This fails to distinguish between the variations in risks from one industry to another, as well as within an industry itself.

For example, the risks attendant to the construction industry are distinct from those of retailing or longshoring, and within the construction business there is a marked difference between residential and high-rise building.

The testimony by the witness was if two employees knew where the fire hydrant was, what color it was, and the route to it, that was more important that changing the colors and raising the fire extinguisher 2 inches on the wall.

Some of those minor things should have more flexibility. One item was on the requirements of a ladder and they had a standard in there that I doubt if Pythagoras could interpret, the mathmetical equation you had to go through to see if the ladder met the requirements.

Enforcement is a crucial part of the act since this law involves the Government in a small businessman's activities more than any law passed in recent times. Many witnesses testified that a serious defect in the law is the lack of an enforcement procedure against employees who willfully violate standards relating to their own conduct.

The act does not provide for citations or penalties to be issued to employees, but to employers only. If the employer provides the proper equipment and instructs the worker on its proper use, and the worker fails to follow those standards, then the responsibility should be laid at the feet of the employee.

We had testimony or suggestions to the committee that in some of these cases this might be almost a collective-bargaining device. You wouldn't use the proper equipment even though it was furnished, you and the employer would wind up in difficulties.

Whether this is factual, it could be though, it could be practiced. We had testimony regarding employees required to furnish their own tools.

Maybe under the bargaining agreement in industry it would be customary that the employee furnish his tools. It seems there was a mushroom head chisel, but there is a certain type of equipment he shows up with that violates the act then the employer-not the employee-is fined.

It is hard to explain to employers in small business as to how that is equitable.

Nearly all the witnesses testifying before the subcommittee were of the opinion that small businesses should not be categorically exempted from the act.

I would think it was the general consensus of our subcommittee that weakening the act is not in order; simplifying its application would be in order.

I was really surprised that there was not that much testimony about a real weakening of the act, but instead a desire to go from intimidation to education to get compliance.

Nearly all the witnesses were not of the opinion we should categorically exempt small businesses. Examples were given in timber or logging where there was a firm of five people and yet it is recognized as a hazardous occupation. Yet a drygoods store might employ 50 and be extremely safe.

Recordkeeping was found onerous by small businessmen. There was testimony from the Department of Labor that they might relieve recordkeeping requirements as a matter of policy.

I believe there was a figure of eight employees or less-the record would show less.

Mr. STEIGER. Less than eight?

Mr. HUNGATE. Less than eight.

Everybody agreed all businesses, both large and small, should provide a safe place for their employees, even those industries with as few as five employees where risks to safety and health is high.

I would agree with the chairman's statement that appropriation is not a satisfactory place to amend labor laws and some of the requirements that perhaps 25 employees or less be exempted or 10 be exempted.

I would submit if such an approach might be used and there might be merit in it. There would still be a desirability whereby the Labor Department might, in the Federal Register, designate an industry where there are five or more employees and after hearing they could include those.

A categorical figure of five, or under eight, would not be a wise

move.

The subcommittee believes that if understandable and accurate information could be made available to small businessmen, if initial or requested on-site inspections could be made without incurring a penalty, if standards could be promulgated for separate industries and categories within industries, and finally, if standards have a direct and meaningful relationship to employee safety, then such proposed exemptions might be unnecessary.

Businessmen want safe and healthy working conditions for their employees it means more efficient production, less costs for insurance and workmen's compensation, and smoother labor relations.

But in their frustration with the present system small business has reached out for exemption because they have no other alternative.

Along that line, it may be that as well as a statutory relief that perhaps a legitimate bargaining goal of the labor movement would be safety for employees as well as dollars in your pocketbook-saving arms and fingers.

I think the fact that this has not gone forward farther than it has is priority that we see everywhere. We didn't use to worry so much about air, water, and noise pollution, but we do now.

Perhaps labor will be looking more in its bargaining to safety conditions in its future bargaining with management.

If exemptions must be made, then the more realistic and practical approach might be to exempt those employers with minimal risks, or some other criteria having a direct relationship to safety and health conditions.

Mr. Chairman, we also, some of us, thought we may have seen some scare tactics on behalf of perhaps groups-being a lawyer I wouldn't say lawyers would do that-but safety engineers where they sort of scare these people to get and create a lot of safety and engineering fees that didn't exist before.

It is a new field and people don't know. We are not in the business of encouraging that sort of operation. We are not in the business of weakening the safety requirements in business.

