A LEGISLATIVE HISTORY OF OSHA Congressman Lloyd Meeds*

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A LEGISLATIVE HISTORY OF OSHA Congressman Lloyd Meeds* I.

INTRODUCTION

As a member of the House Education and Labor Committee and its Select Subcommittee on Labor, which considered and reported out House Report 16785; as one of the conferees who took the Steiger OSHA substitute (H.R. 19200) to conference with the Senate; and as a member who voted for the Occupational Safety and Health Act of 1970 (OSHA),' it has particular meaning for me. The House Education and Labor Committee deals with issues which directly affect all of us. Education, anti-poverty measures, minimum wages, and labor-management issues always have-perhaps because of their direct effects-been among the most controversial pieces of legislation debated in the House. Even in the company of such great national issues as these, OSHA is unique because it has been, on one hand, among the most highly praised, and on the other, one of the most villified legislative endeavors in this century. Few other laws have been so necessary and yet so difficult to resolve. II.

BACKGROUND

If we could first determine where we are, and whither we are tending, we could better judge what to do, and how to do it. Abraham Lincoln, 1858.2

In 1969, as in previous years, it could be predicted that some 14,500 workers in the United States would die as a result of accidents at the workplace; that some 2.2 million workers would be injured or disabled on the job, with a loss of 250 million man-days of work-ten times the number of days lost * LL.B., Gonzaga University, 1958. Member of the House Committee on Education and Labor, and the Committee on Interior and Insular Affairs. Chairman of the Subcommittee on Indian Affairs. t 29 U.S.C. §§ 651-78 (1970) [hereinafter cited OSHA]. I Address delivered by Abraham Lincoln at Springfield, Illinois, at the close of the Republican State Convention at which Mr. Lincoln was named a candidate for United States Senator, June 16, 1858, in 3 COMPLETE WORKS OF ABRAHAM LINCOLN 1 (J. Nicolay & J. Hay eds. 1905).

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because of strikes; that lost wages as a result of these injuries and deaths would approximate $1.5 billion, with a loss to the gross national product of over $8 billion. It could also be predicted that the number of disabling injuries per million manhours would be 20 percent higher than in 1958, and that there would be some 390,000 new occurrences of occupational diseases. Many authorities were convinced that these statistics were for the most part understated.3 This was the scope of the problem-human and economic-which the 91st Congress undertook to solve by enacting the Occupational Safety and Health Act. Long before OSHA, the federal government was involved in occupational health matters. Federal concern in the area of industrial hygiene can be traced back to 1902.1 By 1920, nearly every state had adopted some kind of occupational safety and health law. Unfortunately for the nation's workers, these laws were more often window dressing than they were substantive. Most regulated only mining, and the range of effort and concern from state to state was enormous. In most states, performance was minimal, and federal activity-generally tuned to advising the state-was insignificant. The growth of the labor movement in the 1930's and the passage of the Davis-Bacon Act of 19315 and the Walsh-Healey Public Contracts Act of 19366 dictated greater federal involvement in the area, but these acts were of limited scope in occupational safety and health matters, and had little impact. Concern gradually grew, however, and in 1948 during the postWorld War II era President Truman initiated presidential conferences on industrial safety. These conferences continued throughout the period of President Eisenhower's administration. A bill calling for adoption of uniform national health and safety codes and uniform enforcement standards was introduced in 1951 by Senator Humphrey.7 Congresswoman Leonore K. Sullivan asked Labor Secretaries Mitchell and Wirtz for S. RFP. No. 1282, 91st Cong., 2d Sess. 2 (1970). Act of July 1, 1902, ch. 1378, §§ 1-10, 32 Stat. 728. Act of Mar. 3, 1931, ch. 411, 46 Stat. 1494 (codified at 40 U.S.C. § 276(a) (1970)). Act of June 30, 1936, ch. 881, 49 Stat. 2036 (codified at 29 U.S.C. § 557 (1970) and 41 U.S.C. §§ 35-45 (1970)). S. 2325, 82d Cong., 1st Sess. (1951). Senator Humphrey suggested the creation of an accident prevention bureau.

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their endorsement of legislation designed to set mandatory standards for the handling of hazardous materials in industry. These efforts, like preceding occupational safety and health proposals, experienced little success. Yet, while the 1950's and early 1960's did not see any advance in occupational safety and health legislation, some trends were initiated which eventually resulted in the enactment of OSHA. In 1965, Congress cautiously asserted the federal government's role in this area with the enactment of the McNamara-O'Hara Public Service Contract Act 8 and the National Foundation on the Arts and Humanities Act,9 both of which included health and safety provisions. The Federal Metal and Nonmetallic Mine Safety Act of 1966,1" and the Federal Coal Mine Health and Safety Act of 196912 provided additional positive steps for recognizing and dealing with safety and health problems in the mining industry. Also, during this period, responses to the demand for environmental protection and for control of industrial pollution, coupled with cries for action following several unfortunate industrial accidents, increased the level of public concern and set the stage for congressional action. In January 1968, President Lyndon B. Johnson recommended to Congress what he described as "the Nation's first comprehensive Occupational Health and Safety Program to protect the worker on the job."' 2 But his proposal failed to reach a vote, though subsequently a version of the bill was reported out of the House Education and Labor Committee's Select Subcommittee on Labor. This latter effort resulted in H.R. 16785 the following year. 3 Early in 1969, several members of the House introduced similar employment safety and health legislation, and in April I Act of Oct. 22, 1965, Pub. L. No. 89-286, § U.S.C. §§ 351-357 (1970)). Act of Sept. 29, 1965, Pub. L. No. 89-209, §§ 951-963 (1970)). " Act of Sept. 16, 1966, Pub. L. No. 89-577, §§ 721-740 (1970)). 1 Act of Dec. 30, 1969, Pub. L. No. 91-173, §§ 902, 921-924, 931-934, 936-940, 951 (1970)). 2 114 CONG. REC. 589 (1968). 114 CONG. REC. 16769-79 (1968).

