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Mr. McKEVITT. How about these grain operators?

Mr. LINK. Well, some of the things that have been brought to me, for instance, the repair parts department of a store, there is the requirement that the people wear hardhats and steel-tipped shoes. This is what they are told, and this is the information they are required to utilize.

Mr. McKEVITT. In a parts department of a store?

Mr. LINK. At a district meeting that I attended, one young woman came to me and said that her father was very much concerned that he would have to wear a hardhat out on the field on his farm tractor and steel-tipped shoes, and he just was not going to comply.

Now, I had to assure her that that requirement had not been instituted as far as farmers. Most of us know that there are four requirements of OSHA that have been designated applicable to farms. But, nevertheless, the total act does apply and can, I suppose, under subsequent rulings, be made to apply to all persons.

Mr. McKEVITT. Thank you, sir.

Thanks, Mr. Chairman.

Mr. HUNGATE. Thank you very much.

Without obligation, we will make the act to which you referred in your testimony, a part of the record immediately following your testimony.

(H.R. 14393 follows:)

[H.R. 14393, 92d Congress, 2d Sess.]

A BILL To amend the Occupational Safety and Health Act of 1970 to delete the provision imposing penalties where violations are corrected within the abatement period prescribed Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) section 10 of the Occupational Safety and Health Act of 1970 is amended by striking out subsection (a), and by redesignating subsections (b) and (c) as (a) and (b), and by striking out "or (b)" where it appears in subsection (b) as so redesignated.

(b) Section 11 of such Act is amended by striking out "(c)" where it appears in the first sentence of subsection (a) and inserting "(b)" in lieu thereof, and by striking out "or (b)" in the third sentence of subsection (b).

(c) Section 17 of such Act is amended by striking out subsections (b) and (c) and redesignating subsections (d) through (1) as subsections (b) through (j), respectively.

Mr. LINK. Thank you, Mr. Chairman. Other Members of Congress introduced this same measure. I would like to have that included as part of my testimony.

Mr. HUNGATE. Without objection, it is included.

Mr. LINK. Thank you.

Mr. HUNGATE. Thank you, again.

The next witness we have is another of our colleagues, the Honorable Dick Shoup, a Congressman from the State of Montana.

TESTIMONY OF HON. DICK SHOUP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MONTANA

Mr. SHOUP. Thank you, Mr. Chairman and the other members of the committee, for asking me to appear here today and giving me a chance to state some of the complaints and observations from my constituency on the application of the Occupational Safety Act of 1970.

I have submitted a 10-page statement that I believe should be in the hands of all of you; and for the sake of brevity, if I may summarize and then perhaps make some other remarks

Mr. HUNGATE. Without objection, the full text of your statement will be made a part of the record at this point, and, then, you may proceed to summarize it however you wish.

(The prepared statement submitted by Mr. Shoup follows:)

STATEMENT OF HON. DICK SHOUp, a Member of Congress FROM THE STATE OF

MONTANA

Mr. Chairman. The Occupational Safety Act of 1970, an act of importance to employees and employers alike, has not worked. What the act was intended to do was to provide for the safety of employees throughout the employment field. It was hoped that accidents could be avoided by establishing guidelines and standards for areas which have in the past abounded with accidents. This would not only be a benefit to the employee who was subjected to poor working conditions, but it would be a relief to the employer and the government by decreasing the costs of such accidents.

Instead, what has happened, is that businesses which have attempted to comply have been harassed and the worker is still not adequately guarded from injury. When businesses ask for inspectors to visit, instead of assisting, they issue citations for violations. Many provisions have resulted in requirements which do nothing for the safety and well-being of the employee. In fact, many results are ludicrous and absurd. Take for example the case of the farm couple who complained to Sen. Young that some of the devices which they were being required to provide were not even on the market yet. A Montana firm was cited and fined for inadequate guardrails on its stairwells. It was not only fined for the inadequacy but fined six times for each of six stairwells in the plant.

Another Montana firm was fined for not having a guard around a temporary light bulb to prevent accidental contact with the bulb. This same firm was fined for several similar violations and when the levied fines were added up, the fine amounted to $445.00. Citations are in the offing for owners of elevators and other structures because of ladders which protrude six inches. The regulation now requires that the standard be changed from six inches to eight. This minor change is estimated to cost several million dollars to meet full compliance. It has been estimated that it would take 15 qualified people working 3 years to prepare the State of Nebraska for the Act through training sessions and inspections. But in the entire State of Nebraska at the time of that statement, there were not 15 such experts to be found. At the same time, citations were being issued, and fines levied. A small feed plant was cited for having the workers wearing hard hats which weren't hard enough. In Colorado, the owner of a peach orchard is being put out of business because he can't afford to provide housing for immigrant workers to the satisfaction of the Secretary of Labor. The housing which is required is something which would be better than that in which the employer is presently living himself, yet his workers would live in the housing for 14 days each year at most. Restaurants serve water to their customers in glasses which contain ice. But according to the Act, an employer must serve water to his employees in a container which separates the ice from the water.

