In more up-to-date times I think many drunks have probably been grateful the police just took them home.

There are bad checks and nonsupport cases where the man could be prosecuted but sometimes they think they will get more money to let him work. They use discretion in those cases.

Statutory rape is a strong example of a 17-year-old boy and a 16year-old girl, a capital crime in many places. I think sometimes it is not handled that way.

The Supreme Court in school busing has been alluded to and they found that this integration ought to come about but it is 18 years later and they are still giving time. So I suppose there is discretion in the law.

I appreciate your testimony on the subject.

Mr. THONE. As you know from having practiced law a long time, there is a lot of discretion if they really want to read it into the statute. They haven't chosen to do so. As a result, I think the chickens are coming home to roost. I really think so.

Mr. McKEVITT. Don't you think it is dangerous to give the investigator the roles of judge, prosecutor, and investigator all in one? Some claim this is what's happening.

Mr. THONE. I don't think that will stand up with a court challenge. And, it is being challenged now, as I indicated earlier. Mr. HUNGATE. Thank you very much.

The next witness will be Congressman McCollister.

TESTIMONY OF HON. JOHN Y. McCOLLISTER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA

Mr. MCCOLLISTER. Thank you, Mr. Chairman. I am happy, gentlemen. to appear before you to try to assist you in your purpose of identifying the specific problems small businessmen are having with the Occupational Safety and Health Act of 1970.

I will take but a moment of the subcommittee's time and present to you the result of a survey of 400 Omaha businessmen taken by the Omaha Chamber of Commerce in cooperation with my office. The tabulation of the responses to the questionnaire as attached as well as excerpts of comments made by some of the respondents. I hope that you will make these a part of the record.

I believe that the survey, and most definitely the great volume of mail and other constituent contacts I have had on the subject of the Occupational Safety and Health Act, can be broken down to reveal some of the defects in the law as it pertains to small business:

First, it seen is evident that it is not clear to small businessmen how the act applies to them and what they are required to do to avoid. citations.

Second, there is a strong feeling among small businessmen that the method of citation without warning is fundamentally unfair and open to abuse, especially in view of a general lack of understanding of the rules.

Third, a great many businessmen feel that the act installed a system that is financially unrealistic, both from the point of view of the small businessmen who must expend funds to comply with it and from the point of view of the possible benefits realized from public funds to enforce it.

Fourth, there is a feeling, especially from small business, that the act just sets up another layer of bureaucracy and regulation at a time when business is suffering from a superabundance of bureaucracy and regulation.

Fifth, and finally, there seems to be a noticeable resentment about the lack of a logical differentiation between classes subject to the act; for example, between light and heavy construction, or, just generally, between small and large business, where the risks are fundamentally different both in character and degree.

In summary. I am most grateful to the subcommittee for the opportunity to present the chamber of commerce tabulation and the essence of my mail on the subject of the Occupational Safety and Health Act. I hope that the subcommittee will give to both its very serious consideration.

(The attachments referred to follow :)

RESPONSES FROM OCCUPATIONAL SAFETY AND HEALTH ACT SURVEY, OMAHA, NEBR., JUNE 15, 1972

OCCUPATIONAL SAFETY AND HEALTH ACT SURVEY, OMAHA, NEBR.

Questionnaires were mailed to 400 Omaha businesses. This represented a cross section of all business categories. Percentages were determined to correspond with the number of companies in each category.

One hundred thirty-five (135) total replies were received. Only five categories received sufficient response to be meaningful. These are as follows:

The following is only a summation of the responses and does not represent any attempt to determine correlations between responses to specific questions. Pertinent comments made by respondents are listed by industry category on the following pages.

Wholesale

PERTINENT COMMENTS, JUNE 15, 1972

Our business serves approximately 80 small businessmen in the Nebraska-Iowa area of less than 25 employees. Let me first of all state, that, I can well understand the need for provisions of safety and health requirements to adequately protect an employee. Let me also state, I and my customers are anxious to provide adequate safeguards for all of our employees during the course of their daily employment.

