I think the big problem is with respect to the administration of the act. We welcome the views of everybody and if this act is not being properly administered, this committee should do something about it. I merely point that out.

Mr. HUNGATE. I appreciate the chairman's statement and I recognize bis long and distinguished association with this sort of legislation and all labor legislation and to that extent those of us bounding into these hearings are like the kid who just found out about the multiplication tables, I know you are aware of that.

Mr. BERGLAND. We had Labor Department administrators that told us they did not possess this authority. We think they did but they claimed they did not.

That is when this question arose.

Mr. DANIELS. They have to be oriented downtown.

Mr. STEIGER. I hope they are not oriented in that area.

I clearly disagree with the chairman that there is authority under that section he just read, section 9. I would respectfully suggest that is not accurate.

Mr. VEYSEY. Thank you, Mr. Chairman.

I have no questions. I just want to commend Mr. Hungate for first of all undertaking the extensive oversight hearings which have been accomplished, and second, bringing to us this summary of the testimony and findings from that committee.

I think this course, with the type of questions and comments I have received from constituents about the act, is important.

Thank you.

Mr. HUNGATE. Thank you, gentlemen.

Mr. DANIELS. Mr. Barbee, will you proceed? Your full statement will be incorporated in the record and you may summarize.

Mr. BARBEE. I will be brief and give the recommendations from my prepared statement we think are important to the law. First, we recommend to abolish the existing standards. The Department of Labor openly admits there are over 1,600 errors in the publication and they are horizontal standards. Vertical standards are needed. The standards should be reissued for each specific industry therefore the standards are redone. We could therefore promulgate standards that are fair for all, by developing new standards and having the Department of Labor issue the standards in the form of manuals and bulletins. Another problem is that the Federal Register on construction has been out of print for 8 months.

Mr. Gary is the executive secretary of the AGC, and yet he cannot obtain a copy of the rules and regulations for his members because they have been out of print for 8 months. Only 50 percent of the standards are available commercially. I expended $500 of my own money to get the standards and only received 50 percent of them.

Some of the standards have been out of print since 1925 and we can't find them. Some of the standards are not available even for copying. The Small Business Administration has only made six Safety Improvement Loans. One reason they only made certain commercial loans so far to date because they can't get the Department of Labor to certify what they have done will be in compliance with the law. Another problem is that small businessmen do not know their rights on the SBA loans. Another problem is that the act does not provide

for sanction against employees who willfully violate the standards, rules, and regulations.

We have several cases, one in point, a man had a job to put a wire screen on one telephone pole in the Okefenokee swamps, he did not do it. He filed a complaint and out of Mobile, Ala., an inspector with an employee drove 21/2 hours past telephone pole after telephone pole and cited the telephone company with a citation for the one pole that was defective. The law was not meant for this purpose.

The Department of Labor should require that the products that are purchased by small businessmen conform to the law. There are 27 pages of standards on ladders. If you were to buy a ladder, there is no way for the small businessman to know if his products are acceptable to OSHA.

Enforcement procedures are needed which would provide trial by jury. The burden of proof is upon the person who receives a citation in the hearing to defend himself in the hearing. Further fines collected should go to the Treasury of the United States and not to the Department of Labor to reduce their budget.

Another problem that needs attention is that the abolishment of the secrecy section of the act is needed. Allow the employer to face his accusers. Many employees call the OSHA inspector to have their employers fined as they know the unsafe condition, and yet employers can't know all the violations but their employees do. So instead of telling their employers they call OSHA just to make trouble.

Many employers if they knew of the violations before the employee, they would have corrected them. But the employees as a whole are using this to set up a union management relationship for their own ends.

Other recommendations are to provide that the fines collected should be returned to the employer if he abates the violation; establish a reasonable grandfather clause; Mr. Dolstrum has a facility that was built in 1919, his father's business before him. Mr. Dolstrum will tell you, he has 8 employees. To comply with OSHA. He will have to purchase 4 acres of land, raze his existing buildings and start all over. He has to completely level his business his father built there in 1919 as he can't comply with the codes.

