[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
WORKPLACE SAFETY: WHY DO MILLIONS OF WORKERS REMAIN WITHOUT OSHA
COVERAGE?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 24, 2007
__________
Serial No. 110-41
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Ranking Minority Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Bob Inglis, South Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Timothy H. Bishop, New York Kenny Marchant, Texas
Linda T. Sanchez, California Tom Price, Georgia
John P. Sarbanes, Maryland Luis G. Fortuno, Puerto Rico
Joe Sestak, Pennsylvania Charles W. Boustany, Jr.,
David Loebsack, Iowa Louisiana
Mazie Hirono, Hawaii Virginia Foxx, North Carolina
Jason Altmire, Pennsylvania John R. ``Randy'' Kuhl, Jr., New
John A. Yarmuth, Kentucky York
Phil Hare, Illinois Rob Bishop, Utah
Yvette D. Clarke, New York David Davis, Tennessee
Joe Courtney, Connecticut Timothy Walberg, Michigan
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
LYNN C. WOOLSEY, California, Chairwoman
Donald M. Payne, New Jersey Joe Wilson, South Carolina,
Timothy H. Bishop, New York Ranking Minority Member
Carol Shea-Porter, New Hampshire Tom Price, Georgia
Phil Hare, Illinois John Kline, Minnesota
C O N T E N T S
----------
Page
Hearing held on May 24, 2007..................................... 1
Statement of Members:
Wilson, Hon. Joe, ranking minority member, Subcommittee on
Workforce Protections...................................... 4
Prepared statement of.................................... 20
Article from the Journal of Regulatory Economics (2006),
``Regulatory Federalism and Workplace Safety: Evidence
From OSHA Enforcement, 1981 to 1995''.................. 6
Letter, dated May 23, 2007, from Associated Builders and
Contractors, Inc....................................... 54
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Fillman, David, executive director, Council 13, American
Federation of State, County and Municipal Employees
(AFSCME)................................................... 24
Prepared statement of.................................... 26
Jones, Casey, on behalf of the American Federation of State,
County and Municipal Employees (AFSCME).................... 28
Prepared statement of.................................... 29
Sarvadi, David G., attorney, Keller and Heckman LLP.......... 31
Prepared statement of.................................... 32
Turnipseed, Jon, certified safety professional, on behalf of
the American Society of Safety Engineers (ASSE)............ 35
Prepared statement of.................................... 37
WORKPLACE SAFETY: WHY DO MILLIONS OF
WORKERS REMAIN WITHOUT OSHA COVERAGE?
----------
Thursday, May 24, 2007
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:33 a.m., in
Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Payne, Bishop, Shea-
Porter, Hare, Andrews, Wilson, and Kline.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis,
Senior Policy Advisor for Subcommittee on Workforce
Protections; Carlos Fenwick, Policy Advisor for Subcommittee on
Health, Employment, Labor and Pensions; Michael Gaffin, Staff
Assistant, Labor; Peter Galvin, Senior Labor Policy Advisor;
Jeffrey Hancuff, Staff Assistant, Labor; Brian Kennedy, General
Counsel; Thomas Kiley, Communications Director; Joe Novotny,
Chief Clerk; Mark Zuckerman, Staff Director; Michele Varnhagen,
Labor Policy Director; Steve Forde, Minority Communications
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob
Gregg, Minority Legislative Assistant; Richard Hoar, Minority
Professional Staff Member; Victor Klatt, Minority Staff
Director; Jim Paretti, Minority Workforce Policy Counsel; Molly
McLaughlin Salmi, Minority Deputy Director of Workforce Policy;
Linda Stevens, Minority Chief Clerk/Assistant to the General
Counsel; and Loren Sweatt, Minority Professional Staff Member.
Chairwoman Woolsey [presiding]. A quorum is present. The
hearing of the Workforce Protection Subcommittee on ``Workplace
Safety: Why Do Millions of Workers Remain Without OSHA
Coverage?'' will come to order.
Pursuant to Committee Rule 12(a), any member may submit an
opening statement in writing which will be made part of the
permanent record.
Now I recognize myself, followed by Ranking Member Joe
Wilson, and then followed by Chairman Rob Andrews from another
subcommittee, and we will go in that order, and then we will go
to the wonderful panel of witnesses.
So I want to thank all of you for being here today to
address the serious shortcoming in our federal OSHA law: the
lack of coverage for public employees.
I am especially grateful to you, Ms. Jones, for being
willing to come forward to testify about the human cost of our
failure to provide health and safety protection to all workers.
While OSHA covers most private workers and an Executive
Order covers most federal workers, there is no comparable
coverage for over 8.5 million state, county and municipal
workers. The tragedy is that Congress gave the states the
opportunity to cover their public employees with the promise of
matching funds, but today, 37 years after the passage of OSHA,
26 states still do not have OSHA-approved state plans that
would cover public employees.
These employees work in a wide variety of areas and may be
highway construction workers. They may be wastewater treatment
plant workers like Mr. Jones; they may be hospital personnel,
correctional officers; and they work in the same hazardous
environments that private-sector employees work in.
Every month, dozens of public employees in this country are
killed or injured--thousands are injured--in accidents that
could have been prevented had their workplace been covered by
OSHA.
It is important to remember that when we speak of OSHA
coverage, we are talking about more than compliance with
specific OSHA standards. In fact, OSHA sets out a number of
other provisions that are critical to safe workplaces, and
these include: the ability of workers to request and
participate in inspections by an outside authority and to have
an independent investigation of every fatality and significant
workplace injury; the enforcement of the law and training on
health and safety standards and hazards; a whistleblower
provision protecting workers against retaliation for exercising
their health and safety rights; and the right of workers to
have access to critical information regarding their health,
exposure to certain hazards, along with statistics on injury
and illness at their worksites.
And as an aside, this subcommittee is also working to
ensure what I just listed actually has teeth. So know that.
Without OSHA coverage, workers have none of these basic
rights, even if these rights are not always supported by OSHA
itself.
So let me give you a brief illustration about how important
these rights are.
Tony Poole, a 42-year-old public employee, was killed in
Byron, Georgia, last year when a trench collapsed on top of
him. Because Georgia does not approve coverage for its public
employees, there was never any OSHA investigation into the
reason why Mr. Poole was killed. Had there been an
investigation, his family, and his friends, his co-workers
might have learned that if an OSHA trench standard requiring
that the use of a trench box to keep the trench from caving in
had been in place, Tony Poole would be alive today.
Today, we will hear from Casey Jones whose husband, Clyde,
was needlessly killed last year in an explosion at the Bethune
Wastewater Treatment Plant, a facility owned and operated by
the City of Daytona Beach, Florida. This incident caught the
attention of the United States Chemical Safety Board, and it
decided to investigate precisely because the employees of the
City of Daytona Beach, such as Mr. Jones, were not covered by
OSHA.
Let me first say something about the U.S. Chemical Safety
Board. It is an independent investigative agency created by
Congress in the wake of major chemical explosions in the 1980s,
and it is charged with investigating major chemical-related
incidents. The board consists of five individuals appointed by
the president for 5-year terms, and all the current members on
the board were appointed by President Bush.
In the accident involving Mr. Jones, the board found that
several OSHA standards had been violated, standards that, if
followed, would have prevented the explosion. As a result, it
recommended to the Florida state legislature and to the
governor that the state pass legislation providing OSHA
coverage to public employees.
I think it should be noted that this board has submitted
testimony for this hearing today calling for OSHA coverage for
all public employees.
Now, there are many who object to providing OSHA coverage
to state, county and municipal employees on the grounds that it
is too expensive, and I will be interested to hear the views of
safety manager Jon Turnipseed on this very subject.
As a purely economic matter, the money saved in workers
compensation and other costs by covering public employees
should and would more than pay for these programs. However, it
is impossible to quantify the cost to victims or to their
families of these senseless and preventable injuries and
deaths.
But I do know this: The cost is too high, and we in
Congress must do whatever we can to fulfill the promise OSHA
made 37 years ago to provide all workers--that means all
workers--with safe and healthful workplaces.
Mr. Wilson?
[The prepared statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee on
Workforce Protections
I want to thank everyone for coming here today as we address a
serious shortcoming in our federal OSHA law: the lack of coverage for
public employees.
And I am especially grateful to you, Mrs. Jones, for being willing
to come forward to testify about the human cost of our failure to
provide health and safety protection to these workers.
For while OSHA covers most private workers and an Executive Order
covers most federal workers, there is no comparable coverage for over
8.5 million state, county and municipal workers.
The tragedy is that Congress gave the states the opportunity to
cover their public employees with the promise of matching funding, but
today, 37 years after the passage of OSHA, 26 states still do not have
OSHA-approved state plans that would cover public employees.
These employees work in a wide variety of areas and may be highway
construction workers, wastewater treatment plant workers like Mr.
Jones, hospital personnel or corrections officers.
And they work in the same hazardous environments that private
sector employees do.
Every month, dozens of public employees in this country are killed
and thousands injured in accidents that could have been prevented had
their workplaces been covered by OSHA.
It is important to remember that when we speak of OSHA coverage, we
are talking about more than compliance with specific OSHA standards.
In fact, OSHA sets out a number of other provisions that are
critical to safe workplace. These include:
The ability of workers to request and participate in
inspections by an outside authority and to have an independent
investigation of every fatality and significant workplace injury;
The enforcement of the law and training on health and
safety standards and hazards;
A whistleblower provision protecting workers against
retaliation for exercising their health and safety rights; and
The right of workers to have access to critical
information regarding their health, exposure to certain hazards, along
with statistics on injury and illnesses at their work sites.
Without OSHA coverage, workers have none of these basic rights.
Let me give you a brief illustration about how important OSHA
rights are.
Tony Poole, a 42 year old public employee, was killed in Byron,
Georgia last year when a trench collapsed on top of him.
Because Georgia does not provide coverage for its public employees,
there was never any OSHA investigation into the reason why Mr. Poole
was killed.
Had there been an investigation, his family, friends and co-workers
might have learned that if an OSHA trenching standard---requiring that
the use of a trench box to keep the trench from caving in---had been in
place, Tony Poole would be alive today.
Today, we will hear from Casey Jones, whose husband, Clyde Jones,
was needlessly killed last year in an explosion at the Bethune
Wastewater Treatment Plant, a facility owned and operated by the City
of Daytona Beach in Florida.
This incident caught the attention of the U.S. Chemical Safety
Board, and it decided to investigate precisely because the employees of
the City of Daytona Beach, such as Mr. Jones, were not covered by OSHA.
Let me first say something about the U.S. Chemical Safety Board.
It is an independent investigative agency created by Congress in
the wake of major chemical explosions in the 1980's, and it is charged
with investigating major chemical-related incidents.
The Board consists of 5 individuals appointed by the President for
five-year terms, and all the current members on the Board were
appointed by President Bush.
In the accident involving Mr. Jones, the Board found that several
OSHA standards had been violated, standards that if followed, would
have prevented the explosion.
As a result, it recommended to the Florida State Legislature and
the Governor that the State pass legislation providing OSHA coverage to
public employees.
I think it should be noted that this Board has submitted testimony
for this Hearing today, calling for OSHA coverage for all public
employees.
Now, there are many who object to providing OSHA coverage to state,
county and municipal employees on the grounds that it is too expensive.
And I'll be interested to hear the views of a safety manager--Mr.
Jon Turnipseed--on this subject.
As a purely economic matter, the money saved in workers
compensation and other costs by covering public employees should more
than pay for these programs
However, it is impossible to quantify the costs to victims or their
families of these senseless and preventable injuries and deaths.
But I do know this. The cost is too high, and we in Congress must
do whatever we can to fulfill the promise OSHA made 37 years ago to
provide all workers with a safe and healthful workplace.
______
Mr. Wilson. Thank you, Madam Chairman.
Good morning. I would like to welcome our witnesses today
and thank them for their testimonies. I look forward to our
discussion.
Before we begin, I believe it is important to provide some
context for this morning's hearing.
First of all, we should recognize that the Occupational
Safety and Health Act explicitly allows states to adopt
workplace health and safety programs to cover state and
municipal employees, a group brought into focus by our current
hearing today.
Likewise, it is important to understand that under current
law OSHA is able to inspect every worksite very rarely, which,
by any reasonable measure, is a clear sign that the agency has
difficulty enforcing laws already on the books. In other words,
its ability to take on a new layer of responsibilities, as some
in Congress are looking to mandate, is questionable at best.
And finally, it can be argued that state and local
regulators, not politicians or federal bureaucrats in
Washington, are more attuned to the work environments in their
unique states and communities.
Taken together, what does all of this mean? At a minimum, I
believe it means that any attempts out of Washington to expand
OSHA's jurisdiction raises significant questions as to how this
expansion will be funded as well as those of federalism in
deference to communities' rights and interests.
Furthermore, I believe it means that rather than expanding
the jurisdiction of an already overburdened federal OSHA,
Congress should be incentivizing states to adopt workplace
health and safety programs of their own instead of force
unfunded mandates upon them or asking OSHA to extend itself
even further.
My home state of South Carolina is what is known as a state
plan state. My state and 20 others have submitted comprehensive
health and safety plans that meet or exceed federal standards
to the secretary of labor, who in turn verified and approved
them. As a result, these states receive 50 percent of their
enforcement costs from federal OSHA and, consequently, accept
responsibility for regulating the workplace health and safety
of both private-and public-sector employees.
In short, the state plan works well to protect employees,
regardless of sector, and should be a key focus as Congress
works to enact any reforms to federal health and safety laws.
At this time, I would like to introduce an article for the
record entitled ``Regulatory Federalism and Workplace Safety:
Evidence From OSHA Enforcement, 1981 to 1995.''
