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the thousands of standards which the employer must meet, the "Guide" lists two.

Slightly more helpful is "Recordkeeping Requirements Under the Williams-Steiger Occupational Safety and Health Act of 1970." Most of the text is taken from the "Handy Reference Guide," but the forms required are included and explained. Again, however, nothing tells a manager specifically how to make his shop safe.

The same is true of the "Compliance Operations Manual." In fairness, the manual was originally published as an internal organ for use by the inspectors, not as an aid to the public. Unlike the other publications, it is not provided free by OSHA, but can be purchased from the Government Printing Office. It does not tell much about safety, but it does provide the most substantive information available on procedural

matters.

The final information source available is at the opposite extreme from vagueness and utter simplicity, being instead microscopically detailed and excruciatingly technical. It is the Federal Register, basically volume 36, No. 105, part II, plus amendments published in subsegment issues.

The reliance of OSHA on the Federal Register as the only means of disseminating the standards illustrates its lack of awareness of the realities of the business world.

Although publication in the Federal Register meets the legal requirements for disseminating a law, realistically speaking, it does not inform the public, since few independent businessmen have ever seen a copy of the Federal Register.

While Occupational Safety and Health Administration is correct technically, it is not really helping the workers of America by hiding the rules in a book that employers never read.

Sending a copy of the Register to every small businessman in the country would not remedy the situation, either. The basic regulations consist of 248 pages of fine print, charts, and technical diagrams. The language is difficult reading for anyone but a lawyer or an engineer. This is no major problem for the large firms, of course, but the firms this federation represents frequently have a staff of one bookkeeper, if they have a staff at all.

Mr. David Kenniston of Seaboard Manufacturing, an NFIB member in Warren, Maine, wrote:

I suppose I should try to have everything in compliance before any inspection, but not only is this expensive, it is about impossible to interpret the regulations for a given situation *** OSHA, along with all other Government-related requirements, *** nearly takes a full-time bookkeeper just to handle the paperwork

A brief study of the Register reveals obvious problems. There is no alphabetical index, just a table of cortents. The contents do now show appropriate page numbers, just CFR section numbers. There is no breakdown by industries. The most common query the NFIB receives is, "What are the requirements for a retailer?" or "a small manufacturer?" or other industrial classification. But no breakdown of the regulations by industries exists.

Format is not the only problem. Standards were adopted wholesale, with little apparent thought as to need, applicability or practicality.

1 See appendix A.

80-497-72-12

Assistant Secretary of Labor Guenther, for example, has tentatively admitted that portions of section 1910.106 do not apply to occupational safety and health at all. (See app. B, letter of May 12. 1971, from Secretary Guenther to the National Oil Jobbers Council.)

Most Members of Congress must by now be familiar with the problems created by the failure to distinguish between light and heavy construction. Another example is Subpart J-General Environmental Controls. Specifications under this subject include 1910.141 (a) (2), titled "Expectorating"; and 1910.141 (c), "Toilet Facilities." Included under "Toilet Facilities" is a table showing how many "water closets" are required for a given number of employees.

In addition, toilets must be segregated by sex, so that a small retailer with one male and one female employee must have two restrooms. A job site with 24 all-male employee passes with the same number of facilities.

A more distressing subsection is 1910.25, "Portable wood ladders." This is obviously an extremely important regulation, pertaining to a very common, and potentially very dangerous, implement. But for a small businessman, the requirement might as well be in Latin. Indeed, there is some Latin terminology in this subsection.

Table D-5 lists the 55 types of wood permissible for the construction of ladders, and classifies them according to the stress to which they may be subjected. A formula is provided for determining stress, as follows:

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General Motors can buy its ladders based on such decision parameters. The corner grocery store cannot.

OSHA's inscrutable rules are creating a new industry in America. "OSHA can make your head hurt," begins an advertisement by an insurance company.

The ad goes on to explain how the company will aid a business in the "formidable, even frightening task" of "coping" with the Williams-Steiger act.

