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Tales from DC: February 4 House Hearing on Changing OSHA Policies Outside Rulemaking Process

Posted in on Wed, Feb 26, 2014

From the Offices of Adele Abrams, Esq. –

Date:  February 4, 2014

Re:     House Committee on Education and the Workforce – Subcommittee on Workforce Protections Hearing: “OSHA’s Regulatory Agenda: Changing Long-Standing Policies Outside the Public Rulemaking Process”

Participants: Chairman Rep. Tim Walberg, Rep. Jim Courtney, Rep. John Kline, Rep. Todd Rokita, Rep. Mark Pocan, Rep. Richard Hudson

Witnesses:  Mr. Brad Hammock, Mr. Scott VanderWal, Ms. Randy Rabinowitz, Ms. Maury Baskin

Chairman Walberg opened the meeting with a prepared statement. He addressed concerns over the President’s threats during the State of the Union to act and use Executive Orders if Congress does not advance his agenda. Chairman Walberg was disturbed by the threat to Congress’ Constitutional powers and potential violations of the Administrative Procedure Act, which outlines the formal rulemaking process federal agencies, such as OSHA, are required to follow. He urged the administration to reverse course, and furthered enumerated his concerns by expanding on OSHA’s use of Guidance Letters instead of pursing formal rulemaking.

Rep. Courtney, the senior democratic member, also opened with a prepared statement detailing what he believes to serious problem with a lack of resources and power afforded to OSHA. Which in turn, he believes is hampering OSHA’s ability to protect the workforce. His statement continued to include comments on Permissible Exposure Limits (PEL’s) being out of date, the length of time to create a final rule or standard, and several workplace accidents (the explosions at West, TX and Middletown, CT) in efforts to confirm his opinion. Rep Courtney also believes the consensus between management and workers is for new OSHA standards and enforcement.

Mr. Brad Hammock, a shareholder at the law firm of Jackson Lewis, testified on behalf of the U.S. Chamber of Commerce. Prior to joining the private sector, Hammock worked in the Department of Labor Solicitor’s Office with OSHA. He participated in rulemaking during his tenure working with OSHA. He calls OSHA’s recent pattern of reliance on Guidance and Interpretation letters as “sub-regulatory” activities. The term refers to the practices by OSHA which avoid public comments, impact analyses, and the justifications required with traditional rulemaking, therefore drastically reducing, if not eliminating, stakeholder involvement. Furthermore, Hammock believe OSHA is undermining its credibility and confusing the industries under its jurisdiction by incorporating PEL’s in its Guidance and Interpretation letters which are contrary to those found in OSHA standards.

Mr. VanderWal is a farmer from South Dakota and the President of the South Dakota Farm Bureau. His testimony was directed towards a June 2011 OSHA letter which in essence overturned a previous inspection exemption for small farms having ten (10) or fewer employees and which do not maintain a temporary labor camp. The letter provided OSHA authority to inspect drying and storage operations, which VanderWal explained are essential and inseparable from farming. As VanderWal stated, he believes that OSHA thinks, once the crop is off the stalk, it is under their jurisdiction. However, VanderWal maintains he and the South Dakota Farm Bureau were never notified of this change in jurisdiction, and they only learned of it once OSHA began enforcing standards and issuing violations at similar farms around the country. VanderWal invited OSHA to meet and work with the Farm Bureau in order to develop safety suggestions and training. However he believed that the enforcement action started by the June 2011 letter was overstepping OSHA’s established boundaries without reason or notice.

Ms. Rabinowitz offered her statement as an independent expert in Occupational Safety and Health Law. Rabinowitz expressed the opinion that OSHA has been made incapable of creating and implementing new standards due to a broken process and interference in the rulemaking. She further shared her displeasure that she felt this hearing’s aim was to further hamstring OSHA’s ability to protect the workforce. She argued that OSHA’s use of Guidance, Interpretation, and/or Policy letters were legal and permissible within the bounds of the Administrative Procedure Act. Rabinowitz felt Congress should not interfere with OSHA’s ability to draft and issue said letters. Additionally, she spoke of PEL’s, which she believed were out of date, OSHA’s inability to update the PEL standards in a reasonable time frame, the use of OSHA’s general duty clause with respect to PEL’s, and she briefly addressed third party “walk-around” privileges now offered during OSHA inspections.