2(a)(3), 79 Stat. 1034 (codified at 40 79 Stat. 845 (codified at 20 U.S.C. 80 Stat. 772 (codified at 30 U.S.C. 83 Stat. 742 (codified at 30 U.S.C.

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President Nixon announced his intention to submit an Administration bill.'' Interest in job safety legislation thus carried over into the new session at a high level. This growing (and bipartisan) interest produced a renewed and broadened concern for the need to create a "Safety Bill of Rights" for America's workers. III.

CONGRESSIONAL AiMS

Congress did not act sooner in this area due to its reluctance to broadly interpret its powers under the commerce clause. Historically, concern for safety and health matters has primarily been dominated by state legislatures. But in 1969 a consensus was forming. An examination of state performance in the area left no doubt of the need for decisive federal action. The House Education and Labor Committee summarized its findings in the following pertinent language: Clearly, the life of a worker in one state is as important as a worker's life in another state, and uniform standards must be required to protect all workers from dangerous substances. Despite this obvious need, state response has been minimal. Federal leadership and assistance are necessary to change this record of inaction. It cannot be claimed that industry is too diverse for Government programs to be effective in lowering accident rates, when it is a fact that in the states with good occupational safety and health programs the accident rate is 19 per 100,000 workers, and in states with poor programs it is 110 per 100,000 workers-or over 500 percent higher. However, the Committee recognizes the problem of comparing the health and safety records of one state with another. Accurate, uniform reporting standards are an evident Federal responsibility.'"

Senate Report 2193 concluded with the following statement: In sum, the chemical and physical hazards which characterize modern industry are not the problem of a single employer, a single industry, nor a single state jurisdiction. The spread of industry and the 115 CONG. REC. 8771-2 (1969). H.R. REP. No. 1291, 91st Cong., 2d Sess. 15 (1970). Another interesting method of comparing occupational safety efforts among the states was suggested in the debates: In some states, the ratio of safety and health inspectors to game and fish inspectors was 1 to 30. See SENATE COMM. ON LABOR & PUB. WELFARE, 92d Cong., 1st Sess., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

(Comm. Print 1971) 1040.

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mobility of the workforce combine to make the health and safety of the worker truly a national concern.

In addition to the variances between state safety laws and enforcement practices, the concern for the safety and health of workers varied considerably from industry to industry and from employer to employer. Many employers and specific industries could be recognized for their efforts to provide a safe and healthful workplace and work environment. But these were truly exceptional situations. Most employers approached occupational safety and health problems with either partial, or total indifference. For economic reasons most small businesses had taken few actions expressly tailored to improve worker safety and health. Many businessmen, while recognizing the value of maintaining a stable, healthy workforce, found that cost barriers, limited technological ability and a paucity of information stifled the development of employee health and safety programs. Coupled with these problems, worker health and safety conditions were further exacerbated both by the absence of uniform standards, and by the spiraling introduction of new substances and technologies into industry-technologies and substances whose effects on workers had not even been studied. Further, new scientific knowledge was being uncovered which divulged cause-and -effect relationships between occupational exposures and many of the so-called chronic diseases-cancer, respiratory ailments, allergies, heart disease and others-that had never before been suspected. It was estimated that a new and potentially toxic chemical was being introduced into industry every 20 minutes. 7 The technical complexity of occupational safety and health concerns was becoming a difficult matter to consider and act upon; this was true for even the largest of firms and employee representative organizations. The dilemma of the smaller businessman was further magnified by the competitive disadvantage to the more conscientious employer, especially in cases where there existed a long period between exposure to hazards, and the resultant manifestation of illness. Simply put, the problem of assuring safe and healthful working conditions became too big, too complex, and too

