Mr. BERMAN. My prime concern is the administration of the law. If, for instance, the standards themselves look dramatically different, obviously, the standards are the heart of the act, if they were responsible standards that would alleviate many of our problems.

As far as the act, itself, is concerned, if you want to stop short of taking the act off the books, consultation with employers, penalties that are given on first instance inspections, the size of the penalties, especially regarding the small employer, the expensive appellate procedures, many of the items that we mentioned in our testimony are indicative of areas in the act which are subject to change if responsible changes are going to be made.

Mr. McKEVITT. Thank you, Mr. Chairman.

Mr. HUNGATE. We in our testimony yesterday heard some 11 different Members of Congress. Montana, North and South Dakota, Kansas, Nebraska, Texas, and Wyoming were the areas represented.

I may have missed one or two. It almost looks like on the map maybe there is a bad administrator running through there or something. But we seem to get less than total satisfaction in other places.

We heard words in our testimony yesterday such as "Gestapo", "tyranny", "arrogance". I think there may be some who would consider your statement on page 3 as to the possibility of a program to consult with and advise employers as being a possible construction of the act that might not do damage to it and might be considered by some to be more in keeping with the purpose of the act.

The act does have the force of law. It has the word "shall" in it in one place. I will go back to my Bologna example the law school example that it should be against the law to let blood on the streets of Bologna. But a surgeon who was treating someone in the street one day was not prosecuted.

We may have a speed limit of 20 miles an hour and I see ambulances going 50 taking someone to the hospital and I don't see them prosecuted. It seems to me there may be in the law some room for reason.

You mentioned about the standards. You gave an example of aladder. There were some 50 kinds of wood and some algebraic symbols. Senator Curtis testified yesterday and he wanted to bring all of the standards, but he could only get two-thirds. That two-thirds of the standards incorporated by reference the standards that were incorporated by reference were over 4 feet tall.

I think many of us would share the view that this is a rather difficult imposition on a small businessman, to get his compliance.

I would read briefly from Senator Curtis' testimony on the method in which the act has been administered. I don't sense any real complaint from you, or do I misunderstand you, on the administration of the act, any specific examples that you consider outrageous in the treatment of the individual.

Mr. BERMAN. In the way of administration, we did mention, for instance, the Department of Labor's interpretation of how much of a writeoff on a penalty a small business was entitled to. I think that is abhorrent.

Mr. HUNGATE. Let me give you some of what I am talking about. I quote from the testimony:

The issue presented by a brief history of this Act and the way it has been administered is clearly one of arrogant power versus education and persuasion, it is the issue of tyranny versus reason.

I have tape recorded evidence of inaccurate information disseminated by the Labor Department in enforcing this Act.

Mr. Chairman, I ask the question is the Department of Labor interested in safety and health or are they on a rampage of harassment. The treatment given the citizens of this country in respect of this law is a humiliation to everyone interested in good government.

The Labor Department should be called to account for its bad performance in administering this law.

The Labor Department should stop treating as criminals individuals providing jobs for others.

The administration of the law is an outrage.

Those are some examples from the Senator's testimony.

I wondered, do you concur or do you stand mute?

Mr. LowE. We concur. But rather than deal in accusations or relationships between the inspector and the inspected, we could bring quite an array of testimony in here to support that bit of evidence, my concern is way beyond.

My purpose is what are we trying to accomplish? What is our objective? What is it going to cost relative to its accomplishment, rather than deal in the argument between the policeman and the man being arrested.

Many of these inspectors are brand-new on the job. These are not skilled inspectors. These conflicts related there, yes, they happen, many

times.

Mr. HUNGATE. Do I understand, counsel, that they had 2 years in which to promulgate standards under the existing law?

Mr. BERMAN. They had 2 years to do what they did in 1 month. Mr. HUNGATE. To that extent, would you think they might have had better success and cooperations and the feasibility of the regulations adopted if they had taken more time?

Mr. Lowe. I interpose this thought: Regardless of the months or years that were taken or might be taken in the application of principles, the man who has one or two employees, running a crossroad establishment or a filling station is going to have the same problems trying to meet this kind of an application of law regardless of the amount of time involved.

