Labor Blog

MSHA Makes The "Wrong Decision" To Blame Workers For Accidents

Reprinted From Confined Space

That management likes to blame worker behavior for accidents will come as no surprise to American workers. That this "blame the worker" theory is not consistent with the facts, that it doesn't get to the root causes of workplace incidents is also not a surprise to American workers.

So this new Mine Safety and Health Administration program comes as a great surprise to all of us.

MSHA Launches New Safety and Health Initiative

ARLINGTON, Va.- The U.S. Department of Labor's Mine Safety and Health Administration (MSHA) today launched "Make the Right Decision," a safety and health initiative that helps miners and mine operators focus on human factors, such as decision-making, when at work. The campaign encourages miners and mine management to work together on safety and health issues.

"MSHA will increase its focus on safety decisions during this campaign, which is not a limited-time initiative," said David G. Dye, deputy assistant secretary of labor for mine safety and health. "We want miners and management to make the right decisions to ensure the safety and health of America's miners."

So what's the problem with encouraging workers to make the right decision?

First, the assumption of this program is that most accident happen because workers make the wrong decisions. In other words, all you need is a little education, training and enlightenment and all will be well. If accidents continue to happen, they're caused by worker carelessness, incompetence, stupidity, suicidal tendencies -- and just plain dumb decisions.

In other words, "Make the Right Decision" is just your same old "behavioral safety" program under a new name. Behavioral safety theories say that worker carelessness or misconduct is the cause of most accidents, and disciplining workers is the answer. But behavioral theories don't hold up to a closer look at the root causes of most workplace accidents: generally management system and organizational problems that lead to unsafe conditions. (Confined Space has covered the issue numerous times before -- Here, here, here, here, and here to name just a few)

It is somewhat ironic that this program is starting now. Clearly acting Assistant Secretary Dye hasn't read the June 2005 issue of Occupational Health & Safety which contains an article by Fred Manuele entitled "Serious Injury Prevention."

Manuele cites experts who point out that what may look like "human error" are actually system errors:

R. B. Whittingham, in his book The Blame Machine: Why Human Error Causes Accidents, describes how disasters and serious accidents result from recurring, but potentially avoidable, human errors. He shows that such errors are preventable because they result from defective systems within a company.

Whittingham identifies the common causes of human error and the typical system deficiencies that lead to those errors. They are principally organizational, cultural, and management system deficiencies. Whittingham says that in some organizations, a "blame culture" exists whereby the focus in incident investigation is on individual human error, and the corrective action is limited to that level. He writes: "Organizations, and sometimes whole industries, become unwilling to look too closely at the system faults which caused the error"

He notes that although humans may be involved in the errors that lead to accidents, James Reason and Alan Hobbs, in Managing Maintenance Error: A Practical Guide point out that one needs to look deeper:

Errors are consequences not just causes. They are shaped by local circumstances: by the task, the tools and equipment and the workplace in general. If we are to understand the significance of these factors, we have to stand back from what went on in the error maker's head and consider the nature of the system as a whole . . . this book has a constant theme . . . that situations and systems are easier to change than the human condition

In other words, look at the safety systems and find the root causes. If managers (and MSHA)continue to attempt to prevent accidents by focusing on human errors and "wrong decisions," the same accidents, injuries and deaths will continue to happen.

Uncapitalist Journal is Born

A good collection of the Left of the blogosphere have collaborated to produce the UnCapitalist Journal which is, in its inaugural description, "a fantastic collection of talented writers and thinkers who are all concerned with economic and social justice."

Check it out.

John Roberts: Good For Workers?

Reprinted From Confined Space

Desperate to divert media attention away from consiglieri Rove, President Bushed rushed out hs Supreme Court nomination tonight: John Roberts.

The general consensus seem to be that although Roberts is (very) conservative, he's not a right-wing wack-job, so he's probably a shoe-in. And although the right wing blogosphere is delighted, even some lefties think it could have been much worse. On the other hand, it's still early. There could be an illegal alien in the closet. Maybe he drank a beer before the age of 21 or made an illegal right turn.

But, of course, the question on all Confined Space readers' minds today is: "How is John Roberts on workplace safety and labor issues?"

The answer is probably not great.

At the beginning of this month, I posted an article entitled Supreme Court Abolishes OSHA, EPA where I quoted political analyist David Sirota saying that in its Supreme Court coverage the press is missing "the real storyline of "Big Money" vs. "Ordinary Americans."

I raised the specter of a Supreme Court majority that agrees with the so-called "constitution in exile" movement which argues that the most important rights are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional. And I quoted University of of Chicago law professor Cass Sunstein, warning that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional."

So where are we the morning after the nomination?

First, Roberts was on the short list of the big business community:

Glenn Lammi, chief counsel of the conservative Washington Legal Foundation, identified at least three possible nominees that big business would cheer: John Roberts Jr., Edith Brown Clement and Janice Rogers Brown. All three are federal appeals court judges.

Corporate America would favor Roberts and Clement because both were once private practitioners who represented business interests -- experience the Rehnquist court now lacks. Given their past experience, the thinking goes, both judges might be friendly to corporate America.

There's a chance too that either Roberts or Clement could influence the court to decide more cases deemed critical to business. The court under Chief Justice Rehnquist has been criticized for not taking up enough cases each term generally, and business cases in particular.

