ADVISORY COMMITTEE
ON
CONSTRUCTION SAFETY AND HEALTH
(ACCSH)
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
U.S. DEPARTMENT OF LABOR
Thursday, March 14, 1997
Department of Labor
Francis Perkins Building
200 Constitution Avenue, N.W.
Room S4215 A,B,C
Washington, D.C. 20210
The above-entitled matter came on for meeting, pursuant to notice, at 9:00 a.m.
APPEARANCES:
Presiding Official:
Knut Ringen, Chairman
Speakers:
Greg Watchman
Rod Wolford
Attendees:
Employee Representatives:
Stephen D. Cooper
William C. Rhoten
William J. Smith
Lauren J. Sugarman
Employer Representatives:
Stewart Burkhammer
Stephen Cloutier
Bernice K. Jenkins
Robert Masterson
Owen Smith
State Representative:
Harry Payne
Public Representatives:
Ana Maria Osorio, MD
Judy A. Paul
Federal Representative:
Diane D. Porter
Committee Contacts:
Bruce Swanson
Stephen Jones
I N D E X
SPEAKER:
PAGE:
Greg Watchman, Acting Assistant Secretary
226
Rod Wolford
266
P R O C E E D I N G S
CHAIRMAN RINGEN: Good morning. I'd like to get started again, and start on a
little bit more of an upbeat note than yesterday, maybe. The -- I have
here the BLS Annual Survey that came out yesterday that I'd like to hand out and
simply note that the rate for a lost workday case is -- with days away
from work, which I think is the best indicator that we have, continued to
decline in between 1994 and 1995, declined from 4.9 to 4.2. That's close to a 15
percent reduction, and it's the fifth straight year that we've seen declines in
the lost-time injury rate in our industry after about 20 or so years with
stagnant or increasing rates. Since 1990 these lost-time rates have declined by
close to 30 percent, which is a remarkable decline and you could argue about, of
course, the quality of these data. The Annual Survey isn't great, but it's the
best we have and probably most of the biases that exist in it have stayed stable
over time. So that -- the trend is probably good. Now, you can also
argue about what causes that trend, and some of the trend in the last couple of
years can probably be ascribed to more stringent requirements in Workers'
Compensation statutes in many states, but a lot of it also has to be
with -- as a result of continuing improvement in safety practices in
the industry. I think this is a pretty significant and good way to start the
day. We have the Acting Assistant Secretary, Greg Watchman, with us and he's
going to tell us why this has happened. And take credit for it, also, won't you,
Mr. -- so welcome this morning.
MR. WATCHMAN: Thank you and good morning. As you know, Secretary Reich and
Acting Secretary Metzler have asked me to serve as Acting Assistant Secretary
until President Clinton nominates a new Assistant Secretary and that person is
confirmed by the Senate. At this point, it's not clear how long that process
will last but I do expect it will take several months from this point. So it may
well be 3 months or even longer before we have a new Assistant Secretary. In the
meantime, I would describe my responsibilities to the Agency, and to the
Department, and to the Administration, really as twofold. First,
obviously, to carry out the mission of the Agency, which is to protect workers
through the promulgation and enforcement of standards. In that regard, I would
note that we did have a substantial in enforcement activity last year due to the
budget uncertainties and cuts we were dealing, due to the shutdowns that we had,
and due to a variety of other things going on at the Agency. I am very hopeful
that our enforcement picture will improve this year as those events have now
passed, and the early indicators from the fourth quarter or so were fairly
positive, showing a significant increase in enforcement activity; but at the
same time I want to make clear the second part of my responsibility is to
continue the implementation of new OSHA programs and initiatives. The White
House remained very, very committed to these, both the Vice President and the
President, and, in fact, I heard the Vice President speak last week at a
conference at the National League of Cities Annual Meeting, and he spent, I'd
say, close to 10 minutes talking about OSHA as one of the models of reinvention.
So the White House and the Administration in general will continue to be looking
to OSHA to change the way we do business. I also think we are changing the way
we do business for the better. We are leveraging our limited resources better to
get, essentially, the biggest bang for the buck in our efforts to provide as
much worker protection as we can for the limited resources we have. We are
broadening our intervention tools to offer more than just enforcement; to offer
compliance assistance, more training, partnerships, local problem solving
efforts, et cetera. We're also trying to instill common sense in both regulatory
policy and enforcement policy. We are also moving the Agency away from a focus
on individual technical violations and more toward systematic focus on ongoing
efforts that will be there both before and after an inspector shows up to
protect workers at those times, not just on the day of an inspection. Lastly,
the new OSHA programs are about results, and we have already started to show, I
think, some very positive early results of some of these programs, and I'll talk
about some of those a little bit in a moment. Ultimately, in the area of
construction, as Knut said, we did get some good news yesterday, significant
decline again in construction injuries, and this marks a very positive trend
that we should all be proud of. You, all of you, contributed to this through
your work, and I think the Agency has contributed as well, and there are also
many employers out there who deserve credit for doing what they can to protect
their workers. At the same time, our job is obviously very far from done.
Construction does remain a very major source of occupational injury, fatality,
and illness. The rate is still over 10 cases per 100 workers, and that is just
unacceptably high. We know that many of these incidents, most of these
incidents, are preventable and we need to do a better job of preventing them.
Construction thus remains a very top priority for the Agency. In our hiring
plans for 1997, and if we get the budget request we have for 1998, we do hope to
do additional hiring. We are in the process of doing hires now for '97, and we
would welcome any people you would want to send to us with construction
expertise to participate in that hiring process. We are looking to improve our
expertise in construction, and we need your help to do that. In our budget, as
you know our budget is currently about $325 million. For 1998, we are seeking a
budget increase of $23 million, which would put us at about 348. That $23
million is split roughly in thirds between built-in increases such as rent
adjustments and cost of living increases; one third for partnership programs,
including cooperative programs, VPP, compliance assistance activities, training,
outreach, and compliance with SUBREFA (phonetic); and then the last third is an
increase in enforcement to improve our ability to respond quickly to complaints
and incidents in the workplace, referrals, and emerging hazards. In the area of
training, I know that a number of you have been concerned and very interested in
our training programs, and seeing more comprehensive training. I've asked Deputy
Assistant Secretary Frank Strasheim to work with the Training Institute to set
up a more comprehensive construction training course. As I understand it, the
courses now are very specific and fairly short. I think it will be useful to
have a comprehensive course that covers a lot of the major issues that are
causing injury, illness, and fatality on construction sites around the country,
and I've asked Frank Strasheim to start working with the Institute to put a
course like that together, and I'd be interested in your thoughts about that as
we get to the Q&A's later. Safety and health programs, I know, is of major
interest to the committee, and first I want to thank all of you very, very much
that you've put into this issue. I've looked at the materials that you prepared
and obviously it reflects a good deal of work and a good deal of thought, and I
want to thank all of you for your work. This area, this subject, safety and
health programs, remains the Agency's top regulatory priority. It probably
should have been the first standard we ever developed, or set of standards we
ever developed. It has the opportunity to protect more workers at more worksites
from more hazards than any other standard we've ever promulgated. We also know
there is a substantial body of evidence that safety and health programs not only
reduce injuries, and illness, and fatalities, but can also cut costs, improve
morale, and raise productivity. We are now working on the core of the regulatory
package that would go into the three different proposals that we currently have.
One of the issues I know you're interested in is are we going to publish three
separate proposals, or one proposal, or something in between. I
think -- I guess I want to make clear to all of you that I recognize
the innate nature of construction worksites, and the innate nature of hazards on
those worksites, and whatever direction we go we need to stick with that
principle and make sure we take full account of it, and reflect those
differences in whatever regulations we come up with. But I think right now we
are trying to reach that decision about whether to issue three separate
proposals or to try to fold in the proposals with a maritime component, and a
construction component, and a general industry component into one proposal. My
thought is that if we did one proposal with different elements, we probably
could do it in a more expeditious fashion than if we do three separate
proposals, and I would very much like your input on that issue before we move
forward. In terms of the timing, our hope is to have a proposal done by the end
of this fiscal year. It's, obviously, a major, major undertaking for us. As I
said, we're well into our first round of assignments and our preparation
materials that are going into the regulatory package, but our goal is to try to
get a proposal done by the end of September. Given the size of this, I can't say
with certainty right now that that's going to happen but we're working towards
that goal right now. A couple of thoughts on enforcement. As I mentioned, we're
looking for a strong rebound in enforcement activity from last year's drop-off
due to the budget uncertainties and shutdowns, et cetera, and the early signs
are positive. So far inspections are up 54 percent over last year, and
violations are up 80 percent over where we were last year at this point.
Ultimately, though, our objective here is abatement of hazards; it's not to rack
up penalties against employers. It's really to get the hazards abated so that
workers are protected, and as we look for models for how to do that, how to
accomplish that, I think one worth mentioning is the Saugus (phonetic) in Boston
where we did cut the fine significantly from, I think, somewhere over 400,000 to
somewhere around 200,000, but in the process we got an agreement that will
protect workers both now and in the future where the company agreed to a full
abatement plan for the hazards we had identified when we inspected, but also to
establish a comprehensive health program for the future, to hire a safety and
health director, and to train workers, and to give OSHA information about future
sites where the company was operating so we have the opportunity to make sure
they were doing what they promised to do. Let me talk for a couple of minutes
about our progress on new OSHA initiatives. First and foremost is our effort to
target the most hazardous workplaces through site-specific data. As you know, we
started in 1995 to develop a system for gathering worksite-specific data that's
going to be useful across the board in all our activities. We've always relied
on industry-wide data for targeting and other purposes, and now for the first
time we have the ability to separate out the good actors and the more dangerous
workplaces within particular industries. We did have a setback with a recent
court decision that invalidated our collection of 1995 data, but we have since
fixed that problem and we are going to be moving ahead shortly to collect the
1996 data and start using it later this year in the CCP programs and a variety
of other Agency initiatives. With regard to CCP's, we now have nine up and
operating around the country. The results have been terrific that we've gotten
so far. In Wisconsin, for example, the average company that participated reduced
its injury and illness rates by close to 30 percent, and when you look at those
numbers it really represents an improvement in the lives, and the health, and
the safety of many, many workers in Wisconsin. In the other 20 federal states we
are currently developing CCP's. Joe put a -- Joe Dear put a hold on
several of these programs before he left to enable us to work more closely with
stakeholders who had a number of concerns about the programs. Ultimately we are
in the process of developing some more uniform criteria for CCP's and then we're
going to have another round of stakeholder discussions in the states so that by
the time we get the 1996 data later this year in several months, we'll be ready
to plug that data in and move forward quickly with the other CCP programs in
those other 20 states. We're also doing a lot of local problem solving
initiatives around the country, out of regions and out of area offices. A couple
worth mentioning are the Cowtown Project in Fort Worth, where the average
employer in that project reduced illness and injury rates by 60 percent, again,
a very, very promising early result. Also in Kansas, there was an effort to
reduce fatalities in the oil and gas industry. They've averaged about four
fatalities a year in Kansas in that industry. Most recently they cut that number
to zero through this partnership program. Again, a number of workers had their
lives -- owe their lives to this initiative, and it's really very
promising for the future. Briefly on national emphasis programs, as you know we
have four going right now: silica, nursing homes, and mechanical power presses
are three. A fourth is lead in construction, which was begun in March of 1996,
and as of the end of the calendar year '96 we had done about 130 or 140
inspections, and that number, I'm sure, is up since then. On our penalty policy,
we are -- actually, I'll be hearing today on the progress of our
pilot, in which we've been using that new penalty system to figure out if it's
working, if it needs some adjustments, if so, what they are, and our hope is to
be ready in 2 or 3 months to start implementing this policy around the country.
The principal components of it today are an increase in the small business
penalty reduction of up to 80 percent for the smallest businesses; an increase
in the good-faith penalty reduction of up to 80 percent for having an effective
safety and health program; and a 15 percent reduction for immediate abatement of
hazards. In our efforts under the new OSHA to treat responsible employers
differently from less responsible ones, we have to make sure at the same time
we've got the cooperative programs, that we also have serious consequences for
serious violators. This year so far, we've had 81 significant
cases -- those typically involve the penalty of $100,000 or
more -- and 7 egregious cases so far. Those numbers are putting us on
track to exceed last year's performance. In fact, we already have more egregious
cases this year than we did last year. So I think we're rebounding in
enforcement activity and we're continuing to improve our targeting to get to
those worst workplaces and find those workers that really need our protection
the most. Let me talk briefly about standards now. First, the themes of new OSHA
programs regarding regulatory activity: first, to instill common sense in our
rule making and in our rules themselves; second, to involve stakeholders to a
much greater degree in the process of drafting rules, not just sending them out
once we're done with the process; third, to focus on the real impact that these
regs will have on workers and on employers around the country, especially small
employers, as is the case with so many employers in the construction industry;
fourth, to use formal negotiated rule making where we can where there's a fairly
narrow group of interests that are affected, as we did in steel erection; and,
fifth, to try to reach consensus to the extent we can, where we're not using
formal negotiated to use informal consensus building techniques so that our
rules, even if they're not formal neg-regs, reflect as much consensus among the
regulated community as possible. We're also trying to rewrite our existing
regulations in plain language. We've got about six projects underway right now
and we're seeking more money in our budget request for 1998 to expand that
process. As you probably know, there are about 600 pages of 6A regs that we
still have on the books and we'd like to try to complete that process of
rewriting those as quickly as we can. Lastly, we are exploring non-regulatory
approaches where we can. Not every problem needs a regulatory solution, and some
are better suited to a non-regulatory approach. One example of that is a recent
agreement we struck with the asphalt paver manufacturers. We worked together
with them on an agreement under which they voluntarily agreed to modify all new
asphalt pavers as of July 1, I believe, so that they all have appropriate
engineering controls to protect workers from asphalt fumes. Again, this is the
kind of partnership agreement that reflects, I think, the best of reinvention
and the best of new OSHA, where we're working together in a responsible way with
employers and workers to make sure that the job gets done. Let me touch on
several particular rules that you may be interested in on ergonomics. Secretary
Reich announced in December a four-part strategy of dealing with the issue of
musculoskeletal disorders. That strategy includes, one, outreach and education.
We started that first prong off with a conference in Chicago in January attended
by over 1,000 people and we heard a variety of excellent case studies from
employers and workers about ergonomics programs that have not only reduced
injuries but have also saved money for the employer as well. Second prong is
research. We're working with NIOSH to improve our scientific knowledge and
review all the recent studies that have been done in the last couple of years
linking work conditions to repetitive-stress injuries. Third, we are looking for
appropriate enforcement cases under the General Duty clause; and
fifth -- fourth, we are developing a protective standard on
ergonomics. With regard to the Rule, let me say a couple of things. First, we
are currently looking to narrow the scope of the Rule, to target it at the most
hazardous workplaces in terms of musculoskeletal disorders, and also where the
solutions are known; and the conference went a long way towards helping us
identify solutions that are known to be effective and have been proved to be
effective in a variety of situations. On methylene chloride, as you know we
issued the standard published in the Federal Register on January 10.
There have since been three lawsuits filed and, in addition, there is a
potential challenge on Capitol Hill where Congressman Wicker has introduced a
joint -- or has indicated his intent to introduce a joint resolution
of disapproval. Ultimately, I believe the standard will be upheld, whether it's
in the courts or by the Congress. This is a standard that's very necessary to
protect the quarter of a million workers that are exposed to methylene chloride
in their jobs. In the next several months, you'll be seeing regulatory action on
a variety of issues. Let me list them. Abatement verification should be out
shortly. Longshoring should be out in the next, I would say, 4 weeks.
Tuberculosis, we hope to get out in the next 4 to 6 weeks. Confined spaces
rescue and the PSM reopening also should be out within the next couple of
months. In addition, some major projects we're continuing work on are record
keeping, and respirators, and IAQ. All of these are significant priorities for
the Agency and we are working hard on them. Lastly, I want to tell you about the
reinvention activities in the regulatory arena that we're undertaking.
Obviously, you're aware of a lot of the reinvention programs we've started in
the enforcement arena, but we have now started a project in the regulatory arena
that's to improve the process by which we develop standards. We've established a
team called "SPIT," which stands for Standards Process Improvement
Team. I've challenged the team to come up with a better name but so far they
haven't. And we picked three pilot projects in our standards agenda to try some
new process improvements to see if we can't reach a more timely resolution of
issues to draft a regulation and come up with a quality, a higher quality,
product earlier in that process. The three projects we're working on are PELLS
(phonetic), confined spaces in construction, and a plain language rewrite of
hand and portable power tools. The goal of these pilots is to have short-term
progress, short-term milestones, made in the next 9 to 12 months. So that's the
way they're being set up, and, again, I'd welcome your input on that process as
well. A couple of other issues I'd like to mention before we deal with some
questions. One is GPRA. This is a federal statute, relatively new, several years
old. It's really designed to look at what the Government is spending for certain
purposes and what they're getting for those dollars as a result of that
spending. It's a very logical, orderly, common-sense way to focus on the
effectiveness of Government programs and the use we're making of taxpayer
dollars. In our area what we're looking for is identifying what's causing
injuries, and illnesses, and fatalities in the workplace; targeting those major
problems for the bulk of our resources; and then measuring at the end of the day
what results we've achieved in those areas, not just in reducing injury, and
illness, and fatality rates, but also in what I would call secondary indicators
such as hazards identified and corrected, safety and health programs
implemented, and a variety of other measurement tools that do have a direct
impact on the safety and health of working people. We are working on a strategic
plan now as part of our compliance with GPRA. That plan will be due as a final
plan on -- at the end of September, 1997, and we're currently drafting
a plan that ties together our goals and objectives for this year and for several
years to come, as well as our budget and the performance measures that we're
developing. On DOE issues, as you probably know, several years ago Secretary
O'Leary expressed interest in transferring safety and health jurisdiction at
Government-owned, contracted, or operated facilities to OSHA and to the Nuclear
Regulatory Commission. We've since seen three reports in the last year or so on
the question of transferring this jurisdiction. Most recently the National
Association of Public Administration prepared study that recommended the
transfer but said it should not happen unless OSHA is given adequate resources
by Congress in order to carry out these responsibilities. So we are now working
inside the Administration to have discussions about how this might occur; should
it occur; when it could occur; and what kind of resources, and planning, and
time should be put into that process. Lastly, I will just say some have asked me
am I just serving as a caretaker until a new Assistant Secretary comes in; will
the Agency be, essentially, running on idle during this time? And I've done
everything I can, I think, to try to make clear that the answer to that question
is no. American workers are suffering injuries, and illness, and fatality across
this country. They're getting no break from the hazards that they face every
day. OSHA cannot afford to take a break, either, so we are moving ahead fully
with full speed both on our standards and enforcement activities as well as on
new OSHA programs. Thank you.