However, let me point out that the requirements of the present OSHA standards and particularly the record keeping, places an almost intolerable burden on the shoulders of small and medium business.

We believe that Senate Bill (S3262 which would exempt employers of less than 25 employees) and House Bill (HR13562 which would abate penalties on the first inspection by an OSHA representative) should be supported.

We feel this law would be a good thing if it had allowed an inspection and recommendation for corrections without the original visit resulting in fines. Violations should result in citations only after failure to correct a fault, after it had been brought to the company's attention.

I have visited with many friends in business who may have to shut their doors because too expensive to comply.

Fines assessed to violators automatically should be unconstitutional-We have lost the right of a trial by jury; really it's an anarchy.

Since we are in the health industry, we have and have had necessary equipment. We have always been careful of all hazards, because of a keen interest in our employees welfare! From the cradle to the grave, I think the socialistic trend of government control is becoming assinine, impossible in many areas as the OSHA, when the Mines Safety Act is unable to control man-made floods as in W. Virginia and the recent fire in the silver mine, and has been "active" for many years.

Manufacturing

Monies spent as a result of the inspection were in areas where there were no problems or record of injuries to plant personnel.

We have two plants over 50 years old, and two built within last ten years. It would be cheaper to abandon them than to bring them into compliance (the two old ones). Our industry requires explosion proof electrical wiring. The $25,000 was spent in Iowa to pass their State inspection. It would not pass OSHA yet.

OSHA would put us out of business.

Inspection was generally fair although no allowance was made for the fact that some of the machine guards are very difficult to obtain.

Fines should not be assessed immediately. Inspection should be made and time given to comply. We hired a safety engineer to get information and advice as to what we should do. Still there were many questions not answered. We have tried to apply the OSHA Register to our plant and at this time, feel we would have to close our plant if required to meet the requirement of OSHA. We are against the ever expanding control of government over industry. Every company is aware of safety measures that must be taken in their particular operation for the protection of their employees as well as to prevent insur

ance costs from rising and outright cancellation of insurance due to unsafe practices.

We are certain any common sense program that provides guidelines to follow would be welcomed by most industries; however, some of the requirements of the OSHA border on the ridiculous, and the fines and penalties levied we consider to be unreasonable and a serious threat to the continuance of some small businesses.

Undoubtedly, the OSHA program will provide employment for many persons who will have to justify their existance by "discovering" many violations. The OSHA requirements certainly provide every opportunity for them to do so.

Possibly there was need for this kind of legislation but the environment of the worker has been improved so much in the last 25 to 30 years by air conditioning, modern lighting and improved machinery that it seems like the situation was taking care of itself.

Competition and increased labor costs force the employer to replace equipment with newer, more modern machines as fast as he can but federal and state income tax takes one-half of the profit so there is a financial limit.

Moses was able to give the Israelites the Ten Commandments. The U.S. government, in spite of its ability in atomic science and interplanetary communication, has never published a check list of requirements of this act in specific, definite, understandable terms as far as we know. The last information from our national association in Washington, D.C., was that they were trying to interpret the Act as it would apply to our industry. In other words, we do not know what we are doing wrong until a federal inspector comes in. There is one exceptionwe have learned that the type of toilet seats in common use are unhealthy.

One thing the act has brought about is a fertile field for so-called safety engineers. Almost daily we receive phone calls and mailings from companies offering an inspection or monthly inspections to tell us what we are doing that is so wrong. Why should we have to pay for this information in addition to the cost of compliance?

What is the purpose of the crash program? Is it to help the unemployment problem by creating an army of inspectors and bureaucrats or to add to the unemployment problem by immediately taking out of production the machinery, factories, etc., that probably would be replaced in the next few years at the end of their depreciable life?

Certain good points about it as for making places safer for employees to work in, but penalty is too severe for initial inspection. Where employer has tried to comply with the law, 98% of places inspected would not pass inspection.

