In August of 1990, I drove from my hometown in the Detroit suburbs to interview for a job at OSHA headquarters (HQ) in Washington, DC. I had never worked for a federal agency, let alone an important one like OSHA. I was eager to show my prospective boss that I was interested in worker health and safety. (Even though my Republican father considered OSHA a four-letter word.)
To prepare for my interview with Ms. Ruth Knight and Mr. Frank Frodyma, I searched all the federal depository libraries in southeastern Michigan for any collections of GAO reports on OSHA. In those pre-Internet days, these reports were hard to find. I was only able to locate one (in the Wayne State University Labor Studies program collection); it was a report assessing the accuracy of employer injury and illness records. (HRD-89-23, December 30, 1988.)
At some opportune time during my interview with Ms. Ruth Knight, I mentioned that I had read the GAO report about employer records of injuries. She seemed impressed and proceeded to tell me that it was her exact office that was responsible for coordinating with GAO on their studies. Ms. Knight also mentioned that GAO had been engaged recently in a special effort that involved a survey of OSHA’s inspectors. (She called them CSHO’s (compliance safety and health officers.) It was the first time I heard that term; it didn’t appear in the 1988 GAO report I’d read.) She told me that if I was hired (not a sure thing because there was a huge budget battle going on that year,) I would probably have an opportunity to sit in, with more seasoned staff in the office, on an opening or closing meeting with GAO. (Wow! I thought to myself.) The weeks passed, the months passed, and finally I heard from OSHA’s human resources office that I was selected for the job. Start date: mid-January 1991. Bye-bye Mayor Coleman Young. Hello Mayor Marion Barry.
On my first day, Mr. Phil Beck (who I believe is still working at OSHA!) suggested I read two newly released GAO reports (at the time, they had those bright blue covers):
- Occupational Safety & Health: Options for Improving Safety and Health in the Workplace (HRD-90-66BR) August 24, 1990
- Occupational Safety & Health: Inspectors’ Opinions on Improving OSHA Effectiveness (HRD-91-9FS) November 14, 1990
I learned a lot digesting both documents, but was really fascinated by the one offering the inspectors’ point of view. Under the heading: “Inspectors want authority to immediately remedy cases of imminent danger,” the report noted:
“Of the inspectors [surveyed], 53 percent strongly believe that they should be allowed to shut down operations in cases of imminent danger without having to obtain a court order first.”
Looking back at the report, the data on page 24 actually indicates that about 80% of inspectors “agreed” or “strongly agreed” with the need to have shut-down authority for imminent danger situations. The report goes on:
Some inspectors comments reflected a belief that the process of obtaining a court order in an imminent danger case is very slow and does not provide an effective remedy for exposed workers, for example:
“It is important that the [inspector] have the authority to stop work in an imminent danger situation. The time period required to get a court order exposes employees to the hazards for extended periods of time, which is unacceptable. In that, someone may die or be exposed to level of materials which may cause long-term damage.”
“We estimate that compliance officers found about 2,130 instances where they believe it was necessary to remove workers because of imminent danger cases in fiscal year 1988. Of these compliance officers, we estimate that 10 percent believe workers were, on average, exposed to imminent danger for over 8 hours. Generally, inspectors believe they are adequately prepared to identify cases of imminent danger.”
Although I was new to the OH&S world, I quickly learned that our nation’s worker H&S advocates, Peg Seminario, Mike Wright, and Frank Mirer— individuals I had not yet had the privilege to meet—strongly endorsed giving OSHA inspectors shut-down power. When Congressman Bill Ford (D-MI) and Senator Ted Kennedy (D-MA) introduced legislation in 1991 to strengthen the OSH Act, (102nd Congress: HR 3160, S.1622) they included this exact new authority.
At one of the congressional hearings on key provisions of the comprehensive OSHA reform legislation, the Steelworkers’ Mike Wright discussed a case in which OSHA sought a court order for a health hazard. He noted that it took OSHA more than a month from the time the imminent danger was discovered until the court papers were filed by the Solicitor’s Office. During that time, workers continued to be exposed to the health-harming agent. When the judge finally saw the paperwork and evidence, he agreed it was indeed an imminent danger.
It was obvious to me back in 1991 that any reasonable person who has workers’ lives, limbs and health are at the very top of their priority list, recognizes that OSHA’s expert field staff needed the authority to protect workers from imminent danger hazards.
…Fast Forward to 2010…
On March 16, the Subcommitte on Workforce Protections of the House Ed & Labor Committee held a hearing on HR 2067, Protecting America’s Workers Act. OSHA’s new asst. secretary, David Michaels, testified at the hearing which focused on modernizing OSHA penalties. At one point in the hearing, Congressman Tim Bishop (D-NY) engaged OSHA officials in an exchange about imminent danger shutdown authority. The colloquy between OSHA’s chief of enforcement, Rich Fairfax, and the congressman illustrates a troubling (and probably longstanding) disconnect between the perception (and perspective of) OSHA’s senior staff in Washington, DC and reality for OSHA’s front-line experts in the field. Read for yourself:
Congressman Tim Bishop:
Last April I introduced a bill H.R. 2199 called the Protecting Workers in Imminent Danger. If passed it would give OSHA the authority to immediately shut down a worksite in the event of imminent danger to workers’ health or safety. As I understand it, that is authority that MSHA currently has that authority, the NYC version of OSHA has and, so my question is has OSHA, this is to Mr. Michaels, has OSHA ever considered implementing such authority, if such authority were to be legislatively granted, how would OSHA respond to that?