CHAIRMAN RINGEN: Thank you very much. Questions? Got a good piece
of --
MS. JENKINS: Greg, thank you for coming and early in your comments I heard
you discuss three components in the safety and health programs. Will there be
one standard for construction?
MR. WATCHMAN: That's really the issue, as I mentioned, that we're still
considering and we would like your input on. I certainly, as I said, recognize
that there are unique aspects to construction that, at a minimum, if we went the
way of one standard that had three different elements to it, we would need to
recognize some of the unique aspects of construction and to build on the work
that you folks have already done. As I see it, there are a number of issues here
to be considered in that decision. One of the main ones is how quickly can we
get three proposals out. It might -- it may be quite a bit more
expeditious if we combine them into one proposal but still have separate
elements for maritime construction so that we can fully take account for the
differences that you folks have identified.
MS. JENKINS: Well, being we're so unique I think we all would rather see a
separate standard for construction, and did the Agency consider the seven
proposals given early on by the various contractors and sub-contractors?
MR. WATCHMAN: Yeah, yeah, I mean, we're -- we are looking at all of
the different materials that we've gotten. I know that ABC prepared a proposal
as well that we've got, and we're willing to look at anything anyone has sent us
or wants to send us now. The books are not closed on this. We're continuing to
work on it, and we're now trying to prepare the, essentially, the core elements
of the regulatory package, demonstrated significant risk, looking at economic
analyses, talking about a variety of other issues that we have to meet our
statutory criteria, SUBREFA issues, as well. They really cut across all three
areas. I guess the danger in doing three different standards is that, again, it
may cost us some time in getting them out, but, you know,
that's -- I'm interested in all of your views here today. So please
let me know.
MR. RINGEN: I think Judy Paul has been chairperson of the working group
that's dealt with this here, and done a very good job of it for the conference.
MS. PAUL: Thank you. I was -- I'll be giving my report from the
Tuesday meeting in probably about an hour, so let me just tell
you -- read a couple of parts of it, if you'll bear with me, and we've
said that we -- in August of last year, a little background, this
group, ACCSH, voted on and recommended a draft that we had put together over a 2
1/2 year period specific to construction, and when you talk about work group
meetings of 20 and 30 being large, we dealt with 50 and 60. We had a lot of
stakeholder involvement. People worked hard, they worked well, we still spoke to
each other in the elevators afterwards. So it was a good experience. So we came
up with a document nobody jumped up and down about, but we came up with one.
This group recommended it last August. Have no idea what's
done -- what's happened to it since then. I can tell you that at the
meeting Tuesday, that the document that was recommended by the full ACCSH,
or passed forward, voted on, was -- had been integrated at my request
into -- at ACCSH's request, actually, integrated with Subpart C, and
we took a look at that, and we compared that document to the General Industry
document, and it didn't work; and what I wrote for the report is that
"after reviewing the ACCSH recommendation and the General Industry draft,
parties representing management and labor stated strongly that the construction
industry must have an industry-specific version of a safety and health
management standard." Some language -- a good deal of language
used in the General Industry draft is used differently and doesn't apply at all
to construction, not phrases we use. You know, it just
simply -- there's no fit. There's no fit. And I chuckle, having been
in construction a long time myself, I chuckle at people saying that construction
doesn't fit with general industry. I say the other way around, general industry
doesn't fit with construction. So it doesn't fit for us, and some of our
concerns have been in the past that for two -- for about a year, a
year and a half, we were a workgroup, and we met, and nothing happened because
we have no assigned personnel to do -- to work on this within OSHA, to
lend us hands and get us going. Finally, we got the word as a workgroup that
OSHA was, in fact, very interested in going forward with this, so we wrote one
and we began having meetings on what we wrote, and it wasn't the greatest thing
in the world but we wrote it, we went forward, we tweaked it, and we got it out.
We even voted on it by August of last year. General Industry just got around to
putting it out, and we did all this with one OSHA staff person, one person
lending us a hand. So I would say that construction has gone a long way since
setting -- for setting the tone for safety and health programs at all,
and certainly I have to wonder after being told that safety and health programs
have been on the docket for a long time, for several years, in fact, what would
have happened -- would general industry never have gotten around to it
had we not got busy and done it? I mean, it's a -- you know, I don't
live in Washington, so I don't know how to play the game, but I, you know, I
have to really --
CHAIRMAN RINGEN: Yes, you do. You live in Washington State.
MS. PAUL: Oh, well, Washington State. But I do have to reiterate that the way
things stand right now with the document that we're looking at, and all of us
have been looking at, that we worked on and the general industry standard,
there's no fit there. You know, and I think that my colleagues would agree.
MR. WATCHMAN: I guess I would agree in part and maybe disagree to some
extent. I think there -- actually, I've read both versions, the
general industry and compared it to the construction version that you folks put
together, and to me, I see a lot of very common elements. I think the core
elements do fit. I think training is important in construction just as it is
important in general industry; management commitment is important; employee
participation is important; finding and fixing hazards is important; and
evaluating your program periodically to see if it's working is also important.
Those are the five core elements in the general industry standard, and I think
they would be seen as important as well on the construction side. What I see as
different and would agree with you about is that the format was quite different
of the two proposals. A lot of the language was different, as you mentioned, and
there are some particular, unique aspects of construction that are obviously
reflected in your version that are not reflected in general industry. I don't
think the question of format should be a reason to say, "Oh, these are
different and we can't reconcile them." We do need to coordinate them. I
don't see that as an impossible task by any means, and I want to try to respect
the work that you have done, both because you've put in a lot of work and given
it some good thought, and that you've brought a lot of experience to it; but
also because we're trying to develop rules that are as consensus-based as
possible, and the work that you have done, I think, is a good, healthy start
towards consensus in the workgroups that you held and all those stakeholders
that participated in that process. So I think that we can have standards that
are compatible and consistent that protect those core elements but that differ,
maybe, in format, language, and other ways to reflect the unique aspects of
construction.
MR. OWEN SMITH: I have a question. With respect to this consensus, ACCSH has
a proposal and then there were several other proposals. Will OSHA take a look at
all of them to try and get a blend?
MR. WATCHMAN: Yeah, we're really looking at everything that anybody wants to
send us right now, but obviously the work that you folks did has, I would say,
some emphasis behind it because you are our formal advisory committee, and you
all have had a formal process that involved a variety of stakeholders with a
variety of viewpoints. So it's you -- I don't see your work as
representing one party's view, but rather representing the views of a host of
parties that are affected by a potential rule. So we'll certainly be looking
most closely at the ACCSH version but I want to emphasize that we are looking at
the other version that other folks have given us, including the ABC draft.
MR. OWEN SMITH: I have another question. You have said that OSHA was going to
be a lot friendlier, I believe, something along those lines. If
you -- if OSHA visits a job site and they find everything going well
except that there may be some deficiencies in the record keeping, will they
issue a citation?
MR. WATCHMAN: It really depends, probably, on what the deficiencies are. I
would say two things. First, we issued a compliance directive a few months ago
to minimize any citations for violations of paperwork requirements that did not
have an impact on safety and health. So, for example, if an employer forgets to
sign the injury log or doesn't have the injury log that there are no injuries
for the year, we're not going to issue a citation in those circumstances. There
are instances of record keeping violations that are quite serious when employers
fail to record significant and serious injuries that are occurring at their
workplace. It's impossible to protect workers in the future if you don't know
what's happening to them in the present, so record keeping is important and
there are instances when a penalty and a citation are appropriate. At the same
time, I think your example, assumed that the employer was generally doing the
right thing. If we come to a construction worksite and we find that an employer
has an effective safety and health program, even though there may be some
additional violations there, first, we're going to do a focused inspection
rather than a wall-to-wall, and second, if we do find violations, that employer
will be eligible under the new penalty system for a reduction of up to 80
percent just for having an effective program. So penalty reductions will be seen
and are quite substantial in that case.
MR. OWEN SMITH: I have another question. Generally speaking, if there's a
fatality and OSHA makes an inspection, I think they're going to write a money
violation. If you encounter that situation and the employer appears to be in
compliance, I mean, they have the program, they've got the safety people around,
and this is just an accident, will you continue to write those kind of
violations for money penalties?
MR. WATCHMAN: No, in fact, this is, I think, a little-known fact, or not
well-known at least, that our in-compliance rate is somewhere between 25 and 30
percent, I believe, where, again, 25 or 30 percent of the inspections we
conduct, we find no violations, and many of those inspections are where injuries
have occurred or even a fatality potentially. Sometimes incidents happen despite
the fact that the employer is complying with the regulation. We can't prevent
every, single injury, or fatality, or illness in the workplace, but we certainly
can try to prevent the majority of them.
CHAIRMAN RINGEN: This Steve was next then the other Steve.
MR. COOPER: Hi, Greg, my name is Steve Cooper. I'm sure you were warned
before you come to speak before us this morning about this committee and their
concerns about anything that has to do with construction not coming before this
committee so we can advise you. I want to bring up that -- that's
alive and well. Yesterday we had this gentleman from the Solicitor's office come
in and all -- saying that on -- time standard,
that -- and he was -- looked forward into to the other areas
outside of general industry where this standard might
apply -- although it more than likely would never apply to
construction there was a possibility that construction could take place in this
manufacturing operation, therefore they arbitrarily dumped the standard into the
construction industry, which, to him, he thought he was -- had a good
deal there. My -- the gentleman on my right didn't think it was such a
good deal and reprimanded -- which is good because they deserve it
most of the time. However, I would like to point out one thing. Over the last
many years, OSHA didn't have much of a construction office. It's scattered. You
now have, thanks to people that have preceded you and under your direction, a
directorate which is operating very, very well.
MR. WATCHMAN: Um-hum.
MR. COOPER: And it has good direction. You've got some excellent staff that
is sitting behind you. Of course, some of them -- than we had before.
The question that Owen just brought up a moment ago, I think that there is a
much more moxy OSHA than there was over the past decades, and who are much more
cooperative than they were years ago. It is not the fight that's in there. It's
cooperation, and I think a lot of that cooperation has come about, not only in
this Administration, but in the industry. I think we didn't have that type of
thing before -- because we never -- I don't think we ever
had that before. And one question and then I'll be quiet. You mentioned the
reinvention, which is a well-rounded word to be used for anything. There has
been some discussions, I think, internally over the last couple of years about
the regions, and coordinating of one region into another. Is it -- are
you privileged to tell us anything about that issue? I'm talking about the
region named Kansas City -- what's that, the sixth or --
MR. WATCHMAN: Seventh.
MR. COOPER: Seventh. How's that going?
MR. WATCHMAN: There's no plan to merge regions right now.
MR. COOPER: Thank you.
MR. WATCHMAN: You're welcome.
CHAIRMAN RINGEN: Steve?
MR. CLOUTIER: Okay. Greg, I heard you talk about many, many issues, and one
issue that you did not address that I think needs to come back in front of you
is the VPP programs, and what's happened construction side of the house. We
never seem to get it off dead center. A few years ago there was an ACCSH
workgroup here that recommended we get something going. My colleague to the left
was able to come up with a Construction Safety Excellent
Program -- Excellence Program, a demonstration project, a couple of
projects in Florida, and it just kind of died over the last couple of years, and
I strongly feel that there is a window of opportunity where the industry wins,
the workers win, the Department wins, and I would encourage you to light the
fire again and work to -- this program to put in a -- record
in construction, because that's what needs to be. I think Bruce
Swanson -- get it up and get it going again -- many, many
fine projects out there -- that should be created, and that's
why -- take some steps to create them -- a window of
opportunity where everybody wins, and for some reason in the last couple of
years they got sidetracked -- and just gone by the wayside --right
places. You got the staff or need some more staff to run it; he's got the moxie.
Mr. Cooper, moxie, construction moxie to make it happen.
MR. WATCHMAN: Did Bruce offer to --
(Asides.)
MR. CLOUTIER: I think the people around this table would support that effort.
MR. WATCHMAN: I was going to ask if Bruce offered to take everybody to lunch
if they say nice things about him. Let me respond to your question. We are
looking at this issue. We've had some discussions about it. I'm a strong
believer of VPP, of the value of that program. If you just simply look at the
results of the injury rates of the participants, that's enough to prove its
merit right there. But the concept of VPP and the way we run that program
doesn't really fit with construction, so we're thinking about other types of
arrangements that might be more suitable to construction worksites. The one
project we're looking at now as an exploration of this idea is the roofers'
initiative in Region 5. There, as you know, there is a certification of premier
contractors by a committee that then are eligible for a focused inspection when
we show up at the workplace; and I think we're starting to learn some lessons
from that project that will help us figure out how to move forward with regard
to some VPP-like concept for construction in general. But I think it's a good
idea, and we'd need to focus on this pilot and see what we're learning, see if
there are things or refinements we might make so that it works better, and maybe
expand it.
MR. CLOUTIER: My second thing, to bring your attention, yesterday afternoon
we had a presentation from a gentleman from the University of Boston talking
about compliance inspections and the top 25 out of the top 2,000 contractors,
and whether it was an open shop or a closed shop environment, who got the most
inspections, and if you look through your latest BLS handout that our chairman
gave us, I personally feel that we're spending too much time going after the big
players, and when you come down to incident rates of 2.9 with contractors that
have 1,000 or more employees, I would say those contractors are doing a pretty
damned good job across the board. But we see a significant amount of the
inspections around the country and the information that was handed out here that
in a 10-year period of time you could expect 30 inspections, I'd like to say is
a large-player game. We see more than that. We see more than our fair share when
we have a -- rate. I think that we're not spending the taxpayers'
money in the right place when we're going after these bigger projects that have
full-time staffs and have good safety programs. They aren't -- nobody
wins that. I think we need to refocus on the emphasis on this.
MR. WATCHMAN: I think that's a very legitimate point. My hope is that
site-specific data that we're starting to develop will help us identify the
smaller workplaces that are smaller employers that have very high injury and
illness rates. I think typically the factor we're focused on larger worksites of
larger employers is a reflection of the limitations of the data that we have,
and my hope is that we'll be able to target those high hazard smaller employers
as well.
MR. RINGEN: Isn't this the purpose of GPRA, to get exactly at this question?
Of ways to --
MR. WATCHMAN: Yes, well, the broader issue of results, and finding out where
the most hazardous workplaces, and getting to them, protecting the workers who
really need it so that we're spending the money wisely, you're right, is an
accurate reflection of GPRA.
MR. RINGEN: And I think that's -- that point is central to the
study that's being done, the results that you see from it. By and large
enforcement dollars are being spent in the wrong place, inspecting the wrong
people, probably, for the wrong thing. And -- but we'll get much more
information on that later.
MR. WILLIAM SMITH: Yeah, just direct two comments, and one, first off, thanks
for helping us on that out -- issue. We know you were instrumental in
Joe's closing days of eating the nuts and trying to get stopped in time,
and -- so that was a positive on your part, but you say that you're
going to keep going forward even though the type
of -- program -- just two things, though,
about -- we had a presentation yesterday from Marthe. It was excellent
from her part but the presentation about the problem of OMB and the Paperwork
Reduction Act kind of gave us a little bit of a headache.
MR. WATCHMAN: Um-hum, gave you a headache?
MR. WILLIAM SMITH: Actually the numbers add up to about a 40 percent
reduction in paperwork requirements over about a 6-year period, and they were
looking at the standards and the regulations to the extent that you can't create
new ones until you eliminate old, and you have to balance the scale kind of a
deal, and one of the comments that was raised that I think you needed to listen
to -- and I'm sure it will be passed back to you that it was bad. The
process of compliance inspections are somewhat exempt from the requirement of
the Act --
MR. WATCHMAN: Right.
MR. WILLIAM SMITH: -- because of the fact that you have to go out to each
job.
MR. WATCHMAN: Right.