Provide that any person or organization that files a complaint against an employer for personal gain be subject to prosection and penalty. I am sure you are all aware that many of the OSHA inspectors are called to many premises to counsel while negotiations with unions are going on in the building.

Provide for distribution of materials published by the Department. of Labor. Have all rules and regulations available to everyone at reasonable prices so we can distribute this material.

Establish a Federal insurance program so safety engineers may obtain malpractice insurance. There is no commercial insurance available to us at the present time. The American Society of Safety Engineers has a task force trying to do this now and they have been trving for the last year but nothing has transpired as of this date. We need Federal help for our insurance program.

Further establish the same penalties for employees and employers that violate the act. Why should an employer be fined if he pur

chases safety glasses, gives them to an employee and the employee takes them off so the OSHA policeman would cite the employer.

One other point, the Department of Labor publishes a compliance inspection manual, the inspection manual of the Department of Labor is the manual they teach the Department of Labor inspectors what is a violation. This manual covers a 6-week training period and I requested this of Dr. Heath and Dr. Wallach. We tried to obtain this manual so I could take all the associations, all the businesses we represent, make our own internal manual, train our people so when an OSHA inspector comes to their establishment they would know what is a violation. We were denied this material, told it was not relevant.

They sent me a copy of the Federal Register and OSHA Compliance Manual and said this is all you need. Attachments of this are at the back of my speech.

Mr. DANIELS. With whom did you communicate?

Mr. BARBEE. Dr. Heath and Dr. Wallach.

Mr. DANIELS. Do you have letters?

Mr. BARBEE. Yes, in the back of my speech.

Mr. DANIELS. Did you submit that for the record?

Mr. BARBEE. Yes. Immediately upon that, I asked our attorneys to follow this matter up, and the attorneys followed, and we received such a declination, so adamant that these things were not relevant, that training of the employers was not relevant, and all this attitude, led me to file a lawsuit in U.S. district court. We obtained and prevailed in court and had a district court order for them to produce these documents. They went to the sixth circuit and asked for a stay.

In the sixth circuit they asked for a stay. I ask that this committee obtain these documents. I would ask you to examine those documents and determine why they were not given to us.

Mr. DANIELS. Your recommendation will be taken under consideration by the committee.

The gentleman from Wisconsin, Mr. Steiger.

Mr. STEIGER. No questions.

Mr. DANIELS. Mr. Gaydos.

Mr. GAYDOS. You mentioned insurance coverage; can you explain that?

Mr. BARBEE. Yes, an engineer building a building, like an architect, he has to guarantee his work. A doctor operating on you has to guarantee his work. With the advent of OSHA, Lloyds of London and other insurance companies writing domestic insurance, told me personally they could not insure against the whims and capricious nature of an untrained uneducated OSHA inspector enforcing the law when the law would be his whim.

Therefore, at an ASSE meeting held this week, I asked for a show of hands-how many engineers had insurance-and not one man had his insurance left. I have been a safety engineer for 18 years. I have never had a claim or a suit filed against me. We do not have insurance.

Mr. GAYDOS. I don't want to prolong this, since we are short of time, but are you telling us you are not covered by insurance in exercising your business?

Mr. BARBEE. No, sir, We take waivers and we take contracts where we say we are not liable. It was because of OSHA that this came about. Mr. GAYDOS. Thank you.

Mr. DANIELS. The gentleman from California, Mr. Veysey.

Mr. VEYSEY. Thank you, Mr. Chairman, no questions.

Mr. DANIELS. We thank you for coming.

The Honorable John B. Anderson, from the 16th District of Illinois.

STATEMENT OF HON. JOHN B. ANDERSON, U.S. REPRESENTATIVE FROM THE STATE OF ILLINOIS

Mr. ANDERSON. Thank you, Mr. Chairman and members of the committee. I have observed the admonishment of the Chair and will try to observe the time.