The ACS Blog reports that

Judge Roberts' nomination to the D.C. Circuit was opposed by organizations concerned with his prior record. As a law student, Judge Roberts argued for an expansive reading of the Takings and Contracts Clauses, something which might suggest sympathy towards the Constitution-in-Exile movement, a movement of political conservatives who favor reinterpreting the Constitution to strike down economic regulations.

OK, he was just a law student. What about real life? Prior to being appointed to the D.C. Circuit, Roberts worked for the Reagan and Bush (I) administrations and in private practice.

According to the Alliance For Justice,

In private practice, Roberts has often represented corporations in suits against private individuals or the government. He represented Toyota Motor Manufacturing, Kentucky, Inc., in its successful petition to the Supreme Court arguing that a worker with carpal tunnel syndrome is not disabled such that she is entitled to accommodation at work under the Americans with Disabilities Act. Mr. Roberts took the position that Ella Williams, an automobile assembly line worker, was not covered by the ADA, even though she was fired because carpal tunnel syndrome – which she acquired as a result of activities she was required to perform as part of her job – prevented her from doing all of the tasks required by her job.

Then there's this from the Center for Investigative Reporting:

In April 2000, Washington DC lawyer John Roberts filed an amicus brief on behalf of the National Mining Association in the federal 4th Circuit Court to block a lawsuit filed by West Virginia citizens opposed to the coal industry's destructive "mountaintop removal" practice. Two years later, Roberts was nominated by President Bush and confirmed to the powerful DC Circuit Court of Appeals. In April 2004, as a judge on that court, Roberts ruled against environmentalists who were pushing for more restrictive government regulations over copper smelters--many of whose owners are members of the National Mining Association--that emit toxic lead and arsenic pollutants.

As a judge, according to People for the American Way, Roberts ruled against application of the Endangered Species Act in Rancho Viejo, LLC v. Norton, indicating that he may well be ready to join the ranks other right-wing officials in their efforts to severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.

The Alliance for Justice fears that his views as indicated by the Rancho Viejo case, "could threaten a wide swath of workplace, civil rights, public safety and environmental protections."

The Alliance hasn't come out against Roberts yet, but called on the Senate "to fulfill its constitutional duty to fully vet Judge Roberts’ qualifications, background, and constitutional philosophy to see if he meets the high standards for a lifetime appointment to the Supreme Court. "

And then Nathan Newman reminds us of AFL-CIO v. Chao (2005):

This decision upheld most of the Labor Department's punitive reporting requirements by labor unions, but could not demand such reporting from non-union organizations where unions merely elect some representatives to their boards. Roberts in dissent by himself wanted to give the labor department full power over any organization where a union had any representation in its leadership.

Nathan Newman has the best commentary on this issue. First, addressing the argument that Roberts has a very short paper trail because he's only been on the Appeals court for two years, Nathan points out that he has a much longer private sector trail and experience in the Reagan and Bush I administrations where he's distinguished himself as a partisan hack.

Regarding the argument that Roberts' true personal views can't be judged by his private sector history because he was "only representing his client," Nathan responds:

Of course, deciding to spend years working for this particular client, the Reagan administration, says a lot about Roberts' personal views, but Juan is right in one sense: Roberts has spent his career as a mind-for-hire on behalf of the rightwing Republican agenda. Whatever he said was done to advance his career with no intellectual integrity, since according to his defenders, he didn't believe a word he said.

So if his career is one of years of political hack partisanship, sprinkled with a few years acting as a well-paid hack on behalf of corporate interests, why should we believe Roberts has the temperment to be an independent Justice?

***

If the words Roberts wrote for all his clients don't reflect work upon which he should be evaluated, then the two years on the bench is too little experience to be confirmed.

And if all John Roberts can say is, sorry, I've been a partisan hack for twenty-five years, so I don't have any vision that I can talk about -- well, that's not good enough either and he should be rejected.

So where does all of this leave us? At least a little worse off than before. But the bottom line is, who knows? Although Nathan and others think he's a political hack, maybe he'll mature now that he doesn't have any "clients." Maybe he's another David Souter.

Maybe I should go to bed.

Other Supreme Court Links

Think Progress
People For The American Way
Independent Judiciary (The Alliance For Justice)
SCOTUS Blog

Costco: The Anti-Wal-Mart and the Anti-Wall Street

Reprinted From Confined Space

Some Wall Street analysts assert that Mr. Sinegal is overly generous not only to Costco's customers but to its workers as well.

Costco's average pay, for example, is $17 an hour, 42 percent higher than its fiercest rival, Sam's Club. And Costco's health plan makes those at many other retailers look Scroogish. One analyst, Bill Dreher of Deutsche Bank, complained last year that at Costco "it's better to be an employee or a customer than a shareholder."

Mr. Sinegal begs to differ. He rejects Wall Street's assumption that to succeed in discount retailing, companies must pay poorly and skimp on benefits, or must ratchet up prices to meet Wall Street's profit demands.

Good wages and benefits are why Costco has extremely low rates of turnover and theft by employees, he said. And Costco's customers, who are more affluent than other warehouse store shoppers, stay loyal because they like that low prices do not come at the workers' expense. "This is not altruistic," he said. "This is good business."

Turns out Wall St. doesn't always know best:

Mr. Sinegal, whose father was a coal miner and steelworker, gave a simple explanation. "On Wall Street, they're in the business of making money between now and next Thursday," he said. "I don't say that with any bitterness, but we can't take that view. We want to build a company that will still be here 50 and 60 years from now."

