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7 May 19, 1977 OSHA UPDATE i' i BACKGROUND Since the creation of the Occupational Safety and Healt h Administration in 1970, controversy has surrounded this agency. When Rep. William S teiger R-Wisc and Sen Harrison Williams, Jr D-N J co-authored this law, it was made mandatory that Labor Department agents issue ci- tations for violations, regardless o f whether or not the business owner understood the complex regulations, and by law the agents are prohibited from giving any- advice. For small manufacturers this stipulation has caused major financial problems apart from the uncertainty of whether or not t hey are complying with the regulations. The owner of a small southern California manufacturing firm has said 1 am terrified of O.S.H.A. Because of the lack of qualified advisors I in my area, and the subjective nature of many requirements, I feel very ins e cure. I wish O.S.H.A. had a 2rogram for the very small employer I (under 25 employees) to have O.S.H.A. inspect (even for a nominal fee) and then allow 30 days grace to correct violations before fines can be levied. occurs, and not in a productive sense. U nderstanding and compliance in many areas is difficult to achieve Amongst employers I know, a great pre-occupation with O.S.H.A IMPRACTICAL REGULATIONS Another concern of business withmregards to OSHA has been that regula tions are either impractical for local operations or that they do not conform to reality. A case in point involved P.X.F Incorporated. In Twin Falls, Idaho, on June 12, 1972, this firm, a small construction company with fewer than ten employees, was at work on a job which OSHA suddenly closed down while a Compliance Officer conducted an inspection. It is true that OSHA's own Compliance Operations fanual says an inspec tion "shall be such as to preclude unreasonable disruption of the opera tions of the employer's establishment but that was ignored. After the inspection, OSHA ordered that roll bars be put on a crawler tractor which P.M.F.'s President, Dee Pace (who has twenty-five years of ex?eri ence) says would be dangerous because the tractor is used in an open field. Nonetheless, OSHA p r oposed fines totalling $18430 for P.M.F. 8 to which would be added the cost of the changes. So, as the Act per I i a .I 7: r L I 2 mits, Mr. Pace contested the proposed penalties with a registered let ter. OSHA later claimed that Pace had not contested an d that the penalties were therefore final COST The costs of doing business have sharply increased since the creation of OSHA. This is the view of Engineering 'News Record which reported on August 24, 1972, that OSHA had added $4,31- the base price of a new Caterpillar D-9 tractor. Estimates of how much OSHA requlations raise general business costs range as high as 10% and more. Unless business absorbs these costs, then the only place they can be passed onto is the consumer COURT CASE Recently, OSHA has been dealt a series of crippling blows regarding its constitutionality. The most notable was the three-judge federal court decision filed December 30, 1976, in the U.S. District Court of Idaho. In Barlow's Inc. v. Usery ruled that Section P(A of the Occupation al Safety and Health Act of 1970 (OSHA) is unconstitutional because it al lows federal inspectors to enter businesses and farms without a search warrant. The clause authorizing such warrantless inspections was found by the judges to be "unconstitutional a n d void in that it directly of fends against the prohibitions of the 4th Amendment of the Constitution of the United States of America At this time OSHA is appealing the case before the U.S. Supreme Court however, this district court ruling places OSHA in a constitutionally tenuous position KEY BILLS Already there are six bills in the House of Representatives that call for the repeal of OSHA. They are H.R. 4416-Rep. Phil Crane (R-111 H.R.3850-Brinkley (0-Ga H.R. 1679.-Ketchum (R-Cal H.R. 1348 Symms (3-Ida H . R. 676-Rousselot (R-Cal and H.R. 6313 Hanmerschmidt I R-Ark Furthermore, there are two bills that would provide that the require ments of the OSHA Act apply to the Congress, Federal agencies, and the Courts of the United States. These bills are respective l y H.R. 4215 Pressler (R-Iowa) and H. R. 6509-Pressler (R-Iowa Also Rep. George Hansen (R-Idaho) has introduced H.Con.Res. 56 expressing the sense of 'the Congress that inspections pursuant to Section 8(A) of the Occupa tional Safety and Sealth Act of 1970 shall cease pending a determina- tion by the Supreme Court of the United States of the constitutionality of such inspections. I 3- v i' y Also Cong. Robin Beard (R-Tenn introduced on April 5, 1977, H.R. 6054 as an amendment to the Occupational Safety-?and Health Act of 1970 would provide that any employer who successfully contests a citation or penalty shall be awarded a reasonable attorney's fee and other reasonalbs costs It I BEARD REFORl4 BILL Cong. Robin aeard has introduced the most comprehensive of t h e OSHA reform bills. This bill (H.R. 6055) is similar to the reform bill he introduced during the 94th Congress (H.R. 7836 The major provisions of this bill include a. Prohibition against advance notice of inspection removed sanctions removed b. Nonagricu l tural employers employing twenty-five or less; and small farmers both exempted from coverage 