A New OSHA Assault

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Dr. Darth Vader?

OSHA estimates that the average annual cost of complying with its regulations for, say, a dental office will run around $873. Dentists themselves predict a far higher expense. Some estimate that OSHA and other safety-related costs will add about $10 to the bill for a regular cleaning, and $15 to $17 to the price of a typical cavity filling. One Neenah, Wisconsin dentist recently informed his clientele that the increased OSHA burden gave him no alternative but to add an "Infection Control and Biohazard Waste Fee" of $6 to each bill to defray part of the cost.

In New Jersey, according to the Morris County Daily Record for August 2, 1992, some "surgeons reported that OSHA compliance costs have caused them to rethink the range of procedures they are willing to conduct in their offices, forcing patients to pay for a hospital visit for even the simplest of operations, like stitching a wound." Needless to say, "such a move can more than double the cost of any medical procedure." And the Washington Times for November 16th reported that a physician in Gaithersburg, Maryland had closed the small laboratory in her office that had enabled her to quickly diagnose the more routine ailments of her patients. "Now, she sends various tests, mainly blood tests, to large certified laboratories or hospitals for examination and analysis. Patients must wait a day or two for the results before she can prescribe treatment."

The Times quoted another Maryland physician's lament that regulations sometimes require medics to "dress up like Darth Vader whenever you see a patient," while a New Jersey dental hygienist, after donning her face shield, safety goggles, rubber gloves, gown, and lab coat, was described by a Daily Record reporter as "looking less and less like she's about to scrape tartar from a patient's teeth and more and more like she's preparing to scrub radioactive waste from a nuclear reactor."

Paramedics have always used disposable gloves, but under the OSHA directives they must now remove them after stabilizing a patient, sterilize their hands before entering the cab of the ambulance, don new gloves upon arrival at the hospital, and repeat the disposal-sterilization process before returning to the station. As reported by the Appleton (Wisconsin) Post-Crescent for July 4, 1992, "Since paramedics frequently work 24-hour shifts, it's not uncommon for them to stop at a fast-food restaurant with an ambulance to pick up food to eat back at the base. They can still do that, but they just can't ... have any food inside the ambulance cab, or get back into the ambulance with the same clothing after eating." The cab, you see, is now considered a contaminated area.

Brad Arft, director of training for Gold Cross Ambulance Service in Appleton, Wisconsin, notes that while these and other new requirements may not add to response or treatment time, they do "add time to start patient care when the potential exists for exposure" to blood and other body fluids. And again, a record of every washing of hands and changing of rubber gloves must be kept for 30 years after the employee has left the company. Failure to comply with that and other standards could result in a fine of up to $70,000, while any employee who violates the rules for a fourth time is subject to automatic dismissal.

Such onerous OSHA edicts are tying up medical professionals in red tape, threatening to reduce the patient-care services they provide, and fueling a further rise in health-care costs which can in turn be cited to bolster the argument for a collectivized system of national health insurance.

Roaring Back

In 1990, OSHA announced sweeping new directives to require the estimated 35 million Americans who drive on the job to wear seat belts, and those who ride motorcycles to wear helmets, or risk having their employers slapped with fines of up to $10,000. This year, OSHA proposed a rule to require businesses to provide "free" driver-safety programs for employees whose jobs entail driving. In September, the House of Representatives approved an amendment to block the rule, but this amendment was scuttled in conference with the Senate, so the rule remains on track.

It is now clear that, after a brief period of (relative) moderation during the 1980s, the OSHA monster is again hitting full stride. And major union-backed legislation to greatly expand its unconstitutional and economy-undermining powers will be introduced in the 103rd Congress that convenes in January. According to the nonpartisan Employment Policy Foundation, the new OSHA "reform" proposals will, if adopted, heap at least another $50 billion a year in compliance costs alone on American businesses, virtually all of which will be passed along to American consumers. The Los Angeles Times for October 6, 1991 noted that "many of the proposed changes ... not only would give OSHA far more power to punish errant companies, but also would introduce concepts of worker participation more common to the social [read: socialist] democracies of Western Europe."