Chairwoman Woolsey. Without objection.
[The information follows:]
------
Mr. Wilson. This article highlights the good work done by
state plans. I would draw your attention to one of the
article's conclusions: ``The decentralized nature of state
programs may give these states an advantage in preventing
workplace accidents over federal regulators.''
I have seen firsthand the success of VP-8 delegating
requirements to state agencies in South Carolina where staff
are on the ground and can interpret quickly local needs. The
result is a cleaner environment immediately in my home state.
Given this, I hope that today's hearing focuses on how to
encourage states to take delegation of safety and health
regulations rather than forcing additional federal mandates on
the states, mandates that may fail to adequately protect
American workers at the end of the day.
Just yesterday, I met with county councilman Jerry Stewart
of Buford County, South Carolina, and municipal officials from
some of the fastest-growing communities in North America in the
low country of South Carolina from Hardeeville, Bluffton and
Hilton Head. I assured them I would work to prevent mandates on
local government. It is challenging now to plan for the
extraordinary growth that they face without new federal
programs.
Before I conclude, Chairman Woolsey, I would also like to
briefly mention another aspect of this hearing, specifically
the preemption of other federal agencies for implementing
safety and health plans for workers, also known as the so-
called 4(b)(1) exemption.
I know H.R. 2049 attempts to change the longstanding
practice of federal preemption. There have been scattered
concerns in some industries that health and safety coverage by
an agency other than OSHA is inadequate. I will be interested
to hear from our witnesses how your proposed legislation would
change the existing structure and if, indeed, it would be an
improvement.
With that, I look forward to the hearing today. Again, I
thank the witnesses for appearing before us today, and I am
eager to hear your testimony.
[The prepared statement of Mr. Wilson follows:]
Prepared Statement of Hon. Joe Wilson, Ranking Minority Member,
Subcommittee on Workforce Protections
Good morning. I would like to welcome our witnesses today and thank
them for their testimonies. I look forward to our discussion.
Before we begin, I believe it's important to provide some context
for this morning's hearing. First, we all should recognize that the
Occupational Safety and Health Act explicitly allows states to adopt
workplace health and safety programs to cover state and municipal
employees--a group brought into focus by our hearing today. Likewise,
it's important to understand that--under current law--OSHA is able to
inspect every worksite only once every 167 years, which--by any
reasonable measure--is a clear sign that the agency has difficulty
enforcing laws already on the books. In other words, its ability to
take on a new layer of responsibilities, as some in Congress are
looking to mandate, is questionable, at best. And finally, it can be
argued that state and local regulators--not politicians or federal
bureaucrats in Washington--are more attuned to the work environments in
their unique states and communities.
Taken together, what does all of this mean? At a minimum, I believe
it means that any attempts out of Washington to expand OSHA's
jurisdiction raises significant questions as to how this expansion will
be funded, as well as those of federalism and deference to communities'
rights and interests. Furthermore, I believe it means that rather than
expanding the jurisdiction of an already overburdened federal OSHA,
Congress should be incentivizing states to adopt workplace health and
safety programs of their own instead of forcing unfunded mandates upon
them or asking OSHA to extend itself even further.
My home state of South Carolina is what is known as a ``state plan
state.'' My state--and 20 others--have submitted comprehensive health
and safety plans that meet or exceed federal standards to the Secretary
of Labor, who--in turn--verified and approved them. As a result, these
states receive 50 percent of their enforcement costs from federal OSHA
and--consequently--accept responsibility for regulating the workplace
health and safety of both private and public sector employees. In
short, the state plan system works well to protect employees--
regardless of sector--and should be a key focus as Congress works to
enact any reforms to federal health and safety laws.
At this time, I would like to introduce an article for the record
entitled, ``Regulatory federalism and workplace safety; evidence from
OSHA enforcement, 1981-1995.'' This article highlights the good work
done by state plan states. I would draw your attention to one of the
article's conclusions, namely: ``The decentralized nature of state
programs may give these states an advantage in preventing workplace
accidents over federal regulators.''
Given this, I hope that today's hearing focuses on how to encourage
states to take delegation of safety and health regulations, rather than
forcing additional federal mandates on states--mandates that may fail
to adequately protect American workers at the end of the day. Just
yesterday, I met with County council members and municipal officials
assuring them I would work to prevent mandates on local governments.
Before I conclude, Chairwoman Woolsey, I'd also like to briefly
mention another aspect of this hearing: specifically, the pre-emption
of other federal agencies for implementing safety and health plans for
workers, also known as the so-called 4(b)(1) exemption. I know H.R.
2049 attempts to change the long-standing practice of federal pre-
emption. There have been scattered concerns in some industries that the
health and safety coverage by an agency other than OSHA is inadequate,
and I will be interested to hear from our witnesses how your proposed
legislation would change the existing structure and if--indeed--it
would be an improvement.
With that, I look forward to this hearing, and again, I thank the
witnesses for appearing before us today. I am eager to hear your
testimony.
______
Chairwoman Woolsey. Thank you, Mr. Wilson.
Without objection, I now recognize Representative Rob
Andrews of the 1st District of New Jersey, a member of the full
Education and Labor Committee and chair of the Subcommittee on
Health, Employment, Labor and Pensions, for 5 minutes to make
an opening statement.
And, Mr. Andrews, you are welcome to stay for questions if
you would like and be part of it.
Mr. Andrews. Thank you. Thank you very much, Madam
Chairwoman, and I thank you and the ranking member for your
courtesy in giving me this opportunity to express my thoughts
on the topic on which I care deeply.
I thank you, Madam Chairwoman, for being an aggressive and
dynamic chairwoman in the few weeks that you have sat and held
the gavel. I think you have done more in a few weeks on these
topics than some of your predecessors did in a decade and a
half, and I am very grateful to you for your leadership.
This morning, one American got up and went to work on a
cement mixer, and the person who lives next door to him got up
and went to work on the back of a trash truck working for the
town in which they live.
If, God forbid, today there is an accident on the cement
mixer, the full power of the OSHA statute would be there to
either prevent or protect the worker or deal with the
consequences of that accident on the cement mixer. But if there
is a looming problem on the trash truck or if, God forbid,
there is an accident on the trash truck, the public worker has
no recourse and no protection to speak of. It has virtually
none in 26 states.
Now why is it? Why should the law draw a distinction
between whether you work on the back of a cement mixer for a
private contractor or on the back of a trash truck for the
county? I do not think it should make that distinction, and the
purpose of the legislation I have introduced and that Ms.
Woolsey has been so kind to work with us on is to eliminate
that distinction.
Now I have heard three good arguments--or three arguments,
I should say--as to why we should continue to have this
distinction in the law, that the law should protect the person
working on the back of a cement mixer but not on the back of
the trash truck.
The first argument is that, well, it will raise taxes by
too much and cost local governments too much money to impose
this requirement on local governments. I have not seen a shred
of evidence that bears out that conclusion in any of the states
that have aggressively and proactively protected worker safety,
and I would invite any of the panelists who would disagree to
tell me why that is not true.
I think the opposite is true. I think that employers that
are diligent and careful in protecting their workers spend less
money on workers comp claims, on health-care claims, on
litigation, on all the other problems that come with workplace
injury. I think the evidence is rather compelling--the
insurance industry would back this up--that employers who are
careful about worker safety are more profitable and more
efficient and spend less money than those who do not. I think
it is good business to be careful about your workers' health.
Second is the argument that somehow extending OSHA
protection to public workers would interfere with state
sovereignty. We feel very strongly about state sovereignty and
the rights of state governments to make decisions that they
view as being in the best interests of their constituents, but
I think there are some rights which trump that.
I think there are some basic protections that every
American ought to have, whether they live in Nevada or New
Jersey, whether they live in California or Florida, and the
idea the safety of your workplace is a function of the accident
of your ZIP Code makes no sense to me. I think someone's life
is equally worth protecting in Nevada as it is in New York or
California as it is in Florida, and I think there should be a
basic and uniform protection of that.
The third argument I have heard is that, well, there really
has not been much of a problem, that this is a bill that is a
solution in search of a problem. I wish that were true. I wish
that were true.
The last time this Congress paid any serious focus on the
issue of extending OSHA protections to public employees was in
the early 1990s. Since then, virtually no attention has been
paid to this subject and nothing has been done, and since then,
8,600 public workers have lost their lives. Were all
preventable? I doubt it. Were some preventable? I am sure. I am
sure.
And I think if we had had sufficient protections in states,
we would not have had that problem and that situation for so
many families.
I also wanted to add a word of personal appreciation to
Mrs. Jones for her presence here today. I think that the mark
of true character is someone who deals with tragedy not by
dwelling on the hurt and the loss, but by moving on to
something positive and doing something as a positive response
to tragedy, and your statement here today, Mrs. Jones, on
behalf of Clyde Anthony Jones and others like him, I think is a
measure of your character, and we appreciate it very, very
much.
So I understand there are arguments about the taxes and
spending and there are arguments about interference with state
sovereignty and arguments about the scope of the problem, but I
think the record is very clear that employers who are careful
about workers' safety spend less money than those who are
careless.
I think the record is very clear that there are certain
protections that should not be an accident of where you live
and should be a function of your standing as an American
worker, and I unfortunately think the record is very clear that
there is a very significant problem: 8,600 public workers
killed since 1992, 520 in 2005 alone.
So I, again, thank the chairwoman and the ranking member
for their courtesy and their indulgence. I thank the panelists
for being here today, and I would urge this Congress would take
expeditious and wise action on this matter.
Thank you, and I yield back.
Chairwoman Woolsey. Thank you, Congressman.
Now I am going to introduce our wonderful panel of
witnesses starting with Mr. Fillman and going in order that you
will present.
David Fillman is the executive director of AFSCME Council
13 in Pennsylvania and is a vice president at AFSCME. He
previously worked at the Pennsylvania Department of
Transportation and has several years of experience in the areas
of worker safety and health. Mr. Fillman is a graduate of
Springfield High School in Montgomery, Pennsylvania.
Casey Jones is the brave widow of Clyde Jones, a municipal
employee who died in an explosion at the Bethune Wastewater
Treatment Plant in Daytona Beach, Florida, in 2006. She is a
certified surgical technologist and is a graduate of Daytona
Beach Community College.
David Sarvadi is an attorney at Keller and Heckman in
Washington, D.C., and represents clients in the areas of
occupational health and safety, toxic substance management,
pesticide regulation, employment law and product safety. He
attended Pennsylvania State University and received a master's
in science from the University of Pittsburgh Graduate School of
Public Health. Mr. Sarvadi also holds a law degree from George
Mason University.
Jon Turnipseed, from my home state of California, is the
safety program manager for the City of San Bernardino Municipal
Water Department in California. Today, he is testifying on his
own behalf as well as on behalf of the American Society of
Safety Engineers. He is a professional member of that
organization. He has over 30 years of management experience
working for large government contractors and local government
agencies and is a certified safety professional. Mr. Turnipseed
spent 20 years in the United States Air Force and retired as a
major. He received his bachelor of business administration from
the University of Iowa and a master's in science from Central
Missouri State University.
I welcome all of you.
Before you get started, let's talk about the lighting
system. For those of you who have never testified before the
committee, let me explain how it all works. We have a 5-minute
rule. Everyone, including members, is limited to 5 minutes of
presenting and questioning. So the green light is illuminated
when you begin to speak, and it is right there in front.
When you see the yellow light, it means you have 1 minute
remaining. You probably should start wrapping up. And when you
see the red light, it means your time has expired and you need
to conclude your testimony. We are not going to cut you off
mid-sentence or mid-thought, but just be aware that that is our
5-minute rule. Usually, you will be able to complete some
thoughts or some new ideas during the question-and-answer
period.
So be sure to turn on your microphones when it is your turn
to speak and speak right into the microphone. Otherwise, we
will do a lot of gyrations up here and you will just save
yourself a lot of heartache.
So we will now hear from Mr. Fillman, our first witness.
STATEMENT OF DAVID FILLMAN, EXECUTIVE DIRECTOR, COUNCIL 13,
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES
Mr. Fillman. Thank you, Chairwoman Woolsey. My name is
David Fillman. I am the executive director of Council 13 of the
American Federation of State, County and Municipal Employees.
I am honored to represent more than 65,000 public employees
in the Commonwealth of Pennsylvania today, and as an
international vice president with AFSCME, I speak for more than
1.4 million public employees nationwide who are employed by
states and their counties, townships, boroughs, cities, and
school districts as well as private and public nonprofit health
and human service facilities.
I would like to have my complete statement placed in the
record.
Chairwoman Woolsey. Without objection.
Mr. Fillman. Our membership is extremely diverse and is
made up of hardworking members who provide vital public
services to the citizens of Pennsylvania in the areas of
transportation, health care, public safety, public works, water
and wastewater treatment, corrections, and education, just to
name a few.
But despite their various backgrounds, our members have two
things in common: number one, they confront serious and even
life-threatening dangers on the job every day; second, they are
not covered by our nation's most basic workplace safety
protections required by the Occupational Safety and Health Act,
or OSHA.
OSHA was passed in 1970 to provide American workers with
safe workplaces, but there was a catch. The law excluded state
and local government workers. Today, more than 35 years later,
only 21 states have exercised their option to operate their own
state OSHA programs. Three other states--New York, Connecticut
and New Jersey--have a federally approved plan for their public
workers, and responsibility for the private sector falls under
the federal OSHA laws.
That means that 26 states do not have a federally approved
program in place to cover workplace safety for public
employees. That translates to more than 8 million public-sector
workers. There are a handful of states, such as Illinois and
Wisconsin, which have state laws that provide similar
protection to their public workers, but which are not federally
approved programs.
