With the end of 2017 comes the end of the 10th month of new, revised, rejuvenated version of Confined Space. A lot has happened over the last year. Below are the stories that put workplace safety and health into a political and historical context. But, of course, the real story — and in some ways, the only story that matters, is that 14 workers are killed every day in American workplaces and many more than that die every day for work-related occupational diseases.
The new administration hasn’t so far inspired confidence that it’s ready to deal with those problems. We just found out that last year, for the third year in a row, workplace fatalities have increased. But the only substantive response we heard from Acting Assistant Secretary Loren Sweatt was to address the opioid crisis.
It’s no secret that OSHA has a lot of extremely difficult problems to deal with. An inadequate number of staff supported by a tiny budget that hasn’t been increased since 2010, a crippling hiring freeze that has only been partially lifted and is causing the enforcement program to “fall apart at the seams,” a broken system for updating old standards or issuing new protections, a whistleblower program, that despite significant improvements, still falls far short of protecting workers from retaliation for exercising their rights under the laws. How is OSHA addressing these issues or looking for solutions? By holding two day-long sessions on how to improve its Voluntary Protection Programs.
So, with that context, let’s take a short look back at the past year before doubling down on what needs to be done in 2018 to protect the health and lives of the working people of this country.
- Election of Donald Trump: As I wrote at Trump’s 100-day mark, “We know that many working people — even union members — voted for the tough-talking guy in the red hat who promised to be the jobs President. What they will witness instead is a tragic betrayal of the promise of good jobs and for many, a painful reminder that they did not vote more more workplace death and disability.” Trump’s appointments, his anti-protection regulatory policy, his attacks on workers through the Labor Department and NLRB, Steve Bannon’s still existing plan to “deconstruct the regulatory state,” the President’s budget proposal, his attacks on dedicated, hard-working public employees, etc., etc., show how hollow his promises were to stand up for working people in this country.
- Alex Acosta: Acosta, I’ve often said “is not terrible” on OSHA issues so far, which actually says a lot considering Trump’s other Cabinet heads (cough, cough Scott Pruitt, Ryan Zinke). During his Senate budget hearing, he advocated several times for willful citations and even criminal prosecution for employers who knowingly or repeatedly endanger workers. DOL also successfully defended OSHA’s silica standard in court.
On the other hand, Acosta wins the Confined Space award for the “Most Inexplicable Bone-headed Action by an Otherwise Seemingly Intelligent Cabinet Head” when he named Ronald Reagan to the Labor Hall of Honor. Given Reagan’s legacy with workers, unions and OSHA, one struggles to think of appropriate comparisons: Appointing Hitler to Israel’s list of “Righteous among the Nations,” naming Harvey Weinstein to head the National Organization for Women? This can’t be seen as anything but a giant “fu*k you” to the American labor movement and one wonders if it was more Steve Bannon’s idea than Acosta’s. And I’m not even going into his attempts to weaken the rights of workers related to tips that restaurant employees are allowed to keep or the ability of consumer to get fair and accurate investment advice.
- New Leadership at OSHA and MSHA: Assistant Secretary-in-Waiting Scott Mugno of Federal Express fame, last we heard, had been voted out of committee after a rather lackluster performance at his confirmation hearing, but still had not been confirmed by the full Senate. It’s not clear when he will be confirmed by the Senate, but this administration already holds the record for the longest period of time at the beginning of a new administration with no Assistant Secretary for OSHA. (Previous record was held by Dr. David Michaels, sworn in December 9, 2009.)
Meanwhile, OSHA is not completely without leadership. Loren Sweatt, the incredible disappearing, home alone Deputy Assistant Secretary and acting OSHA head came to the agency in July. From what I can discern, she hasn’t made a speech or granted an interview in the five months she’s headed the agency. But even in her silence, she has taken some unfortunate actions such as replacing the names of workers killed in the workplace on OSHA’s home page with examples of “OSHA WORKING WITH EMPLOYERS” at the urging of the Chamber of Commerce, and her rejection of sensible GAO recommendations on poultry worker safety.
