[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
IMPROVING WORKPLACE SAFETY:
STRENGTHENING OSHA ENFORCEMENT
OF MULTI-SITE EMPLOYERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 23, 2008
__________
Serial No. 110-88
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
--------
U.S. GOVERNMENT PRINTING OFFICE
41-811 PDF WASHINGTON DC: 2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
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 Senior Republican 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 Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Sally Stroup, Republican 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 April 23, 2008................................... 1
Statement of Members:
Hare, Hon. Phil, a Representative in Congress from the State
of Illinois, Wall Street Journal article dated April 23,
2008....................................................... 8
Wilson, Hon. Joe, ranking minority member, Subcommittee on
Workforce Protections...................................... 5
Prepared statement of.................................... 6
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Additional materials submitted:
Letter from Cintas, dated May 7, 2008................ 10
Statement of Errol Ingram, former Cintas maintenance
supervisor......................................... 13
Statement of Maria Espinosa, current Cintas worker... 13
Statement of Santa Ana Ventura, current Cintas worker 13
Letter from the Textile Rental Services Association
of America, dated May 2, 2008...................... 14
Internal Cintas memo and safety bulletin............. 16
Official documents on Cintas Corp. OSHA violations,
Central Islip, NY, 2005-2006, submitted by UNITE
HERE............................................... 20
Statement of Witnesses:
Rabinowitz, Randy S., attorney in private practice........... 54
Prepared statement of.................................... 56
Taylor, Ron, partner, Venable LLP............................ 43
Prepared statement of.................................... 45
Torres, Emmanuel, son of Eleazar Torres-Gomez, worker who
died at Cintas plant....................................... 36
Prepared statement of.................................... 37
White, Frank A., senior vice president, ORC Worldwide........ 38
Prepared statement of.................................... 40
IMPROVING WORKPLACE SAFETY:
STRENGTHENING OSHA ENFORCEMENT
OF MULTI-SITE EMPLOYERS
----------
Wednesday, April 23, 2008
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 11:34 a.m., in
room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Payne, Shea-Porter, Hare,
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,
Policy Advisor, Subcommittee on Workforce Protections; Peter
Galvin, Senior Labor Policy Advisor; Brian Kennedy, General
Counsel; Sara Lonardo, Junior Legislative Associate, Labor;
Michele Varnhagen, Labor Policy Director; Robert Borden,
Minority General Counsel; Cameron Coursen, Minority Assistant
Communications Director; Ed Gilroy, Minority Director of
Workforce Policy; Rob Gregg, Minority Senior Legislative
Assistant; Alexa Marrero, Minority Communications Director;
Hannah Snoke, Minority Legislative Assistant; Linda Stevens,
Minority Chief Clerk/Assistant to the General Counsel; and
Loren Sweatt, Minority Professional Staff Member.
Chairwoman Woolsey. A quorum is present. The hearing of the
committee will come to order, and I will yield myself as much
time as I need for an opening statement and then I will yield
to Ranking Member Wilson for his opening statement.
Welcome, everybody, to this very important hearing. On
March, 2007, Mr. Eleazar Torres-Gomez, a 46-year-old washroom
employee at Cintas, was killed at the company's Tulsa, Oklahoma
plant when he stepped onto a conveyor to remove a jam of wet
uniforms. He was then caught by a large robotic conveyor and
dragged into a drier as it continued to operate for 20 minutes
at 300 degrees before he was discovered. The death of Mr.
Torres-Gomez was a preventable tragedy, and that is probably
the most tragic part about all of this. It did not need to
happen.
Emmanuel Torres is here today, the son of Mr. Torres-Gomez,
and we want to thank you for being here. We know this is hard,
but we will learn a lot from you and we thank you for your
courage. It is crucial that we hear from you today to
understand what happened to your father and to look at ways to
prevent similar tragedies.
Many of us on this subcommittee, in fact every single one
of us on the subcommittee, were outraged that Cintas initially
sought to blame Mr. Torres-Gomez for his own death. Imagine
that, especially since Cintas has its own history of unsafe
working conditions. It is for that reason that from the very
beginning we have been concerned with this fatality and the
implications that come along with it.
In fact, only days after the death of Mr. Torres-Gomez, we
sent a letter to OSHA asking for a nationwide investigation of
Cintas' facilities. One of the reasons we wanted OSHA to
investigate was because we discovered that Cintas, the largest
uniform supplier in North America with more than 400
facilities, employing more than 43,000 people, was actually
well aware of the hazard that caused this tragedy and failed to
take the necessary steps to prevent such an incident. We have
documents, here they are, showing that years before this
tragedy Cintas had experienced at least three close calls
involving almost the exact same scenario that killed Mr.
Torres-Gomez. Yet the company had failed to effectively address
the problems.
An internal memo dated April 30, 2004, notified company
officials, including regional health and safety coordinators
of--and I quote them--an incident that could have resulted in
serious injury and possible death. Accompanying this memo was
an attachment from then Cintas President, Scott Farmer, who is
currently the Chief Executive Officer, describing two other
incidents in the year 2000 where employees had climbed onto
working laundry conveyors to clear jams and both fell into a
running washer. The problem the company faced was that to shut
down the shuttle or conveyor belt, the drier and the unloading
conveyor, is something that the company was apparently
reluctant to do every time there was a jam. Among other
measures designed to reduce the risk, the memo promised to
discuss with manufacturers retrofitting the equipment so that
the shuttle could be completely shut down without shutting
everything else down. None of these promises were acted upon at
the Tulsa facility.
We also know that OSHA was aware of those hazards. We have
a July 7, 2005 OSHA letter of interpretation alerting
employers, workers and inspectors about the need for fixes such
as barriers and barrier guards with interlocks to protect
employees from robotic laundry shuttle equipment like that used
at the Tulsa plant. And on August 8, 2005, one month after the
letter of interpretation was issued, OSHA inspectors
investigated the company's Central Islip, New York facility and
cited the company for the very violations which the bulletin
addressed, the violations that are defined in this stack of
documentation.
The OSHA citation against Cintas for the tragedy in Tulsa
is more than $2.7 million, actually the largest OSHA fine ever
assessed in the service sector. It included a repeat citation
based on the hazards uncovered 2 years ago before in Central
Islip, the hazards that were not isolated to Cintas in Tulsa.
For example, the Tulsa citation was accompanied by a $117,000
penalty against the Cintas facility in Columbus, Ohio and later
a $196,000 citation against Cintas in Mobile, Alabama. In
August 2007, Washington State OSHA fined Cintas over $13,000
after a worker's arm was almost torn off. California OSHA also
cited Cintas for similar violations.
Our main purpose here today is to explore ways to assist
OSHA and ways to assist employers to better protect their
employees, but today we are also interested in looking at the
problem of corporations with multiple sites in multiple States
because somewhere the T's aren't being crossed, the I's aren't
being dotted and what happens in one part of--one company in
one part of the State or another State just doesn't transfer to
the other part of the company. It is really short sighted.
Additionally, Cintas officials have visited us. They have
come here. They have assured us that they have made significant
changes in the company's safety policies. Well, we wanted to
hear about those changes and we regret that scheduling problems
made it impossible for any Cintas official to appear before us
to describe the actions that they have taken before and after
the death of Mr. Torres-Gomez. We are also aware that Cintas
has challenged OSHA's citations, and we are following with
great interest and a lot of concerns the progress of settlement
negotiations with OSHA.
The problem of assuring safety at all facilities at large
corporations is not, of course, just a problem at Cintas. So as
I said earlier, we are looking at corporate-wide investigations
and problems. We think that OSHA--we know that OSHA can do
better and that corporate America must do better. We want to
know if there are ways to enable OSHA to more effectively hold
large employers accountable for compliance throughout their
operations and ensure broader abatement of hazards. Are there
problems with the Occupational Safety and Health Act itself or
in OSHA's regulations that prevent OSHA from effectively
addressing corporate-wide safety and health problems? We need
to know those answers. Can changes in the law or OSHA
regulations address these issues? And in addition, we need to
know what a good corporate-wide health and multiple location
safety program would actually look like.
Finally, what else can OSHA do to encourage companies to
take more responsibility for their workers' safety and health?
I hope we find the answers to these questions, if not today,
over time. This will not be our only hearing. This is not the
only time we are going to be interested in what is going on
with the safety of workers in our country because it is a very
important issue.
And now I would like to yield as much time as he may
consume to the ranking member, Joe Wilson.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee on
Workforce Protections
On March 6, 2007, Mr. Eleazar Torres-Gomez, a 46-year old washroom
employee at Cintas, was killed at the company's Tulsa, Oklahoma, plant
when he stepped onto a conveyor to remove a jam of wet uniforms.
He was then caught by a large robotic conveyor and dragged into a
dryer as it continued to operate for 20 minutes at 300 degrees before
he was discovered.
The death of Mr. Torres-Gomez was a preventable tragedy.
Emmanuel Torres, thank you so much for being here today.
It is crucial that we hear from you today to understand what
happened to your father and to look at ways to prevent similar
tragedies.
Many of us on this subcommittee were outraged that Cintas initially
sought to blame Mr. Torres-Gomez for his own death.
Especially since Cintas has its own history of unsafe working
conditions.
And it is for this reason that, from the beginning, we have been
concerned with this fatality and its implications.
In fact, only days after the death of Mr. Torres-Gomez, we sent a
letter to OSHA asking for a nation-wide investigation of Cintas
facilities.
One of the reasons we wanted OSHA to investigate was because we
discovered that Cintas, the largest uniform supplier in North America,
with more than 400 facilities employing more than 34,000 people, was
well aware of the hazard that caused this tragedy and failed to take
the necessary steps to prevent such an incident.
We have documents showing that years before this tragedy, Cintas
had experienced at least three ``close calls'' involving almost the
exact same scenario that killed Mr. Torres-Gomez.
Yet the company had failed to effectively address the problems.
An internal memo dated April 30, 2004 notified company officials--
including regional health and safety coordinators--of ``an incident
that could have resulted in serious injury and possible death.''
Accompanying this memo was an attachment from then Cintas President
Scott Farmer (currently the CEO) describing two other incidents in 2000
where employees had climbed onto working laundry conveyors to clear
jams and fell into a running washer.
The problem the company faced was that in order to shut down the
shuttle, or conveyor belt, the dryer and the unloading conveyor also
had to be shut down, something that the company was apparently
reluctant to do every time there was a jam.
Among other measures designed to reduce the risk, the memo promised
to discuss with manufacturers retrofitting the equipment so that the
shuttle could be completely shut down without shutting everything else
down.
None of these promises were acted upon at the Tulsa facility. We
know that OSHA was aware of these hazards!
We have a July 7, 2005 OSHA Letter of Interpretation alerting
employers, workers and inspectors about the need for fixes--such as
barriers and barrier guards with interlocks--to protect employees from
robotic laundry shuttle equipment like that used at the Tulsa plant
(where Mr. Torres Gomez was killed.)
And on August 8, 2005, one month after the Letter of Interpretation
was issued, OSHA inspectors investigated the company's Central Islip,
NY, facility, and cited the company for the very violations which the
bulletin addressed.
The OSHA citation against Cintas for the tragedy in Tulsa is more
than $2.7 million, the largest OSHA fine ever assessed in the service
sector.
It included a ``repeat'' citation based on the hazards uncovered
two years before in Central Islip. The hazards and citations were not
isolated to Cintas in Tulsa -for example:
The Tulsa citation was accompanied by a $117,500 penalty against a
Cintas facility in Columbus, Ohio, and later a $196,000 citation
against Cintas in Mobile, Alabama.
In August 2007, Washington State OSHA fined Cintas $13,650 after a
worker's arm was almost torn off.
California OSHA also cited Cintas for similar violations.
Our main purpose here today is to explore ways to assist OSHA and
employers to better protect employees.
We are also interested in solving the problem of corporations with
multiple sites and multiple states.
Additionally, Cintas officials have visited us and assured us that
they have made significant changes in the company's safety policies
(after Mr. Torres-Gomez's death).
We want to hear about that, but we regret that scheduling problems
made it impossible for a Cintas official to appear before us to
describe the actions they took before and after the death of Mr.
Torres-Gomez.
We are also aware that Cintas has challenged OSHA's citations and
we're following with great interest and concern the progress of
settlement negotiations [with OSHA].
And the problem of ensuring safety at all of the facilities of
large corporations is not, of course, just a problem at Cintas, so, as
I said earlier, we are looking at corporate inside investigations and
problems.
We think that OSHA can do better and that corporate America can do
better.
We want to know if there are ways to enable OSHA to more
effectively hold large employers accountable for compliance throughout
their operations and ensure broader abatement of hazards.
Are there problems with the Occupational Safety and Health Act
itself or in OSHA regulations that prevent OSHA from effectively
addressing corporate wide safety and health problems?
Can changes in the law or OSHA regulations address these issues?
In addition, we need to know what a good corporate-wide health and
multi-location safety program would look like.
And finally, what else can OSHA do to encourage companies to take
more responsibility for their workers' safety and health?
I hope we find the answers to these questions and develop goals we
can all work toward to keep our workers safe.
______
Mr. Wilson. Thank you, Chairwoman Woolsey. First, I would
like to thank you for changing the time of this hearing in
order for me to attend a very important South Carolina
delegation meeting. I appreciate your willingness to honor my
request and your staff's and the witnesses' efforts to
rearrange the schedule in order to ensure I could participate
in this subcommittee hearing today.
I, too, want to offer my condolences and sympathy to Mr.
Torres for the terrible loss he and his family have
experienced. His testimony will be difficult, and we thank him
for coming today. The hearing today focuses on larger
corporations with many work sites and how to make sure that a
safety message is ingrained in everyone's workday.
At the subcommittee's field hearing in New Jersey in
January, in which we focused on a different industrial laundry
tragedy, I believe a three-part message became clear. First,
employers must educate employees about the hazards that exist
in the workplace. Second, companies need to continue to build
safety into the corporate culture. And finally, employees need
to be encouraged to ask questions and to provide valuable input
into safety programs. Of course the question is how can we
achieve all three of these goals.
Workplace safety and workplace success enhance each other.
The fact is by using the right approach it is possible to put
in place strong protections for workers that promote a
company's ability to be productive, job creating and important
in the community or communities it serves. For any worker to be
injured or killed in a workplace is a tragedy, And I believe I
speak for everyone when I say that the most important thing for
us to do in the wake of such an event is to focus on prevention
for the future.
Today's hearing may provide discussion about the role of
OSHA. It is often easier to point fingers than to ask tough
questions about what went wrong. But if we really want to
ensure a safe workplace, we must examine if any of OSHA's
regulations are in fact not working.
One of the issues we will discuss is OSHA's Enhanced
Enforcement Program. Is this program effectively targeting
workplaces? Are there other ways that OSHA could focus its
resources? Another question we need to ask is are the
regulations governing lockout, tag out procedures in confined
places easily understood and effectively communicated?
