this before them. This is not an easy job for them to do. I have
a lot of admiration. By the way, that's eight years pending before the review commissioners. That
doesn't even count the time before the ALJ.
Ms. Majette XE "Ms. Majette" . All right, thank you.
And regarding Section 32, the Award of Attorneys' Fees and Costs, as I understand it,
reading the bill, the language would not give any regard to whether or not the position of the
Secretary was substantially justified, or whether special circumstances make an award unjust.
So I guess putting that another way, it would be an automatic award of attorneys' fees to the
prevailing party, the employer?
Mr. Sapper XE "Mr. Sapper" . Yes, but to the very tiniest employers. If they win, they
collect their attorneys' fees if they're really tiny, as I understand it.
Ms. Majette XE "Ms. Majette" . And would you suggest that the converse of that should be
true, that if it's found that an employer was at fault, then the employer should pay those costs, that
there should be some additional penalty for the value of the attorneys' fees?
Mr. Sapper XE "Mr. Sapper" . No, I don't. I think the United States Government attorneys
have an enormous advantage over any employer. They are not paid by the hour. They have
enormous leverage. I don't think we should discourage employers from seeking justice in that kind
of a case. I think if you adopted such a provision, small employers would never seek justice.
Ms. Majette XE "Ms. Majette" . And so is it your opinion that OSHA has sufficient resources
to monitor and to pursue these cases to the point at which a decision is made? And I'm asking the
question in light of what I understand the statistics are, that OSHA only has 2,214 inspectors that
cover 6 million workplaces, and that the number of employees covered by inspections decreased by
nearly 20 percent between fiscal year 1999 and 2002. And the average number of hours per
inspection decreased from 22 to 19.1 for safety inspections, and 40 to 32.7 for health inspections,
and that the number of willful violations decreased.
I mean, with all of that, do you think that that creates a level playing field, or unlevel
playing field, that favors the employer?
Mr. Sapper XE "Mr. Sapper" . I don't think it favors the employer at all, Madam. I think that
it is very difficult for an employer to get his side heard before the Review Commission if he can't
afford to pay a lawyer.
Also, I would point out that the Congressional Budget Office has estimated that the cost of
this section of the bill would be extremely modest, only about $3 million a year. Spread over the
entire United States economy, that's a very small price to pay to assure the smallest employers
some enforcement fairness.
Ms. Majette XE "Ms. Majette" . And what do you think the price should be for an employee
who is permanently injured or killed as a result of the violations that occur when an employer has
violated the rules? You're saying that the cost of implementing this is fairly minimal. But the other
side of that is that there is a significant cost to employees who are injured, and particularly when
the inspections may not be done so that the employee has some recourse against the employer.
What's the value of that? What do you think we should do about that?
Mr. Sapper XE "Mr. Sapper" . Actually, Madam, I would say that this provision of the bill
would not affect employee rights at all, nor would it diminish employee safety and health at all.
You're talking about the very smallest employers. And they have to win in order to collect. They
have to be right in order to collect.
Also, to make another point about a previous question, if you don't mind.
Ms. Majette XE "Ms. Majette" . Well, let me ask if the Chair will allow. I see my time is up.
Mrs. Biggert XE "Mrs. Biggert" . [Presiding] The gentlewoman's time has expired.
The gentleman from New Jersey, Mr. Payne?
Mr. Payne XE "Mr. Payne" . Yes. I'll yield a moment to the lady, if you would like to
continue. Is this an answer you're looking for?
Ms. Majette XE "Ms. Majette" . Yes. Go ahead, please.
Mr. Sapper XE "Mr. Sapper" . Thank you, Madam.
Ms. Majette XE "Ms. Majette" . Thank you for yielding, Mr. Payne.
Mr. Sapper XE "Mr. Sapper" . Let's keep in mind that it's the OSHA lawyers that are bringing
this case. They're prosecuting. They're prosecutors. We should give them an incentive to spend the
extra time to focus on the case against the tiniest employers, and make sure that their time is being
correctly spent.
Right now, they have no incentive to do so; none. If they win, they collect penalties. If they
lose, nobody pays the employers time and attorneys' fees. They have no incentive to focus heavily
on the case against a small employer.
Thank you, Madam.