Last of the witnesses, Mr. Maury Baskin, and shareholder at the law firm of Littler Mendelson P.C., testified on behalf of the National Association of Manufacturers and the Associated Builders and Contractors. Baskin primarily addressed a 2013 OSHA letter permitting employee representatives to be from third parties not associated with the employer, and to then attend OSHA inspections. This concern was further refined to union or community organizers entering the property of a non-union workplace for an OSHA inspection, without the majority of the workers requesting their presence. Under the 2013 letter, which Baskin alleged contradicts a 2003 OSHA letter on the same topic, if any numbers of employees request a union or community organizer to represent them during an inspection in a non-union workplace; this representative is allowed on site. Baskin claimed this ignored the Administrative Procedure Act and injected OSHA in potential labor disputes, therefore casting doubt that OSHA is a neutral enforcer.

In questioning, Rep. Kline inquired with Mr. VanderWal how the information regarding OSHA’s new policy on inspecting small farms was disseminated. VanderWal replied that he was not made aware of the change until word of OSHA’s enforcement action reached him. Furthermore, Rep. Kline received a response from Mr. Hammock on the same topic that the letters are posted on OSHA’s website, but if an individual or company does not monitor this it is very possible they would never know of the changes. Additionally, Hammock answered a question from Rep. Kline regarding whether or not he believed these letters contradicted or overturned OSHA standards. Hammock believed the letters did contradict existing OSHA standards and at times overturned the standards for new enforcement.

Rep Courtney’s questions were directed to Ms. Rabinowitz and attempted to clarify some of Mr. Baskin’s comments regarding the presence of union personnel on walk-around inspections. Rabinowitz claimed the language did not block the presence of a third party authorized representative, and that it is the employees right to choose a representative to accompany the inspection. Further Rabinowitz countered that if a union associated representative were present and “leafleting” for organization of the workplace, OSHA could remove the person from the inspection. Rep. Courtney additionally emphasized that if all the letters are posted on the OSHA website, those employers concerned with safety could look at them.

Rep. Rokita focused on notice provided to employers of the OSHA letters, asking Mr. Hammock if these held the force and effect of law. Hammock answered that OSHA did not believe they held that force and effect. However the letters and the contradictory information contained in many letters are taking into consideration by inspectors, used as the basis of enforcement by inspectors, and can confuse employers of the actual legal requirements. Rep. Rokita then asked Mr. Baskin if an employer were to block the entrance of a union representative for a walk-around would OSHA be able to get a warrant permitting the union rep on site. Baskin responded that although he would hope not, he could not answer what a judge would do. However in order to get to that point the employer must be willing to block OSHA access to the site and this would likely require legal assistance. Moreover, Baskin said he believed this action by employers is unlikely due to the employers’ fears of consequences from OSHA.

Rep. Pocan expressed feelings that the agency is handcuffed and cannot effectively protect workers with outdated standards. Additionally he believes the number of inspectors is inadequate and all necessary inspections cannot be completed. Rep. Pocan asked Ms. Rabinowitz how long it would take to update all PEL standards for OSHA. Rabinowitz answered that the average time for a new standard to become final is currently seven (7) years and given that each PEL must be updated by its own process, she did not think they could all be updated.

Rep. Hudson began with a brief statement reflecting his opinion that overregulation is hurting the economy and referenced the ambiguity contained in the proposed crystalline silica rule. He also questioned Mr. Hammock regarding lack of notice to employers regarding the letters, in addition to what Rep. Hudson believed were inaccurate calculations for the cost of employer compliance with the proposed crystalline silica rule. Hammock again answered that he believed the lack of notice created confusion for employers and difficulties in compliance. Hammock also agreed that there is some doubt among stakeholders regarding the OSHA determination of compliance cost with the proposed crystalline silica rule. Hammock encouraged concerned individuals and entities to participate in the comment period.

Lastly, Chairman Walberg questioned Mr. Baskin on the potential consequences have having a union official enter a non-union site for a walk-around, and how this worked with National Labor and Relations Board (NLRB) employer protections. Baskin confirmed OSHA’s new policy is at odds with protection offered by the NLRB. Chairman Walberg also confirmed with Mr. VanderWal that to the best of his knowledge, OSHA did not contact him and the South Dakota Farm Bureau regarding the change in enforcement or to cooperatively work on safety practices.

There was clear division in support and opposition to OSHA’s practice of issuing Guidance, Interpretation, and/or Policy letters. The respective political parties of the representatives clearly drove questioning in favor of, or against the OSHA practices. The Chairman in his closing was still very concerned with the President’s threat circumvent Congress. The Chairman warned that the government must move forward with due process and caution, scolding the tension and absence of cooperation between parties. Chairman Walberg ended the hearing reading a section out of the OSH Act which stated OSHA must not show support for either side or take part in any labor disputes.

The Chairman stated the record for the hearing will remain open for 14 days.

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