For over 200 years, the private sector has blessed the United States with the most productive and technologically advanced economy in recorded history. But in 1970 the federal government decided that the men and women responsible for producing such wonders were so stupid and heartless that they didn't care about the health or safety of their employees, and may even have plotted ways to maim and massacre their workforces. Even today that myth persists, as when Los Angeles County District Attorney Ira Reiner asserts (as he is fond of doing), "When somebody dies on the job, that is a violent crime, as much as somebody who is mugged or robbed on the street."

To the contrary, all but a minuscule handful of employers know that death or injury among their employees costs money, so have an enormous vested interest in minimizing such events. And as we shall see, the private sector, working mostly on its own, successfully reduced workplace injuries and fatalities before OSHA arrived on the scene, while OSHA may have served to slow (and in some instances reverse) that progress.*

Unconstitutional Legislation

In 1968, Ralph Nader and other self-styled "consumer advocates" joined in a campaign to raise public consciousness about an alleged "lack of safety" throughout U.S. industry. Their propaganda efforts gave the White House and congressional leftists an excuse to "do something" about the supposed threat to the lives and health of working men and women. Democratic President Lyndon Johnson proposed an occupational safety and health bill in 1968, as did Republican President Richard Nixon in 1969. In 1970, big labor joined the battle in earnest, and by year's end the Occupational Safety and Health Act was signed into law. Even most conservatives either caved in or were asleep at the switch on the issue. The Senate version of the bill passed 83 to 3, the House version was approved 384 to 5, and the final conference report that President Nixon signed into law was adopted by unrecorded voice vote in the Senate, and by a still lopsided 309 to 60 tally in the House.

A few years later, after OSHA's mendacious nature and unconstitutional tactics had become obvious, some conservative lawmakers lamented their failure to stand guard when it counted. Senator Clifford Hansen (R-WY), for instance, told his colleagues on the Senate floor on June 19, 1973: "I must admit I have not read the [OSHA] bill: And I would have to say that no one else read it either, because ... many codes and many regulations were incorporated into that law, and ... all of those codes and references were never printed in one single document." The senator noted that the Library of Congress had estimated that the OSHA Act, and the "documents which by reference were incorporated into it and made a part of it," generated "a pile of material in excess of 30 feet in height."

For his part, erstwhile conservative stalwart Barry Goldwater (R-AZ) wrote to a constituent on May 18, 1973: "To tell the truth, I don't recall how I voted or if I voted when the OSHA Act was first before us; but I think it happened before I was reelected to my present term of office. To be honest, at that time hardly anybody noticed what harmful regulations could be drawn under it." For the record, Senator Goldwater voted for the OSHA Act, and he had been reelected in 1968.

According to a 1990 General Accounting Office survey, OSHA has jurisdiction over 3.6 million companies and 55 million workers. Once its decrees have been published in the Federal Register, they have the force of law. Congress as a body does not consider them, and few senators or representatives know they exist until angry mail from affected constituents starts pouring in.

The 1970 Act granted OSHA's "compliance safety and health officers" authority to enter and inspect virtually any place of business in the nation simply by "presenting appropriate credentials to the owner, operator, or agent in charge." OSHA officers were empowered, without a search warrant based on genuine probable cause that a violation had occurred, "to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace, or environment where work is performed by an employee of an employer," and "to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee." Anyone alerting an employer in advance of an OSHA inspection was subject to a fine of up to $1,000 and/or a six-month jail term.

