on another set of hazards, and the next day it is something else, because of the fact that the building as it progresses is going through different phases. So we are under constant exposure. But the standards as now written are so detailed that they are detailed beyond the specifications by which you put the building up in some instances. And it gets to the point that you really don't know what it means that you are reading, you really just can't understand it. You need somebody to help interpret, and you need a set and guided way to go. You need time for the variance process to work and to test the standards themselves, and to get them minimized to what really is effective safety practices. As an aside, the Occuptional Safety and Health Act Review Commission, which is a separate organization from the Department of Labor, enters into this business of OSHA when you appeal a citation or protest a penalty, which we have done. Now, we come to discover, that when we did this our notification that we send to the Department of Labor a copies of that have to be serviced on our unions even when we are protesting the penalty alone. Now, under the act the provisions for setting up the protest, if you read it, it specifically refers to citations in every case. So, if we were protesting the citations and cited safety violations themselves, then we are required to notify the labor unions or the employer representative groups as it might be. But when we are protesting a penalty, with the amount of dollars involved in a particular offense, we don't feel that that type of service requirement is necessary. Mr. HUNGATE. You are not protesting the citation liability? Mr. HUNGATE. It is simply the reasonableness of the penalty? Mr. TARR. That is right, the dollars and cents of the penalty, the amount of the penalty. And we did this on this ground merely because of the time element that I mentioned before, it is just difficult to prepare a good defense in 15 days for a particular violation. And so what we are exposed to, now, is the requirement as to the servicing of our representative group when we appear before the Review Commission we have to certify they have been serviced with all the papers. And they have the right to appear and testify regarding the amount of our penalty. And we feel that this is definitely wrong. It is a misinterpretation of the intent of the law, we feel, if you read it. That is the way it reads to me, it is a misinterpretation. I protested this particular fact in my correspondence with the review commission judge, and was told that this is the procedure that I must comply with. That is their interpretation. So, in closing I would like to appeal that you take this recommended action to help establish oversight hearings, so that these amendments that are so urgently needed are received and administrative reforms are directed by the authority of the committees involved. I personally see no hope in trying to get this law repealed, because its purpose and intent are too noble a cause. I wonder, however, if these purposes were so nobble, why Congress elected to exclude the largest employer in the country from its protection, that is, all Federal, State and political subdivisions employees are excluded from the law. (The statement of Mr. Tarr follows:) STATEMENT OF JAMES R. TARR, VICE PRESIDENT, SPILDIE FOREWORD I am delegated to appear before you to present the following testimony, to which I am sworn, with the assistance of the Billings Contractors' Council and through the most courteous arrangement of our Representative from the 2nd District of Montana, the Honorable John Melcher. The firm of which I am an officer is a smail business firm, incorporated in the State of Montana, and has been in existence for these past seven years. I will confine my verbal testimony to summarizing this written testimony so as to stay within the time allowed. I do hope that the Committee will take time to study it fully. It is difficult for many people to believe that a Government agency (i.e. Dept. of Labor) could be allowed to operate with what has been called by many as a Gestapo approach to safety, but it has happened right here and now. The Law that permits it is O.S.H.A. 1970. For example, a safety inspection on one of our projects resulted in a proposed penalty of $445.00 for a list of "Other Non-Serious Violations". A typical item on this list was a penalty of $35.00 for having a ladder not extending 36′′ beyond the landing point (It was 26'' beyond.) and for having another damaged ladder that was removed from use but was on the job site and was not tagged "out of service". Both of these problems were instantly correctable once noted, which we did do, however the item was cited and we have been penalized anyway. Think of the paper work and documentation and strife that would have been saved, had we only been given the common courtesy of correcting this type of minor discrepancy when discovered. I have read through the Standards published for Construction and have been over some parts several times, but I am not a Safety Engineer and I can't learn to think like an O.S.H.A. Inspector. I can't gain his experience and the way the Law is administered I can't afford to ask for his help in evaluating our Company operations. I can, therefore, only assume I am interpreting what I need to do and suffer the consequences if I am wrong by another's (i.e. the Inspector's) opinion. The Occupational Safety and Health Act was passed in December of 1970 and the publication of the Standards and mobilization within the Department of Labor of the administrative effort did not begin to show its effects upon our business until the early summer of 1971. The initial publication of Standards as relate to Construction were published in the Federal Register, Chapter XIII, Part 1518, Part 11, dated April 17, 1971. It took a month or two to get this information disseminated to us through our Association sources (i.e. the Chamber and our Contractors' Associations). I have attended a filmstrip seminar sponsored by the Chamber and seminars conducted by our Contractors' Association and am a member of the Safety Committee of the Billings Contractors' Council. Basically I have been aware of, attempting to work with, and trying to educate myself and our employees on the impact of this Law for about one year. The extreme detail of the prepared Standards makes them almost incomprehensible. I am still learning and gathering information about how the Law is being administered and how it affects my business and my industry. I am expert only in this area and must relate all my evaluation