Document n99ReB80pJwYJqYOemkwxKmaz

ffBRUARY 23. I 9 A fl / V O L l1 Mi. 7 , NUMBER 3 Pg^luhtd 9t*ty Olhff wprk Mhile Control it * u^'in tir t** O^pjHmoni u* Comrrpi'* 0* **'' U**l*d *rtp Wj^'flllon, 0 C. SubttflOticns S5 *>Q per ye** Ip of Wr fcji.unjl CNimppi, 1J *.U h nci Pitft *cr i"i't*p swoicriptiont of Diaik orocn avjiIjgi on icqueit MjIchai a wt bjtictiANnjy oe rcp<odvcc4 #*tA or **tngut crdl. Io*toi wj'Uct Oivi I PLAINTIFF'S EXHIBIT ACS-339 The Occupational Health & Safety Act 3 Everyone in America is in favor of safety. Yet accidents continue to happen. A woikman removes a guard from a saw because it gels in his way -- and loses a hand. A bulldozer overturns and kills its operator. Two teenagers decide to race down (he highway in their cars. Out of the 113,000 people who were killed in accidents in 1966 -- the last year for which complete records arc available -- almost half, some 53,000 were killed in motor vehicle accidents. Another 29,000 were killed in accidents around the home. About 14,500 were killed in accidents that were classi fied as "at work". In his special Message on Manpower, the President out lined various proposals for expanding job training and a Jrogram designed to put the hard-core unemployed to '^v.'ork. Grafted on to the end of this message was a proposal to attack the problem of industrial accidents through a new Federal Government program. The President declared that 14,500 workers are killed on the job each year, that 2.2 million workers arc injured, that 250 million man-days of productivity are wasted, and that the result is a loss of S5 billion to the economy. The reason for this accident and death toll is clear, the President implied: The Federal Government has not taken charge of industrial safety. The reasons for these staggering losses are clear. Safety standards arc narrow. Research lags behind. En forcement programs are weak. Trained safety specialists fall far short of the need. The Federal Government offers the worker today only a patchwork of obsolete and ineffective laws. The major law -- Walsh-Healey -- was passed more than three decades ago. Its coverage is limited. It applies only to a worker performing a government contract. Last year about half of the work force was covered, and then only part of the time. It is more honored in the breach than observed. Last year. Investigations revealed a disturbing number ol vio lations In the plants of government contractors. Comprehensive protection under other Federal laws is restricted to about a million workers in specialized fields -- longshoremen and miners, for example. Only a few Stjtes have modern laws to protect the worker's health and safety. Most have no coverage or laws that arc weak and deficient. The gap in worker protection is wide and glaring -- and it must be closed by a strong and forceful new law. Legislation (H.R. 14316, O'Hara. D-.Mich. and S. 2364. Yarborough, D-Tex.) was hastily drafted and introduced, and hearings were hastily called in the Senate and die House. Because almost every American deplores any accident, it is somewhat surprising perhaps that the immediate reaction to the proposal has been less than unanimously cndiusiastic. Why? To get the answer to that question it is necessary to examine both the dimensions of the proposal and tiic two basic assumptions on which it rests. These assumptions arc: (1) Little is really being done in the area of industrial, safety; (2) The Federal Government, and mote specifically the Secretary of Labor, given sufficcnt authority, is equipped to solve existing problems -- without creating additional major problems. The Bill's Provisions The bill outlines - in general terms - seven goals for the Federal Government in .the area of safety: 1. The establishment of mandatory occupational safety and health standards applicable to businesses af fecting commerce. 2. Effective enforcement of these safety and health standards. 3. Providing research relating to occupational safety and health. 4. Providing training programs for personnel engaged in the field of occupational safety and health. 5. Delineating more clearly the responsibility of the Federal Government in its activities related to hejltn and safety. 6. Providing grants to the States that could be used to identify needs and responsibilities and to conduct experimental and demonstration projects. 