Keeping up with the changes in the hastily adopted early standards is such a challenge, even for large businesses, that there are now at least three regular periodicals devoted to the act. Along with the initial 6 months' subscription (which costs $85), "Frontiers in OSHA," one of the periodicals, includes an index of the regulations and a list of most common violations.1 This information is, of course, known by the Department of Labor, but is not made readily available.

OSHA personnel in Washington frequently comment that the only real problem is "rumors," difficulties that exist only in the minds of employers based on hearsay.

Our first comment on this is that rumors flourish in an informational vacuum. OSHA can stop the rumors by supplanting them with information.

Second, OSHA's own field personnel are helping create the rumors, in an apparent attempt to subdue the business community.

1 See Appendix C.

Indeed, the attitude of the compliance officers is second only to communication as a problem in this program. Mr. Lee Scott, of Carol Lee Products, Lawrence, Kans., gives his impression of a compliance officer at an OSHA "seminar" as follows:

His arrogant, belligerent attitude made me wonder if it is the government's intent to intimidate all business into total submission to the government. Some of his statements in regard to one's attitude toward the inspector tends to varify this feeling, because he indicated if one wasn't nice to the inspector, the fines could be higher. Also, his implication that, like a mule that had to be hit in the head with a two by four to get his attention, he was going to get ours.1

We believe that this outlook is not an official one. The staff people in Washington want to be fair to everyone involved, reflecting Secretary Guenther's attitude in his interview in Dunn's Review of February 1972.

Unfortunately, Washington seems unable to create a fair attitude among all of the field personnel. An appeal procedure exists, for example, but many of the letters we receive complain that the appeal as "explained" by compliance officers is too complicated to undertake.

It is impossible for us to determine at present the extent of this abrasive, domineering, browbeating attitude. It could be a few inspectors—and we do get some comments on courteous inspectors-or a majority. But a problem exists, and there is more here than "rumor." The fault does not lie totally within the Department of Labor, however. Subtly hidden within the act itself lies a simplistic concept of guilt and punishment, an assumption that industrial hazards are consciously condoned by businessmen. The desire for punishment, or perhaps for revenge, is so strong that safety seems to have become secondary.

Why, for example, does section 2(b) (10) prohibit any advance notice of inspections? What could an employer do, other than correct a violation? Is it not desirable to have the correction made as soon as possible?

Why should a business be fined even if it conscientiously seeks to comply with good safety practice?

Take the hypothetical case of a piece of equipment of which only one basic model is manufactured. Suppose that this machine is ruled a serious hazard. A company that does nothing about this must, of course, be fined according to section 17(b).

But consider a company which was honestly unaware that a hazard existed, but which, upon learning of the hazard, immediately modified the machine to make it safe. According to section 9(c), this company can still be cited for the violation up to 6 months after it is corrected, and if cited must be fined.

Where is the justice in this? What is the businessman quilty of, some industrial form of Original Sin? What lives are saved by the fine?

Punishment is an appropriate tool for gaining compliance with some laws, but not with this one. Compliance itself can require an investment running into thousands of dollars. The small business provision of the act is a mere token. We know the SBA loan money with which that section deals is always tight. And a loan, after all, is not a

1 See appendix A.

grant. The investment itself would seem to be a kind of punishment. More important, there are too many firms to be policed. From April to October, 1971, 5,600 or about 0.14 percent of the 4 million firms covered were inspected. Apparently we can expect less than 1 percent of the firms to be inspected in a given year. With odds like that, the small businessman woud be wise to take his chances, if his only incentive to act were a fine.

Fortunately, most independent business people earnestly desire a safe working environment. It is to this desire that our national safety program must be keyed. Show the independent what must be done, and he will do it voluntarily. Save the punishment for those who willfully evade their responsibility.

Mr. Chairman, the NFIB has received an extremely high volume of mail because of the Occupational Safety and Health Act of 1970. A sample of these letters has been appended to this statement, and I respectfully request that these letters and the other appended material referred to in the text be included in the record.