Legendary Abuses

The widespread abuse of this unconstitutional grant of virtually unrestrained authority resulted in a huge compendium of legendary incidents that earned OSHA a reputation as the most despised of all federal regulatory entities. The abuse also led to a number of court tests and sparked the John Birch Society's national Nix on OSHA campaign to abolish the agency. The incidents have been extensively catalogued elsewhere, but here are a few examples, simply as a refresher:

• A painting contractor in Pennsylvania received a citation because an old dump track used exclusively as a container, and never moved from its location, had a cracked windshield and no brake lights.

• A small firm was compelled to build separate "his" and "her" toilets, even though the firm's only two employees were husband and wife.

• An incident was reported in The Review of the News for July 10, 1974, in which an OSHA agent "forced installation of a railing in a position which the experienced employer knew would result in an actual health hazard. Sure enough, when a subsequent man from O.S.H.A. arrived to inspect the business he tripped over the railing and fell to his death."

• A restaurant in Utah was ordered by OSHA to move a toilet in its public restroom because it was supposedly so far from the wall that someone might fall off and get hurt.

• In Colorado, a foundry that had been operating for 15 years without a head injury was compelled to provide hard hats for employees, and the owner was ordered to build a lunchroom even though his employees preferred to eat lunch at their work sites. The OSHA edicts cost the small foundry nearly $100,000, but at least it was able to remain in operation. In Wichita, Kansas, another foundry that made aircraft parts such as wing flaps for jetliners, and was described by one aircraft executive as "the most outstanding foundry in the U.S.," was forced to close in the wake of OSHA citations, including one which would have entailed a compliance expense of $500,000. Sixty employees lost their jobs.

It goes without saying that places of business do indeed become safer once they have been forced by OSHA to close their doors.

In many instances, OSHA's edicts were inherently contradictory and/or counterproductive:

• To protect workers from accidents, OSHA required vehicles at construction sites to be equipped with buzzers or horn audio-alarm signals. Then, to protect the hearing of the same workers from noise-related injuries, it required them to wear earplugs. (In Oregon, where OSHA forced loggers to wear ear plugs, a log rolled on a man who had to wait two hours for help because his OSHA-"protected" fellow loggers could not hear his cries for help.)

• The agency required a half-inch protective mesh on all motors and power ventilating equipment, but in the poultry business, feathers would completely plug such screens within a few days.

Who To Believe?

In other instances, OSHA directives conflicted with those issued by other federal agencies:

• The Del Monte Corporation attempted to keep OSHA happy by reducing noise at its food-packing plants with insulated machinery. But the insulation absorbed germs and odors that exceeded Food and Drug Administration (FDA) limits.

• The Federal Meat Inspection Service insisted that an Armour and Company meatpacking plant have an opening in a sausage conveyer line so that samples could be extracted for testing. But OSHA told the company to keep the opening closed, since it constituted a safety hazard. Each agency threatened to shut down the plant if its edicts were not implemented.

• OSHA told the Dubuque Packing Company in Iowa to install guard rails along its slaughterhouse operations to prevent workers from falling from platforms. But the Agriculture Department (which won this round) ruled against the guard rails because they might become unsanitary from contact with the carcasses.

• OSHA ordered a Massachusetts supermarket to install a non-slip grating on its workplace floor, after which the Agriculture Department forced the market to rip out the grating and install a sanitary tile floor.

• The Environmental Protection Agency (EPA) wanted steel-mill operators to place hoods over coke ovens to reduce air pollution, but OSHA wanted the hoods removed because they caused the workers to breathe increased emissions.

• OSHA proposed that workers be barred from entering a field for two days following the application of a particular pesticide, but FDA regulations provided that fruit grown in the same field could be eaten within 12 hours after the application of the same pesticide.

Invading Private Domains

On one occasion, OSHA sought to extend its authority to private homes. As a courtesy to his employees, the owner of a small firm in Albuquerque, New Mexico stored his employees' lunches in his refrigerator at home. OSHA used the kindness as an excuse to try to enter the home for an inspection. The owner refused, and was then forced to foot the bill for legal expenses to defend him-self. Congressman George Hansen (R-ID), who was an outspoken OSHA critic, noted that OSHA's assumed authority to inspect private homes whenever a trace of an outside employee was suspected could set a precedent for searching homes "in such instances as when you hire a gardener, when you have that new carpeting installed, or that extra room added to your house, or when you have that recreation room finished, or perhaps even when you have that kitchen remodeled."