MR. WILLIAM SMITH: And we brought up the issue of record keeping requirements
that are proposed by all standards, including the new safety and health program
standard. But the fact that when you do this kind of inspection you need the
documents there to be able to do the inspection in order to make sure that, like
you said, what's in the past is knowledge and you derive from that. So your
office, I'm sure, needs to fight to -- our data as well but in trying
to get some of the paperwork requirements in the regulation pulled in under the
compliance side, so that then you can that "even though it's got to be
exempt, then we've got to eliminate 10 to 40 percent of the requirement here, we
need it here" in order to our jobs or somehow we need to pull out the
documents. We were talking about cranes as an issue where the B-30 committee
that sets the standards for the industry that are all the people and all the
clients out there, the manufacturers, the owner, and the users have requirements
they put in place for record keeping for maintenance and inspection, and, you
know, the whole 9 yards. Well, that has to stay in because when you get to the
accident or injury, and you say, "Well, where's all your maintenance
records of all the inspections that you did for the crane so we can look at
whether you did or did not fix what was broken," they say, "Well, we
don't have to keep them any more because the accident was eliminated." So
there's somehow you need to really argue the point that for your compliance side
they've got to stay in. The second thing I want to say is that you mentioned the
fact that your standards projects, and how you had six projects under way for
plain language so --
MR. WATCHMAN: Right.
MR. WILLIAM SMITH: -- that people can common sense read them and use common
sense terms, and I don't know what they are but I think really it would be
helpful if this committee here can have a workgroup established to work with
your people to put the language that we know from the construction field into it
while your people are developing it because, evidently, way back before me and
you were here somebody wrote that language and the people still don't understand
it out in the field, and your people are writing that language again. But with
that input from, like, this advisory committee or people from the construction
industry to help say, "This is how you need to say it so the little guy
that reads it understands it."
MR. WATCHMAN: Yeah.
MR. WILLIAM SMITH: We'd like to be able to participate in that defining
process and language process --
MR. WATCHMAN: Yep.
MR. WILLIAM SMITH: -- if we could.
MR. WATCHMAN: I think that makes sense. Marthe Kent has really been
overseeing that process so I'll let her know of your interest in it.
MR. WILLIAM SMITH: And if we can establish some workgroup to work with them,
could -- when they meet, even if it's a few of us because we're here
in Washington, to meet with them just regarding the language and that, we can
also bring it back --
MR. WATCHMAN: Um-hum.
MR. WILLIAM SMITH: -- and then just recommend it back again, and then next
what you're going to do with it is what you're going to do with it, but at least
you've got input from the construction industry --
MR. WATCHMAN: Yes.
MR. WILLIAM SMITH: -- during that process.
MR. WATCHMAN: Yes, I think that makes sense.
MR. OWEN SMITH: I have another question.
MR. RINGEN: I think it was Lauren first.
MR. OWEN SMITH: Oh, I'm sorry.
MS. SUGARMAN: Thank you. Greg, I just wanted to mention to you that yesterday
I had the opportunity to present a report on women's safety and health in the
construction workplace, and you spoke a little bit about your goals and
objectives for OSHA, and it's my understanding that within those goals and
objectives is the objective to try to better serve under-served working
populations, and I think women are certainly one of those populations. Yesterday
after I left this meeting, I heard on National Public Radio a report about the
Triangle Shirtwaist fire, which happened 100 years ago to this day, or this
week, and it was a fire in which 147 women were killed in New York City in a
factory that the doors were all locked, and the importance of that fire for
labor history is that it really set the tone for a lot of the safety and health
regulations that previously had been paid little attention to and was an impetus
for a lot of the regulations we take for granted now; and I think it was just
interesting to me to note that we were able to present our report on the same
day that that history mark was being commemorated. I think in much the same way
that that was a moving forward point for all workers in terms of improving
safety and health. I hope our report and what our recommendations are, its
publication, hosting a conference on that report and the issues we addressed,
and preparing a booklet, an awareness booklet, can also be a trigger to serve
all workers better just as that fire, in its unfortunate tragedy, helped trigger
better regulations, and I think our discussion yesterday really reflected that,
that while we may talk about improving sanitary conditions on worksites for
women, we're really talking about how to improve sanitary facilities for all
workers, and it's a concern of all workers. Or better training for all workers.
Even if it's women complaining about it, it really results in better productions
for all workers. So I just wanted to make note of that.
MR. WATCHMAN: Thank you.
MR. OWEN SMITH: Now may I?
MR. RINGEN: Owen.
MR. OWEN SMITH: I was wondering, does OSHA have anything in their ledgers for
the research projects, and the reason that I raise the question is that I'm
chairing the Scaffold Appendix-B, and we saw several videos, one that the Labor
people seem to rely on that the scaffolding industry found a lot of fault with.
Then we saw two more made by the scaffolding industry that seemed to maybe push
things their way, and it appears to me as though we need an independent study,
and perhaps the scaffolding industry can contribute to it, but I think that we
need something that we could rely on that is factual, that just calls it as it
is, and then we could come up with something that really makes sense, and I just
don't know where to turn to for the money.
MR. WATCHMAN: Well, I think there might be two possibilities. In terms of
research, NIOSH typically does the research end of our operation, but we also
have worked cooperatively with a variety of groups. Most recently the home
builders put out a booklet that was helpful for residential home building, and
maybe there's an opportunity to work together with folks that are engaged in
scaffolding operations to develop a compliance assistance material of some kind,
a video, or a booklet, or something that would be useful to get at this problem.
MR. OWEN SMITH: Thanks.
MR. WATCHMAN: Thank you. I'm going to have to go now but thank you very much.
CHAIRMAN RINGEN: Thank you. I suggest --
MR. COOPER: Greg, we've come up with something more. We'll let you know.
MR. WATCHMAN: Thank you.
CHAIRMAN RINGEN: I suggest we take a 5-minute break while we wait for Mr.
Wolford.
(Whereupon, a brief recess was taken.)
CHAIRMAN RINGEN: Bill Rhoten, you had a point you wanted to make before our
next --
MR. RHOTEN: Oh, yes, thank you, Mr. Chairman. I just said
maybe -- I was out of the room, I think, when there was some mention
of the fact that they were going to hire approximately 200 more OSHA inspectors,
was that correct? I guess I'll give that question to Bruce.
MR. SWENSON: No, you did not hear -- nobody heard that.
MR. RHOTEN: Well, I wasn't out of the room then.
MR. SWENSON: -- say that.
MR. RHOTEN: Okay. In any case, is it true that OSHA's going to hire
approximately 200 OSHA inspectors?
MR. SWENSON: You watch that court stuff on TV, don't you?
MR. RHOTEN: No, I'm not -- I'm just trying to -- I just
asked the question.
MR. SWENSON: Let me sort of give you a straight answer. OSHA is in the
process of filling a large number of compliance officer vacancies. The regional
administrators who were on hold for that for a while had been told to fill all
of those. I'm not certain about the number that you used but there are a large
number of compliance officer positions that will be filled in the next several
months.
MR. RHOTEN: Okay, then, I guess my point, I would like this committee to
consider making a recommendation that when they hire the new inspectors that
they make an effort to hire, as far as they can, people with construction
backgrounds for our benefit.
MR. SWENSON: I think what that -- if I may, I think what Mr.
Watchman said this morning when he addressed the group is he asked the group for
help to do just that, to come forward with names, send people in our direction,
do whatever you can, to make sure that people with a construction industry
background are applying for these jobs and filling them. Watchman recognizes
that there is the need that, I presume, you also are aware of.
MR. RHOTEN: That was probably the part that I was out of the room on.
MR. SWENSON: There you go.
CHAIRMAN RINGEN: So if we can identify people, should we send them, or their
resumes, or whatever it is to you, right?
MR. SWENSON: Well, you can do that, Knut, and I'd be happy to forward them to
the region in question, but you could also encourage people who live in
Washington, or Oregon, or Idaho, or Texas to deal with their regional office
that is doing the announcing and the hiring through those regional offices. They
could also contact their construction coordinators and ask for help on getting
these things submitted. Thank you.
UNIDENTIFIED VOICE: Where do they get --
CHAIRMAN RINGEN: Mr. Cooper?
MR. COOPER: Mr. Swenson?
MR. SWENSON: Yes, sir?
MR. COOPER: Do we have construction coordinators in each region?
MR. SWENSON: Yes.
MR. COOPER: Every one of them.
MR. SWENSON: Yes.
MR. COOPER: Well, then what is the grade rating that more than likely will be
the grade for these new compliance officers coming in?
MR. SWENSON: All I can give you on that, Mr. Cooper, is a generic answer.
There are -- I am sure that there will be some people hired at a Grade
7 as a trainee, either safety or industrial hygiene, and it will go up from
there. Seven, nine, eleven, I'm sure there are vacancies at all three of those
grade levels being offered.
MR. COOPER: Okay, well, thank you. I'm used to generic answers. As far as the
Acting Assistant Secretary seeking advice from this group on employment of
staff, he's come to the right place.
MR. SWENSON: Thank you.
CHAIRMAN RINGEN: Next on the agenda is a study, again, which we have had some
hand-in that I thought it would be useful to present here today, and Rod Wolford
is with us, whose a consultant who has helped developed this study which has to
do with training certification. At issue is the following. We've long had
questions about whether training really works, and does training certification
really work. It's a big expense to employers, it's a lot of effort to workers to
go through and there's the whole issue of the paperwork reduction question that
has -- that comes up here that relates directly to the certification
process. So about 3 or 4 years ago, I don't remember when it was, this
study -- an opportunity to do a well-designed study of this came
about, and Rod's going to take about 20 minutes or so to present the results
from that.
MR. WOLFORD: That's correct, yes.
CHAIRMAN RINGEN: Thank you.
MR. WOLFORD: Okay. I'm just going to be trying to give an overview of what
has happened in this study, and there are several points that I really want to
try to bring out that involve some statistics, but I'm not going to give them to
you. Instead, I'm going to refer you to this book, this publication, by the
center that presents the first part of the study and it is a -- it's
called "The Comparison of the -- of Training of Painters in
Alaska and Oregon" and it's a publication that was put out by the Center
for Tech Worker Rights. It basically describes the study in detail, but I am
going to give you some of the facts and figures because I think that's the only
way to understand the importance or the impact of what we have seen here, and to
be able to discuss how it might be generalized to other circumstances or other
instances. The initial visual I'm providing you here is -- these are
all going to be hard to see and I apologize for that, but this
initial -- that helps a lot, Knut. The -- in the three
states -- this was a study that involved three states, Alaska, Oregon,
and Washington. The selection came about because in Alaska they adopted a
mandatory training requirement for all painters who worked with hazardous paints
or products. What this meant was that if you were a person who applied organic
containing -- organic solvent-containing products in the State of
Alaska and you were a painter, then you had to take 16 hours of initial
training, 8 hours of refresher training, every 2 hours you carried a card, and
this card had to be presented to the contractor or to any inspector who came
around at any time throughout the state to show compliance, and, of course, the
contractor was obligated to hire only certified painters to do this work. In the
other two states, Oregon and Washington, which were selected primarily because
they're in the same northwest area, some of the painters do, in fact, travel
back and forth. They had voluntary programs of differing strengths. In Oregon,
the union had tried a voluntary program, including the concept of fixing the
training to the -- the requirement of training to a
wage -- to the wage, and the other group in Washington had no such
training. They simply took the training as it came. So, in total, in the three
states there were about 4,700 painters, about 900 in Alaska, 2,500 in
Washington, and about 1,400 in Oregon. Of these, we took a staged approach.
Initially, we did, in Year 2 of the study -- Year 1 we put things
together. In Year 2 we did a cross-sectional survey, and in this cross-sectional
survey we sent questionnaires to a sample of the professional painters in the
state which were defined using state Department of Labor records for Worker
Compensation and for Unemployment, and, too, in Alaska we used a
similar -- to generate the initial Year 2 survey of the population.
Once we had the population in the mailing, we got back about
1,300 -- or 1,000, 1,100, of the questionnaires and did analysis on
them. It was approximately about -- it was a 50 percent response rate,
roughly, and then there was the follow-up afterward to check for
non-respondents, and so on, and so forth. All that work was done. Then in Year
3, we did a training intervention where we actually implemented a training
program in Oregon and Washington while the ongoing training program was taking
place in Alaska. Now, remember, in Alaska it's a mandatory training program.
It's ongoing, it's already being done. In Oregon and Washington, we took the
same program and pushed it through the voluntary framework that existed in the
states to bring in painters. We set up toll-free numbers. We had 800 hotlines.
We did mailing through contractors. We gave presentations to groups, did
everything we could to get recruitment of people to attend the training. So
there was this massive recruitment effort in the states to bring the people in,
and that's sort of the framework of the results I'm going to present now,
because what we really were looking at is a -- 4,700 painters, we're
dealing with about 20 or 30 percent of those painters total throughout
this -- throughout the three states, and in one area we have a
mandatory program that requires painters to have training and in the other area
we have the voluntary program where people are being recruited and brought in,
agree to participate or don't agree to participate, and the question then
becomes what really is the result of that. And what I'm going to do
is -- I'm just going to show you the three research questions as we
put them together. Does it make more sense for me to talk which way here? This
is a layout that leaves me little -- the research findings, basically
what we have is that we want to know are the painters who are receiving training
more likely to wear respirators and use fans than painters who don't receive the
training? That was the big question. We focused on two specific behaviors; we
focused on respirator wear and we focused on fans. The reason we focused on
these two issues is because they're very important for the painters. One study
by Madinosky (phonetic) a number of years ago, from Hopkins, showed that
painters who ever wore a respirator compared to those who never wore a
respirator were five times less likely -- well, the ones who never
wore a respirator were five times more likely to develop cancer than painters
who ever wore a respirator. So -- there was a big impact that was
demonstrated toward the use of the respirator. Ventilation, obviously, is the
other method of trying to reduce the exposure that was available and so these
were the two behaviors we were looking at. We wanted to know did the painters
use ventilation and the respirators, and that's the way we evaluated the
effectiveness of the program. To do that we used self-administered
questionnaires which were validated using surreptitious observations to ensure
that the -- that painters really completed what they said they
completed when they completed it. We used one week follow-up period to support
the questionnaires by asking people what they did with their behaviors in the
past week. So the first issue we're looking at is are they -- does the
training make a difference, and everybody would like to know that at some level,
but we also said is there a difference in the outcomes based on whether or not
the training was provided in a mandatory setting or a voluntary setting, and the
third question is, is there a difference in cost between the mandatory and the
voluntary training systems. I want to show one more overhead before I move into
the discussion directly of the results. I want to sort of share the type of
methodology we used here because I think it was an interesting approach and
something that's useful elsewhere. What we're really looking at is our training
methodology. We call it training as a virus. We looked at it because in the
public health model, often what you do is you do early risk assessments, and
when you do early risk assessments you're looking at somebody exposed to the
substance, and what you're doing is seeing if they develop the disease, and
you're preparing -- comparing the proportion of the people in the two
populations to see who gets the disease and who doesn't get the disease. So we
decided that in our case that we were going to use the training as the virus and
we were going to see which ones caught the disease of using respirators and
wearing -- or using respirators and fans, and that was the approach we
took. So a lot of our results are going to be based on odds ratios using a
two-by-two tables, which is nice because it's simple. It generates a number
where we can say "the painters are twice as likely to do this," or
"three times as likely to do this," or half as likely to do this, and
we know we're comparing our two populations in making that comparison. The
other -- this is often used to express disease development and so that
means if we know we're talking about people that are three times more likely or
five times more likely to develop cancer, we know how important that is so we
could also then assume that we can look at it and say they're three times more
likely to do the training, we should also say that's important, too. And,
finally, we -- any of the talk about this training painters as
"X" more times likely to do one thing or the other. Okay, now, to move
onto some of the results and I -- we'll put a couple of tables up. I
don't expect to be able to read them and I am going to sort of use some notes to
talk about them as we go along, but right off the bat the first thing we found
out was in the comparisons here, using these relative grids, is we found that
the groups who had the Alaska training, if they had the Alaska training, they
were 2.7 times, almost 3 times, more likely to wear respirators than people who
didn't have the training. So there was a significant impact in terms of
respirator wear in the group that had the training compared to the group who
didn't. Interesting point, though, because we had to look at other types of
training, if you go down the list here you also see the people who had
respirator selection training, who had asbestos abatement training, or lead
abatement training, or haz-com training, there are all these other types of
training that people had, and one of the things we noticed is that when you
compare the groups, no matter which one of the trainings you look at, by and
large almost any of the trainings that they took related to some health and
safety, no matter how you cut the group, it had an impact on whether or not they
wore respirators. So there are people who had no types of training at all, and
then compared them, you -- in fact, we have one down here called
"any health and safety training," and believe it or not even with haz-com
requirements and others there are people who have no health and safety training.
We still find a -- almost a 1.44 increase in the likelihood of a
person wearing a respirator if they had any kind of training. So the thing we're
seeing first here is this concept that the training does have an impact on
populations. And the congruence intervals on these things and the statistic
levels are reasonable. For example, on the Alaska training one, it's like one
Alaskan in 10,000 or something, so we've got -- and the other thing I
would point out about here is we also looked at vocational training and
apprenticeship training, and even apprenticeship training had some effect
whereas vocational training didn't. Apprenticeship training, obviously, has a
health and safety component that these unions have put into it. So once again
what we're seeing is that in many instances this training is showing an impact
on the workers' behaviors. We have a similar result for ventilation, and I'm
only going to present it briefly because, actually, this is sort of the least
interesting and important part of the finding, in my opinion. We also find a
similar situation here for Alaska, 1.64 times, almost 1.5 or 1.7 times greater
likelihood of using ventilation, fans, where they work than people who were not
trained, and if you follow down here you will notice the asbestos abatement. The
people who had asbestos abatement were 2.5 times more likely to be people who
used fans, painters who used fans, than not. Why do you think that might be?