Mr. HUNGATE. Without objection, the letters and items appended will be filed as exhibits with the committee.

Mr. GAVIN. Thank you. Mr. Chairman.

These letters show that OSHA is a small business problem. It is the independent who lacks the expertise to interpret the complex and obscure rules: who lacks the staff to apply those rules to his plant; and who lacks the finances to make the drastic changes in capital investment often required to comply.

OSHA is trying to make the small businessman appear to be an enemy of safety. We hope these hearings will call attention to the fact that the independent is and wants to be a friend of safety.

If this committee can change the course of the Government from that of blind vindictiveness to one of education and assistance, it will have performed a signal service to the workers of this country, as well as to the independent businesses.

Thank you, Mr. Chairman.

Mr. HUNGATE. Thank you for your statement. It is very helpful.
Mr. Bergland?

Mr. BERGLAND. Thank you very much. Mr. Chairman.

Mr. Gavin, with respect to your recommendation that small employers be exempt from the provisions of the act, frankly, this is a matter that bothers me a good deal. I do know of some highly hazardous businesses which maintain a relatively small workforce.

I don't really believe that they should be exempt from compliance with not only the act but with the intent of Congress to maintain safe working conditions for employees.

How would you rationalize the situation where an employer with only three people has a high rate of accidents? Should he be exempt where an employer with 40 employees, with no problems, would be forced to comply?

Mr. GAVIN. I agree in those areas where they can show a high incidence of accidents, I don't care if there is one employee, they should be subject to the act. But I think in the majority of instances, those with 25 or fewer should be exempted.

Mr. BERGLAND. Even though they may have a hazardous business?

Mr. GAVIN. No. I said in those cases where there is a high incidence of accidents I don't think they should be exempted from the rule regardless of whether it is a one-man shop or a 1,000-man shop.

Mr. BERGLAND. I happen to agree with you completely. I think we need to find a way of applying some rule of reason in the administration of the program.

Mr. GAVIN. I really don't think the small businessmen themselves would expect that either.

Mr. BERGLAND. Mr. Gavin, I have just one more question. Most of the businessmen from whom I have heard are really frightened by this program because they feel that it could drive them out of business. I have been told there are some rather unscrupulous business organizations that have gone in to exploit this fear. They are selling systems, gear, apparatus, claiming that OSHA requires this. When checked out. it was found that these guys were just not legitimate.

Have any of your members reported visits by firms attempting to sell systems?

Mr. GAVIN. Not exactly. We did make reference to the fact that a whole new industry is springing up as a result of this act.

Tom, you just attended a seminar. Maybe you would care to comment on that.

Mr. RAY. The seminar I attended was conducted by, I believe, a reputable management consultant firm. I am sure there are many reputable people who are offering their services as well as the not so reputable.

I am sure there is a possibility of error even among reputable companies. For example, a paint mask, one type commonly used for several years, I found out at the seminar, was assumed to be in compliance with the act, assumed so because it was made by a large company. The mask was not in compliance with OSHA. The people who bought this, who used it, got fined. I think it is a large area where a lot of people can be making money and I am sure they are.

Mr. BERGLAND. It could happen that a legitimate safety engineer could be hired to inspect a facility. He could make his recommendations. The employer could comply with those recommendations and he could still be in violation of OSHA?

Mr. RAY. Yes. As a matter of fact, one of our letters from one firm pointed out the fact that when the plant was built, they asked the city fire inspector to check out their fire extinguishers and so forth to make sure they were in compliance. They were cited under OSHA for their fire extinguishers not being the right height from the floor. They were not fined but they were cited. This was a city inspector that had okaved it.

Mr. GAVIN. I am sure there will be a certain amount of exploitation. This is usually characteristic when anything new appears on the scene. We have not heard of any and if we do we will be sure to bring it to the committee's attention.

Mr. BERGLAND. Please do.

Mr. HUNGATE. On page 3 of your testimony, you state:

Private concerns are becoming accustomed to hearing the Department of Labor and the Government Printing Office say that no copies of OSHA reference material are available.

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