In another instance, OSHA moved to have hunters branded as "recognized hazards." Based on the complaint of a single junior worker, it cited the Louisiana timber firm Olinkraft, Inc., for allowing hunting on its 500,000-acre property. An investigation by timber companies and associations throughout the United States found no instance in more than a decade in which an employee had been injured by a hunter. There had been only one minor incident in the previous 20 years, and Olinkraft, Inc. and its predecessors had never had such an accident in 70 years of operation. Nevertheless, OSHA gave the company the alternative of either banning all hunters from the woods or ceasing operations. The ruling generated a firestorm of public outrage, and OSHA was eventually forced to admit that there was "no evidence of a real hazard," that the disgruntled employee's original complaint "was invalid," that there were no "specific standards" for issuing the citation in the first place, and therefore "the decision has been made to withdraw the citation."

Right from the start, OSHA has placed the burden for workplace safety almost entirely on employers, while requiring little safe behavior by employees. Indeed, the 1970 OSHA Act nowhere mentioned any penalties for employees, which meant not only that workers could violate OSHA standards without fear of being fined or otherwise penalized by the agency, but that if they did so, their employers would be guilty of the violation.

One OSHA area director admitted that there had been evidence of union sabotage during inspections to create "violations" that could be used to harass and fine employers. And when an employee of the Atlas Roofing Company in North Carolina deliberately removed a safety guard covering a hole in the roof and committed suicide by jumping into the hole, OSHA fined Atlas $500 because the covering was not in place.

In his important book The Business End of Government, Dan Smoot warned in 1973 that OSHA "standards will provide an almost limitless number of contentious issues for unions to use as clubs to bludgeon management into concessions on matters that have nothing to do with the health and safety of employees." In one instance, three workers for an Idaho firm damaged some equipment due to carelessness, refused to repair the damage, and were fired as authorized by their collective-bargaining agreement. Their union representative then filed a complaint with OSHA, after which an OSHA inspection was conducted and citations were issued for alleged violations. In its attempt to settle the matter, the company was forced to expend around $7,500 in lost employee work time, $1,500 in attorney's fees, and an undetermined amount for phone calls, transportation, etc. At the last moment, OSHA dropped the case because the charges against the company could not be substantiated. There were no provisions for reimbursing the company for the unjustified expense.

Breaking Small Business

The impact of OSHA edicts is often felt most severely by small businesses, thousands of which have been driven under by OSHA's often impossible demands and draconian fines. Most small firms simply do not have the financial resources to hire lawyers, accountants, and consultants to evaluate OSHA regulations and contest unjustified citations. But larger firms do, and some have benefitted handsomely after OSHA has driven their smaller competitors from the marketplace. A few years ago, when one large Midwest foundry was required to spend nearly $1 million for new equipment and design changes imposed by OSHA, the owner was delighted. He explained: "That million dollars turned out to be a tremendous investment for us. Not because our safety record has improved or because our products are any better. What happened is that a number of our competitors could not afford these same demands from OSHA and are now out of business. We're booming!" Similarly, a large New Jersey railroad boxcar manufacturing firm found its business greatly enhanced after OSHA regulations made it economically unfeasible for 70 percent of its competitors to continue making side frames and other boxcar parts,

Small business, traditionally the backbone of the U.S. economy, is being broken by the regulators as many big businesses quietly applaud. Yet House Speaker Tom Foley (D-WA) was quoted in Nation's Business for December 1991 as claiming that the "ultimate goal is certainly not to overregulate or burden the small-business community, it's to improve safety." Sure. And the ultimate goal of a fox chasing a chicken is not to devour the bird for dinner, but simply to improve its health by forcing it to exercise.