I am hopeful that we will remain focused on these issues
today. Ultimately our shared goal is safer workplaces. The
panel before us will highlight a variety of important issues
that we must carefully consider. I welcome our witnesses and I
look forward to their testimony and, Madam Chairwoman, I yield
back my time.
[The statement of Mr. Wilson follows:]
Prepared Statement of Hon. Joe Wilson, Ranking Republican Member,
Subcommittee on Workforce Protections
Good Morning, Chairwoman Woolsey.
First, I would like to thank you for changing the time of this
hearing in order for me to attend a very important South Carolina
delegation meeting. I appreciate your willingness to honor my request
and your staff's and the witnesses' efforts to rearrange the schedule
in order to ensure that I could participate in the Subcommittee hearing
today.
I, too, want to offer my condolences to Mr. Gomez for the terrible
loss he and his family experienced. His testimony will be difficult and
we thank him for coming today.
The hearing today focuses on larger corporations with many
worksites and how to make sure that a safety message is ingrained in
everyone's work day. At the Subcommittee's field hearing in January, in
which we focused on a different industrial laundry tragedy, I believe a
three part message became clear. First, employers must educate
employees about the hazards that exist in a workplace. Second,
companies need to continue to build safety into the corporate culture.
And finally, employees need to be encouraged to ask questions and to
provide valuable input into safety programs. Of course, the question is
how can we achieve these three goals?
Workplace safety and workplace success enhance each other. The fact
is, by using the right approach it is possible to put in place strong
protections for workers that promote a company's ability to be a
productive, job-creating engine in the community or communities it
serves. For any worker to be injured or killed in the workplace is a
tragedy, and I believe I speak for everyone when I say that the most
important thing for us to do in the wake of such an event is to focus
on prevention for the future.
Today's hearing may provide discussion about the role of OSHA. It's
often easier to point fingers than to ask the tough questions about
what went wrong. But if we really want to ensure a safe workplace, we
must examine if any of OSHA's regulations are, in fact, not working.
One of the issues we will discuss is OSHA's Enhanced Enforcement
Program. Is this program effectively targeting workplaces? Are there
other ways that OSHA could focus its resources?
Another question we need to ask is, are the regulations governing
lock-out tag-out procedures and confined spaces easily understood and
effectively communicated? I am hopeful that we will remain focused on
these issues today.
Ultimately, our shared goal is safer workplaces. The panel before
us will highlight a variety of important issues that we must carefully
consider. I welcome our witnesses and look forward to their testimony.
Madam Chair, I yield back.
______
Chairwoman Woolsey. Thank you, Mr. Wilson. Now I yield to
Mr. Hare for an opening statement.
Mr. Hare. Thank you, Madam Chair. And I appreciate your
holding this hearing. It will give me the opportunity to speak
this morning.
Let me first acknowledge the workers who came from all over
the country to participate in today's hearing. I know some of
you took a great risk in coming here. Your presence and
personal stories are invaluable to this discussion. The issue
of workplace safety is very personal to me. Before being
elected to Congress, I was a lining cutter at Siefer Clothing
Company in Rock Island, Illinois. I am one of the lucky ones to
leave that job with all 10 of my fingers. It was very dangerous
work.
The timing of this hearing is particularly relevant not
only because statistics tell us that 16, 16 workers die every
day from work-related injuries, but also because next Monday,
April 28th, marks the 20th annual Workers Memorial Day where we
honor those who have lost their lives or were injured at their
jobs. April 28th also commemorates the creation of the
Occupational Safety and Health Administration.
Since 1970, OSHA has been a driving force in improving
workplace safety and health conditions across this country.
However, the Bush administration has sought to stifle that
progress by downsizing OSHA, favoring employer voluntary
programs over real enforcement. A weakened OSHA has real life
or death consequences for American workers.
One such worker is Cintas washer employee Eleazar Torres-
Gomez, whose son Emmanuel will testify this morning. Mr.
Torres-Gomez died March 6, 2007 in Tulsa, Oklahoma when he
reportedly was dragged by a conveyor belt into an industrial
drier. He was trapped in temperatures of 300 degrees for more
than 20 minutes.
I had the honor of meeting Emmanuel last April and was
appalled by the total lack of responsibility Cintas took for
this accident and the way this company treated the Torres-Gomez
family. Cintas, the largest uniform supplier in North America,
blamed Mr. Torres-Gomez for his own death, yet Cintas was aware
of the safety issues with the machinery and even encouraged
employees to climb on top of the equipment to fix jams that
slowed down operations. Moreover, OSHA's Directorate of
Compliance issued a special interpretation letter in 2005
alerting employers, workers and inspectors about the need for
special guarding around robotic laundry shuttles. Tragically,
OSHA did not act at the Tulsa plant and now 1 year later Cintas
workers are still in danger. Safety inspectors found the same
unguarded machines at Cintas facilities in Ohio, in Washington,
in Alabama, California and, most recently, my home State of
Illinois. Something must be done to allow OSHA to deal with
hazards corporate-wide.
Right after Mr. Torres-Gomez's accident, our subcommittee
asked OSHA to conduct an immediate nationwide investigation
resulting in a historic $2.8 million citation against Cintas
involving 46 illegal hazards and 42 willful--let me repeat
that--willful violations. Sadly Cintas is not the only example
of corporate disregard for workers. We have a real problem in
American industry. Employers are exposing their workers to
serious health and safety hazards and defying worker safety and
health regulations.
As I hope will be revealed by our witnesses this morning,
we must strengthen OSHA and give it the tools it needs to
conduct corporate-wide investigations, enforce safety and
health regulations at multi-site corporations and mitigate
hazards so that companies like Cintas are held accountable for
the safety of their employees.
We also need to build a corporate culture in this country
that puts our workers first. Last year, Chairman Woolsey and I,
along with Senator Ted Kennedy, introduced a Protecting
America's Workers Act, which amends OSHA to cover more workers,
increases penalties and strengthens protections and
accountability. I hope as we move forward in the discussion of
workplace safety we can consider this legislation.
Let me again thank you, Madam Chair. I look forward to
hearing from our witnesses and working with the members of this
subcommittee to ensure that our Nation's workers come home safe
and sound to their families every night. That is the bare
minimum that any corporation and every corporation in this
country owes to the workers that work so hard each and every
day.
And one last thing. This is very difficult work that these
workers have to do each and every day. This is not easy work.
We heard this at a conference call this morning. And I just had
to say from my perspective anything that I can do to assist
you, Madam Chair, on this subcommittee, not just to make sure
that Cintas, but that all corporations, play by the rules, I
will do that. I thank you very much and I yield back the
balance of my time.
Chairwoman Woolsey. Thank you, Mr. Hare. Actually, you are
a perfect straight man for me because I was going to suggest
and share with the audience that this morning we--Mr. Hare
chaired a press conference where we heard stories from Cintas
workers. They were amazing stories. And without objection, I
would like to include their statements in the record with
today's hearing. Thank you. Without objection, all members will
have 14 days to submit additional materials for the hearing
record.
[The information follows:]
[Article from the Wall Street Journal, dated April 23,
2008, submitted by Mr. Hare follows:]
[From the Wall Street Journal, April 23, 2008]
House Panel to Examine Cintas Plants' Safety Record
By James Bandler and Kris Maher
Tulsa, Okla.--Last year, Eleazar Torres-Gomez fell from a conveyor
belt into an industrial dryer at a Cintas Corp. laundry here and was
killed before anyone realized what happened. The accident prompted the
federal government to propose the largest safety-related penalty ever
against a service-sector company.
New details about the case--from internal company memos, Cintas
surveillance videotapes and people close to the federal investigation--
indicate that the dangerous practices that led to Mr. Torres-Gomez's
death occurred frequently in Tulsa and at other plants operated by
Cintas, the biggest uniform supplier in North America.
A person familiar with the probe said U.S. Occupational Safety and
Health Administration officials believe Cintas workers climbing on
moving conveyors and jumping atop stuck laundry were ``standard work
practices at a number of facilities.''
Cintas spokeswoman Heather Trainer denied that it's standard
practice. ``In fact, every employee at the Tulsa facility, including
the receptionists, was trained to never get on an energized conveyor at
any time,'' she said.
On Wednesday, the House Subcommittee on Workforce Protections will
hold a hearing on how well OSHA is policing employers like Cintas that
have multiple facilities across the country. Although other companies
will be mentioned, Cintas is expected to be exhibit A, according to
people familiar with the hearing. The Democratic controlled committee
is investigating allegations that Cintas didn't protect workers at all
of its facilities from previously known hazards.
An OSHA spokeswoman said the agency couldn't comment on pending
cases.
The federal government fined Cintas $2.8 million for the Tulsa
accident. Cintas has appealed the fine. Shortly after the accident,
Cintas CEO Scott Farmer said Mr. Torres-Gomez wasn't following proper
procedures, ``which would have prevented this tragic accident.''
In its investigation, OSHA found that employees weren't trained in
how to shut off equipment properly. A surveillance videotape at the
Tulsa plant showed workers engaging in activities similar to what led
to Mr.
Torres-Gomez's death over several weeks prior to the accident, say
people familiar with OSHA's investigation. A government memo, sent by
Richard E. Fairfax, director of enforcement for OSHA, states that over
the previous two weeks, other employees had used the same method of
dislodging jams some 34 times.
``Employees climbed on and walked up the moving shuttle conveyer,
and kicked at, jumped on, and tried to knee the jammed clothing into
the dryer opening,'' Mr. Fairfax wrote. ``The recording also showed two
employees inserting one of their legs into the chutes of the operating
washing machines and jumping up and down to clear jams of laundry in
the chute.''
Company surveillance video showed Mr. Torres-Gomez trying to clear
the jam from the ground level. When that didn't work, he got on the
conveyor shuttle and began jumping up and down to push a clump of jeans
through. He fell into the dryer. The automatic door shut, and a pilot
light ignited. More than 20 minutes later a co-worker, hearing a loud
thudding noise, found Mr. Torres-Gomez dead, lying on a pile of jeans,
according to a police report.
A Cintas spokeswoman said in a statement that the company couldn't
comment on ``the factual circumstances'' of the accident, because it is
currently negotiating a national settlement with the Labor Department
and faces pending litigation. ``The accident was tragic and shook us
all,'' she said.
Cintas--whose stock ended Tuesday at $28.87 on the Nasdaq, down
14.13% year to date--posted sales of $3.71 billion and a profit of
$334.5 million in fiscal 2007.
Commercial laundries operated by Cintas wash uniforms for hotels,
airlines and restaurants, among others, as well as industrial shop
towels and rugs. In automated plants, robotic conveyor systems called
shuttles transfer hundreds of pounds of laundry from massive washers to
dryers.
In a confidential safety bulletin in 2004 that hasn't been
previously disclosed, Cintas's director of safety noted that laundry
jams were ``fairly common on automated wash floors'' and presented a
serious safety risk to workers.
The memo refers to an incident at a Cintas plant in Ohio in which a
worker trying to dislodge a jam at the top of a shuttle was forced into
a rotating dryer. The worker wasn't seriously injured because a second
worker was present and immediately shut off power.
In the memo, Richard Gerlach, Cintas's director of safety, told
managers to implement several basic safety procedures before trying to
dislodge jams, including shutting off power to the shuttle and to
dryers and having an observer present to prevent a mishap. These
procedures weren't followed prior to the Tulsa accident.
Cintas said that there were other procedures in place that would
have shut off the conveyor, but they weren't followed. The company said
Mr. Gerlach wouldn't be available to comment. The company also said
that it is in compliance with OSHA regulations, which accept shuttles
with so-called presence-sensing guarding, which shuts off a shuttle if
it encounters a person as it moves along a track. The shuttle in the
Tulsa plant had that, but it didn't prevent workers from climbing on
the machine while it was operating, according to people familiar with
OSHA's investigation.
People close to the OSHA probe in Tulsa say plant managers knew
that workers were standing on moving conveyer shuttles in order to
dislodge jams. Surveillance video, they say, shows the dangerous
practice sometimes occurred multiple times in a single shift. Workers
told OSHA investigators they were ``under a lot of pressure to keep
everything going.'' The company said that while the company sets
reasonable goals for employees, pressure didn't play any role in Mr.
Torres-Gomez's death.
In its investigation into the Tulsa accident, OSHA cited Cintas for
42 ``willful'' violations--the most serious kind of violation because
it denotes ``intentional disregard'' or ``plain indifference'' to
employee safety.
Since 2002, there have been at least 70 inspections of Cintas
plants, more than half of which resulted in citations, according to Mr.
Fairfax's memo, which was prepared late last year.
Some industry officials say Cintas has had more inspections than
most other laundry companies because it has been the target of a long-
running organizing campaign by Unite Here. Eric Frumin, director of
occupational safety and health for Unite Here, acknowledged that the
union helped workers file complaints, but said that Cintas's safety
problems were real, and that without these complaints, OSHA would never
have scrutinized the industry. ``What is the message when absent
complaints or death, OSHA isn't going to show up?'' Mr. Frumin said.
After a worker nearly lost his arm when it became caught in a
washer at a Cintas plant in Yakima, Wash., last year, the state
Department of Labor and Industries fined Cintas $13,600, citing it for
a number of safety violations, including instances of workers standing
on moving shuttles. Michael White, 52, who worked in the wash room at
the Yakima plant for close to 30 years before quitting in November
2006, said Cintas scrapped some safety measures when it took over the
plant about seven years ago. The previous employer scheduled two
workers in the wash room, where shuttle systems automatically take
laundry from washers and load it into dryers, Mr. White said, but
Cintas decided only one person was needed to watch over the machinery.
Cintas also took away safety switches that could be worn by employees
and be used to shut off machinery in case of an emergency. The prior
owner had required any employee entering the wash room to wear the
devices, he said.
Richard Smith, who retired after he sold the Yakima plant to Cintas
in 2000, confirmed Mr. White's description of procedures when he owned
the facility, and Bourtai Hargrove, an assistant state attorney general
who investigated the case, said witnesses at the plant confirmed Mr.
White's assertion about the safety switches.
Cintas said it doesn't find any basis for Mr. White's allegations,
which are ``contrary to the company's entire safety and health
culture.''
Write to James Bandler at [email protected] and Kris Maher at
[email protected]
______
[Letter from Cintas, dated May 7, 2008, submitted by Ms.
Woolsey follows:]
------
[Statements from various current and former Cintas
employees:]
Prepared Statement of Errol Ingram, Former Cintas Maintenance
Supervisor
My name is Errol Ingram, and I'm an ex-employee of Cintas in
Mobile, Alabama.
I chose to leave because of instances of unsafe work practices and
because the way I was treated. I was not respected.
