Reforming OSHA: Modest Proposals for Major Change

For one account of the Triangle fire, see Kessler-Harris Alice , “Organizing the Unorganizable: Three Jewish Women and their Union,” Labor History, v. 17, no. 1 (Winter 1976).

Smothers Ronald , “25 Die, Many Reported Trapped, As Blaze Engulfs Carolina Plant,” New York Times, 9/4/91, pp. Al, B7; Smothers Ronald , “North Carolina Examines Inspection Lapses in Fire,” New York Times, 9/5/91, p. D25.

U. S. Department of Labor, Occupational Safety and Health Administration, 1991.

In 1990, North Carolina had 27 safety and health inspectors (including trainees) to oversee more than 180,000 employers. See Garland Susan B. , “What a Way to Watch Out for Workers,” Business Week, 9/23/91, p. 42.

The following section arises largely from my studies of OSHA enforcement. For specific results, see Weil David , “Enforcing OSHA: The Role of Labor Unions,” Industrial Relations, v. 30, n. 1 (Winter 1991), pp. 20–36; and “Building Safety: The Role of Labor Unions in the Construction Industry,” Journal of Labor Research, v. 13, n. 1. (Winter 1993), pp. 121–132.

Three bills introduced in the 1970s sought to exempt small businesses from OSHA entirely.

Mintz Benjamin W. , OSHA: History Law, and Policy, (Washington, D.C.: Bureau of National Affairs, Inc., 1984), Chapter 13.

I examine this issue more generally in “Employee Rights and the Implementation of Labor Laws,” Proceedings of the Council on Employee Rights and Responsibilities, October 1991, (forthcoming).

Table 1 is based on the complete OSHA inspection records for 1985 for federally run programs, comprising 28 states. It does not include inspections administered by state-run OSHA programs.

For several views, see Rothstein Mark , “OSHA After Ten Years: A Review and Some Proposed Reforms,” Vanderbilt Law Review, v. 34 (1981), pp. 71–139; Mendeloff John , “Regulatory Reform and OSHA Policy,” Journal of Policy Analysis and Management, v. 5 (1986), pp. 440–460; and Shapiro Sidney and McGarity Thomas , “Reorienting OSHA: Regulatory Alternatives and Legislative Reform,” Yale Journal on Regulation, v. 6, no. 1 (Winter 1989), pp. 1–63.

These studies include: Kochan Thomas Dyer Lee , and Lipsky David , The Effectiveness of Union-Management Safety Committees (Kalamazoo, MI: W.E. Upjohn Institute, 1977); Cooke William and Gautschi Frederick , “OSHA, Plant Safety Programs, and Injury Reduction,” Industrial Relations, v. 20, n.3 (Fall 1981), pp. 245–257; Boden Leslie Hall Judith Levenstein Charles Punnett Laura , “The Impact of Health and Safety Committees,” Journal of Occupational Medicine, v. 26, n. 11 (November 1984), pp. 829–834.

For the text of this agreement, see “Health and Safety Agreement Between General Motors and the UAW,” New Solutions, v. l, no. 4, (Spring 1991).

See Wokutch Richard , Cooperation and Conflict in Occupational Safety and Health: A Multination Study of the Automotive Industry, (NY: Praeger, 1990).

Rees Joseph V. , Reforming the Workplace: A Study of Self Regulation in Occupational Safety, (Philadelphia, PA: University of Pennsylvania Press, 1988).

The Mine Safety and Health Act (MSHA) regulates safety and health for metallic and non-metallic mining including underground coal mining. Similar to the findings presented above, underground coal mines organized by the United Mine Workers of America (UMWA) receive far greater regulatory scrutiny than their non-union counterparts. The UMWA has created a sophisticated system of mine committees, supported by a regional and national union program to monitor mine conditions on a daily basis. While mine committees are encouraged to work out disputes voluntarily with mine operators, committees also use their right to involve MSHA as a further incentive to reach such agreements. For a more complete discussion, see Weil David , “Guarding the Mine Face: The UMWA and the Implementation of MSHA,” unpublished manuscript, 1990.

Even absent changes in the existing law, union policies to build their capacities to address safety and health can improve safety and health performance. Unions can provide critical training for workplace committees (particularly in small workplaces), and through collective bargaining attempt to build the strength of those committees. This includes bargaining for inspection rights, pay for time on committee work, and winning the right to refuse hazardous work as matters of collective bargaining. Safety and health remains a powerful organizing tool for unions. Such efforts serve both the union movement and occupational safety and health goals.