7. Requiring "appropriate" accident and health re porting procedures. Several of these goals deserve closer scrutiny, especially those relating to standards, enforcement, the grants to the states, and the "delineation" of Federal authority. Standards. One of the most striking features of the bill is that the power of the Secretary to issue them is unlimited. No guidelines arc outlined, oilier than that ;Jic Secretary may prescribe the standards "from time to time after ap^ propriatc consultation with other Federal agencies." Because the bill provides that "any employer engaged in business affecting commerce shall furnish employment and a place of employment which arc safe and healthful and shall comply with the standards," presumably they would cover every aspect of a plant from patkjng lot to cafeteria and wash room. During hearings so far little attention is being paid to the character of these standards, or whether the Secretary would have difficulty in formulating them for every con ceivable type of business in every conceivable location. N'or was much help obtained from Secretary of Labor Willard Wirtz' testimony on them during hearings. In this prepared Senate testimony, he said: The bill authorizes the Secretary of Labor to establish safety standards, codes or regulations using all standard setting agencies, botli private and public, in the discharge of this function. During questioning, lie added: These standards will be the heart of the enforcement procedure which is conducted by HEW as far as the Federal Government is concerned and by other agencies, state agencies and private agencies, the latter of which have developed a good deal of the work which has been done in this standards area. Several times, the Secretary said that tire standards will be established with a "considerable degree of particularity," which probably means in some detail. Enforcement. Although the Congressional Committees and the Secretary talked little of standards, they did talk a great deal about enforcement of the standards. In order to carry out the purposes of the Act, the Secretary or his designated representative* is authorized to enter any factory, plant, workplace, or other area subject to the Act at "any reasonable time" and to inspect "such place or environment and all pertinent conditions, struc tures, machines, apparatus, devices, equipment." The Secretary may delegate this authority to any other agency of the Federal government or any appropriate State agency. On the basis of these investigations, the Secretary may move either adnu'nistrativcly or through the courts. Administratively. The Secretary may hold a hearing after which he may issue any order necessary to enforce the provisions of the Act. Reasonable quc^lions about Washington understanding of the com plexity of industrial safety mieM be raised bv the Secretary of Labor's suggestion during the hearing (hat the hird-corc un employed be trained as subpiofeisiomls to regulate and enforce the no* safety provisions If he considers it to be an extreme ease involving immi nent danger to employees he may shut down the plant completely without any hearings. The Secretary is authorized to impose a SI.000 fine for each day the violation existed, if there is a hearing, or for each day that an order is not obeyed. Courts. The Secretary could also move through the courts whenever lie has "reason to believe" that the Act or any safety rules he had issued under it were being violated. On the basis of court decisions in National Labor Relations Board eases, this probably means that the Secretary could receive an injunction without having to prove his ease by a preponderance of evidence. He would be required merely to show he lias "reason to believe" a violation exists. The employer has the right to appeal to the Federal District Court for review of the Secretary's order, but that order is continued in effect during the review. There would be no presumption of innocence, and the employer would be required to show that the Secretary determination was wrong. Criminal penalties -- jails and fines -- could be imposed for willful violations. Contracts. Additionally, the Secretary may declare any person ineligible to receive government contracts if lie be lieves that person is disregarding his obligations under the Act. Persons and firms declared ineligible for government contracts cannot appeal to the courts. Grants to the States. The Act would authorize the Sec retary of Labor to make grants to the States to assist them in identifying their needs and responsibilities in the area of occupational safety and health and to develop plans for: establishing systems for the collection of information concerning the nature and frequency of occupational injuries and diseases. increasing the expertise and enforcement capabilities of State personnel. improving the administration and enforcement '.of State occupational safety and health laws, including standards. The Federal share for such State grants could go up to 90 percent, but, as a condition for the grant, the Slate would have to agree to comply with the rcporiing and accounting requirements prescribed by the Secretary. Delineation of Authority. Although the goal is slated as "delineation" of authority, it is quite clear that the bill intends the Secretary to take over control of occupational health and safety programs in the United States. This view is made clear in the wording of the bill which permits the Secretary to cither take over or decline juris diction - in his discretion -- over any occupational or health issues governed by State laws. It is further supported by the attack on the States that has been evident in hearings and statements. For example, into the rate-making techniques, particularly in what is when Sen. Paul Fannin (R-Ariz.) asked the Secretary of known as the "experience-rating" plan. Under this plan, the Labor whether the Administration had consulted interested employer is penalized or rewarded according to whether his State agencies prior to drafting the bill, the Secretary-re accident record is poor or good. plied: "Should we ask the foxes what to do with the To meet the challenge of promoting safety, insurance chicken fence?" companies and private employers work together. Faulty Assumptions Although the obviously hastily-drafted proposal to make the Secretary of Labor the Czar of safety in the United States is undoubtedly well-intentioned and stems from a sincere desire to curb accidents, rather than any hope of political gain, it is being sold to the American people on the basis of two faulty assumptions. In a talk to the Fiftieth Annua! Convention of the International Association of Industrial Accident Hoards and Commissions in 1964, W. S. McCormick. Assistant Sec retary of the Aetna Casualty and Surety Company, outlined some of the efforts of the insurance industry. The first safety engineering corps m North America was created in 1904 -- by an insurance company. In the last half century the casualty insurance indus The first is that little or no progress is being made under the present system. The second is that the Secretary of Labor, given unlim ited authority, can solve the complex and virtually unlim ited problems of industrial safety - without creating addi try has spent over $500 million in sjfety activities. Today, insurance companies are spending more than $30 million annually in areas of safety related to indus try .. . Many of the safety devices and procedures now used by industry were developed by. or with the help of. tional major problems. Progress insurance engineers. Our engineers first established the basic principles of machine guarding and developed en closures and barricades, remote control operation, acci One accident is one accident too many, of course. It is a fact, however, that the American worker today is the safest in the world, far safer than his grandfather. Moreover, he is safer on the job than at home, safer than in public places, and most certainly safer than in traffic. dent proof-trips and devices to automatically remove hands from the impact areas of machines . . . We contribute reams of educational material to the fight against accidents. We make and distribute posters, pamphlets, brochures, even film strips and movies. Speaking for my own company alone, we send out more In 1926, there were 31.87 disabling injuries or every million man hours of work. By 1946, this figure had been reduced by 14.6 injuries per million man hours. By 1966, the injury rate was again cut in half and was at 6.91 per million man hours. During 1967, safety in industry again improved. This progress came from a combination of State, local and private efforts. than two million safety posters to clients every year, and this year we will have produced more than a dozen film strips and a dozen movies for clients and for general safety use. Millions of people see our promotions for on-the-job and off-the-job safety . . . More certainly can be done, but any implications that nothing is being done, or that all that is needed to make business safety-conscious is to give the Secretary of Labor a big stick is simply not true. Contrary to allegations, employer interest in safety No Panacea stems primarily from humanitarian reasons. These humani The second faulty assumption is that giving unlimited tarian reasons, moreover, are buttressed by very practical power to the Secretary of Labor in the area of industrial reasons. safety will provide an answer to its complex problems -- Accidents cost money -- in halted production, lost without creating other major problems. skilled manpower and increased workmen's compensation It is'pcrhaps significant that the saicty record of civilian costs. employees as measured by the rate of injury has been One of the most effective tools for safety has proved to higher than the industrial average. be the highly refined system of pricing workmen's com The National Safety Council reported that the frequency pensation insurance. This system is based on the theory rale for disabling injuries per 1.000.000 man hours in 1 that the price paid by employers for such insurance should was 6.91. The rate for all Federal civilian employees m bear a rational relationship to the hazards involved in each 1965 - the last year for which statistics are available - was industry. 7.30. Obviously, such an approach forces individual employers In 1965. the President launched with great fanfare. and groups of employers to recognize that their accident "Safcty-70". which is designed to cut accidents and deaths records directly affect their operating costs. among Federal civilian employees by 30 percent by |9<>7. Under this system, incentives to promote safety are built Although the success of the program is not yet public J --Accident Facts. 