Even after the death in Tulsa, Cintas was still not safe. By the
time OSHA was done, there still was not enough training and staffing.
There were more than enough times where there were two man jobs
that I was made to do by myself. I had to seek the assistance of
someone who was not qualified to assist me. It got to the point where I
could not take it any more, so I chose to leave.
Being here today on Capitol Hill, I heard about Cintas's widespread
practices. These things need to stop, and I see now that this is
possible at Cintas. I hope that this begins a trend of something good
for all.
______
Prepared Statement of Maria Espinosa, Current Cintas Worker
My name is Maria Espinoza. I've worked at Cintas San Jose as a
washer for about four years. I am here to talk about the working
conditions and the pressures that we work under.
They pressure us by putting colors on the production levels we do.
They also count the amount of production we do by the hour. In folding,
we have to do 130 folds an hour. In sorting clothes, it is 330 sorts
per hour. Washing we have to do 16 cycles per day. If we don't fulfill
it, they red flag us. If we almost reach the goal, they give us a
yellow signal. If we meet the goal, we get a green one. To avoid the
shame of getting the red color is why people rush and get hurt.
I have injured my calf at work, and it hurts even to walk. I hurt
it from taking laundry from the carts and putting it into the machines.
They don't do maintenance to the carts, which is one of the main tools
at work. They don't put the appropriate springs in the carts that make
them easier to load and unload.
Those are reasons why so many of us injured.
______
Prepared Statement of Santa Ana Ventura, Current Cintas Worker
My name is Santa Ana Ventura. I've worked at Cintas in Bedford Park
for 11 years. Like others in my plant, I am often in pain from the pace
of production that Cintas demands. They have raised the quotas, and we
are under a lot of pressure. Now, we have to hang from 1,768 to 2,000
shirts per shift. Our supervisors check every hour to make sure we are
hanging enough shirts. So when I get home, I am so tired that I am not
able to do anything, I have a headache and my body hurts--hands,
shoulders, arms, neck, and feet. My coworkers also suffer from pain.
From hanging so many shirts so fast, my back also hurts a lot. And
there are many times that I can't lift my arms up. I have told the
company that there is a problem with my arm but they want 100% so I
feel bad. From the speed of the work, my hand still hurts today from an
injury five years ago. Because my fingers have lost strength from all
the fastening of shirts, I drop things.
From working standing in one place so long, I had to have surgery
on my foot because the company refused to let me transfer to another
area to do another type of work. I still need to have another
operation. But Cintas doesn't want us to go back to work unless we are
100 percent. Supervisors do not want to give us different assignments
that would allow us to start working again.
I am glad that OSHA is now investigating in my plant, because,
since we heard about the way the worker in Tulsa died, we have been
afraid for the wash-room worker in our plant.
Cintas raised production rates but they haven't raised salaries;
the supervisors told us, if we're not happy with our jobs, the doors
are open and we should just leave. Our raises are around $.17 to $.25
which doesn't even cover the increase in health insurance each year.
I hope that with your help we can fix things because right now we
aren't able to have the quality of life that we should. On my behalf
and on behalf of my coworkers, I hope to find a quick resolution to
these problems because I see every day that people are injured.
I came here to talk to the representatives in Congress, to tell
them about my foot and the injury because I want things to be better.
If my coworkers knew that members of Congress were interested in
understanding how our jobs hurt us, maybe they wouldn't be afraid to
speak up--and to tell Cintas when they are in pain or are hurt and need
to go to the doctor.
______
[Letter from the Textile Rental Services Association of
America, dated May 2, 2008, follows:]
May 2, 2008.
Hon. Lynn Woolsey, Chairwoman,
Workforce Protections Subcommittee, Committee on Education and Labor,
Washington, DC.
Dear Madam Chairwoman: On behalf of the Textile Rental Services
Association of America (TRSA), I would appreciate your placing this
correspondence in the record for the April 23 Workforce Protections
Subcommittee hearing titled ``Improving Workplace Safety: Strengthening
OSHA Enforcement of Multi-State Employers.'' TRSA has a long commitment
to helping our industry be safe, so I welcome the opportunity to let
you and members of the subcommittee know about TRSA's historical and
continuing efforts relating to this goal.
Founded in 1912, TRSA is the world's largest textile service
industry association, representing more than 1,000 industrial laundry
facilities in 24 countries. The membership of TRSA represents a cross-
section of the industry, including some of the world's largest textile
service companies, along with numerous mid-size and one-plant
operations. Our membership includes companies currently doing business
in commercial laundering and rental services to commercial, industrial
and institutional accounts, as well as firms selling services,
equipment and supplies to commercial launderers and linen rental
companies.
TRSA's mission is to advance the professionalism of its members and
promote their success through government advocacy, education, marketing
and businesses enhancing services. TRSA is committed to addressing the
changing needs of the industry, and our members, while striving to
surpass industry standards by uniting members through a progressive
organization.
TRSA has always believed that educating its membership on the
importance of a safe workplace and instilling a commitment to safety
principles is an essential part of its core mission. Throughout its
history, TRSA has developed resources and programs to improve the
knowledge of its members on the most up-to-date practices to make our
workplaces safer.
Together with our sister association, Uniform & Textile Service
Association (UTSA), TRSA established the Production Management
Institute (PMI) in 1990. A strong and ongoing program, PMI is designed
to educate plant managers and supervisors on state-of-the-art plant
operations, including leadership and supervisory skills. From the
beginning, safety has been a key component of PMI, and it will be a
major focus at this year's PMI session, which begins today.
In addition, during the February TRSA Tech/Plant Summit of industry
executives, I announced the TRSA Safety Initiative. The TRSA Safety
Initiative is a comprehensive program that was conceived to help the
textile service industry improve workplace safety. It encompasses four
key areas: to educate TRSA members on how to improve safety; to serve
the TRSA membership by assisting individual members on how to enhance
the safety of their facilities; to track the progress of safety
improvements through the collection and analysis of data; and to
represent to the public and government bodies the industry's commitment
to safe facilities. One aspect of the Safety Initiative, SafetyESP
(Safety Enhancement Stewardship Program), is being administered in
cooperation with UTSA and will focus on tracking industry progress on
safety improvement through data collection and analysis.
TRSA--and its members--understand the importance of a safe
workplace and we are committed to making the working environments of
our membership among the safest in the world. We have been in contact
with OSHA to make sure that the lead federal agency on safety is aware
of our Safety Initiative and we have asked the agency to provide
constructive criticism and other input that will make the TRSA Safety
Initiative even more effective.
My staff and I would appreciate the opportunity to meet with you
and/or your staff for a dialogue similar to our recent discussions with
OSHA. We also plan to meet with other subcommittee members and their
staffs as well.
Thank you for the opportunity to let us share what TRSA has done,
and is doing, to improve safety in the textile services industry. If
you have any questions or would like additional information, please
contact me or TRSA's Director of Government Affairs Larry Fineran. Both
of us can be reached at (703) 519-0029 or through e-mail at
[email protected] or [email protected].
Sincerely,
Roger Cocivera,
President.
______
[Internal Cintas memo and safety bulletin follow:]
------
[Official documents on Cintas Corp. OSHA violations,
Central Islip, NY, 2005-2006, submitted by UNITE HERE, follow:]
------
Chairwoman Woolsey. Now I would like to introduce our very
distinguished panel of witnesses who are here with us today,
and I welcome you and I thank you for being so absolutely
flexible that you--I think we changed the date and time of this
hearing three times and here you are, the same four that we
invited from the beginning. So thank you so much. I am going to
introduce you in the order of when you will speak. I will
introduce everybody at once and then give you a little tutorial
on the lighting system, and then we will get into the hearing.
Emmanuel Torres, the oldest son of Eleazar Torres-Gomez. On
March 6, 2007, Emmanuel's father was killed while working at a
Cintas laundry in Tulsa, Oklahoma. His father was employed at
Cintas from August 2000 until the day he was killed in an
industrial drier. Emmanuel and his parents, Eleazar Torres and
Amelia Diaz, moved to the United States in 1987. Since July
1998, his family has made Tulsa, Oklahoma, their home. Emmanuel
attended and graduated from high school in Tulsa. He currently
lives with his family and is helping his mom raise his two
younger brothers.
Frank White. Frank is the Senior Vice President of ORC
Worldwide, responsible for ORC's occupational safety and health
and environmental practices. Mr. White previously spent 5 years
in private law practice representing clients in occupational
safety and health litigation and rulemaking. Prior to that, Mr.
White worked in the Department of Labor, including serving as
Deputy Assistant Secretary of Labor for OSHA and Associate
Solicitor for OSHA. Mr. White received his undergraduate degree
from Duke University and his J.D. from the University of
Connecticut Law School.
Ronald Taylor. Ronald is a partner in Venable, LLP. Mr.
Taylor is co-chair of Venable's Labor and Employment Practice
Group, where he advises and defends employers on a wide variety
of labor and employment law issues. He is an active member of
the American Bar Association's Committee on Occupational Safety
and Health. Mr. Taylor earned his B.A. Degree from the
University of Virginia and his J.D. from William and Mary
Marshall-Wyeth School of Law.
Randy Rabinowitz. Randy is a partner--no--is a private
practice attorney who specializes in legal issues affecting
injured workers such as OSHA, workers compensation and products
liability. Previously Ms. Rabinowitz has served as a senior
consultant to OSHA, an administrative law fellow and adjunct
professor at the Washington College of Law and as counsel to
this committee. She has also served as union co-chair of the
American Bar Association's Occupational Safety and Health Law
Committee. Ms. Rabinowitz received her B.A. From the John
Hopkins University and her J.D. and LLM from Georgetown
University Law Center.
Welcome to all four of you.
So now let me tell you a little bit about the lighting
system. If you have not testified here before, you will want to
know this. First of all, every member and every witness gets 5
minutes. So when you start speaking, the light will not go on--
yes, it will be green, won't it? The light will be on and it
will be green. And then when you have a minute left it will be
yellow and when your 5 minutes is over, the light in front of
you will be red. We are not going to cut you off mid-sentence,
mid-thought, mid-idea. But if you have extra, more words than
the 5 minutes, then we will ask you to enter them into the
record and probably finish many of your thoughts during the
question and answer period.
Members also have 5 minutes. And if we sit up here and talk
for 5 minutes and don't ask a question, that is our loss, not
yours. So we try to keep ourselves short. But we have a hard
time with this.
Now, we will hear from our first witness, Mr. Torres.
STATEMENT OF EMMANUEL TORRES, SON OF ELEAZAR TORRES-GOMEZ,
WORKER WHO DIED AT CINTAS PLANT
Mr. Torres. Chairwoman Woolsey and other distinguished
members of the subcommittee, thank you for the opportunity to
testify today. I hope this opportunity is another step towards
making a positive change out of my family's tragedy.
I am Emmanuel Torres, the son of Eleazar Torres, who was
tragically killed on March 6, 2007 at a Cintas plant in Tulsa,
Oklahoma. On behalf of my mom and three younger brothers, it is
my family's hope that this hearing results in the passage of
legislation that makes workplaces across America safer and
prevents tragedies like my father's death from happening to
others.
It has been over a year since my father's death, but laws
ensuring safer workplaces still do not exist at the level that
they should be. I hope that future legislation will make OSHA
stronger and finally hold companies like Cintas accountable for
repeated violations by imposing stiffer penalties. No one
should have to endure what my family has over the past year.
My father began working at a Cintas plant in Tulsa,
Oklahoma, in August of 2000. He worked hard to support our
family so we could live decently and even own a home. On March
6, 2007, my father was filling in in a different position for
another employee who was on vacation. While my father was
attempting to unjam clothes stuck on a shuttle, he was dragged
into an operating industrial drier where he was trapped for 20
minutes as it continued to spin. As a result, he was killed. I
will be haunted forever imagining the terror and the pain he
must have felt.
Despite CEO Scott Farmer's statement that blamed my father
for not following Cintas' safety policies, OSHA's
investigation, which included review of security camera tapes,
revealed over 30 similar instances over a 2-week period prior
to my father's death in which other employees climbed on the
wash floor machinery. Any one of them could have been hurt or
killed. OSHA even said these violations were willful. Based on
OSHA's investigation, we know the procedures my father followed
were not merely an isolated occurrence, but were happening
routinely. That is why there were several willful violations
for failing to train my father and three other employees who
were responsible to perform procedures to clear jams.
Later we learned OSHA found similar violations in other
States. The fact that Cintas blamed my father for what truly is
a companywide problem is wrong. More important, Cintas knew
about the danger and should have fixed the machine so they
could not turn on while workers like my father were on them.
OSHA fined Cintas approximately $2.78 million in penalties
over their investigation of my father's death. But Cintas is
appealing. It is my understanding that a settlement between
OSHA and Cintas has not been reached. It is important that any
settlement send Cintas and other companies a strong message
that things must change. Part of this change must include a
companywide investigation to ensure that all of their
facilities make changes to protect workers and not only say
that they are in compliance with all safety standards and
procedures, but actually practice these procedures. One way
this can be done is through more random investigation, stronger
enforcement and more training.
Also OSHA should use the punishment allowed by law. All of
this will never bring my father back. Hopefully this process
will make sure that all the other workers like my father at
other Cintas plants are protected.
As I have stated previously, I feel that my father's death
was preventable and Cintas failed to do everything in their
power to protect him. This is why I respectfully request that
this subcommittee adopt strong measures including ones I have
mentioned.
I further respectfully request that Congress begin to
investigate employers who fail to institute strong safety
policies and procedures and have failed to enforce them
internally. If this does not occur, repeated violations will
continue to occur at companies like Cintas and more lives will
be lost. Me and my family love and miss my father so much that
we hope a tragedy like this won't ever happen again. Thank you.
[The statement of Mr. Torres follows:]
Prepared Statement of Emmanuel Torres, Son of Eleazar Torres-Gomez,
Worker Who Died at Cintas Plant
Chairman Woolsey and other distinguished members of this
Subcommittee, thank you for the opportunity to testify today. I hope
this opportunity is another step towards making a positive change out
of my family's tragedy.
I am Emmanuel Torres, the son of Eleazar Torres, who was tragically
killed on March 6, 2007 at the Cintas plant in Tulsa, Oklahoma. On
behalf of my mom and three younger brothers, it is my family's hope
that this hearing results in the passage of legislation that makes
workplaces across America safer and prevents tragedies like my father's
death from happening to others. It has been over a year since my
father's death, but laws ensuring safer workplaces still do not exist
at the level they should be. I hope that future legislation will make
OSHA stronger, and finally hold companies like Cintas really
accountable for repeated violations by imposing stiffer penalties. No
one should have to endure what my family has over the past year.