In a few minutes, you will hear from Ms. Casey Jones who
lost her husband. Mr. Jones' employer was not required to
follow OSHA rules that could have prevented his death, and even
more tragically, the state law that was enacted in 1982 to
assist employers to make their workplaces safe had been
repealed by Governor Jeb Bush and the Florida legislature in
1999.
Public employees in the other Gulf Coast states of
Louisiana, Alabama, Mississippi, and Texas also work without
OSHA protection. That means that public workers who responded
to hurricanes Katrina and Rita, men and women who performed
heroically, were not entitled to any workplace safety
protections whatsoever during the disasters, in their
aftermath, or while they continue to rebuild those devastated
regions.
I do not have to look any further than where I live to
explain what the lack of OSHA protection means. Neither the
Commonwealth of Pennsylvania nor local governments are required
to follow OSHA standards. For example, workers who must go into
a deep trench to repair a water main break do so without their
employers having to follow specific procedures or use equipment
to prevent the trench from collapsing.
Having OSHA coverage for all public employees is not just
an issue of fairness; it is a matter of life and death. With
the exception of few occupations, such as law enforcement and
firefighters, the general public and their elected officials
have little or no idea about the dangers faced by state and
local government workers.
A great deal of attention was paid, and rightfully so, to
the Sago mine disaster that killed 12 miners. By contrast,
public employees are usually killed one at a time and with
little, if any, public notice.
According to a U.S. Bureau of Labor Statistics report, from
1992 to 2001, 6,455, workers at the federal, state and local
levels lost their lives on the job. About half of these
fatalities, 3,227, occurred in local government, while 1,224
state government workers died on the job during this period.
AFSCME members, like other public employees, have died
under horrible and gruesome circumstances, such as suffocating
in a confined space, being fatally assaulted by patients or by
inmates, or developing cancer from exposure to asbestos.
I also want to make you aware of the many workers who have
died across the country while maintaining our nation's roads
and highways. More than 100 employees of the Commonwealth of
Pennsylvania alone, members that I represent here today, lost
their lives while working on the state's highways.
Hundreds of thousands of public employees are injured or
made ill each year. For some types of hazards, such as
workplace violence, public workers are at much higher risk than
private-sector employees. According to a 2005 BLS study, 32
percent of all state government workplaces and 15 percent of
local governments reported some form of violence within the
preceding 12 months of the survey, as compared to only 5
percent for private industry.
In conclusion, I submit to the members of this Committee
that our nation's failure to provide the most basic rights to a
safe workplace for over 8 million working people--the people
who protect and serve the citizens of this nation, even in its
darkest hours--is an outrageous injustice.
To correct this injustice, it is imperative that you in
this room support prompt and decisive legislative action.
Thank you very much.
[The statement of Mr. Fillman follows:]
Prepared Statement of David Fillman, Executive Director, Council 13,
American Federation of State, County and Municipal Employees (AFSCME)
Thank you. My name is David Fillman, and I am the Executive
Director of Council 13 of the American Federation of State, County and
Municipal Employees. I am honored to represent more than 65,000 public
employees in the Commonwealth of Pennsylvania today. And as an
International Vice President with AFSCME, I speak for more than 1.4
million public employees nationwide, who are employed by states and
their counties, townships, boroughs, cities, and school districts, as
well as private and public non-profit health and human service
facilities.
Our membership is extremely diverse, and is made up of hard-working
members who provide vital public services to the citizens of
Pennsylvania, in the areas of transportation, health care, public
safety, public works, water and wastewater treatment, corrections, and
education, just to name a few.
But despite their various backgrounds, our members have two things
in common. Number one, they confront serious and even life-threatening
dangers on the job each and every day. Second, they are not covered by
our nation's most basic workplace safety protections required by the
Occupational Safety and Health Act (OSHAct). Let me repeat the second
point because so few people, including too many elected officials at
the national, state, and local levels, even realize that millions of
public employees across this country are not covered by OSHA.
The Occupational Safety and Health Act was passed in 1970 to
provide American workers with safe workplaces. But there was a catch.
The law excluded state and local government workers. Today, more than
35 years later, only 21 states have exercised their option to operate
their own state OSHA programs. Three other states, New York,
Connecticut and New Jersey, have a federally approved plan for their
public workers, and responsibility for the private sector falls under
the federal OSHA laws.
That means that 26 states do not have a federally approved program
in place to cover workplace safety for public employees. That
translates to more than 8 million public sector workers. There are a
handful of states, such as Illinois and Wisconsin, which have state
laws that provide similar protection to their public workers, but which
are not federally approved programs.
In a few minutes, you will hear from Mrs. Casey Jones, who lost her
husband. Mr. Casey's employer was not required to follow OSHA rules
that could have prevented his death. And even more tragically, the
state law that was enacted in 1982 to assist employers to make their
workplaces safe, had been repealed by Governor Jeb Bush and the Florida
legislature in 1999.
Public employees in the other Gulf Coast states of Louisiana,
Alabama, Mississippi, and Texas also work without OSHA protection. That
means that the public workers who responded to hurricanes Katrina and
Rita--men and women who performed selfless acts of heroism--were not
entitled to any workplace safety protections whatsoever, during the
disasters, in their aftermath, or while they continue to rebuild those
devastated regions.
I do not have to look any further than where I live to explain what
the lack of OSHA coverage means. Neither the Commonwealth of
Pennsylvania nor local governments are required to follow OSHA
standards. For example, workers who must go into a deep trench to
repair a water main break or for some other reason do so without their
employers having to follow specific procedures or use equipment to
prevent the trench from collapsing. When public employees perform the
same job just across the border to the east in New York or New Jersey,
or to the south in Maryland, their public employers are required by
their state OSHA laws to take precautions to prevent their workers from
being buried alive. This situation is not fair, and it is not right.
Having the right to a safe job should not depend on the state in which
public employees work.
Having OSHA coverage for all public employees is not just an issue
of fairness; it is a matter of life and death. With the exception of a
few occupations such as law enforcement or firefighters, the general
public and their elected officials have little or no idea about the
dangers faced by state and local government workers. At the beginning
of 2006, a great deal of attention was paid, and rightfully so, to the
Sago mine disaster that killed 12 miners. By contrast, public employees
are usually killed one at a time, and with little, if any, public
notice. According to a U.S. Bureau of Labor Statistics (BLS) Report
entitled Fatal Occupational Injuries to Government Workers, 1992-2001,
6,455, workers at the federal, state and local levels lost their lives
on the job. About half of these fatalities (3,227) occurred in local
government, while 1,224 state government workers died on the job during
this period. According to the most recent BLS data available, in 2005
another 520 government workers died, of which 107 were state and 300
were local government workers.
The statistics are important to show the scope of the problem, but
we must remember that each number is a worker who has died and
suffered, and left loved ones behind to cope with the loss. AFSCME
members, like other public employees, have died under horrible and
gruesome circumstances such as suffocating in a confined space, being
fatally assaulted by patients in mental health facilities or by inmates
in prisons, or developing cancer from exposure to asbestos. I also want
to make you aware of the many workers who have died across the country
while maintaining our nation's roads and highways. More than 100
employees of the Commonwealth of Pennsylvania alone, members that I
represent here today, lost their lives while working on the state's
highways. Highway work is the most dangerous work in the Commonwealth,
which I learned as a young employee of PennDOT, the Pennsylvania
Department of Transportation.
Public awareness campaigns have helped to make highway work safer
by educating drivers to slow down and drive more carefully in work
zones. But to this day, no enforceable workplace safety law exists for
that highly dangerous occupation--or for the other public service
occupations throughout Pennsylvania.
Fatalities are but the tip of the iceberg. Hundreds of thousands of
public employees are injured or made ill at work each year. For some
types of hazards, such as workplace violence, public employees are at
much higher risk than private sector employees. According to a 2005 BLS
2005 study, 32 percent of all state government workplaces and 15
percent of local governments reported some form of violence within the
preceding 12 months of the survey, as compared to five percent for
private industry.
I came here to describe why OSHA coverage for all public employees
is so important. However, before I end my remarks, I also feel
compelled to say that we deserve coverage that translates into real
safety and health protection for our members, and all other workers in
this country. For the past six years, OSHA has failed miserably to meet
its mandate to protect workers. Enforcement of OSHA rules has taken a
back seat to voluntary compliance and alliances with companies and
trade associations. OSHA has failed to issue new and needed standards.
It even withdrew its proposed tuberculosis rule, and now public health
officials are warning us about a super drug resistant strain of TB that
has emerged. OSHA just recently denied AFSCME's petition for an
emergency standard for pandemic influenza preparedness, stating they
could not take action because no human pandemic influenza virus exists
at this time. OSHA should know that the time to prepare for a crisis is
before it occurs and compel employers, if necessary, to take action in
advance of emergency, not during or after a catastrophe has happened.
Some state OSHA programs have tried to address part of the massive
void left by federal OSHA. Within the past couple of years, New York
State passed a workplace violence prevention law, Washington State
passed a safe patient handling bill, and California issued a standard
to protect workers from exposure to heat. Federal OSHA should be
addressing these and many other hazards.
In conclusion, I submit to the members of this Committee that our
nation's failure to provide the most basic rights to a safe workplace
for over 8 million working people--the people who protect and serve the
citizens of this nation, even in its darkest hours--is an outrageous
injustice.
To correct this injustice it is imperative that you, in this room,
support prompt and decisive legislative action. Thank you.
______
Chairwoman Woolsey. Thank you.
Ms. Jones?
STATEMENT OF CASEY JONES, ON BEHALF OF THE AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL EMPLOYEES
Ms. Jones. Good morning. My name is Casey Jones, and I am
from Daytona Beach, Florida. I would like to thank the chairman
and members of the subcommittee for inviting me to testify
today.
I have a larger statement that I would like to have placed
in the record.
Chairwoman Woolsey. Without objection.
Ms. Jones. On January 11, 2006, my husband and best friend,
Clyde Jones, was taken from me and the children, family,
friends and community who loved him. He was only 40 years old.
He went to work one morning for the city that he loved and
to a job that he loved. He never came home.
He was instructed by the City of Daytona Beach to repair
buildings damaged by the hurricanes of 2004. The roof, which
was to be removed, was directly over tanks holding highly
flammable and dangerous gases which escaped through venting
pipes at the wastewater treatment where he worked.
Clyde was not a roofer. He worked in general maintenance.
He had no knowledge of dangers associated with these tanks that
he had worked around for the last 7 years because there had
never been any safety meetings for him or other workers.
He did not know of the dangerous gases which were escaping.
He was never advised such a situation existed, nor were there
any warning signs or precautions given to him.
He was instructed to go with the other workers and use
lighted torches to begin cutting away the torn metal to start
the repair process. My husband was in a crane that was used to
lift the metal pieces that were cut away.
As the lighted torch cut through the metal, the gases
coming from the vent exploded into a horrible fireball. The
tanks and pipes broke, and hot flammable gases were directed
into the cab where my husband was severely burned.
He was transported to the hospital where I work. The
doctors who knew him cried uncontrollably because of their
empathy for the unbearable pain they knew he was in. Clyde was
burned over 90 percent of his body with third-degree burns.
He was stabilized at the hospital and then airlifted to
Orlando Regional Medical Center 60 miles away to the burn unit.
Clyde suffered through a horrible cleaning process that finally
showed the severity of his burns.
When Clyde was brought into his room and I had the
opportunity to see him once again, I was devastated. I spent
several hours with him to comfort him and promised that I would
be strong for him and would be there for him through his
recovery.
I received a call the next morning from the doctor
informing me that Clyde had no chance of recovery and they were
keeping him on life support until the family could say their
goodbyes.
The city has shown no mercy.
There were no safety meetings in advance. There was no
review or written plan as to how to safely proceed that day.
The City of Daytona Beach, like so many other governmental
agencies, did not have to abide by OSHA standards.
Thus, not having to comply, no one cared enough to
voluntarily comply. Daytona Beach did not even have a safety
officer on payroll at the time. No one required them to do so.
They cut the budget for that position when the law did not make
such a position mandatory.
The government that my husband loved and served did
nothing, absolutely nothing, to provide him with a safe
workplace. They simply ignored responsibility for his safety
because they did not have to provide a safe work environment as
a city government.
My husband's life was not the only one taken that day.
Another co-worker died, and another still suffers with terrible
burn injuries.
The state that he also loved ignored our cry for help. A
bill was presented to the State House of Representatives in
Florida which would have required local governments to meet
minimum OSHA safety requirements. The bill never made it to the
floor.
The Chemical Safety Board responsible for investigating
this tragedy found numerous basic safety issues which were
ignored due to the lack of any requirement that the city adhere
to such standards. It concluded that had any of these basic
safety standards been in place, my husband would be alive
today.
You cannot help my husband or others that suffered, but you
can help to save lives and the devastation caused by horrific
injuries to the future victims and future families. I am only
here for that purpose. I am here hoping that my husband's life
was not taken in vain.
If you would know the person that Clyde was, you would
realize we cannot afford to lose another woman or man like him.
He is the backbone of what makes our country work.
Clyde served in the U.S. Army in the Gulf War. At 6 feet
and 270 pounds, he was a very big man. He worked hard every
day. As big as he was, his heart was even larger. His heart
would break even more if he knew that he died senselessly, with
no one wanting to prevent something like this from happening
again.
My heart breaks as I speak. I know that he did not have to
die. My heart breaks for his children. They will never
understand why he died. My heart breaks for those that lost
families, friends in similar situations all needlessly, all so
senselessly.
