House OSHA Hearing: What You Missed and What It Meant. Part 1

In a fiery rebuttal of Republican and employer attacks on OSHA during the Obama administration, former Assistant Secretary Dr. David Michaels yesterday rejected assertions that OSHA had focused only on confrontation over cooperation, and or that the agency had flouted the law and good safety practice when it came to enforcement, standards and media campaigns.

At a House of Representatives hearing, Michaels pointed out that there is no evidence that OSHA standards kill jobs. The truth is that “OSHA standards don’t kill jobs. They stop jobs from killing workers.”  OSHA standards are really “worker protections” and “When you hear someone talk about rolling back OSHA regulations, they’re really talking about endangering workers.”

 OSHA standards don’t kill jobs. They stop jobs from killing workers.

And Michaels described the costs of not issuing standards.

There is much talk today of the costs of regulations to employers. Forgotten in this conversation is the cost to workers and their families of not creating these protections. These costs are enormous, and they are paid not just in dollars. They are paid in lives.

Michaels also pushed back against Committee Chairman Bradley Byrne’s contention that the Volks Rule, an OSHA recordkeeping rule that was repealed by Congress under the Congressional Review Act, “had nothing to do with safety.” The Volks rule (which you can read all about here) allowed OSHA to enforce a requirement that companies maintain accurate records for a period of 5 years.  Repeal of the rule makes it impossible for OSHA to enforce OSHA’s recordkeeping requirements. The repeal was “really a disaster,” according to Michaels.  “By not being able to enforce accurate records, many workers will get hurt.”

Yesterday’s hearing by the House Subcommittee on Workforce Protections was titled “A More Effective and Collaborative OSHA: A View from Stakeholders.” The hearing starred, in order of appearance: Mr. J. Gary Hill representing the National Association of Home Builders, Mr. Peter Gerstenberger representing the Tree Care Industry Association, Dr. David Michaels, of the George Washington University (and former Assistant Secretary of Labor,) and finally, Mr. Eric Hobbs, representing the Chamber of Commerce. You can read all of the written testimony by clicking on the names above. You can watch the entire hearing here:

Highlights

A lot went down at this hearing and because it touched on a variety of important themes, I will take more than one post to discuss the issues. I fear if I try in one post to address all of the issues raised in the hearing, it will take an hour to read.

While this hearing was supposed to focus on how to make OSHA “more effective and collaborative,” it consisted mostly of a vigorous, but generally inaccurate attack on OSHA during the Obama administration, alleging that the agency had essentially dropped compliance assistance in favor of all enforcement and all standards, all the time.  

Much of the Republican argument was based on facts that didn’t exist. Chairman of the sub-committee, Brendon Byrne (R-AL), stated, for example,  that he was disturbed when he found that OSHA under the Obama administration had taken money our of the compliance assistance program and “shoved it over to enforcement.”

This never happened as a glance at the budget over the last 10 years would show. The only year that the Compliance Assistance budget declined significantly during the Obama administration was in 2013 — the sequestration year when the entire federal budget was cut. And the enforcement budget never benefited from robbing the compliance assistance budget. In fact, the enforcement budget was never increased at all after 2010. In any case, with a Republican Congress in control, it’s Congress, not OSHA that determines the budget and sends it to the President for his signature. 

To summarize the testimony briefly, Hill, representing the Home Builders and speaking for the construction industry in general, described all of the compliance assistance activities OSHA should be doing to increase its collaboration with employers. Mostly good ideas; in fact, OSHA is already doing most of them. and was doing them throughout the last administration.

Gerstenberger’s mission was to get OSHA to issue a standard covering tree care worker or arborists and he provided such a robust argument in favor of an OSHA Tree Care (or Arborist) standard — and, by extension for standards overall — that the Republicans would have been justified in declaring him to be a hostile witness.

To make matters worse for the Republicans, Gerstenberger even give a ringing and unsolicited endorsement of the Susan Harwood Grant Program which seems to have left the Republican members flummoxed.

We have been the thankful recipient of many Harwood grants in the past and used that money to produce a lot of effective training and convert a lot of folks in the industry open eyes and change attitudes of folks in the industry.  We’d love the opportunity for that to continue. To do meaningful training for those in our industry.

The Trump administration request in the FY 2018 and FY 2019 budgets to eliminate the Harwood program, and the House agreed. Happily the Senate voted to maintain the program for FY 2018. 

Hobbes drew the short straw of representing the Chamber of Commerce, a task I wouldn’t wish on my worst enemy. The written version of the Chambers’ testimony reminded me of the famous words of author Mary McCarthy (describing a piece that her rival Lillian Hellman had written), saying “every word she writes is a lie, including ‘and’ and ‘the’.”