'7

S. REP. No. 1282, 91st Cong., 2d Sess. 4 (1970). Id. at 2.

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urgent for any approach other than decisive federal action. Agreement on this point was not hard to reach. But it was difficult to determine the approach to be taken and the methods to be used in setting and enforcing uniform standards. In January 1969, Congressman James O'Hara introduced House Report 3809, an early version of OSHA. A similar bill, Senate Report 2193, was subsequently introduced by Senator Harrison Williams in May 1969. The Administration introduced its proposal (H.R. 13373 and S. 2788) in August 1969. It was intended to "help guarantee the health and safety of workers." IX There existed substantial differences between the Democratic and Administration bills. Considerable disagreement arose regarding the question of who was to possess the right to set and enforce safety and health standards. The O'Hara and Williams bills' vested this authority in the Secretary of Labor. President Nixon proposed that this function reside in a specially created National Occupational Safety and Health Board. The parties split into the classic factions: management favored the Administration proposal, while labor agreed with the Democrats that the Secretary of Labor should set and enforce the standards. Other areas of contention included: (1) balancing the employers' "due process" rights (especially in "imminent danger closing" situations) with the employees' rights to protection and right of access to "relevant information"; (2) the "walk-around" rights of each during inspections; (3) citations and penalties; and (4) "consensus standards." Nevertheless, amongst the controversies there existed areas of agreement and understanding. There was general recognition that a number of occupational areas possessed existing, relevant standards -even though they were neither universally nor uniformly applied. Such standards existed in various federal contract regulations; 21 in codes such as those enforced under the Contract Work Hours and Safety Standards Act; 21 in consensus standards promulgated by the American National Standards 22 Institute" and the National Fire Protection Association;' in 115 CONG. REC. 22510 (1969). H.R. 3809, 91st Cong., 1st Sess. (1969); S. 2193, 91st Cong., 1st Sess. (1969). ' E.g., 41 U.S.C. § 35(e) (1970). 21 40 U.S.C. § 333 (1970). 22 See AMERICAN NATIONAL STANDARDS INSTITUTE, CATALOG (1973). Individual

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proprietary standards, such as those promulgated by the American Conference of Governmental Industrial Hygienists;" and in various standards promulgated by the Manufacturing Chemists Association and the Associated General Contractors.I2 There was general agreement that these standards should not be ignored but rather that they should be reviewed, modified and codified wherever practical. Thus, the task of designing a viable health and safety act required development of procedures for: promulgating and enforcing standards, researching unexplored areas of concern, inspecting working conditions, and educating employers and employees as to what the new standards are and how to comply with them. There was general recognition that resolution of these matters would be a slow step-by-step process and that the resultant legislation would pervade all areas of occupational health and safety. " It is unfortunate that this broad agreement has been obscured by the controversy surrounding a few contested issues.

IV.

TRACING

OSHA IN THE 91ST CONGRESS

The House Select Labor Subcommittee held 15 days of hearings during 1969 on the O'Hara bill, 27 and the Senate took an additional 12 days of testimony in 1969 and early 1970. The Administration was represented at the House hearings by Secretary of Labor George P. Shultz and the Assistant Secretary of Health, Education and Welfare (HEW) for Health and Scientific Affairs, Dr. Roger 0. Egeberg. Business, labor, and interested members of Congress were well represented by the numerous public witnesses who also testified.2 standards on safety and related subjects are available by contacting Managing Director, American Nat'l Standards Inst., 1430 Broadway, New York, N.Y. 10018. 1 E.g., NATIONAL FIRE PROTECTION ASS'N, NATIONAL FIRE CODES (No. 30, 1969). Individual codes, standards, and practices also are available in pamphlet form; Director, Nat'l Fire Protection Ass'n, 60 Batterymarch St., Boston, Mass. 02110. 24 E.g., AMERICAN INDUSTRIAL HYGIENE ASS'N, HYGENIC GUIDE SERIES, 14125 Prevost, Detroit 27, Mich. 25 E.g., MANUFACTURING CHEMISTS' ASS'N, SAFETY GUIDELINES, 1825 Conn. Ave., N.W., Washington, D.C. 4 Especially in the health area, it was understood that considerable research and study would be necessary in order to develop standards. H.R. 3809, 91st Cong., 1st Sess. (1969). 115 CONG. REC. D446, D457 (1969).

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With this extensive testimony and Congressman O'Hara's bill as a starting point, early in 1970 the Select Subcommittee undertook to draft a "clean" bill. Subcommittee Chairman Daniels' proposal was redrafted seven times before it was submitted to the subcommittee for consideration. With strong labor support, the Democratic members of the subcommittee approved this seventh draft and the full committee prepared to take it under consideration. As noted, the Daniels bill differed substantially from the Administration's proposal. The Republican members of the subcommittee proposed amendments which were intended to narrow the differences in favor of the Administration, but their efforts were rejected, often on straight-line party votes. This was interpreted by the Republican members of the subcommittee as an "unwillingness to compromise," and in protest, they boycotted the final meeting of the subcommittee. H.R. 16785, commonly referred to as the Daniels bill, was finally reported out by the subcommittee, and on March 19 it was taken up by the full committee despite the minority's boycott. The minority's hopes for a compromise temporarily were buoyed when Congressman William Steiger of Wisconsin submitted a further revision of the Administration bill to the full committee. This measure was also defeated, and the committee sessions were suspended until June to provide additional time for attempts to strike a compromise. Not satisfied with these efforts, the minority absented itself from the next scheduled meeting of the full committee on June 3. In a final effort to reach agreement before taking a bill to the floor, the minority members, with help from the Labor Department and Democrats Hathaway of Maine and Burton of California, produced yet another revision. This proposal would have created an Occupational Safety and Health Court, not unlike the Tax Court, with powers to exercise jurdisdiction over violation issues. This proposal, too, was defeated by the full committee, and H.R. 16785 was reported on June 13. Twelve of' the 15 Republican members of the committee expressed their nonacquiescence in their statement of Minority Views on H.R. 16785. In addition to stating that they felt the majority's willingness to compromise was purely "illusory," they found H.R. 16785