I am now sitting in front of my leaders of my country. I
never dreamed I would sit here at such a place. Only you can
help make sure this does not happen to others.
Thank you for the opportunity to speak.
[The statement of Ms. Jones follows:]
Prepared Statement of Casey Jones, on Behalf of the American Federation
of State, County and Municipal Employees (AFSCME)
Good Morning. My name is Casey Jones and I am from Daytona Beach,
Florida. I would like to thank the Chairman and members of the
Subcommittee for inviting me to testify today.
On January 11, 2006, my husband and best friend, Clyde Jones, was
taken from me and the children, family, friends and community who loved
him. He was only 40 years old. He went to work one morning for the City
that he loved to a job that he loved. He never came home.
Clyde put his life on the line for you and me and countless others
while on duty with the U.S. Army in the Gulf War. We trusted our lives
to him, but the government which he served so proudly did not place his
life in their trust in any fashion whatsoever.
He was instructed by the City of Daytona Beach to repair a building
damaged by the hurricanes of 2004. The roof, which was to be removed,
was directly over tanks holding highly flammable and dangerous gases
which escaped through venting pipes at the waste management plant where
he worked.
Clyde was not a roofer. He worked in general maintenance. He had no
knowledge of the dangers associated with these tanks he worked around
every day for the last 7 years, because there had never been any safety
meetings for him and other workers. He did not know of the dangerous
gases which were escaping because he was never advised such a situation
existed, nor were there warning signs or other precautions given to
him.
He was instructed to go with other workers and using lighted
torches, they began cutting away the torn metal roof to start the
repair process. My husband was in a crane which was used to lift the
metal pieces as they were cut. As the lighted torch cut through the
metal, the gases coming from the vent exploded into a horrible
fireball. The tanks and pipes broke and hot flammable gases were
directed into the cab of the crane, where my husband was severely
burned. He was transported to the hospital where I work. The doctors
who knew him cried uncontrollably because of their empathy for the
unbearable pain he was in. Clyde was burned over 90 percent of his body
with 3rd degree burns. He was stabilized at the hospital and then air-
lifted to Orlando Regional Medical Center 60 miles away to the burn
unit. Clyde suffered through a detriment cleaning process that finally
showed the severity of his burns. When Clyde was brought to his room
and I had the opportunity to see him once again I was devastated. I
spent several hours with him to comfort him and promised that I would
be strong for him and would be there throughout his recovery. I
received a call the next morning from the doctor informing me that
Clyde had no chance of recovery and they were keeping him on life
support until the family could say their goodbyes. The City has shown
no mercy.
Every day countless men and women go to work with nothing to
protect them from the harm that faces them from doing their jobs as
they are instructed. There were no safety meetings in advance of the
work that day. There was no review or even a written plan as to how to
safely proceed. There was no safety precautions taken such as spark
arresting mats or other devices required in private industry to be used
whenever lighted torches are part of the work conditions. There were
numerous regulations in place through OSHA, and had Clyde been working
for private industry, these regulations would have likely saved his
life and prevented the explosion from ever occurring. However, none of
these regulations or safety considerations were in place because the
City of Daytona Beach, like so many other governmental agencies, did
not have to abide by OSHA standards. Thus, not having to comply, no one
cared enough to voluntarily comply. Daytona Beach did not even have a
Safety Officer on payroll at the time, because no one required them to
do so. They cut the budget for that position when the law did not make
such a position mandatory.
The government that my husband loved and served did nothing,
absolutely nothing to provide him with a safe place to work. They
simply ignored any responsibility for his safety because they did not
have to provide a safe work environment as a city government. When
people hear this, the sounds of such words echo with disbelief.
I still cannot believe this could happen in a world wrecked by the
lessons of poor preparation and the need to vigilantly protect one
another at all costs.
My husband's life was not the only one taken that day. Another co-
worker died and another still suffers with terrible burn injuries.
Only you can help. Sadly, cities and other smaller governmental
agencies will not take action to save lives unless they are told they
must do so. The budget is more important to the city that the people
who work for the city.
Only you can help. The state that he loved has also ignored the cry
for help. A bill was presented to the State House of Representatives in
Florida which would have required local governments to meet minimum
OSHA safety requirements. The bill never made it to the floor. The
safety of local governmental workers who make up such a large part of
the work force is not a priority in the State of Florida at the present
time.
Only you can help. The Chemical Safety Board, responsible for
investigating this tragedy, found numerous basic safety issues which
were ignored due to the lack of any requirement that the City adhere to
such standards. It concluded that had any of these basic safety
standards been in place my husband would be alive today. They met in a
public forum to present their findings. Important members of the
community were present. They pleaded for action. None was taken. Only
you can help.
You can not help my husband or the others that have suffered but
you can help to save lives and the devastation caused by horrific
injuries to the future victims and future families. I am here only for
that purpose. I am here, hoping that my husband's life was not taken in
vain. If you will listen to my story. If you would only know the person
that Clyde Jones was, you would realize that we cannot afford to lose
another man or woman like him. He is the backbone of what makes our
country work. At over 6 feet and 270 pounds, he was a very big man. He
worked hard every day. He carried a lot of people's needs on his broad
shoulders. As big as he was, his heart was even larger. His heart would
break even more if he knew that he died, senselessly, with no one
wanting to prevent something like this from happening again.
My heart breaks as I speak. I know that he did not have to die. My
heart breaks for his children. They will never understand why he died.
My heart breaks for those that have lost family and friends in similar
situations, all so needlessly. All so senseless.
I am now sitting in front of the leaders of my country. I never
dreamed I would sit in such a place. I never dreamed I would have the
courage to speak these words. I am honored to be here on behalf of my
husband and so many others. I pray you will take on the responsibility
that others have avoided taking. I thank you from the bottom of my
heart for letting me speak today. God bless each one of you.
Only you can help make sure this does not happen to others.
______
Chairwoman Woolsey. Thank you.
Mr. Sarvadi?
STATEMENT OF DAVID G. SARVADI, ATTORNEY, KELLER AND HECKMAN LLP
Mr. Sarvadi. Thank you, Madam Chairman. My name is David
Sarvadi. I am an attorney and also a certified industrial
hygienist, which, to those of you who do not know, is one of
the two professions that works on workplace safety, and I have
been doing this now for about 35 years.
These kinds of workplace tragedies affect everybody, not
just the families and the immediate friends of the victims. I
have seen numerous cases where not just the employees, but the
managers and the families of those managers, get very, very
seriously affected by the emotional trauma that is associated
with it, and we certainly should expect our governments to be
exemplary, to be models in terms of workplace health and
safety.
In regard to the proposal to expand OSHA coverage and to
add state and local employees to the coverage under the
Occupational Safety and Health Act, regardless of whether we do
it with a mandatory requirement or if we leave it to the states
to do it on their own, we should expect them to do it with the
same degree of earnestness and attention that the private
sector does.
I think my experience with state and local government
activities and a little bit of the research that I have done on
the topic shows that in the states that are not now covered by
state plans, a number of them have statutory requirements
mandating that their local governments as well as the state
governments comply either with general safety and health
provisions in the state law or specifically with the
Occupational Safety and Health Act and its implementing
regulations.
One of the things that is undoubtedly true is that even
where we have coverage under the Occupational Safety and Health
Act, having that coverage does not guarantee that compliance
will occur, and compliance does not guarantee that safety
results. My experience with this shows that you can be in
compliance with lots of regulations and still have safety
hazards and activities on the job that result in great tragedy.
So let's not lose sight of the fact that while the
regulations are important in identifying the kinds of things
that generally need to be done to try to prevent safety and
health hazards, it is the responsibility of everybody involved,
both the managers as well as the employees, to take the steps
necessary to protect themselves.
The second issue I wanted to bring to the attention of the
committee is the issue of whether or not coverage is going to
be allowed. I took a quick look at the Supreme Court decisions
on imposition of federal employment mandates on state and local
governments, and I think it is fair to say at this point it is
not clear how the Supreme Court would end up.
They have gone back and forth about it over the last
couples of years, and I think it might be better if we avoided
a constitutional issue over this by trying maybe a different
approach to encouraging the states to participate.
It is true that the current statute provides some incentive
to the states to adopt a comprehensive program and it provides
some funding, but it seems to me that perhaps a system of
education and grants and other kinds of assistance might move
things along in some of the states that have not been as
aggressive as perhaps they should be.
I think the other point that I wanted to make is that the
preemption issue is one that we really need to keep a focus on
and maybe from a little bit different perspective here. One of
the things that Congress does when it passes statutes and
assigns responsibility to various agencies is that it expects
those agencies to develop expertise in particular areas, and so
if we have the Federal Aviation Administration responsible for
aviation safety, for example, it is unlikely that OSHA is ever
going to get the kind of expertise in that area that the FAA
has.
So I think it is important to keep in mind that if we are
going to deal with preemption, I do not think the proposed
language is going to help very much because it is going to put
an overlay of having OSHA make a judgment about whether the
existing regulation by that other agency is as effective as
OSHA standards, and not having the expertise that the other
agency has, I am not sure that they are going to be able to
make the judgment correctly.
Then having a procedure for appeals and all of the rest of
that--we know what is happening with OSHA's current regulatory
process and how difficult it is to get regulations through. I
do not think adding another layer of bureaucracy is the right
way to go on that regard.
And, Madam Chairman, I would like to have the written
document that I submitted earlier entered into the record as
part of my written statement.
[The statement of Mr. Sarvadi follows:]
Prepared Statement of David G. Sarvadi, Attorney, Keller and Heckman
LLP
Good morning. Mr. Chairman, Members of the Committee, and invited
guests, thank you for the opportunity to participate in this important
proceeding.
My name is David Sarvadi. I am an attorney with the Washington,
D.C., law firm of Keller and Heckman LLP, and I am here to comment on
H.R. 2049, the Protecting America's Workers Act. I also have some
suggestions to improve the bill. At Keller and Heckman LLP, we
represent and assist employers in meeting their obligations under a
variety of federal and state laws, as well as international treaties
and the laws of Canada, Europe, and many countries of the Far East. In
particular, we help clients maintain progressive health and safety
programs intended to protect their employees in their workplaces, as
well as to comply with national and international health and safety
laws and standards. The Occupational Safety and Health Act is the
primary focus of our compliance assistance here in the U.S.
I am appearing in this hearing on my own behalf, and any views
expressed herein should not be attributed to my firm, my partners, or
any other entities, including any of our clients. I am here solely as a
person with a long standing interest in the topic of occupational
safety and
The two provisions that we are discussing today are the issue of
whether the Occupational Safety and Health Act should be amended to
modify the definition of the word, employer, to remove the exemption of
state entities and their political subdivisions, as well as to extend
coverage of the OSH Act to federal employees. The second question is
whether the provision in the statute prohibiting the Secretary of Labor
(SOL) from regulating workplace conditions where another federal agency
has established regulations or standards applicable to those workplaces
should be amended to require the Secretary to affirmatively determine
that the protection provided is ``at least as effective as'' that
provided by the OSH Act. In both cases, I believe the proposals are
misdirected and therefore could be improved. Let me explain why.
In 1968, when Congress was considering the proposal to regulate
workplace safety and health at the federal level, there was some
attention paid to the question of whether federal agency safety and
health programs were up to snuff. Congressional proposals included
provisions to make federal programs ``models'' including comprehensive
safety and health programs, adequate, to provide ``safe and healthful
workplaces and conditions of employment, consistent with the standards
set under section 6,'' and to keep records of occupational injuries and
illnesses and to report them to the Secretary. In the end, these
provisions were adopted, but there was no provision calling for
inspections of federal agencies or for providing for enforcement
through some system of penalties. What the proposal would do is, in
effect, adopt a penalty system for federal agencies.
I do not believe that this should be necessary. Federal agencies
have extensive programs and are required to comply with OSHA
regulations by executive order. Having federal agencies paying
penalties to the Treasury for OSHA violations would simply reduce the
resources available for compliance. It is a non sequitor.
With regard to states and political subdivisions, the Congress
recognized limitations on its power to regulate internal state
operations, including those related to the relationships between public
employees and their state and local government employers. While not
mandating compliance with OSHA standards, the legislation required
those states that would operate a state plan of OSHA enforcement would
have to simultaneously adopt a program of compliance and enforcement
for state agencies and their political subdivisions. In doing so,
Congress also appropriated money to be paid to those states who would
take over the new programs.
Much has been made of the argument that because the OSH Act does
not cover states as employers that their employees are not protected. I
do not believe that is entirely true. Of the 25 or so states that do
not have state plans, a number of them have mandatory compliance
requirements enacted under state law, while others require compliance
with OSHA standards through executive order.
Two things need to be remembered in deciding the public policy of
attempting to impose federal OSHA requirements on the states. The first
is that compliance with OSHA standards does not assure safety. Surely,
many of OSHA's standards address physical changes in the workplace that
prevent employees from being injured, such as machine guards and
electrical design standards. But many accidents occur not when normal
operations are occurring but during service, maintenance, and other
non-routine operations. In those circumstances, the protective devices
that are normally used may have to be removed to accomplish the task at
hand. I do not believe it is possible to write regulations to address
what are essentially infrequent occurrences. So what is necessary is
for people to be trained in the kinds of hazards that they encounter on
the job, to recognize them, and to take steps to prevent them. In some
ways, this is more a problem of education than enforcement. Perhaps the
current Administration's approach of outreach and education should be
expanded and funding increased to address this perceived deficiency.
Second, it is not clear that Congress has the authority to apply
OSHA standards to the states by mandate. The Supreme Court has gone
back and forth on the subject of regulation of workplace conditions
between states and its employees. The question of the authority of
Congress under the Commerce Clause to impose employment conditions on
states has been debated in Supreme Court cases without clear
resolution.
