OSHA inspections fall to a record low

May 31, 2000
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"We were harangued all the time from Congress about inspections. If we did one less inspection than the year before it was reason for an oversight hearing," recalls former OSHA administrator John Pendergrass, talking from his consulting office in Falls Church, Virginia.

Times have changed, as if you hadn't noticed. In 1995, OSHA conducted 13,264 less inspections than the year before- without any wild outcry from Capitol Hill. In fact, most safety and health professionals and Washington observers believe the Republican-dominated Congress is responsible for driving the numbers down to a record low level of 29,113 for fiscal year 1995. Compared to 1994, federal inspections were off 31 percent.

Pendergrass is quick to point out that inspection totals can be easily manipulated. "If you needed to increase your numbers at the end of the year you could inspect half a dozen construction sites, count each subcontractor on the site as a separate inspection, and it would make a big difference in your totals."

Current OSHA chief Joe Dear says his agency stopped playing this "shell game" in - 95, and that's one reason for the decline in inspections. Dear has said repeatedly that inspectors would no longer be evaluated by "cranking up the (inspection) numbers."

"There are easy explanations for the decline in inspections," says OSHA spokeswoman Cheryl Byrne. She says "reinventing" the agency by putting area office personnel through intensive training lasting several weeks "takes up a lot of time." So do problem-solving projects, where each "redesigned" office works with local industry on a hazard specific to their area.

But most safety and health pros contacted for this article believe the reason for the fall-off is politics, not reinvention. "We're all aware of the battle OSHA is fighting," says a safety manager in Florida.

"OSHA is easing up to please the Republicans," says Jack Daugherty, a safety manager in Mississippi.

Agency officials balk at this suggestion. "You can say we're pandering to Republicans, but reinvention started before the (1994) election," Dear told reporters after a speech last November.

Still, several ex-OSHA officials look at the falling enforcement numbers and see a survival instinct at work. "OSHA field people are avid tea leaf readers," says one. "They think it's time to cool their heels and not make waves."

"This is a matter of a bunch of people scared (expletive) about losing their jobs," says another. "The agency is under attack like never before. The venom, the level of bitterness, I've never seen before."

To these OSHA watchers, the significant statistics are the drop in serious violations (down 41 percent) and serious violations per inspection (down 13 percent), as well as a 42 percent drop in the number of contested cases.

"These ought to go up if you're going after the bad actors," says one former OSHA official.

Indeed, for the past year OSHA's rallying cry has been that it will ease up on the frivolous stuff and focus on serious problems. And agency officials assert that they are going after the worst safety offenders. In - 95, the number of egregious-case fines more than doubled to 17, and the number of fines exceeding $100,000 increased 79 percent, to 122.

June D'Zurilla, associate director of employee relations for the National Association of Manufacturers, says employers have seen no let-up in enforcement. "We still have members who feel like they're being visited a lot, at least once a year." But are inspectors targeting the worst offenders? D'Zurilla says audits often result in no fines.

This adds to the perception outside Washington that compliance officers are easing up. It could be they're confused as well as anxious. Look at the mixed signals they're getting: The Clinton administration plays up partnerships and cooperation with industry. Dear wants a customer-friendly agency. Congress considers two OSHA reform bills, and budget cuts including a possible one-third reduction in enforcement spending. Unions, meanwhile, think the agency has caved in to its critics. "Seventeen egregious cases in an entire year- there should be that many in one state. Give me a break," says one labor safety director. The unions rake Dear over the coals. Agency officials concede more enforcement must be added to the reinvention mix.

All this makes it difficult for those tea leaf readers in the field.

Assessing the impact

How will employers across the country interpret record-low inspection totals and declining penalties?

"I told my managers, 'It's not time to fire me'," jokes one safety pro. "I told them they don't need a party to celebrate OSHA's death. Things change. There could be a liberal backlash at some point."

The recent news about falling inspections and fines fits into a larger picture beamed from Washington, one that has many employers wondering if they are watching the demise of OSHA. Reduced enforcement, a virtual halt in standards-setting, plus the talk about deep budget cuts and radical reform legislation leave little doubt that OSHA is under siege.

"It's ominous," says consultant Zach Mansdorf.

"OSHA justifies the existence of a lot of professionals," explains Kyle Dotson, director of occupational health and safety for Phelps Dodge Corporation.

Most pros interviewed for this article, like Dotson, don't feel personally threatened. For a number of reasons, their programs are driven by more than OSHA compliance. Dotson says large corporations can show sizable paybacks in workers' compensation savings for safety investments. Plus, big public companies- especially in consumer markets- have an image to protect. And legal departments want to steer clear of lawsuits.

"I hope they don't dismantle OSHA, but it doesn't bother me one way or another," says the safety manager of a plant that manufactures medical products. "We can't afford to stop what we're doing. You can't have a good company with a poor safety record. Plus, I don't want my managers guilty of knowingly endangering workers. That's a terrible indictment of a company."