to that end. During this same past year, Congress and the Executive Branch of the Government have been at work to pour out an unusual challenge to every small business in the country. We have so many new terms to deal with and new administrative orders to comply with, that the more I study the more I discover that we are possibly guilty of violating many laws that were unheard of only two years ago. We struggle to comply with E.E.O. policies and reports, Phase II economic controls such as Pay Board guidelines, price commission rules and the decisions of the Construction Industry Stabilization Committee. I.R.S. accelerated payments impose a burden on financing our payroll costs. These things we have had to put up with in this short time are, however, nothing compared to the impact that O.S.H.A. is having. When I read the O.S.H.A. Act. I found that the Congressional Findings and Purposes were indeed a noble and desirable effort. Having experienced the inspec tion and penalty assessment process, I can't understand how the Department of Labor could ever hope to achieve that purpose using its present tactics. I will comment on these administrative fallacies later in this testimony. Right now the employer who honestly and sincerely wants to improve on the safety and health conditions of his employees' work area cannot call for a safety inspection without subjecting himself to a penalty, should any other (Non-Serious) violations be noted on his citation (i.e. Sec. 10 & Sec. 17 (G)). Not one courtesy inspection is allowed. Where else in any previous health or safety legislation has a penalty process been used this severely? The restaurant owner, mining firm, or hotel management has always been put on notice for health or safety violations, and been given an abatement period and not fined unless he failed to correct the discrepancy. Not so under O.S.H.A. for even the immediately abatable discrepancy. Under O.S.H.A., when you call an Inspector for an interpretation of the Standards, you cannot reason or debate their position without stirring their interest in inspecting the possible discrepancy and subjecting yourself to a fine. For this and many other reasons, I have come to the conclusion that both the Act needs amending and the Department of Labor needs to revise its administrative procedures when dealing with this Law as it applies to the small business firm. First, I will recommend some necessary amendments and then present some recommendations for administrative changes. I strongly feel that Oversight Hearings must be held in the House Committee on Education and Labor and in the Senate Committee on Labor and Public Welfare. If this Committee can do anything in the interest of the small business man, then it must urge that this starting point be permitted. For amendments to the O.S.H.A. Act I recommend the following: 1. Amend the Act to put a moratorium on the penalty process for at least 3 years, (Sec. 17(c)) for any employer eligible for small business administration assistance and/or meeting the definition of small business by Federal procurement regulations. JUSTIFICATION It takes time to study, learn and understand this Law. My company cannot afford to hire a safety engineer to guide us through the Safety Standards. Time is needed to educate us through a non-penalizing inspection process. This moratorium will also give the Standards a chance to be proven necessary and appealed when necessary to avoid the severe economic damage that is occurring to the small firms that can't afford all the new equipment immediately required. The penalty money we had to pay ($445.00) could have been so much better spent upgrading our equipment to improve the working conditions for our employees. Large firms with safety engineering staffs and years of experience just don't have the problem complying with this Law as does the small business man. We need time to learn, equip and educate our employees. 2. Amend the Act's provision on Procedure for Enforcement (Sec. 10) to allow additional time to contest a citation or proposed assessment of penalties. Change all reference to 15 days (Sec. 10 (a), (b) and (c)) to read 30 days. JUSTIFICATION 15 days is just not enough time to prepare a proper defense and to file a thoroughly prepared protest. In our case we did not have time to properly investigate the numerous items on our citation prior to lodging a protest, so we were able only to appeal the proposed penalty. I expect this appeal to be very weak, having not been able to protest the cited items (such as the ladder I mentioned), all because of the short 15 day period allowed. 3. Amend the Act to eliminate an employer's liability when an employee refuses to comply with the Safety Standards established for his protection (Sec. 6). JUSTIFICATION Negligent acts of employees are not excusible to the employer when cited. (The subject is not even covered in the Law now.) Our employees are a key part of our safety efforts. We have no recourse to impose compliance with the Standards other than the threat of termination. As the Act is now applied, the employer is penalized when the employee it is trying to protect does not use the safety equipment provided him or, as in our case, places a gasoline can in a storage shed after having been told to place it outside in a designated safe storage area. The employer can go so far in educating, training and providing a safe and healthful environment, but his efforts can be wasted on an employee who does not comply or take advantage of it for one reason or another. Regarding administration of the Act by the Department of Labor, I recommend that the following administrative procedures be investigated. 1. (Section 21) Training and Employee Education is almost completely ignored by the Department of Labor. This section must be given the priority it deserves. As stated, we learned about this Law and its application mainly through our Association memberships, not from the Department of Labor. In one year's time they have conducted one seminar in Billings. If you could not attend that meeting, you were left out for an unannounced time. Our best source of information is still our Association membership. No notice of variances approved or revisions to the Standards is being published and disseminated to employers. 