OSHA Asst. Secretary Michaels:
Congressman Bishop, I am familiar with your bill, the Administration doesn’t yet have a position, but we do look at these issues very seriously. As you know we do not have the authority to shut down a job. The Mine Safety and Health Adminstration’s authority is a phone call If they get a report that a certain condition exists they can get on the phone call, they can call the mine operator. The job must be shut down even before the mine inspector gets there. OSHA has nothing at all comparable to that. And we would look forward to working closely with you to look at this bill. We would look forward to work very closely with you.
Congressman Tim Bishop:
I would hope that we’d get some bipartisan support on this. I was interested to hear Rep. Kline [R-MN] in his opening comments talk about the value of being proactive and preventing injuries before they occur as opposed to punishing employers when injuries do occur. So I would hope we would get some bipartisan support. Could you, Secretary Michaels, just sort of walk us through current OSHA procedures when a worksite shows evidence of imminent danger to the workers?
OSHA Asst. Secretary Michaels:
Our inspector. I think actually, perhaps Mr. Fairfax here. Our chief of enforcement is here. Join me up here [Mr. Fairfax] he can probably address this much more clearly than I can.
Mr. Richard Fairfax:
Thank you. When our inspector’s on-site and we run into an imminent danger or we receive a call we investigate. The first thing we do is raise the issue with the employer and ask them to fix it immediately. If they decline or don’t take any action than what we’ll do, we’ll post what’s called an imminent danger notice, make contacts with the workers and ask them to move away from the area. So, you post an imminent danger notice and if that still doesn’t work, then we go back with our attorneys and we seek a temporary restraining order against the …”
Chairwoman Lynn Woolsey: “Would the gentleman yield for a minute. Please state your name for the record.”
Mr. Richard Fairfax: “I’m sorry. Richard Faifax. I’m the director of enforcement programs for OSHA.”
Chairwoman Lynn Woolsey: “Thank you very much.”
Congressman Tim Bishop:
If I may Madam Chair. [Question directed to Mr. Richard Fairfax] could you estimate the sort of elapsed time from the time that OSHA first becomes aware of what a reasonable person, people would consider to be an imminent danger to the point where you would seek a court order to shut down a workplace.
Mr. Richard Fairfax: “We actually accomplish it in about an hour maybe an hour-and-a-half.”
Congressman Tim Bishop: “Really???”
Mr. Richard Fairfax: “Yes. That’s just if everything’s perfect and we can get a hold of the judge.”
Congressman Tim Bishop: “And when things aren’t perfect?”
Mr. Richard Fairfax: “It takes 2-3 hours.”
Congressman Tim Bishop: “You can get it done in a day?”
Mr. Richard Fairfax:
We take this very, very seriously. If we have information pointing to that, we respond and work with our attorneys and get a judge right away.
I’m happy to hear that OSHA’s senior HQ officials live in such a perfect world. Too bad our nation’s workers don’t, nor do the OSHA field staff. Some sent comments to me about this exchange between Cong. Bishop and Mr. Fairfax. Here’s just one example of a CSHO’s reality:
“We can’t even get SOL to return a phone call in 2 to 3 hours, let alone get a court order. In an optimal situation, we may be able to get one in 2 days but it’s usually more like 1 to 2 weeks. Normally, the SOL tries to talk us out of posting an imminent danger; they would rather we try and work it out with an employer; however, an imminent danger situation is not normally cooperative.”
Truth be told, I nearly fell off my chair when I heard Mr. Fairfax paint such a rosy picture. As long as I been in this town and involved in worker health and safety, I can’t recall a single worker advocate suggest that giving CSHOs imminent danger shut down authority is unnecessary. No way. I may have heard it from business trade associations, industry lawyers, or corporate interests, and I probably heard it from GW Bush administration officials or their lackeys, but never from worker H&S advocates.
After nearly falling off my chair, I felt like calling Cong. Bishop’s office and apologizing for what he heard from OSHA. The congressman has it right, and his legislation is needed. He learned of this particular deficiency in the OSH Act this way, as retold by Joel Shufro of NYCOSH:
Cong. Bishop got the idea that this was a problem listening to testimony at the hearing where New York City (NYC) Building Commissioner Robert LiMandra talked about how NYC building inspectors were given the ability to shut down scaffolding jobs where there were imminent danger situations. The congressman was stunned that OSHA inspectors could not do the same and wanted to introduce legislation on the issue. NYCOSH staff met with the congressman to discuss the issue. He asked us whether we thought it would be a good idea to give the same powers to OSHA inspectors, and we said “yes.”
I respectfully suggest to Cong. Bishop’s staff, that if their boss wants to know what OSHA inspectors and supervisors experience in the real world as they work to identify workplace hazards and enforce H&S protections, he may want to contact these inspectors directly. On some topics, he will likely hear quite a different story than what he hears from OSHA’s HQ. As many labor activists know, the tales told by management often don’t resemble the words of front-line workers.