There’s more progress at MSHA where, in November, the Senate voted 52-46 along party lines to confirm David Zatezalo as Assistant Secretary of Labor for Mine Safety. Zatezalo will how head up the Mine Safety and Health Administration with which he has some familiarity as his former company, Rhino Resources, was a frequent flier on MSHA’s enforcement agenda.
- Best Journalism/Worst Journalism: It was the best of years and the worst of years for journalism covering workplace safety and health topics — happily a lot more best than worst. If you’ve missed any of the pieces I’ve mentioned here, go back an read them. Your time will be well rewarded.
Starting the list of the best is Peter Waldman wrote two of the best pieces this year. The first, published last March, Inside Alabama’s Auto Jobs Boom: Cheap Wages, Little Training, Crushed Limbs, was a tragic story of auto part factory workers, which, I summarized here. In the second piece, “America’s Worst Graveyard Shift Is Grinding Up Workers,”, which I summarized here, Waldman, along with Kartikay Mehrotra, describes the horrible work-lives of a beleaguered population of mostly invisible immigrant workers who labor all night, in working conditions straight from the 1800’s, cleaning the nation’s slaughterhouses and animal processing plants. Also outstanding work by Audrey Dutton of the Idaho Statesman (reviewed here on farmworker hazards and here on residential construction), veteran investigative reporter Jim Morris at the Center for Public Integrity who wrote amazing and tragic article, Death in the Trench, which I covered here, about the infuriatingly high number of completely preventable deaths in trench collapses that continue to happen every year. Jennifer Gollan of Reveal (and the Center for Investigative Reporting) who has done excellent reporting on worker safety issues, most recently about a number of deaths at Goodyear, And a disturbing article by Mike Grabell at Pro Publica about poultry processors taking advantage of immigrant workers. And from north of the border, we have this this amazing article about the hazards suffered by temporary employees by Toronto Star Reporters Sara Mojtehedzadeh and Brendan Kennedy, which I summarized here.
Also, honorable mentions to the always-excellent labor coverage of Ken Ward at the Charleston Gazette and Steve Greenhouse, who has allegedly retired from the New York Times, but happily keeps writing excellent articles on labor issues and is an active Twitter contributor. Also admirable are Washington Post reporters Juliet Eilperin who has written exhaustively about attacks on the missions of OSHA and EPA Tim Craig for his story on dairy workers, the always great work of Mark Collette and Matt Dempsey of the Houston Chronicle, and Alexandra Berzon of the Wall St. Journal. Mike Hendricks of the Kansas City Star, told a heartbreaking story (followed by a subsequent editorial) of the death of DJ Meyer in a trench collapse, Kathleen McGrory and her colleagues at the Tampa Bay Times published a tragic investigative piece about the preventable incident that killed five workers at Tampa Electric earlier this year, Barry Meier at the New York Times for ongoing coverage of Trump’s attacks on workers, Ian Kullgren for a piece on health and safety in agriculture, labor (and business) reporter Jane Von Bergen who recently retired from the Philadelphia Inquirer, labor reporter Mike Elk of Payday Report, and David Kay Johnston who follows worker issues at DC Report.And while they’re not exactly journalists, I also want to take this opportunity to some former colleagues who are continuing the battle for worker justice. My old OSHA colleagues David Michaels, now at George Washington University and Debbie Berkowitz, now working at the National Employment Law Project, both of whom write prolifically in defense of workers’ right to a safe workplace. And, of course, Sharon Block, Executive Director, Labor and Worklife Program at Harvard Law School who writes frequently in OnLabor (along with many colleagues), and of course former Labor Deputy Secretary and rising pundit Chris Lu who recently wrote my favorite Twitter post:
A reporter asked me why Obama aides are so actively fighting Trump. Here’s why: our commitment to greater opportunity & fairness didn’t end on Jan. 20. As Obama often says, the arc of the moral universe bends towards justice, but we all have to help bend it. Let’s fight on in ’18
— Chris Lu (@ChrisLu44) December 31, 2017
The worst journalism of the year award has to go to Times reporter Steve Eder for his article: “One Apple Orchard and 5,000 Government Rules” which I critiqued here. Sorry Steve. But the good news is that I am a strong believer in redemption. There’s always 2018.