Asbestos abatement depends heavily on ventilation. Many of these people who have
had that training now developed a familiarity of using fans. Ventilation, they
see its effectiveness. They now have incorporated that into their work. So in
many cases we are seeing directly an impact that is coming from the effect of
this very training that has been done on the behaviors of workers in the
workplace. As I said, I think this is sort of the least important part or
interesting part of this aspect of the training, because there is another issue
that's going on here, and that issue is --
UNIDENTIFIED VOICE: Turn around.
UNIDENTIFIED VOICE: Turn around.
MR. WOLFORD: Oh, yeah, that's a good idea. Just seeing if you were alive. I
think that at heart everyone believes the training works and I think that's one
of the problems. Everybody believes it works so nobody says we have to really
study it or go out and look at it. Everybody's willing to buy off and say,
"I don't have to train that. I know if I put a rock in the room and I talk
to it long enough, I know I'm going to change it." So -- and you
will. Whatever you do, you're going to put it up -- or something,
you're going to change its shape. But the concept of training as being effective
still leaves something -- that's easier to accept, but what's more
difficult to accept, I think, is the concept of mandatory training should be
used instead of voluntary training, and that is the last part of what I will
talk about before opening up for questions, and here is the main issue on
mandatory training versus voluntary training. One of the things that we found in
these particular issues is we were looking at had the people had previous
training, and we looked at it by state, Alaska versus Washington or Oregon. Now,
remember, Washington and Oregon have the voluntary programs; Alaska has a
mandatory program. All of these other trainings are available to other people
throughout -- in many areas, but if you look through here people in
Alaska were six times more likely to have had respirator training than people in
Oregon and Washington. They were six times more likely to have had ventilation
training, and on down the list. Only when you get to vocational and
apprenticeship training, which are equally distributed in both states, we see no
significant differences in the amount of training they've had. So it's quite
apparent that through the mandatory training program that the people in Alaska
are getting more training. The impact of this is several-fold. One, when we
started looking at the specific industries and specific groups, what we were
finding is that the people who go to training are the same people who have been
there over and over again. In Oregon and Washington, it's the same 20 percent of
people who are coming to the training for time, after time, after time. When you
put on the voluntary training program, these are the people who show up. The
other people don't show up and the statistics that we developed show that this
is what is going on. No matter how much recruitment you do, no matter how much
you do in that, those are the people who joined up. In the mandatory training,
everybody shows up, everybody gets the training. The impacts on this are
several-fold, and, again, discussed the document. We looked at non-union versus
union. The non-union do not have access to training. They have much less
likelihood of having training. They have lower likelihood of participating in
Oregon and Washington, but in Alaska they have the same or greater likelihood of
participating in the training, once again because of the mandatory nature. Small
contractors, the same result occurs with small contractors. Small contractors of
fewer than five employees are much less likely to have -- a person who
works for that, they're much less likely to have had training but when they move
under a mandatory group, the difference disappears, and the thing that is
important about this is that it's the small contractor and the non-union
contractor, according to what we saw in our study, who is actually having the
greatest risks. They were 1.7 times, almost twice as likely, to be the people
who were spray painting with spray paints that were -- in the union
sector with the large contractor groups. So what you really have is that with
the mandatory training, we're able to address a larger group of people, given to
the people who have no other recourse for training, and you are -- and
you get full penetration. The final issue that I would make is the cost issue,
which is always important. There are two components to the cost issue. The first
component of the cost issue is that in Alaska, it cost about $8.00 to recruit
each trainee through the mailing process, to bring them in; about $8.00 per
trainee just to bring them in for training. The cost in Oregon and Washington
per trainee recruited ranged from -- to $20.00 per trainee, and this
is because in the voluntary system, you have to get the people there and you
have to recruit them. This is a tremendous difference in cost, and it makes many
programs ineffective, and this is not even on account of the fact that in the
mandatory programs the classes are filled. Where the voluntary programs were
held you would get 25 people saying they would show up and 5 or 6 would show up.
So that doesn't even count the resources that are lost in that. I'm just saying
based on recruitment alone, the mandatory program was many times more cost
effective, and the final point is that we looked at the contractors expenditures
for health and safety gear, training, and other things, and it did
not -- the mandatory program did not increase those costs across the
states. Basically, we found that contractors buy and do the same types of things
in the states. The question is whether or not the gear is being used, and under
a mandatory program people who get the training causes them to use the gear, so
in many respects it even results in a net better efficient utilization of the
contractor's supplies and goods by having mandatory training and it's more
likely that the materials are going to be used. That is basically the first part
of what we have done on this. There is a lot more involved. As I said, the
studies are available from the center. I think Knut felt it was important to
bring out, and I believe it's important also because of the mandatory nature of
the need. People are reluctant to adopt things that are of a mandatory nature to
them. They either believe it's an abridgement of freedom, or they believe it's
going to lead to government bureaucracy, and, too, the inefficiency associated
with it, and I think that those things have to be cast aside sometimes when
examining this, and I'm hoping that the results seem to support a conclusion
similar to that. I'm ready for any kind of questions that anybody might have, if
anybody has any questions.
CHAIRMAN RINGEN: Thank you, Rod.
MR. WOLFORD: Yeah.
CHAIRMAN RINGEN: Owen?
MR. OWEN SMITH: I was under the impression that the training was mandatory in
Seattle, also.
MR. WOLFORD: It was not in the time it was studied. That has started to
change and it's only mandatory in the union sector.
MR. OWEN SMITH: Well, yeah, in the union sector and tied to the raises.
MR. WOLFORD: Right, exactly, and that's correct, and that is what Oregon
started initially, and that increased the union participation in the State of
Oregon in the initial group, and I think that as a result of some of this, yes,
they did start to make it mandatory for the raises for the union, but that
doesn't reach the population at the greatest risk. As I said in the earlier
table before, the non-union are the ones who are not getting the training and
also have the almost twofold greater likelihood of strain because of the higher,
elevated risk. So you're still only getting a part of the population which
generally is able to get the training anyway. And you might say, "Why
doesn't something like haz-com work as well?" Because haz-com is required
by the state and in part by the federal government for construction workers, but
we found that in Oregon and Washington, less than 50 percent of the painters had
haz-com and NSDS training, even though it's required.
MR. OWEN SMITH: Have you any ideas, because by law respirators are already
required and you said that your findings were that the contractors' purchase of
equipment, you know, in equal numbers whether they're union or non-union, so
what -- have you any ideas?
MR. WOLFORD: Well, that is -- that -- what I meant to say
by that is that there were no differences in cost after expenditures
were -- to get the equipment, and that, to me, implies that they are
buying -- whether they buy enough, I don't know, but they're buying in
the same amounts. But the thing I do know from it is that the
painter -- and the painters who are trained are using it, and we know
the training is set as a necessary cause of use. If you don't have the training
but you have had the experience and skill, you are not going to do it and you're
not going to really move to apply it. So in that regard I think that the
mandatory training is what's generating the training that, in turn, is spreading
this across the broader population in Alaska. So, mandatory training, I think,
at some level is an answer. Now how you -- how that fits in, how it's
going --
MR. OWEN SMITH: Well, how do they make it mandatory for everybody in Alaska?
MR. WOLFORD: They passed a law. They passed a state law. It's a state law.
MR. OWEN SMITH: I see.
MR. WOLFORD: Yeah.
MR. OWEN SMITH: And who provides the training?
MR. WOLFORD: The training is provided by separate providers
and -- who are certified by the state as providers in a fashion
similar to the way that the asbestos training or lead abatement training is
provided, and they have to pass a test, seventy percent is a passing score, and
they are required for retraining every 2 years. The entire costs are borne by
the registration fee from the -- that is charged by the state. The
entire cost of the compliance and administration is taken up by the
administrative fee, which is charged to each person who applies and it includes
his $100.00.
MR. OWEN SMITH: So every other year or so they have to spend $100.00 to get
their card --
MR. WOLFORD: That's correct.
MR. OWEN SMITH: -- recertified.
MR. WOLFORD: Yeah, and that is something that the worker has the
responsibility to do. Now, the unions have negotiated that, obviously, for their
members and that is working out for them in that context, but it still is a
licensing fee that the person is required that they have to pay.
MR. OWEN SMITH: Does that -- and I want to know if you have any
ideas but is -- does it really cost $100.00 to recertify or is that
just a revenue-generating scheme?
MR. WOLFORD: Oh, well, if it works I don't think it's a scheme. I
mean -- and it doesn't hurt that they developed a -- and now
you would call it a scheme if it didn't work but it appears that it's working,
so the question might be is it costing too much or not costing enough. I would
say that it's probably an appropriate amount, but I would even suggest that it
could be higher without much difficulty.
MR. OWEN SMITH: Well, the reason that I raised the question is that I noticed
that, in lead training for instance, many of the states are charging $50.00,
$75.00. So a guy takes the training but he's not willing to cough up that money
to get the certificate unless he knows he's going to work, so why spend the
money if he's not going to go to work? And from my point of view, I think these
things have some responsibility and I think that the cost ought to be more in
line with what it costs and not something just to pad the bottom line.
MR. WOLFORD: Well, again, but you're -- and not to argue with you
about it, but you don't know that it's fattening the bottom line or I don't know
that it's fattening the bottom line because I haven't seen their books, and they
may be reasonable costs.
CHAIRMAN RINGEN: Why don't we raise that question with the people in Alaska
and get an answer. See if we can get an answer.
MR. WOLFORD: Yeah. I don't really think it's a revenue generator for them,
actually.
CHAIRMAN RINGEN: We have our economist back here. We'll ask her to look into
it.
MR. WILLIAM SMITH: You know, what ends up being a scheme is when you do the
1910.120 which hazardous waste training, and then you don't
comply -- like they do. They have accredited training providers but
under current law anybody who deals with hazardous waste has to have the lunch
money certificate to deal with it, but there's no accreditation of the training
providers. So everybody's after giving this 120 training and charge a ton of
money for it, but there's no check and balance of the training that's provided.
A case in point is that in this case, if an individual is trained and certified
by a company, and then goes out and goes to work, and a citation is given where
he's not properly doing the work, and then it falls back on the fact that it's
faulty training because he says, "I wasn't trained to do it that way. I was
trained to do it a different way." There's an avenue where you can go back
and take that certification away from the training provider to stop that. Now,
in that case that's good, but in the case that we have under 120 where there's
no accreditation and anybody can pop up the hazardous waste has lost the
training, there's no method of going back to acknowledge the fact that it was
proper training or not proper training. That's -- in that case, when a
guy starts to -- or 300, or whatever it is, to me that's a scheme.
MR. WOLFORD: Yes.
CHAIRMAN RINGEN: Ana Maria.
MS. OSORIO: Thanks for the presentation. I have a couple of questions. One
is, if -- I understood what you said about the law was that anybody
who has an employee who does painting needs to ensure that person is certified?
Is --
MR. WOLFORD: I think that's with organic containing --
MS. OSORIO: Yeah, right, right, right. I'm just wondering how much
penetration is there to, like, the person who goes and does, you know,
residential fix-up work and things like that? I mean,
how -- what -- this ballpark, you know, are you really
penetrating to the market that perhaps most needs to --
MR. WOLFORD: Well, we think so.
MS. OSORIO: Not you, but Alaska.
MR. WOLFORD: Yeah, well, we think that they're reaching that, and I can offer
three comparisons for that. Number one -- study a large number of
painters in Alaska were residential workers who were employed the contractors
who were working for -- with four or fewer employees, a contractor
with four or fewer employees. Number two, not only a lot of the people doing
residential, but they were more self-employed. We actually had self-employed in
this study up there because it came from the certification rolls, so these were
among the first shops basically. And the final thing is, is that the total
number of painters in the state appears to be around -- who earn a
living by this, which means that they -- if they have -- if
they're laid off, they've put in enough hours so that they're going to be able
to receive pay while they're off. It appears to around 900 or 1,100, and they're
getting -- on the rolls there are 891 painters, so they are getting
those. Now, I don't think they're getting the person who works the summer as a
painter. I don't think they're getting the person who walks around with a bucket
of slopping paint on, and saying they're doing shingling jobs, or any of those
people, which I think are a tremendous problem everywhere. But they're not
getting those in Oregon or Washington either, and back in Oregon and Washington
they're not getting these other residential people and commercial people; and
the other thing behind it is that the residential -- the think that
you're finding is that the residential and commercial area actually has higher
exposure to what we're seeing than the industrial sector, and they have higher
rates and higher volumes so particularly from that -- it's
also --
MS. OSORIO: We get a lot of -- commercial where you can use, like,
leaded paint or paints that have other kinds of metals on outdoor structures, or
oil rigs, or things like that, so some of the worst case scenarios we're seeing
are in the commercial sector but -- and then the whole issue that may
not occur in Alaska. I don't know Alaska, but I know it does occur in Seattle
anyway, is day labor and stuff that is in there, too, that wouldn't be there.
MR. WOLFORD: Right.
MS. OSORIO: The other question I had was about your analysis, and perhaps you
couldn't fully present everything, but I have a problem with just presenting
crude odds ratios. I mean, there's ways to adjust it for
key -- foundries, and I think that -- maybe that's in your
full report and all that, but I just think that it's a little premature to call
those odds ratios as the final evaluation.
MR. WOLFORD: Well, that may be a point and that would be, perhaps, something
that needs to be looked at. We also have the Manover (phonetic) evaluation,
which produces very similar results using -- and we've also been
looking at just the regression issues, and the things there are out were just
the compounds --
MS. OSORIO: Yeah, that's what I said. You probably couldn't present
everything.
MR. WOLFORD: Well, they're not recorded --
MS. OSORIO: Oh.
MR. WOLFORD: -- in this report either. They're being set up for publication,
also.
MS. OSORIO: Oh, okay.
MR. WOLFORD: But I see the issue is that they're much more difficult to
understand in a straightforward fashion, but we did take all of these factors,
including the type of work the person was doing, the years of work, the years of
education, many of these other factors we pulled into the mix.
MS. OSORIO: And then the last point is that I think the key, if you are going
to go for a mandatory program, is how good is the setup that you have for
calling somebody, you know, a trainer, and making sure he's -- because
I think, you know, you had 1,000-plus people in Alaska --
MR. WOLFORD: Yes.
MS. OSORIO: -- and there's various levels of expertise in Oregon and, you
know, Washington State, as well as Alaska, and I think if that could somehow be
looked at to try to stratify, you know, as to what gave you the most bang for
the buck, I think that might be interesting. I don't know if your data lends
itself to that kind of --
MR. WOLFORD: I don't know either because I -- I sort of know what
you're saying but I don't know if the -- but I think I do know is
that, and this is only a partial answer to some of your question relating to
another issue, is that we know that they do require a passing score of 70 in
Alaska. We evaluated what that really meant in terms of does the person wear a
respirator and we found it didn't. What we did find is that there were questions
on the test that when -- together it turned into a factor that
provided a strong indication of whether nor not a person -- I think
this is one of the problems with a lot of things that happen in an evaluation.
Part of it focuses on cutoff points and other things that really don't fit with
the heart of what these meant.
CHAIRMAN RINGEN: I think -- yeah, Bob.
MR. MASTERSON: Yeah, am I correct when -- did I hear you say that
the study was commissioned and paid for by the center?
MR. WOLFORD: Yes, that's correct.
MR. MASTERSON: Okay, you know, I don't do business in the three states that
you're referring to but I do work with painting contractors, and in the 19
states that I am conducting business I found, and we have looked into it also,
very little use of organic base. I don't -- you know, I can't dispute
your data because I don't see the raw data.
MR. WOLFORD: Yeah.
MR. MASTERSON: But in residential, it's very limited to use of organic
solvents. The --
MR. WOLFORD: Well, but Bob, may I add a comment to that? We asked people
about the use of the organic materials, and we eliminated anyone from the
analysis who indicated that they were using latex or other types of paints. So
the analysis that we're looking at in terms of this respirator where it's not
focused on -- does not include people who reported using latex paints.
MR. MASTERSON: So you would have then automatically taken out all those
employers that were using latex-based products, which is the vast majority of
your home builders.
MR. WOLFORD: That's correct, because in essence we do not
figure -- this is focused on organic solvents where the risk is looked
at, so the key -- the figures you're seeing here do not contain any
people who, from a self-reported standpoint, were using latex paints or
watercolor coatings.
MR. MASTERSON: Okay.
CHAIRMAN RINGEN: The certification requirement is simply for painters who
paint with the organic paints.
MR. MASTERSON: I understand, it's just I heard several references to
residential and I know very few residential builders are using organic base
products. The --
MR. WOLFORD: Well, these particular ones were there and perhaps in the
broader picture many of the other people who were excluded fit in the
residential area, but of these that are included in the study, everybody is
using the organic.
MR. MASTERSON: Okay, and then along with -- you know, you're
showing that with the training the worker was six times more likely to utilize
the safety equipment properly. That's the way I'm reading into this. It seems to
me that if that is actually the case, then maybe OSHA's focus on enforcement on
additional funds in enforcement may be misdirected. Maybe that money ought to go
into their outreach and their consultation and training area where they can
spend more time in doing that kind of outreach. I seriously doubt that we can
say that compliance has increased with -- or enforcement has increased
compliance by six-fold.
MR. WOLFORD: Well, the figure actually was six-fold greater increase in the
amount of -- the actual increases we were looking at are 2 1/2 or
3-fold, but I agree that perhaps they ought to focus where more of the training
can be done in a controlled situation. Whether or not that can substitute for a
course, I would have no idea about that.
