The purpose of this research is to examine the Occupational Safety and Health Act of 1970 (OSHA) not only to learn of its factual mandates, but, more importantly, to discover criticism levied against it by business, labor and consumer advocates alike resulting from problems many faced attempting to implement this controversial law.
Approved by Congress on December 29, 1970, OSHA in brief “aims to assure safe and healthful working conditions by ensuring enforcement of standards developed under the Act, by assisting and encouraging states in their efforts to assure such working conditions, and by providing for research, information, education and training in occupational safety and health.”
The employer, under the Act, is responsible for ensuring safe and healthful working conditions, in particular for compliance with standards made by the Secretary of Labor for protection against “toxic materials and harmful physical agents, the use of warning labels or other forms of warning in regard to occupational hazards, appropriate emergency treatment, the use of protective equipment, the monitoring of employee exposure . . . and for standards to prescribe, where appropriate, medical examinations of employees exposed to occupational hazards.”
Enforcement of the standards is in the hands of OSHA compliance officers. Inspections of businesses are made on a priority basis, according to the following scale:
(1) Investigations of situations involving catastrophes and fatalities.
(2) Inspections based on valid complaints about safety and health from employees;
(3) Concentration on the five industries in which injury rates are highest–longshoring, roofing and sheet metal work, meat processing, transportation equipment manufacturing, and lumber and wood products.
(4) A random inspection of a wide cross section of companies of all types and sizes to establish the existence of the program.
Penalties for violations of the Act are severe. A first citation on less serious violations may or may not involve a penalty. However, if penalties are assessed, according to the International Labor Review, they range up to as much as $1000 for each violation. In addition, penalties of up to $10,000 per violation may be levied for cases of repeated or willful violation. If an employer should fail to correct a violation within the period of time specified by the citation, he or she may be charged up to $1000 for each day that the business continues to be in violation of the standard.
Covering an estimated 60 million workers and 5 million employers, ranging from giant corporations to the smallest businesses, OSHA took effect on April 28, 1971. A month later. standards were announced and overnight a 248 page book (bow up to more than 450 pages) was produced which “touched on such things as the sizes of ladders, protective screening against atomic radiation, and safety nets for bridge builders.”
But all has not gone well for OSHA. In fact, “almost every phase of the law’s implementation has stirred controversy,” says a columnist for U.S. News and World Report. “It has embittered employees as well as employers. Some detractors call OSHA ‘a four-letter obscenity.'”
One complaint about OSHA is fundamental: its lack of understandability. “This Act,” says Representative Mark Andrews (Rep.) of North Dakota, “is an outstanding example of what happens to a piece of legislation when the bureaucrats get it.” The standards which have been set under OSHA, suggests Robert D. Moran, Chairperson of the OSHA Review Committee, are “‘riddles wrapped in mysteries inside enigmas.’ They don’t give the employer even a nebulous suggestion of what it is he (or she) should do to protect his (or her) employees from whatever-it-is, also left unexplained, which represents a hazard to their safety and health.” Standards have been left to the employer to guess at and for OSHA to decree with hindsight if the guess is incorrect. “With this sort of direction,” Moran continues, “the most safety-conscious employer in the world could have no idea what to do in order to voluntarily achieve compliance with its requirements.”
Moran believes that when a standard lists “other means” as acceptable for achieving compliance and does not precisely list or limit the “other means” contemplated, OSHA should accept the employer’s methodology for compliance as acceptable under OSHA standards. “If we don’t get more specific, no one will know what will and what won’t prevent the existence of the hazard. In addition,” Moran says, “the employer is left at the mercy of the inspector whose interpretation of what constitutes “other means” is never known in advance and will, of course, vary from inspector to inspector.” Because regulations are vague, OSHA has been criticized for enforcement of their policies deemed by some as “police state” tactics. Moran believes that as long as the Act remains non-understandable and ambiguous, “the gains made in job safety and health will be equally ambiguous, “the gains made in job safety and health will be equally ambiguous.”