My father began working at the Cintas Plant in Tulsa, Oklahoma in
August of 2000. He worked hard to support our family so we could live
decently and even own a home. On March 6, 2007, my father was filling
in a different position for another employee who was on vacation. While
my father was attempting to un-jam clothes stuck on the shuttle, he was
dragged into an operating industrial dryer where he was trapped for
over 20 minutes as it continued to spin, and as a result, was killed. I
will be haunted forever imagining the terror and pain he must have
felt. Despite CEO Scott Farmer's statement that blamed my father for
not following Cintas' safety policies, OSHA's investigation, which
included review of security cameras' tapes, revealed over 30 similar
instances over a two week period prior to my father's death in which
other employees climbed on wash floor machinery. Any one of them could
have been hurt or killed. OSHA even said these violations were
``willful''. Based on the OSHA investigation, we know the procedures my
father followed were not merely an isolated occurrence but were
happening routinely. That is why there were several willful violations
for failing to train my father and three other employees who were
responsible to perform procedures to clear jams. Later, we learned OSHA
found similar violations in other states. The fact that Cintas blamed
my father for what truly is a company wide problem is wrong. More
important, Cintas knew about the danger and should have fixed the
machines so they could not turn on while workers like my father were on
them.
OSHA fined Cintas approximately $2.78 million in penalties after
their investigation of my father's death, but Cintas is appealing. It
is my understanding that a settlement between OSHA and Cintas has not
been reached. It is important that any settlement sends Cintas and
other companies a strong message that things must change. Part of this
change must include company wide investigation to ensure that all of
their facilities make changes to protect workers and not only say they
are in compliance with all safety standards and procedures but actually
practice these procedures. One way this can be done is through more
random investigations, stronger enforcement, and more training. Also
OSHA should use the punishment allowed by law. While this will never
bring my father back, hopefully this process will make sure that all of
the other workers, like my father, at other Cintas plants are
protected.
As I have stated previously, I feel that my father's death was
preventable and Cintas failed to do everything in their power to
protect him. This is why I respectfully request that this Subcommittee
adopt strong measures, including ones I have mentioned. I further
respectfully request that Congress begin to investigate employers who
fail to institute strong safety polices and procedures and/or fail to
enforce them internally. If this does not occur, repeated violations
will continue to occur at companies like Cintas and more lives will be
lost.
Thank you.
______
Chairwoman Woolsey. Thank you, Mr. Torres.
Mr. White.
STATEMENT OF FRANK A. WHITE, SENIOR VICE PRESIDENT, ORC
WORLDWIDE
Mr. White. Good morning and thank you, Congresswoman
Woolsey and members of the subcommittee, for the opportunity
today to testify on behalf of ORC Worldwide and discuss how
leading corporations work to make sure that serious risks to
worker safety and health get addressed on a corporate-wide
basis. I want to do my best today to offer Mr. Torres, his
family and his co-workers hope that there are, in fact,
effective steps that companies can and do take to prevent the
kind of tragic loss they have suffered, and I know that his
appearance here will make a difference.
ORC Worldwide is an international consulting firm whose
Washington, D.C. office works with more than 140 leading global
corporations to help them achieve health and safety excellence.
For 36 years, our guiding premise has been that providing safe
and healthful working conditions is the mutual concern of
workers, employers and government agencies, and it takes the
cooperation and collaboration among those three to find
solutions to safety and health issues.
So how can a company make sure that a serious or safety
health risk that is known to exist at one of its locations does
not go unnoticed or ignored at another location? And what steps
does the business need to take to assure that no worker is
endangered by a similar risk at another facility?
First and foremost, the indispensable foundation for
effective action is the establishment of a clear and
authoritative policy from the corporation's senior leadership,
the CEO, stating explicitly that the corporation as a whole
will insist on full compliance of all worker safety and health
standards and senior leadership should be actively engaged in
monitoring to make sure that is done.
Second, in addition to the clearly articulated policy of
full compliance, companies that consistently achieve superior
safety and health performance and that actually sustain
corporate-wide compliance rely on a safety and health
management system that includes several key elements. And I
recommend to the committee the ANSI Z10 guideline that was
promulgated in 2005 as a basis for a good, solid safety and
health management system. The fundamental goal of a
comprehensive management system is the elimination of injuries
and illnesses through a continuous process of identifying,
assessing and reducing risks, And there are a few key elements
in those systems that are applicable here to corporate-wide
abatement of hazards covered by OSHA requirements.
First, you have to establish clear lines of responsibility,
authority and accountability through all levels of the
corporation from the CEO on down to line employees. All
management levels and line employees must be assigned,
understand and be accountable for their roles in the management
system for finding and fixes hazards.
Second, you must encourage employee participation in
reporting of unsafe conditions. No management system can
function effectively without employee participation. Line
employees are a company's most knowledgeable resources about
hazardous conditions and they must be encouraged to report such
conditions with full confidence that management will act to
correct those conditions.
Third, there must be regular safety inspections and audits.
Part of the responsibility of management at each company
facility is to perform periodic reviews at each workplace to
identify, evaluate and control risk.
Fourth, perform root cause investigations of significant
incidents. Now, most large employees do incident investigations
of serious incidents or injuries. But it is also important to
look at near misses and incidents that do not necessarily
result in injuries, particularly those where serious injuries
could have occurred. And the nature of those investigations
needs to go beyond just looking at the unsafe act or behavior
of the employee. You have to examine more closely the root
causes of the incident.
It is ORC's experience that in general there are usually
more fundamental, systemic, cultural and workplace design
issues--reasons for such incidents that need to be addressed
beyond the worker behavior. So you can't stop at looking at
what the worker did. You have to go beyond that to looking at
root causes.
In addition to these sort of basic elements, many companies
that have specifically addressed the issue of looking at an
issue in one workplace and making sure other workplaces are
looked at as well, are the following: A requirement that each
workplace in a corporation reports significant incidents to a
centralized corporate function or team. Then the corporate team
needs to look at those incidents and make some judgment as to
whether there might be some potential likelihood for occurrence
at other locations. Then there has to be an alert to those
locations to take action, to look and evaluate whether there is
a problem. And then again, responsibility and accountability to
those other locations to investigate and, if necessary, to
correct those actions. And then follow up at the corporate
level to make sure, in fact, those corrective actions have been
taken.
Just a moment, if I may, on how OSHA can contribute.
Obviously the issuance of citations for serious violations of
an OSHA standard must be issued when they find that a
corporation has violated a standard and particularly to take
strong action, including egregious penalties when there are
multiple violations at multiple sites. That is essential. But
more fundamentally, OSHA can really do more and they have tried
to establish some procedures in their Enhanced Enforcement
Program, as you know. And basically those procedures seem to be
pretty sound. The question is are they functioning correctly.
And I hope we can explore during the course of this hearing how
to make them more effective.
And finally I would say that in addition to these kind of
specific programs, ORC would strongly encourage OSHA to search
for new ways to promote and advocate the value of safety and
health management systems, because in the long term nothing
will have a more significant impact on the reduction of risk,
injuries and illnesses as well as improved compliance than the
widespread adoption of such systems. And OSHA needs to take a
role in doing that.
Thank you, Madam Chairman.
[The statement of Mr. White follows:]
Prepared Statement of Frank A. White, Senior Vice President, ORC
Worldwide
On behalf of ORC Worldwide, I would like to thank the Subcommittee
for this opportunity to discuss how to make sure that serious risks to
worker safety and health get addressed on a corporate-wide basis. We
appreciate being able to share ORC member company experience in this
area.
ORC Worldwide is an international management and human resources
consulting firm whose Washington, DC office has for 36 years provided
specialized occupational safety and health consulting services to
businesses and other organizations. Currently, more than 140 leading
global corporations in more than 20 industry sectors are members of
ORC's Occupational Safety and Health Groups. The focus of these groups
is to help ORC members achieve safety and health excellence by
promoting effective occupational safety and health programs,
benchmarking and sharing best practices in areas such as management
systems and performance metrics, and creating new strategies and tools
to improve safety and health performance. ORC is also a key industry
voice on national and global safety and health policy issues. The
activities of ORC's Occupational Safety and Health Groups are based on
the premise that providing safe and healthful working conditions is the
mutual concern of employers, workers and government agencies and that
cooperation and collaboration among these key stakeholders is essential
to finding solutions to safety and health issues.
How can a company make sure that a safety or health risk that is
known to exist at one of its location does not go unnoticed or ignored
at another location? At the very least, if there is an OSHA citation or
a worker suffers an injury or even a near-miss incident at one company
establishment, what steps does the business need to take to assure that
no worker is endangered by a similar risk at some other company
facility? I will do my best today to offer Mr. Torres and his family
hope that there are real, practical answers to these questions and that
there are effective approaches that companies can and do use to prevent
the kind of tragic loss they have suffered.
But let me comment briefly before going further that OSHA clearly
has an important role to play in ensuring safety and health risks are
addressed on a corporate-wide basis. It was during my years at OSHA in
the mid-1980s that the egregious penalty policy was developed and
implemented in order to enhance OSHA's enforcement arsenal in the case
of flagrant multiple serious safety and health infractions. It is
entirely appropriate for OSHA to impose the strongest possible
sanctions when a company acts in intentional or reckless disregard of
the requirements of well-established OSHA standards addressing serious
risks to workers, especially in cases of multiple identical or similar
citations across a corporation's facilities. Any company that receives
citations for serious violations of an OSHA standard, particularly
high-gravity serious violations, in one or more facilities, simply must
establish the necessary processes and systems to require other
locations with similar operations to determine the existence of like
violations, and to correct any potentially serious violations that are
found.
Unfortunately, we know from our experience that even companies that
work diligently to comply with OSHA standards will not necessarily have
an effective process for assuring that findings of non-compliance in
one facility will be made known across the organization and addressed
at other facilities. There are several important prerequisites to
having an effective corporate-wide approach to finding and fixing
similar hazards at multiple locations.
Top Leadership Commitment to Full Compliance
It will not come as a surprise that the indispensable foundation
for effective action is the establishment of a clear and authoritative
policy from a corporation's senior leadership, preferably the CEO,
stating explicitly that the corporation as a whole will insist on full
compliance with all worker safety and health standards and
requirements. Without such a policy, and without senior leadership
actively engaged in monitoring compliance progress consistent with the
policy, it will be extremely difficult to sustain the effort necessary
to attain full corporate-wide compliance.
Implementation of an Occupational Health and Safety Management System
But even a clearly articulated policy of full compliance from
company leadership, while essential, is by itself insufficient to
assure that the necessary actions are taken to actually attain and
sustain corporate-wide compliance. Companies that consistently achieve
superior safety and health performance, and that seek continual
performance improvement, rely on a management system that includes
several key elements. Probably the most up-to-date, complete and
accessible description of an effective health and safety management
system (OHSMS) is the 2005 ANSI Z10 American National Standard for
Occupational Health and Safety Management Systems. It is important to
understand that the fundamental goal of a comprehensive OHSMS is the
elimination of injuries and illnesses through a continuous process of
identifying, assessing and reducing risks. While most corporate
management systems include compliance with safety and health standards
in their scope, the focus of the system is more broadly on the
reduction of all risks, not just those covered by OSHA standards.
A few of the key elements of an effective management system that
are particularly applicable to the corporate-wide abatement of hazards
covered by OSHA requirements are:
Establish clear responsibility, authority and
accountability through all levels of the corporation. From the CEO to
the shop floor, all management levels and line employees must be
assigned and understand their roles in the management system for
finding and fixing hazardous conditions. In addition, each level of the
business must have the authority and the resources to get the job done,
and each must be held accountable for achieving results.
Encourage employee participation and reporting of unsafe
conditions. No safety and health management system can function
effectively without employee participation in key aspects of the
system's development and implementation. Line employees are a company's
most knowledgeable resources about hazardous conditions and they must
be encouraged to report such conditions with full confidence that
management will take prompt corrective action.
Perform regular safety inspections and audits. Part of the
responsibility of management in each company facility is to perform
periodic systematic reviews of the each workplace to identify, evaluate
and ultimately control risks, including potential OSHA violations.
Perform root cause investigations of significant incidents
(near-misses as well as injuries and illnesses). Most large employers
and other businesses that have employed safety and health professionals
at the corporate and/or the facility levels, perform investigations of
incidents involving serious injuries. However, it is also important to
investigate, where resources permit, near-miss incidents, particularly
those where serious injury could have occurred. The nature of those
investigations should go beyond looking at the ``unsafe act or
behavior'' of the worker involved, and should examine more closely the
``root causes'' of the incident. It is ORC's experience that, in
general, there are usually more fundamental systemic, cultural,
workplace design or other reasons for such incidents that need to be
addressed beyond the worker behavior.
Establish metrics that go beyond OSHA-recordable injuries
and illnesses. In order for a management system to be most effective as
a tool for the prevention of injuries and illnesses, companies should
establish metrics for tracking leading indicators of the company's
success in identifying and reducing risks and exposures, rather than
collecting only the traditional ``lagging'' measures of how many
injuries or illnesses occurred. So, for example, company leadership
should want to know how much time it is taking to correct potential
serious OSHA violations once they are found, or whether the company is
successfully reducing the numbers of occurrences of certain kinds of
risks or exposures, e.g., machine guarding.
Integration of Special Procedures for Corporate-Wide Compliance
While the above elements constitute some of the basics of an
effective OHSMS, even ANSI Z10 and other management system guidelines
do not explicitly address the issue of how to assure that risks
(including potential OSHA violations) discovered at one company
location are necessarily dealt with at other locations. To be perfectly
candid, that has proven to be a challenge for some companies that have
otherwise effective programs. Companies that have recognized this
particular aspect of managing risks have enhanced their management
systems with special measures designed to assure such multi-site
awareness and response. Examples of these measures include:
A requirement for each workplace in a corporation to
report significant incidents, risks or potential violations to a
centralized corporate function or team.
A preliminary review of those reported events at the
corporate level to assess whether there might be a significant
potential likelihood of occurrence in other locations of the company.
A notification or ``alert'' to locations with the
potential for similar issues, describing the issue.
Assigning responsibility and accountability to the other
locations for evaluating the issues, determining appropriate action and
providing feedback to the corporate function or team.
Follow-up (much like for an audit) at the corporate level
to assure closure of any potential violations found at other locations.
Although the execution of an effective approach to a uniform
corporate-wide approach to multi-establishment compliance requires a
significant and focused effort, the basic principles of leadership
commitment, a systems approach, effective organizational communication
and vigilant follow-up are the keys to success.