2. (Section 8) Inspections, Investigations and Record Keeping is being 80 poorly handled that the employers' very Constitutional rights are possibly being violated. If this Law is ever tested in our Judicial System, it will be this Section and Section 10 (Procedure for Enforcement) that come under fire. Subparagraph (d) Section 8 specifically provided protection of small business calling for a minimum burden and it is ignored. In our case we must keep records on each project site rather than our main office, where all our other employees records are kept. We keep records on each local job and at the office. This is a stupid duplication that achieves no purpose for us except to preclude another citation being issued for the infraction. I know of two firms in our community whose owners have advised me that their inspections occurred the next day after dismissing a disgruntled employee. This possibility should be investigated as such a procedure is not covered by the Law. As now allowed, only employees or the employees' designated representative are allowed to lodge a complaint and that complaint is to be served in writing on the employer. In such a case, the employee's name is to be omitted. This is a definite instance of an accused (the employer) not being allowed to face his accuser (the employee) in a possible penalty process. The Department of Labor appears, having chosen to inspect us and other small non-target industry firms, to be inspecting and citing and recommending penalties that they hope will not be protested so that a schedule of penalties will be established by precedence that will be used later to defend their position before O.S.H.A. Review Commission hearings. 3. Section 6-Occupational Safety and Health Standards have been written and published as pertains to construction and it is next to impossible to comply with all provisions. The Standards we now have are so detailed that no matter how hard we tried to comply, we couldn't. For example, our extension cords are to be kept elevated or they are to be chased across traffic areas (even foot traffic) while being used. (We were cited for violating this Standard.) You should try to move from room to room with a hand tool power screwing studs or sheetrock and try to comply. Or try to elevate a cord on a skill saw on the top deck of a building with no overhead structure while forms are being built for concrete, and you can see how compliance is impossible. When stripping concrete forms, how do you preclude a few boards with nails in them from falling to the ground or on a working deck? Why can't debris be cleaned at proper intervals instead of constantly? While under construction, our work areas are constantly changing form and conditions vary from day to day. One must study these Standards as applied to each and every operation and these Standards are often more detailed than the job specifications themselves. Read the ridiculous paragraphs on an approved ladder. Then go try to buy, find, or build one that would meet the Standards. Our men themselves complain that to use the Standard directed safety can for dispensing gasoline is much more a hazard in filling a gas tank on a piece of equipment than our former unapproved goose-neck type cans. How many men have lost fingers trying to clear a guard on a table saw compared to those lost on the same saw without a guard? The re-equipping, the detailed work procedures, the time and materials involved in keeping a construction site in compliance with every Standard published is costly, beyond necessity. As an estimator I include these costs in my proposals. I would judge that the Standards now in effect for construction are costing owners 2% to 1% more now under O.S.H.A. than before. This is inflation caused directly by these administratively developed Standards. If common sense were used instead of the threat of penalties for violating minute detailed Standards, this pass-on cost would be minimized, if not eliminated. The fact that recognized hazards exist on construction sites is one reason safe practices are engrained in the training and skill of our employees. The accident prone, careless individual does not qualify to work in this industry. Recognizing that many hazards exist, they are usually avoided by the construction craftsman who is experienced and trained. As an aside, let me discuss one more subject, the Adjudicatory Agency called the "Occupational Safety and Health Review Commission". When you protest a citation or proposed penalty you come under the "Rules of Procedure" of this newly formed agency. I have found that these procedures are being interpreted to require me to notify (special service required) the representatives of our employees when protesting and/or presenting pleadings to the Commission. The Act. (Section 10) specifically requires such notice only when cited items are contested and does not require this action when the penalty alone is protested. I maintain the Law intended this protection for employers since the penalty amount is a subject outside the concern of our employees' representative groups. Just think what could happen if those now serviced (i.e. Unions) are allowed to enter pleadings on the amount of the fine I am subject to. As the Review Commission is now interpreting the Law, they can. This fact alone should shock you into investigatory action! In closing, I would simply appeal that you take the recommended action to help establish oversight hearings so that amendments so urgently needed are reviewed and administrative reforms are directed by the authoritative committees involved. I personally see no hope in trying to get this Law repealed as its purposes and intent are for too noble a cause. I wonder, however, of these purposes are so noble, why has Congress elected to exclude the largest employers in the country from its protection—(i.e. all Federal, State and political subdivisions employees are now excluded). I swear that the before prepared testimony on the Occupational Safety and Health Act of 1970, P.L. 91-596, is the truth to the best of my knowledge and belief. STATE OF MONTANA JAMES R. TARR, I certify that James R. Tarr did appear before me and signed and swore to this testimony this 26th day of June, 1972. JUNE W. MILLS, Notary Public for State of Montana. Mr. BERGLAND. Thank you very much, Mr. Tarr. And Mr. Weber, we will hear from you, and then we will question you together. TESTIMONY OF FRAN WEBER, PRESIDENT, SUHR TRANSPORT, GREAT FALLS, MONT., ON BEHALF OF MONTANA MOTOR TRANSPORT ASSOCIATION AND MONTANA AUTOMOBILE DEALERS ASSOCIATION Mr. WEBER. When we came here we certainly didn't intend to consolidate our testimony as one. We are both from Montana but I had never met Mr. Tarr before. And he was supposed to be representing one group and I another. But that is immaterial. I represent Suhr Transport, the Montana Motor Transport Association, together with the Montana Automobile Dealers. |