Another employer was cited because he provided drinking cups to his employees in an unsanitary container. He was using the container in which the cups were purchased. Another employer was cited for having poor and used tools on hand while the tools were those belonging to the employees. Employees who work in areas where the noise exceeds 90 decibles are required to wear ear protection provided by the employer. Yet a 1971 Chevy pickup truck traveling at 40 miles per hour with the windows rolled up records 92 decibles and a Maverick sedan reaches 91 decibles at 10 miles per hour under similar circumstances. Airhoses are not allowed to provide any more than 30 pounds of pressure, but 30 pounds of pressure will not clean anything off as the hoses are supposed to. Safety equipment required on construction cranes to register the load obstructs the view of the crane operator so much that he cannot see anyone below him in the crane's operating

area.

This list of examples goes on and on. When Congress passed the Occupational Safety and Health Act, it did not do so to make money through fines or harrass the owners of big and small businesses. It was passed in the hope that places to work could be improved and made safe for the working man. Management and labor wanted to cut down on the number of working accidents and it was hoped that this act would establish some of the necessary safeguards. Unfortunately, what was hoped for and what have been the actual results are not one and the same. I have received a great deal of correspondence from my constituents criticizing the Act. What these people want is a change in the present law into a decent one which will provide for the safety of the employees and not serve to harrass the employer.

"Standards" which have been established for safety often don't amount to standards at all. For instance, local gas stations are required to provide so many different kinds of clothing for service done by that station that it would take twothirds of the employee's day to change into the right clothing provided he knew exactly what he would be doing from one minute to another. Many of these standards are ones which apply to broad fields of businesses irregardless of size. For example, there is no distinction between the safety regulations required of a construction firm building a home and one building a dam or a large office building. The blanket standards in the law of the Occupational Safety and Health Act are serious enough by themselves to warrant investigation by Congress. And economics is a factor which must be considered. We simply cannot afford to make the American people so safe that we put thousands and perhaps hundreds of thousands of them out of work by trying to legislate the highest degree of safety attainable on a crash basis. We should set reasonable standards and allow a reasonable time to attain them. For this reason implementation of certain provisions of the safety act should be deferred until the Secretary has determined that those standards are reasonable. The whole picture should be checked to determine whether the gas station attendant really needs to wear each type of clothing before he begins each particular job. It should be determined whether safety features used in building a one hundred story building are needed in the building a one story ranch house.

As the Act is now interpreted, anyone who helps his neighbor becomes an employee. Once he enters into this status as an employee, the "employer" is required to provide what are often elaborate safety devices or take the chance of being fined. This applies to the home owner who receives help in painting or fixing his home and the rancher in Montana or the farmer in the Midwest who gets neighborly help during harvest time. The safety items which the so-called employer must worry about are ridiculous. The status of an employee should be redefined to one who gives services for monetary compensation. By establishing the narrow definition, the friendly gesture of neighbor helping neighbor will not become something of the past which may be only heard of in books and stories told to our children and grandchildren.

In a small Nebraska community an employer was fined for not having a fire extinguisher readily accessible. He had reputedly never heard of the Occupational Safety and Health Act. He did have knowledge of the local requirements established by the local fire chief however, and he conscientiously had his business comply with those requirements. But he was fined anyway. Occurances like this take place all too often. The federal inspectors enter areas where the state has legislation governing the safety of the working men even though the state standards are adequate occupational safety and health standards in their own right.

Right now the Act exempts firms and farms which employ more than 25 persons. While most businesses which have 25 employees are small businesses, a farm with that many employees is a large business. The term "a small farmer" should be changed to one who employes no more than 15 men during a one year period. This would, in my opinion, place the term "small farmer" in better perspective.

In some instances, businessmen have been told that it would be 6 weeks until they could obtain copies of the regulations which affect them. But they were still subject to being fined or sentenced in the interim. A construction company in Nebraska was inspected four times and given a citation each time. This occurred even though it has hired a safety director at a yearly salary of $12.000, and had just spent $87.000 on safety devices recommended by the Safety Commission. Businessmen have the attitude that a request for an inspection is only

a request for an automatic fine. Even when an inspector is invited by a local business to come over to give suggestions, the inspectors are obligated (according to an Area Director of the Labor Department charged with enforcing the Occupational Safety and Health Act) to conduct an inspection of the workplace and give citations if they observe a violation of a Safety and Health standard. A period of one year should be set aside during which time the inspectors will give advice and assistance to those businessmen who seek it. During that time, no citations would be issued to businessmen who in honest attempts at trying to correct their problems ask for help from the Labor Department. This would correct a situation from one where businessmen don't want anything to do with the Act and those who regulate it to one where they seek help or advice as to how their business may comply with the law for the benefit of all who are involved.