Challenges and Opportunities for OSHA
Let me turn for a moment to how OSHA can contribute to assuring
that corporations with multiple facilities take effective action across
the corporation to maintain compliance. In my view, from an enforcement
perspective, OSHA faces a few longstanding institutional impediments to
adopting a more corporate-wide orientation, among the most significant
of which are:
The entire enforcement regime of the Occupational Safety
and Health Act of 1970 is based on the inspection of individual
``establishments'' rather than corporate entities. As a result, OSHA's
inspection targeting strategy has been based on the safety and health
experience at individual workplaces and the constitutional
underpinnings of OSHA's inspection authority have been affirmed on that
basis. That is not to say that OSHA could not refocus its efforts,
where policy considerations warrant it, to a broader, more corporate-
wide approach. In fact, OSHA has done so on a limited basis, in its use
of corporate-wide settlements, its application of the repeat violation
policy, and even to a limited extent in the Enhanced Enforcement
Program (which has been recently been modified).
Perhaps bigger practical impediments to an expanded
corporate-wide enforcement policy are the ways in which safety and
health data are collected and maintained at both the governmental and
company levels. Again, reflecting the establishment-based orientation
of the OSH Act, the Bureau of Labor Statistics and OSHA do not
systematically collect or maintain either injury and illness data or,
in OSHA's case, citation history on a company-wide basis. And of
course, OSHA collects data only from a limited number of workplaces
nationwide, so it would rarely have in its data base a complete or even
representative set of data from any multi-establishment corporation.
And while many large multi-facility companies do collect and often
analyze some injury and illness data at the corporate level, it is
often a limited subset of the data from all of its facilities.
There is also the bureaucratic version of the ``silo''
issue faced by many organizations, including corporations--each OSHA
Area Office and each OSHA Region and each State Plan State has its own
priorities, goals and targets in terms of inspections of the unique mix
of establishments in these ``mini-jurisdictions.'' If OSHA is to
address more fully and strategically violations by a single company at
multiple sites throughout the nation, the agency would need to
institute some special program (akin to a National Emphasis Program)
that encourages or requires coordination and the exchange and analysis
of information, followed by action.
Despite these issues, there would appear to be solid reasons for
OSHA to consider additional ways to examine a company's compliance on a
corporate-wide basis under limited circumstances. Most fundamentally,
OSHA is always looking for ways to leverage its scarce resources in
order to maximize its impact--such a focused corporate-wide approach
may be one way to further that objective. By the same token, any new or
enhanced program to focus more heavily on corporate-wide compliance
would have to balance the additional resources required against the
potential impact of the program.
One possible approach OSHA could take would be to establish certain
``triggers'' whereby if an Area or Regional Office has experienced a
citation history of a designated ``high'' magnitude at the
establishment or establishments of a corporation known to have national
operations, this history could be brought to the attention of the
National Office and other potentially affected Regions for an
evaluation of the company's compliance experience nationally. If the
analysis finds similar compliance histories in other company locations,
OSHA could establish a series of steps ranging potentially from
notification of the company's senior management of these findings and
requesting a corporate review, to more intensive enforcement efforts at
other company locations.
Finally, on a more general note, ORC would strongly encourage OSHA
to search for new ways to promote and advocate the value of safety and
health management systems as a critical tool to reducing risk and
achieving full compliance. In the long term, nothing will have a more
significant impact on the reduction of risks, injuries and illnesses,
as well as improved compliance, than the widespread adoption of such
systems--OSHA can play a critical role in this effort.
ORC looks forward to working with the Subcommittee as it continues
to evaluate the issues raised in this hearing and other approaches to
reducing injuries and illnesses in the workplace.
______
Chairwoman Woolsey. Thank you, Mr. White.
Mr. Taylor.
STATEMENT OF RON TAYLOR, PARTNER, VENABLE LLP
Mr. Taylor. Thank you, Madam Chairwoman.
Chairwoman Woolsey. Your microphone, sir.
Mr. Taylor. I apologize. Thank you very much. Chairwoman
Woolsey, members of the subcommittee, thank you very much for
this opportunity to participate in this important hearing.
Although my comments today are those of myself alone, they are
based on my 27 years experience representing employers in
enforcement actions and assisting employers in understanding
and obtaining compliance with applicable safety and health
rules throughout the United States, Puerto Rico and the Virgin
Islands. I have also participated as a past co-chair of the
American Bar Association and have taught a mandatory
occupational safety and health law course at the Johns Hopkins
University, Bloomberg School of Public Health. Those help to
inform my experience.
I have submitted written comments which I ask to be made
part of the record, but I want to try to summarize them since I
have only a few brief moments.
The starting point for our discussion today is the
Occupational Safety and Health Act, which was enacted in 1970
to assure that every working man and woman in the United States
had a safe and healthy workplace. At the time that the act was
enacted, Congress was very concerned that injuries and
illnesses were on the rise. Statistics that were included in
the legislative history showed that since 1958 the number of
disabling injuries and illnesses was actually on the rise. So
this was really the first comprehensive legislation designed to
address that. At the time, estimates showed that between 14,000
and 15,000 workers died each year in occupational injuries.
Today, 37 years later, that trend has been reversed. And
notwithstanding the occasional but minor upticks, the trend is
downward and the number of occupational fatalities is roughly
one-third of that number. 55 percent of those occupational
injuries are the result of traffic incidents and homicides. And
in a 1995 study, two professors concluded that in fact the
danger of dying at work was less than the danger of dying in an
accident at home.
I believe that there are lots of reasons for this. First
and foremost is the very presence of OSHA, that this Congress
had the wisdom to enact, to create this legislative rule. Its
enforcement and that of the State plans that help OSHA enforce
occupational safety and health laws across the United States
has had a good effect. However, we cannot overlook the effect
of increased education and efforts by workers, by their unions,
by employee representatives, as well as by employers in helping
to obtain this lower result. And the statistics that are
included in my written materials reflect that.
This is not to suggest that the goal of the act has been
met 100 percent or that people should be complacent. They
cannot be. Unfortunately we have heard today of a tragic
accident, and I know from my own practice that accidents occur,
and we have to continue to be committed to reducing those so
that nobody goes home as a result of preventable accidents. I
think, however, it is fallacious to think that the system is
because accidents still occur in complete disrepair or
dysfunctional. In fact as I noted, workplaces are safer,
employees are better educated and better trained as they should
be. Employers in my experience generally do care and care very
much. They do not want to be cited, they do not want to receive
willful citations or repeat citations or any such thing. And
OSHA is continuing to do its part.
Our discussion today is focused on multiple employers who
are operating at multiple sites. I think that the present act
and the tools that OSHA has developed over its 37 years of
existence are adequate to assure that its statutory goal is met
and that while not perfect, that we are working towards that
goal.
Enforcement statistics show that fewer people are being
injured and that there are fewer accidents. OSHA's existing
programs, willful citations, the program that Mr. White alluded
to, the Enhanced Enforcement Program, its willful, egregious or
otherwise known as instance by instance citation policy and in
particular its repeat citation policy, provide avenues and
tools for the agency to assure that employers who operate more
than one facility have safe and healthy workplaces in all of
those facilities throughout the United States.
These tools drive behavior. In my experience, clients are
very motivated to ensure that when an accident occurs that they
don't become subject to repeat citations or, alternatively, to
willful citations and they take many of the very steps that Mr.
White alluded to. They send out notices, they work to make
sure. And often when OSHA comes in, and it does come in and
look at other job sites, it finds that those violations have
been corrected. I believe that this is the result of the spirit
which is consonant with the act, which is to lead employers
toward voluntary compliance; but for those employers who don't
do that, to have a stick that is available. And I think that
the act provides those provisions.
Two quick moments. I see my time is very nearly up. It is
up. With respect to the EEP program, I have criticized it from
time to time as being over inclusive and unfairly labeling
employers as being indifferent when in fact nothing more is
true. I expect that the OSHA people who I have met in my 27
years of experience are dedicated, they care, by no means in my
experience that I have met an OSHA person who did not care
about safety. And I think it is natural to see that relatively
small numbers of people would be in EEP. That reflects to me
fundamentally that the system is working. That should be the
goal, to have fewer and fewer people in it. I think that can
only be done by a proper mix of voluntary compliance and by
adequate enforcement.
Thank you very much.
[The statement of Mr. Taylor follows:]
------
Chairwoman Woolsey. Thank you, Mr. Taylor.
Ms. Rabinowitz.
STATEMENT OF RANDY RABINOWITZ, ATTORNEY IN PRIVATE PRACTICE
Ms. Rabinowitz. Good morning, Madam Chair and members of
the subcommittee.
Chairwoman Woolsey. Your microphone. Get it in front of
your face.
Ms. Rabinowitz. Oh, I am sorry. Is that better?
I am honored to be here this morning. My name is Randy
Rabinowitz, and as a private lawyer, I represent unions on OSHA
matters. And I imagine you won't be surprised to learn that I
have a different view than Mr. Taylor, and I do believe that
there are several changes to the OSHA Act that the Congress
ought to consider that would help improve OSHA's ability to
conduct effective corporate-wide investigations and to protect
workers from the kinds of preventable tragedies like the one we
just heard about which killed Mr. Torres-Gomez at Cintas.
Many companies devote substantial resources to safety and
health and take their duty to protect employees seriously.
Unfortunately, far too many companies do not. So I don't want
to be seen as trying to condemn all of corporate America, but I
do think there is a problem among some bad apples and the
question is how to fix that problem.
Mr. White has talked about what management can do to fix
that problem internally. I would like to focus my comments on
what OSHA can do to strengthen its ability to protect workers.
In my view, OSHA could better use its inspection resources
if, once it found evidence of severe health and safety
violations at one location of a multi-facility company, it
looked for patterns of misconduct within the company and
demanded abatement of the problem companywide. Large companies
have the organizational resources to make safety and health
improvements, and I think unfortunately the Bush administration
has relied far too heavily on voluntary programs, including an
alphabet soup of partnerships, alliances and consultative
programs even though they have no empirical research to show
that any of them have any effect.
OSHA's enhanced enforcement policy, or EEP policy, was
adopted in 2003 as a response to a New York Times expose on
enforcement problems within the Agency. It provides guidance to
OSHA staff on how to conduct wider investigations when a
serious violation is found at one facility of a multi-facility
company. The EEP policy in my opinion is too limited, both by
design and in the way it has been used. There need to be
changes in the OSHA Act to make sure that we remove some of the
obstacles to uncovering patterns of corporate misconduct.
One of the real problems with the EEP program is that it
leaves OSHA with too much discretion. It may look great on
paper, but the Agency doesn't have to do anything with it. And
it is just unfortunately oftentimes an empty promise. So one
suggestion is that Congress should consider ways to require
OSHA to conduct corporate-wide investigations in appropriate
circumstances and not just rely on OSHA's discretion in doing
it or not doing it only when there is a big New York Times
series and everybody is watching.
OSHA also needs to overcome some of its own bureaucratic
obstacles to conducting corporate-wide investigations. The OSHA
statute imposes compliance duties on employers regardless of
whether they operate one facility or hundreds of facilities.
OSHA itself chooses to enforce the act facility by facility in
a piecemeal and disjointed manner that often makes it difficult
to achieve communication and collaboration among the various
parts of OSHA. There is no reason they have to go about it that
way and they should be pressured to fix that problem. I also
think OSHA needs more information on corporate-wide injuries
and illnesses.
Section 8 of the OSHA statute grants OSHA broad authority
to adopt regulations requiring employers to record and report
workplace injuries and illnesses. There is no legal reason in
my opinion that OSHA could not impose a new requirement on
large companies to report this data across facilities. But
unfortunately, OSHA's record of timely adopting regulations is
dismal and, without a congressional mandate that it do so
promptly, it is unlikely to act on its own.
Further, once OSHA finds a severe hazard at one facility of
a multi-site employer, OSHA needs information on whether those
conditions also exist at other facilities within the company.
Current law allows OSHA to request such information, but it
leaves OSHA with few effective ways to compel production within
the 6-month statute of limitations during which OSHA has to
issue its citations. So OSHA often negotiates for far fewer
documents than it really needs to address the companywide
problems. And Congress should consider how it can maybe arrange
ways to get around the 6-month limit.
And then finally, when OSHA finds a problem, a company is
not required to fix serious and willful hazards until all its
appeals have been exhausted, and that can sometimes take years.
I know of one case where it took more than a decade, and during
that time while the appeals are pending there is no obligation
for the company to go out and investigate other facilities or
to fix things and OSHA is often reluctant to inspect other
facilities and cite the same problem while it is litigating the
validity of its original citation. This committee has twice
reported legislation to fix that problem, and I would urge that
it consider doing so again.
Thank you.
[The statement of Ms. Rabinowitz follows:]
Prepared Statement of Randy S. Rabinowitz, Attorney in Private Practice
Good Morning Madam Chair and Members of the Subcommittee.
My name is Randy Rabinowitz. I am a private attorney specializing
in occupational safety and health law. I have spent the past 30 years
on OSHA law issues, first as a law clerk and attorney at the
Solicitor's Office, later in private practice, and as Labor Counsel to
the Committee on Education and Labor between 1991 and 1995. I have been
a consultant to OSHA, the State of Washington, and the Commission on
Labor Cooperation. I have represented a variety of unions, including
UAW, USW, UFCW, Unite, and others in litigation over OSHA and MSHA
standards. For several years, I taught a law school seminar on OSHA
law, have served as the union co-chair for the OSHA law subcommittee of
the American Bar Association, and have authored several law review
articles on OSHA law issues. For more than a decade, I have served as
the Editor-In-Chief of a prominent treatise on OSHA law, published
jointly by the ABA and the Bureau of National Affairs (BNA).
I am pleased to appear before you this morning. I have been asked
to provide an overview of OSHA's current legal authority to conduct
investigations generally and, more specifically, to conduct corporate-
wide investigations. My testimony is intended to highlight areas of the
Occupational Safety and Health Act of 1970 (OSH Act) which pose
obstacles to broader reliance on corporate-wide investigations to
identify patterns of misconduct for the purpose of reducing the safety
and health hazards workers face on-the-job.
Many companies devote substantial resources to safety and health
and, within those companies, managers and officers take their duty to
protect employees seriously. Unfortunately, far too many companies,
both big and small, do not. This is unacceptable, because workers
should not have to die or become ill when they go to work.
In the more than two decades that I have been practicing OSHA law,
every year it seems there is an expose describing the dangerous, often
life-threatening conditions at some large company or within an
industry.
In the 1980's, the meatpacking industry crippled thousands of
workers. IBP denied the problem. An investigation by Representative Tom
Lantos revealed the company's deception about the true toll of worker
injury and death.
In the late 1980's, the Phillips Petroleum and other petrochemical
companies ignored process safety hazards, creating highly dangerous
conditions. The risk of catastrophic explosions highlighted the need
for stricter standards. Congress compelled OSHA to act when it failed
to do so.
In the 1980 to 1990s, the auto, garment, meatpacking, trucking/
distribution and healthcare industries all ignored the devastating toll
from ergonomic injuries until OSHA developed corporate-wide programs to
address these hazards.
The construction industry has killed workers through failures in
site management and most often missing fall protection. Today, the
Avalon Bay development company and its contractors repeat this pattern.