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unacceptable because in rejecting the concept of an independent Board to set standards, the bill would create a monopoly of functions in the Secretary of Labor. Such a monopoly not only ignores the element of fairness to those required to comply with the Act, but also fails to resolve the jurisdictional division between HEW's responsibility for health and the Labor Department's for safety. In addition, the Committee bill does not overcome the widespread objection to permitting an inspector to close down a plant in imminent-danger situations. We regard this as a serious shortcoming. Lastly, the Committee bill contains a sweeping general duty requirement that employers maintain safe and healthful working conditions. This broad mandate is grossly unfair to employers who may be penalized for situations which they have no way of knowing are in violation of the Act.2

The minority view was concluded with the following statement: However, we regard the establishment of an independent Board to promulgate standards and due process as essential provisions which cannot be omitted from any bill which genuinely purports to have the best interests of employees and employers as the basis for its enactment. Hence, we intend to offer our own proposal, which was rejected by the Committee's majority, as a substitute for H.R. 16785 as reported by the Committee.'

Subsequent Republican efforts to convince the Rules Committee to consider a Steiger substitute3 in lieu of the committee bill failed, and following the summer recess on September 22, the committee bill was granted a rule. Congressmen Steiger and Sikes, a week earlier, had introduced a further revision of the Administration bill, H.R. 19200. They intended to offer it as a substitute for the committee bill on the floor. The Senate committee passed its health and safety bill on September 25. Even though it represented further compromise between the Williams bill:2 and the Administration proposal, the basic questions of administrative arrangements and the "imminent danger closing" provisions were not solved to the minority's liking.*' S. 4404, counterpart to Steiger's H.R. 19200, was introduced by Senator Dominick on September 29. It also was to be offered on the floor as a substitute for the committee bill. The minority utilized several tactics, including a filibusH.R. REP. No. 1291, 91st Cong., 2d Sess. 47 (1970). Id. at 51-52. H.R. 13373, 91st Cong., 1st Sess. (1969). :12S. 2193, 91st Cong., 1st Sess. (1969. '*

1' S. REP. No. 1282, 91st Cong., 2d Sess. 55-57 (1970).

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ter, in order to prevent or at least delay the committee bill from reaching the Senate floor. It did become pending business, though, and on November 16, Senator Williams was successful in getting the Dominick substitute tabled. The committee bill was then taken up, and following a series of compromise amendments, including a key Javits amendment, 4 it was passed by a vote of 83 to 3. On November 23, the House committee bill reached the floor and, as promised, the Steiger bill was introduced as a substitute. In his opening remarks, Congressman Daniels indicated his willingness to seek a compromise. He stated that he was ready to introduce a number of amendments to his committee's bill to satisfy the principal minority objections. The minority suggested three reasons for rejecting this approach and adopting the substitute bill: first, many members felt that Daniels' offer of compromise was too late, a feeling rooted in the belief that the substitute bill might well pass; second, it was argued that the Daniels amendments would leave one of the most important areas of disagreement untouched-the question of whose authority it should be to set standards; third, Congressman Steiger read a letter from Secretary of Labor Hodgeson supporting the substitute bill. The Steiger substitute was adopted and passed on the following day. On December 8, a House-Senate conference was called to iron out the differences in the two bills. Chairman Perkins' later statement that this was "not an easy conference" was a sizable understatement. The following provides a brief review of the differences between the House (Steiger) bill and the Senate (amended Williams) bill: A major concession on the part of the managers representing the House of Representatives was with respect to the procedure to be used in the development and promulgation of the health and safety standards. The . .. Senate bill provided for promulgation of these standards by the Secretary of Labor. The House amendment authorized their promulgation by a National Occupational Safety and Health Board.... [Tihere were many similarities in the Senate a'OSHA § 11(a) established a three-member appeals commission to adjudicate violation appeals. 116 CONG. REC. 42200 (1970).

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bill and the House amendment. . . . The chief difference lay in the fact that the procedure for setting standards under the House amendment were [sici under the formal rulemaking procedures also provided in the Administrative Procedure Act. The House receded on the procedure for promulgating standards. We accepted the Secretary of Labor as the promulgator of the standards and we adopted the informal rulemaking procedures which the Senate bill authorized. We accepted a provision that hearings should be required only when requested by interested parties . . . . There were important Senate concessions even in this area, however. The Senate receded with respect to a provision in their bill which would have permitted a shortened rulemaking procedure for the-issuance of existing proprietary standards. In addition, in adopting the Senate language the House insisted on an amendment under which employers may petition for a temporary order granting a variance. . . . The employees of such an employer are entitled to notice and hearing on such an order .... The differences . . . with respect to inspection . . . were not major, save in two respects. The Senate bill would have required an employer to make periodic self-inspections to be followed by a certification of the results to the Secretary of Labor . . . . The conferees adopted the principle of self-inspection . . . . but no certification of the results may be required. Under the provisions of the Senate bill both a management and an employee representative had to be given an opportunity to accompany an inspector. The conferees adopted this principle . . .3