The Fourth Amendment to the U.S. Constitution requires law enforcement officials who are anxious to search the homes or businesses of suspected criminals to first obtain a search warrant after demonstrating "probable cause" to a judge and specifying in advance the nature of the evidence they are seeking. It is a crucial constitutional safeguard. In contrast, however, Congress authorized OSHA compliance officers to conduct searches without warrants or convincing (except, perhaps, to themselves) "probable cause." Representative William Steiger (R-WI), co-author of the OSHA Act, declared in the Congressional Record for January 6, 1977, "Warrantless civil inspections are ... absolutely essential to this act's enforcement...."

Turning Back the Attack

As OSHA began wielding its unconstitutional authority in an oppressive manner, a number of courageous businessmen began refusing to allow their premises to be searched without a warrant. OSHA took them to court, but in one instance after another the courts ruled in favor of OSHA's victims.

The most renowned case involved Barlow's, Inc., a small plumbing and heating business in Pocatello, Idaho. On September 11, 1975, owner Ferrol G. "Bill" Barlow refused to allow an OSHA compliance officer to conduct a warrantless search. Four months later, another OSHA officer arrived with a court order commanding that Barlow submit to the inspection, but Barlow again refused and was cited for contempt of court. He filed suit against the Secretary of Labor, requesting that a three-judge federal panel be convened to evaluate OSHA's search and inspection provisions. In a unanimous decision delivered on December 30, 1976, the panel declared OSHA's power to conduct searches "unconstitutional and void" and forbade the Secretary of Labor "forever and permanently" to conduct any inspections pursuant to the 1970 OSHA Act. The Secretary appealed, and on May 23, 1978, the U.S. Supreme Court ruled that OSHA's warrantless searches were indeed unconstitutional. The decision was watered down, however, by the High Court's contention that "probable cause in the criminal law sense is not required." In essence, the justices retained full Fourth Amendment protections for criminal suspects, but established a lesser standard for millions of law-abiding employers. The decision was nevertheless an important milestone in establishing that OSHA had indeed been operating in reckless disregard of the Constitution.

On June 30, 1977, another OSHA inspector was denied admittance to one of the giant Weyerhauser Company's box manufacturing plants in Wisconsin. The OSHA officer returned a week later with a warrant, but without showing "probable cause." He was admitted under protest, after which the company went to court. On July 3, 1978, U.S. District Court Judge Myron L. Gordon ruled that it is not enough that OSHA alone be satisfied that probable cause for an inspection exists. Basing his decision in part on his interpretation of the Supreme Court's Barlow decision, he held that before any warrant can be properly issued, the judge to whom OSHA applies (and not simply the OSHA agent himself) must be convinced that probable cause exists. He voided the OSHA warrant in the Weyerhauser case, quashed all citations and penalties that had been imposed on the basis of the warrant, and ordered OSHA to return to the company whatever evidence it had obtained via an illegal search.

Strategic Retreat

These and a number of other key court victories, accompanied by the national drive to abolish OSHA, had the agency on the ropes. But largely due to a lack of adequate publicity about the court rulings, few businessmen realized that the law was increasingly on their side in resisting warrantless OSHA snooping. By one count, only 1.5 percent of OSHA-inspected employers were demanding proper search warrants from job-safety inspectors in the wake of the Barlow case.

Nevertheless, OSHA's advocates were compelled to implement a public relations strategy aimed at creating an aura of moderation for the agency that would help neutralize the growing opposition. In May 1977, Carter Administration Labor Secretary Ray Marshall publicly conceded that OSHA had "too many petty regulations" and "had neglected long-term health problems in order to enforce some petty standards not directly affecting health and safety." In December of that year, he announced the Labor Department's intent to scrap about 1,000 "nit-picking" and "picayune" job-safety regulations. On October 24, 1978, following months of public comment and hearings, some 928 of the more obvious nuisance regulations were indeed revoked. But they amounted to a mere 20 pages of some 300 pages of existing OSHA decrees. Secretary Marshall went so far as to imply that OSHA's wretched public image was due to sabotage by the Nixon and Ford Administrations, which he claimed had ignored serious health hazards while concentrating on such things as coat hooks and toilet seats.