In the late 1990's and since, as the New York Times revealed in its
expose, the McWane company achieved new lows in corporate malfeasance--
with its ``production-first and only'' schemes that degenerated into
death and injury for workers, and conspiracy, deception, and criminal
convictions for managers.
Today these same patterns continue:
At the Cintas Corp., the repeated violations of life-and-death OSHA
standards across the company again show a pattern of production-first,
safety later.
A recent expose by the Charlotte Observer illustrates that the
House of Raeford, Smithfield and DCS Sanitation have again created the
same dangerous working conditions Cong. Lantos investigated two decades
earlier. The House of Raeford's misrepresentation of its injury rates
raises serious questions about OSHA's failure to enforce basic
recordkeeping requirements.
New industries often escape scrutiny until it's too late. Today,
the waste hauling industry and its leader, WMI, has repeatedly violated
OSHA rules, causing severe injuries and even death among its workforce.
And, after every expose, OSHA and others promise to ``get tough.''
But, almost four decades after the Occupational Safety & Health Act
went into effect, OSHA enforcement efforts grow weaker, not stronger.
Empirical research has shown strict enforcement by OSHA is
effective in reducing illnesses and injuries.\1\ It is the very
foundation for the OSH Act. Nevertheless, during the Bush
Administration OSHA has shifted its resources to voluntary programs,
including an alphabet soup of partnerships, alliances and consultative
programs. There is no empirical evidence that these programs reduce
injuries or that they do so more effectively than old-fashioned
enforcement.
Like the Act itself, a recent enforcement effort by OSHA, its
Enhanced Enforcement Policy or EEP Program, is another example of an
enforcement program with great potential that has never achieved its
promise. The EEP program was adopted in 2003, in response to the
enforcement disgrace at McWane Corp. Unfortunately, the EEP program has
failed to protect workers at indifferent, large employers from highly-
dangerous hazards.
In my view, OSHA should try to leverage its resources to identify
patterns of misconduct and demand abatement of the problems company-
wide. These large companies have the organizational resources to make
health and safety improvements. It is a shame when OSHA fails to insist
on this company-wide protection for workers.
Overview of OSHA enforcement
OSHA faces obstacles if it wants to expand its corporate-wide
enforcement efforts.
Some of these obstacles stem from the structure of the OSH Act and
Congress may need to act to fix these. Other obstacles have been
created by OSHA. OSHA chooses to enforce the Act facility by facility.
Its programs and policies are designed to facilitate a plant by plant
approach to enforcement. Those programs are administered by a Regional
Administrator (RA). Within each region, the RA decides which cases to
pursue. This piecemeal and disjointed approach often makes it difficult
to achieve the communication and collaboration necessary to uncover
patterns of misconduct across large corporations. Obviously,
legislation is not necessary to fix these bureaucratic obstacles to
greater corporate-wide enforcement.
To help understand OSHA's authority to conduct enforcement across
an employer's several facilities and the obstacles to effective
exercise of that authority, I believe a brief overview of the
enforcement scheme under the OSHA Act would be helpful. OSHA's
enforcement efforts rely principally on two types of inspections. OSHA
relies first on injury and illness statistics recorded by employers and
reported to OSHA to conduct ``general schedule'' inspections. These
inspections are intended to target high-risk employers. The scope of a
general schedule inspection is generally broader than the scope of a
complaint inspection.
Second, when a current employee at a facility, or that employee's
representative, files a written complaint about a hazardous condition,
OSHA must initiate an inspection.\2\ During such complaint inspections,
OSHA usually inspects only those conditions described in the complaint.
If an employee believes OSHA should broaden its inspection, the
employee can request that OSHA do so while the inspection is ongoing.
When an inspection reveals that an employer has violated an OSHA
standard, regulation, or the general duty clause, OSHA must issue
citations.\3\ These citations must be issued no later than six months
from the date on which the inspection began. The sooner OSHA identifies
a problem and issues citations, the sooner the employer must begin
abatement.
A citation notifies an employer of the violations OSHA found, the
penalties it proposes, and the date by which abatement must be
accomplished. Each violation is classified by severity. A serious
violation is one where there is a substantial probability the violation
will cause death or serious injury. OSHA must assess a penalty of up to
$7000 for each of these violations. A willful violation occurs when an
employer intentionally disregards safety and health or is indifferent
to the Act's requirements.\4\ OSHA must assess a penalty of between
$5,000 and $70,000 for each willful violation.\5\ OSHA may also levy
additional fines of up to $70,000 for each repeat violation, those
which are substantially similar to violations in prior OSHRC orders.
OSHA may refer a case for criminal prosecution when willful
violations of specific standards result in an employee death.\6\ OSHA
may not seek criminal penalties for general duty clause violations,
even if an employee dies. OSHA cannot seek criminal penalties when an
employer's OSH Act violations permanently disable workers. Only firms,
not individuals, are subject to criminal prosecution for a
misdemeanor.\7\ States may prosecute employers who harm workers if
their actions violate state criminal laws, such as those prohibiting
manslaughter and reckless endangerment.\8\
OSHA, however, has substantial discretion about whether to cite an
employer for hazards it observes, to withdraw citations, reach
settlements, characterize violations, and reduce or eliminate
penalties.\9\ Courts are not permitted to review OSHA's decision on
whether to enforce the law. OSHA routinely changes the classification
of violations when settling citations even in major cases involving
worker deaths--usually changing willful violations to ``unclassified''
violations so criminal prosecution is no longer possible and the $5000
minimum penalty does not apply. Penalties are often substantially
reduced as well.
When an employer receives a citation, it has fifteen working days
in which to challenge the violations, the characterization, or the
penalty. An uncontested citation becomes a final OSHRC order,
enforceable in federal court.\10\ Most contested citations are resolved
informally, without resort to litigation. When employer challenges to
citations are not resolved informally, they are adjudicated before the
independent Occupational Safety & Health Review Commission. While an
OSHRC challenge is pending, the employer is not required to abate the
violation. This delay in abatement during litigation often extends for
several years. In cases of imminent danger, OSHA can, but rarely does,
ask a federal court to shut down a dangerous operation.
OSHA shares enforcement duties with states under the OSH Act.
Section 18 of the Act authorizes states to administer their own OSHA
program, if that program meets minimum federal requirements and
receives OSHA approval. Twenty-two states enforce occupational safety
and health requirements in the private sector apart from federal OSHA.
Where OSHA has not given the state final approval of its plan, and it
has not done so in six states with jurisdiction over safety and health
in the private sector (California, Washington, Vermont, New Mexico,
Michigan and Puerto Rico), OSHA could exercise concurrent enforcement
jurisdiction, but it has a policy of not doing so. Enforcement
procedures--as well as classification and penalties--can differ widely
among the states.
Company-Wide Enforcement
OSHA adopted its Enhanced Enforcement Policy (EEP) in response to
the New York Times/ Frontline expose on corporate-wide indifference to
health and safety at McWane, and OSHA's inability to identify the
horrifying pattern of misconduct at the company. Under the policy, when
OSHA identifies high gravity serious violations at a facility, it
considers whether to initiate additional enforcement action at that
facility or at others. The idea--at least on paper--is to give OSHA a
tool to find patterns of violations.
Within this framework, EEP provides guidance to staff on how to
conduct broader investigations when a compliance officer identifies a
serious violation at a facility and a possibility exists that similarly
hazardous conditions exist elsewhere in the company. But it is too
limited. And, OSHA relies on the policy too infrequently for it to
accomplish its goals. OSHA can fix some of the obstacles to stronger
corporate-wide enforcement. Others require Congressional action. Some
of the issues which Congress should address are described below.
OSHA's current EEP program leaves the Agency with too much
discretion to do nothing. On paper, the policy represents a reasonable
effort by OSHA; the problem with the EEP policy is that it can be
changed or ignored. Sometimes OSHA staff follow it. Sometimes they do
not. OSHA is free to act arbitrarily. It is not required to explain why
it relies on the EEP in some cases and not in others. Within some OSHA
regions, the EEP policy is relied on often. Within others, rarely.
OSHA's own statistics reveal that while OSHA has designated
approximately 2,000 EEP cases since the inception of the program in
2003, it has not primarily been used to target employers with patterns
of misconduct across multiple sites. Forty-six percent of the employers
included in the EEP inspections are small employers with less than 25
employees, and only twenty-three percent of covered employers who had
over 250 employees. Further, as of March 2007, OSHA reported that EEP
had led to inspections of other locations of employers involved in EEP
cases under one hundred times. OSHA's unfettered discretion to do
nothing leaves employees without adequate protection. Further, because
OSHA relies on the EEP inconsistently, the program fails to deter on-
going patterns of violations across larger companies.
The strongest action under the EEP Program is the issuance of a
national ``EEP Alert'' memorandum, instructing Federal OSHA Regional
and Area Offices to conduct inspections at a specified group of a
company's locations, designated by the National office. According to
OSHA, however, it has only issued 8 such alerts since the inception of
the program in 2003--or less than two per year.
Congress should contain OSHA's discretion so that in appropriate
cases it can be required to conduct corporate-wide investigations.
Current law already mandates OSHA inspections when employees voice
specific complaints. The EEP program contains no comparable
requirement.
OSHA has a crippling lack of the information that could help it
target companies with widespread problems. OSHA currently lacks
corporate-wide information on injuries and illnesses. Without such
information, it cannot identify patterns of misconduct. Section 8 of
the Act grants OSHA broad authority to adopt regulations requiring
employers to keep records of workplace injuries and illnesses and
report injury incidence to OSHA. OSHA's existing regulations require
that these records be kept for each facility. Some, but not all,
employers must report their injury incidence to OSHA. In my opinion,
section 8 of the Act clearly permits OSHA to adopt broader corporate-
wide recordkeeping requirements. There is no legal reason OSHA could
not impose upon large companies a new requirement to report injuries
and illnesses across facilities. There is a practical limit to whether
OSHA can accomplish this goal within the foreseeable future. When OSHA
last set out to revise its recordkeeping rules, the process took nearly
7 years. Any proposal to expand recordkeeping requirements for large
companies would likely generate controversy and OSHA's track record of
timely completing controversial regulations is dismal. So a
Congressional mandate that OSHA adopt corporate-wide recordkeeping
requirements with 6-12 months would be a necessary first step so the
agency can obtain the basic information necessary about health and
safety hazards across facilities within the same company.
OSHA also needs information on whether conditions posing hazards at
one facility exist at other facilities within the company. Current law
allows OSHA to request such information, but leaves it with few
effective ways to compel such information. Once OSHA identifies a
serious safety and health hazard at a facility of a company with many
facilities, it needs information about whether similar conditions or
processes exist at other facilities before it decides whether to
conduct a corporate-wide investigation.
Under current law, OSHA can ask for this information during an
inspection. It is clearly relevant to OSHA's decision as to whether a
violation is willful. For example, if a company has ten facilities with
conveyors and employees have gotten injured in the conveyor at several
facilities, that information could serve as potent evidence that the
company either knew of the conveyor's danger or was indifferent to the
danger. Either way, such a violation could be characterized as willful.
So if OSHA wanted the information, and its request that it be turned
over was denied, the Agency could issue a subpoena for the documents
and seek to judicially enforce the subpoena if necessary.
OSHA faces a practical problem, however, in doing so. The OSH Act
requires that it issue citations within six months of beginning its
inspection. If a company resists OSHA's efforts to obtain company-wide
information about hazards, the process of judicially enforcing a
subpoena--a process which may require an adversary hearing in federal
court--could easily drag on for over six months. And, why would a
company voluntarily supply information to OSHA about company-wide
health and safety hazards, when doing so will likely increase the fine
they face and refusing to do so will run out the statute of
limitations? So, in practice, OSHA is likely to negotiate for far fewer
documents than it needs to identify company-wide problems. To correct
this imbalance, Congress should require that employers provide OSHA
with documents about hazardous processes or conditions across company
facilities whenever a serious violation has been identified.
Critics of expanded OSHA enforcement may suggest that imposing such
a mandate would encourage fishing expeditions by OSHA. I believe such
an argument lacks merit. The Supreme Court has ruled that OSHA
investigations must be consistent with the Fourth Amendment to the US
Constitution. An employer's ability to challenge an OSHA subpoena for
documents as unreasonable under the Fourth amendment guards against
overly broad document requests by OSHA.
Large companies should have an obligation, once a serious hazard
has been identified at one facility, to conduct internal investigations
to determine whether the same hazard exists at other facilities.
Current law imposes no such duty. In fact, it creates incentives to
delay abatement at all facilities. This is true because an employer is
not required to abate an OSHA violation until after all appeals to
OSHRC have been exhausted. The OSHRC appeals process often takes years,
and in one recent GM case, OSHRC just upheld citations issued more than
15 years ago after a General Motors employee died on the job. During
the interim, GM was under no duty to abate the conditions which killed
this worker and GM had no duty to determine whether similar conditions
existed at other sites. Further, OSHA interprets the OSH Act to bar it
from inspecting an individual establishment for the same violation
while its challenge to existing citations is pending. This is a huge
loophole in the OSH Act and severely limits OSHA's ability effectively
to conduct corporate-wide enforcement. It also means that when OSHA
finds hazardous conditions, it often feels that it must negotiate away
fines and willful designations just to obtain quicker abatement of
hazards. Congress should correct this problem. Companies which delay
fixing hazards or turn a blind eye to how prevalent the problem is
within their facilities should pay a heavy penalty for doing so.
Existing law provides just the opposite--a safe harbor.
OSHA's penalty structure provides little added incentive for large
companies with multiple facilities proactively to find violations
throughout the company and fix them before OSHA inspections. OSHA
penalties for each serious violation are a maximum of $7000 and for
each willful violation $70,000. These penalties may be significant for
small companies, but are unlikely to pose a deterrent for larger
companies. Besides, OSHA routinely negotiates penalty amounts and often
accepts a fraction of the penalty it initially proposes. OSHRC
penalties are almost always lower. Large companies, usually represented
by experienced OSHA counsel, take advantage of these penalty reductions
frequently. OSHA resources are spread so thin that OSHA can inspect
every workplace under its jurisdiction only once every 133 years. Thus,
a company cited at one location has little fear that OSHA will follow-
up at a different location, or that such a follow up inspection will
impose significant costs, particularly when the two facilities are in
different OSHA regions.
Further, criminal penalties under the OSH Act are laughably weak
and, therefore, provide little reason for companies to proactively
identify problems across facilities. OSHA may prosecute a company for
criminal violations only when there is a death and it was caused by a
willful violation of a standard. Even then, the crime is a misdemeanor
and two courts have ruled that OSHA may not prosecute individuals for
the violation, so there is no threat under Federal law that a manager
will go to jail for OSHA violations. Criminal fines for the company are
just another cost of doing business. Criminal penalties for violating
environmental laws are substantially more rigorous.