If shareholders mind Mr. Sinegal's philosophy, it is not obvious: Costco's stock price has risen more than 10 percent in the last 12 months, while Wal-Mart's has slipped 5 percent. Costco shares sell for almost 23 times expected earnings; at Wal-Mart the multiple is about 19. Mr. Dreher said Costco's share price was so high because so many people love the company. "It's a cult stock," he said.

Emme Kozloff, an analyst at Sanford C. Bernstein & Company, faulted Mr. Sinegal as being too generous to employees, noting that when analysts complained that Costco's workers were paying just 4 percent toward their health costs, he raised that percentage only to 8 percent, when the retail average is 25 percent.

"He has been too benevolent," she said. "He's right that a happy employee is a productive long-term employee, but he could force employees to pick up a little more of the burden."

Mr. Sinegal says he pays attention to analysts' advice because it enforces a healthy discipline, but he has largely shunned Wall Street pressure to be less generous to his workers.

And how'd Sinegal graduate from CEO school?

Despite Costco's impressive record, Mr. Sinegal's salary is just $350,000, although he also received a $200,000 bonus last year. That puts him at less than 10 percent of many other chief executives, though Costco ranks 29th in revenue among all American companies.

"I've been very well rewarded," said Mr. Sinegal, who is worth more than $150 million thanks to his Costco stock holdings. "I just think that if you're going to try to run an organization that's very cost-conscious, then you can't have those disparities. Having an individual who is making 100 or 200 or 300 times more than the average person working on the floor is wrong."

And this is really crazy:

This knack for seeing things in a new way also explains Costco's approach to retaining employees as well as shoppers. Besides paying considerably more than competitors, for example, Costco contributes generously to its workers' 401(k) plans, starting with 3 percent of salary the second year and rising to 9 percent after 25 years.

ITS insurance plans absorb most dental expenses, and part-time workers are eligible for health insurance after just six months on the job, compared with two years at Wal-Mart. Eighty-five percent of Costco's workers have health insurance, compared with less than half at Wal-Mart and Target.

Costco also has not shut out unions, as some of its rivals have. The Teamsters union, for example, represents 14,000 of Costco's 113,000 employees. "They gave us the best agreement of any retailer in the country," said Rome Aloise, the union's chief negotiator with Costco. The contract guarantees employees at least 25 hours of work a week, he said, and requires that at least half of a store's workers be full time.

Workers seem enthusiastic. Beth Wagner, 36, used to manage a Rite Aid drugstore, where she made $24,000 a year and paid nearly $4,000 a year for health coverage. She quit five years ago to work at Costco, taking a cut in pay. She started at $10.50 an hour - $22,000 a year - but now makes $18 an hour as a receiving clerk. With annual bonuses, her income is about $40,000.

"I want to retire here," she said. "I love it here."

"Overly generous to workers," "too benevolent," high salaries, generous 401(k) and health benefits, low CEO pay? They ought to drum this guy out of the CEO club.

More on the Wal-Mart - Costco difference here.

NY Times Covers OSHA Impersonation Story

Reprinted From Confined Space

The story of immigration officers impersonating OSHA officials, has now gone national with a front page article in the NY Times by Steven Greenhouse, who first read the story in Confined Space earlier this week.

The 48 immigrants thought they were attending mandatory safety training by the Occupational Safety and Health Administration. But it was not until they showed up to the meeting in Goldsboro, N.C., last week that they discovered they had been summoned for an altogether different reason.

Federal immigration officials had posted fliers telling immigrant workers for several subcontractors at Seymour Johnson Air Force Base in Goldsboro that they had to attend a safety meeting. There was no meeting, however; instead there was a sting operation in which immigration officials arrested 48 people on charges that they were illegal immigrants from Mexico, Honduras, El Salvador and Ukraine.

The action had one branch of the federal government speaking out against another. The United States Labor Department as well as North Carolina's Labor Department on Friday criticized the sting, suggesting that it would make immigrant workers distrust safety officials just when safety agencies across the nation are stepping up efforts to reduce the disproportionately high injury rate among Hispanic workers.

The federal Bureau of Immigration and Customs Enforcement, which is defending the "ruse" tactic in general, seems to finally have gotten the message, although it's unclear whether they will cease and desist impersonating OSHA officials.

 

Dean Boyd, a spokesman for the federal Bureau of Immigration and Customs Enforcement, which carried out the sting, said it was part of a stepped-up effort to crack down on illegal immigrants working at chemical plants, nuclear plants and other sensitive facilities.

***

"We certainly understand OSHA's concerns about the use of their name," Mr. Boyd said. "We're putting in place procedures to ensure appropriate coordination."

I'm not exactly sure what "appropriate coordination" means, but I'm hoping it's bureaucrat-speak for "We screwed up, and we're trying to save face.

The ruse used by ICE has been roundly condemned by the AFL-CIO, the United Food and Commercial Workers Union, and the National Council of La Raza:

"We think it's an absolute outrage and danger for the immigration authorities to use this type of tactic," said Cecilia Munoz, vice president for policy at the National Council of La Raza, an advocacy group for Hispanics. "Our labor law system is completely complaint-driven, and our ability to keep the work force safe depends on workers being able to complain, and by masquerading as OSHA officials, immigration authorities will clearly discourage immigrant workers from coming forward. This won't affect just immigrant workers, it will affect the safety of all workers."

North Carolina and federal OSHA were not pleased either:

Pam Groover, a spokeswoman for the federal labor department, said, "This is not something we were involved in, and we do not condone the use of OSHA's name in this type of activity."