Congressman Perkins further stated that the Senate bill provided for an immediate issuance of a citation upon the "determination" of a violation of mandatory requirements. The House amendment provided that if the Secretary "believes" a violation exists, he shall issue a citation. The conferees accepted the word "believes," but added that citations must be issued with "reasonable promptness." Further, the Senate bill separated proceedings for issuance of citations from those for imposition of penalties, while the House amendment combined these two functions into one proceeding. On this, the House receded. Both House and Senate bills provided for judicial review of commission decisions, but the Senate bill provided appeal rights to any person aggrieved by a commission order while the House bill limited the right of appeal to employers and the Secretary. The House receded on this also. Perkins went on to state that the Senate bill provided for a civil penalty

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of up to $1,000 for each violation. The House bill was similar except for "nonserious" violations where the penalty was to be discretionary. Both the Senate and the House bill provided for civil penalties of up to $1,000 a day for violation of an imminent danger order. On this point the House language was accepted. The Senate bill provided criminal penalties for willful violations-up to $10,000 and/or 6 months in jail, doubled after a first conviction. The House on the other hand assigned a civil penalty of up to $10,000 for willful or repeated violations. In this regard the conferees agreed to retain criminal penalties where a violation resulted in an employee's death.37 Turning attention to the matter of imminent dangers, the Senate bill authorized the Secretary to seek court orders requiring removal of the danger and withdrawal of endangered persons. The bill did not limit the duration of such temporary restraining orders, "although the ten-day limit in the Federal Rules of Civil Procedure was applicable." The Senate bill further permitted the Secretary to issue an administrative shutdown order "where there was insufficient time to obtain a court order." The House amendment, likewise, authorized the Secretary to seek court orders to restrain conditions or practices responsible for imminent dangers. But such orders were to remain effective for only 5 days, and there was no grant of authority to issue administrative shutdown orders. With minor changes in the House language, the Senate receded.3 Perkins pointed out that there also existed a "major difference in the two bills in the treatment of the proposed effect on other preexisting health and safety statutes." He explained this further by stating: The Senate bill said the act should not apply to working conditions [over] which other Federal agencies exercise statutory authority affecting occupational safety and health, while the House amendment excluded employees whose working conditions were so

regulated. The House language had an additional exclusion relating to employees whose safety and health were regulated by State agencies acting under section 274 of the Atomic Energy Act of 1954. The House receded on the first point; the Senate receded on the second. The Senate bill provided that safety standards under any law administered by the Secretary of Labor-Walsh-Healy, Service Id. at 42201. " Id.

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339

Contract Act, Construction Safety Act, Arts and Humanities Act, and Longshore Safety-would be superseded when more effective standards are promulgated under this act, but until then they were deemed standards under the present act. The enforcement process of this act was thus added to the enforcement procedures of those other acts. The House amendment repealed and rescinded standards under the Walsh-Healy, the Service Contracts, and the Arts and Humanities Acts. All construction industry employers were exempted from this act and the entire industry brought under the Construction Safety Act. That act was amended to make the enforcement provisions of this act applicable. Unlike the Senate bill which left the hearing of contract violation cases with the Secretary, the House amendment provided the hearing of such cases by the Safety and Health Commission. The House receded. The conferees intend that the Secretary develop health and safety standards for construction workers covered by Public Law 9154 pursuant to the provisions of that law and that he pursue the same mechanisms and resources for the development of health and safety standards for all the other construction workers newly covered by this act, including those engaged in alterations, repairs, painting and/or decorating. It is understood by the conferees that in any enforcement prosuch other acts, the ceedings brought under either this act or under 3 principle of collateral estoppel will apply.

The final major area of disagreement confronting the conferees was that of the "general duty." Perkins explained the conference resolution of this matter as follows: The Senate bill required workplaces to be free from "recognized hazards." The House amendment required such places to be free from "any hazards which are readily apparent and are causing or likely to cause death or serious bodily harm." The House provision was adopted with the Senate's "recognized hazard" term replacing the House's "readily apparent hazard." The Senate bill required each employee to comply with occupational health and safety standards and the rules, regulations, and orders issued under this act. The House amendment had no comparable provision. The House receded. The Senate bill made provision for the establishment of a National Institute for Occupational Safety and Health, and also established a National Commission on State Workmen's Compensation Laws, the latter to undertake a study and evaluation of the effectiveness of workmen's compensation statutes. Both the Institute and the ° Commission were accepted by the conference." Id. 40Id. 39