Finally, I can foresee one additional obstacle to broader
corporate-wide enforcement. OSHA currently enforces the OSH Act in
approximately one-half of the states. States enforce state OSHA law in
the others. So, when a company has facilities in several states, each
facility may be subject to different OSHA laws and enforcement by
different agencies. If OSHA gets information about hazards in a state
plan state, it can notify the state of the hazard, but it cannot
inspect. Likewise, states which learn of hazards have no duty to notify
OSHA or sister states of the problem. One state may cite a company for
lockout violations and when another state or the federal government
find similar violations at other facilities, they may not be able to
impose the higher, repeat violation penalties provided for in the OSH
Act. Congress should create an effective method of coordination among
the different state plans and between federal OSHA and the states so
that the patchwork of enforcing agencies does not prevent the discovery
of patterns of misconduct.
endnotes
\1\ Baggs, Silverstein, and Foley, ``Workplace Safety and Health
Regulation: Impact of Enforcement and Consultation on Workers'
Compensation Claims Rates in Washington State'' 43 Am. J. Ind. Med. 483
(2003).
\2\ OSHA must initiate inspections in response to formal
complaints. 29 U.S.C. Sec. 656(f)(1). OSHA does not routinely initiate
inspections in response to phone and other informal complaints or in
response to complaints from non-employees. But see L.R. Wilson & Sons,
Inc., 17 O.S.H. Cas. (BNA) 2059 (O.S.H.D. 1997), aff'd in part & rev'd
in part, remanded, 134 F.3d 1235 (4th Cir. 1998) (initiating inspection
in response to the Assistant Secretary's observations).
\3\ Section 9(a) provides that ``if, upon inspection or
investigation, the Secretary or his authorized representative believes
that an employer has violated a requirement of section 5 of this Act,
of any standard, rule or order prescribed pursuant to this act, he
shall with reasonable promptness issue a citation to the employer.''
\4\ United States v. Dye Construction Co., 510 F.2d 78, 81-2 (10th
Cir. 1975) (holding ``evil motive'' not an essential element of
willfulness).
\5\ 29 U.S.C. Sec. 666(a).
\6\ 29 U.S.C. Sec. 666(e).
\7\ United States. v. Doig, 950 F.2d 411, 412 (7th Cir. 1991)
(holding that Congress did not intend to subject employees to charges
of aiding and abetting employers in criminal violations under Sec.
666(e)).
\8\ Illinois v. Chicago Magnet Wire, 534 N.E. 2d 962, 966-70 (Ill.
1989).
\9\ Sydney A. Shapiro & Randy S. Rabinowitz, Punishment Versus
Cooperation in Regulatory Enforcement: A Case Study of OSHA, 49 ADMIN.
L. REV. 713, 731 (1997).
\10\ 29 U.S.C. Sec. 659(a).
______
Chairwoman Woolsey. Thank you very much. What an informed,
delightful panel you all are. Mr. Torres, of course, we are all
so deeply sorry about your father's death and that it was
preventable. That was the worst--I mean, that was the toughest
part of the whole thing.
Let us talk about--and you can respond through your
father's experience if you feel comfortable--Mr. White, Ms.
Rabinowitz and Mr. Taylor may want to respond also--about the
difference between policy and practice in a corporation or in a
business where the policy is you do not walk on this equipment.
The practice is you do not shut down the equipment to get a rag
unstuck or a piece of the material. What happens to the
employee who is told one thing maybe at an initial training and
watches--particularly the employee that was filling in--watches
his or her co-workers do just the opposite? Would you like to
respond to that?
Mr. Torres. I mean, if it was really enforced, I don't
think they would have done it, you know. That wasn't his job,
you know. My dad, that wasn't his official title, you know. And
like the tape showed everybody did it. They didn't really
enforce it for the full strength. He was filling in for
somebody.
Chairwoman Woolsey. So he did what they do?
Mr. Torres. Yeah.
Chairwoman Woolsey. Right. And, Mr. White, would you like
to respond?
Mr. White. Yes, I would. The difference between policy and
what I will call culture is very important. And safety culture
is kind of what goes on when nobody is looking and I think you
have to certainly look below the policy to see what the
practices and what the drivers really are to worker behavior,
and if you don't have that leadership commitment, which is
actually truly driving the behavior, if there is something else
going on, there are other pressures, pressures for production,
whatever else is going on, you know, there has to be a level of
commitment. But there also has to be this management system
that I mentioned that actually drives that hopefully, that top
level of commitment down through the organization and creates a
culture where employees do feel like they can say, wait a
minute, this is not right. We have to stop this safe practice
and get management to respond. And it takes a long time to
build that culture. It may not be present in the circumstances
that we have seen here, but I think it is going to take a lot
of work. But there is definitely a disconnect in some cases
between what the company says and what actually goes on on the
shop floor.
Chairwoman Woolsey. So therefore, Ms. Rabinowitz, who is
accountable? The employer who is the adult supposedly in the
situation or the employee?
Ms. Rabinowitz. Obviously----
Chairwoman Woolsey. Turn on your microphone.
Ms. Rabinowitz. Excuse me. Obviously I believe that the
employer should be held accountable, and one of the things--
comments that I made in my written testimony that I didn't have
an opportunity to say orally is that the penalties under the
OSHA Act are really far too weak, both the civil penalties and
the criminal penalties, to hold employers effectively
accountable, and I think that is particularly true for large
corporations that are making billions of dollars a year when
paying a 50 or $70,000 fine just becomes a cost of doing
business.
So that is unfortunate. I think it is unfortunate that
there is a tendency among a few too many companies to blame
workers when they have these accidents instead of taking
management responsibility.
And I would also like to point out that legally when these
cases get contested, it is often the case where companies will
say that we had these policies on paper and they were wonderful
and the employee was just acting inappropriately, and when the
case is litigated the testimony is overwhelmingly that, well,
no, nobody really ever enforced the policy and we were told to
wink and nod at it. And there were just dozens and dozens of
cases where that issue is litigated and there is often evidence
that it was really observed in the breach.
Chairwoman Woolsey. Well, I was a human resources
professional for 20 years and I can tell you employees who act
inappropriately in corporations and companies that actually
have good management practices have these employees on notice
that if they continue to do the inappropriate activity then
they will--could possibly lose their job. And I don't believe
that was happening at all at Cintas.
Mr. Wilson.
Mr. Wilson. Thank you, Madam Chairwoman, and thank you all
for being here today.
Mr. Taylor, in previous hearings there has been criticism
of voluntary compliance. Your testimony supports the use of
voluntary compliance combined with enforcement to achieve a
safer work environment. Can you provide some examples of how
this works in the real world? And another side to this
question, it is not just the employer, employee and OSHA, but
the insurance industry is certainly a very important factor for
any business as to risk and premiums and inspections. Where
does the insurance industry fit into this?
Mr. Taylor. Thank you, Mr. Wilson. It is important to
recall, as your comments allude, that the Occupational Safety
and Health Act does not exist in a vacuum. There are any number
of factors at play which induce employers voluntarily--not just
through the fear of enforcement action, but voluntarily to
reach out and to try to attain a safer and more healthy
workplace. One of those reasons is the fear of enforcement and
the perspective that people don't want to be labeled a bad
actor. Their corporate reputation is valuable to them. And I
have clients that have come to another conclusion with respect
to using OSHA as a resource, and they have found that to be a
very beneficial thing.
With respect to the insurance, it is important--as I
mentioned, the act does not exist in a vacuum. When workers are
injured, there are worker's compensation direct costs, there
are recurring costs through increases in worker's compensation
premiums. In addition, insurance companies police these things
and my clients have told me that their insurance premiums,
general liability, not just worker's compensation, increase
simply as a result of getting a serious citation, which is 76
percent of the citations that OSHA issues, even in the absence
of any accident. So there is a built-in incentive, even if
nobody has been hurt, and an issue with respect to workplace
safety and an allegation that somebody hasn't complied with an
applicable standard, that has potential ramification. Good
corporate citizens understand as a result of all of those
things, peer pressure, the need to motivate employees, to build
morale, to involve them, you won't have happy, productive
employees if they are fearful of their lives, I think. But all
of those things lead to the conclusion that I think most large
employers have reached, which is that safety is good business.
It is not just right, it is good business, and I believe that
most corporate employers, my clients and the clients of the
people that I have worked with at the American Bar Association,
are committed to that practice.
Mr. Wilson. We have also heard discussion about the
Enhanced Enforcement Program, EEP, that was started in 2003. Do
you have any experience with the program? Are there further
improvements that the Agency can make to effectively target
indifferent employers as the program is intended?
Mr. Taylor. As Mr. White alluded during his testimony, the
Agency revamped its program and refocused it earlier this year
in January of 2008 and released a revised compliance directive
which focuses more on an employer's history of OSHA compliance
or noncompliance, as the case may be, across all States. I
think that that is a useful change and I will look forward to
see how that plays out.
I would note that the Agency, OSHA, has one of the best Web
sites of any government agency that I have seen right now. It
is a very useful tool. They provide a lot of very helpful
information to employers as they educate themselves and their
workers with respect to hazards. They just added a new posting
yesterday about teen safety as we approach the summer when
students are out of school and things like that.
Compliance officers in my experience always look at that
inspection history. And it contains data for every employer,
for every job site, whether it is a State planned, State or
Federal-State. That is available to and used by the compliance
officers in determining whether or not a violation is willful
or should be issued as a repeat.
So there are tools out there that will enable them, and I
think that they are taking the right steps toward reforming the
EEP to focus it more on employers who really may not have
gotten the message, which I hope is a relatively minor number
of people.
Mr. Wilson. And the Web site address is what?
Mr. Taylor. www.osha.gov.
Mr. Wilson. Thank you very much.
Mr. Taylor. My pleasure.
Chairwoman Woolsey. That was a good commercial.
Mr. Payne.
Mr. Payne. Thank you very much. I think that in industry
the tone is sort of set, I think, by the employer. If you have
got goals that are very difficult to reach, then it seems that
those companies know that people are going to try to shortcut
and try to do things to increase their production. Listening to
one of the employees this morning that I met with from Cintas,
they talked about the fact that they have in their work area,
they are color coded, you know, if you are behind in
production, it is red, if you are sort of almost making it, it
is yellow. If you are meeting the production goal, it is green.
Now, I think that there are certainly--there should be bonuses
and incentives for people to perform. However, this seems to be
almost a negative kind of a connotation. And I am not sure they
get a bonus because they are green. It is just that, well, if
you are yellow or in the red zone, other employees might look
at you like I am carrying your load or it is someone who is in
the red zone is concerned about their employment, am I going to
be able to make it. As you know, many of these men--most of
these laundries are not unionized and so the intimidation of
the employer to the employee is the way it is.
So I just wonder if any of you would like to tackle that,
either Mr. Taylor, Mr. Williams. Even you, Ms. Rabinowitz. What
about this color--what about the attitude of the employer and
what kind of impact does it have for people to go and break the
law because they are worrying about their job, worrying about
making production?
Mr. White. Thank you, Congressman. I will take a crack at
that. I have never seen any data that demonstrate that bad
safety practices are profitable. And to pick up on Mr. Taylor's
point, there is plenty of evidence that a good safety program
is going to add value to the business, it is going to make the
company more productive and more profitable. So I think we do
probably need to do a better job of convincing companies that
that is actually true. Because it is clear that--it is
certainly clear in this case--you know, it is hard to believe
that when a situation such as happened to Mr. Torres' father
happened that that didn't--in addition to traumatizing the
entire workforce, that didn't create serious losses in
productivity, and these ongoing practices are just not only
intolerable from a safety standpoint, but they make no sense
from a business standpoint. And I think that OSHA has a role in
making that clear. I think other organizations who understand
the value of safety have to do a better of job of convincing
businesses that bad safety is bad business.
Ms. Rabinowitz. I would just like to note that you often
hear recurring stories about a trend among some companies where
employees are actually rewarded for not reporting occupational
illnesses and injuries. And you get a Turkey, you get a TV. You
know, the team gets certain gifts if they go so many days
without reporting an injury or an illness and a lot of those
practices have the effect of sending a message that management
doesn't want to know if something goes wrong. They want you to
keep working. And if you report an injury, you are going to let
down your fellow employees who are going to lose their turkey
or whatever other reward is built into the system. They are
unfortunately way too common and they are very pernicious, I
think.
Mr. Taylor. If I may, Congressman Payne. I agree with Mr.
White that it is important that the company demonstrate
leadership for safety, And I think that is one of the reasons
to support the consultative approach that OSHA has adopted. It
is consonant with the spirit of the act and it enables
employers to get recognition for their efforts. If we just lead
with the stick and don't offer any sort of recognition for
employers that voluntary seek out OSHA and undergo a lot of
administrative review and hard work to qualify for some of
these qualitative plans, then we are sending a wrong message to
employers. I think the right mix--the difficulty is finding
what is the right mix between those things. But I think it is
an important adjunct to any form of enforcement program.
Mr. Payne. Thank you.
Chairwoman Woolsey. Mr. Kline.
Mr. Kline. Thank you, Madam Chair. Thank you, panel. And
again I want to extend my condolences, Mr. Torres. It is a
brutal and heart wrenching story.
The title of this hearing today is ``Improving Workplace
Safety: Strengthening OSHA Enforcement of Multi-Site
Employers.'' So I would like to kind of focus on that issue if
I could for a minute.
Mr. Taylor, I think I understand that OSHA may have limited
access to a workplace when cooperation breaks down among the
parties. Again, we are talking about multi-site. Is it possible
that corporate-wide inspections create legal problems relating
to the Supreme Court's ruling in Barlow's that would require
OSHA to take the additional step of getting search warrants? Is
there a legal impediment here?
Mr. Taylor. Yes, Congressman Kline, there could be. In
addition to the Supreme Court in the late 1970s, the Supreme
Court enunciated that corporate citizens of the United States
are entitled to the protections of the fourth amendment just as
we as individual citizens are entitled to the amendment to the
protection of the Constitution.
I would disagree with Ms. Rabinowitz's comment that OSHA's
enforcement is piecemeal. I think that it does have limited
resources, and to say that simply because they find a violation
at one site of a multi-site employer that all of the sudden we
need to trigger enforcement activities that misallocates
resources because it is going to be a huge commitment,
particularly of an employer with any large size or number to
commit all those people at once when there is no evidence at
that point that there are necessarily violations elsewhere. And
the fourth amendment protects all citizens, including corporate
citizens, from unreasonable searches and seizures.
Mr. Kline. Okay. Thank you.
Ms. Rabinowitz. Excuse me. May I respond?
Mr. Kline. Yes, please.