Ms. Majette XE "Ms. Majette" . But maybe I'm missing the point. It seems to me that you're
suggesting that the OSHA attorneys are spending inordinate amounts of time going after smaller
employers?
Mr. Sapper XE "Mr. Sapper" . I'm saying that they have no incentive to closely examine the
case against the small employer. I'm saying that they have no more an incentive to closely examine
the case against the small employer than any other employer. And they should be given that
incentive. This bill would just give them an extremely modest incentive just to look at the case a
little bit more closely.
And I've seen them bring cases into court and they really don't look at the case. They really
don't.
Ms. Majette XE "Ms. Majette" . All right.
Mr. Payne XE "Mr. Payne" . Thank you, just reclaiming my time. I've been in and out, as you
can see. But your opinion is that you feel that OSHA is not doing the type of job it's capable of
doing.
Mr. Sapper XE "Mr. Sapper" . Well, sir, as I used to tell my students, the employees of
OSHA are good people. They do about as good a job as we could reasonably expect. I can't say
that they're not trying as hard as they can. I think they are. I think they have the amount of
prosecutorial zealousness that they're supposed to have. It just needs to be controlled, and it's not
controlled now. They do about as good a job as you can reasonably expect.
Mr. Payne XE "Mr. Payne" . Okay, great.
One of my concerns is that it seems like in the last decade or so, there has been a weakening
of OSHA, in my opinion. We have not had the requisite number of investigators, et cetera, that I
think we need. I recall when chemicals were not even required to be labeled at one point in time,
and OSHA came, and there was a tremendous opposition to that. So there's been opposition to
OSHA in general that I've found in small businesses. And I would just hope that we could find
some way to protect the worker, to strengthen OSHA.
I did hear the gentleman from the United Steelworkers testify, and I would like to associate
myself with your remarks, Mr. Molovich. And with that, I'll yield. I think that the Subcommittee
wants to adjourn, so I won't ask any further questions. Thank you.
Mrs. Biggert XE "Mrs. Biggert" . The gentleman yields back.
The gentlewoman from Tennessee, Mrs. Blackburn, is recognized for five minutes.
Mrs. Blackburn XE "Mrs. Blackburn" . Thank you very much, Madam Chairman. And I
apologize. We've had two hearings going on. I've been in Government Reform, for one. But I
thank you all for submitting testimony ahead of time and allowing us to work and prepare.
I come from Tennessee, as the Chairwoman said, and we have a lot of small businesses
there. And sometimes I think that we have a love/hate relationship going on with some of these
rules and regulations.
Mr. Sapper, I will begin with you, if you will, please, sir. You state in your testimony that
allowing the Review Commission to make exceptions to the 15-day deadline for filing a notice of
contest would, and I quote, "Give to employers the same right possessed by nearly every other
litigant in the U.S." What are these rights, and why are they different for OSHA?
Mr. Sapper XE "Mr. Sapper" . The right is to seek relief from a default judgment. If
somebody files a lawsuit against you, and for some reason, you don't file an answer on time and a
default judgment is entered against you, you can go into court, show good reason why you didn't
answer on time, and be relieved of the default judgment.
Today, because of the Second Circuit decision, we don't have that right under the
Occupational Safety and Health Act. There's no reason for this inequality.
The reason that we have it is because of some very peculiar language in the Occupational
Safety and Health Act, language that I believe was really written to address a different problem, but
it's been, shall we say, turned around to create this irrational result.
I might also add that the standard for relief in this bill, although it's going to solve that
problem, is actually less generous than that afforded to parties in other cases throughout the
country. So it's still a tight standard. It's going to be hard to meet. But at least it's a standard that's
realistic. At least it will address excusable neglect cases. The current case law does not even grant
you that right now.
Mrs. Blackburn XE "Mrs. Blackburn" . So what you're saying is if a small employer is
excused for not filing in a timely fashion under 60(b), then what it means is that they will have a
day in court, and these employers still could be found to be guilty of having violated the law,
correct?
Mr. Sapper XE "Mr. Sapper" . Absolutely right.
Mrs. Blackburn XE "Mrs. Blackburn" . All right. And if all the employer gets under the use
of 60(b) is a day in court, it does not seem that OSHA would be affected by this change at all,
except for perhaps having to handle a few extra cases per year that otherwise would have been
disposed of using a legal technicality; is that correct?
Mr. Sapper XE "Mr. Sapper" . That's absolutely right, Madam.