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After considerable discussion, the Conference Report was accepted, and the Occupational Safety and Health Act was finally passed. Albert Quie, the Education and Labor Committee's ranking minority member, indicated on the floor that the conference had not only achieved its goal of creating safer and healthier working conditions through effective federal legislation, but also had produced a measure "which, to a substantial degree, is consistent with the recommendations of President Nixon."" Strong support of the conference agreement was voiced by Labor Secretary Hodgeson. High praise, however, was not all the conferees received. A number of House members who had supported the Steiger substitute felt that the House conferees had prematurely capitulated to Senate insistence that the Secretary, and not an independent Board, set the standards. This feeling was bolstered by Senator Williams' statement that "the bill agreed on in conference reflects, to a most unusual degree, the wishes of the Senate." The mood in the House was clearly expressed by Congressman Sikes, cosponsor of the Steiger substitute, as follows: Now, at the conclusion of a great deal of work by many people,

the House is being asked to make a difficult choice. The bill which has been brought to us by the conferees is not-and I repeat-is not as good a bill as the bill which passed the House. That bill passed with a vote of 383 to 5, and that should have been reason enough for the conferees to insist on the House bill and bring it back to us, but this is not being done. Let it be understood that the bill on which the conferees have agreed is a better bill than the . . . one passed by the Senate. Industry generally recognizes this, and is prepared to live with the results, but this bill is not as good as the House bill in many significant respects, and it is not clear in other respects, and that can prove

to be a dangerous situation. 2

This has been a rather lengthy review of the events leading up to the passage of OSHA, but an awareness of this background facilitates an understanding of the controversy and confusion presently surrounding the Act. To sort out a usable statement of "congressional intent" from such a history is a difficult task. It is further compounded by the inherent complexity of the law, not to mention the implementation problems experienced by all parties. Much of the confusion sur"Id. at 42202. Id. at 42207.

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rounding "congressional intent" can be attributed to these stumbling implementation efforts. Hence, one of the key questions constantly raised is whether the implementation guidelines responsibly reflect the intent of the Congress. The issue of "consultation" is one area of the problem which has been widely discussed. V.

CONSULTATION

The Labor Department's present posture regarding consultation is best expressed in its own "Compliance Operations Manual"-the inspector's bible.43 There it is stated: An inspection begins when a [Compliance Safety and Health Officer] enters an establishment; apparent violations must then be cited. Therefore, when providing consultative services such consultation shall not be held at any employer's establishment. If an employer requests consultative services, he shall be told that he can meet with OSHA in the Area or Regional office ... Consultative services to public groups shall be performed on a priority basis established with the approval of the AD (area director). Safety and health handouts and promotional materials may be used to help educate employers and employees regarding the Act and the standards and regulations."

The Department's lack of consultative performance in the past year is further exemplified by the following passage, also from the Compliance Manual: Consultation with trade associations, professional groups and societies, unions, educational institutions and other public groups is encouraged only to the extent of manpower availability. The AD shall exercise his management skills and judgment in making decisions regarding allocation of manpower resources in this area.45

The neglect accorded matters of consultation is attributable to the severe manpower shortage the Administration has inflicted upon itself through continued underfunding of OSHA inspector ranks. Another aspect of this problem which has given rise to much discussion is that of consultation at the worksite. A succinct statement of the need for-and dangers of-on-site con'

OFFICE OF COMPLIANCE, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S.

DEP'T OF LABOR, COMPLIANCE OPERATIONS MANUAL (Jan. 1972) [hereinafter cited COMPLIANCE MANUAL].

" Id. at IV-5.

Id. at IV-4.

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sultation is found in the July 27, 1972, record of the Senate Oversight hearings on OSHA. The following excerpt is from the testimony of Jacob Clayman, Executive Director, Industrial Union Department, AFL/CIO: Senator Packwood. Is it fair that the employer, who for years has assumed he was . . . in compliance with State standards and met the standards is finding the first time the OSHA inspectors come . . . his ladder is inappropriate . . . when he has never before been forced to comply with the standards-does not know about it. You do not object, surely, to at least giving him a chance to comply without a fine on a first visit, do you? Mr. Clayman. It depends on what you mean by "chance." If you cite a situation that is relatively meaningless, then any kind of inspector with any sense at all, commonsense, will not provide a fine. You understand, a citation does not carry with it an automatic fine. The fines generally come when there has been some serious violation, as the inspector sees it. If I may address myself to the broader implication, the approach . . . of small business and perhaps big businesses, that the initial approach would be one of voluntarism. In other words, the inspector comes out and he merely advises, regardless of the gravity of the situation, regardless of how aware or unaware the employer may have been. Often an employer is fully aware of the problem... and yet he has done nothing, and so we have had a bad experience with voluntarism. That is why, indeed, we have the present law. Senator Hughes. [Wie have repeatedly, by almost every witness representing industry and small business employers, had the recommendation made that they should be allowed to call the OSHA office, and ask them to send out an inspector, to tell them how to comply with the law, and show them whether or not they are in compliance with the law without being fined for it. On the other hand, the National Safety Council in a statement filed with us emphasized the importance of an effective compliance program of at least having the authority to impose, first inspection penalties, even if not always used; in other words, latitude in the process. Now, if I understood you correctly, that was the approach you took. Mr. Clayman. We believe the inspector should have the authority, if necessary . . . to propose a penalty . . . if the circumstances demand it. Now, then, we need inspectors who use judgment. I do not think we are going to instill judgment by the passage of Acts.