Finally, this is odd:

Felipe Bravo, a 47-year-old immigrant from Mexico City, was arrested at the meeting at the Air Force base, but was released when he proved that he was an American citizen. But he said his brother, Domingo, was arrested and faces deportation. They installed air conditioners and heating equipment, while many of the others worked in construction, lawn mowing or cleaning.

Mr. Bravo said that the government officials first served coffee and doughnuts and that one official stood up and said, "I got good news and bad news. The good news is we are not from OSHA, and the bad news is we're from the immigration office."

He said a swarm of immigration agents then entered the theater.

The good news is we're not from OSHA? How is that good news for workers? Sounds like all bad news to me.

Related Stories

• Copy of Flyer Used To Impersonate OSHA, July 15, 2005
  
• Betrayal in North Carolina: Unions Condemn OSHA Impersonators, July 14, 2005
• Stupid and Deadly: Undocumented Workers Lured into Arrest With Promise of Safety Training, July 11, 2005

Betrayal in North Carolina: Unions Condemn OSHA Impersonators

AFL-CIO Executive Vice President Linda Chavez Thompson stated:

Not only do such tactics scare workers away, making it less likely that workplace dangers will be exposed, but these tactics don’t comply with the government’s own policies. It is OSHA’s policy to keep the identity of those who file complaints confidential and not to collect data concerning citizenship status. The reason for these policies is simple: if workers believe that they or their families are at risk of being deported, they will not speak out about dangerous or unhealthful conditions. ICE’s actions not only undermine OSHA’s mission, but they also seriously erode the trust between agencies charged with protecting workers and the immigrant community.

Instead of scaring workers into silence by these types of immigration enforcement actions, the Bush Administration should be focusing on crafting real solutions to our broken immigration system. We have long advocated for a solution that includes a path to citizenship for undocumented workers who have been working hard, paying their taxes and contributing to their communities, and guarantees that all workers—whether US or foreign born—have enforceable rights and decent work.

UFCW President Joe Hansen also issued a statement calling on the Bush Administration to "denounce the kind of trickery that undermines safety on
the job."

“OSHA is responsible for worker safety and health,” said UFCW International President Joe Hansen. “For ICE to stage a sham OSHA meeting in order to round up and arrest people undermines OSHA’s mission, and is a step backwards for state and federal efforts to reduce worker injuries and death. Furthermore, that kind of action minimizes OSHA’s ability to do the critical work of protecting America’s labor force.”

“This unscrupulous action has shattered the trust between OSHA and the workers who depend on the agency the most,” said Hansen. “More and more often, it is immigrants who work in the most dangerous industries such as construction or meatpacking. How can OSHA reach these at-risk workers with safety information now? To these workers, OSHA no longer means safety, but betrayal.”

Meanwhile, the Raleigh News Observer called the ICE's tactics an "unfortunate way to lure suspected illegal immigrants to a sting operation."

North Carolina's labor department has faced a difficult task in trying to reduce the number of Hispanics being hurt or killed on the job. But it has been making headway by seeking out Latino crews and offering safety courses. By using the safety meeting ruse, the federal agency risked undercutting the state's efforts.

I thought you might also be interested in hearing what other bloggers are saying:

Effect Measure

Whoever in the ICE thought this one up, approved it, and issued the orders for it SHOULD BE FIRED FOR INCOMPETENCE, STUPIDITY, CALLOUSNESS, NEGLIGENCE, INCREDIBLE LACK OF JUDGMENT AND IRRESPONSIBLE BEHAVIOR.

This kind of thing is beyond the pale.

Majikthise

Jordan of Confined Space reports that immigration authorities posed as OSHA agents to capture illegal aliens. OSHA has been striving to win the trust of undocumented workers for decades. Now the feds have thoughtlessly shattered that trust. The stakes are high because immigrants are more likely to work in dangerous jobs and less likely to get the safety training they need.

Tbogg: "This is sad and stupid."

Amptoons:

Federal Immigration Officers think up a policy guaranteed to kill immigrants - a sting operation disguised as an OSHA (occupational safety and health administration) meeting, putting the lie to decades of effort by OSHA to convince illegal immigrants that they can talk to OSHA without fear. These racist, evil fucks deserve to be shot - no, to be buried alive in an industrial accident - but since the Bush administration is in charge, probably they’ll be given raises.

Upper Left:

This is just so wrong in so many ways.

There's a federal agency stomping in without coordinating with the relevant state agencies, upending years of work to nab a few dozen low wage workers. Should those workers have been in the US, let alone on the job? Probably not. Are our borders more secure because North Carolina workplaces may be more dangerous? Not hardly.

There's the matter of a federal agency using fraud and entrapment in pursuit of its mission. Not to foil some spy movie scheme to destroy the world. Just to nab a few dozen mostly Central American laborers. Did the INS get, or even bother to seek, some kind of authority to pose as OSHA workers? If so, what other agencies are they using for cover? Can we be sure that any interaction with a federal worker isn't an interview with the INS?

Crooked Timber:

[Undocumented workers] rarely know their rights, are reluctant to complain about abuses for fear of deportation, and as a result are killed or maimed far more frequently in workplace accidents than they should be. This utterly, utterly shameful operation will make undocumented workers even less likely to contact OSHA about workplace safety than in the past – and as a result will lead to more cripplings and deaths.

Finally, we're still waiting to hear from Capitol Hill and the White House. Any day now....

Why Janitors Need Unions

Reprinted From Confined Space

Mr. Garcia is part of a large and largely unnoticed group of workers - the nation's 2.3 million janitors - employed in an industry in which violations of wage laws and other laws are all too common, say workers, immigrants' advocates and even cleaning company executives.