Mrs. Blackburn XE "Mrs. Blackburn" . Okay. Thank you.
Mrs. Biggert XE "Mrs. Biggert" . The gentlewoman yields back? Thank you.
I would like to thank both the witnesses and the Members for their valuable time and
participation. If there's no further business, the Subcommittee stands adjourned.
Whereupon, at 4:08 p.m., the Subcommittee was adjourned.
APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN
CHARLIE NORWOOD, SUBCOMMITTEE ON WORKFORCE
PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE
APPENDIX B - WRITTEN STATEMENT OF BRIAN LANDON,
OWNER/OPERATOR, LANDON'S CAR WASH AND LAUNDRY, CANTON,
PA, TESTIFYING ON BEHALF OF THE NATIONAL FEDERATION OF
INDEPENDENT BUSINESS (NFIB), WASHINGTON, D.C.
APPENDIX C - WRITTEN STATEMENT OF EPHRAIM COHEN, SMALL
BUSINESS OWNER
APPENDIX D - WRITTEN STATEMENT OF JOHN MOLOVICH, SAFETY
AND HEALTH SPECIALIST, TESTIFYING ON BEHALF OF THE UNITED
STEELWORKERS OF AMERICA (USWA), AFL-CIO, PITTSBURGH, PA
APPENDIX E - WRITTEN STATEMENT OF ARTHUR G. SAPPER, ESQ.,
MCDERMOTT, WILL & EMERY, OSHA PRACTICE GROUP,
WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE U.S. CHAMBER
OF COMMERCE, WASHINGTON, D.C.
APPENDIX F - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM WENDY LECHNER, PRINTING INDUSTRIES OF
AMERICA, INC., ALEXANDRIA, VA, JUNE 12, 2003
APPENDIX G - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM RICHARD A. JENNISON, BRICK INDUSTRY
ASSOCIATION, RESTON, VA, JUNE 13, 2003
APPENDIX H - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM ROBB MACKIE, AMERICAN BAKERS
ASSOCIATION, WASHINGTON, D.C., JUNE 16, 2003
APPENDIX I - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM DANIELLE RINGWOOD, ASSOCIATED BUILDERS
AND CONTRACTORS, INC., ARLINGTON, VA, JUNE 16, 2003
APPENDIX J - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM BOB STALLMAN, THE AMERICAN FARM BUREAU
FEDERATION, JUNE 16, 2003
APPENDIX K - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM KELLY M. KRAUSER, THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, ALEXANDRIA, VA, JUNE 16, 2003
APPENDIX L - SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN
NORWOOD, FROM THE OSHA FAIRNESS COALITION, JUNE 16, 2003
APPENDIX M - SUBMITTED FOR THE RECORD, LETTER TO
CHAIRMAN NORWOOD, FROM JIM WHITTINGHILL, AMERICAN
TRUCKING ASSOCIATIONS, WASHINGTON, D.C., JUNE 17, 2003
APPENDIX N - SUBMITTED FOR THE RECORD, BRIEF OF THE AMICUS
CURIAE, THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS
LEGAL FOUNDATION, OSHRC DOCKET NO. 01-0830
APPENDIX O - SUBMITTED FOR THE RECORD, BRIEF OF THE AMICUS
CURIAE, THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS
AND THE KITCHEN CABINET MANUFACTURERS ASSOCIATION, IN
SUPPORT OF RUSSELL P. LE FROIS BUILDERS, INC., FOR
AFFIRMANCE, 00-4057, IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, JULY 21, 2000
APPENDIX P - SUBMITTED FOR THE RECORD, "MOURN FOR THE
DEAD - FIGHT FOR THE LIVING", THE NEW YORK TIMES
194
Table of Indexes
Chairman Norwood, 1, 7, 10, 12, 14, 17, 18, 19, 22, 24, 26
Mr. Cohen, 18
Mr. Landon, 19, 20
Mr. Molovich, 12, 21, 23, 25
Mr. Owens, 19, 20, 21, 22
Mr. Payne, 28, 29
Mr. Sapper, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30
Mrs. Biggert, 22, 23, 24, 28, 29, 30
Mrs. Blackburn, 29, 30
Ms. Majette, 26, 27, 28, 29
Ms. Woolsey, 24, 25
cxcii
191