1967 knowledge, it is interesting to note that Joseph Young, writing in the Washington Star on February 19, pointed out: .. some Government departments and agencies, in a move to reduce the number of reported on-the-job in juries among their employees, have sought to discourage or prevent employees from filing injury compensation claims. Although the present proposal follows the now familiar pattern of turning over our problems to a Presidential appointee to solve, the unlimited and undefined power that *vvould be conferred upon him raises a host of questions. For example: Would the Secretary re-write local building codes in the interests of safety? Would he revise local fire regulations in the interest of safety? Or consider other questions. Could the extensive powers conferred upon the Sec retary be misused by some future labor Secretary -- a position, which George Mcany, AFfiCIO president has de scribed as "labor's voice" in Government? For example: Could a plant where workers were on strike be closed down, because the Department of Labor ruled that its operation with skeleton crews or supervisory employees constituted a safety hazard? Could crew sizes -- a disputed issue between manage ment and unions in many industries - by fixed by the Secretary of Labor as a "safety" measure? Other interesting possibilities were raised at the hearings -- particularly the argument that tire bill could be used indirectly to set standards on all items of equipment used in plants. Representative 0`llara, the sponsor of the bill and chair man of the Select Labor Subcommittee followed up a question by Representative Hathaway (D-Mc.) with this observation. Mr. Secretary, it would seem to me that in setting enforceable safety standards with respect to interstate busi ness. we would say. for instance, with respect to items of equipment that -- let's take a crane example -- that a crane must be counterbalanced or counterweighed to the extent of so much per whatever amount of load it is expected to pick up and so forth, and it must be of such and such a structure and such and such a strength and so forth. . .. Whi.a we would not have directly regulated the manu facturer ot the crane, by saying to the user ot the crane you cannot use the crane unless it meets certain standards, in effect the manufacturer of the cranes cannot sell them. He would have to. in order to find a market for his product, be able to produce j product that the user could then use to meet the- standards set under the Act. That is how 1 would envision that particular aspect of it. No one denies that industrial safety poses a challenge to everyone -- individual, employer, insurance company. State agencies, and the Federal Government. In large measure however, the American people arc being asked to make the Secretary of Labor a Czar of Safety. To some extent, as the result of the sweeping and loosely defined powers conferred upon the Secretary they arc being asked to "buy a pig in a poke." In doing so, at the risk of mixing metaphors, they may be in danger of "throwing the baby out with the bath water." In the hope that the Secretary, if given unlimited authority, may be able to impose lorcibly better safety practices, we may be jeopardizing such basic rights as a fair trial and the presumption of innocence, as well as such 'basic principles in government as the separation of powers. To buy a pig in a poke involves a certain amount of risk. Throwing the baby out with the bath water is a senous violation of safety standards. CONGRESS Failure of a cloture motion to curb de sponsoring S. 2988, which, among ocher things, bate, pLus failure to remove the open housing would ban employment of Communists by the provisions from the Civil Rights bill by the Federal government, in defense plants or in Senate probably means that it cannot be pass educational institutions receiving Federal ed at this time. Minority Leader Dirkscn funds.... "^-Ili.) insists, however, that some form of ./mpromise Civil Rights bill can be passed at this session. If the second vote for elocure, scheduled for February 26 fails, Senate Ma jority Leader MansficLd (D-Mortt.) will prob ably turn to new legislation -- most likely S. 25S7, which would remove the required 257. gold backing for paper currency. The pro President Johnson has asked Congress Co shift $5.7 million from the general funds of the Treasury to his war on crime. The money would be used to add 100 new assistant U.S. attorneys, 100 new FBI agencs, and more agents in the Bureau of Narcotics and the Bureau of Drug Abuse.... posal has been reported by the Senate Banking The Subcommittee on National Parks and and Currency Committee.... Recreation of the House Interior and Insular In the House, debate on its version of the gold cover bill (H.R. 14743) boiled over into a bitter partisan clash on the health of the economy, before the measure was passed by a narrow margin of 199-190. The bill is de signed to ease the balance-of-payments prob lem by releasing almost $12 billion in gold Affairs Committee will hold hearings March 7-9, 18-19 on a variety of proposals to estab lish a scenic rivers system.... The House Las passed and sent to Che Senate, H.R. 14935, which prohibits mail order firms from offer ing a set of keys that can open and start automobiles.... -Jor sale to foreign central banks...'