Rather than engender a debate over the esoteric constitutional
issue, I personally believe that it would be better to have Congress
encourage states to comply by tying grants and other funds to state
compliance programs. Similarly, it makes little sense to have a scheme
in place in which scarce local government resources are used to pay
federal penalties with the idea that public employers need a stick to
force them into compliance. Most private employers comply with OSHA
regulations because they are good citizens. I would hope that Congress
believes our state and local governments do not need to be coerced into
doing what is right for their employees. Similarly, I do not believe
that an enforcement system involving penalties paid to the federal
government makes good sense.
Preemption adopted by another agency is at least as effective as
compliance with the OSHA provisions at issue. That, in and of itself,
does not seem offensive, except that it will impose a requirement on
the Agency that will detract from its primary mission. Preemption is
intended to preclude overlapping, redundant, or conflicting regulation
by different arms of the federal government.
In the proposal by requiring OSHA to review and make a
determination that another agency's decisions provide equivalent
protection, Congress is suggesting that OSHA has greater expertise on
these topics than the agencies charged with their full-time regulation.
As the Supreme Court acknowledged in the OSHA case of Martin, Secretary
of Labor v. Occupational Safety and Health Review Commission (OSHRC),
59 U.S.L.W. 4197, 111 S. Ct. 1171 (1991) (CF&I Steel), when OSHA
develops a standard, it develops an expertise in the subject matter,
both in the rulemaking process and in the enforcement context. That
expertise entitles OSHA and other regulatory agencies to deference when
interpreting the regulations they adopt.
Similarly, if OSHA under the proposed language were to reject the
balancing and judgments adopted by the sister agency on a subject about
which they are acknowledged to have superior expertise, it would be
substituting its lesser informed judgment for that of the agency
charged by Congress with implementing the totality of the public
policies addressed in the enabling legislation. In other words, the
bill would allow OSHA to substitute its judgment over that of a more
experienced and knowledgeable government organization.
A few examples might suffice. Under current regulations of the
Department of Transportation (DOT) a number of different regulatory
programs address public health and safety. Among them are the programs
addressing transportation of hazardous materials, safety. One example
related to me of an OSHA regulation that reflects a lack of complete
understanding of the technology regulated by DOT. Under OSHA
regulations, the wheels of trucks that are being serviced by powered
industrial trucks like for lifts must be ``chocked'' to prevent the
trucks from rolling away from the dock. Under DOT rules, chocks are not
required if the trailer is equipped with ``spring brakes'' that lock in
place when air is removed from the braking system. Having to chock a
truck takes time, and it is not clear that it is a necessary
improvement from a safety perspective over the brake system DOT has
approved. Under the present system, OSHA is theoretically precluded
from enforcing its rule. This means a significant savings of time,
especially where there are large numbers of trucks moving in and out of
a distribution center, and in DOT's judgment without a cost in safety.
Whether OSHA's rule improves safety is not clear.
The change in the statute will add another layer of bureaucracy to
an already burdened system. Making OSHA perform an affirmative
determination, then subjecting it to challenge and judicial review may
seem like a good idea from an administrative law perspective, but it
implies that the initial determination by OSHA's sister agency is
suspect. For employers, it creates greater uncertainty and confusion,
which is the opposite of what any changes in the law should seek to
achieve. Moreover, it increases complexity in an area that everyone
already admits is ponderous and working badly, if at all. That is the
rulemaking process.
The current language of section 4(b)(1) is clear enough. The courts
have fleshed out the Congressional mandate in a workable way, wherein
the agency whose regulation would displace OSHA's must address the
hazard OSHA's standard would address. Having done so, it is not a
question of efficacy. Properly so, it seems to me, the present
arrangement presumes that the enabling statute and the OSH act
articulate. In this way, the full intent of Congress is acknowledged
and implemented by the agency specifically charged with balancing these
competing interests. The Supreme Court in the case of Chevron U.S.A.
Inc. v. Echazabal, 122 S.Ct. 2045 (2002) noted that compliance with all
laws is mandated, and that agencies are expected to make ``the
substantive choices that agencies are expected to make when Congress
leaves the intersection of competing objectives both imprecisely marked
but subject to administrative leeway. * * *'' The provision
contemplated will put OSHA--with less experience and knowledge on a
topic--in the position of second-guessing the other agencies'
decisions. It hardly seems an appropriate and efficient use of limited
government resources.
Conclusion
The proposals sound plausible on their surface but the reality is
that they distract public attention from important work that remains to
be done. Federal employees and those in states with approved state
plans are already covered by OSHA requirements, and a number of the
remaining states do so by state statute. Having OSHA oversight should
be unnecessary and duplicative, and there is no justification for
expansion of OSHA jurisdiction where states on their own are following
OSHA's rules. The better approach would be for Congress to use its
funding power to provide states with the incentive and the wherewithal
to upgrade their public employee safety and health programs.
Regarding preemption, the present system is working, and there is
nothing to fix. Congress made the correct choice in 1969 when it
recognized that some agencies with specific expertise in individual
industries or activities are better equipped than OSHA to understand
and implement safety programs. The provision would simply increase
bureaucracy and inefficiency and is not a proposal designed to lead to
better government programs.
______
Chairwoman Woolsey. Without objection.
Mr. Turnipseed?
STATEMENT OF JON TURNIPSEED, SAFETY SUPERVISOR, MUNICIPAL WATER
DEPARTMENT
Mr. Turnipseed. Chairwoman Woolsey and members of the
subcommittee, I am Jon Turnipseed, and I am very pleased to be
here today as a certified safety professional representing the
30,000 members of ASSE. That is the American Society of Safety
Engineers. They have asked me to speak as strongly as I can in
support of providing occupational safety and health coverage
for all public-sector workers no matter where they work.
I am a public-sector employee. I am the safety supervisor
for the City of San Bernardino Municipal Water Department in
Southern California. I see every day how important safety and
health coverage is for my fellow workers,
And might I add that what Ms. Jones has gone through is
something I work hard to prevent every single day. I am
probably the only person in this room that has to worry about
that every morning when I walk in, so my heart goes out to Ms.
Jones. I know how tough this is.
Most people are shocked to learn that in 26 states, public-
sector employees are not guaranteed the same level of workplace
health and safety protection that private-sector workers have.
They also do not understand the risk that many government
workers face on their behalf. I have heard people say and tell
me, ``Oh, working at the water works or the sewer plant cannot
be that dangerous, is it?''
Let me tell you it is. This is why San Bernardino hired me
to make sure our workers properly follow OSHA standards.
Water and wastewater workers enter hundreds of underground
vaults, trenches, pits several hundred times every year. On any
given day, the potential of a lethal atmosphere in a vault or
similar confined space or trench collapse can kill them.
On the street level, these same workers also have to direct
traffic around their work zones. Water and wastewater treatment
depends on electrical pumps and motors. So, every day, we face
electrocution hazards.
Potentially hazardous chemicals, like chlorine, are used
throughout our industry. Operating large construction
equipment, like earthmovers, backhoes and cranes, is always
risky business. Office workers face everything from carpal
tunnel injuries to assaults by angry customers.
People fail to realize also that many of these public-
sector workers who are without health and safety coverage are
the very first responders who rush in during a disaster to save
their lives. Water and wastewater people are right in the
middle of those disasters, too.
My experience shows only one example of the need for
public-sector coverage. People working in hundreds of other
jobs within the government arena face similar risks and deserve
the same protection they would enjoy if they were private-
sector workers, yet more than 8.5 million of these workers
remain without occupational safety and health coverage that
meets federal OSHA standards.
We do understand the arguments against this: unfunded
mandate; ``It costs too much''; ``We do not need it because we
take good care of our public employees.'' In all honesty, these
arguments just are not supportable.
I understand the unfunded mandates as a public employee
myself. I also struggle to keep on top of the ever-changing
government regulations, yet I accept that my job is to do the
best I can to care for the workers and the citizens of San
Bernardino, and I do not shirk that task.
As a safety professional, I soundly reject the idea that
the cost of safety is just too much. Beyond meeting the moral
duty to protect workers' lives, the best corporations in our
country know that investing in safety and health pays off in
improving the bottom line. No doubt taxpayers would like to
know why their governments do not have a better understanding
of the safety and health payoff to the bottom line.
The numbers of deaths and injuries among public-sector
workers contradicts the idea that they are taken of, and if a
government entity's employees are well cared for, it would not
cost them more to follow OSHA standards because the investment
in meeting those standards would have already been made.
I had this coverage, and I know that the San Bernardino
Water Department is no less a good steward of taxpayers' hard-
earned dollars than a water department where coverage is not
provided. In fact, the recent tragedy in a similar Daytona
Beach department discussed here already today speaks volumes
against each of these arguments.
ASSE was the Chemical Safety Board's hearing on the
accident in Daytona Beach. So were the plaintiffs' lawyers for
the victims, and rightfully so. We do know what the tragedy
cost in lives. No doubt the cost in taxpayer dollars to Daytona
Beach for not meeting the most basic OSHA standards will be
much higher than the investment in meeting those standards had
they done it properly in the first place.
Now ASSE's Florida members are working to see the Florida
legislature provides public-sector coverage. We understand,
though, that the surest way to achieve coverage for every
public-sector worker is to amend the federal OSHA Act. ASSE
fully supports provisions to do this in your bill, Chairwoman
Woolsey.
The time has come to be fair to all public-sector workers
who risk their wellbeing for all of us. ASSE stands ready to
help. Whatever questions the subcommittee has for me, I would
be more than happy to answer.
[The statement of Mr. Turnipseed follows:]
Prepared Statement of Jon Turnipseed, Certified Safety Professional, on
Behalf of the American Society of Safety Engineers (ASSE)
Chairwoman Woolsey and Members of the Subcommittee: I am Jon
Turnipseed, and I am pleased to be here today representing both my own
views as a Certified Safety Professional and the views of the 30,000
members of the American Society of Safety Engineers (ASSE). As a
volunteer, I am a member of ASSE's Government Affairs Committee. In my
professional capacity, I am a public sector employee serving as the
Safety Supervisor for the City of San Bernardino Municipal Water
Department in California. Although I work for a municipal government, I
am grateful we are subject to inspections and civil penalties for
violations of occupational safety and health laws, unlike the estimated
8.5 million other public sector employees across the country who are
not. Accompanying me today is Dave Heidorn, ASSE's Manager of
Government Affairs and Policy.
ASSE is the oldest and largest society of safety, health and
environmental professionals in the world. Founded in 1911, ASSE's
dedicated members include Certified Safety Professionals, Certified
Industrial Hygienists, Professional Engineers, academicians, fire
protection engineers, system safety experts, health professionals and
an impressive collection of other disciplines. Our members are experts
committed to excellence in the protection of people, property and the
environment worldwide. The Society has thirteen practice specialties,
including an active Public Sector Practice Specialty with members who
have wide ranging expertise and knowledge in managing safety, health
and environmental risks in every kind of public sector workplace.
Based on the expertise and knowledge of our members, ASSE has long
advocated the need to address the lack of occupational safety and
health coverage for state and local government workers that now exists
in 26 states and the District of Columbia. With the attention today's
hearing brings to the issue, ASSE hopes that the reasons why millions
of workers remain without OSHA coverage can quickly be resolved.
Government Workers Are Not Covered by OSHA
Most people are shocked to find out that the workplace safety and
health protections put in place by the Occupational Safety and Health
Act of 1970 (OSH Act) apply only to private sector workers and not all
state and local government employees. Under the OSH Act, states are
allowed to run their own state OSHA programs in lieu of federal
coverage of the private sector. These approved state OSHA programs must
be at least as effective as the federal program and, unlike the federal
Occupational Safety and Health Administration (OSHA), are required to
cover both the private sector and their own state and local government
workers.
Twenty-one states and Puerto Rico have federally approved OSHA
programs that cover public employees--Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming. Three states whose private
sector workers are covered by federal OSHA--Connecticut, New Jersey,
and New York, along with the Virgin Islands--have federally approved
state programs that apply only to state and local government workers.
Therefore, 26 states and the District of Columbia leave their state
and local government workers unprotected by any federally approved
occupational safety and health laws--Alabama, Arkansas, Colorado,
Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine,
Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire,
North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota,
Texas, West Virginia, and Wisconsin. No pattern or underlying reason
explains the lack of coverage. Larger and more populated states like
Florida, Illinois and Texas join smaller, less populated states like
Delaware, Montana and North Dakota in failing to give their workers the
same protections private sector employees have in those states.
These unprotected state and local government workers are the good
people who keep our state, county and municipal governments functioning
on a daily basis. They run the gamut from workers in high-risk jobs
such as law enforcement and fire fighters to workers in low risk office
jobs. They are the people who make sure that we all have safe water to
drink, battle to keep our aging street infrastructure functional, make
sure that our kids have decent parks, and keep our legal system up and
running to fight crime. Most people are familiar with the hazards
associated with working in high profile jobs such law enforcement and
firefighting. The safety and health risks these people take every day
to protect us go without saying. What this Subcommittee and the
American people need to know are the largely hidden occupational safety
and health hazards that many less well-known public sector workers face
daily.
In my own job, I make sure California OSHA regulations are followed
to protect the people who provide drinking water and wastewater
treatment for the city. When I tell people what I do, the typical
comment is something like, ``Working at the water works and the sewer
plant surely can't be that dangerous.'' On the contrary, the men and
women I work with enter hundreds of underground vaults, trenches and
pits several hundred times each and every year. On any given day, the
potentially lethal atmosphere in a vault and other similar confined
spaces as well as the potential for a trench collapse can turn their
work deadly. Many of these trench entries are in the middle of heavy-
traffic streets and highways, which not only compounds trench stability
issues but also poses risks to workers on the street level who must try
to control the never-ending flow of traffic.