But like Dotson, many workplace safety and health experts have larger concerns. They see declining inspections just fueling the fire of OSHA's critics, who think they have the agency on the run. "The small business community is going to say, 'Look, the pressure tactics are working'," says one attorney.

There's also concern that small and medium-size businesses will take enforcement statistics as "another reason not to waste time listening to the safety person," as one professional explains. Harried managers in these plants already have their hands full trying to compete and survive.

"Small and mid-size companies will see this as a green light" to back off on safety, frets a safety and health consultant.

Big business is not immune from the temptation to pull back, either. "It's already happening," says an attorney who counsels major corporations on OSHA issues. "I have clients who are cutting back. The message to corporations is clearly that you don't have to worry about OSHA."

Indeed, when Industrial Safety & Hygiene News surveyed readers last summer about the effects of Washington's anti-OSHA climate, more than one-third of respondents from plants with 1,000 or more employees said their budgets and staffs could be threatened in the coming year. Forty-three percent said it would be tougher to sell major safety and health investments to upper management.

What particularly worries some safety and health experts is the one-two punch of a less powerful OSHA combined with corporate downsizing. They see it knocking out too many safety and health departments.

"Some big companies are cutting way back," says an attorney. "I know of a major food materials company that recently laid off eight people, just eliminated their safety and health department."

Dr. Richard Fulwiler, a consultant and former head of Procter & Gamble's worldwide health and safety operations, attended a professional conference last fall and found the number of companies and institutions shutting down and outsourcing safety and health departments "terribly disconcerting."

"I'm very concerned," he says. "You don't hire consultants to build corporate infrastructure. You hire them to patch potholes. Consultants don't build the systems that drive safety and health results. They can't gain access to the information needed."

Waiting for a turnaround?

Many safety and health pros look at the drop in OSHA inspections and chalk it up to politics. The pendulum goes back and forth, they say. Aggressive enforcement, relaxed enforcement- they've seen these cycles before. Most interviewed for this article expect OSHA inspectors to keep their low profile in 1996. An election year is never time to rock the boat, they reason. Plus budget cuts could take away field compliance resources.

There is some talk among Washington sources, though, of a renewed enforcement effort. They say OSHA officials are privately concerned that inspections and penalties fell more than anticipated. In mid-December, regional administrators met in Washington and were told, "You can't forget about enforcement," according to one source.

Dear might give explicit directions to area offices that haven't gone through reinvention training (about 15 out of 67 have) to stick with the old rules for enforcement unless told otherwise, says another source close to the agency.

In the long run, safety and health pros expect the pendulum to swing back. "Some company is going to cut, cut, cut on safety, something will blow up, and then we'll have more enforcement and regulation. That's the way it works," says one corporate safety director.

But until then, that likely means an increase in workplace injuries and illnesses, says Fulwiler.

Handicapping the '96 odds for OSHA reform

Now that major OSHA reform bills are on the table in both the House and Senate, what are the odds that they will be voted on, passed, reconciled, and signed into law in 1996?

Very slim, according to Washington prognosticators.

Handicapping legislation is a popular spectator sport inside the Beltway, and there's no lack of opinions regarding the fate of North Carolina Republican congressman Cass Ballenger's OSHA reform measure, which has languished in the House for almost a year, and the less radical bill introduced last November by GOP senators Judd Gregg of New Hampshire and Nancy Kassebaum of Kansas.

(See page 37 for details on the Kassebaum-Gregg bill).

Two very different scenarios capture the range of views of what could happen when Congress returns from its holiday recess in late January:

The Ballenger bill sails through subcommittee and committee votes cheered on by young turk Republicans, reaching the floor where it is approved by the full House. The earliest this could happen is by April, estimates Ballenger spokesman Patrick Murphy.

Meanwhile, over in the more cautious Senate, a determined Senator Kassebaum pushes her bill through a committee vote and on to the full Senate, where the legislation's moderate tone garners enough Democratic support to ensure its passage.

A conference committee of House and Senate delegates then irons out some considerable differences between the two bills, both chambers approve the compromise package, and an OSHA bill lands on the president's desk for the first time in 26 years- probably sometime around August or September.

Congress comes back from its recess with one eye on the budget impasse (unresolved at press time) and the other eye on November's elections. Just about the last thing on its mind is OSHA reform. GOP leadership in the House, preoccupied with the budget, the abortion issue, and controversy swirling about Speaker Newt Gingrich, can't find the time to allow a floor debate on OSHA. Ballenger decides to shift his attention to another pet project, revising the Fair Labor Standards Act.

In the Senate, Democrats and their union allies succeed in playing stall ball with the Kassebaum-Gregg bill, calling for more hearings and using other delaying tactics. "The longer it hangs out there, the more likely it is to die," says a labor safety activist.

By March, the presidential primary season is in full-bloom and the window of opportunity for OSHA reform closes for another year.

Even in the best-case scenario for those who want an OSHA reform bill, the wild card is President Clinton. Would he sign a bill despised by his union supporters, close to the election, when he can argue that "reinvention" has changed the agency in a positive way?

"I wouldn't say that's a bet I'd take," says Ballenger spokesman Murphy.

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