CHAIRMAN RINGEN: I don't think these are alternatives that are mutually
exclusive --
MR. WOLFORD: Right.
CHAIRMAN RINGEN: -- or that one is a tradeoff for another one. Harry Payne,
had he been here to present what they did in Congress a couple of years ago in
North Carolina, that the consultation services are useless because people won't
use them unless there is also an enforcement, unless there is enforcement, a
threat to employers. Then they -- if there is strong enforcement, then
there is also strong use of consultation.
MR. MASTERSON: That may be true, Knut, but I know in several of the state
plans if you can even get on the consultation list for assistance, there may be
a 6-month-to-a-year wait before you can get that assistance. Currently
what -- do you know what percentage of the budget is being spent on
training and consultation?
MR. WOLFORD: I have no idea. Where's Bruce?
MR. MASTERSON: Bruce?
UNIDENTIFIED VOICE: I'm Bruce.
UNIDENTIFIED VOICE: What percentage of your budget is being used on
consultation and training.
MR. WOLFORD: We'll get that for you. I don't know off the top of
my --
MR. MASTERSON: How about an -- any educated guess?
MR. WOLFORD: I have no idea.
CHAIRMAN RINGEN: I think, though, Bob, the point that you make, and that is
that we need more training, is correct.
MR. MASTERSON: And I guess that's all I'm heading to is that in fact if the
training is that effective, maybe there needs to be a much closer balance to
enforcement and training instead of putting all the additional money into
enforcement.
CHAIRMAN RINGEN: Well, I think the important thing about a study like this is
that it suggests before a lot of mandates are put in place there ought to be
information supporting the value of them, and most of the things that we have in
place at the present time, in fact, are not supported by any kind of empirical
evidence of efficacy of any kind, and that's the issue that we're trying to get
at. Now, Rod made a very brief presentation that makes this study seem like a
very simple undertaking, but it took lots of people, I think 3 or 4 years, and
close to a million bucks to carry out this thing, just on this one issue, in
order to do it properly. But that's the kind of thing that we should be doing if
we want to know whether we're doing the right thing, it seems to me. Bill?
MR. WILLIAM SMITH: Not --
CHAIRMAN RINGEN: Well, you raised earlier the issue about the need for
working group or -- when Greg Watchman was here.
MR. WILLIAM SMITH: No, something about a working group on the language.
CHAIRMAN RINGEN: Oh, on the language, okay.
MR. WILLIAM SMITH: Yeah, because they're going to go to a -- the
projects they're working on for common sense and plain language.
CHAIRMAN RINGEN: Oh, okay.
MR. WILLIAM SMITH: I think we should be involved in that.
CHAIRMAN RINGEN: I misunderstood you. Mr. Rhoten?
MR. RHOTEN: I just have a -- you know, I think this report is very
good and I think the results are predictable. I'm glad that you put this
together but the whole question of, well, if you do the training are the results
going to be good, I think you can carry it over and maybe do more studies; but
to get back to my personal preference is to have everybody on the construction
site to have the 10 hours of OSHA training before they get on the site. Some
kind of report like this would document, yeah, it works, although to me it seems
common sense. I'd like to see more studies like this done because I know the
results are going to come back positive. I know it's going to show that it's
cheaper to do it that way, and it's better for the worker, and that's where we
should be heading. So my editorial is to throw that 10 hours out here on the
floor again, and thank you for that report.
MR. MASTERSON: If I might comment on that. I -- Bill, I certainly
agree. I do believe training --
MR. RHOTEN: The 10 hours?
MR. MASTERSON: I do believe training --
UNIDENTIFIED VOICE: Single-issue Bill.
MR. MASTERSON: -- is very effective. I think training is important. I think
the training needs to be directed at the end user. I don't happen to believe, at
least for my industry, that the 10-hour is the most appropriate. There's a lot
of components in there that are very appropriate. In this particular study it
was specifically directed at a product or a type of product being used by a
certain individual. That's the most effective type of training that's available.
To put out a blank -- blanket training program that addresses the use
of, let's say, a Lattis (phonetic) boom crane and spend time on that when that
industry will never use it --
MR. RHOTEN: I'm certainly not expressing that.
MR. MASTERSON: -- is inappropriate.
MR. RHOTEN: I don't mean to interrupt you for that, but I'm certainly not
suggesting that. There's 30 hours in those modules for the OSHA 10 hours,
10-hour class, and I'm certain you could find more than 10 of them that would
fit the residential industry. So I'm not suggesting they do crane safety. I
would say that there is 10 hours there that could be very well beneficial to the
worker in the residential industry.
MR. WOLFORD: I guess one other comment I would add in relation to what you're
saying is that it -- first off, I think that these results, one of the
keys behind the scenes to be resolved is to be focused on the discrete behaviors
that the people were doing, and I think there are other behaviors like that that
could be examined and then tied to the 10-hour course or other similar materials
which would be beneficial. For example, I know that someone who is electrically
-- could handle the extension or other types of things. We know that a lot
of electrocutions and other things occur from absence of ground faults, or
broken plugs, or whatever, and to evaluate the effectiveness of training across
a group or an area to see if the training was decreasing the likelihood of those
attempts, it probably would show that that type of training would help. So to
the extent that you can address in a general way the training that deals with
common attitudes of that sort, it would seem to me that one could expect to see
a reduction in the problems from common sense, but also I think that evaluated
properly you'd probably see something like that occurring, also. But the key is
to evaluate and to focus on specific behaviors that you want to modify and have
your training adjust those things or address those things, and I think that's
the hard part in terms of making the training good because I think that's
another issue. We saw the other training in here and it was not effective as the
Alaska program. That's because the Alaska program focused on specific outcomes
and behaviors that needed to be done to improve painters in their work.
CHAIRMAN RINGEN: Thank you very much, Rod.
MR. WOLFORD: It's been my pleasure. Thank you for having me.
CHAIRMAN RINGEN: Have a good trip to West Virginia.
MR. WOLFORD: That I will.
CHAIRMAN RINGEN: Our next issue are the workgroup reports. The first of those
from safety and health programs.
UNIDENTIFIED VOICE: We're sort of neighbors already.
MS. PAUL: I know. Okay, March 11, Stew Burkhammer, Ana
Maria -- what? The handout? Oh, oh -- I was
like -- Camille's got the handout, sorry, and everybody can get them.
We met Tuesday with, from ACCSH, Ana Maria Osorio, Stew Burkhammer, myself, and
Bill Rhoten, and 15, 16, 17 stakeholders who have been, well, faithful to the
cause, and I can tell you the March 11, 1997 ACCSH workgroup and interested
parties meeting to review the incorporation of ACCSH 8/28/96 into the existing
29.CFR.19026 Subpart C, standards resulted in some modifications to the ACCSH
8/28/96 document and the existing Subpart C, language that the full committee
needs to consider. The workgroup reviewed the ACCSH 8/28 recommendation as
integrated into the existing Subpart C, and you have a copy of that document,
and we also looked at a side-by-side comparison of the integrated version and
the 11/96 version of the General Industry draft of a standard, and some other
documents -- and you do not have that side-by-side but you have the
integrated one that we voted on here in this committee 8/28. After reviewing the
ACCSH recommendation, document, and the General Industry draft, parties
representing management and labor stated strongly that the construction industry
must have an industry-specific version of a safety and health management
standard. Some language used in the General Industry draft is used differently
and/or does not apply to the construction industry. Concerns were raised that
OSHA was directing an inadequate amount of resources to publishing a proposed
rule based on the 8/28/96 ACCSH recommendation and other recommendations. Each
member of this workgroup and many of the interested parties have committed many
hours to the development of the ACCSH recommendation, and we request that OSHA
assemble a high-performance team at least equal in size to the general industry
team, to have a Federal Register proposal published by September 1997
which, as I remember, Mr. Dear committed to. There were six provisions that the
workgroup suggests is -- suggesting to view the full committee to the
document that we approved 8/28/96, and we make these suggestions to modify the
document in these small ways, and you also have as an underlined part in the
handout that -- what -- the Subpart C integrated with the
ACCSH-approved document with these modified changes underlined. You have that
document as well in this handout that Camille just gave you. The changes would
recommend, one, improved language defining "plan." We had a lot of
trouble. We refer to plan and we knew the definition for plan
from -- in a recommendation made by the Alliance -- to
replace multi-employer language with either the Alliance or the ASA language,
and you have that -- that language in Attachment A, but the workgroup
just really was never happy with that multi-employer language, and the language
that both of the other documents represent, we felt to be better; add language
requiring OSHA 10-hour course or equivalent training; and add the appendix from
the Seven Associations language, which is Attachment B. It's a wonderful
document with all kinds of training language in there for -- as
examples to us how we might go about that. Delete or move 1926.31 and other
definitions if OSHA finds them not necessary. We kind of thought that particular
definition was not necessary. Revise the definition of competent person, as we
were asked to do in a letter, or letters back and forth from Bob Jardine and Joe
Dear, and that's in here, and include a definition -- well, we already
talked about that, the safety and health plan language. So we -- those
changes we would like to submit to the full ACCSH for integration into the
integrated document with Subpart C. Further, you have in your documents
something that came in just recently, and that is another safety management
program from Exxon for construction, and this is an example of the kind of
program we would be looking for, is in our minds to look for, to be accepted as
approved programs, a program that is already approved so they meet the standard,
and/or beat it, for that matter. We don't -- if there -- if,
after discussion, there are parts of these changes -- you know, we
haven't -- we were not ignorant of the fact that we had already
approved, the full ACCSH had already approved, a document 8/28/96, however, we
were also cognizant of the fact that nothing has happened to it. It
hasn't -- nothing has happened to it. There has been no further work
on it, and so consequently we felt that we could go ahead and maybe make it
better. Even in this workgroup that hardly anybody came to, there were 18 of us.
So, you know, always we're getting better information, better information,
better information. So that's one of the reasons why the -- you know,
we would like to have you consider these changes. Further, I would like to say
on behalf of the people that I've been working with on this for so long, I'd
like to move that since no action has been taken by OSHA on the document ACCSH
approved and passed onto the Assistant Secretary 8/96, and since Mr. Rauchman
(phonetic) did not echo Joe Dear's commitment to us regarding a separate
standard for construction safety and health standard, move the attached, revised
document be approved by ACCSH and forwarded both to the Acting Assistant
Secretary Watchman and to the Secretary of Labor herself using the strongest
language possible to make the point we feel it essential to separate the
standards. Thank you.
CHAIRMAN RINGEN: Stew.
MR. BURKHAMMER: Before I second the motion, I'd like to share with the
committee that during the Tuesday session there was considerable debate and
discussion, in fact, probably an hour or 2 hours, even on the training aspect of
this thing, and Bill Rhoten and Sandy from the building trades raised the issue
of the 10-hour OSHA course, and also we had discussion of the 30-hour OSHA
course for supervisors as a requirement that Bill and Sandy discussed. So No. 3
on page 2 where it says "add language required in the OSHA 10-course or
equivalent" was somewhat what we agreed to, but if you turn to page 2 in
the document and look at No. 3 on the right-hand top and it's underlined, it
says, "permit only those employees who have received the OSHA -- and
training course or equivalent to perform construction work" is absolutely
not what we agreed to and i didn't think we agreed to put that language in here.
So I would second Judy's motion with the caveat, if she would, to remove that
section from the document and leave "add language requiring OSHA
10-hour" but deleted from the body, No. 2 there, which so strongly says
"permit only those employees who have," and, Bill, if you'd like to go
over it and see if I missed anything?
MR. RHOTEN: As I read it, it's exactly the way I understood it. So maybe we
could talk about it, but as I left that room, and after the discussion, I saw
that there was wide support for that. There was some opposition, for sure, and I
think what the compromise was, was the equivalent that -- you know,
what I would like to have, personally, is the 10-hour OSHA card. I think that
would then -- that was certified it, and formalized, and then we'd
know exactly what we were talking about when you said the 10 hours. I don't like
the equivalent because I think it's going to get in a situation where everybody
is going to judge what the equivalent is and you're right back where you
started, which is there won't be any training. So if I wanted to strike anything
out of there personally, it would be "equivalent" and just leave the
10-hour card. I think it would work better, but I'm for sure that I left that
meeting with the feeling that the consensus was that that 10-hour training was
there. I think that a lot of the discussion that took place at that meeting had
to do with how this was going to get done, and who's going to finance it, how
much of a bother is it going to be to particular contractor groups, and I think
and still believe all those issues can be addressed so it's no problem for the
small contractors. They can't be addressed easily. There could be a time frame
that this thing could be implemented, but all those issues will take care of
themselves in the long-run benefit to contractors, and mainly to benefit the
people working in the construction industry. You can't just take people. You
can't continue to have this idea that you can take people off the streets, put
them on a construction job, put them on a bridge, put them on a high rise,
without any training. I mean, at some point you've got to address this basic
problem. As far as I'm concerned that section there will do more to protect the
worker than anything else in this document. Anything else in there won't do as
much as making sure that when a guy walks on a job he's been -- he's
had some adequate amount of training to protect himself, and that, in fact, is
not happening, and if we don't take a stand to make that happen, it's not going
to happen. We're going to be talking about this in 10 years from now and the
construction -- death rate in the construction industry is still going
to be twice or three times what it is for the general industry, and we're going
to be talking about some safety program that nobody's going to implement. Those
are my comments. I feel strongly about it and I feel like that meeting, the
consensus was there to do it. Fooling no one with the message that we got this
morning that this is not going to get done anyway. We were pretty well set on
notice that this is not going to fly; that we're going to be grouped into
this -- the safety standard with general industry, but I think we at
least need as a committee to make this point, that this needs to get done.
MR. BURKHAMMER: I'm not arguing, Bill, that the No. 3 on page 2 in Judy's
report that we do -- we all agreed that adding training language of
some type, and the OSHA 10-hour course, we pretty much agreed that something
like that, or an equivalent that some of the associations are now teaching, was
what we all would want, and would want to get in. You're absolutely right in
your comment about training could prevent probably -- and save more
lives than any standards that they've got now. I support that comment. What I
was trying -- the comment I was trying to make was that if you look at
Judy's No. 3 on her -- page 2 of her report where it's generally said
that we would "add language requiring OSHA 10-course or equivalent training
and Appendix from Seven Associations language," and a lot of discussion
from the association people present and from the ACCSH people present was that
we thought, Mr. Chairman, that we should have an ACCSH workgroup to study the
training concept in its entirety in itself, because it's such a big issue, and
it applies to a lot of different things other than just this, but
I -- Bill, and I did come in late but I don't think I missed this
discussion, that these words that are underlined on page 2 of the standard where
it so strongly says, and underlined in bold print, "permit only those
employees who have received," and I don't think we -- I certainly
didn't agree to that and I don't --
MR. RHOTEN: Well --
MR. BURKHAMMER: -- remember anybody else doing it.
CHAIRMAN RINGEN: Did you agree -- you obviously agreed to
something --
MR. BURKHAMMER: Yeah, I agreed to --
CHAIRMAN RINGEN: -- in the training areas.
MR. BURKHAMMER: Yeah, the --
MR. RHOTEN: Well --
MR. BURKHAMMER: -- the generality language on page 2 of Judy's report, not
the bold language on page 2 of the standard that's been inserted.
MR. RHOTEN: Is this -- as a practical matter it's going to be moot
anyway because I know, and I think everybody in this room knows, that we're not
going to get this thing through OSHA as a separate construction safety and
health standard, and again, I think that language -- I left that room
very clear that that was the intent of that subcommittee in my mind, Stew. Now,
I agree with you that there should be -- there was discussion on
setting up another subcommittee to study this whole issue and I agree with you
that that should be done, and debated, and continue going in that direction,
because, again, I don't think this is going anyplace anyway, but I think to make
a statement that it needs to be in this document that we submit to OSHA, and I
think the chairperson had it correct when she inserted that in this standard,
proposed standard.
MR. BURKHAMMER: Ana Maria, we'll have you interpret it.
MS. OSORIO: Me? Oh, geez.
MS. PAUL: Well, I think that there were a couple of things going on and not
everybody in attendance at that meeting got a preview copy of some of this
stuff, so I think some of the discussion maybe could have been a little bit
less -- more thought out -- better thought out, I think,
that certain people's -- certain people at that table hadn't had as
much time as others to review it, so I'll leave that as it is, and then I sort
of heard that -- I think that one thing that everybody sort of agreed
to was that training does have benefits in the short and long term. I think
where the disagreement came in was, you know, should the OSHA 10-hour course be
held as a model that everybody has to adhere to, and then the subsequent
discussion I heard was that there are some association courses and some other
private courses that had the same kind of equivalent core elements, and that
those should be considered as well as the OSHA 10-hour course. So I
thought -- I don't -- I'm not -- I don't think the
actual language was -- I mean, I can't vouch that this is exact
language but I thought the intent was that requiring training, if there
were -- if there was that provision where equivalency and some kind of
comparability of core elements that would be consistent with OSHA 10, or
whatever you want to put in the standard, I thought that's what people were
talking about. But I'd be happy to hear other people's interpretation. I can't
vouch for the exact language, though, because I didn't hear that part being
discussed.
MR. OWEN SMITH: Mr. Chairman, I have a question. What happens if the OSHA
inspector comes and he checks the employees cards, because it says document, and
he finds someone that doesn't have a card that specifies he's had that training?
Who gets the citation? Would he cite the employer or would he site the employee
for being on the job without the card?