Water and wastewater treatment requires a huge amount of electrical
pumps and motors. Therefore, my colleagues must work with or near
thousands of low and high voltage electrocution hazards every day.
Chemicals are used throughout various water department operations and
many of these constitute potential health hazards if not properly used.
Chlorine gas is an essential product for keeping our drinking water
safe but, if improperly handled or transported, can quickly become
lethal for the workers and nearby citizens. Operating large
construction equipment like earthmovers, backhoes, and cranes is
another daily task that can become risky if appropriate safety
procedures are not followed and enforced. Office staff faces everything
from carpal tunnel injuries and other ergonomic hazards to workplace
violence from being assaulted by disgruntled customers. In short,
people who think that working for a city water department is low risk
work that does not need OSHA protections are wrong.
My experience in a municipal water department is only one example
of the need for public sector occupational safety and health coverage.
People working in hundreds of other job specialties within the state
and local government arena face no less dangerous safety, health and
environmental risks and deserve the same protections they would enjoy
if they were doing these jobs in the private sector.
The Risks to Government Workers
Good reasons support what ASSE hopes will be action by this
Subcommittee to protect public sector workers across the United States.
From my own view as a public sector employee, the simplest but most
compelling reason is that saving lives and preventing injuries always
tops the list of values that our government holds dear in every other
responsibility it undertakes. State and local government workers are,
in many instances, the ``first responders'' upon whom we all depend.
Whether a terrorist attack or a natural disaster, these first
responders are the first people who rush in to help save lives. We put
a premium on that capability in our society. These same people who
protect the public from hazards deserve the no less of a commitment to
occupational safety and health protections from their employers, the
public, and all of us here today.
Please note that, when I say ``first responders,'' the term
encompasses much more than the usual perception of law enforcement and
fire fighters. I know from personal experience that water and
wastewater people are right there in the middle of most disasters,
moving throughout the affected areas to keep the infrastructure up and
running. Hurricane Katrina taught many people a valuable lesson that
people in my line of work have always known--a city is a miserable
place when it is without electrical power and communications system.
Cut off the water and waste water systems, and a safe and habitable
city no longer exists.
That occupational safety and health risks are a problem for public
sector workers is clear. The U. S. Department of Labor's Bureau of
Labor Statistics tells us that, from 1992 to 2001, 6,455 employees of
government entities at all levels were fatally injured while at work.
During that period, the annual number fluctuated from a high of 780 in
1995 to a low of 566 in 1999. Among the three levels of government--
federal, state and local--workers in local government, which accounted
for 50 percent of all government employment, incurred the highest
number (3,227) of occupational fatalities over the period.
Because government workers are employed in a wide variety of
occupations, they provide a diverse cross section of workers to
examine. Of the 6,455 government employees that were fatally injured on
the job from 1992 to 2001, 5,694 (88 percent) were men and the
remaining 761 (12 percent) were women. In terms of age, 12 percent of
the fatally injured workers were aged 24 years and under, 26 percent
were aged 25 to 34, 24 percent were aged 35 to 44, 22 percent were aged
45 to 54, and 16 percent were aged 55 and over. Caucasian workers
accounted for 77 percent of all workplace fatalities in government over
the 10-year span; they accounted for 73 percent of total workplace
fatalities. Black workers accounted for 12 percent of the fatalities in
government and 10 percent of overall workplace fatalities. Hispanic
workers represented 6 percent of the fatalities in government and 11
percent of overall workplace fatalities.
Approximately half of the fatal occupational injuries to government
workers resulted from transportation incidents. The next largest event
or exposure category was assaults and violent acts, which accounted for
22 percent of the workplace fatalities in government over the 1992-2001
period. The next most common event or exposure category among
government workers was exposure to harmful substances or environments,
which accounted for 426 (7 percent) workplace fatalities during the
period. Of these, 159 involved contact with electric current, and 139
involved oxygen deficiency. A total of 423 government workers were
killed through contact with objects or equipment--most (257) from being
struck by an object. Finally, 359 government workers lost their lives
in falls, and 270 died in fires and explosions. It must be noted that
these totals do not include the many public sector fatalities that
resulted from the terrorist attacks of September 11, 2001. The public
sector is subject to the same difficult questions facing private
industry about underreported deaths from work-related illnesses that
are not recorded. Many occupational exposures to chemicals and toxic
substances, such as crystalline silica and asbestos, result in
illnesses with a long latency period. The correlation between workplace
exposure and death is often missed when the worker succumbs fifteen or
more years after leaving the workforce.
What is not available are complete data comparing the injury and
illness and fatality rates of states whose public sector workers have
safety and health coverage and states not requiring such coverage. ASSE
has undertaken its own review of what we believe is incomplete data and
would be happy to share what we have found with Subcommittee staff.
However, the need for a more comprehensive understanding of the problem
is needed. ASSE urges this Subcommittee to task OSHA and BLS to work
together to devise a way to develop this data and share it with the
Subcommittee as quickly as possible.
From my own experience and the experience of my fellow safety and
health professionals, rates should be lower in states that have
established health and safety requirements and OSHA oversight than
rates in states where no one takes responsibility for workplace safety,
as is found in the private sector in comparisons between companies who
are committed to safety and health and those that are not. Although the
data may not be clear, we know for sure that hundreds of state and
local government workers are killed and thousands injured each year.
Because private industry widely accepts that workplace health and
safety programs do prevent or mitigate the effects of workplace hazard
exposures, it is difficult to understand why so many state and local
governments do not better protect their workers with OSHA coverage.
An Unfunded Mandate?
In the early 1990s, the labor movement attempted several revisions
of the OSH Act. One of these revisions would have provided the coverage
for all public employees that we seek today. At that time, reportedly,
the League of Cities, the Conference of Mayors and the Association of
State Legislators opposed coverage. The primary objections were that
such a requirement would be an ``unfunded mandate,'' that it would
``cost too much,'' or that ``we don't need it because we take good care
of our public employees.'' These are not supportable positions
I can appreciate the sentiment behind the unfunded mandate
argument. As a supervisor, I likewise struggle each year to keep on top
of ever-changing regulatory requirements from various levels of
government. Yet, as a professional with a moral commitment to
protecting the citizens of San Bernardino, I also accept that part of
my job is to stay current and help see we do our best to take care of
our citizens and our employees with whatever limitations there are on
resources. I do not shirk my duty.
As a safety professional, I reject that safety costs too much. Most
importantly, not spending money to protect state and local government
worker's health and safety sends a message that such workers are
expendable, that it is cheaper to kill or injure employees than to
protect them. As the best working corporations across this country have
found, investment in managing safety, health and environmental risks
pays in more productive employees, fewer accidents, less injuries and
deaths in workers that can only take from a company's bottom line.
Although not the direct subject of this hearing, the benefits of
investing in safety and health can be found on ASSE's Business of
Safety Committee's website at http://www.asse.org/
search.php?varSearch=business+of+safety, ASSE's white paper, ``Return
on Investment for Safety, Health and Environmental Programs'' at http:/
/www.asse.org/search.php?varSearch=return+on+investment, and the safety
and health topics page on OSHA's website, ``Making the Business Case
for Safety and Health'' developed by OSHA, ASSE and other Alliance
participant leaders in safety and health at http://www.osha.gov/dcsp/
products/topics/businesscase/index.html. No doubt, taxpayers would like
to know why their governments do not have the same concern over bottom
line issues that private sector employers widely accept.
As to the argument that government employers already take good care
of their employees without a mandate, the contradiction is obvious. The
numbers of deaths alone among public sector workers contradict this
statement. If a government entity's employees are well cared for, it
could not cost more to follow OSHA standards because an entity would
already be making the commitment required by those standards. I receive
this coverage, and I do not believe the San Bernardino Municipal Water
Department is any less a good steward of taxpayer's hard-earned dollars
than water departments where coverage is not provided.
In fact, a recent tragedy in a municipal water department in
Florida, where OSHA coverage is not mandated, provided a telling
demonstration of why providing such coverage is both a moral and an
economic imperative. On January 11, 2006, an explosion at the City of
Daytona Beach's Bethune Waste Water Treatment Plant killed two
municipal employees and gravely injured a third. In 2000, Florida had
stopped requiring state entities to provide safety and health coverage,
giving public sector employers the choice to provide such coverage
voluntarily. Six years later, Daytona Beach did not have a commonly
found ``hotwork'' permit system used by OSHA to control cutting and
welding operations. The city also did not have a hazard communication
plan to train workers on the hazards of the flammable chemicals they
were told to work above. When sparks from their cutting torches ignited
the flammable liquid tank, two of the workers burnt to death and the
third was critically injured.
The U.S. Chemical Safety and Hazard Investigation Board (CSB)
investigated and found that the tragedy was preventable if the city had
been required to follow the same OSHA standards as private industry.
ASSE shares the conclusion CSB Chairman and CEO Carolyn W. Merritt
captured when she said, ``Workers in private industry benefit from a
variety of OSHA standards designed to prevent death and injury, and
public sector employees deserve no less.'' CSB's completed
investigation report is at http://www.chemsafety.gov/
index.cfm?folder=completed--investigations&page=info&INV--ID=57. Now,
ASSE members in Florida are engaged in an effort to see to it that
Florida public sector workers do receive occupational safety and health
coverage. Due to their work, we fully expect a bill to be introduced in
next year's legislature that would reverse the state's policy that such
coverage need only be voluntary.
ASSE's members understand, though, that the surest way to achieve
coverage for Florida's workers and every one of the 8.5 million public
sector workers who do not have such coverage is an amendment to the
federal OSH Act. ASSE fully supports provisions in the bills introduced
this year by you, Chairwoman Woolsey (HR 2049) and Senator Kennedy (SB
1244) that would do just that. Until coverage is made federal law,
however, ASSE's members will continue to work for solutions at the
state level, as our members are already doing in Florida.
Conclusion
ASSE greatly appreciates this opportunity to share our views today.
Since 1970, a missing section in the OSH Act has lessened the well
being of 8.5 million public sector workers who are not protected from
occupational safety and health risks as private sector workers are. The
time has come to be fair to all those public sector workers who risk
their well being for all of us. The 30,000 members of ASSE stand ready
to help this Subcommittee achieve that fairness.
Whatever questions the Subcommittee has for me, I would be more
than happy to answer.
______
Chairwoman Woolsey. Thank you very much to all four of you.
I will begin the questioning with you, Mr. Sarvadi.
I know you think it is better that rather than amend OSHA
that states be given incentives to comply with OSHA standards,
but I ask you: The federal government has already provided
matching funds of their very own for OSHA-approved programs,
and after 37 years, only 21 states have OSHA-approved state
plans, and only three states have plans cover public employees
only.
What are we going to do with the other 26 states? Why do
you think good faith works when it doesn't? What would you do
if you were in our shoes?
Mr. Sarvadi. Well, let me clarify a couple of points, Madam
Chairman, about the matching funds that OSHA provides. Those
matching funds go to support the enforcement programs that
those 21 states operate. That covers private-sector employees
as well. So the money that is available in those funds is for
operation of the state program similar to OSHA's funding.
What I am talking about in terms of additional funding that
would encourage the other states to participate would be the
kinds of grants that would go to pay for the kinds of programs
that the water department in San Bernardino has and that the
City of Daytona obviously needs.
Chairwoman Woolsey. Well, let me reclaim my time to ask
then, Mr. Turnipseed, why are you able to follow OSHA standards
in San Bernardino? That is part of your job. Why can you do
that?
Mr. Turnipseed. Obviously, you know, my city, my water
department is committed to following OSHA--in this case, CAL-
OSHA standards. We are a state program state. They are very
committed to making sure that our public-sector workers know
what to do, the right way to do it, and we do not have
tragedies like Ms. Jones has just gone through.
Chairwoman Woolsey. Tell me what you think after reviewing
the report on the Daytona Beach's safety program. Explain how
this explosion could have been prevented. I mean, you have read
it.
Mr. Turnipseed. Yes.
Chairwoman Woolsey. Your association has made a report on
it. Would you tell us about that?
Mr. Turnipseed. The tragedy for me is there are two very,
very basic OSHA programs that were totally neglected here. If
they are not training their folks--and we call it hazard
communication--on the chemicals and the substances you work
with, that is a very basic thing that everybody needs to know.
Everybody has a right to know. In fact, it is known as the
Right to Know law.
Hot work permits--how you deal with welding and cutting and
brazing, anything that generates a spark--that is a very basic
simple thing that we all know and we all follow. By following
those very simple basic things, this tragedy would have been
totally preventable.
Chairwoman Woolsey. Thank you.
Ms. Jones, to your knowledge, did your husband's employer
take any steps to investigate the incident and report to you,
the family, the cause?
Ms. Jones. When the explosion first happened, they were all
right there wanting to help, wanting to find out things, why
this happened, what can we do better. The day of his funeral, I
had the city commissioner tell me that ``whatever we could do
to change this, we will.''
Nothing has been changed except they hired a safety officer
in the City of Daytona Beach. As far as I know, the city has
not told me nothing else besides why, how. It just seems like
they keep pointing fingers behind each other.
Chairwoman Woolsey. So, without the report of the Chemical
Safety Board, would you have known any of the facts about how
it happened?
Ms. Jones. No.
Chairwoman Woolsey. Okay. Thank you.
Mr. Fillman, when OSHA was passed 37 years ago giving the
states the option of covering state, county and municipal
employees, why do you think only half of the states became
involved in it and what would the obstacles be for a state to
offer to be part of OSHA?