Janitors are denied overtime pay, classified improperly as independent contractors, locked in the stores overnight and forced to work their first two weeks unpaid, based on dozens of interviews and numerous lawsuits and government enforcement actions. In some cities, immigrant workers are induced to buy franchises for $10,000 with promises of striking it rich, though earnings often fall short of the promises and franchises are sometimes simply stripped away.

They get away with it because they hire undocumented immigrants who are easily intimidated and often not knowledgable about their legal rights.

Happily, the Service Employees International Union is organizing janitors in the major cities of this country, but there's a long way to go.

Although many janitors in New York, Los Angeles and other cities earn $10, $12, even $16 an hour in unionized jobs in big office towers, hundreds of thousands of janitors work in restaurants, supermarkets and shopping malls for a fraction of that pay. Some of the nation's biggest companies have agreed to multimillion-dollar settlements in recent months after complaints about janitorial practices.

SEIU has brought many of these lawsuits in an effort to improve janitors' pay and working conditions, and to pressure the government to step up enforcement of labor laws.

That union asserts that more government enforcement is needed, but enforcement is problematic. Janitors often work late at night, with a few workers here and there, and government officials are sometimes reluctant to pursue wage violations involving illegal immigrants. Immigration officials and labor officials at the federal and state levels say they are seeking to crack down on violations, but there are fewer wage-and-hour investigators than there were five years ago.

House Passes OSHA Deform Bills

Reprinted From Confined Space

The House of Representatives passed all four of Charlie Norwood's OSHA roll-back bills this evening. The Confined Space-inspired tsunami of calls, faxes and e-mails aparently weren't enough -- this time. We'll try again next time.

All the bills passed with comfortable margins, with the support of a few Democratic slimebags Representatives. I've never worked on Capitol Hill, so I'm never quite sure exactly what makes thise guys tick. I mean, I can understand if you're in a close district facing a tight election, but what's with Al Wynn or Nydia Velasquez? What's with Harold Ford?

It's hard to say what happens now.

These same bills were passed last year in the House, but never taken up in the Senate. Mike Enzi , chairman of the Senate Health, Education, Labor and Pensions committee, which is repsonsible for OSHA, has his own version of OSHA deform that also never became law. He has indicated that he may be open to considering the House bills this year.

Anyway, good work We'll undoubtedly have another chance soon to strike fear into the heart of Congress.

Here's the list of Dems who can be taken off of your Christmas list. If you're in their district, call and let them know you're unhappy:

H.R. 739,Occupational Safety and Health Small Business Day in Court Act (256-164): Baird (WA), Bean (IL), Bishop (GA), Boren (OK), Boyd (FL), Case (HI), Cooper, Costa (CA), Cramer (AL), Cuellar (TX), Davis (FL), Davis (TN), Edwards (TX), Ford (TN), Gonzalez (TX), Gordon (TN), Harman (CA), Herseth (SD), Lipinski (IL), Marshall (GA), Matheson (UT), McIntyre (NC), Mollohan (WV), Rahall (WV), Salazar (CO), Skelton (MO), Tanner (TN), Taylor (MS), Udall (CO), Velazquez (NY), Wynn (MD).

H.R. 740 Occupational Safety and Health Review Commission Efficiency Act (234-185): Boren (OK), Boyd (FL), Case (HI), Cramer (AL), Cuellar (TX), Gordon (TN), Matheson (UT), Taylor (MS)

H.R. 741 Occupational Safety and Health Independent Review of OSHA Citations Act (226-197): Boren (OK), Boyd (FL), Case (HI), Cramer (AL), Cuellar (TX), Davis (TN), Marshall (GA), Matheson (UT), Taylor (MS)

H.R. 742 Occupational Safety and Health Small Employer Access to Justice Act (235-187): Bishop (GA), Boren (OK), Boyd (FL), Case (HA), Cooper (TN), Costa (CA), Cramer (AL), Cuellar (TX), Davis (TN), Edwards (TX), Ford (TN), Gonzalez (TX), Matheson (UT), Tanner (TN) NY), Taylor (MS), Velazquez (NY), Wynn (MD).

Stupid and Deadly: Undocumented Workers Lured into Arrest With Promise of Safety Training

Reprinted From Confined Space

Appalling.

We have a very well-known and deadly problem in this country: Immigrant workers -- especially undocumented immigrant workers -- get injured and killed on the job at a much higher rate than native-born workers.

Part of the problem is lack of training; they're not aware of many of the hazards and they don't know about OSHA standards. But even when they know the work is dangerous and know that they can call OSHA, they're generally reluctant to complain. Partly it's fear of getting fired. But it's also because in their country of origin, there is often a great (and justified) mistrust of government officials.

For undocumented workers it's even worse.

They're afraid OSHA inspectors will turn them in to immigration authorities, even though OSHA and immigrant worker support groups have gone to great lengths to assure immigrant workers that they have nothing to fear from calling OSHA.

Apparently all for naught.

Last week federal immigration officials took into custody dozens of undocumented workers from Mexico, Honduras, El Salvador and Ukraine at the Seymour Johnson Air Force Base in Goldsboro, North Carolina. How did they lure them into the trap? None of your business, says the federal Bureau of Immigration and Customs Enforcement (ICE). "We're not going to discuss how we do our business," Sue Brown, an immigration and customs spokeswoman in Atlanta, said last Thursday.

