VIII (A) Employees of respondent affected by the violation described in paragraph IV above number approximately seven (7) and include roofers and laborers. (B) Said employees are not represented by a certified bargaining representative. Wherefore, the aforesaid citation, penalty and abatement date should be affirmed. Mr. DANIELS. The committee will stand adjourned until 10 o'clock Monday morning. (Whereupon, at 1:10 p.m. the subcommittee adjourned, to reconvene at 10 a.m., Monday, September 18, 1972.) OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (OVERSIGHT AND PROPOSED AMENDMENTS) MONDAY, SEPTEMBER 18, 1972 HOUSE OF REPRESENTATIVES, SELECT SUBCOMMITTEE ON LABOR OF THE The subcommittee met, pursuant to recess, at 10:10 a.m., in room 2261, Rayburn House Office Building, the Honorable Edith Green, presiding. Present: Representatives Green, Steiger, Veysey, Ruth. Staff members present: Daniel Krivit, counsel; and Jack Miller, minority associate counsel for Labor. Mrs. GREEN. The subcommittee will come to order for the further consideration of the Occupational Safety and Health Act. Our first witness is Mr. Richard H. Berman, representing the chamber of commerce. Mr. Berman, I understand you are to be accompanied by Mr. Wenzler. STATEMENT OF RICHARD B. BERMAN, ESQ., LABOR RELATIONS ATTORNEY FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES, ACCOMPANIED BY MR. O. F. WENZLER, LABOR RELATIONS MANAGER Mrs. GREEN. We are glad to welcome you to the subcommittee. You may proceed as you wish. Mr. BERMAN. My name is Richard Berman, Labor Relations Attorney for the Chamber of Commerce of the United States. With me is Otto F. Wenzler, labor relations manager of the national chamber. The national chamber is the largest federation of business and professional organizations in the United States, and is the principal spokesman for the American business community. We represent more than 3,500 trade and professional associations and local, State and regional chambers of commerce, and we have a direct membership of more than 44.000 business firms and an underlying membership of more than five million. The Occupational Safety and Health Act of 1970 is presently creating more concern within the business community than any other legislation passed in recent years. We are happy to have the opportunity to express the concern that our members have about this law and to offer some constructive criticism. Prior to passage of this legislation, certain special-interest groups testifying in support of punitive legislation attempted to describe American business management as irresponsible and unsympathetic to safety on the job. Now that over 12 years have passed since that testimony was offered, it is important to take another look at the statistics which were previously lost in the heat of debate. National Safety Council research shows that the off the job death rate for workers has declined since World War II by 10 percent. The same group of workers has seen the on the job death rate drop45 percent in the same period of time. The Council statistics also show that more workers are killed in nonvehicular public accidents and in the home each day than are killed on the job. As for worker injuries that do not result in death, Council figures show that of all the industrial accidents resulting in temporary total disabilities, more result from worker failure to manually handle objects properly than result from machinery, being struck by falling or moving objects, heat, explosives, electricity, elevators, hoists, conveyors, and hand tools combined. I do not make these comparisons to convey the impression that worker safety is not a valid concern. The chamber is on record in support of responsible safety and health legislation. I do mean to stress, however, the need to consider the problem in its proper context. On April 28, 1971, the law was put into effect. One month later a special edition of the Federal Register was published containing close to 250 pages of safety and health standards. Businessmen were given 3 months to familiarize themselves with these standards before the majority of them were to be effective. The national chamber, along with the Department of Labor, continues to receive inquiries from people who have just heard of the law or who know of it but do not know how it applies to their business. Even if we assume these employers are aware of the act's coverage, it is fair or reasonable to expect millions of them to be familiar with this technical language written with the help of sophisticated safety engineers. The employer needs help in interpreting the standards. He normally cannot afford to employ a safety engineer on his staff and therefore, logically looks to the Government to determine his obligations. The Occupational Safety and Health Administration, however, refuses to point out those apparent violations on the premises without penalty. They claim the law does not permit this type of consultation. George Guenther, Assistant Secretary of the Occupational Safety and Health Administration, has recently testified, however, that the Administration would support an amendment to the act which contemplates these onsite consultations without penalty. We welcome and support this position. Perhaps the greatest problem in this entire standards area results from the impression that the consensus standards had the blessing of the business community as the last word on safety. On October 16, 1969, we testified before this subcommittee in an attempt to correct this assumption. We stated: National consensus standards are expressly intended to be guides-not ironclad limitations. Their real value lies in their flexible application to a number of diverse employment situations. It would, therefore, be both a basic and grave mistake to adopt such standards as inflexible and wooden rules and we urge that they not be so treated. Unfortunately, this advice was not heeded and failure to do so has in large measure resulted in these hearings being held today. The problem of failing to adopt responsible standards is magnified when coupled with the act's prohibition of advance notice of inspections. What is the small employer to do if an inspector shows up unannounced to test the air for a contaminant? He does not employ a full-time hygienist, industrial physician or safety engineer. How does he know that the test is being properly administered? How can he adequately defend himself without the ability to make a similar test at that time to verify the results? If he knew that an inspection was going to be made, he would have time to get his own expert to monitor the test. We suggest that the act be amended in this area in order to provide due process. A major problem in the penalty area is fining the employer without his knowledge of the violation. All employers cannot realistically be expected to be acquainted with existing and continually changing requirements under the act. Were penalties not instituted until an employer failed to comply with a notice of violation, many businessmen would feel somewhat differently toward the act. Those opposing our view say that businessmen will not voluntarily come into compliance without penalties being threatened on the first inspection. They are wrong. In fact, the Department has recently stated that 98 percent of the citations have been for nonserious violations. These citations result in relatively light penalties as compared to those for serious violations. Most are proposed in the $100 to $200 range. This relatively low level is justified by the nature of the violations. Those penalties proposed for failure to abate coupled with a desire to provide safe working conditions are the real incentives to comply with the act. Whatever is gained in compliance by the act's punitive approach is lost many times over by the growing resentment, lack of respect, and feelings of disenfranchisement felt by businessmen today. The act should guarantee that a businessman will not be fined after an inspector's first visit if he did not know he was violating a standard. One of the most troublesome parts of the entire compliance problem is the failure of the act to specifically provide a grandfather clause for noncomplying equipment. Without such language the administration has adopted or proposed in only very few instances standards that would allow an employer to receive more than 6 months additional use from equipment or facilities that were within the law 18 months ago but are presently considered unsafe. The true spirit of allowing a business to responsibly phase out its investments was evidenced in a proposed amendment to the sanitation standards. It states that closed-front toilet seats may be phased out through normal use. Only new or replacement seats would have to comply with the requirement of installing the open-front type. Unfortunately, the economic relief afforded by that change does not offset standards and interpretations of those standards which require that equipment costing hundreds of thousands of dollars be scrapped or dramatically modified long before its useful life is over. |