Hard Days for OSHA

IN THE LAST weeks of 1970, Congress created a new governmental agency, the Occupational Safety and Health Administration (OSHA). OSHA was charged with the task of safeguarding the lives and health of over 63 million American workers. In signing the bill into law, President Nixon called it "an example of the American system at its best." In the years since its establishment, however, OSHA has been a major disappointment to many of its original backers. In a 1974 interview, Sen. Harrison Williams (D-N.J.), then chairman of the Senate Labor and Public Welfare subcommittee and one of the co-sponsors of the bill establishing OSHA, characterized the agency as "fumbling, bumbling; the number one administration bungle."

Prior to the establishment of OSHA, most American workers were protected against hazardous working conditions only by state and local laws. During the Johnson Administration, several studies were published that highlighted the general inadequacy of and lack of uniformity among the various state standards. To remedy this situation, the Johnson Administration proposed a federal agency to promulgate and enforce a set of health and safety standards. The idea ran into strong business opposition however, and no legislation emerged.

The proposal was revived after Nixon took office in 1969, and in 1970 was passed. This bill, however, differed significantly from the original proposal, which, strongly supported by the AFL-CIO, had given the Secretary of Labor the authority to shut down immediately any plant presenting an imminent danger to employee health and safety. The Nixon Administration proposal, supported by the U.S. Chamber of Commerce, required OSHA to obtain a court injunction to shut down a plant, and hence virtually eliminated the possibility of effective, immediate preventive action in emergency cases. Also, the fines that could be levied for violations of the OSHA standards were smaller in the Administration bill than in the labor-supported bill.

Finally, OSHA was directed to encourage the states to operate their own safety plans as long as their standards were at least as effective as OSHA's. State plans approved by OSHA were to then receive 50 per cent of their funding from OSHA. Labor unions were particularly opposed to these last provisions; they feared that state administration would result in a return to the conditions that had necessitated the creation of a federal agency in the first place.

OSHA AS ESTABLISHED still might have served fairly and effectively to protect the workers for whose lives and health it was responsible. OSHA inspectors were empowered to visit workplaces without prior notice, making inspections in the event of an accident, the filing of a valid worker complaint, or at random. For each violation found, inspectors were required to hand out a citation, which was to be posted for three days or until the violation was corrected. For each citation issued, the inspector was required to propose a penalty (up to $1000 for non-willful violations) to be paid by the employer.

Employers, in turn, could appeal OSHA rulings to an independent, three-member Occupational Safety and Health Review Commission (OSHRC), appeal for exemptions from specific health and safety standards (upon demonstration of equally effective systems or procedures), and, if they qualified as small businessmen, apply to the Small Business Administration for longterm loans to offset financial problems resulting from efforts to comply with the OSHA standards. Finally, the legislation established the National Institute of Occupational Safety (NIOSH) within the department of Health, Education, and Welfare, to perform the research necessary to develop adequate OSHA standards.

Unfortunately, OSHA soon found itself hamstrung due to a lack of vigorous political and financial support on the part of both Congress and the Nixon Administration. In the period prior to August, 1974, over one hundred bills amending the original OSHA act were introduced in the House and the Senate. Most would have curbed the agency's enforcement authority; some would have gutted it entirely. Furthermore, in line with the Nixon Administration's attempts to reduce the size and cost of HEW and other federal social welfare programs, OSHA and NIOSH received only small increases in their original, inadequate funding levels.

Most of the opposition to OSHA reflected business's dissatisfaction with the results of the original bill. Spokesmen for the U.S. Chamber of Commerce accused OSHA of promulgating many irrational, unnecessary standards which were related only peripherally, if at all, to occupational health and safety. Compliance with the standards, business representatives claimed, would result in increased unemployment as small firms were driven out of business by the high costs of conforming to OSHA guidelines.

A few of the standards OSHA promulgated were probably unnecessary--there was one provision which regulated the height of toilet seats--but the business community overstated its case. As of July 8, 1974, no company had been forced out of business as a result of OSHA regulations. Furthermore, the average actual per violation fine incurred by employers has been less than $26. Most importantly, both National Safety Council and OSHA statistics show that small and medium-sized firms have the highest accident rates of all business, implying that such firms are perhaps those most in need of regulation.

There is also some evidence that at least one OSHA administrator saw the political advantages in lax enforcement of legislation. In a June 14, 1972 memo to then Labor Undersecretary Laurence H. Silberman (released by the Senate Watergate Committee in July, 1974), OSHA administrator George C. Guenther said that during the 1972 campaign period "no highly controversial standards....will be proposed by OSHA or NIOSH..."

While I have discussed with Lee Nunn (of the Finance Committee for the Re-Election of the President), the great potential of OSHA as a sales point for fund-raising and general support by employers, I do not believe the full potential of this appeal is fully recognized. Your suggestions as to how to promote the advantages of four more years of properly managed OSHA would be appreciated.

Both Silberman and Guenther claim that none of the suggestions in the memo were carried out; their statement was challenged by the Ralph Nader-affiliated Health Research group. Whether or not the Health Research Group's accusations are true, the fact that a relatively high-level OSHA official viewed his agency as a political tool suggests that some of OSHA's problems are due to a lack of commitment within the agency to the spirit of the original legislation.

Thus in its first five years of existence OSHA has been hampered by shortages of money and manpower, and, perhaps, administrative sabotage.

WHAT, THEN, should be done?

First, Congress and the President should give OSHA a clear mandate to perform its assigned task--and back up this political endorsement with increased financial support. Secondly, OSHA should undergo a thorough administrative housecleaning. Third, NIOSH funding should be increased so that safe exposure standards can be developed for potentially toxic substances used in industry.

Such steps would be expensive in the short run but would undoubtedly pay off in the long term. In his recently published study of occupational health and safety hazards, Crisis in the Workplace, Nicholas Ashford writes that:

...research in the U.K. indicates that more than 80 per cent of cancer is of environmental origin and therefore, theoretically, is preventable...The total cost of occupational hazards--in terms of lost wages, medical expenses, insurance claims, productions delays, lost time of co-workers and equipment damage--was estimated by the National Safety Council at $15 billion during 1974--approximately one per cent of the GNP. This figure, moreover, is likely to be a gross understatement of even the direct costs to the GNP of both occupational injuries and illness.

OSHA's 1976 budget appropriation is $115 million, and the figure for occupational safety and health research is only $34 million. Both are certainly a far cry from the $15 billion which it is estimated an adequate program could save annually.

President Ford recently indicated his dissatisfaction with OSHA and it seems unlikely that Ford's re-election would result in an increased federal emphasis on improving occupational health and safety. None of the other declared candidates has emphasized occupational health and safety as an issue either. It seems safe to say that barring a change of address for Ford or a sudden awakening on the part of his opponents, OSHA will remain an example not of the "American systems at its best," but of business--and politics--as usual.