I am only bringing that up. My illustration, reporting, for instance. We had one accident to report in 16 years. How will he keep conversant with the fact that he has to report that accident? He is in violation if he doesn't.

Mr. HUNGATE. In the Army they would give a lecture every 6 months.

Mr. Lowe. The larger concerns that have sophisticated engineers and all this inspection, yes, they have some of this data available. But, you see, in promulgating safety to our people working in our establishments we report to ourselves far more than this act requires. We report every near accident.

We have a committee that goes out and says no one was hurt, no time was lost. We examine two things: We go after facts and not fault.

What are the facts as to what happened? Sentiments and emotions come in here. People are human beings. We get the facts on the job

and then we find the fault. We say was it an unsafe act or unsafe condition. If it was an unsafe condition, remedies are put into effect.

We larger establishments do it regularly, way over and beyond the stipulations here. But they are toward the end of not having accidents caused by people. With all the inspection in the world of these facilities, with millions of dollars being spent, my deep concern over this is I doubt if we will lower the number of deaths.

What we are trying to do in industry is teach people to be safe. The law doesn't say anything about that.

Mr. HUNGATE. In questioning yesterday, Mr. Bergland raised the point of suppose someone had only five employees but a very dangerous type business. Would you think there should still be regulations and laws to protect the safety and health of those people?

Mr. BERMAN. That is a difficult question to answer, sir.

Mr. HUNGATE. We hear of exemptions talked of in terms of 10, 15, 25, 50 employees. Suppose we have a dangerous industry that only has five people?

Mr. BERMAN. This is one of our concerns because there may be as much equity for exempting the employer with six people. This is a pretty significant act.

As you can tell from our testimony we are more interested, at least at this point, in developing a fair act than we are in trying to figure out what is the right cutoff point.

I don't deny that there is a lot to be said for exempting small employers who are not capable of handling an act of this complexity. But there may be just as much valid reason behind getting the complexity of the act diminished and not worrying about exempting people.

Mr. HUNGATE. In the regulations and the standards incorporated by reference, do you find any instances-would you say there are some, several, none-where the standards have perhaps no relation to safety on the job?

In other words, are there some standards we are requiring that don't have any relationship to keeping people from getting hurt?

Mr. LowE. The location of fire extinguishers on a wall up or down a quarter of an inch, and other such standards. I don't want to name them all. I don't want to go too deeply into the point of limiting companies to a certain size. The difficulty there is a man can run a department store and have 40 or 50 employees, but his exposure to accidents is very, very minor. He won't have a lost-time accident or fatality in that department store or retail establishment for years, maybe the lifetime of a business.

Here is another fellow who runs a little machine shop on the side with one or two employees. His potential risk capabilities, opportunities for accidents, are quite severe. We who are living in this world see these things, and it is hard to legislate. You can't say this business, "because you are more accident prone and only have two employees, is subject to this law."

"You have 50 employees but you are not accident prone. You haven't had a fatality since you started 50 years ago. We will exempt you."

Now we have them swept up in one big basket. It is horrendous. We have no easy answer.

Mr. HUNGATE. I want to thank you gentlemen for your well-prepared and helpful testimony. It has been a pleasure to have you with

us.

Mr. Lowe. Thank you, sir.

Mr. BERMAN. Thank you.

Mr. HUNGATE. The next witness is Mr. James Gavin, legislative director, National Federation of Independent Business.

TESTIMONY OF JAMES A. GAVIN, LEGISLATIVE DIRECTOR, NATIONAL FEDERATION OF INDEPENDENT BUSINESS; ACCOMPANIED BY TOM RAY, LEGISLATIVE STAFF MEMBER

Mr. HUNGATE. We are pleased to have you, sir.

Mr. GAVIN. Mr. Chairman and distinguished members of the committee, I am James A. Gavin, legislative director of the National Federation of Independent Business. Accompanying me today is Mr. Tom Ray, of our legislative staff.