However, Allen McNeely, head of the state Labor Department's Occupational Safety and Health division, said the workers were lured into the arrest by a flier announcing a mandatory Occupational Safety and Health Administration meeting.

McNeely said one of the contractors who employed the immigrants faxed him a copy of the flier. It is printed in English and Spanish. It tells all contract workers to attend an OSHA briefing at the base theater and promises free coffee and doughnuts.

McNeely said that neither his division nor the federal OSHA was involved in the arrests. He said the trick has eroded trust between the Labor Department and the workers it is trying to keep safe.

In recent years, the Labor Department has made an effort to reach out to the state's thousands of immigrant workers, especially those in construction, because they are among the most likely to be killed or injured at work.

"We are dealing with a population of workers who need to know about safety," McNeely said. "Now they're going to identify us as entrappers."

The ICE, which made the raid, was carved out of the old Immigration and Naturalization service and is part of the Department of Homeland Security. The ICE's mission, according to their webpage is "To prevent acts of terrorism by targeting the people, money, and materials that support terrorist and criminal activities."

The feds were completely unapologetic:

"Federal immigration officials say they have the right to round up illegal immigrants in any manner they see fit -- even if it means impersonating Occupational Safety and Health Administration officials."

On the WRAL-TV show "Headline Saturday," U.S. Attorney Frank Whitney and Assistant U.S. Attorney James Candelmo said they couldn't comment on how those particular immigrants were taken into custody. But they said it's important to find ways to round up groups of suspects without causing chaos. That sometimes requires undercover tactics, they said.

"We have to protect the ability of law enforcement to use undercover operations," said Whitney.

But at what price?

Tell Congress Not To Weaken Worker Protections

Reprinted From Confined Space

As Congress heads into its final session before its long Summer break, this is what American workers are facing every day when they go to work:

 According to Workforce Protections Subcommittee Chairman Charlie Norwood (R-GA), chief sponsor of the bills, "Small businesses can’t afford compliance managers and full-time safety personnel that big businesses use to keep over-zealous OSHA agents at bay." In other words, apparently they should be given a "get out of jail (or paying penalties) free" card, regardless of the dangerous conditions their employees are forced to work in. What does Norwood have in mind?

On Tuesday, July 12, instead of helping workers by addressing some of the problems listed above, the Republican leadership in the House of Representatives is planning to pass four bills (H.R. 739, H.R. 740, H.R 741, and H.R.742) that will further weaken worker protections. In the words Congressman Major Owens (D-NY) and George Miller (D-CA), "Taken together, these one-sided bills rollback safety and health protections for millions of American workers."

H.R. 742 Occupational Safety and Health Small Employer Access to Justice Act is probably the most offensive bill being voted on Tuesday is- This bill requires taxpayers to pay the legal costs of small employers (defined as employers with 100 or fewer employees and up to $7 million net worth) who prevail in any administrative or enforcement case brought by OSHA or any challenge to an OSHA standard, regardless of whether the action was substantially justified.

So what's the problem? Isn't it fair for Ma and Pa Inc. to get their lawyers paid for when big bad OSHA comes and arbitrarily cites them for something they didn't do?

No. First, OSHA, like most other government agencies. is already required to pay back litigation costs where litigation costs where the government position was not substantially justified. This bill would single OSHA out of all other government agencies in that even if an employer prevailed on a technicality, taxpayers would be forced to foot the bill. Under this bill employers will also be able to recover partial attorneys fees if they partially prevail in an OSHA proceeding.

As the AFL-CIO points out:

This bill would allow even the worst employers -- ones with repeated and egregious violations -- to recover fees if they prevailed on a particular violation. Even employers like Eric Ho, who exposed his employees to asbestos and made them work at night behind locked gates without providing them any sort of respirators or training -- and who was criminally convicted for Clean Air Act violations -- would be able to recover attorneys’ fees. This is because the OSHA Review Commission dismissed two of Ho’s corporations as defendants and dismissed 10 of 11 willful violations of OSHA’s respirator and training standards. Secretary of Labor v. Ho, Nos. 98-1645 & 98-1646 (OSHRC, Sept. 29, 2003).

But it only affects business with fewer than 100 employees? How bad can that be?

Bad. Businesses with 100 or fewer employees make up 97.7 percent of all private sector establishments and the have a higher rate of fatal occupational injury than do establishments with 100 or more workers.

Furthermore, OSHA is already seriously underfunded, yet this bill would further drain its resources:

As estimated by the Congressional Budget Office, this bill would cost $7 million in FY 2005 and $44 million total for FY 2005-2009, which must come out of OSHA’s budget. This would require Congress to appropriate additional money to OSHA’s budget to cover the cost of the bill or to cut OSHA’s enforcement budget or reduce compliance assistance to small business.

Moving right along...

H.R. 739,Occupational Safety and Health Small Business Day in Court Act gives employers a little extra time in case they accidentally forget to appeal OSHA citations by the 15 day deadline if they can show "mistake, inadvertence, surprise, or excusable neglect" as the reason. (Surprise?!) I can just see how well this would work for my kids if their teachers said they didn't have to hand in assignments on time if they could show that there had been a mistake, inadvertence, surprise, or excusable neglect.

I can (and already did) imagine the dog-ate-my-homework excuses those wild and crazy employers will come up with to excuse themselves from getting their appeals in on time.