Many businesses are facing huge expenses in order to comply with the standards and some face the possibility of being fined out of existence. A car dealer in the Midwest who was in that business for only 12 years had plans on the drawing board to obtain new facilities in a 3 year period. But he had to renovate his existing building to meet the requirements set by the Safety Commission instead. The building was 60 years old. Among the changes which he had to make was the creation of two exits in a solid brick wall. In another example, it has been estimated that to put rollbars on all of the Caterpiller tractors now in use would cost approximately $253 million. This would be like requiring all cars be recalled for new safety devices instead of merely requiring those devices be put in new cars. Yet, this is what is being required. Even the thought of appealing a ruling resulting in a fine or worse is something which the farmer and small businessman cannot afford. The appellate process, and here it involves the Appellate Courts of the federal government, is something which is extremely expensive. A farmer who depends upon his crop for his entire income can't spend thousands fighting a citation fining him for some amount less than a thousand dollars. Yet he can't afford the fine either. Compensation should be made for those employers who are faced with correcting somthing which is a safety hazard if the cost of that compliance is extraordinary.

Some of the changes which have been required have been things which don't affect the safety of the employee or the employer. A small rural newspaper was required to put in over $100,000 worth of equipment changes so that it would be "safe". But in the previous 23 years, there had been only 2 minor claims filed with the Workmens Compensation Commission by that business. A staff worker with Sen. Curtis attended a meeting in which the Safety Commission came up with a new requirement for safety devices on cranes used in the construction business without even requesting or seeing accident statistics for those particular cranes. Those devices were later termed by workers who used them as being hazards and not items of safety. Many Wyoming rancher was required to provide a toilet facilities for each cowhand while another ranch was required to have a "his" and a "hers" toilet even though the only ones on the ranch were a man and his wife who both received a salary for work done on the ranch and thus were employees. Penalties should not be imposed when an employer can prove that the requirements which he has been cited for are something which if followed would not provide for any more safety than would exist without the requirements.

There is very little mention of the employee's responsibilities or of the penalties for their non-compliance. As it now stands, the employer is held to a strict liability for any injury which involves an employee if there is something which is found to have violated the safety requirements. There should be some consideration shown the employer in cases where employees deliberately refuse to comply with safety regulations, such as use of equipment or proper clothing for the job. In view of the severe penalties which may be imposed for failure to comply with the safety requirements, an employer could be unjustly penalized for willful employee negligence. The employer should be relieved from the absolute liability provisions of the act where negligency is involved on the part of the employee. Noncompliance of the act's provisions should not be allowed automatically as evidence of casual negligence on the part of the employer. The use of such noncompliance as evidence of negligence in itself on the part of the employer or the employee should not occur, nor should there be a legal presumption to the same effect. But at the same time, there should not be an absence of casual negligence either. The situation should be such that if there is any negligence

which was a casual factor in injury or accident in issue, that the negligence should be proven; it should not be inferred through a legal presumption for noncompliance of a regulatory statute.

The Occupational Safety and Health Act requires that the employer pay for the medical exams required prior to the hiring of an employee and for additional check-ups (unless the check-up is for research through a government institution). This occurs even though in many instances the employer is required to take whomever the local union sends, without regard to his fundamental health once the initial exam has been made. Thus, the employer is without control over this important aspect of job safety and in addition, is required to pay for exams which are required to be made of prospective employees. What I would like to see is relief to the employer of the financial burden of providing for the medical exams prior to the employment of additional workers. This cost could be born by the Secretary of Labor.

Mr. Chairman, some organization and reason should be brought to what is now a very confused situation. The Occupational Safety and Health Act was passed to help the employee by providing him a safe place to work. It was to ease the huge amount of costs the employers and government pay because of work related accidents. It was not passed to make money through fines; it was not intended to be a way to harrass businessmen. When businessmen make honest attempts to provide these clean, healthy places in which their employees may work, they should be encouraged and helped, not discouraged. Mr. Chairman, the picture should be changed so that safety and health may be truly provided.

Thank you for giving me the time to testify here today on this matter that is of such concern to the people of Montana.

Mr. SHOUP. The Occupational Safety and Health Act of 1970, an act of importance to employees and employers alike, has not worked. What the act was intended to do was to provide for the safety of employees throughout the employment field. It was hoped that accidents could be avoided by establishing guidelines and standards for areas which have in the past abounded with accidents. This would not only be a benefit to the employee who was subjected to poor working conditions, but it would be a relief to the employer and the Government by decreasing the costs of such accidents.

Instead, what has happened is that businesses which have attempted to comply have been harrassed and the worker is still not adequately guarded from injury. When businesses ask for inspectors to visit, instead of assisting, they issue citations for violations. Many provisions have resulted in requirements which do nothing for the safety and well-being of the employee. In fact, many results are ludicrous and absurd.

When Congress-and I refer to the previous Congress of which I was not a member but which I have been assured was a fact from colleagues who were, that when Congress passed the Occupational Safety and Health Act it did not do so to make money through fines or harass the owners of big and small businesses. It was passed in the hope that places to work could be improved and made safe for the workingman. Management and labor wanted to cut down on the number of working accidents and it was hoped that this act would establish some of the necessary safeguards. Unfortunately, what was hoped for and what have been actual results are not one and the same. I have received a great deal of correspondence from my constituents criticizing the act. What these people want is a change in the present law into a decent one which will provide for the safety of the employees and not serve to harass the employer.

I have several recommendations. Basically, one would be that a period of 1 year should be set aside during which time the inspectors

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