The charade was sufficiently effective to begin blunting public criticism of the agency. Many of the same conservatives who were asleep at the switch when the OSHA Act was passed in 1970 began to drift once again into dreamland, rather than stand firm for OSHA's abolition.

The Reagan Record

Prior to his election as President in 1981, Ronald Reagan railed against OSHA in speeches, radio broadcasts, and his syndicated newspaper column. As President, however, he did not seek its abolition, but sought to moderate its excesses and "make it work." Today, the Reagan Administration is being scolded for supposedly eviscerating OSHA. The statistics indicate, however, that retarding the growth in OSHA's budget, slashing the number of inspections and citations, and focusing on high-risk industries rather than badgering the average businessman, resulted in a safer and healthier workplace. And that, in turn, implied that OSHA's efforts over the years had not only contributed little or nothing to a safer work environment, but may actually have made the American workplace less safe than it otherwise might have been. For example, Fortune magazine for April 16, 1984 reported: "Back in the early seventies, when OSHA was just getting started, the incidence of occupational injury (number of workdays lost annually per 100 workers) was under 50. After seven or eight years of rising appropriations at OSHA, the incidence was running around 66. After insensitive Reagan funding cutbacks, it fell back down to 57.5 in 1982." In other words, "there is a high and positive correlation between OSHA appropriations and the workplace injury rate. Increasing the appropriation for OSHA in any given fiscal year predicts a higher, not a lower, injury rate in the overlapping calendar year." With 1.0 representing a perfect positive relationship, Fortune calculated that over an 11-year period commencing in 1972, there was "a correlation coefficient of 0.9 between the incidence of injury and inflation-adjusted [OSHA] appropriations."

Similarly, the late economics columnist Warren Brookes reported in January 1985: "Between 1973 and 1980 workdays lost due to occupational accidents, injuries, or illnesses actually rose 18 per cent, even as the pace of OSHA's regulation soared to extremely costly levels. The rate of lost-workday cases went up from 3.3 to more than 4.3 in 1979, a 30 percent loss in safety, during a period when OSHA's Naderized inspectors were writing more than 100,000 citations, and imposing nearly $20 million in new penalties per year." In contrast, after the Reagan Administration took over in 1981, "Immediately, the number of citations dropped 34 percent, and the amount of penalties assessed by over 80 percent. Yet, curiously enough, the level of safety, after declining for seven straight years, suddenly started improving, and has improved every year since...."

According to the Statistical Abstract of the United States, in 1945 there were 18 employment-related deaths per 100,000 workers in the manufacturing sector. By 1970, the rate had been cut in half (to nine per 100,000), during a period when industry was handling safety and health concerns largely on its own. But thereafter, the rate flattened out. Between 1971 (when OSHA began operating) and 1980, it either remained at nine per 100,000 (1971-1973, 1975-1979) or fell no lower than eight per 100,000 (1974 and 1980). Not until 1981, the first year of the supposedly "neglectful" Reagan Administration, did the rate drop to seven. In 1982, it fell to six, where it stayed until falling to a record low of five in 1987.

Despite this encouraging trend, the Bush Administration began in 1989 to move OSHA back into its old, dictatorial mode. On January 13, 1989, one week prior to the inauguration of the new President, OSHA issued a sweeping set of standards restricting the use of 376 toxic and hazardous substances in the workplace, An OSHA spokesperson claimed that the changes, which marked the first major overhaul of OSHA standards since 1971, represented "a 20-year leap forward in the level of worker protection." Labor and consumer groups complained, however, that the draconian new standards did not go far enough. The Bush Administration let them stand and defended them in court. On July 8, 1992, a three-judge panel of the U.S. 11th Circuit Court of Appeals in Atlanta overturned the standards, ruling that OSHA had presented inadequate scientific arguments to back them up.