I will ask that the text of my statement be included in the hearings. I appreciate very much the fact in the waning days of this session of Congress that you have undertaken what I think is an important task of conducting oversight hearings on the administration of OSHA. In an effort to prepare for this hearing, I sent out letters to interested parties in my congressional district requesting specific comments and suggestions from them, and asking what their experiences have been. I felt that would be more useful than engaging in discussions of objections to the administration of the act. I would briefly like to relate the contents of some of these comments coming back to me from my constituency.

First, I would like to make four specific proposals on the basis of the recommendations coming to me from my constituents, recommendations I hope you would consider in the light of my concern to try to make this a more responsive and effective program.

First, I think there should be a distinction between light and heavy construction industries. There is a bill to that effect, and perhaps the author of that bill and cosponsors will testify on the subject. I won't take time to go into the reasons why I think that distinction should be made.

Mr. DANIELS. Before you leave that point, I believe there is authority with the Secretary of Labor to do exactly that, and I feel it is his responsibility. If you take a look at section (b), it says, "The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner."

It goes on to specify the manner. Perhaps the Secretary of Labor doesn't interpret this law as I interpret it, but I feel he has the authority to do so if he cares to make such a distinction.

Mr. ANDERSON. I concur with the chairman of the committee. My response would be if there has been a reluctance on the part of the Secretary or anyone else in the executive branch to interpret this act in the spirit of the law, then maybe it would not be amiss for those of us in the Congress to spell that out a little more clearly than we have up to this point.

I don't think we should be bashful about letting the Secretary know that if he hasn't exercised the discretion, it is our wish that he do so. Mr. DANIELS. You are a legislator and for a long period of time, and I respect your good judgment. I think it best to give a certain latitude

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and discretion in the exercise of one's authority to cover a situation like this.

Mr. ANDERSON. I am about to make that very argument-that there might be greater flexibility in the act and I don't quarrel with your premise. There is a basic distinction between light and heavy construction. If there is a clear unwillingness on the part of the Department after a year or two to make that distinction, we may have to mandate that they do so.

In general, I recognize the validity of what you say. We don't want to write a detailed version for the administration because we may get so heavy handed no one can understand the act.

Mr. DANIELS. We propose to have a witness on that later in the hearing, and I propose to take that up with him.

Mr. ANDERSON. Second, and I think this matter has been discussed by some of the witnesses I heard this morning, I subscribe to the idea that employers ought to be able to request that OSHA officials come. in and consult with them regarding any changes to be made under the act. This would clear up some of the ambiguity and frustration about health and safety standards.

I understand my friend Mr. Steiger has introduced an amended H.R. 16508, and I would support that legislation.

Third, it is my recommendation that employers should be allowed to file for alternative means. As I understand the present law, an employer must pay the penalty for a cited violation and then file for the variance.

Mr. STEIGER. Will you yield on that point? That is not true. If you will look on page 5 of the act, there is the temporary variance order that is allowed to be issued by the Secretary. There have been up to this point something like 80, as I recall the figure, legitimate variances requested and under consideration by the Department of Labor. You don't have to have an inspection or a penalty or a citation before requesting a variance from the specific standard.

Mr. ANDERSON. Again, this may be a problem then in the administration of the act. Again, I heard some discussion of a failureperhaps to have the kind of education about the purposes and the intent of the act and so on-so that employers are fully informed, but at least one of the complaints that I have been getting from employers in my area is that you have to suffer the penalty before you can apply for the variance.

If that is not the case, I am happy to hear it and will report back to the people reporting to me.

I thought I had a figure in here, yes, I do; on page 4 of my prepared statement, cite the President's Report on Occupational Safety and Health as of the end of 1971. The Department of Labor had received 108 applications for variances, but had rejected all but two on either substantive or procedural grounds, and it was my understanding that applications had continued to increase this year, but the Department had not been particularly generous in regarding how other people do things and had not been very generous in their allowance of these variances.

Mr. STEIGER. The announcements were made by the Department of Labor recently. The law on pages 5 and 6, in section (6)(b) is quite tight in terms of the reasons for which variances are granted.