We do hope and believe that this committee, through its attention to this subject, can provide a law and can perhaps aid in compelling the Department of Labor to provide regulations that are more equitable, more reasonable, and comprehensible to the small businessman in America.

Thank you, Mr. Chairman.

Mr. DANIELS. Thank you.

Bob, do you want to supplement?

Mr. BERGLAND. On page 4 of my testimony, I cited four specific recommendations and I am today introducing amendments that would meet those needs and I commend them to the committee.

(Bergland statement follows:)

STATEMENT OF HON. BOB BERGLAND, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA

Mr. Chairman, Members of the Committee, I welcome and appreciate this opportunity to appear and testify on amending the Occupational Safety and Health Act of 1970.

I first want to commend you, Mr. Chairman, for your interest and concern regarding the plight of the Nation's small businessmen in their efforts to comply with the Occupational Safety and Health Law.

This interest and concern is demonstrated by your leadership in calling these hearings and it is my hope that through your efforts, we will be able to promote on-the-job safety without unnecessary harm to the Nation's small businessmen. As you know, the Subcommittee on Environmental Problems Affecting Small Business of the Select Committee on Small Business, of which I have the honor to be a member, recently concluded hearings on the small business aspect of this law. The Subcommittee's report (House Report No. 92-1341), contains our findings and recommendations.

These hearings lasted five long days during which we heard from a large number of small businessmen and organizations representing them.

Therefore, since the record of those proceedings is available for your consideration and use, I will not go into the details of the testimony. I understand that a number of businessmen will be appearing before this Committee, and I am sure that you will have a complete and accurate view of the actual problems confronting the Nation's business community.

My appearance here today, on behalf of small businessmen and farmers, is to strongly urge and recommend that the Committee report out a bill making those necessary changes in the law as recommended by the Subcommittee on Environmental Problems Affecting Small Business.

Mr. Chairman and Members of the Committee, I cannot overstate the necessity for amendments to the law. The problems facing small businessmen are shocking. Alleviating these problems, as far as I can see, will not adversely affect safe working conditions. Indeed, occupational safety will be promoted with greater cooperation and voluntary compliance by employers.

A second and equally pragmatic reason for amending the law, is the almost certain resurrection of the Findley Amendment on the Floor of the House when the Labor-HEW Appropriations Bill comes up for a vote. I have talked with a number of our Colleagues on this subject, and it is my opinion that the Findley Amendment will be unnecessary or defeated, provided some kind of relief is granted to small businesses and farmers.

I am opposed to the Findley Amendment in principle. So are most small businessmen and farmers. Everyone agrees that employees should have a safe and healthy place to work-even small shops with only three or four employees, where there is possible high risk, should be covered by the law.

You may recall that our Subcommittee found:

"Businessmen want safe and healthy working conditions for their employeesit means more efficient production, less costs for insurance and workmen's compensation, and smoother labor relations. But in their frustration with the present system, small business has reached out for exemption because they have had no other alternative."

Mr. Chairman, this Committee holds the key to that alternative. and I feel that such an alternative would be in the best interest of the Nation's small

businessmen and their employees. The cause for safety and health would be best served.

Categorical exemption will be disastrous for the small business community as well as for employee safety. Firms who are outside the numerical limitation will split into smaller legal entities to avoid the law, and the Department of Labor will be forced into a game of "is he?" or "is he not?" to determine who is covered. Our Subcommittee report speaks for itself, but I would like to review four major points in connection with legislation.

First-The small businessman has a right to know what the law expects of him. Under the present system adopted by the Secretary of Labor, safety and health standards are to voluminous and complicated. Let us require the Secretary to issue standards for each separate industry which has identifiable risk characteristics that are common among those businesses comprising that industry.

The construction industry is a good example of this type of classification. I am informed that there are numerous bills pending before this Committee bearing on this point.

Second-I urge and recommend that the Act be amended to permit on-site consultation inspections by the Department of Labor. There are conflicting interpretations of whether such consultation inspections are permissible under the present law. A clarification of this matter, which is supported by the Assistant Secretary of Labor, George Guenther, will greatly aid the small businessmen in complying with the law.

Third-I would request the Committee to seriously consider allowing the Labor Department, in its discretion, to rescind a penalty resulting from the first inspection where an employer committeed an unintentional violation, and provided that the business concern abates the violation within a prescribed period of time.

If the purpose of the legislation is remedial, and I believe it is, then emphasis should be placed on the goals of occupational safety and not on penalizing employers just because of a procedural requirement.

Fourth-I feel that the responsibilities imposed upon employees in regard to their own conduct should carry appropriate sanctions. If an employee willfully violates a standard relating to his own conduct, then he should be fined.