Mr. Fillman. I can only talk about my experience in
Pennsylvania, and in Pennsylvania, for the last 20 years, we
have tried to submit on 10 different occasions a bill to give
OSHA protection to public employees. It really has not gone far
because the opponents of it always raise the issues of unfunded
mandates, staffing that would have to be accomplished, which
really is not the intent of OSHA-type bills at all.
So we have not been successful in Pennsylvania, and I think
the opposite is true that if an OSHA-type bill was in place for
public employees in Pennsylvania, not only would the
possibility of some of the deaths that we have, especially in
the highway work, have been prevented, but a lot of lost wages,
lost time, disability pensions, those kinds of things would
have been averted.
Chairwoman Woolsey. Thank you very much.
Mr. Wilson?
Mr. Wilson. Thank you, Madam Chairman.
And thank all of you for being here today.
Particularly, Ms. Jones, thank you for being here. Your
courage is a tribute to your husband, and so it is just been
very meaningful to have you here. Thank you.
Mr. Turnipseed, I am delighted to see you. My youngest son
is studying engineering, so I appreciate your profession.
In your testimony, you indicated that in 1994 when this
issue came up to cover state and municipal employees that
organizations, such as the League of Cities, the Conference of
Mayors and the Association of State Legislators, opposed the
coverage. Do you know if they have changed their position?
Mr. Turnipseed. I honestly do not know what their current
position is.
Mr. Wilson. And at that time, it was largely due to the
issue of unfunded mandates.
Additionally, in your testimony, you suggest that states
who have adopted their own programs have a better safety and
health record than those of federal OSHA states. From that,
would it seem that the best answer is for the states to take
the programs? What measures and incentives do you think we
could provide that could promote delegation, if any?
Mr. Turnipseed. Certainly. I believe the state program
states are the best. Obviously, you know, when you know your
local issues better than anybody else, you do a little bit
better job. That just goes without saying.
We need OSHA, though, in those states that do not have
anything. Right now, those folks are out just running blind in
the minefield, and that is ridiculous in this day and age. As
far as encouraging other folks to have state plans, all I can
say is money always helps everything. If we can increase the
money for state plan states, giving OSHA more money to help in
those areas would always be a good thing to have.
Mr. Wilson. Indeed, I have seen that with EPA delegating to
the Department of Health and Environmental Control in our state
that it has enhanced the environment.
Then I have worked with the Corps of Engineers to delegate
to state agencies permittings because locally people know, and
it is quite a burden to have to contact a regional office in
Atlanta or, heaven forbid, Washington, D.C.
People do not even know how to pronounce different
communities. It may be Buford in South Carolina and Beaufort in
North Carolina, and by the time the bureaucrat figures which it
is, they have lost track of which state they are talking with.
So I really would like it to be municipal and state.
Mr. Sarvadi, you have testified very well. With your
extensive career, and as an attorney, I appreciate your
background. By imposing federal standards and inspectors on to
the states, will that ensure employee safety?
Mr. Sarvadi. Well, I think I answered that but maybe a bit
indirectly in my statement, Mr. Wilson.
Mr. Wilson. It does not guarantee it, right.
Mr. Sarvadi. It does not guarantee it, and certainly,
taking steps to implement a safety and health program is going
to improve the chances of not having these kinds of tragedies.
I think the point that was made by Mr. Andrews first and
maybe some of the others in their opening statements about the
benefits to a workers compensation program that comes from
having the safety and health program, certainly the money that
they save there could go towards supporting some of these
programs.
But the way the legislation presently is written, if OSHA
were to have authority and started to go in and inspect the
City of Daytona or another agency outside of the state plan
states, then OSHA would have the same enforcement authority--
that is penalty authority--that presently it has with regard to
private-sector employers, and I just do not see the utility of
having a state government agency or a local government agency
taking money out of its budget that would better be used to
improve the safety and health programs in those states and pay
it to the federal Treasury, and that is what the present
arrangement would suggest.
I do not see how that improves safety and health in any
way. So I really think, especially with this administration's
program, in the voluntary protection program and other
cooperative programs that OSHA has developed, we have seen
dramatic improvements in those industries that are
participating in those. I think it is time for us to start
seriously thinking about another approach besides a hammer,
maybe a few more carrots on the table, to get those states that
are not in the programs now to do so in the future.
Mr. Wilson. In line with that theory of the carrot, my
state's own safety plan would be more productive and efficient
for employee safety than the federal OSHA mandates, and how
might states without plans be encouraged, as you were just
implying, to implement their own safety plans for state and
local government employees?
Mr. Sarvadi. I think that one way to approach this would be
to target the grants that OSHA would be authorized to pay out
and maybe OSHA is not the best place to do this. Maybe it
should be through the National Institute for Occupational
Safety and Health. I have not given any thought to the
mechanism.
But if those grants were targeted to specific activities--
for example, to pay for a safety and health manager at a city
or local level, to help pay for training to be made available
to the state and city employees--you accomplish the same end,
and you do it in a way that does not interfere with the states'
abilities to manage their program.
Mr. Wilson. Thank you very much.
Chairwoman Woolsey. Mr. Bishop from New York?
Mr. Bishop. Thank you, Madam Chairman. Thank you for
holding this hearing.
And thanks to the panel, particularly Ms. Jones. Thank you
very much for being here.
Mr. Sarvadi, do you consider the imposition of a national
OSHA standard on the states that right now do not follow such a
standard to be a violation of state sovereignty?
Mr. Sarvadi. Personally, I am a little bit uncomfortable
with having the federal government dealing at that level in the
relations between the state and its employees, but, as I said
in my opening remarks, the Supreme Court seems to be two-minded
about this.
In every case that is directly addressed, for example,
under the Americans With Disabilities Act or the Fair Labor
Standards Act, both of those decisions that I looked at were 5-
4 decisions, so it is not clear that constitutionally we have
that.
Mr. Bishop. So it would----
Mr. Sarvadi. Personally, I think, I expect my state and
local government officials to do the right thing, and the right
thing is to have a safety and health program.
Mr. Bishop. I think we would all agree in an ideal world
that that would be the case, but, I mean, the record is replete
with examples where the federal government has imposed a
national standard.
We have a national standard for handicapped access. We have
a national standard for how students with special needs are to
be treated. We have a national standard for what educational
expectations would be for K through 12 students. Under current
law, the president has the authority to deploy the National
Guard in each state as he sees fits.
How do you see this issue not rising to the same level of
importance as those issues, such that one would reasonably
argue that we do not need a national standard?
Mr. Sarvadi. I do not think it is correct to say that we do
not have a national standard. In the 26 or 27 states and
territories that have state plans, they are following the
federal standards. In a number of the other non-state plan
states, they have state mandates to follow the federal
standards--not their own standards, the federal standards.
I will admit because of the shortness of the time that I
had to prepare for the hearing, I was not able to go out and
look at all of the states, and I would encourage this committee
to ask the Congressional Research Service to find out exactly
what----
Mr. Bishop. Let me just go to a specific case. It is my
understanding that Florida had a non-federally approved
standard, which then-Governor Bush abolished in 2000. In the
absence of a national standard, a governor is free to do that,
under current law, as I understand it.
Using the construct that you are proposing, which is some
system of carrots as opposed to sticks, how do you see that
working to incentivize a Governor Bush or others who are
likeminded to follow a federal standard and not to, in effect,
voluntarily withdraw from the system?
Mr. Sarvadi. I am glad you asked me about Florida because I
want to set the record straight, if I can. Again, I did not
have a lot of time to look at this, but I did look specifically
at Florida.
The Florida legislature repealed the statutory requirement.
Subsequent to that, I believe it was Governor Bush who issued
an executive order requiring state and local governments to
comply with federal OSHA standards, and I believe that is the
case in Florida today.
So the issue in Florida is an interesting one in light of
the accidents that occurred and it is interesting to me to pass
the question perhaps to the City of Daytona officials about why
they have not complied with that executive order. That
executive order approach is the one, in fact, that we use at
the federal level.
Mr. Bishop. If I may use that as a segue to Ms. Jones,
again, thank you very much for being here. Are you aware of any
official actions taken by the City of Daytona Beach to prevent
tragedies such as the type that took your husband or any other
formal response to that tragedy on the part of the City of
Daytona Beach?
Ms. Jones. The only formal response that I can recall that
the city has announced that they have done since the accident
in 2006 is to hire a safety manager to oversee any kind of work
to be done, to follow guidelines, and the only reason I even
found that out is they came out in the papers.
You know, it is kind of funny. They eliminated the position
years ago, but within 3 months of my husband passing away, they
have a safety officer they could not afford just the year or 2
before, but they found it in the budget now since then to keep
this position.
Mr. Bishop. Thank you very much.
And just to clarify, Mr. Sarvadi, the executive order
signed by Governor Bush applied to state employees only. It did
not apply to city or other municipal employees.
Mr. Sarvadi. As I said, I did not have a lot of time to get
ready for this.
Mr. Bishop. Thank you. Thank you very much.
Thank you, Madam Chairwoman.
Chairwoman Woolsey. Thank you.
Ms. Shea-Porter?
Ms. Shea-Porter. Thank you very much.
I have some concerns, if I could address those, please.
What I am disturbed about, Mr. Sarvadi, is the way you are
acting as if we can count on private industry and we can also
count on governments to just do the right thing because they
are good citizens.
The reason that we have courts is because we do not always
do the right thing. So I have trouble with your basic premise
there that we just leave it up to them because they will do the
right thing.
And we have Ms. Jones sitting next to you, and I offer my
deepest sympathies. It is a tragedy that was not necessary
because the right thing was not done.
So I wanted to ask you a question about--and you also
pointed out that it does not guarantee compliance, and so I
guess you get right back to: Do you believe in seat belts?
Putting seat belts in cars does not guarantee compliance, and
compliance does not guarantee safety, but we know it sure helps
a lot. We have seen the change in numbers when people started
using seatbelts.
So I cannot quite understand where you are coming from. I
know you have a certain set philosophy, but can you address
what I just brought up in terms of: Do we have to have some set
of protections for these employees and their families?
Mr. Sarvadi. Well, let me address, if I can, the point that
you made about voluntary compliance, which is sort of a
misnomer because there is nothing voluntary about complying
with OSHA for the private sector, and in those states that have
state laws, there is nothing voluntary about that either.
But we do rely in this country not only in the occupational
safety and health area, but in other areas like the Internal
Revenue Service on the good citizens of the country to do the
right thing.
I think our experience with the IRS--and with OSHA, for
that matter, with the Occupational Safety and Health Act--is
that, for the most part, our citizens do the right thing. So
the question is: What is the best way to get the rest of them
up to speed?
It seems to me that the notion that if we pass this
requirement and bring these states into the federal plan that
magically things will change and, all of a sudden, they will be
doing all the things that we think they should be doing, that
does not happen. Our experience in the private sector shows
that we do have people that do not do the right thing, and of
course, that is why we have courts and why we have enforcement.
But I do not think the American people--and I certainly
personally would be opposed to the notion of having an OSHA
inspector on every workplace. That is not going to work. We are
never going to pay for that kind of response, and, in fact, it
would not really make any difference.
The OSHA inspectors are good people, and they do work hard,
but, in fact, they cannot be everywhere every minute, and these
kinds of things sometimes occur randomly without expectations.
So the best we can hope to is to educate not only the
employees but the managers about the importance of these things
and about the ways to prevent injuries and illnesses from
happening and then to learn from the experience of the past and
make sure that we do the things differently in the future, so
they never happen again.
Ms. Shea-Porter. Well, first of all, I hate to bring you
bad news, but when the IRS started cutting down the number of
compliance officers, the rate of compliance dropped. So it
certainly does help to have somebody watching.
When I was reading your testimony, you wrote that the idea
that public employees need a stick to force them into
compliance--you said it makes little sense, and that most
private employers comply with OSHA regulations because they are
good citizens.
Now I could agree with you that most people are good
people, but we should not each time let somebody like Ms. Jones
and her family suffer so that we can ``learn'' the next time to
prevent the next accident.
I do think it is our responsibility to prevent accidents
instead of trying to learn from them, and I have not heard
anything else offered besides the idea that you have to have
people on the job who are the eyes and the ears for our public
workers.
I just have not heard anything different today, but I thank
you for your comments.
Chairwoman Woolsey. Mr. Hare?
Mr. Hare. Thank you, Madam Chair, for holding the hearing.
Mr. Sarvadi, let me ask you, in the years that you have
been doing all of this, how many safety and health inspections
have you done in public employee workplaces where OSHA
standards did not apply?
Mr. Sarvadi. How many I have personally done?
Mr. Hare. Yes. Have you ever done any like at a public work
yard or a wastewater treatment plant?
Mr. Sarvadi. Well, while I was in law school, I was a
consultant for a company that had contracts with Prince William
County, the D.C. government, and there may have been some other
government agencies for asbestos inspections. So that is the
kind of thing that we did.
I am not sure that those were voluntary. There was a lot of
public pressure from families to look into asbestos in the
schools, and there were some statutory provisions, but----
Mr. Hare. Well----
Mr. Sarvadi. I do not do inspections. Mr. Hare, I do not do
inspections per se anymore. I have not done them for about 20
years.
Mr. Hare. Well, let me ask you this. If you had a choice,
Mr. Sarvadi, would you rather go into a trench or to a confined
space where there were OSHA standards and you had work or where
there were not OSHA standards?
Mr. Sarvadi. The point, I think, is that it is not the OSHA
standard that makes any difference. Part of OSHA adopting the
confined spaces standard----
Mr. Hare. No, I am saying to you would you rather go
someplace where there is a standard, or would you rather go to
work someplace where there is no standard whatsoever?