MR. BURKHAMMER: We talked about that, Owen, during the meeting. Judy, do you
want to go ahead?
MS. PAUL: Go. Go.
MR. BURKHAMMER: That was part of the discussion, and I think Jim Lapping
(phonetic) brought up that when the compliance officer comes to the job, whether
the employee had his card with him or didn't have his card with him, you could
ask him a couple or three questions, pretty simple questions, to determine
whether the employee had been trained or not trained, and I think it was pretty
agreed that you could, you know, "Were you trained, yes or no?"
"Did you learn anything about working on scaffold or working in
trenches?" I mean, you could come up with some -- two or three
questions the compliance officer could ask that could determine whether the guy
had some training or not.
MR. WILLIAM SMITH: Well, one of the other ways to do it, too, Stew, is that
if this would be a requirement currently today, when you employ the individual
you copy all of his certificates that he comes with. If he doesn't have them, he
either is not employed at that time or you train him as the current employer,
and then when he's done you copy the certificate and keep it on a file in his
record. If he doesn't have it in his pocket out there on the job site, it's just
a matter of, you know, showing his personnel file that you had a copy of the
certificate on file when he came for employment.
MR. OWEN SMITH: But, Bill, that allows me to have some more paper in my file
to track this guy --
MR. WILLIAM SMITH: You already have your application that he has to fill in
before he starts work anyway.
MR. OWEN SMITH: No, no, I call the boss and he says, "Send me
10 -- " and we send -- I tell them what job to go to. I
never see him, and the first that I know that they really are there is when the
time card comes in on Tuesday or Wednesday, depending on when we're breaking off
the week, and then it'll go into the computer, and his work order will probably
not come in until a week or so later. Either we'll get a copy --
MR. WILLIAM SMITH: We can all dance around that, then. If
we're -- and real sincere about safety and health training, it's no
different than saying, "You're not going to let this guy drive your truck
without a license in his pocket." You're not going to let him do it as an
employee. It's no different than that, Owen, if we're all sincere about it.
CHAIRMAN RINGEN: How do you -- Owen, how do you deal, for instance,
now if you had a lead job or something like that where training is required.
MR. OWEN SMITH: We know the lead people because we're
making -- we -- because we didn't know that only
those -- if I call -- and say, "Just send me lead
people," if I don't have the guys on my crew, then that's what I'll get,
and they'll have a certificate.
MR. WILLIAM SMITH: Do the same thing.
MR. OWEN SMITH: But --
MR. WILLIAM SMITH: Show the OSHA certified people.
MS. PAUL: This --
MR. RHOTEN: It's no different than having a Social Security card in your
pocket. I mean, the employers get that information quickly. As I understand it,
and I could ask OSHA this question, the training institute in Chicago, I think,
on these 10-hour cards has a list of the names of the people that completed this
course. Is that correct?
MR. WILLIAM SMITH: No, you have to send it in.
(Talking at once.)
MR. WILLIAM SMITH: -- stop when you're done with training, have everybody
have the same cards across the country. Then that's where we're trying to go.
It's like the CCO thing. I mean, that stops the redundancy of training from
employer, to employer, to employer because you've got to do it.
CHAIRMAN RINGEN: It seems to me that the discussion here is not about whether
training is important or whether we have training. Everybody agrees with that, I
believe. The question is -- what?
MR. BURKHAMMER: We all agreed with that.
CHAIRMAN RINGEN: Well --
MR. RHOTEN: If I could, I think we've agreed there's supposed to be training.
The reality of it is there is not training. We're all -- we're sitting
in here and we've got an OSHA regulation that says the employee is supposed to
be alert to all the hazards in the workplace and he's supposed to be trained to
use all the equipment. That, in fact, is not getting done out there and the only
way it's going to get done is that you make it a requirement that you've got at
least a minimum of 10 hours of training, I think.
CHAIRMAN RINGEN: The real issue here is -- in fact, unless I'm
missing something, the real issue here is defining in language here that the
minimum requirement that we should expect in terms of training.
MR. BURKHAMMER: Well, just this particular language, this No. 3. That's the
only comment that I had that --
CHAIRMAN RINGEN: Is your concern there about -- I'm sorry, go
ahead, please.
MS. JENKINS: I just wanted the record to show that this document is presented
as being part of this advisory committee. I would not vote affirmatively because
from what I'm hearing there was no consensus on Item 3, and then when I asked
Mr. Watchman about the reference to the various contractors' programs being
looked at, I don't see that as being shown here anywhere either.
MS. PAUL: Excuse me. We didn't feel -- it was not part of what we
did to look at the other programs. The programs were submitted to Joe Dear. The
commitment to integrate everybody's programs, that was a Joe Dear commitment. It
wasn't an ACCSH commitment, and the whole time the workgroup was meeting, from
the time we had to write our own draft in the get-go, we have dealt from the
same document. The persons involved with those programs were there, and their
ideas and where they were coming from were discussed, and this, and that, but
that was not something that we even attempted to do. We just didn't even attempt
to do that with the time lines we had. And what was the second point?
MS. JENKINS: Being that there was no consensus on Item 3 --
MS. PAUL: Oh, yeah, and I only take exception to the word
"consensus." We don't -- workgroups do not have to reach
consensus. If we would have had to reach consensus, we'd still be on the
paragraph that we were at 2 years ago. Just -- so
there's -- there is not a consensus.
MS. JENKINS: Well, I would still object to --
MS. PAUL: There is opinion, and if that's why we're, the workgroup, is
forwarding it to the full ACCSH because we are not going to get as close to
these issues as we got on some of the rest of them.
MS. JENKINS: Well, I think this definitely would create a paperwork burden on
the contractor.
MR. OWEN SMITH: I have another question with respect to the 10 hours, and
believe me, I'm not against the training. I'm chairman of the training trust for
Southern California, from Nevada to the Mexican border, from Arizona to the
ocean, for the painters, and so we train a lot of people, but within this
training are there some special modules? Do you get credit for anything? For
instance, if a guy's got hazard communications, or the HAZMAT, or if he's got
to -- training, or he's got the lead training, but in all of those I
would think, you know, for us it takes up more than the 10 hours. If one of
those certificates is CPR or something, is that going to satisfy it? Or are we
talking about some other different kind of component where I now have to develop
something else for my people and say that we're going to get all the painters in
Southern California trained that way so they can work? I'd like to know what I'm
buying, is what I'm saying.
MR. RHOTEN: I would like to suggest that you're correct, that you would have
credit for that. I don't think there's any danger of any people, or anybody now
that has training programs that are in place, not being recognized as
equivalent. I think what's going to happen is that the people that don't have
any are going to have to put something together. That's the aim and the intent
of this.
MR. OWEN SMITH: Let me ask another question.
CHAIRMAN RINGEN: My sense is that the reason that this is pegged to the OSHA
10-hour requirement is precisely to try to avoid that to, as fully as possible,
adopt a requirement that already exists out there in many other instances. So
those programs already exist.
MR. OWEN SMITH: Let me ask another question. We know guys that move around.
So a fellow comes into the Los Angeles area, and I call the hall, and have them
send me a couple of painters, and he hasn't been through our program. An OSHA
gets to the job that day. Do I get a citation?
CHAIRMAN RINGEN: I would think so.
MR. WILLIAM SMITH: No different than you wouldn't today. If the requirements
or any of the standards say "you must train your employees on how to
operate the equipment today," and you hire him today and put him in your
equipment today, and haven't trained him on the hazards, you're going to get a
citation anyway.
MR. OWEN SMITH: But, Bill, an engineer, would you call -- when you
call the hall and ask for an engineer for a particular piece of equipment, that
guy's had the training.
MR. WILLIAM SMITH: And the standard --
MR. OWEN SMITH: You know, he's got --
MR. WILLIAM SMITH: And the standard apparently says that you as an employer
must put him through a practical test before you put him in the seat.
Apparently, it says that, and you don't do it, none of the contractors do it,
but if OSHA wanted to cite you on the current standard and the way it's written
by asking you, "did you put him through a practical testing as the
employer's obligation," and you said, "no" or don't have any
documentation on it, you could get a citation today on it. That's the way
that -- and that's from 1968's standard, the 1968 B-30 standard for a
crane operator says as the employer, to qualify him, you must put him through a
practical test. They don't do that.
MR. OWEN SMITH: Well, you don't have to, at least union contractors don't
because they can rely on the fact that when that guy comes out he's
got -- if I call the plumbers, I'll know that guy, he's got that
license.
MR. RHOTEN: Well, I would say this on -- for our organization.
Right now, a lot of -- we have training, safety and health training,
integrated indoor and skill training, so a welder takes, you know, welding
training, and if -- whatever else that's skill, whatever part of our
skill training we have that enters into it. But the reality of it is that
there's a lot of unions that don't put any emphasis on safety and health
training; that will, if you make this a requirement. It's not being done that
way.
MR. BURKHAMMER: Bernice, on your -- one of the parts of your
question, we did include, Judy did in her comments about the Alliance languages,
subcontractor language, and we did take some excerpts out of the different parts
of their documents and inserted them. So there is some in here. Parts of their
documents were sent to Bruce and Jill to be included in the big OSHA -- so
I think they're somewhat satisfactory. There are parts of this kind of thing.
The big issue -- there's two issues, and Owen's raised a lot of good
questions about training, and I think those same questions were echoed a lot by
Bill, and Sandy, and the people from the associations, and myself, and others in
the meeting on Tuesday, and I think that's why there was a pretty general
consensus, Mr. Chairman, that we need a new workgroup established to study this
training. The training issues, there's so many of them, and they're in such
magnitude across the board that we really need a good, in-depth study, and I'd
like to recommend that to the chair.
CHAIRMAN RINGEN: So your suggestion is that we leave the language as is
without the No. 3.
MR. BURKHAMMER: No, leave the No. 3 on page 2 of Judy's report; delete
"see attachment B" and delete on page 2 of the document the big
number, Roman numeral, or the big number 3, which permits only those employees,
and if that can be accomplished then I will second in Judy's motion.
MS. OSORIO: Can I --
CHAIRMAN RINGEN: Describe that for me -- okay, go
ahead --
MS. OSORIO: Stew, would you just --
MR. RHOTEN: Well, I'll second it anyway, Stew.
MS. OSORIO: You know, I just want to make a comment that I don't
want -- what is it? -- the baby thrown out with the bath
water, or whatever that saying is. You know, I think there was a lot of
agreement -- I don't use the word consensus -- on a lot of
parts of this, and it's a compromise statement. Could you not just put in No. 3,
you know, "permit those employees who have training ..." and then as
an action plan have a little workgroup, because I think it was delivery of that
training that, when I was there, caused a lot of discussion and everything on a
lot of these factors. There may be certain sectors that have a different kind of
requirement, depending on what kind of sector the construction is -- I
mean, there's lots of ways to kind of cut it and look at it. So would that be an
acceptable kind of interim, that the group does agree that training is needed
but that the actual mechanism and system for doing that needs a follow-up, maybe
the same workgroup continue with that focus kind of topic to work on. Would that
work?
CHAIRMAN RINGEN: Summarize that, and --
MS. OSORIO: Okay.
CHAIRMAN RINGEN: -- make it shortly.
MS. OSORIO: What I'm saying is that instead of throwing everything out, just
put a place holder where No. 3 is and say that, you know, "training is
required..." and as an action plan state that the health and safety
committee will continue, maybe for one or two more meetings -- this is
if Judy wants it -- but that work will go on in the training, and
especially in the delivery system, and different nuances that need to be looked
at for that training to be achieved.
CHAIRMAN RINGEN: Well, I think Stew had in mind to suggest something of the
same here. For now, delete that No. 3 on page 2, with the understanding here
that we establish a working group. It could be this one or it could be a new
one, however we would want to do it, to review the whole training issue and to
come up with a clear recommendation about how to handle all of this training.
That is including the minimum requirement that we should have.
MS. OSORIO: The only thing that I didn't want to get lost is
that -- so if that could be part of the revisions, or even just action
plans that you put --
CHAIRMAN RINGEN: The report would stay -- as he's proposing it, it
would be at the bottom of page 2, No. 4, in that left-hand column No. 4,
"permit only those employees qualified by training or experience to operate
equipment and -- " no, machinery, is that it?
MS. PAUL: Yeah, that was -- that's what's existing from the
integration but that other one must -- yeah -- delete the
No. 3.
MR. BURKHAMMER: But leave the No. 3 on page 2 of Judy's report, and then take
out "see attachment."
MS. PAUL: Right. Right.
CHAIRMAN RINGEN: And leave No. 3 but take out "see attachment."
MS. PAUL: Yeah.
MR. BURKHAMMER: "See attachment."
MR. RHOTEN: In Judy's report.
MS. PAUL: Because that just adds language. It doesn't say what the precise
language -- yeah, it just says "add language" after, you
know, getting into --
CHAIRMAN RINGEN: Okay.
MS. PAUL: Just because, like it's been said here several times, no one was
against the concept of training. You know, it's just how to accomplish it. So,
in fact, it's going to take some time. Maybe we could get a couple of meetings
on before OSHA picks us up. You know, so, this is -- but
that --
MR. BURKHAMMER: So we have to add some language --
MS. PAUL: Yeah, yeah, we leave this as part of the report, deleting "see
Appendix" --
MR. RHOTEN: Just for clarification, could you tell me what's going on? What's
going on here?
MR. BURKHAMMER: You snooze, you lose.
(Asides.)
MR. RHOTEN: Will you tell me --
MR. BURKHAMMER: Right now we're on page 2 of Judy's report. It
was --
MR. RHOTEN: Yeah, I got that.
MR. BURKHAMMER: We leave No. 3.
MR. RHOTEN: You leave No. 3 where it says "permit only"?
MR. BURKHAMMER: No, no, no, no.
MR. RHOTEN: That's No. 3.
MR. BURKHAMMER: Right here, No. 3 --
MS. PAUL: No, on the cover.
(Talking at once.)
MR. BURKHAMMER: Okay?
MR. RHOTEN: Okay.
MR. BURKHAMMER: No. 3 says "add language requiring OSHA 10-hour course
or equivalent training and Appendix from Seven Associates in language."
Delete "see Attachment B." Then you go to page 2 of the body of the
text, and up here on the top right where it's No. 3, "permit only those
employees who have received the OSHA 10-hour training course or equivalent to
perform construction work. See Attachment B for training requirements," we
delete that.
CHAIRMAN RINGEN: We delete that, the one referring to Appendix B.
MR. BURKHAMMER: Yes. And then the chairman appoints a workgroup to study the
training.
UNIDENTIFIED VOICE: To see how we'll get the training.
MR. BURKHAMMER: All aspects of training.
MR. OWEN SMITH: Wait a minute. Okay, you're okay there. I've got a question
on this Attachment A for the subcontractors' language. Is that part of this
report?
UNIDENTIFIED VOICE: Yes.
MS. PAUL: That's part of the report insofar as we refer to this language on
No. 2.
MR. OWEN SMITH: Okay.
MS. PAUL: Okay? Yeah. The -- it was -- the workgroup felt
that these two examples were better language than what we had struggled with so
long, and so we said let's work -- you know, massage this some.
MR. OWEN SMITH: So, what, you pass it on to OSHA, then they try to make it
all work? Is that what you're saying?
MS. PAUL: Yeah. Let them try and put it all together, everybody's idea,
the -- they may decide to leave it out altogether,
"multi-employer."
MR. MASTERSON: What I see here is it's saying totally delete the previous
version and only leave the other two options, is that correct?
MS. PAUL: Oh, yeah, delete our version and add either of those two languages.
MR. MASTERSON: Well, then I would have to ask that that provision be put on
hold and it -- until OSHA addresses multi-employer provision, because
this is specifically stating things that I can't buy into at all, not ethically,
not in any way.
MR. OWEN SMITH: What's unethical about it?
MS. JENKINS: Well, in the real world Item 4 is never going to happen.
MR. OWEN SMITH: I'm sorry?
MS. JENKINS: I say in the real world, Item 4 is never going to happen.
MR. OWEN SMITH: Item 4 on this page, right?
MS. JENKINS: On Attachment A.
MR. OWEN SMITH: Oh. Hey, you guys take that to advantage of us. What's wrong
with that? You've got all the big -- assuming responsibility.
MS. JENKINS: Because you guys don't do what you're supposed to do.
MR. OWEN SMITH: Well, but we don't have -- I
don't -- look, I have no problem whatever with assuming the
responsibility for my actions and the actions of my employees. What I don't want
is to assume the client's responsibility. I want you guys to show up out there
and say, "Hey, you know, I did this and I'll take the responsibility for
it." And this is just doing what you should do.
MS. JENKINS: And I'm just telling you contractually --
MR. OWEN SMITH: There's nothing ethically wrong. But the ethic is to assume
your responsibility. Hey, I think that's -- you know what? We should
adopt this thing in total.
CHAIRMAN RINGEN: It's looking better and better to you.
MR. OWEN SMITH: Yes, sir.
(Talking at once.)
MR. OWEN SMITH: As a matter of fact, as a compromise, I would buy onto No. 3
if you guys would accept --
CHAIRMAN RINGEN: Well, we'll work this out because there is not much of a
difference here. On Attachment A, No. 4, is that the one you're referring to,
Bernice? Where it says that "each product safety and health coordination
shall coordinate"?
MS. JENKINS: No.
MR. OWEN SMITH: No, no, no.
CHAIRMAN RINGEN: Oh, multiple --
MR. OWEN SMITH: Multiply.