5 c Employer nay establish safety committee for purposes of the Act without violating Section 3 of NLRA d. For each proposed new standard the Secretary must inclu d e a statement regarding its financial impact, and must have given.due regard to that impact when determining that the benefit to be derived justifies the proposed standard e, Grandfather clause is included for equipment and facilities unless failure to ch a nge or phase out before natural expira tion would result in serious violation if there is a sub stantial probability that death or serious physical harm could result f Employer. has the option to use alternative protective equip ment 'and technological pr o cedures where adequate protection afforded to employee and where no danger created thereby g. Even if violation'found, no citation or suggested penalty to be issued if employer can show that health and safety of employees in the facility inspected not mat e rially af fected by the violating conditions; or that alternative procedures employed which are as effective; or reasonable tion due to employer up to $1,000 civil penalty for non-serious violation. efforts and adequate notice provided by employer and vio l a h. Deletes the provision which allows enployer to be assessed I -4 CONCLUSION I I Both H.R. 6054 and 6055 seem to qo a long way in meeting the objzc tions of small business to OSHA, while 7::~t requiring that workers be protected io a safe working envir o nment: Individuals who have con stitutional or moral objections to the concept of OSXA will probably endorse the repeal bills in Congress, while Rep. Robin Beard's bill tries to eliminate many of those features of the present OSHA law that concern small b u sinessman and farmer/rancher alike i David A. Williams Economics/Taxa tion 1 I' AD DE NDUM May 20, 1977 Yesterday, Secretary of Labor Ray Marshall announced that some of the changes 11 21 31 4 in OSHA policy will be as follows In such high-risk industries as construction, manu facturing, transportaion and petrochemicals OSHA will increase its share of inspections from the cur rent 80-85 percent to 95 percent. Suspending penalties for standards violations that have nothing to do with worker health or safety until the standards are rewritten or revoked. Offering handbooks with simple checklists and other self-help guides, professional services to encourage voluntary compliance. Eliminating outdated or unnecessary regulations and simplifying. regulations tha t are "needlessly detailed, compiicated or unclear Summary None of the proposed changes are addressed to the Constitutional objections to OSHA nor are there efforts to incorporate the re forms advocated in Rep. Robin Beard's HR 6055
7 May 19, 1977 OSHA UPDATE i' i BACKGROUND Since the creation of the Occupational Safety and Healt h Administration in 1970, controversy has surrounded this agency. When Rep. William S teiger R-Wisc and Sen Harrison Williams, Jr D-N J co-authored this law, it was made mandatory that Labor Department agents issue ci- tations for violations, regardless o f whether or not the business owner understood the complex regulations, and by law the agents are prohibited from giving any- advice. For small manufacturers this stipulation has caused major financial problems apart from the uncertainty of whether or not t hey are complying with the regulations. The owner of a small southern California manufacturing firm has said 1 am terrified of O.S.H.A. Because of the lack of qualified advisors I in my area, and the subjective nature of many requirements, I feel very ins e cure. I wish O.S.H.A. had a 2rogram for the very small employer I (under 25 employees) to have O.S.H.A. inspect (even for a nominal fee) and then allow 30 days grace to correct violations before fines can be levied. occurs, and not in a productive sense. U nderstanding and compliance in many areas is difficult to achieve Amongst employers I know, a great pre-occupation with O.S.H.A IMPRACTICAL REGULATIONS Another concern of business withmregards to OSHA has been that regula tions are either impractical for local operations or that they do not conform to reality. A case in point involved P.X.F Incorporated. In Twin Falls, Idaho, on June 12, 1972, this firm, a small construction company with fewer than ten employees, was at work on a job which OSHA suddenly closed down while a Compliance Officer conducted an inspection. It is true that OSHA's own Compliance Operations fanual says an inspec tion "shall be such as to preclude unreasonable disruption of the opera tions of the employer's establishment but that was ignored. After the inspection, OSHA ordered that roll bars be put on a crawler tractor which P.M.F.'s President, Dee Pace (who has twenty-five years of ex?eri ence) says would be dangerous because the tractor is used in an open field. Nonetheless, OSHA p r oposed fines totalling $18430 for P.M.F. 8 to which would be added the cost of the changes. So, as the Act per I i a .I 7: r L I 2 mits, Mr. Pace contested the proposed penalties with a registered let ter. OSHA later claimed that Pace had not contested an d that the penalties were therefore final COST The costs of doing business have sharply increased since the creation of OSHA. This is the view of Engineering 'News Record which reported on August 24, 1972, that OSHA had added $4,31- the base price of a