The whole point of the 15 day deadline is to move appeals along as quickly as possible. Few people know that if an employer appeals an OSHA citation, he doesn't have to fix the problem until the appeal is concluded. In addition, the OSHA Review board already reviews delinquent appeals on a case by case basis. Finally, workers aren't given any extension of their deadline to appeal OSHA's abatement schedule. Why are employers the only ones allowed to use mistakes, inadvertence, surprise, or excusable neglect as excuses?

H.R. 741 Occupational Safety and Health Independent Review of OSHA Citations Act would would undermine the Secretary of Labor’s authority to interpret and enforce the law and radically change the implementation and enforcement of the OSHAct. The bill would give the OSHA Review Commission, rather than the Secretary of Labor, deference in interpreting OSHA standards. The legislative history of the OSHAct clearly gives the Secretary the authority and responsibility to implement and enforce the law and interpret the standards. The Labor Department and OSHA adopt standards and enforce the law, and therefore have a much much broader and deeper understanding of OSHA’s rules than the Review Commission.

And after the Commission is given more power....

H.R. 740 Occupational Safety and Health Review Commission Efficiency Act would effectively pack the OSHA Review Commission with more Republican appointees. It would expand the Board from three to five members and require that they all have legal training. Expanding the membership would allegedly help the commission retain a quorum, although it's hard to see how. Right now, two members are needed for a quorum, whereas after this reform three would be needed. If the Administration find it difficult getting two members to stay on the Commission, why would getting three be any easier? And it's just a coincidence that this "reform" is coming when the Republicans are in control of Congress and the White House.

And why should only lawyers be allowed to interpret OSHA law? I personally know a lot of workers -- health and safety reps -- who have a much better understanding of the law than most attorneys. (And I guess I just answered my own question.)

What Can You Do?

Call, fax or e-mail your Congressman or woman and tell them to oppose ALL of these bills. We need to strengthen OSHA, not weaken it.

Every House member should be called. Even if they're solidly pro-labor or solidly anti-labor they all need to hear that American workers are concerned about weakening OSHA.

The following Representatives need special attention. The same bills were voted on last year and the following Democrats voted wrong on at least one of them: Bishop (GA), Boyd (FL), Cardin (MD), Case (HI), Cooper (TN), Cramer (AL), Davis (FL), Davis (TN), Edwards (TX), Gonzalez (TX), Gordon (TN), Harman (CA), Matheson (UT), Marshall (GA), McIntyre (NC), Rahall (WV), Skelton (MO) , Spratt (SC), Tanner (TN), Taylor (MS), and Wynn (MD).

Urge them to vote against ALL of these bills on Tuesday.

The following Republicans voted correctly on at least one of the bills: Boehlert (NY), King (NY), LaTourette (OH), LoBiondo (NJ), McHugh (NY), Saxton (NJ), Shays (CT), Smith (NJ) Sensenbrenner (WI), and Sweeney (NY).

Congratulate them for supporting workers last year, and encourage them to oppose all of the bills this time around.

If you don't know who your Congressman is or how to contact him or her, just scroll down the right-hand column until you come to a picture of Abraham Lincoln. Fill in your zip code and you're in business.

And don't worry, the American people are with us. A recent Wall St. Journal-NBC News poll showed that 84% of those polled think that Congress should be more involved with "Rules in the workplace that deal with health and safety issues," a level of support that exceeded any of the other options listed. Let's show them what happens when Confined Space and LaborBlog readers swing into action.

Never Too Many Blogs

Supreme Court Abolishes OSHA, EPA

Reprinted From Confined Space

Well, not yet, anyway. But pay attention.

Amidst all of the discussion about the impact of a new Supreme Court justice on abortion and other "cultural/values/religious/moral" issues, a few bloggers and journalists have also been looking at the implications for this administration's real friends, corporate America.

Political analyist David Sirota points out that 

the media regularly misses the real story about how Big Money runs the show in Washington, D.C. Reporters seem to prefer the fake storyline of "conservative" vs. "liberal" as opposed to the real storyline of "Big Money" vs. "Ordinary Americans." That's what this fight is ultimately going to be about, and Corporate America is going to thrust itself into the middle of this, ramming millions of dollars into the process to make sure they get the climax they want - a Justice they can be in bed with whenever they desire, and that will perform whatever dirty little favors Big Business says. Our side had better be ready to expose their scheme - and counter it with our own fight.

I have already written about some of the theoretical/ideological underpinnings of the "constitution in exile" movement which argues that the most important rights are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional. As Jeffrey Rosen wrote in the NY Times last April, the implications of this movement are enormous and need to be remembered in the current struggles over Bush's court nominees:

Cass Sunstein, a law professor at the University of of Chicago, will soon publish a book on the Constitution in Exile movement called "Fundamentally Wrong." As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power." In what Sunstein described as the "extreme nightmare scenario," the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

Rosen pointed out in an earlier article that although the Rehnquist court has struck down 33 federal laws since 1995, the highest annual average ever, the moderates (Justices Sandra Day O’Connor and Anthony Kennedy) have kept the court from repealing any major environmental or workplace safety laws. And there are plenty of lower court Republican-appointed “candidates” for the Supreme Court whose previous actions show that they would be ready and willing to declare the Occupational Safety and Health Act or various environmental laws unconstitutional.

So much for theory. What about the simple fact that Bush has a tendency to reward his friends -- who also happen to be his corporate supporters? Blogger and labor economics professor Nathan Newman puts it bluntly:

Forget the Ten Commandments: corporate America knows that case after case decided by the Supreme Court are about bread-and-butter economic issues.

Check out the National Association of Manufacturers Supreme Court review for this last term. A whole mess of cases you probably didn't even hear mentioned in the media but of great interest to corporate America.