Although I have been to'd that the business community did not want the Federal Government interfering with the employer-employee relationship in this manner, none of the witnesses, during the course of our hearings, expressed such opposition. In fact many witnesses testified in favor of such monetary sanctions against employees.

I suppose the argument runs that an employer can and should discipline an employee for violation of safety standards. But in small towns and rural areas, such as my District in Minnesota, how is an employer to do this? Is he supposed to fire the employee? This, of course, is impossible for many small businessmen who have no readily available means of replacing key personnel.

In closing I would like to draw the Committee's attention to our Subcommittee's report recommending certain action by the Department of Labor.

I will not take time to review those items but would like to urge that they be considered by this Committee. These recommendations were arrived at after a considerable amount of thought and analysis of the testimony presented during our hearings. A copy of the Subcommittee's report is submitted for your ease of reference.

Mr. Chairman and Members of the Committee, your task is not an easy one, but I am confident that under your leadership progress can be made for achieving meaningful occupational safety and health.

This concludes my statement and I will be willing to respond to any questions. Thank you.

STATEMENT OF RALPH DAHLSTROM, OWNER-OPERATOR, ALVARADO OIL Co., ALVARADO, MINN.

Mr. Chairman, Members of the Committee, I wish to thank you for the opportunity to testify before you.

My name is Ralph Dahlstrom. I am the owner-operator of a small business known as Alvarado Oil Company of Alvarado, Minnesota. Our bulk plant in Alvarado was established in 1919 and we are proud we have had no lost time accidents at our bulk plant in fifty-three years, to my knowledge. Now, accord

ing to my understanding of Occupational Safety and Health Administration regulations, I think we are guilty of violations, none of which contribute to employee work hazards, but could be more properly described as fire control problems.

1. Spacing between tanks at bulk plant should be three feet. At bulk plant, all four horizontal tanks and three vertical tanks are much closer together. Also, horizontal tanks should lay parallel to buildings.

2. Loading and unloading dock: Our dock is right in front of tanks, and according to OSHA, should be at least twenty-five feet away.

3. Diking and drainage: Bulk plant is not diked and perhaps drainage might not pass inspection.

4. Used tire shed and quonset where we store oil, grease, tires and other items: According to OSHA, I should have sprinkler systems. Buildings are not heated, sprinkler would be frozen up six months of the year.

5. One employee brings his own lunch. According to OSHA, I should build a lunch room.

Frankly, gentlemen, there are so many things wrong, I don't believe we could remodel to OSHA regulations. To start all over, even if money were available from SBA, would be costly.

Perhaps OSHA may force us to close up and lay off our employees.

Two amendments were proposed at the June hearing of the Small Business Committee, which, if adopted, would be of great value to my industry. First we recommend the adoption of a grandfather clause in the regulations so that a slight variance in design, construction, or location which does not constitute a hazard, would be allowed in all existing facilities.

The National Fire Protection Association has developed workable and sensible guidelines on handling flammable liquids, and I strongly urge these tried and proven guidelines be adopted by OSHA.

Mr. BERGLAND. I would like to introduce a qualified witness, Mr. Lewis Barbee, of Minnesota; he is a safety engineer.

He has a statement for the record he will insert and just briefly outline a couple of points.

Mr. DANIELS. Before Mr. Barbee proceeds, could you outline for the record the four recommendations you are making?

Mr. BERGLAND. Yes; they are essentially the four points covered in Chairman Hungate's testimony. One provided for an onsite inspection. The Labor Department could be called upon by an employer to visit the location of the business and make an inspection to see everything is in order and, if not, prescribe certain changes to be made within a certain time unless he finds imminent danger to the health or safety of the employees.

Under those conditions, he could shut it down.

Two, provide for an abatement period if an inspector finds a miner violation of a code in a business establishment.

He could issue a warning to that employer, give 30 days to make an adjustment, and no fines would be levied in that period.

The third would call for development of vertical regulations, as explained by Chairman Hungate, wherein in the construction industries and homebuilding, they would be governed by one regulation instead of horizontal regulations. Homebuilding has its peculiar hazards as compared to high rise, which is a different set of problems. The fourth has to do with employee reliability.

Mr. DANIELS. While Mr. Hungate was testifying. I took a look at the act and it appeared to me that with regard to inspection and consultation, such authority does exist in law. I believe you referred to it, section 21 (c).

Mr. HUNGATE. Yes.

Mr. DANIELS. The act specifically states:

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