MS. JENKINS: Multiply. Where it says "each employer contracting out
the -- " it's the liability.
CHAIRMAN RINGEN: Oh, it's under --
MR. BURKHAMMER: Keep going, back, back, back.
CHAIRMAN RINGEN: "Employer shall be prohibited from contractual
transfer -- "
MR. BURKHAMMER: No, no, no, turn your pages.
MR. RHOTEN: You've got to go Attachment A.
MR. BURKHAMMER: We're in Attachment A.
CHAIRMAN RINGEN: I understand that. The subcontractor's language now, is this
it?
MR. BURKHAMMER: This one.
CHAIRMAN RINGEN: Yeah, I'm here.
MR. BURKHAMMER: No. 4, liability.
MS. JENKINS: I just made a statement.
MR. BURKHAMMER: Well, first of all, there's no way OSHA can prohibit
contractual liability language that is written in contracts between an owner and
a contractor, or a contractor and a subcontractor, in any way. The
courts -- about that.
MR. OWEN SMITH: But you know, once you guys allow us to go to court and rely
on economic --
MR. BURKHAMMER: And I -- that, you know that?
MR. RHOTEN: I'll let you guys fight that one out.
CHAIRMAN RINGEN: First of all, are we generally in agreement about the
training issue at this point and how to handle that?
MR. MASTERSON: Yes.
CHAIRMAN RINGEN: Are you comfortable with that?
MR. OWEN JONES: Yeah, if you're going to have a group discussion then
I'll --
MR. RHOTEN: Well, I think if we get the subcommittee, as long as you address
the issue of how much training somebody has to have before he can even go on a
site. I mean, training's addressed throughout these standards now. I mean, I
think it's got to be -- if you're going to set up a subcommittee, the
question's really got to be what amount of training is required before the guy
goes on a work site, because training is already addressed. If you're just going
to meet and talk about training, you're just wasting your time.
CHAIRMAN RINGEN: No, no, no, no, but for this purpose we're going to make the
changes that Stew proposed, with the understanding that we're setting up another
workgroup for training. That's okay.
MR. RHOTEN: Yeah.
CHAIRMAN RINGEN: Now, let's deal with the --
MR. BURKHAMMER: -- to address what you just said --
MR. RHOTEN: To address the issue of some basic training before you even walk
on a construction site, that's all.
CHAIRMAN RINGEN: Let's deal with the multi-employer issue, because that's the
other outstanding. You have a concern with the subcontractors' language, which
is the second Attachment A, I guess.
MS. JENKINS: Well, as Stew mentioned, OSHA can't mandate that anyway.
MR. BURKHAMMER: But appreciate, Mr. Chairman, the subcontractors' version of
this whole thing, a body went to OSHA in a letter to the Assistant Secretary and
the Secretary of Labor, so they're going to deal with that after we give OSHA a
cautious word.
CHAIRMAN RINGEN: How is the Alliance going --
MR. BURKHAMMER: Their document is there, too.
MR. MASTERSON: I don't think there's going to be a consensus on this area, or
even close to a consensus.
MR. RHOTEN: We could vote now, though.
MR. MASTERSON: Again, I would propose that this be put on hold or treated the
same way as the training until such time that OSHA can appropriately address the
issue.
MR. OWEN SMITH: I can't understand why --
MR. BURKHAMMER: They can't address the issue properly unless we give them
something to address.
MR. OWEN SMITH: Well, okay, I can't understand why any moral and ethical
person wouldn't want that kind of language. My God, it is -- it's
fair. I mean, why would you be against this? It's like --
(Talking at once.)
MR. OWEN SMITH: But it's justice. Is that what we're here for?
MS. JENKINS: Can I take you to lunch?
CHAIRMAN RINGEN: Justice, that's it. That's what we're here for.
MR. MASTERSON: I can't support any language that makes another employer
absolutely responsible for an employer's employees that he has no control over.
I don't think Owen wants to take, and be held accountable and responsible, for
the actions and behaviors of my employees. I don't think anybody in this room
wants to be accountable for the behavior of my employees when they're not there
to oversee them.
CHAIRMAN RINGEN: I'm sorry, I don't read this anywhere in this document.
UNIDENTIFIED VOICE: Well, that's not where we're --
CHAIRMAN RINGEN: That's not what this whole issue is about. It says exactly
the opposite.
MR. OWEN SMITH: I agree with you.
MR. BURKHAMMER: I believe you.
MR. MASTERSON: I don't see that.
MR. OWEN SMITH: Sure, it says, it says --
CHAIRMAN RINGEN: It says, no, you shall be prohibited from contractually
transferring liability. You can't transfer liability onto another employer.
That's what it says. It says exactly the opposite, I believe, of what you're
suggesting.
MR. MASTERSON: No, I don't see that. I'm sorry.
MR. OWEN SMITH: Read this.
MR. MASTERSON: I am reading it, Owen.
MR. OWEN SMITH: "Employer shall be prohibited from contractually
transferring liability for citations and/or penalties for violations of the Act
to another party."
MR. MASTERSON: What that --
MR. OWEN SMITH: You do something wrong and you get a citation, you should
have the penalties.
MR. MASTERSON: What that -- what that's saying is that if you, as
my subcontractor, do something wrong and my supervisor's not on the site, and I
get cited for it, I can't --
MR. OWEN SMITH: You won't be cited.
MR. MASTERSON: I do get cited, and I currently being cited.
CHAIRMAN RINGEN: But that's not what this language is saying at all. All this
language says is that you, as one employer, can't be held liable for the acts of
another employer, and there is no way that you can contractually agree to do
that on the job.
MR. MASTERSON: Am I -- are you saying that this language is saying
that the general contractor will no longer be held accountable for his
subcontractor's actions if he is unaware of them?
CHAIRMAN RINGEN: No, no, because the question is --
MR. MASTERSON: No, that's my question.
CHAIRMAN RINGEN: -- that -- is an obligation.
MR. MASTERSON: That is my question.
MS. JENKINS: That's not what's written.
CHAIRMAN RINGEN: That's such a general question that you couldn't possibly
answer it.
UNIDENTIFIED VOICE: Bob, what if you are unaware of something you should have
been aware of?
MR. BURKHAMMER: Mr. Chairman?
CHAIRMAN RINGEN: Yes?
MR. BURKHAMMER: I think, and I'm not part of this, but I think this was
written for the mirror citation issues, where there's a lot of contractors today
that in their subcontract try saying, "If the sub -- " You
know, "If we receive a mirror citation for a violation committed by a
subcontractor, you, Mr. Subcontractor, are responsible for paying our citation
as well as your citation." And what this language says is you can't
contractually pass liability from Contractor A to Contractor B, or C, or D, or
E. And you can't. So this actually strengthens, I think, the way it should be
than the way it's being done in a lot of cases.
CHAIRMAN RINGEN: Absolutely. It tries to clarify that on multi-employer
sites, every employer is responsible for his or her actions --
MR. RHOTEN: Correct.
CHAIRMAN RINGEN: -- and are held liable for that, but the issue --
MR. MASTERSON: And not held liable for other contractors' actions.
CHAIRMAN RINGEN: -- there should be an effort made to coordinate among all of
the employers here. It's within the context of trying to coordinate things on
multi-employer sites, and they want to make sure that exactly what you're
concerned about doesn't happen. I think --
MR. OWEN SMITH: If I do something wrong, you shouldn't have to pay for it.
MR. MASTERSON: I am --
MR. OWEN SMITH: It's just simple. Simple as that.
MR. MASTERSON: I am currently paying for it. I can show you citation after
citation.
MR. OWEN SMITH: But we don't want you to pay for it.
MR. BURKHAMMER: Yeah, but that's the way it is.
MR. MASTERSON: That is the current procedure and that's my question. Are you
saying that in this language the general contractor will not be held accountable
for subcontractors' actions if he is unaware of them?
CHAIRMAN RINGEN: As long as a --
MR. WILLIAM SMITH: It just says contractually you can't transfer it, and
that's what Stew was saying.
MR. OWEN SMITH: Yeah, it's a contractual issue.
MR. WILLIAM SMITH: But you still have -- and controlling interest
over your subs, to some extent, and you will be liable for that interest that
you have over your subs.
CHAIRMAN RINGEN: You're not a potted plant out on these job sites. That's
the -- under any circumstances. You've got to -- there are
some things that you're obligated to do when you select subs and supervise subs.
If you don't do that, then you're going to be held liable, but assuming that you
do everything that you should be doing as the general contractor, then the
liability doesn't fall on you.
MR. MASTERSON: That's not the way it works today.
MR. OWEN SMITH: That's the way it's supposed to work.
CHAIRMAN RINGEN: -- no one has time to --
MR. MASTERSON: I don't see anything in here that does that.
CHAIRMAN RINGEN: That's what -- I think, all the rest of us see
that as being what this language on the subcontractors page says. I think it's
good language.
MR. BURKHAMMER: I think it protects you, Bob, from what you said.
MR. MASTERSON: I'm sorry, I don't see the protection. All I see is the
exposure.
CHAIRMAN RINGEN: Which exposure? The exposure is there. Now, the aim is to
create better coordination on these sites in such a way that it's clearly
defined that each employer is responsible for his or her actions and will be
held liable for them, and no employer will be held liable toward the actions of
any other employer. Unless, unless there is a failure to carry out what you're
supposed to carry out in your selections for --
MR. MASTERSON: Will you put that language in this?
CHAIRMAN RINGEN: Hmm?
MR. MASTERSON: Will you put the language you just said in here?
CHAIRMAN RINGEN: Well, I don't think we can write all of that in here because
that's more detail than is required, but we could certainly add a paragraph to
the report saying that this is our interpretation.
MR. OWEN SMITH: Absolutely. And don't normally when you do these things you
have legislative intent?
MR. BURKHAMMER: Is that very comfortable?
MR. OWEN SMITH: So you know what "a long time ago" when we get
fuzzy, you can go back and see what the framers of it meant? When they
had -- during the debate you dig out the pages, and you read through
it, and say, "this is what they said, this is what they meant, this is the
interpretation."
CHAIRMAN RINGEN: I never thought I'd be referred to as a framer.
MR. MASTERSON: Okay, Attachment A, I guess it's the second one? American
Subcontractors Association, Item No. 3, "The entity with authority for
directing activities at the job site shall have responsibility for coordinating
the safety requirements of different employers consistent with the provisions in
II." Provisions of II: "Each employer shall establish and follow
procedures for coordinating their safety and health program for affected
employees, notify affected employers of high hazard operations." What
you're saying is the one general contractor is going to ultimately have full
responsibility for the actions of every contractor out there in his program.
CHAIRMAN RINGEN: No, no, no.
MR. MASTERSON: That's the way I'm reading this. I'm sorry.
CHAIRMAN RINGEN: Shall be responsible for making sure that each contractor
knows about the responsibilities.
MR. OWEN SMITH: What do you do now? Do you --
MR. MASTERSON: It says, "Directing each -- the entity with
authority for directing activities at the job site shall have responsibility for
coordinating safety requirements."
MR. OWEN SMITH: Bob, what it says, you know, you've signed a contract with
the guy. You say, "Send me a copy of your safety program, if you have a
safety program." And he sends it. You do it right now. And that's all that
that says.
MR. MASTERSON: Owen, I appreciate --
MR. OWEN SMITH: And then -- wait --
MR. MASTERSON: I appreciate you do your business your way.
MR. OWEN SMITH: Wait a minute --
MR. MASTERSON: But that's not the way most small contractors
want --
CHAIRMAN RINGEN: I think that there is a language distinction we need to make
from what you said, Bob, and I think all of us will try to work with the
language to make it better because we all know the intent of what we're trying
to accomplish here is the same.
MR. MASTERSON: Yes.
CHAIRMAN RINGEN: And what you said, "the entity with authority for
directing activities at the job site shall have responsibility for directing
safety." Here is says "for coordinating the safety requirements."
That doesn't mean that each employer isn't responsible for maintaining his or
her own safety program and operating according to it out there. Doesn't do away
with any of that, but it also doesn't do away with the responsibility of the
primary or whoever is the controlling contractor on the job site to make sure
that when they select primes and everything else that they do what they're
supposed to do.
MR. OWEN SMITH: Let me ask you this, Bob --
MR. MASTERSON: Is Steve Jones still around? Can we have him brought in?
CHAIRMAN RINGEN: No, we don't want a lawyer in here.
MR. MASTERSON: That wasn't the question, Knut. Knut, that wasn't the
question, I'm sorry.
CHAIRMAN RINGEN: Here we have lawyers.
MR. MASTERSON: The OSH Act gives jurisdiction for OSHA over employees and
employers, not crossing the employer/employee boundaries, and this clearly
crosses that boundary and makes me responsible for all actions of my
subcontractors, whether I'm aware of it or not.
MR. OWEN SMITH: No. I disagree with Bob. I disagree -- you know,
it's the same thing as the insurance issue. When you get a job -- as
soon as you sign a sub, you ask him to send me your insurance, and you look at
it, and you say, "Hey, you know what? You don't have enough insurance. I
want you to increase it to this."
MR. MASTERSON: Are you referring to Workers' Compensation?
MR. OWEN SMITH: Any. Liability, the whole thing.
MR. MASTERSON: Every state requires that if your insurance lapses and your
employee gets hurt, it rolls onto my policy.
MR. OWEN SMITH: What's the real world? The real world is --
MR. MASTERSON: That is the real world.
MR. OWEN SMITH: The real world is when you sign a contract with the guy and
you ask for his insurance, you ask for his comp and his liability. If you don't
like them, you say, "You need bigger limits." This
says -- and this is no different. We deal with a lot of different
people and what happens if they get -- if they ask for our safety
program, and they don't like it, they say, "Look, we don't like it. Here's
how to sign off on it. This is what you've got to do, Bob."
CHAIRMAN RINGEN: Let's -- here's what I suggest we do. I think it
is our understanding that this language says that although the prime contractor
has responsibility for coordinating, or whoever the controlling entity is, for
controlling -- for coordinating things on that job site, doesn't mean
that he's responsible for the actions of every employer on that job site. That's
all this tries to say, but there has to be coordination on multi-employer sites.
We all agree on that. There also has to be a clear delineation of liability
where every employer is responsible for his or her actions within that effort of
trying to coordinate things better. Right now we have situations where because
of poor coordination, you end up being liable for the actions of another
contractor who isn't doing his or her job properly out there because it spills
over on you. This the attempt to deal with that issue, if I understand it
correctly. Without taking away -- simply improving coordination and
improving things, being done better, without taking away the responsibility of
each employer for his or her own actions, and as long as this is now in the
record here, clearly stated, and it will be in the transcript of this meeting
and we can attach the pages from the transcript that has our discussion so that
it's understood that the -- we're all in agreement with you about the
issue that you raised. The rest of us think that the language addresses this,
however, in the course of doing rule making and writing all of this stuff,
they're going to come up with -- that's when the lawyer become
involved in the business and I'm sure they'll change it a lot. But as long as
it's understood what our intent here is by attaching the transcript pages, then
they can work with it, and then in the rule making process you all can deal with
it then, if you -- or when OSHA comes back with its proposed standard
to us, then we'll see whether this has been addressed adequately. But if we
leave it at that, I suggest that we take a vote on that. So the vote is we need
maybe a revision of your motion.
MS. PAUL: Okay, I'm going to reread it?
MR. MASTERSON: I still ask that that be held.
CHAIRMAN RINGEN: You ask that the --
MR. MASTERSON: That the multi-employer provision be struck.
MR. OWEN SMITH: That's --
MR. RHOTEN: Make a motion and table is all you can do.
MR. OWEN SMITH: Well, what if he -- why --
CHAIRMAN RINGEN: We can't pass it without the multi-employer stuff in it.
MR. MASTERSON: We just passed it without the training provisions.
CHAIRMAN RINGEN: No, the training provisions are still in.
MR. BURKHAMMER: Except for No. 3.
MR. MASTERSON: I think it needs to be addressed the same way, then.
MR. BURKHAMMER: Are you motioning -- are you making a motion to
table?
MR. MASTERSON: I'll make a motion to table.
CHAIRMAN RINGEN: Do we have a second on that?
MS. JENKINS: I second that motion. I think we ought to table it.
(Talking at once.)
CHAIRMAN RINGEN: First is there any -- we have a motion to table
this to await the next meeting to work on this language in between, I suppose is
what you're saying, right? If the -- and that has been seconded. Is
there any discussion of that motion?
MR. RHOTEN: It has been seconded?
CHAIRMAN RINGEN: Yes, it's been. Bernice has seconded.
MR. OWEN SMITH: Do we have to vote on that?
MR. RHOTEN: No discussion unless you do.
MS. OSORIO: I just need clarification so I think what I'm
hearing -- I'm just trying to capture this -- that the same
way that the training No. 3 was dealt with, that the part about multi-employer
will be held for another subgroup, or may the same group look at that as with
training, is that what you're proposing?
MR. MASTERSON: That's what I'm asking for, and in the absence of that I would
move that it be tabled.
CHAIRMAN RINGEN: That's correct. Judy reminds me that we've already passed a
multi-employer provision before, which none of us think is particularly good,
and if we table this then that still stands. We would like to improve it.
MR. RHOTEN: Well, I call for the question on this table and some of the
table.
CHAIRMAN RINGEN: On the tabling?
MR. RHOTEN: Yeah, there's a motion on the floor and I don't
think -- let's get to find out if it's tabled or not. If it's not
tabled, let's talk the question.