. Congress has passed and sent to the V Congress is nearing final approval of the long-delayed bill (S. 1155), extending the life of the Export-Import Bank for five .years and increasing its lending authority from $9 billion to $13.5 billion. The com promise version retains the House provision that prohibits any bank loans to countries trading with or furnishing military aid to North Vietnam as long as the war lasts.... President for signature the Fire Research and Safety Act (H.R. 11284), a bill requested by President Johnson in boch his 1967 and 1968 messages on consumer protection. The bill authorizes a two-year, $5-million Fed eral program of research on the causes of fire and the methods of reducing loss of life and property from fire. It also establishes a 20-member National Commission on Fire Pre vention and Control.... Also cleared for the The House, following approval by the President's signature was S. 306, which in Uays and Means Committee of H.R. 15414, is creases the authorization for Indijn vocation expected to act soon on this proposal to al education programs from $15 million to $25 speed up corporate income tax payments and to million, and H.R. 13094, which amends the maintain auto and telephone excise taxes at 1936 Commodity Exchange Act to strengthen re current levels until 1970. The Committee gulation of the commodity futures markets, said its decision to approve only these parts including livestock and livestock trading.... of the Administration's tax package isn't Intended to "prejudice possible future action on the requested 10 percent surcharge.... Chairman Staggers (D-W.Va.) of the House Interstate and Foreign Comorco Com mittee, apparently disturbed by an FCC deci Proposed taxes on foreign travel are sion which rejected a proposed policy design running into heavy opposition at House Ways ed to prevent concentration of television and Means hearings. Business representatives station ownership in large cities, has called are also using the hearings to actack the hearings for March 5-6 in his Subcommittee on recently-imposed regulations governing repa Investigations on the Fairness Doctrine triation of foreign earnings by U.S. companie s. (Section 315) of the Communications Act.... Some panel members have indicated they vlll The House Subcommittee on Public llealch and urge relaxation of the regulations. Welfare is continuing its hearings on amend Nine Democratic and nine Republican Senators, led by Sen. Eastland (D-Miss.) are ing the Food and Drug Act to include pen alties for illegal manufacture and traffic in hallucinogenic drugs. (H.R.. 15355). r Charles BohLen, Deputy Under secretary for Political Affairs, and Anthony Solomon, Assistant Secretary for Economic Affairs of the State Department have told the House Subcommittee on Europe of the Foreign Affairs Coocaittee chat more U.S. trade with casccrn European countries is advantageous to the national interest.... March 12, 13, 14 arc dates for hearings in the Senate Commerce Committee on S.J. Res. 129 (Magnuson, D-W.ish.), which would authorize the Department of Transportation to conduct a study of the adequacy of auto mobile insurance regulation and the present system of compensating motor vehicle accident vict tms. The Senate Labor Committee will meet again on February 29 on S. 1306, the propos al that would give the Equal Employment op portunity Commission NLRB-typc powers, in cluding authority Co issue "cease-and-desist*' orders. The Senate panel is expected to ap prove the bill, either on the 29ch or soon thereafter. The House Interstate Commerce Conmitcee is studying, although no hearings have yet been scheduled, Che FTC-backed measure (H.R. 15354) that would permit the Commission to seek preliminary injunctions in cases involv ing acts or practices chat are "unfair or de ceptive" to the consumer.... William Roth, the President's Special Representative for Trade Negotiations, said in a recent speech chat hearings would be held starting about March 25 on an as-yetunintroduced bill that would be designed to (1) liberalise adjustment aid to marginal enterprises and their workers suffering from import competition; (2) give the President authority to adjust tariffs from time to time, and (3) end the American Sealing Price systea of customs valuation.... Congressman John H. Dent (D-Pa.), chair man of the House Subcommittee on Labor, told the Chamber's Private Pension Plans Committee, that he may begin comprehensive pension hear ings in March. His Subcommittee will study both public and private pension plans. Rep. Dent said. He voiced concern over whether "... the American people may soon be forced Co choose between the continuation of private plans and the growth and improvement of their primary public counterpart -- Social Securit. y------ tl The House has approved the first Appro priations bill of the Session -- a $1.2 hillton supplemental measure to provide funds for welfare and the Medicaid prograai. Ad ministration spokesmen said the funds arc needed because a sharp