I will save most of my response to the Chamber’s testimony for another post where I can more fully discuss their issues under the Obama administration with OSHA enforcement, competence of OSHA inspectors, the need for OSHA standards, the basis for OSHA standards, OSHA’s use of press releases, OSHA’s use of the General Duty Clause, OSHA’s treatment of VPP, and a number of other smaller issues.

Straw Men: If I only had a brain…

Part of the Republicans’ strategy was setting up “straw men,” statements so exaggerated that they are easy to knock over. For example, Hobbes warned that “OSHA should be guided more by the question, “How can we help employers keep employees safe?” than by the question, “How can we make sure we are making examples of bad employers, or catching as many bad employers as possible?”

Now I’ve never known anyone in OSHA — in any written statement, press interview, press release, hearing testimony or overheard conversation — state that OSHA’s focus should be on “catching as many bad employers as possible,” rather than keeping employees safe.  Catching “bad” employers — e.g. employers who are subjecting their employees to unsafe working conditions — especially when they know better, or should know better — is not the end itself, but a means to an end; that end being keeping workers safe.

Their goal is to turn OSHA on its head — putting compliance assistance over the main foundation of the law: issuing protective standards and using the enforcement process to ensure that workers are not endangered by violation of those standards. As Hobbes said,

OSHA’s overall strategy for improving workplace safety needs to change as well. Enforcement always will be, and must be, a critical part of OSHA’s agenda, but it cannot serve as OSHA’s only, or even primary, method for encouraging employers to improve workplace safety.”

Michaels, of course, did not agree:,

The OSHAct established standard setting and enforcement as the twin foundations of OSHA. These two tools are to be supplemented by compliance assistance, outreach, and other activities. And there is compelling evidence that this formula works — that both strong standards and OSHA inspections are effective in preventing work injuries.

Comic Relief: Regulatory Tsunami

But it wasn’t all dry and boring. Hill earned the award for the Funniest Line of the Day when he declared that: “OSHA has unleashed a “regulatory tsunami” on the construction industry—a significant growth in the number and scope of regulations,”

The regulatory “tsunami’ could more accurately have been called a regulatory ripple.

Now we used to hear the “tsunami” reference now and again when we were at OSHA. And it never failed to crack the room up. Because the regulatory “tsunami’ that Hill is referring to could more accurately have been called a regulatory ripple.

One our biggest frustrations leading OSHA through eight years of the Obama administration was how difficult, resource-intensive and time-consuming it was to issue any new standards. The Government Accounting Office estimated that it took OSHA an average of 7 years to issue a new standard, but it took almost 20 years for the silica standard to be issued (more than 40 years after NIOSH recommended revision.)  The fact is — and we were not proud of this — the Obama administration issued only eight major rules during its eight years, fewer than any previous administration with the exception of the George W. Bush administration. That’s fewer than Reagan, and fewer than Carter or Bush I, even though they only had one four-year term each.

And one more thing. Only three of the major standards issued during the Obama administration directly affected the construction industry: Cranes and Derricks, Confined Spaces in Construction and Silica, and none of them had a significant effect on the home building industry.  The Cranes and Derricks was a result of negotiated rulemaking that presumably left all parties happy. 

A very, very tiny tsunami.

Fireworks

The closest the hearing came to real fireworks was when Donald Norcross (D-NJ), apparently got fed up with the Republican witnesses’ complaints that compliance with safety standards was so complicated and difficult, especially for small businesses.

Safety doesn’t know the difference whether you’re a one-man shop or a 100 man shop.  Because we hear time after time small business is over regulated. When it comes to safety its not OK for small business to let their employees die, but not for a big business. There is no difference! Let me say again, there’s no difference in the size of a company when it comes to employee safety. (around minute 1:35)

“When it comes to safety its not OK for small business to let their employees die, but not for a big business. There’s no difference in the size of a company when it comes to employee safety. ” — Congressman Donald Norcross

And finally

Summing up, Michaels said:

In summary, it is a false choice to say that OSHA must choose between strong enforcement and robust compliance assistance. OSHA must do both and during the Obama Administration, OSHA did both. Substituting voluntary programs for life-saving standards and a strong enforcement program would be a dereliction of duty and lead to more workers being hurt.

I will leave it here for now. I’ll have several more things to say about issues raised at the hearing, so stay tuned. 

Part 2: Does the Rise in 2016 Workplace Fatalities Mean that OSHA Failed?