Or see this list of cases of interest to the National Federation of Independent Businesses.

We need to emphasize that Bush will be picking a Justice to please these interests, not just the religious right.

NAM itself agrees, as VP Pat Cleary writes in the NAM Blog:

Over 80% of a federal judge's civil caseload is consumed with issues we care about: contracts, torts and employment litigation. We want justices who make decisions based on what a contract says, not on what they think it should say, and based on what the law says, not on what they think it should say.

Business has a lot riding on this third branch of government. They can undo all the good we've accomplished in the legislative branch. We need to pay attention. Here's just a sampling of upcoming cases affecting manufacturers.

The interesting thing here is that when it comes to Supreme Court appointments, the administration's religious "values" friends are not necessarily on the same wavelength as the administration's corporate friends

As the Wall St. Journal pointed out last week,

The emerging corporate agenda is different from, and at times contradicts, that of their religious-conservative allies. The Christian right, represented by groups such as the Family Research Council in Washington, has been lobbying the Bush administration to appoint a Supreme Court justice who opposes abortion and gay marriage and favors school prayer and public religious displays. Top business priorities include more protection for intellectual-property rights, more flexibility in clean-air emissions standards, restriction of jury awards and a lenient interpretation of the Sarbanes-Oxley law that imposes new accountability and disclosure requirements on businesses.

***

What business wants from the high court sometimes undercuts basic conservative principles. One example has to do with federal authority and states rights. Corporations increasingly have sought protection from unfavorable state laws and court rulings by arguing that federal law "pre-empts," or sets aside, that of the states. This argument could be used to rein in ambitious state attorneys general, such as New York's Eliot Spitzer, who has tried to apply more stringent standards for corporations than those sought by the Securities and Exchange Commission or the Environmental Protection Agency.

Religious conservatives, by contrast, tend to embrace the more traditional conservative position favoring states rights. So they encourage states and municipalities to stretch or go beyond high court precedent on abortion, prayer in public or religious displays.

Bloomberg news adds more detail:

Both Scalia and Thomas read the U.S. Constitution as conferring only those rights contemplated by its authors. They say the Constitution doesn't protect abortion and gay rights --and likewise doesn't bar excessive damage awards.

O'Connor, by contrast, took a less doctrinal view of the Constitution, letting her pro-business leanings take over.

"Social conservatives admire Justices Scalia and Thomas, but Justices O'Connor and Kennedy have been much better for business interests," says Walter Dellinger, a Washington lawyer and Duke University law professor who was the Clinton administration's top Supreme Court lawyer. "Pragmatism works well for business. Ideology often does not."

Scalia and Thomas also take a "strict interpretation" approach toward federal statutes, hewing to the words of the law and leaving it to Congress to address any adverse consequences. Using that school of reasoning, Scalia and Thomas voted to allow job-discrimination suits that O'Connor would have forbidden.

In addition, Scalia and Thomas at times voted to permit state-court product-liability lawsuits when O'Connor would have imposed a single, national standard limiting suits.

***

Like Scalia and Thomas, several prospective nominees being pushed by social conservatives are only lukewarm in their support for business. That list includes Emilio Garza, a San Antonio-based judge on the 5th U.S. Circuit Court of Appeals, who in 1997 indicated he would overturn the constitutional protection for abortion.

In 2002 the law journal Judicature found Garza to be the least conservative of six potential nominees on economic and labor-regulation issues, siding with business only 54 percent of the time. Another favorite of hard-line conservatives, 4th Circuit Judge Michael Luttig of Alexandria, Virginia, was just behind, ruling for business 59 percent of the time.

By contrast, the candidate who may have the clearest pro- business sympathies is also the one facing the most vocal opposition from social conservatives: Attorney General Alberto Gonzales.

What this all adds up to is an unprecedented involvement of business money and influence in the process of picking the next Supreme Court justices. The Journal reports that NAM's President John Engler is setting up an endorsement process:

A new committee of executives will vet any White House nominee based on his or her business rulings.

The NAM committee's findings will be distributed to Capitol Hill and to the arsenal of advocates employed by the association's more than 220 trade-association members. They will also go to 14,000 corporations, including Toyota Motor Corp., Emerson and Caterpillar Inc. Those member companies and groups, in turn, have the ability to activate roughly 17 million employees and executives to exert local pressure on wavering senators. Big employers increasingly have tried to mobilize their workers on other political issues.

The LA Times notes that the Chamber of Commerce has been in this game for a while:

It endorsed Thomas, Scalia, Ruth Bader Ginsberg and Stephen G. Breyer but did not see the need to campaign for those nominees.

This year, however, the organization is likely to be in campaign mode. At both the Chamber and National Assn. of Manufacturers offices, officials said the decision would be based on a candidate's overall fitness for the job. However, a candidate's past position on issues such as labor law, punitive damages, tort reform and regulation also would be reviewed.

Let's make sure we keep our eyes on the ball, and lets make sure our Senators and the media pay attention to the real issues as well.

LaborBlogging Moving to TPMCafe

Well, relatively big news for this blog. I'm starting blogging today over at Josh Marshall's TPMCafe, in the new "House of Labor" blog, so most of my labor and economic-oriented blogging will be over there from now on.

See today's first entry, "Why Progressives are Fools to Ignore Labor Issues

I'll continue to blog about politics and legal issues on my main blog, so stay tuned. And I'm hoping to figure out how to get a feed of my House of Labor posts on my main page. Wee'll see.