This federation represents the small enterprises of this Nation, with two-thirds of our 312,000 members employing fewer than eight workers, and 60 percent of them having gross annual receipts of under $200,000.

Because of the deep concern these small firms have shown in their vote on our mandate ballot, and in the high volume of mail they have sent in to us, we are particularly grateful for this opportunity to testify before you today on the Williams-Steiger Occupational Safety and Health Act (OSHA).

Let me begin, Mr. Chairman, by emphasizing that the independent business community is greatly concerned about industrial safety. Frankly, a safe working place is desirable to the small businessman from an economic as well as from a humanitarian point of view.

Our federation members, writing about the Occupational Safety and Health Act; Mr. Henry W. Berousky, Ben's Auto Body, Inc., Portsmouth, N.H., said:

I feel there is a need for this law *

Mr. Arthur C. Boggs, Boggs Industries, Inc., Hollywood, Fla., said: I am in complete accord with the Occupational Safety and Health Act of 1970

Mr. James H. Williams, Fred Williams, Inc., North Randolph, Mass., said:

This law was enacted in order to protect employees from injury and death on the job due to unsafe working conditions. No one can quarrel with that goal. Despite this attitude, however, the Williams-Steiger act and the Occupational Safety and Health Administration have become the most controversial issues to hit the business community in recent years. The three businessmen quoted above went on in their letters to condemn the present program as a threat to the existence of some small businesses, in need of improvement, and "unrealistic."

A poll by mandate ballot indicates that 70 percent of NFIB members favor H.R. 12068, a bill that would reduce the coverage of OSHA

1 See appendix A to this testimony for full text of these letters.

to manufacturing businesses having more than 25 employees. This does not mean that independent businesses want to shun their responsibilities to provide a safe working environment. Rather, they are seeking relief from the whims of the Occupational Safety and Health Administration.

For the prevailing bitterness in the business community results, more than any other factor, from the actions of this agency. OSHA even threatens to undermine the faith in the American system of the small businessmen, the very backbone of that system. "Gestapo" is a word being used constantly, and our members are asking, "Is this still America?"

The Occupational Safety and Health Administration has made a number of mistakes in attempting to implement a national occupational safety program. The most obvious failure has been in communication.

For example, Mr. Lester S. Harner, an interior decorator and general painting contractor in Newark, Ohio, wrote in April 1972, after the law had been in effect 1 year:

Last night I attended two meetings-one a demonstration meeting by a paint manufacturer and the other by a local Home Builders' organization. The first meeting was comprised mostly of painters, and I was astonished to hear that only two of these men had even heard of the Williams-Steiger Act. It seems that I was the only one in our craft to receive one of the forms from the Department of Labor *

The speaker at the second meeting devoted his time exclusively to this law ***. He did state, in effect, that the Federal law was controversial as to interpretation by even Government lawyers and that many points are not yet clear, and that all employers should go by the State code until more information is available.1

Mr. Harner wrote to us because of the problems he was having getting information on OSHA from his State labor department. We can report that the situation is no better at the Federal level.

Private concerns, including this federation, are becoming accustomed to hearing the Department of Labor and the Government Printing Office say that no copies of OSHA reference materials are available. A firm that is inspected before receiving a copy of the rule book cannot. of course, plead ignorance.

Mr. Harner is luckier, for example, than Mr. Norman E. Smith, president of All-Size Corrugated Products, Inc., of Lancaster, Pa. "The inspector came into our plant in January 1972." recounts Mr. Smith. "asked me if I had heard of the act, had I read the act, did I have the rulebook? I said, yes, I knew about it; no, I had not read it : no. I had not received the rulebook. He gave me a copy of the act and Federal Register, volume 36, No. 105 ***. Then the inspector and I toured our plant." The company was assessed a fine as a result of that inspection.1

Actually, even if Mr. Smith had received the literature from OSILA in advance, it would not have been of great assistance, and if Mr. Harner ever gets it, his questions probably will not be answered. The most elementary OSHA publication available is "A Handy Reference Guide to the Williams-Steiger Occupational Safety and Health Act of 1970." This booklet outlines the act in the most general terms. Of

1 See appendix A.