Another area which has caused problems in the implementation of OSHA is the provision which allows states the option of developing their own safety and health plans and of being responsible for administering and enforcing them, provided they are at least as strict as the federal Act. The Nixon administration pressed for the provision but critics argue that the federal law was created in the first place because state enforcement was lax. One such critic was Harrison A. Williams Jr., (Dem.) New Jersey. “The Administration,” he said, “seems so eager to bring in the states that there are serious indications that it intends to approve state plans which are not as effective. We must not hesitate to focus public criticism on those state plans which are deficient.”
Organized labor also criticized the state plans. However, organized labor groups and workers also faulted OSHA implementation on other fronts. Union leaders say that the Administration enforces the regulations halfheartedly and has moved too slowly in setting additional standards. According to a statement from the 35-member AFL-CIO executive council on May 2, 1972:
This act of Congress . . . is in the hands of an administration which does not believe in the law’s philosophy and purpose, despite White House rhetoric.
The AFL-CIO believed that the Administration failed to request enough funds to ensure effective enforcement of the law. In testimony to the House Appropriations Sub-committee, director of the AFL-CIO’s industrial union department, Jacob Clayman, said that the White House requests $104.6 million fell $68.8 million short of the program’s real need for fiscal 1973. “The failure to ask for a workable budget is the major issue,” Clayman continued. “This is critical for the whole enforcement of the law. None of this program can move without sound financing.”
One result of the underfunding is that there are not enough inspectors to enforce the law. In addition, labor spokespeople have criticized OSHA for moving too slowly in setting standards for toxic substances in the workplace. “We have more than 8,000 toxic substances in industry,” Clayman said, “and only something over 400 minimal standards for them.” Assistant Labor Secretary Guenther admitted that problems of occupational health will be the most difficult to solve. In his words:
We are the first to concede that there are thousands and thousands of toxic substances for which we do not have standards at the present time. The development of these standards may, some day, catch up to the development of those substances.
Some workers claim that new rules are silly and inhibit their ability to work most effectively. Others fear the power of OSHA inspectors to close their workplace if it is deemed completely unsafe.
Many things about OSHA cause implementation problems from the businesspersons perspective too. According to investigations by U.S. News and World Report:
(1) Businesspeople say the law has added vastly to equipment expenses, administrative tasks and management headaches.
(2) Many executives complain that the law is stacked against their firms and has been carried out in an irrational, often harassing, manner.
(3) They also complain of overwhelming red tape and paper work. An official of the National Association of Manufacturers maintains that soon “there will not be enough medical clerical and industrial-hygiene personnel within this country to perform the duties required by the standards.”
(4) The sheer bulk and complexity of rules torments many businessmen. Even the Federation of American Scientists found the language of these edicts “convoluted beyond recognition.”
(5) There are complaints that the OSHA agency is heavily staffed with labor-union sympathizers and that Government officials could use OSHA’s broad powers to extract political contributions.
(6) More and more compliance officers are trainees, getting on-the-job experience. Businessmen usually feel they know more about safety in their shops than any outsider. They also complain that federal inspectors barge into offices and plants without prior notice or warrants and waste a lot of time and effort on trivial tasks, such as measuring the height of toilet partitions and checking to see id OSHA posters are properly displayed.
(7) Because inspectors are told not to cozy up to businesspeople, they are not allowed to advise employers on compliance nor give a manager dispensation if a violation is corrected immediately after it is pointed out.
According to Charles J. Pilliod Jr., chairperson of Goodyear Tire & Rubber Co., inspectors are “like traffic cops who feel they have to make out a certain number of tickets or they won’t be doing their jobs.” George Nummy, manager of corporate safety for Boise Cascade Corp., echoes Pilliod’s view. “I find it better to make frequent trips to Washington to spell out with top labor people how to interpret regulations. Unfortunately, once you get an agreement with the man in charge of the standard, the problem still exists because how do you get his man in the field to understand.”