The danger of making a list like this is that I’ve inevitably forgotten someone amazing. So if I’ve forgotten you, write me. Brag about yourself. I’ll make it up to you.
- Appeals Court Upholds Silica Standard: Thousands of construction, foundry and other workers will live longer lives because of OSHA’s silica standard which the DC Court of Appeals upheld last month against attacks from a coalition led by the Chamber of Commerce. “We reject all of industry’s challenges,” the court stated. Need I say more?
- Near Death of OSHA Press Releases: I’ve written quite a bit about how OSHA almost completely ceased to issue press releases about big enforcement actions for most of last year, reversing the policy of all previous administrations, Democratic or Republican. Peter Waldman of Bloomberg Businessweek sums up the situation in a recent article: “OSHA’s power has always lain more in its capacity to shame than punish. The fines for serious safety violations seldom exceed $20,000, a trifle for most manufacturers. Now OSHA doesn’t shame much, either. In the past, the agency called out safety violators in press announcements, often resulting in embarrassing hometown headlines about injured workers. But this year, under President Trump, OSHA has issued 121 press releases, compared with 546 last year under President Obama.” Despite anecdotal and academic evidence that press releases are effective in pressuring employers to make their workplaces safe, the Trump administration bought the Chamber of Commerce’s argument that press releases somehow unfairly and ineffectively shame employers. But to quote Shakespeare, “The lady doth protest too much, methinks.” If press releases weren’t so effective in improving employer behavior, why all the protest? Recently, however, the antiquated practice of issuing OSHA press releases seem to be making a recovery.
- Resurrection from the dead of the Chemical Safety Board and the Susan Harwood Training Grant Program: The entire health and safety community — labor and business — were shocked when Trump’s FY 2018 budget proposal inexplicably called for the elimination of the Chemical Safety Board. Not so surprising was the administration’s plan to eliminate OSHA’s small, but highly effective Susan Harwood Training Grant Program that conservatives love to hate, despite the fact (or maybe because) the grants focus on vulnerable workers and employees of small businesses.
While the FY 2018 Budget is not yet final (and at this rate may not be finalized until 2025), it appears that the Chemical Safety Board and OSHA’s Susan Harwood Training Grant Program will survive for yet another year despite the Trump administration’s proposals. Not even the Republican-controlled House of Representatives thought it would be a good idea to kill the CSB, the only agency that conducts independent, root cause investigations of chemical plant disasters, and although the House bill called for the Harwood program to be shot at dawn, Republicans and Democrats in the Senate agreed, on a bipartisan basis, that vulnerable workers and small businesses actually benefit from the hands-on training provided by the Harwood program.
- Regulatory Rollback: Trump boasts on a regular basis about how one of his greatest achievements is getting the regulatory monkey off the back of business. Of course, as I’ve often said, one person’s “burdensome” regulation, is another person’s life-saving protection.
On January 30, 2017, Trump signed Executive Order 13771, which requires that for every new regulatory protection issued, two existing safeguards must be repealed. AFL-CIO Health and Safety Director Peg Seminario did the math for us. The Executive Order “says for every new protection issued, two protections must be taken off the books. I say 1 minus 2 is a negative number. That means less protection for workers, and that’s not good.”How this “one in/two out” process will work, or whether it’s in violation of the Occupational Safety and Health Act (as well as other laws) remains to be seen. And on February 24, Trump signed another Executive Order requiring agencies to review existing regulations and “make recommendations to the agency head regarding their repeal, replacement, or modification.”
Unlike EPA, rollbacks at OSHA have been minimal. Most painful was the repeal of the “Volks Rule” using the Congressional Review Act, which will make virtually impossible any future significant citations for cheating on recordkeeping. And Congress also repealed the Fair Pay and Safe Workplaces rule that would have required federal contractors to report any labor violations and work to correct them.