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We do that by sound administration. We do that by the Department of Labor doing its job carefully .... 11

The Administration's approach, on the other hand, has not been of such a flexible, judgemental nature; its attitude has been characterized as "take it or leave it." In fairness, it could be argued that inflexibility is a desirable attribute in the process of implementing a law as complex as OSHA. The consistency inherent in this approach, though, helps compensate for its rigidity. One might reasonably have anticipated that as the Department accumulated experience it would develop a congruent growth in flexibility. Unfortunately that has yet to occur. The Department's Solicitor argued: Under the Williams-Steiger Act, the Department of Labor is legally precluded from providing any consultation visits on an employer's premises without triggering the Act's enforcement procedures. Section 9 of the Act provides that, upon inspection, a compliance officer who believes that an employer has violated a requirement of the Act must report such an alleged violation. If the area director concurs, an appropriate citation and in many cases a proposed penalty will be issued to the employer. Since section 8 makes it clear that any entering upon the employer's premises is regarded as an inspection provided for in section 9, appropriate enforcement action would have to be taken following a consultation visit. It is true that section 21(c)(2) . . .provides that the Secretary of Labor consult with employers and employees, or their representatives, as to effective means of preventing occupational injuries and illnesses. Section 21(c)(2) does not expressly provide, however, that such consultation be conducted on the employer's premises. Absent that express authorization and coupled with the clear language in sections 8 and 9 . . .we are precluded from interpreting section 21(c)(2) as authorizing nonenforcement consultation visits on the employer's premises. 7

Based on this interpretation, the Department has supported amendments to OSHA designed to separate on-site consultation from the inspection process. Such legislation was introduced in the 92d Congress by William Steiger, but was not enacted. The Department's spokesmen have called for consultations which "would consist of examining the workplace and advising the employer of what violations exist and explaining some of the possible actions that could be taken to correct the 11Hearings on S. 2193 Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 2d Sess., 264-67 (1972). 11Id. at 363.

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situation."4 The Department feels that such legislation should provide for imminent danger situations, employee participation, and consideration of violations disclosed during a consultation when proposing penalties in a subsequent inspection. It is questionable whether all of the problems raised by Mr. Clayman's testimony49 can be solved by this proposal. The sacrifices present in this situation require careful consideration. It is unfortunate that the Department treats the flexibility afforded under section 21(c)(2) so disdainfully. The need to protect the employee, and at the same time assist the employer, can be effectively fulfilled by the authority granted in OSHA if it is interpreted as simply: the location and citation of all violations plus the selective imposition of penalties tempered with the good judgment recommended by Mr. Clayman. Congress intended that OSHA function in this manner. Many of the occupational safety and health bills considered by the 91st Congress treated the Secretary's consultation responsibilities similarly. The bill introduced by Mr. O'Hara (H.R. 3809) contained the following statement: The Secretary, in consultation with the Secretary of Health, Education, and Welfare, shall provide for the establishment and supervision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe or unhealthful working conditions in employments covered by this Act, and to consult with and advise employers as to effective means of preventing occupational injuries and illnesses.

Substantively identical language is found in H.R. 843,1' section 16(c) (Mr. Hathaway, January 3, 1969); H.R. 13373,2 section 18(d) (Mr. Ayres, Aug. 6, 1969-the Administration's bill); S. 219313 as introduced, section 16(c), and S. 278811 (Senator Javits). The Daniels bill (H.R. 16785)" 5 included the same language with the addition of "and employees, and organizations representing employers and employees" after the word "employers" in the next to the last line. Identical language was 1 Id. at 264-267.

,9Id. H.R. 3809, 91st Cong., 1st Sess. 25 (1969).

H.R. 843, 91st Cong., 1st Sess. 74 (1969). H.R. 13373, 91st Cong., 1st Sess. 36 (1969). S. 2193, 91st Cong., 1st Sess. 25 (1969). S. 2788, 91st Cong., 1st Sess. 36 (1969). H.R. 16785, 91st Cong., 2d Sess. 37 (1970).

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included in the Steiger substitute, H.R. 19200"6 and S. 219311 as reported and passed by the Senate. The problem in obtaining a fair interpretation of this Act and its history, regarding consultation, consists neither of great confusion nor of paucity of information. The question to be answered is one of "administrative intent," i.e., what motivated the Department of Labor to implement OSHA as it did? The controversy over first-visit citations and penalties is largely due to the problems of implementing the Act. The Act -but not the Department's instructions to its inspectors-is permissive along the lines Jacob Clayman suggested. Firstvisit citations need not be followed by proposed penalties Inspections may include advice and information on how better to comply with the regulations. With provisions like these, why did there exist such widespread complaining about "hardnosed" inspectors who on their first visit would cite and propose penalties for insignificant violations? This was evidence that the manner of initial implementation produced distorted impressions of the Act in the minds of businessmen-especially small businessmen. The law they were subjected to differed significantly from the law Congress had intended to create. Another controversial, yet contrasting area of OSHA, concerns the employer's "general duty" to provide a safe and healthful workplace. The House Report on H.R. 16875 states the following about the need for a general duty section: Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Courts often refer to this as a general duty to others. The Committee believes that employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment. . . . Section 5(1) merely restates that each employer shall furnish this degree of care. There is a long-established statutory precedent in both Federal and state law to require employers to provide a safe and healthful place of employment. Over 36 states have these provisions, and at least four Federal laws contain similar clauses, including the Walsh-Healey Public Contracts Act, the Service Contract Act, the Longshoremen's and Harbor Workers' Act, and the Federal Employers' Liability Act. An employer's duty under Section 5(1) is not an absolute one. It is the Committee's intent that an employer exercise care to fur-

H.R. 19200, 91st Cong., 2d Sess. 50 (1970). " S. 2193, 91st Cong., 2d Sess. 50-51 (1970).