Ms. Rabinowitz. First, I would like to correct what I said,
because I think Mr. Taylor incorrectly repeated it, which is I
think if OSHA finds violations at one site they could inquire
as to whether other sites have the same processes that were
dangerous in the first place and, if they have the same
processes, they should look and see if the processes are
equally as dangerous. And they don't--you don't need to just go
investigate every facility to do that. You can ask the company
to give you information, and the company has fourth amendment
protections. They routinely negotiate what they are going to
give you, how you get it, and that is part of the process. And
in my experience, OSHA is obligated to respect the fourth
amendment, and they do so. And if they have to go to court to
enforce their subpoena or get a warrant if an employer refuses
them entry, then they do that. But if they know there is a
hazardous process in Tulsa at Cintas, for example, and they
want to go into another facility where they know they have the
exact same equipment and the memo that the Chair cited in the
beginning says, you know, this is a companywide problem, they
can go to a judge and get a warrant.
Mr. Kline. So they have the ability to do that now?
Ms. Rabinowitz. The tests under the fourth amendment for an
administrative warrant is not as difficult as it is to get a
criminal warrant. And that would, I believe, you know, not
being a judge----
Mr. Kline. So we are looking--thank you. We are looking for
ways to strengthen OSHA enforcement of multi-site employers.
What I think I heard is, yes, there is a fourth amendment
protection but it is not difficult to get that warrant. Would
both of you agree with that?
Mr. Taylor. I would agree with that. And any lawyer who
told his client to resist a warrant in the face of a serious
accident is looking for--taking a risk.
If I can add one more important--there is already an
incentive built in through the repeat citation. When an
employer receives the citation even for something that--if it
is a systemic process in particular, it has an obligation to
correct that at all of its sites. So OSHA comes and that is the
purpose of the repeat citation. And in my experience, they have
not been reluctant to make use of that. So there is a couple of
safeguards there, I would say, Congressman.
Mr. Kline. Okay. Thank you very much. I had a question I
was going to address on rulemaking. But in the spirit of
staying within the time--I see the light is about to turn red--
I will yield back, Madam Chair.
Chairwoman Woolsey. Why don't we give you 2 seconds to do
your question.
Mr. Kline. It will be more than 2 seconds.
Chairwoman Woolsey. Well, I wanted to take the privilege of
the Chair to make a comment on this last discussion.
Would it not be possible and positive if OSHA helped
corporations put in place policies where--we are talking about
near misses, right? So you learn from one near miss or one
accident how to prevent in the future or any other place in the
organization.
Ms. Rabinowitz. Well, I would note that OSHA has made
efforts to do that and this committee has supported those
efforts to do that. In the--OSHA has a voluntary policy, I
believe it is, on companywide corporate health and safety
programs in the--I believe it was the mid-1990s, OSHA made an
effort to make that a binding regulation. So companies had to
have safety and health programs, and that effort was defeated
by business opposition to the plan.
This committee also twice reported legislation that would
mandate health and safety programs by all employers of at least
a certain size. I don't recall immediately. And that
legislation was strongly opposed by business and went nowhere.
A variety of States already have that requirement on the
books. California is one of them.
Chairwoman Woolsey. All right. Thank you very much. I took
somebody else's time to do this. Congresswoman Shea-Porter.
Ms. Shea-Porter. Thank you.
Chairwoman Woolsey. Well, Mr. Hare gets to be our cleanup
batter today.
Mr. Hare. Go ahead.
Ms. Shea-Porter. Thank you very much for being here, and I
extend my sympathy. It is a horrific story and one that
shouldn't have happened. We are very, very sorry.
I have worked in factories through my college years and I
understand the difference between the policy on the books and
the practices, and while I do believe that most companies
strive, I can tell you that every day they cut corners, they do
what they have to do, they have fill-in people there. Sometimes
they do it by mistake, they don't realize employees aren't
properly trained, but the reality is that there are the rules
on the books and the rules that actually happen and a lot of
the employees aren't even aware that they are violating it
because of lack of training.
Having said that, I do think that most companies strive and
they don't intend to violate. But there are companies that do
violate, and this is my concern about the voluntary aspects for
OSHA. We have been sitting here listening to hearings about BP
oil, oil refineries, mines, other horrible, horrible accidents,
and you have to wonder about the voluntary aspects.
Mr. Taylor, I have asked this question before of other
witnesses who really support these voluntary aspects. But do
you think the IRS would be effective if it were a voluntary
compliance on the part of American taxpayers? Do you think
there are certain things that simply have to be law, not just
voluntary compliance? Are you a true believer in that aspect?
Mr. Taylor. I think that purely negative reenforcement
ultimately is ineffective. I think that people have to
understand that there is a greater purpose, that this
government, for example, if I don't pay my taxes, if I am a
scofflaw, would not be able to fulfill many of the things that
I come to rely on as a citizen in the United States. And I
think that if it is purely negative, you create incentives for
me to skirt the law. I think the way to get above a minimum,
which is what you are talking about with purely negative, is
just pay only the taxes--and that is not a good example in the
area of safety. But it creates a disincentive for employers to
look for ways to go beyond the minimum that is necessary, to be
proactive, to involve employees and management together.
Ms. Shea-Porter. Let me interrupt you there. Because while
I agree with you and I think the best thing to do is create
programs that encourage employers and rewards for that, and I
think that most really do want to do the right thing but there
are certain things that are just essential to the bottom line,
and the reality is, for example, that this country needs to
collect taxes in order to pay its bills and we can't make it a
voluntary program, although we can do certain things and I
think it is the same thing here with safety, worker safety,
that there have to be certain bottom-line requirements and then
you work with employers to reward good behavior and to
encourage compliance. But I think that we have fallen below the
absolutely essential minimum standards.
So I am going to turn--and I appreciate your response. I am
going to turn to Ms. Rabinowitz, please.
Ms. Rabinowitz. Could I respond to the comment that you
made, which there is some empirical evidence that OSHA
enforcement works better than voluntary programs. And there is
very limited empirical evidence and none that I am aware of
that says the voluntary programs are empirically better at
reducing injuries and illnesses in the workplace than
traditional enforcement. And OSHA spends a lot of money on
something that they don't know whether it is working or not.
And so we--I think we ought to have better information on what,
if any, of the voluntary programs work and why before OSHA
shifts more of its resources away from enforcement and into
voluntary programs.
Mr. Taylor. Ms. Shea-Porter, may I add one additional
thought? Because I would like to add something in response to
Ms. Rabinowitz's comments. A follow-up study done in Washington
State in 2004 and 2005 relating to enforcement inspections by
DOSH in that State and consultation visits on compensation
rates noted that in general there was approximately a 20
percent decline in compensable claims when there was either
consultation or enforcement. The enforcement led to slightly
greater than the consultation, but there was--it wasn't
magnitudes different.
The other thing that is really sort of interesting, is that
they have noticed that the largest decline in compensable
claims, 34.7 percent, occurred when there was inspection but
without any citations. That I think should be the goal.
Ms. Shea-Porter. I appreciate--and, Ms. Rabinowitz, would
you like to answer that since he took another minute there?
Ms. Rabinowitz. I believe the authors of the study would
tell you that they--it is often cited for the fact that there
is statistically significant beneficial effect from traditional
enforcement versus consultation.
Ms. Shea-Porter. And I think the reason we came out with
the enforcement principles is because voluntary compliance was
not as effective as it could be. And what we have been hearing
when we sit here and hear people come before Congress, we
recognize that there is a role for compliance.
So thank you both.
Mr. Taylor. I don't mean to suggest that enforcement should
be scuttled. My point is there needs to be a mix.
Mr. White. Can I weigh in here? I have sort of worked at
both ends of the spectrum with OSHA and also with corporations,
and I was at a meeting one time with the head of the Irish
OSHA. And he basically said there are four kinds of companies.
There are the committed companies, the compliant companies, the
confused companies, and then there are hopefully a few criminal
companies. So there is kind of--in those categories. So we
really do need the range of services. I mean, we really do need
enforcement both for the confused and certainly for the
criminal. But we also need voluntary programs to bring the ones
who want to comply up to a higher level and certainly for those
who are committed, who maybe don't need as much enforcement.
So it is certainly not an either/or. We certainly need
enforcement as the baseline for any other programs.
Ms. Shea-Porter. I would agree that we need those minimum
standards so there is some teeth when OSHA walks into a
workplace.
Thank you.
Chairwoman Woolsey. Thank you.
Mr. Hare.
Mr. Hare. Thank you, Madam Chair. I wish we had more than 5
minutes.
Mr. Torres, let me ask you, a year ago when you came to see
me, shortly after your dad died, you told me--I think your
family had gotten a letter or something from Cintas indicating
that your father may--the implication was that he may have
committed suicide and then when that didn't work, they
basically sent another letter out to your family indicating, or
some communication indicating to you that your father just
didn't quite have the intellectual capabilities to operate the
machine; is that correct?
Mr. Torres. Yeah. They sent something like that.
Mr. Hare. And I would assume that that kind of incredibly
poor behavior had to have a--you lose your dad and on top of
that you get that kind of news.
Mr. Torres. Yeah.
Mr. Hare. At that time we had talked about any
compensation. Have you received any, your family received any?
Mr. Torres. Like, from Cintas?
Mr. Hare. Yeah.
Mr. Torres. No. I mean--to help my mom, they keep on
sending his checks to my mom. But that is----
Mr. Hare. And this is what troubles me and I have a
question, I guess, for the whole panel. Just a couple of
things. Let me just say with all due respect, Mr. Taylor, when
you say a minor uptick. In 2005, we had over 5,700 workers who
were killed. In the years between 2005 and 2006, it has shown a
2 percent increase in that. So part of that--I believe
fundamentally that most corporations in this country are good,
decent corporations. They want the best for their employees.
They want to treat them fairly. But there has to be a
fundamental right, when you have a company like Cintas and what
I am amazed at--and I would ask that the Wall Street Journal
article be entered into the record, Madam Chair. But here you
have a company that ended with $3.71 billion and a profit of
$334.5 million in fiscal year 2007 in State after State after
State. We absolutely know that this company is probably
continuing to do what they have been doing. I find it extremely
difficult and I am more than angry that they couldn't take the
time out of their busy schedules to come to this hearing today,
yet we have workers who work for Cintas that came here from
Illinois and all over this country to talk about the way they
are treated each and every day. And I find that to be quite
frankly an insult. Not just to this committee. I am used to
that. But to the families, to Mr. Torres and to the people who
are here because I think that they--that this corporation has
got to help hold its feet to the fire.
So here is my question to all of you. When you have a
company like Cintas that just basically says it doesn't matter,
you can cite us all you want, you can fine us all you want,
$2.8 million in fines, we will just litigate it out, and the
treatment of Mr. Torres' family and that kind of thing and all
of these things that go on and on and on. What do we have to do
to get a company like Cintas to step up to the plate and become
a responsible corporation that is responsible to their
employees, to make sure that the basic fundamental right of a
person going to work every day and being able to come home and
be with their families is something that they have earned? They
are earning these kinds of profits for this corporation. And I
am appalled by it and I don't know--I mean, what--this
legislation or whatever it takes for companies, not just this
one, but if there are other ones. And if you have to get a
warrant, you know, I think--so be it. But if you look at
States--in Yakima--or from the State of Washington, Illinois,
Oklahoma, New York. I mean, this is a company that just
absolutely has total disregard for the law. So I am wondering,
what could we do from our end of it to be able to make sure
that Mr. Torres' father didn't lose his life in vain because of
some company that thinks they can just either skirt it or just
totally disregard it?
Mr. White. Here is my answer to that. You are doing it now
by holding this hearing. I can guarantee you that a couple of
articles in the Wall Street Journal will have a serious impact
on Cintas because there is no time that businesses are more
media shy than when the media is bad. And frankly what is going
to drive a company like Cintas--and I am not intimately
familiar with the facts--is the business reality that they
can't be in the news day after day and sustain their own
customer base and convince their shareholders they are a good
corporate citizen. It is this kind of publicity and notoriety
frankly that will eventually wake them up, and I have seen
companies who were in similar situations do a 180-degree
turnaround. It takes time and eventually this CEO or some other
CEO will say this is enough, this can't happen anymore. And
eventually the message will get through and you will see a
change.
It is unfortunate that it has to take this, but that is
what is going to drive business. It is not the $2.78 million
fine, but the attendant publicity, public pressure and business
pressure to make the change.
Mr. Hare. Ms. Rabinowitz. I am sorry, Madam Chair. I know I
am over.
Ms. Rabinowitz. The union lawyer in me can't resist. The
best way to remedy the problem is for the workers to organize
because self-help in the end will do more to protect them on
the job than the government possibly can.
Mr. Hare. Thank you. I yield back.
Chairwoman Woolsey. Thank all of you.
First of all, I would like to ask unanimous consent to
include in the record three items. One, Cintas memorandum of
April 30, 2004; two, OSHA interpretation letter dated July 7,
2005; three, OSHA citation against Cintas in Central Islip,
August 11th----
Mr. Kline. Madam Chair, reserving the right to object,
could I just see what you have got there quickly?
Chairwoman Woolsey. Sure. Those were the letters that I
referred to in my opening statement.
Mr. Kline. Yes, ma'am. But I haven't had a chance to see
them.
Chairwoman Woolsey. All right. Go ahead.
Mr. Kline. Okay.
Chairwoman Woolsey. Thank you to the witnesses. Thank you
for being here. Thank you for----
Mr. Kline. I have no objection.
Chairwoman Woolsey. Thank you, sir. And again, thank you,
Mr. Torres, for telling us about your father. It continues to
be shameful that he worked and died in an unsafe workplace.
What we have heard today, and I am sorry to say, describes a
company that failed to address deadly hazards that it was
actually aware of and a government agency that has failed to
adequately enforce safe working conditions beyond the facility
level until after a terrible tragedy had occurred. We are not
going to let this stand. It is tragic that it took the death of
Mr. Torres-Gomez to put this issue back on the public agenda.
But we must, we will. We will develop better policies at both
the corporate and government levels to adequately address
worker safety.
OSHA cannot in this endeavor, however, become the enemy. It
must fulfill its original intention, which is to assist
employers to make the workplace healthy and safe.
So again I want to thank the witnesses for helping us chart
our course forward. Next Monday is Workers Memorial Day and
that day is dedicated not just to remembering those who have
lost their lives or have been injured as a result of unsafe
health and safety conditions, but also to fight for safer works
conditions for all who go to work every single day. So on that
day we'll remember Mr. Torres-Gomez. We will remember him
again. We will remember all the thousands of others who lost
their lives in the workplace just this past year. We will
redouble our efforts to create healthy and safe workplaces for
all Americans.
With that, this hearing is adjourned.
Any member who wishes to submit follow-up questions in
writing to the witness or witnesses should coordinate with
majority staff within 7 days. Without objection, the hearing is
adjourned.
[Whereupon, at 12:56 p.m., the subcommittee was adjourned.]