See Bokat Stephen A. and Thompson Horace A. III , Occupational Safety and Health Law, (Washington, D.C.: Bureau of National Affairs, 1988), chapter 17, for a full discussion of employee and union participation in litigation under OSHA.

In contrast to OSHA, MSHA provides for an employee right to contest penalties.

See Ashford Nicholas and Katz Judith , “Unsafe Working Conditions: Employee Rights Under the Labor Management Relations Act and the Occupational Safety and Health Act,” Notre Dame Lawyer, v. 52, (June 1977), pp. 802–837.

Wokutch (1990), pp. 40–46 for a discussion of these targeting policies.

Given the collapse of the cold war, OSHA might turn to former Defense Department experts on deterrence theory to help design targeting strategies.

Based on a study conducted by Joan McManus, director of Wisconsin Committee on Occupational Safety and Health and reported in Moberg David , “Weak Workplace Safety Law Needs Strength to do Its Job,” In These Times, May 23 — June 5, 1990.

The Mine Safety and Health Act provides far more extensive discrimination provisions that could be adopted by OSHA. See Federal Mine Safety and Health Act of 1977, 30 United States Code, Sections 801 through 962, Section 105(c).

For a study of this issue generally, see Foulkes Fred K. , Personnel Policies in Large Non-union Companies, (Englewood Cliffs, N.J.: Prentice-Hall, 1980); Brown Charles Hamilton James , and Medoff James , Employers Large and Small, (Cambridge, MA: Harvard University Press, 1990).

For example, the 3M Corporation has created a comprehensive safety and health and environmental program, primarily through its own initiation. Other major non-union corporations have similarly developed state-of-the-art safety and health policies (often actively including their employees in these processes). OSHA should gain greater insight into the internal cultures that fostered these policies and find means to encourage similar efforts among other employers. For a description of the 3M program, see Zigman Ron A. , “Minimizing the Impact of Technology on People and the Environment,” in Association of Trial Lawyers of America, Safe Work: Preventing Injury and Disease at the Workplace, Conference Report, (Washington, D.C.: ATLA, 1991). For a description of other programs among large non-union employers, see Kasperson Roger Kasperson Jeanne Hohenemser Christoph , and Kates Robert , Corporate Management of Health and Safety Hazards: A Comparison of Current Practices, (Boulder, CO: Westview Press, 1988).

Mendeloff and Kagey find that the probability of a fatal injury is inversely related to firm size. See Mendeloff John and Kagey Betsy , “Using Occupational Safety and Health Administration Accident Investigations to Study Patterns in Work Fatalities,” Journal of Occupational Medicine, v. 32, n. 11 (November 1990), pp. 1117–1123. See also Leigh Paul J. , “No Evidence of Compensating Wages for Occupational Fatalities,” Industrial Relations, v. 30, n. 3 (1991), pp. 382–395.

Thus, while the overall probability of an inspection at small workplaces might remain relatively small, the probability of inspection in hazardous target industries would be boosted considerably during the course of a particular “blitz” program.

The most disturbing example of this problem can be found in underground coal mining. Many small mine operations persist at the edge of profitability and would be closed if MSHA standards were fully enforced. Yet 80 percent of all mining fatalities occur in these operations, despite the fact that they account for a small percentage of total coal output. Thus, forcing these operations out of business arguably serves larger policy goals. For recent discussions, see Karr Albert , “Labor Department Plan Could Close Unsafe Mines,” Wall Street Journal, June 1, 1989; Kilborn Peter , “Scraping by, Illegally, Mining Kentucky Coal,” New York Times, 3/3/91, pp. 1, 32.

For a concise discussion of this issue, see Chelius James R. , “Role of Workers' Compensation in Developing Safer Workplaces,” Monthly Labor Review, September 1991, pp. 22–25.

See Krueger Alan , “Incentive Effects of Workers' Compensation Insurance,” Journal of Public Economics, (forthcoming).

For a text of the proposed Act, see Congressional Record — Senate, pp. 511833–511845.

The limited success of Canadian provincial government efforts to mandate safety and health committees provides another cautionary note for the U.S. See DeMatteo Bob , “Health and Safety Committees: The Canadian Experience,” New Solutions, v. l, no. 4 (Spring 1991), pp. 11–15.

See Smith Barbara E. , Digging Our Own Graves: Coal Miners and the Struggle Over Black Lung Disease, (Philadelphia, PA: Temple University Press, 1987).

For a more complete discussion of the origins of OSHA, see Asher Robert , “Organized Labor and the Occupational Safety and Health Act,” Labor's Heritage, January 1991, pp. 56–76.