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nish a safe and healthful place to work and to provide safe tools and equipment. This is not a vague duty, but is protection of the worker from preventable dangers."

The Senate committee's Report emphasized that precise standards to cover every conceivable situation .will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune. Therefore, to cover such circumstances, the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees."

Both House and Senate committees cited the testimony of Governor Howard Pyle, President of the National Safety Council, that he gave before the Select Subcommittee on Labor on November 5, 1969, as follows: If national policy finally declares that all employees are entitled to safe and healthful working conditions, then all employers would be obligated to provide a safe and healthful workplace rather than only complying with a set of promulgated standards. The absence of such a general "obligation provision" would mean the absence of authority to cope with a hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated10

The Senate committee also included a concomitant employee obligation in their section 5(b) which expressly placed on each employee the obligation to comply with standards and other requirements of the Act."' The House language required workplaces to be free from "any hazards which are readily apparent and are causing or are likely to cause death or serious bodily harm." By contrast, the Senate bill called for workplaces to be free from "recognized hazards." The conferees adopted a combination of this language requiring a workplace to be "free from recognized hazards that are causing or are likely to cause death or serious physical harm." The conferees also adopted the Senate's "employee duty" section.

'

H.R. REP. No. 1291, 91st Cong., 2d Sess. 21 (1970) (emphasis added). S. Rep. No. 1282, 91st Cong., 2d Sess. 4 (1970). H.R. REP. No. 1291, 91st Cong., 2d Sess. 21 (1970). S. REP. No. 1282, 91st Cong., 2d Sess. 10-11 (1970).

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The objections voiced to the "general duty" requirement were that it was vague and open-ended and thus "unfair" to employers. The conferees addressed these objections in the redrafting and compromising that produced the final bill. The dispute was resolved by limiting the application of duty to "recognized" hazards, which readily can be detected by the human senses, and which generally are known to be hazardous. It also was made clear in the discussion of the conference action that this section should not be exploited in order to rationalize the setting of ad hoc standards. It generally was understood that it would be used infrequently, with primary reliance on the specific standards. It should be noted that no penalty was included for violation of this section, unless the employer was informed of the unsafe condition and thereafter refused to correct it. In contrast to the Department's interpretation of "congressional intent" regarding consultation, their implementing instructions on general duty violations clearly reflect congressional thinking. The Compliance Manual indicates that "the general duty provisions should be used in inspections only where there are no specific standards applicable to the particular hazard involved." 62 The Manual further states that "penalties shall be proposed for serious, willful, or repeated violations 61 3 under the general duty clause. VI.

CONCLUSION

The preceding account of OSHA's enactment demonstrates that the translation of ideas into laws is a difficult, and sometimes confusing, process. There exist other aspects of OSHA which could have been included in this article, but an effort was made to focus on only the most controversial, and hence, the most demanding issues. Despite the controversy generated in the consideration and passage of the Act, and the additional controversy stemming from its translation into and implementation as a government program, one must attempt to keep in mind its major purpose. This legislation was passed in an effort to reduce, and potentially eliminate, job-related deaths, injuries and diseases. In the final analysis of the program, this must be the main crite"

COMPLIANCE MANUAL, supra note 43, at VIII-2.

"

Id. at VIII-3.

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rion of success. Unfortunately, data that might provide a conclusive comparison of pre- and post-OSHA death and injury rates is not yet available. In fact, industry is just now, under OSH Administration regulations, beginning to keep detailed records of occupational accidents and illnesses. Still, some general conclusions may be drawn today from preliminary government, union and industry findings: eTens of thousands of workplaces that had never before been inspected are now being scrutinized under OSHA. Thanks to greatly increased employer, employee, and public consciousness concerning safety and health matters, every workplace is being looked at anew from this perspective. eFor the first time in the history of the Nation, uniform health and safety standards are being uniformly applied. *The climate of health and safety consciousness generated by OSHA has stimulated exciting new research into the causes and preventions of occupational accidents and diseases. eThe broad coverage of OSHA and the universal threat of inspections have had a salutory effect: spending for health and safety research has risen dramatically. *The Act and the regulations have provided a "floor" for labormanagement bargaining on issues of occupational health and safety. Safety committees at the plant level have undergone a revitalization. eThe heightened awareness of occupational hazards, and the worker's right to a safe and healthful workplace have created a basis for more significant labor-management cooperation. eIn industries with a history of concern for worker health and safety, and in those which have been closely regulated, the uniform coverage provided by the Act has resulted in significant increases in employee productivity."

The extent of the Act's success can only be determined after the collection and analysis of considerable data. OSHA will be the subject of substantial scrutiny in the years to come, even as it becomes more accepted and less controversial. This is as it should be. The data, the OSH Administration's policies and procedures, and the basic tenets of the Act itself should be the subjects of constant review. Hopefully, those future reviews will declare OSHA a progressive and inspired piece of legislation. 1, E.g., Consolidated Edison of New York and the St. Regis Paper Company have estimated that employee productivity has increased by 14-15% because of the Act.

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