Not long ago, James MacRae, acting director of the Office of Information and Regulatory Affairs, which reviews and approves the seemingly endless deluge of federal regulations, was handed a proposed 3,500-page rule intended to establish workplace exposure limits for some 1,000 substances in three industries. OSHA claimed that the standards would save from eight to 13 lives, but conveniently neglected to include data indicating how the estimated $163 million annual cost of the regulations might harm workers' health. MacRae asked OSHA to look into it, since poverty is associated with ill health, and workers become impoverished when regulatory tribulations compel companies to shut down, lay workers off, or move to other countries. The Office of Management and Budget had estimated that there is one additional premature death for every $1.8 million to $7.25 million of additional regulatory costs imposed on the economy. Using the higher figure, OSHA's claim that its rule could save from eight to 13 lives was more than offset by the 22 deaths that could be expected from implementation of the role itself. Using the lower figure, potential deaths from the OSHA proposal (90) exceeded the potential lives saved by some 82!

In July 1991, under pressure from sundry labor unions, OSHA proposed tougher standards to protect textile finishers from exposure to formaldehyde. The standards lowered the acceptable exposure level to 0.75 parts per million (ppm) of air every eight hours from the existing one ppm. The November/December 1992 issue of Executive Alert, published by the Dallas-based National Center for Policy Analysis, noted that OSHA "rules on formaldehyde are aimed at workers who face a risk [of death due to the substance] of one in 1.5 million," which amounts to "$72 billion per life saved," which means that the expense of the standard may itself be responsible for taking from ten to 40 lives for every one it allegedly saves. As American Enterprise Institute economist Robert Hahn has observed, "OSHA, the agency that is supposed to be protecting us, may actually be harming us."

Off And Running

Less than five months into the Bush Administration, Industry Week for June 5, 1989 ran an article headlined "'RIP VAN OSHA' NO LONGER SLEEPING." It noted that the agency, "virtually dormant during the Reagan years, is beginning to show signs of life," one such manifestation being, in the words of Cleveland attorney W. Michael Hanna, that companies "are running into OSHA problems for the first time in eight years." And Management Review for December 1991 declared that the "OSHA of today ... is quite different than the OSHA everyone got used to in the 1970s and for most of the 1980s. There is more going on in the regulatory, legislative and enforcement areas than at any time during those two decades...."

President Bush had selected Gerard F. Scannell, director of corporate safety and environmental affairs at Johnson & Johnson, to head OSHA. Shortly before his resignation in January 1992 (to return to Johnson & Johnson as vice president in charge of safety), Scannell asserted that OSHA was not "out to get" employers, but was instead simply striving "to help people." Yet, as the Los Angeles Times noted on December 29, 1991, "During the Bush Administration, OSHA fines have increased sharply, with numerous multimillion-dollar penalties imposed."

It's Taxing

OSHA fines are essentially a form of taxation, since they may be used to reduce the national debt. The notorious 1990 Budget Reconciliation Act, on which President Bush broke his "no new taxes" pledge, raised the ceilings on OSHA civil monetary penalties dramatically, with the specific intent of raising additional money for the federal monolith. The maximum fine for willful or repeated violations jumped from $10,000 to $70,000, with a minimum willful serious penalty of $5,000. Should a death occur, an employer convicted in a criminal court proceeding could be fined up to $250,000 ($500,000 if the employer is a corporation) or imprisoned for six months, or both. The top penalties for serious violations and violations of posting requirements went from $1,000 to $7,000, as did the maximum per-day fine for ignoring a deadline to correct a violation.