new Caterpillar D-9 tractor. Estimates of how much OSHA requlations raise general business costs range as high as 10% and more. Unless business absorbs these costs, then the only place they can be passed onto is the consumer COURT CASE Recently, OSHA has been dealt a series of crippling blows regarding its constitutionality. The most notable was the three-judge federal court decision filed December 30, 1976, in the U.S. District Court of Idaho. In Barlow's Inc. v. Usery ruled that Section P(A of the Occupation al Safety and Health Act of 1970 (OSHA) is unconstitutional because it al lows federal inspectors to enter businesses and farms without a search warrant. The clause authorizing such warrantless inspections was found by the judges to be "unconstitutional a n d void in that it directly of fends against the prohibitions of the 4th Amendment of the Constitution of the United States of America At this time OSHA is appealing the case before the U.S. Supreme Court however, this district court ruling places OSHA in a constitutionally tenuous position KEY BILLS Already there are six bills in the House of Representatives that call for the repeal of OSHA. They are H.R. 4416-Rep. Phil Crane (R-111 H.R.3850-Brinkley (0-Ga H.R. 1679.-Ketchum (R-Cal H.R. 1348 Symms (3-Ida H . R. 676-Rousselot (R-Cal and H.R. 6313 Hanmerschmidt I R-Ark Furthermore, there are two bills that would provide that the require ments of the OSHA Act apply to the Congress, Federal agencies, and the Courts of the United States. These bills are respective l y H.R. 4215 Pressler (R-Iowa) and H. R. 6509-Pressler (R-Iowa Also Rep. George Hansen (R-Idaho) has introduced H.Con.Res. 56 expressing the sense of 'the Congress that inspections pursuant to Section 8(A) of the Occupa tional Safety and Sealth Act of 1970 shall cease pending a determina- tion by the Supreme Court of the United States of the constitutionality of such inspections. I 3- v i' y Also Cong. Robin Beard (R-Tenn introduced on April 5, 1977, H.R. 6054 as an amendment to the Occupational Safety-?and Health Act of 1970 would provide that any employer who successfully contests a citation or penalty shall be awarded a reasonable attorney's fee and other reasonalbs costs It I BEARD REFORl4 BILL Cong. Robin aeard has introduced the most comprehensive of t h e OSHA reform bills. This bill (H.R. 6055) is similar to the reform bill he introduced during the 94th Congress (H.R. 7836 The major provisions of this bill include a. Prohibition against advance notice of inspection removed sanctions removed b. Nonagricu l tural employers employing twenty-five or less; and small farmers both exempted from coverage 5 c Employer nay establish safety committee for purposes of the Act without violating Section 3 of NLRA d. For each proposed new standard the Secretary must inclu d e a statement regarding its financial impact, and must have given.due regard to that impact when determining that the benefit to be derived justifies the proposed standard e, Grandfather clause is included for equipment and facilities unless failure to ch a nge or phase out before natural expira tion would result in serious violation if there is a sub stantial probability that death or serious physical harm could result f Employer. has the option to use alternative protective equip ment 'and technological pr o cedures where adequate protection afforded to employee and where no danger created thereby g. Even if violation'found, no citation or suggested penalty to be issued if employer can show that health and safety of employees in the facility inspected not mat e rially af fected by the violating conditions; or that alternative procedures employed which are as effective; or reasonable tion due to employer up to $1,000 civil penalty for non-serious violation. efforts and adequate notice provided by employer and vio l a h. Deletes the provision which allows enployer to be assessed I -4 CONCLUSION I I Both H.R. 6054 and 6055 seem to qo a long way in meeting the objzc tions of small business to OSHA, while 7::~t requiring that workers be protected io a safe working envir o nment: Individuals who have con stitutional or moral objections to the concept of OSXA will probably endorse the repeal bills in Congress, while Rep. Robin Beard's bill tries to eliminate many of those features of the present OSHA law that concern small b u sinessman and farmer/rancher alike i David A. Williams Economics/Taxa tion 1 I' AD DE NDUM May 20, 1977 Yesterday, Secretary of Labor Ray Marshall announced that some of the changes 11 21 31 4 in OSHA policy will be as follows In such high-risk industries as construction, manu facturing, transportaion and petrochemicals OSHA will increase its share of inspections from the cur rent 80-85 percent to 95 percent. Suspending penalties for standards violations that have nothing to do with worker health or safety until the standards are rewritten or revoked. Offering handbooks with simple checklists and other self-help guides, professional services to encourage voluntary compliance. Eliminating outdated or unnecessary regulations and simplifying. regulations tha t are "needlessly detailed, compiicated or unclear Summary None of the proposed changes are addressed to the Constitutional objections to OSHA nor are there efforts to incorporate the re forms advocated in Rep. Robin Beard's HR 6055