Mr. Sarvadi. I worked at a company that had standards
before the federal government had them, before the federal
government imposed them, and my point is that the standards are
not uniquely effective because they are federal standards. They
are effective because they address the technical issues that
occur.
The point to be made is that people need to do these
things, and states and local governments need to do them just
as much as the private sector or even Congress in its offices
need to do these things. We all have a responsibility. I just
do not think that the proposed legislation with this mandate
for penalties on state and local government necessarily is the
best way to go about it.
Mr. Hare. Well, in your statement, you said, ``I do not
believe it is possible to write regulations to address what are
essentially infrequent occurrences.'' In your 35 years of
practicing as an industrial hygienist in occupational safety,
have you ever heard of the OSHA lockout-tagout standard?
Mr. Sarvadi. Of course. We had that standard in place
before OSHA adopted it many years ago.
Mr. Hare. After the incident that killed Mrs. Jones'
husband, would you refer to that as an infrequent occurrence
and could that have been prevented had basic OSHA standards
been followed?
Mr. Sarvadi. I think the incident could have been prevented
and training provided to the employees that would have helped
them recognize the hazards, but, as I read the CSB report, I
believe the way the accident occurred was that the welding
sparks fell into the vent, and the vent had a flame arrestor
that had been corroded and degraded, and it was that
combination of things that occurred that actually led to the
fire and the explosion.
That is the kind of technical analysis that you get into.
Would a lockout-tagout program have prevented that particular
incident? I do not believe so because it was not a question of
having uncontrolled energy present. It was a problem of having
the vent open to the atmosphere, and the lockout-tagout
standard I do not believe would have applied in that particular
situation.
Mr. Hare. Well, it seems to me that when people go to work
every day--and, Ms. Jones, I am sure when your husband got up
and went to work every day--people have, I think, a right to
assume that they are going to someplace that is reasonably safe
and where there are some standards to keep them safe.
What I do not understand is the reluctance, quite frankly,
to expand this to a group of people who need the protection. I
mean, it would seem to me, if we are going to allow the good
will of folks to determine this--as my colleague has already
mentioned, you know, they have seat belts in cars. You know, we
have speed limits. It does not mean that people always obey
them, but the fact of the matter is I do not know why we cannot
seem to err on the side of the worker and give them the
protection that they need.
I do not think federal grants, with all due respect, to get
cities to comply is the answer here. I think that those types
of accidents, infrequent as they are, they are tragic.
Listen, if we do nothing, if we do nothing except say,
``Well, we want the states, you know, to be good citizens and
try this and we will not get any pressure from the feds to try
to get them to live up to their end of the bargain,'' I think
that is really disrespectful to the workers, to get up every
day and for their families that depend on them to come home at
night.
So, with that, I yield back.
Chairwoman Woolsey. Mr. Payne?
Mr. Payne. Thank you very much, and let me thank you for
calling this very important hearing.
We have been very active in New Jersey with OSHA. We had a
leader from the IUE years ago, Archer Cole, who used to have an
annual funeral, and a number of people who died from
occupational hazards and accidents would have a funeral to
commemorate the lives of those persons.
So, as you know, we are one of the three states--just
Connecticut, New York and New Jersey--that have a public
employee only plan, which really establishes the public
employee only where the state government enforces safety and
health protection for the public sector, and the federal
government covers the private sector. But we really take the
whole question of occupational safety and health in New Jersey
very, very seriously.
Let me just ask you, Mr. Fillman, the OSHA law gave the
states the option of covering state, county and municipal
employees 37 years ago, yet less than one-half of the states
have stepped up to the plate. What are some of the obstacles
you have faced in Pennsylvania attempting to get OSHA coverage
for public employees and, in your opinion, do other states face
the similar obstacles?
Mr. Fillman. As I stated before, I can speak for
Pennsylvania, and I do not think the obstacles that were
outlined when we proposed--that we have proposed 10 times in
the last 20 years--the opponents of that type of bill are any
different than any state, and that is the unfunded mandates.
It is the misnomer of added staffing, the misconception
that buildings would have to be torn down because they are not
safe any longer, a whole realm of mistruths, if you will, that
are brought--and staggering numbers that are attached to
those--and that is really the idea behind the defeat of that
bill on most occasions.
Mr. Payne. Could you give me one reason that has been given
for not providing OSHA coverage for all public employees? One
of the reasons that we hear is that it would bankrupt the
states and counties, and so what do you think about this, and
do you, in fact, believe that covering public employees by a
federal OSHA plan would save states money, and if so, how?
Mr. Fillman. Yes, definitely. We feel that the loss of
time, the workers compensation claims, disability, pensions if
it is a more severe injury, the replacement of a worker if a
worker is out, the training that goes with replacing that
worker, the lost wages, if I have not said that already, all of
those things would be cost factors that would be alleviated if
we had less accidents, more safeguards in place and ultimately
less deaths in the Commonwealth of Pennsylvania and, I am sure,
for the rest of the states.
Mr. Payne. Finally, could you spend a little time telling
us about some of the workplace accidents that have taken place
in Pennsylvania that, in your opinion, may have been prevented
if public employees were covered by OSHA?
Mr. Fillman. We have the most significant and dangerous
work and sometimes it is not really represented, is the
highway. We have lost over 100 members, 100 employees of the
Commonwealth of Pennsylvania since 1970 that have died on the
highways.
We have tried to piecemeal some protections when it comes
to highway work with construction work safety zones, increasing
fines, as best as we can, but unless the standards are in place
as far as working on the highways and giving the employees the
benefit of having a standard and safeguards in place, there
would have been less than those 100 deaths.
We have had incidents in the custodial area dealing with
chemical safety, a mismix of chemicals without any standards in
place.
I just had heard of an incident at one of our universities
where without an OSHA standard or an OSHA compliance officer,
there was a question as far as an electrical panel box over
what is known as a slop sink in the custodial work area where
our member had to actually, through the network in the union,
find out someone that knew about electrical compliance and
standards to find out if the area was safe. And it was an
unsafe area, but the employer was not in the position of
helping enforce that compliance.
So, at times, we are battling it ourselves without any real
standard or compliance officer that could help.
Mr. Payne. Thank you very much.
Chairwoman Woolsey. Well, thank you all.
Oh, wait a minute. I forgot. Mr. Andrews from New Jersey?
Mr. Andrews. Thank you, Madam Chairman.
I thank the witnesses for their testimony.
I thank you again for the courtesy of the privilege of
participating in the hearing.
Mr. Sarvadi, let me say from the outset I appreciate your
testimony. I do not agree with your conclusion that we are
asked to encourage states and localities to cover public
workers is the right idea.
But let's say for a minute that it became the law and let's
say that we offer these more generous grants and 20 states say,
``No, we are not interested in these grants. We just do not
think it is a very good idea, and we are not going to offer
standards comparable to OSHA or OSHA standards to cover public
employees.''
What should we do?
Mr. Sarvadi. Find out if those people had a recent
psychiatric examination because I do not think states ever turn
down money from the federal government.
Mr. Andrews. Oh, I do not think that is true. Oh, I do not
think that is true at all. The federal government offers
abstinence education money, but states believe that is an
intrusion on their curriculum and do not do so. We offer money
in exchange for meeting certain enhanced clean water and clean
air standards and people turn it down because they do not want
to do so.
I think you have to assume that because the amount of money
here would be relatively modest that there would be people who
would turn this down. So what do we do when someone turns this
down? What should we do then?
Mr. Sarvadi. I think we better wait and see what happens.
Mr. Andrews. Well----
Mr. Sarvadi. I do not agree with you that the states will
turn the money down, and depending on how much it is, it
depends on what you are going to ask them to do. If the money
is available for them to fund specific positions in the state
government to address these things, it seems to me most of the
states, if not all of them, will take that money. The problem
is----
Mr. Andrews. Have you surveyed the states to ask them this,
or how do you know this?
Mr. Sarvadi. I do not think anybody has asked the states
what they would do under those circumstances because I think
this is the first time that we have had this conversation.
Mr. Andrews. Well, your testimony implies that you believe
that the present incentives that are offered to pay for state
employees who inspect private employers are insufficient. By
what measure are they insufficient because there is an
incentive system in place, right?
Mr. Sarvadi. I am not sure I understand the question.
Mr. Andrews. You testified earlier that the present OSHA
grants and incentives pay states to help them hire personnel to
inspect private employers, but that does not extend to state
employees, right?
Mr. Sarvadi. No, it does not extend. These are the state
plan states. In those states, the money that is given to them
goes to operate the state OSHA plan which does cover the public
employees in those states.
Mr. Andrews. But you must think that because everybody has
not done that, that that offer is insufficient to get everybody
to jump on board this financial gravy train, right?
Mr. Sarvadi. Well, remember what I said. The money is not
going to pay for safety managers in the different state
agencies. The money goes to the state enforcement agency to
enforce it.
Mr. Andrews. I see.
Mr. Sarvadi. What I am suggesting is that the money should
be made available to pay for the safety program itself.
Mr. Andrews. So we should pay the salaries of state
employees to manage their own safety programs in cities and
states out of the federal Treasury. Is that what you think?
Mr. Sarvadi. I am suggesting that if you want to give them
an incentive to adopt----
Mr. Andrews. Wow.
Mr. Sarvadi [continuing]. Programs like the ones that are
mandated in the state plan states, that that is one approach
that could be taken.
Mr. Andrews. Why should we stop there? Why should not we
pay them to hire their division of taxation employees to do a
better job collecting taxes? Why should not we pay them to have
their environmental employees do a better job inspecting
federal environmental laws? Why stop with just OSHA then?
Mr. Sarvadi. I think we actually do pay state employees
through grants from EPA where EPA contracts with the state to
do----
Mr. Andrews. We pay them a very tiny percentage of the
payroll of people who do that. Very, very tiny.
Mr. Sarvadi. I would guess you probably would know.
Mr. Andrews. Let me ask you another question. If we had a
situation where states are subject to the OSHA rules, your
testimony is you do not think penalties for the federal
Treasury are an effective means of encouraging compliance.
What is then? If someone is required to do something and if
they do not do it they are not fined or penalized, what is an
effective means of making people comply?
Mr. Sarvadi. Well, it seems to me if we were talking about
state and local governments, simply the fact that having it
become publicly known that they are out of compliance would be
an incentive for the political authorities in those
jurisdictions to reorient the career employees to do so.
Beyond that, I have not given a lot of thought to it at
this point.
Mr. Andrews. What would you think if the fines were put
into a fund that was dedicated to deal with the medical costs
of injured workers?
Mr. Sarvadi. I guess that is what the workers compensation
system already does.
Mr. Andrews. But wouldn't it be a good idea to supplement
that system to pay for injuries caused by careless practices by
states? Isn't that an effective fine?
Mr. Sarvadi. Anything that you can do to help the victims
of these incidents is very important.
Mr. Andrews. I take that as a yes?
Mr. Sarvadi. I would like to think about the implications
of it before we agree unequivocally.
Mr. Andrews. Okay. I am sure the chair would invite you to
supplement the record with that.
Thank you very much. I appreciate it.
Chairwoman Woolsey. Thank you.
Thank all of you for being here.
Thank you, Casey, Mrs. Jones, for testifying.
Ms. Jones. Thank you.
Chairwoman Woolsey. All of our hearts go out to you and to
your family. I do not know if you know how important your
coming here today was to all of us because your story puts a
human face to the issue so that we can remember how important
it is that we have OSHA coverage, that it is not a luxury, it
is not a matter of dollars and cents, it is actually a matter
of life and death, and it is an absolute necessity.
The numbers reinforce the necessity. In 2005, the Bureau of
Labor Statistics reported that there were over 400 work-related
fatalities among state, county and municipal workers, and these
numbers do not even take into account those public employees
who died as a result of workplace-related diseases.
In addition, there are hundreds of thousands of workers who
are injured or become ill each year. In fact, in 2005, there
were 570,000 reported incidents of injury and illness among
public workers.
However, reported incidents do not tell the full story
because this data is taken from the 26 states representing less
than 60 percent of public workers in this country. We do not
have the data for the rest of them. So actual numbers of injury
and illness, of course, are much much higher.
And, most importantly, the injury and illness numbers show
that public employees are much more likely to be hurt on the
job than private-sector employees covered by OSHA.
In addition, although it is not the subject of this
particular hearing, there are millions of other workers,
including air traffic controllers, flight attendants, rail
workers and other transportation workers. who receive inferior
workplace safety and health protections from federal agencies
other than OSHA. They need to be covered by OSHA as well.
Earlier this spring, Senator Kennedy and I introduced the
Protecting America's Workers Act, which would not only mandate
that OSHA cover all public employees, but it would increase
penalties and make it much easier to send people to jail who
kill their employees. It enhances the protections of the
Whistleblower Act, and it gives more rights to families.
Representative Andrews has a similar bill which requires
OSHA to cover public employees as well.
This hearing has once again pointed out this urgent need
for OSHA coverage of state, county and municipal workers. As
chair of this subcommittee, I will work very hard to accomplish
that very goal.
I thank you all for coming here today.
The meeting is adjourned.
As previously ordered, members will have 7 days to submit
additional materials for the hearing record. Any members who
wish to submit follow-up questions in writing to the witnesses
should coordinate with the majority staff within 7 days.
Now, without objection, the hearing is adjourned. Thank you
very much.
[Letter from Associated Builders and Contractors, Inc.,
submitted by Mr. Wilson, follows:]
------
[Whereupon, at 11:57 a.m., the subcommittee was adjourned.]