The Congressional Budget Office estimated that the increased penalties could generate more that $1 billion in additional revenue over the five years ending with fiscal 1995. OSHA's new penalty schedule went into effect on March 1, 1991.

In November 1991, OSHA and the Environmental Protection Agency (EPA) agreed to cooperate in enforcing health, safety, and environmental regulations, a move which further strengthens the web of regulations which is stifling the economy while expanding the size and power of government. The subsequent OSHA-EPA work plan included a data exchange system and cross-training of each agency's inspectors. It also established a procedure for referring possible violations of statutes and regulations administered by the two agencies, and for coordinating compliance and enforcement activities.

Ripe for Harvest

Ergonomics, or human engineering, is an area ripe for OSHA meddling. Defined as "an applied science concerned with the characteristics of people that need to be considered in designing and arranging things that they use in order that people and things will interact most effectively and safely," it entails such maladies as stress-related and repetitive-motion injuries. OSHA first became involved with ergonomics in 1977, instigated a pilot program in 1986, and in 1990 created a new ergonomics office to deal with employee complaints and OSHA citations related to ergonomic hazards. This vaguely defined, open-ended domain is serving to justify massive new government interference in the workplace.

As journalist Alan Stang has noted, "One of the hallmarks of dictatorship is that its laws are deliberately vague. A dictator wants vague laws, in order to make obedience difficult so that he may call you guilty whenever he likes." That design perfectly fits OSHA, the EPA, and the federal regulatory bureaucracy as a whole. In July 1991, a coalition of 31 labor unions petitioner OSHA to issue an emergency six-month standard on ergonomics-oriented maladies. The agency was already planning to issue the type of standards sought by the unions, but not for another few years. On the day after the unions filed their petition, a major OSHA reform bill was introduced in Congress which would create new obligations for employers, new "rights" for employees, and new authority and duties for OSHA. Among other things, it would:

• Expand OSHA's jurisdiction to federal workers (including the Postal Service), excepting certain congressional employees and state and local governments.
• Allow OSHA to seek criminal prosecution of employers suspected of "willful" violations leading to serious injuries.
• Force employers to pay fines and correct hazards of "imminent danger" immediately, rather than allow them to wait until they have exercised their right to appeal an OSHA citation.
• Require all employers to establish a formal safety and health program, and require all companies with 11 or more workers to form health and safety committees composed of equal numbers of employee and management representatives.

These and other proposals (such as one that would compel individual corporate managers to pay their criminal fines personally) are expected to be on the docket of the 103rd Congress.

Destroy the Monster

The federal regulatory leviathan apparatus has created what may be the largest group of lawbreakers in America, namely employers large and small whose "crime" is their inability to comprehend or comply with the blizzard of complicated, one-sided, often conflicting demands. As Alan Stang warned two decades ago, OSHA was "carefully designed to create a climate of terror -- terror which can be used selectively for political purposes -- to turn businessmen into criminals, to cast them as ogres who have no interest in safety, to deny their civil rights and eventually those of everybody." Even former peanut farmer Jimmy Carter, during a candid moment at a White House cabinet meeting, once exclaimed: "If I were an employer, I'd like for all my employees to be safe. But with the mention of OSHA, there kind of rises something up in me to resist it and not cooperate with it."

OSHA should not be reformed, and certainly should not be further strengthened, but should instead be abolished. Its record to date provides a classic example of the long-range futility of attempting to reform, contain, and "moderate" an unconstitutional monstrosity that should never have been created in the first place.

* It is worth noting how OSHA distorted statistics in its early days to make it appear that the agency was having a positive impact on accident rates. As described by former OSHA compliance officer T. Daniel Sanger, "When OSHA began, almost all OSHA inspectors were telling employers to list all accidents on the necessary forms. These would include minor cuts and scratches, dust in the eyes, etc. Later, OSHA told employers to no longer list these first aid cases. By simply not recording these minor cases anymore, many employers showed a substantial accident rate reduction on paper."


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