We agree with the intent and purpose of the act and favor local control (state). However, we feel that there has been an over-reaction by the administrators and inspectors and that some tempering of the act is in order:

1. Some provision for advice and counsel from OSHA without fear of inspection and citations.

2. Employer should not shoulder responsibility alone-must recognize employees' responsibility.

3. Reasonable alternatives should be made for safety for (a) the small employer; (b) old plants and/or equipment.

4. Remove potential for harassment by militant union or disgruntled employee.

5. Reasonable fines for citations are in order to keep employers honest and to force employers to start a safety program before inspection, but restraint on the amount of fines, particularly on first inspections, are in order. Save the larger fines for the employer who, upon being made aware of the hazard, doesn't take corrective action.

We believe the Act should be modified and certain features eliminated:

1. OSHA is inspector, judge and jury. Curbs should be found to the unlimited powers of the office to levy fines, etc. The system as it stands is vulnerable to kickbacks and payoffs.

2. Fines should not be imposed at the time of the initial inspections, except for perhaps very serious violations. Violators should be given a reasonable amount of time to comply with the law before fines or other punitive action is taken.

3. The Act should concern itself with conditions directly relating to safety only, and not have authority in other areas. (Regulations pertaining to coat hooks in toilets, etc.). The object should be to promote safety but not at the cost of driving up costs and prices, feeding inflation, or even driving some companies out of business entirely.

We have been in business since 1904, manufacturing custom made marking products. During World War I, World War II, the Korea War, and now Vietnam effort, we have been called upon to furnish instruction parts and various marking products.

In the time, we have been organized there has never been an accident as much as a dismemberment of a finger nor loss of eye or faculty. We have always considered our employees to have a fair degree of intelligence and have always indoctrinated them with the importance of safe working habits.

If we were to be inspected today and advised to meet the rigid regulations of OSHA, we would be compelled to discontinue business and declare 90% of our equipment obsolete.

We believe OSHA is a wide blanket indictment of industry which will create unnecessary cost and expense to industry which, if carried out, will destroy the competitive system of our economy.

Construction

1. Record keeping and reporting is expensive-but exact cost is not exactly determinable.

2. One of OSHA sections provides for re-citation and levy of fine against any employer who after having received original citation fails to post notices at all "work places" that he (the employer) has been originally cited and/or fined, ect., this provision carries a connitation of gestapo tactics.

3. In my opinion it is constitutionally wrong to permit accusations by employees against employers while simultaneously refusing the employer an opportunity to know and face his accuser.

4. Saddling the employers with this additional cost at this time is nothing short of outrageous. Have no idea what total is but it obviously runs into millions of dollars. It starts with a new assistant Secretary of Labor and a vast office full of personnel in Washington. It continues with assorted regional and district offices, phones, personnel, lights, heat, air conditioning, automobiles, plane fare, salaries, sick leave, vacation, retirement, etc., for thousands of personnel not really required in the first place. Enforcement of safety like enforcement against murder and riot belongs in hands of the separate states.

This act has gone so far beyond practical safety needs that it is ridiculous. If highway safety laws were as restrictive, it would be against the law to drive over 35 milies per hour on any interstate highway.

A couple of observations-What a beautiful tool for organized labor to harrass a non union company. The law assumes that individual workers are imbeciles because they are not responsible for their own acts.

Retail

At present we are sitting to determine what will be necessary and what will not be required of us.

I would rather see a state agent do the job as long as not partilities involved. Do not believe any inspector should have undisputed powers as I have heard some have done. Our trade association has given us a pretty thorough comprehensive outline to follow.

The law is written so sternly that there is no way we could conform without spending thousands of dollars, which our industry could not justify in any way. I don't think there is any question but if they law is strictly enforced then it will break many companies to comply.

Mr. MCCOLLISTER. If I might call your attention to the survey attached, you will note that on the number of employees by companies responding, by far the great number responding employed less than 150 people. The number from zero to 49 were 54 and the number from 50 to 149 were 35 of the respondents.

Referring to testimony earlier today on the fact of older plants and the difficulty of their compliance, perhaps you will note that on the age of the plant, 59 of the respondents had plants that were over 15 years old. It shows that 15 have been inspected and eight have had citations issued.

If I might refer further to some correspondence on the subiect I have had, and I have had more correspondence on this subject than

80-497-72- -6