CHAIRMAN RINGEN: Time is running very, yeah, just time is running out on us
here. Is there any way that we can fix this language right now in such a way
that it captures what you have in mind, just do it quickly? Can you suggest?
MR. BURKHAMMER: We can only do that after the motion is already on the table.
CHAIRMAN RINGEN: Oh, okay, I'm sorry. I do believe you're right about that.
Yes, we have the motion. Is there any discussion of that motion to table?
MR. BURKHAMMER: I call for the vote.
CHAIRMAN RINGEN: All in favor say aye? All opposed? All opposed say
"aye"? All opposed say "nay." The motion to table is not
adopted at this time. Then we go back to the attitude we have not tabled this.
MR. RHOTEN: Just maybe a comment. I mean, if we think that we can ever get
something passed on to OSHA from this committee that everybody is going to agree
on 100 percent, I mean, it's just not going to happen and, again, I think where
this is going to end up at there's going to be adequate discussion on it
downstream, just like all the other issues. So I don't think this is the end of
the discussion on the issue but I think we've got to move on and pass something
on that is -- we move on and get off the table here.
CHAIRMAN RINGEN: Well, that's why I suggested that we attach the pages of the
transcript when we send this on so it's understood that we've had this
discussion, and that while the majority was uncomfortable that is here, it
can -- to some it's interpreted differently and that, one, OSHA should
look at that language very carefully. So we still have a motion on the floor,
which is your motion, and --
MR. BURKHAMMER: No, Judy's motion, original motion, was first. I seconded
only if we made an amendment to the original motion. Now it's up to her to
either amend the original motion --
CHAIRMAN RINGEN: Right.
MR. BURKHAMMER: -- or stand as is.
MR. RHOTEN: We should have voted on the amendment, then this
wouldn't --
MS. PAUL: I think we all agreed.
CHAIRMAN RINGEN: I think having proposed the -- I think he proposed
the motion, agreed to amend.
MS. PAUL: Now I don't know how to read the amended motion.
(Aside.)
MS. PAUL: I'll read the original -- I'll just read the original
one. On behalf -- no, I won't read that part. I would like to move
that since no action has been taken by OSHA on the document ACCSH approved 8/96
to pass onto the Assistant Secretary, and since Mr. Rauchman did not echo Joe
Dear's commitment to us regarding a separate standard for a construction safety
and health standard, I move the attached, revised document --
CHAIRMAN RINGEN: Be adopted.
MS. PAUL: -- be adopted
CHAIRMAN RINGEN: Subject to.
MS. PAUL: -- subject to amending No. 3 on page 2 of the report, to delete No.
3 --
CHAIRMAN RINGEN: Hold it -- not all --
MS. PAUL: -- to delete No. 3, "see Appendix B," and in the revised
document on page 2 that No. 3 that is bold and underlined starting with
"permit only those employees who have received," et cetera, at the top
of the second column on page 2 --
CHAIRMAN RINGEN: And.
MS. PAUL: -- and -- and that this document then be forwarded both
to the Acting Assistant Secretary and to the Secretary of Labor herself using
the strongest language possible to make the point that we feel it essential to
separate the safety and health program standards.
CHAIRMAN RINGEN: And that the pages from the transcript that refer to our
discussion of the issue of multi-employer site coordination be included.
MS. PAUL: Be included.
MR. BURKHAMMER: Second.
CHAIRMAN RINGEN: Excellent. Second. That's the motion. Any discussion of it?
MR. RHOTEN: I call for the question.
CHAIRMAN RINGEN: Okay, all in favor of the motion? All opposed?
MR. MASTERSON: Aye.
CHAIRMAN RINGEN: No, you should say "nay."
MR. MASTERSON: Pardon me?
CHAIRMAN RINGEN: You're opposed. You're supposed to say "nay."
MR. MASTERSON: Nay.
CHAIRMAN RINGEN: Approved. Okay, so that is the motion of the document.
MR. BURKHAMMER: I have a motion.
CHAIRMAN RINGEN: Okay.
MR. BURKHAMMER: That I'd like to make on behalf of a discussion that took
place yesterday, and that motion is to recommend to OSHA that when a safety or
health standard is promulgated it is to be considered to be applicable to
construction, that the standard at its earliest development stages be brought to
this committee for input, participation, and development, and a draft. In
addition, we feel that the 1/3 Butadiene standard that was arbitrarily made
applicable to construction and not reviewed by ACCSH be rerouted through ACCSH
for review, comment, and possible recommendation back to OSHA of withdrawal of
applicability to construction. This motion is consistent with a previous
National Constructor's Association lawsuit regarding this issue.
MR. WILLIAM SMITH: I'd like to second that motion, Mr. Chairman.
CHAIRMAN RINGEN: Do we have any discussion of that motion?
MR. WILLIAM SMITH: I call for the question.
CHAIRMAN RINGEN: Yes. All in favor of the motion? Any opposed? Thank you,
motion is adopted. We still have some stuff left on the agenda and we're running
out of time. The -- we have quick -- we have reports from
the Scaffolding Appendix-B group?
MR. OWEN SMITH: Yes, progress.
(Asides.)
MR. OWEN SMITH: In Chicago, the Scaffold Institute asked for a meeting in
Chicago because that's central, in May for the 5th and the 6th, and they're
going to give us some additional input, and we were a bit troubled by the agenda
that we saw because they kind of indicated three different things. We don't
really know what is the true state of affairs, and we kind of think that there
needs to be an independent study. I think Labor would be comfortable with that,
and certainly I would be comfortable, and everybody agreed that if an
independent study was made, then everybody would buy into it. I don't know where
the money is going to come from. The Labor people certainly didn't want the
Scaffold Institute to provide the study because they felt it might be slanted,
and I don't blame them, but if there's some kind of way we can get the three
parties together then that certainly would work well for everyone, I believe,
and we've got some data coming in at this meeting to tell us how it should be
structured.
CHAIRMAN RINGEN: If there is a way to find somebody who can just
let -- that all three groups agree to that can design that study,
that's independent, and then we can find a way maybe between different sources
to finance it.
MR. OWEN SMITH: Yeah, I don't -- yes, I don't think there's a
problem with having NIOSH do it, but NIOSH said they didn't have the money. But
I don't know. Anyway, that's the weekly report.
CHAIRMAN RINGEN: Okay, thank you. Data Collection, Ana Maria?
MS. OSORIO: I want to just -- can you pass this along? I'm sorry to
say that this is a non-controversial workgroup so this will take 2 seconds
hopefully. Just basically this workgroup was formed as a consequence of the last
ACCSH meeting with the following three goals: to explore possible existing
exposure and health and safety sources for construction workers, to review what
Fed OSHA is currently doing with respect to data collection and evaluation of
its activities, and thirdly, suggest which data might be good performance
indicators to use in evaluation of Fed OSHA construction activities. I won't
bother you by individually acknowledging all the workgroup members, but they
were all quite vocal and very helpful in getting the direction going for this
workgroup. This -- there have been two workgroup events. One was a
tele-chat on the 6th of February and another was a meeting earlier this week,
and those two -- we heard two presentations, one about NIOSH resources
and databases they've been using by John Sestito, another one on what OSHA is
currently doing by John Franklin; and we've been compiling -- that
should be compile -- pertinent materials and resource documents. So
some of the action items that we're going to be working on is: we're going to be
sending out a brief questionnaire to 21 construction associations and 2 unions
which will ask if they are currently collecting or evaluating any health and
safety or exposure data within the construction industry that might be useful
for our evaluation effort, and I just want to thank the Center to Protect
Workers' Rights and Stew for helping coordinating; and some of the materials
collected thus far -- I'm not going to bore you with some of the stuff
but if anybody sees anything there they would like copies of, except for the
books -- I can't Xerox entire books but I can give you excerpts. Then
yesterday John Franklin was very sweet and provided me with a CD Rom that
contains all the training materials that are currently provided to OSHA field
inspectors, including what the protocol is when they go to a site, and also a
listing of what all the data elements are that are contained within the IMIS
System, the database contained within OSHA that has all the compliance
information, and also what the OSHA fatality inspection protocol and data
elements are, and so the immediate plans then are to have further collection of
the materials that we mentioned already, distribute pertinent materials that I
just received yesterday to workgroup members, also compile the results of the
Limited Scope Union and Association Data Collection survey, and also I'd like to
have a meeting -- I'm going to five now -- maybe between
this meeting and the next one. It's kind of hard to get people to take a whole
week off of work, so I think, like, this week for a meek personal was kind of
hectic. I guess there's like four intense days. So it might be, if it is within
the scope of the -- if it is okay with the Chair, to maybe have an
interim meeting, and if possible, have it concur with Stew's meeting because
some of us are in the Ergo as well as the Data Collection group, and then what
I'd like to have before that meeting is really have each work member do some
homework and basic and materials have already been presented to them, and it
will be circulated to them, come up with a list of specific parameters that they
think might be useful as a core list of variables that could help the
construction directorate and OSHA in general evaluate their progress and
effectiveness in their activities. I'd like to thank everybody for their
contributions and enthusiasm. That's the report.
CHAIRMAN RINGEN: Let me cover quickly something about the Residential
workgroup and then we'll wrap, and we'll send you a written report on that
later. Bill Rhoten, Bob Masterson and I are serving on that workgroup. We've met
twice. We've had two rounds of information gathering. There are still quite a
bit of differences of how we should go about doing this between people and a bit
of difference about how the Congressional intent should be interpreted under
this study, but overall I think we've made some pretty good progress, even
though after only 7 weeks of talking and two meetings, one group decided to pull
out of it. I should point out that I took almost 4 months for them to negotiate
the two sentences of language that's in the Congressional bill that we're
operating under, so it's unreasonable to expect all of these groups that we have
involved in this working group to reach an agreement about this project in a
period of just 4, 5, or 6 weeks. Then we have Dr. Dunlop trying to mediate some
of this together with the Secretary and some of the parties to this, and what we
will do is await the outcome of what the Secretary decides before we go further,
and there are some of the workgroup participants who don't feel that ACCSH is
the appropriate venue for this. They prefer to move it back to OSHA. We don't
have any particular objection to that, I don't think. If somebody else wants to
take it, be my guest, but I don't think that they're going to achieve consensus
any faster under those circumstances -- or the result is going to be
produced any better, and I don't see how OSHA, with the constraints that it has
in the Federal Advisory Committee Act is going to be able to accommodate
that -- to accommodate the dual request that we move back to OSHA, but
at the same time that the participation be broadened in the deliberations here.
There are a whole bunch of issues like that that remain. What I hope will be
accomplished is that by the end of this fiscal year we will have the design for
a good study done in such a way that it can be contracted out and monies
obligated, because there's no way it's going to be completed in this fiscal
year. And so we will see what the Secretary does. If it comes back to us we will
proceed as we have. If it goes someplace else, we won't object. Yes, Stew?
MR. BURKHAMMER: Can I offer a comment to the Chairman? I think the workgroup
reports are really important and we kind of shoved them to the very
end --
CHAIRMAN RINGEN: We did.
MR. BURKHAMMER: -- and four members had to leave, and the Solicitor isn't
here, and there are a lot of issues, I think, on workgroup reports that need to
be addressed, maybe the front end of a meeting rather than a back end.
CHAIRMAN RINGEN: Good point. I did -- I hadn't expected to have
that much discussion today.
MR. RHOTEN: I think that's a good point, too, Stew. If they had been earlier,
I could have had enough votes to get this thing --
(Asides.)
CHAIRMAN RINGEN: What if we try to do the workgroups on the afternoon of the
first day in such a way that if there is some work that needs to be done, then
that can be done --
MR. BURKHAMMER: Well, the problem with that is a lot of us sit on more than
one workgroup and if you put them all on the same afternoon, you've really
broken up the continuity of the workgroups by spreading the membership
out --
CHAIRMAN RINGEN: Oh, no, no, no, I mean, the reports. The reports.
MR. BURKHAMMER: Oh, I'm sorry.
CHAIRMAN RINGEN: I don't think we're going to be able to function the way as
have before with half the day in the morning and then working groups meeting in
the afternoon.
MR. BURKHAMMER: Yeah, the first day it's on.
CHAIRMAN RINGEN: If we, in the future, try to put all the working group
reports in the afternoon of the first day, that way we can work on them a little
bit then we might be able to resolve this kind of thing here today. I don't know
if we could but --
MR. RHOTEN: But that gives all our members a chance to participate and the
Solicitor here to answer questions.
CHAIRMAN RINGEN: -- gives us time to say, okay, we'll delay that until
tomorrow and we'll take it up again. I think that's a very good --
MR. RHOTEN: Excellent recommendation.
CHAIRMAN RINGEN: We'll do that in the future. Oh, thank you. Judy.
MS. PAUL: Yeah, I just want to be on record as thanking all the stakeholders
who worked so hard on getting this work done. I really appreciate it. There's a
sign-in list from Tuesday that's attached to your -- the information
that was passed out, and some of those people have been at every single meeting.
So I really, really appreciate all the hard work, and I want to especially thank
Camille Villanova with OSHA. You know, General Industry might have 30 people. We
have one but she has done a terrific job for us. So I want to give real good
thanks to Camille.
CHAIRMAN RINGEN: Now, the final thing that we have left is to establish the
training workgroup that's part of our agreement on this earlier thing, and can
we have a recommendation or suggestion from somebody to chair that?
MR. BURKHAMMER: I'll do it.
MR. RHOTEN: I think that will be fine. I'll get all your meetings.
MR. BURKHAMMER: I know you will.
MS. PAUL: So will I. So will I.
(Asides.)
CHAIRMAN RINGEN: Stew will be Chair, Bill Rhoten co-chair.
MR. RHOTEN: I'll Co-chair.
CHAIRMAN RINGEN: Do we have any other --
MS. PAUL: I'm not going to be anything chair on that one, that's for sure.
(Asides.)
CHAIRMAN RINGEN: So Stew is Chairman, Bill is Co-chairman. The following
people are participating in it: Bob Masterson, Bernice Jenkins, Judy Paul, Bill
Smith. We've covered a lot of ground. Okay. And, so you will take some action so
that you'll meet on that before the next --
MR. RHOTEN: You betcha, I will. Right after lunch --
CHAIRMAN RINGEN: Before we finish, there were three issues outstanding from
the previous meeting. At the last meeting, we asked all of you to send us
comments, if you had any, about the different kind of -- values that
OSHA and EPA uses for some chemicals. We haven't gotten back any responses from
anybody on it, so I don't know whether we have much to say about that issue. The
second thing that was proposed at the last meeting was that after the federal
procurement people were here we drafted a letter to OSHA about suggestions in
the ways to improve procurement policies. Bernice, you had a concern about that
and we haven't done anything more on it since your letter, and if it's all right
with the rest of the committee, maybe Bernice and I can try to work out those
whatever differences there in there, and we will circulate a draft after that
revised draft to everyone. The final thing is Mr. Rhoten and Mr. Masterson, you
are responsible for these appreciation plaques.
MR. RHOTEN: I think Mr. Masterson's got his completed and I'm sorry to report
that I haven't gotten the final language documented, but --
CHAIRMAN RINGEN: So we have one of them completed and -- yes, I
know we have language. He has language.
MR. MASTERSON: Yeah, he has the language. It's with him. You didn't burn
them, did you?
MR. RHOTEN: No.
CHAIRMAN RINGEN: Bill, we'd better get together and make sure that we process
those fast.
MR. RHOTEN: I -- if you would like, what we can do is get the
language put together, then FAX it out to everybody that's on the committee, and
with your approval, go ahead and have the plaques made.
CHAIRMAN RINGEN: Okay.
MR. RHOTEN: Would that work?
CHAIRMAN RINGEN: Yeah.
MR. RHOTEN: So that it will wait until the next meeting and just FAX
everybody one, and they can -- so they could all change it a little
bit like we normally do.
CHAIRMAN RINGEN: Finally, with regard to the next meeting, if I suggest that
we should try to think about setting a date because I can't do
it -- but that we think maybe 2 months or so from now, which would
either be late May or early June sometime. Are either of --
(Asides.)
CHAIRMAN RINGEN: Is the first week of June good for everybody?
MS. OSORIO: I'll be in Mexico at a conference so -- but I'm not
critical to the process.
MR. RHOTEN: Where's your conference?
MS. OSORIO: In Mexico? It's Border Housing stuff.
UNIDENTIFIED VOICE: Puerto Vallarta?
MS. OSORIO: No, Mexico City.
CHAIRMAN RINGEN: Okay, the first week of June, that's no good for you but I
think it's good for everybody else.
(Asides.)
CHAIRMAN RINGEN: Yeah, the week of the 2nd, and assuming that the 2nd may be
a holiday -- I don't know that but -- why don't we try for
Wednesday and Thursday of that week, which is June 4 and 5. June 4 and 5, and
then we'll have working groups meet on June the 3rd, unless you want to schedule
it otherwise during that week, okay? Do you have any other issues that we need
to discuss? Any more outstanding issues? It's 12:20 and we're adjourned. Thank
you all very much for coming and for having a very good, and I thought real
productive, meeting. It certainly exhausted me.
(Whereupon, the proceedings ended at 12:20 p.m.)
REPORTER'S CERTIFICATE
TITLE:
ACCOSH
DATE:
March 14, 1997
LOCATION:
Washington, DC
This is to certify that the attached proceedings before the United States
Department of Labor, Office of Administrative Law Judges were held according to
the record and that this is the original, complete, true and accurate transcript
which has been compared to the reporting or recording accomplished at this
hearing.
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