While OSHA effectively defended the silica standard in court, the Agency has proposed a rollback of OSHA’s beryllium rule as it applies to construction and maritime workers. And we’re waiting to see what happens with a proposal to modify OSHA’s “electronic recordkeeping” regulation which requires some employers to send injury and illness records into OSHA.
The future of OSHA rulemaking is harder to see, especially with the President’s Executive Orders. Or maybe not so much “hard to see.” Maybe nothing to see. The good news is that most of OSHA’s major rulemakings — infectious diseases, workplace violence and an update of the Process Safety Management standard — remain on OSHA’s regulatory agenda. How much progress will be made on these in the next three years? Las Vegas odds say “not much.”
- Worst Cabinet Heads: This being primarily a workplace safety blog, it might be more appropriate to focus on criticizing the Secretary of Labor, but unfortunately, Alex Acosta doesn’t come close to the low crimes and misdemeanors of his fellow cabinet heads like Scott Pruitt at EPA and Ryan Zinke at Interior who also have some authority over workplace safety. There are many out there who will do a better job than I in recounting their anti-environment, anti-reason, anti-agency mission efforts of the past year, , but a few things stand out.
Zinke, who rode a horse to his first day on the job, has re-instituted the non-existent, but nevertheless long-standing tradition of lowering the Secretary-of-Interior Flag when he leaves the building, and raising it when he re-enters (No one before him even knew there was a Secretary of the Interior Flag. Or that you could ride horses through downtown Washington DC during rush hour.) Aside from generating creative ideas for self-ridicule, Zinke’s Department has also done some real damage by shrinking two national monuments (justification: they were created by Obama), weakening offshore drilling regulations (Justification: they were created by Obama) and ending two National Academy of Sciences studies on the impact of mountaintop removal strip mining on surrounding communities and offshore oil and gas operations. (Justification: they were initiated by Obama). Reports that Yosemite, the Grand Canyon and Yellowstone have enrolled in the Witness Protection Program have not been confirmed.
I’d need many more pages to write about everything that’s wrong with Scott Pruitt’s administration of the Environmental Protection Agency (although the Washington Post does a better job.) Instead, I’m going to try to limit myself to Pruitt’s “reconsideration” of the Obama administration’s Risk Management Program rule to protect communities surrounding chemical facilities. The reason: industry pressure — but using the excuse that the regulations were allegedly based on a bogus Bureau of Alcohol, Tobacco and Firearms “finding” that the catastrophic West Texas fertilizer fire and explosion were caused by arson. I don’t have time to even discuss how Pruitt spends most of his time meeting with industry reps how strange it is to have the head of the Environmental Protection Agency traveling oversees to serve “as one of the most outspoken salesmen for the nation’s fossil fuel industry.” I also won’t talk about how Pruitt, being the very, very, very important person he is “is accompanied 24/7 by a security detail — a setup that has tripled past staffing requirements. He has installed biometric locks on his office doors, as well as a $25,000 soundproof booth from which he can make secure calls to the White House.”
Makes Alex Acosta seem like a reasonable, responsible, law-abiding person. So, kudos for that.
- Return of Confined Space: And finally, as those of you reading this know, the most significant workplace safety and health event of 2017 was the return of Confined Space. Although I was headed out the door of DOL anyway (an occupational hazard the comes with “serving at the pleasure of the President”), the election of the orange-haired, racist, billionaire buffoon, supported by his anti-worker minions in his Cabinet and in Congress, necessitated a voice to keep track of what’s happening around workplace safety. (That, and I couldn’t find anything more fun to do with my time.) The election of an anti-worker, anti-regulatory President and Congress made the environment ripe for Confined Space to rise again, this time under a URL that was easier for me to remember. Over that time, the staff of Confined Space (me) has published more than 300 posts. It’s more a work of love than profit, but it keeps me off the streets, and keeps me from kicking the dogs and throwing things at the TV whenever I have the misfortune to hear the day’s news.
So, thank you all, faithful readers for your readership and support. Don’t forget the comments link below to supplement or criticize what I write. And keep those suggestions and ideas coming.
Oh, and Happy New Year everyone. Let’s make 2018 better than 2017 — especially November 2018.