Richard B. Berman, a labor relations attorney with the Chamber of Commerce of the U.S. believes that much of the implementation problems have results from the pace with which the program has moved. The Labor Department, he said, “certainly didn’t have time to staff, gear up and look at all these standards to see whether they should adopt them.” In addition, Berman complains that all of the responsibility for compliance under OSHA rests on employers when actually, he said, industrial accidents often occur because employees have failed to obey safety rules that employers have issued. The theme of an article written by labor law attorney Roger B. Jacobs focuses on this issue.
Much of the problems of OSHA enforcement and employer compliance, Jacobs says, is that “since 1973, employers have been faced with penalties and much litigation as a result of employee resistance to certain safety regulations.” One example id the case Atlantic & Gulf Stevedore Inc. vs OSHARC where longshoremen refused to wear hardhats despite OSHA requirements that employees “be protected by protective hats.” In this case the court held that “despite employee intransigence, employers were liable for safety violations at the workplace.” Witnesses for the employers even presented their belief that wild cat strikes or walkouts would have resulted from attempts to enforce the standard. Jacobs believes that when situations like the Stevedores’ case arise, Osha citations should not be levied against the employer, suggesting that instead individual non-complying employees should be fined.
”Employers want to comply,” says a spokesperson for the Georgia Business and Industry in Atlanta, “if they only knew how.”
Consumer advocate Ralph Nader, in a report issued for the Study of Responsive Law, harshly criticized OSHA operations and the positions of organized labor, the business community and the Administration alike. The business view toward worker safety he said, is similar to its outlook on pollution:
As long as it costs less to permit motivational direction of the company is not to invest in new equipment and procedures.
Nader blamed labor unions for the problems with OSHA, saying that “organized labor should have taken the initiative in pressing for higher standards for job safety and health but failed to do so.” Primarily, however, Nader blamed the Administration for deliberately deciding against aggressively enforcing the law:
The (Labor) department has conveniently stretched its interpretations of (the Act) to the farthest limits of its language and legislative history in order to avoid imposing strict, immediate requirements upon employers.
The California Occupational Safety and Health Act (CAL-OSHA), has many California employers worried about the possibility of going to jail as the state run program included a new concept called “first-instance sanction” which made an employer subject to a fine simply if the premises were not up to specified standards. CAL-OSHA expanded the sanction, making an employer “liable for civil action and a jail sentence if ‘willful and repeated’ violations of the code took place.” Potentially, employers saw great problems for themselves as any employees was, then, able to call out an inspector specifically to place the employer in jeopardy. In addition, the California program set up new methods of enforcement.
But the program does not seem to be having any more success at effective implementation of its goals than does its federal counter part. “A survey by the Los Angeles Times . . . concluded that there is no solid evidence that it (CAL-OSHA) is accomplishing its purpose any better than pre-1974 programs.” Fred Ottoboni, deputy director of the Department of Industrial Relations until has appointment as special CAL-OSHA assistant, concurred saying, “So far, CAL-OSHA has had no material impact on health and safety in California.” CAL-OSHA representative Gene Cresci said “OSHA is supposed to encourage them to look over their procedures and figure out ways of encouraging preventive measures. Businesses are not doing it.”
The future success potential of OSHA is unclear. The pace with which the administration tried to make the program become a reality, ambiguous language and standards as well as uneven enforcement, underfunding, immense red tape and a generally uncooperative attitude from OSHA inspectors toward employers to date has plagued OSHA’s desired goals.
It is interesting to note that in addition to these problems OSHA’s own building is guilty of violating OSHA’s own standards in more than 300 instances. “Example: The cabinet of a fire extinguisher had no handle and was sealed shut with paint.” Such revelations, suggest U.S. News and World Report,
add to OSHA’s bad image within American industry. That image–more and more people in Washington are concluding–must be improved if the law is to be successful avenue for assuring wholesome and safe places to work for Americas’s growing labor force.