increase in the num ber of families on relief plus unexpected costs for the Medicaid program caused them to underestimate costs.... The Senate Subcommittee on Labor, with Senator Yarborough, D-Tex. as chairman, has been holding hearings on S. 2485, amendments Co the Longshoremen's and Harbor Workers Compensation Act. Some observers believe the bill would serve as che Administration's "model" for assuming jurisdiction over State worker's compensation laws.... Chairman Wilbur Mills (D-Ark.) has pro posed a two-year extension of the Renegoti ation Act in its present form, and his bill (H.R. 14802) is expected to be approved by the panel without hearings.... President Johnson in a Special Message has urged Congress to enact a multi-billion dollar, 10-year program to meet the "crisis" of the cities. He urged appropriations of $65 million for the rent supplement program; $1 billion for the Model Cities program; and $2.18 billion for the war on poverty. The President set a 10-ycar goal of 26 million new housing units, of which he hoped, private enterprise would build 20 million. Six mil lion would be stimulated by Federal programs, with 300,000 scheduled for fiscal year 1969 for the poor, the elderly, chc handicapped, the displaced and chose with moderate incomes. HERE'S THE ISSUE The Occupational Health &c. Safety Act FtBRUARr 23. 194  Charles Bohlcn, Deputy Und<r scfrct.ify for Political Affairs, and Anthony Solomon, Assistant Secretary for Economic Affair:; of the State Department have told the `House ^Subcommittee on Europe of the Foreign Affairs Committee that more U.S. trade with eastern European countries is advantageous to the national interest.... March 12, 13. IA are daces for hearings in the Senate Commerce Coma::LCee on S.J. Res. 121 (Magnuson, D-W.tsh.). which would authorize the Department of Transportation to conduce a study of the adequacy of auto mobile insurance regulation Jnd the present system of compensating motor vehicle accident victims. The Senate Labor Committee will meet The House has approved the first Appro again on February 29 on S. 1308, the propos al that would give the Equal Employment op priations bill of Che Session -- a $1.2 bil lion supplemental measure to provide funds portunity Commission NLRB-type powers, in for welfare and the Medicaid program. Ad 's eluding authority to issue "cease-and-desist" ministration spokesmen said the funds arc ' orders. The Senate panel is expected to ap prove the bill, either on the 29ch or soon needed because a sharp increase in the num ber of families on relief plus unexpected thereafter. costs for the Medicaid program caused them The House Interstate Commerce Committee to underestimate costs.... Is studying, although no hearings have yet The Senate Subcommittee on Labor, uich been scheduled, the FTC-backed measure (H.R. Senator Yarborough, D-Tex. as chairman, has 1535A) that would permit the Commission to been holding hearings on S. 2A8S, amendments seek preliminary injunctions in cases involv ing acts or practices chat arc "unfair or de to the Longshoremen's and Harbor Workers Compensation Act. Some observers believe ceptive" to the consumer.... the bill would serve as Che Administration's William Roth, Che President's Special Representative for Trade Negotiations, said "model" for assuming jurisdiction over State worker's compensation laws.... in a recent speech that hearings would be Chairman Wilbur Mills (D-Ark.) has pro held starting about March 25 on an as-yct- posed a two-year extension of the Renegoti unintroduced bill that would be designed to (1) liberalize adjustment aid to marginal enterprises and their workers suffering from import competition; (2) give the President authority to adjust tariffs from time to time, and (3) end the American Sealing Price sys tem of customs valuation.... Congressman John H. Dent (D-Pa.j, chair ation Act in its present form, and his bill (H.R. 1*'802) is expected to be approved by the panel without hearings.... President Johnson in a Special Message has urged Congress to enact a multi-billion dollar, 10-year program to meet the "crisis" of the cities. He urged appropriations of $65 million for the rent supplement program; man of the House Subcommittee on Labor, Cold the Chamber's Private Pension Plans Committee, that he may begin comprehensive pension hear ings in March. Kis Subcommittee will study both public and private pension plans, Rep. $1 billion for the Model CLties program; and $2.18 billion for the war on poverty. The President set a 10-yc3r goal of 26 million new housing units, of which he hoped, private enterprise would build 20 million. Six mil Dent said. He voiced concern over whether lion would be stimulated by Federal programs, "... the American people may soon be forced uith 300,000 scheduled for fiscal year 1969 Co choose between the continuation of private plans and the grouch and improvement of their for the poor, the elderly, the handicapped, the displaced and chose uich moderate primary public counterpart -- Social Securi tv.... income s. lERE'S THE ISSUE Tho Occupational Health &. Safoty Act PtBRUART 23. 19*1